II. Queer Encounters with International Law: Rejection, Redemption, and Repair

Paige, an associate professor at Deakin Law School, and O’Hara, a lecturer at Melbourne Law School, describe these sibling volumes as “not simply another iteration of the same project. Rather, the contributions within them constitute a ‘re-queering’ of international law for our present moment, reflecting the non-linear, plural, and unfinished nature of queer legal theories and their encounters with international law.”Footnote ³ While the meanings of queering international law vary across contributions, common themes include drawing insights from the lived experiences of queer and other marginalized peoples,Footnote ⁴ moving beyond the binary logic that often pervades legal thinking,Footnote ⁵ and seeking to dismantle the heteronormativity embedded in international law.Footnote ⁶

In and through them, we can also see a spectrum of queer thought on international law. As Loveday Hodson underscores, “queering international law has tended to provoke strong theoretical responses that either call for the abandonment of law as an emancipatory project or … foreground hope in law’s potential at the cost of addressing the despair provoked by law’s compulsion towards (cis-hetero) normativity.”Footnote ⁷ Hodson’s framing reminded me of the conceptual distinction between rejectionist and redemptive approaches to law that Margaret deGuzman and I also observed in the feminist scholarly discourse on international criminal law.Footnote ⁸

To some extent, the contributions in these volumes mirror the same dynamics present in these dueling approaches. Namely, the rejectionist frame views human rights law as so fundamentally flawed or complicit in systems of injustice that it advocates for its rejection and abandonment.Footnote ⁹ In contrast, the redemptive frame seeks to reform human rights law from within, emphasizing its potential to advance justice when interpreted through more inclusive and critical lenses.Footnote ¹⁰ Yet, a third frame also emerges in the volumes: the reparative frame. This frame, as I discuss below, introduces a more nuanced and expansive approach that draws from queer theory’s resistance to binaries. It neither wholly rejects nor wholly embraces international law. Rather, it seeks to reimagine the law offering bold new visions of how legal structures could be used to promote human flourishing. It is within this third frame that joy is most fully embraced.

As the editors note, in earlier queer legal scholarship—especially in Diane Otto’s foundational collection—many theorists largely adopted a rejectionist stance, particularly toward international human rights law.Footnote ¹¹ These early critiques were wary of liberal human rights regimes and suspicious of international law’s emancipatory potential.Footnote ¹² In Otto’s volume, Ratna Kapur compellingly argues that LGBT advocates should disengage from human rights frameworks because they inevitably reproduce the normative hierarchies that queer theory aims to resist and dismantle.Footnote ¹³ In a later piece, Kapur memorably observed that “queer engagement with human rights has taken the radicality out of queer rather than resulting in the queering of international human rights.”Footnote ¹⁴

Several contributors to these volumes echo this early skepticism, expressly evoking Kapur’s criticism.Footnote ¹⁵ Karen Engle, expanding upon her prior critique of the human rights movement’s criminal turn,Footnote ¹⁶ questions whether the international human rights system’s reliance on carceral solutions may ultimately reinforce the very structures that often harm LGBTQ people.Footnote ¹⁷ Despite noting some points of resonances with queer abolitionist critiques—particularly in calls to decriminalize conduct such as sodomy and to improve conditions for queer people in prison,Footnote ¹⁸ Engle critiques the LGBTQ human rights movement’s “near consensus on the deployment of criminal law” for inadvertently bolstering a carceral state that frequently targets the queer community.Footnote ¹⁹

Likewise, Daryl WJ Yang cautions against relying on human rights law to address conversion therapy. Instead of presenting the issue in human rights terms, he proposes turning to international consumer law.Footnote ²⁰ Yang argues that framing conversion therapy as torture denies the agency of those individuals who seek it for personal or religious reasons, while also perpetuating a problematic divide between “civilized” and “barbaric” states inherent to human rights discourse.Footnote ²¹ Furthermore, similar to feminist scholars who warn that the incorporation of women’s rights into international law will lead to governance feminism,Footnote ²² several contributors worry that mainstreaming of queer rights into international law could lead to “queer governance”—a co-optation of radical queer politics into dominant legal frameworks that ultimately jeopardizes its radical potential for societal transformation.Footnote ²³

In contrast, some contributors to these volumes adopt a redemptive approach to international human rights law, acknowledging the limitations of human rights law while affirming its continued potential for advancing LGBTQ rights. Warisa Ongsupankul, for example, critiques human rights jurisprudence for leaning heavily on arguments that deny homosexuality is contagious—thereby implicitly reinforcing a hierarchy between heterosexuality and homosexuality.Footnote ²⁴ But rather than abandon human rights altogether, he suggests “how human rights law could better construct an approach to education that is affirmative of queer children.”Footnote ²⁵ Similarly, Juliana Santos de Carvalho offers a powerful critique of bio-essentialist feminism in international law, yet she resists calling for the field’s abandonment.Footnote ²⁶ She maintains that human rights law can still offer “institutional protections and helpful remedies” and serve as a site for queer coalition-building.Footnote ²⁷

These contributions illuminate powerful continuities with past writings on queer international law, although updating them to account for current developments such as the rise of transnational anti-queer movements as well as advances in human rights jurisprudence on queer and transgender rights.

III. Queer Repair Between Hope and Despair

Still, another approach starts to peek through in Lives, Communities, and Subjectivities: the reparative approach. This frame embraces a non-binary mode of engagement with law, which neither wholly rejects nor redeems it. Those who adopt a reparative approach, much like those who adopt a rejectionist stance, recognize the law as a tool of dominance and heteronormativity, but differ in that they still hold out hope for law’s emancipatory potential. However, instead of attempting to retool existing doctrines as would those who take a redemptive approach toward law, they seek to imagine law as it could be otherwise. In line with abolitionist theory, the reparative approach is about building new life-sustaining legal frameworks rather than trying to operate within the existing ones. In this framework, the law is secondary—valued only insofar as it supports human flourishing and healing. The goal is not to mend the law itself, but to repair harm and cultivate joy, whether through legal channels or beyond them.

Numerous contributors to this volume exemplify this reparative approach. Hodson, for instance, calls for a reparative reading of international human rights law through which “[j]oy and love can enter the frame.”Footnote ²⁸ Hodson’s reparative approach recognizes that international human rights law can be oppressive, but insists on holding space for its radical potential.Footnote ²⁹ To read human rights law reparatively, she writes, is “to be able to integrate at once knowledge of human rights law’s demonstrable limitations and the possibility of an alternative future.”Footnote ³⁰ This in-between stance distinguishes the reparative from both rejectionist and redemptive frames and aligns closely with broader commitments in queer legal theory. Engle echoes this sentiment, urging LGBT advocates “to expand their reparative imaginations” and resist the carceral tendencies of human rights advocacy.Footnote ³¹ Similarly, Odette Mazel draws on Foucault’s work on self-care and the practice of living authentically—what Foucault calls the “art of living”—as central to “the queer work of repair.”Footnote ³² Like Hodson, she sees Foucault as straddling the middle zone by “embracing both the critique of existing norms and active deployment or enactment of new and emancipatory ways of living with them.”Footnote ³³ Through the stories about the lives of three queer activists in international law, Mazel illustrates how they operationalized Foucault’s core tenets and concludes with a powerful invitation to follow their example and “do human rights fabulously.”^{Footnote 34} Instead of repair being an approach, for Danish Skeikh, it should be thought of instead as a collective ethos—of queer communities practicing repair work together.Footnote ³⁵ It requires acknowledging what is broken and being attentive to what queer lives have to teach.Footnote ³⁶ The practice takes many forms from poetry to theatrical performance, but is unified in its central purpose of building a nurturing community.Footnote ³⁷ Edoardo Stoppioni traces the intellectual lineage of these contributions on repair work to the evolution of Eve Kosofsky Sedgwich’s work from embracing a “paranoid approach” that focuses on the deficiencies of law to adopting a “reparative approach” that focused on empowerment and renewal through law.Footnote ³⁸

Dwelling in the space between what is and what could be requires more than legal critique; it demands attentiveness to how people actually live with, resist, and reimagine law in their daily lives. It is this positionality of “living between hope and despair” that Hodson describes as “an inherent part of the queer encounter with international law.”Footnote ³⁹ The reparative approach thus requires living “ambivalently” with rights at the intersection of hope and despair—acknowledging both the “the disciplinary power of law and holding on to the hope of its emancipatory potential” as well as finding spaces where law is necessarily foregrounded as the preeminent tool for societal ordering.Footnote ⁴⁰

For this reason, another key feature of this non-binary, reparative approach to (re)queering international law requires engagement with the lived experience of queer people and communities.Footnote ⁴¹ Paige and O’Hara underscore this point, defining queerness broadly, as “any way of living that diverges from, and thus inherently challenges, heteropatriarchal expectations and norms.”Footnote ⁴² In queer theory, lived experience is not merely anecdotal but epistemologically and politically generative—it unsettles normative categories, exposes law’s failures, and envisions law otherwise.Footnote ⁴³ This resonated with me because I see this as the fundamental promise of participatory law scholarship (PLS), which I developed alongside my co-authors who often write drawing from their lived experience of being sentenced to die in prison, as well. Namely, its strength is to recognize that those most impacted by legal systems must not only be heard but co-create the terms of legal knowledge.Footnote ⁴⁴ Like the reparative approach, PLS refuses the false binary between hope and despair by grounding theory in the complexities, contradictions, and creativity of lived life. In this way, both for queer theory and PLS, inhabiting the middle ground becomes not a site of tension, but a source of insight and transformation.

Importantly, grounding legal analysis in lived experiences of queer people also ensures faithfulness to the non-conformity principle innate to queer scholarship and advocacy. Giovanna Gilleri, for example, uses lived experiences to counter the woman-victim and man-perpetrator dyad in human rights discourse and consequently urges us to reject the assimilationist tendency of human rights law and to preserve “the radicality of the queer project.”Footnote ⁴⁵ According to Gilleri, “[t]his entails the rejection of any normative inclusion of queerness by, for instance, stretching the reach of human rights protection to assimilate queer subjects in the dominant discourse.”Footnote ⁴⁶ Instead, as Jeremy Baskin and Sundhya Pahuja put it, the approach of lifting of queer lives and imagery “can help to make strange the taken-for-granted.”Footnote ⁴⁷ Indeed, precisely because of its foundational commitment to centering queer lives, queer theory embeds non-conformity into its genetic makeup. This radical inclusivity can itself serve as a safeguard against co-optation, feared by many who take a rejectionist approach to international human rights law. Namely, by centering queer lives—and exposing the ways international law continues to marginalize them—the reparative approach facilitates resistance to queer governance.Footnote ⁴⁸

IV. Beyond the Right to Privacy: Doing Human Rights Fabulously

As my sister’s experience and the contributions in these volumes make clear, if queer lives are front and center, celebrations of queer life and joy will also rise to the top. This centering of joy and hope invites us to rethink some doctrinal principles in international human rights law. For example, as several contributors note, most protections for queer and trans rights are tethered to the right to privacy and family life.Footnote ⁴⁹ But a queer framework that centers joy raises questions about whether privacy is the right conceptual foundation. Instead, the right to privacy implies that queer life should be hidden away in private, and risks dimming the appearance of queer joy and desire in public spaces.

Several scholars in these volumes make this point. For instance, Manon Beury critiques the limitations of the privacy framework, arguing that it restricts human rights to “respectable” queer people who conform to heteronormative models of domesticity.Footnote ⁵⁰ As Beury puts it, by analyzing trans rights under the right to privacy, human rights bodies might be “putting trans persons back in the ‘closet.’”Footnote ⁵¹ Similarly, Matteo Bassetti critiques the limitations inherent in privacy rights in the context of trans rights.Footnote ⁵² Namely, Bassetti warns that privacy-based arguments “relegate being trans to the private sphere,” predominantly constraining what information should be made public, such as a trans person’s former legal name, but not fully recognizing all the ways that trans life is often undervalued and under threat in public spaces.Footnote ⁵³ Alexandra C. Grolimund adds that sadomasochistic expressions of desire are mischaracterized under the metric of the right to privacy as inherently violent or shameful.Footnote ⁵⁴ According to Grolimund, the treatment of sadomasochism by human rights courts, especially the European Court of Human Rights, as torture illustrates an inability to distinguish between pleasure and violence.Footnote ⁵⁵ His contribution begs the question: If queer life is only protected in private, what happens to joy, visibility, and desire in public?

To counter these limitations, some queer scholars propose alternative legal frameworks. Some have pushed for trans rights to be framed under the right to be free from cruel, inhuman, or degrading treatment or under the principle of non -discrimination.Footnote ⁵⁶ Yet, these frameworks still center the suffering of and harm to queer people. Other scholars offer more promising frameworks for centering joy and hope. For instance, Bassetti offers the right to life as an alternative framework to protect and value trans life.Footnote ⁵⁷ Grolimund suggests that the European Court of Human Rights should evaluate rights claims involving sadomasochism based on the right to self-determination.Footnote ⁵⁸ These shifts in rights discourse could galvanize a broader move: from protecting queer life through concealment, to affirming it openly and joyfully.