Any firm that does business in a foreign country must respect the culture of that particular country. Perhaps in no sphere is that so acutely important as in the hiring or re-location of gays, lesbians, bisexuals and transgender employees. Their needs, widely recognized and accommodated in North America, may actually be considered illegal in other countries around the world. Which is why a company with a global workforce must respect the reality that global is local.
Our planet has pretty much stayed the same size over time, but recent improvements in communications technology and travel have made it feel much smaller. For example, a judge in Mashad, Iran makes a ruling on a case involving two male teenagers and within 48 hours gay and lesbian activists all over the world can see images of the two boys hanging in the town square. A town manager in Florida announces to the local town council that he is going to have a sex change and transgender activists all over the world hear that he was fired the next day.
These days, news travels around the world very quickly. Activists no longer know or are concerned only about what is happening in their own backyard. Today they can be concerned about and involved in what is happening in any backyard, anywhere in the world.
Between December 2000 and July 2005, Canadians watched and participated in a protracted debate on the merits of same sex marriage. In the end, Canadians achieved the right to marry the person of their choice, regardless of their gender. Gays and lesbians in Canada had achieved another step toward equality.
However, the rights and recognition that have been achieved in Canada are not enshrined universally. The universal rights that we are all supposed to experience as described by the United Nations Charter in 1948 still do not apply to everyone in the world.
In fact, there are 91 countries, representing over 42% of the world’s adult population, where the simple act of two men having sex with one another is a criminal act. It is a capital offense in 17 of those 91 countries. And there are only 40 countries, representing less than 20% of the world’s adult population, where a relationship between two men is recognized as legal.
Laws around the world are changing though, creating confusion and uncertainty as companies expand their global operations and employees move around the planet in search of new opportunities. Five countries sanction same-sex marriage – Belgium, Netherlands, Canada, Spain, and South Africa. However, the marriages are not universally recognized. In Brazil, Mexico and the United States, same-sex couples can marry in some areas of the country, but not in others and their relationships may or may not be recognized outside of their home country depending on where they travel.
Marriage has the connotation of family – and in countries which have started to recognize same-sex relationships, we are seeing an increase in the number of same-sex households raising children. However, international travel with those children can be a nightmare for parents, who risk having their children taken away from them by jurisdictions who will not give them the right to even be parents.
In any of the 91 countries that criminalize same-sex activity today, the international traveler or employee of a global company needs to be very knowledgeable on a wide range of laws. This is especially so in the eight countries – Chechnya, Iran, Mauritania, Nigeria, Saudi Arabia, Somalia, Sudan, and Yemen – where the penalty for two men caught having consensual sex in the privacy of their own home is death.
Such a law defies a United Nations Human Rights Committee ruling made in 1994. Then, in the case of Toonen vs Australia, the committee ruled that Article 17 (the right to privacy) and Article 2 (the right to non-discrimination) of the International Covenant on Civil and Political Rights (ICCPR) were to be interpreted as being inclusive of sexual orientation when they referred to sex. This international case set a precedent that has been accepted by some signatories to the ICCPR, but openly ignored by others. This has caused a patchwork of laws addressing sexual orientation to be created all over the world – when the intention of the United Nations was to consolidate those laws, and provide for some global guidance in protecting the fundamental human rights of everyone.
For global organizations, then, accommodating the GLBT community and complying with the laws in the country in which they operate can be extremely frustrating and even perilous. This article will help global employers – and employees – by describing some of the considerations they need to undertake when re-locating GLBT employees around the world.
The patchwork of laws around the globe, primarily based on religious doctrine from Christian, Islamic and Judaic principles, require careful consideration by global employers as they move their workforce around and relocate their employees.
For example, the closeted gay employee who does not reveal his sexual orientation to his employer can find himself legally unemployable if he were to be relocated to Egypt, and did something as innocent as attend an all male dance party on one of the many river boats in the area. To be presumed to be homosexual in Egypt is the same as to be homosexual – and it carries a criminal charge with it. A criminal record in Egypt is a complete barrier to employment in the country.
Employers need to understand the variety of laws that are in place in countries that they are operating in – and how those laws are applied. Awareness of local issues and the current treatment of known or suspected homosexuals are critical when working with gay or lesbian employees in a global company.
Viewing the world from Toronto, where this summer one million people attended the annual Pride Parade, gives a distorted view of how gays and lesbians are treated, both socially and legally outside of Canada. While we have come to accept a legal definition of marriage as being inclusive of same-sex couples, there are far more countries where the right to life for those same couples simply does not exist.
Our use of language can also create difficulty when trying to even have a conversation about Gay, Lesbian, Bisexual or Transgender issues. When we speak from a North American perspective, we shorten our language and we use coded words to express complex ideas.
GLBT, for example
In North America, we have taken that construct and have created a shared understanding, we have moved beyond classifying people into either homosexual or heterosexual, and have moved into more of a continuum point of view as seen in the research from Kinsey and others.
It is along that continuum, when we start to look outside of the United States, that we see a much stronger representation of a wider variety of sexual orientations. It leads us into how we define people as gay, lesbian, bisexual – and we need to remember that transgender is not in itself a distinct sexual orientation. If you look at the arguments against equal rights based on sexual orientation, they tend to define gay or lesbian as being a behavior or a lifestyle choice a person makes based on their same sex attraction; therefore, they are homosexual. The reverse though, to act on an opposite sexual attraction, is a normative behavior even though in both cases, a choice is being made. We do not define heterosexuals on a specific behaviour or a specific sex act.
There is an increasing amount of research that is pointing towards a biological basis for sexual orientation. This is supported by the documented existence of same-sex attraction and relationship formation in the animal kingdom in most species of animals.
Without an agreed upon definition based on something more than just a behavior, we are left to allow the individual to choose how they wish to be identified. This self-identification means that our language needs some universal definitions and clarity – which it lacks.
In western cultures, this self-identification of an individual’s sexual orientation is often a political statement based on the feminist approach that the personal is political. This is not a universal definition even within western cultures though and leads to divisions within the gay, lesbian and bisexual community. And it can often exclude the transgender community or other marginalized group that face similar discriminations based upon their sexuality.
We speak of self-identified gays or lesbians as using language that protects the privacy of the individuals but also allows them to affirm or express their own identity as they are comfortable to do so.
In North America, a strong political community evolved after the Stonewall Riots in New York. In response to the AIDS crisis in the 80’s, the community broadened itself into a larger sexual minority group that has come to include bisexuals and transgender people.
If we look towards Europe, the same development has not occurred. The gay, lesbian, bisexual community is generally separate from the transgender community, and the term GLBT has little relevance other than its indication of a North American identity.
Our language describing gays, lesbians, bisexual, and transgender people works in North America, in Latin America, and throughout Western Europe. But when we move out of those areas, into the Middle East, Eastern Europe, Asia, we find that our language no longer matches cultural reality.
In India, most people would refer to the Hijra as being gay – a prerogative term. But in fact, the Hijra are better defined as a transgender group of people, men who take on female identity. But, the Hijra is also a class statement, and under the caste system Hijra are traditionally untouchables, who may or may not have a homosexual sexual orientation. Hijra are not defined by their sexual orientation but by their gender expression.
Still in India, the Hamjinsi or Samlingi are men who have sex with other men, an act referred to as maasti, a somewhat accepted practice between younger men who are not allowed to have relations with women before a certain point in time. These are men who would not identify themselves as gay though. They will marry women and they will have children. Marriage is mandatory. But maasti is viewed as something that happens between adolescent boys, and not much attention is paid to it. Single men bring great shame on their family so the concept of gay as we know it in North America really isn’t applicable in Indian society.
We see a similar approach in Singapore with the “ah qua,” which is actually a pejorative term, or in the Philippines with the Bakla, groups of men that either describe themselves as gay or are referred to as gay, as they adopt western terminology. These groups would be more correctly defined as transgender communities, but this is a construct that has not translated well from western cultures to eastern cultures. And it is not a word that would be used locally, even in a translated context.
These communities of primarily effeminate men have taken the western word “gay” to describe themselves, but in doing so they have further marginalized masculine-identified men who have sex with men like the Lalake in the Philippines, and who do not identify as Bakla. Bakla would not have sex with other Bakla. They would only have sex with other masculine-identified men or Lalake.
Gay has become a gender-expression identity rather than a sexual-orientation identity in many eastern cultures. But the word was imported from western cultures where it has a different meaning. Employers need to understand this terminology usage as we develop global programs using words that are easily understood in North America.
There is a similar concept in Malaysia, where Pondan are effeminate men who have sex with men and Jantan are masculine men who have sex with men; however, the Pondan and the Jantan don’t identify as being from the same community. They are separate groups that don’t interact with each other. If we use behaviour to define orientation, then both groups would be referred to as gay – but it is not a term that either of them use or accept. For them, it is an American identity separate from Pondan or Jantan.
We need to understand that our individualistic society and our feminist point of view created a gay identity in North America that is different from the one that exists throughout Asia. If we create global programs directed to a gay or lesbian audience – we further alienate the very people outside of North America who we are trying to include.
Our global programs, which are being designed to create inclusive workplaces regardless of an individual’s sexual orientation or gender identity needs to be developed within local contexts. The needs and demands of gays, lesbians, bisexuals and transgender employees vary according to the culture of the country in which they work. And our global workforce is becoming more fluid, with more employees from far more cultures becoming a part of that workforce far more rapidly than ever before.
The out gay activist with an MBA living in San Francisco is going to act differently – and needs to be instructed to act differently – if he is going to be placed on an assignment in the Middle East. It is more than just culturally appropriate behaviour – it is also legally punishable behaviour – with severe consequences.
Our planet is going to continue to feel smaller, news will travel faster and employees will react to that news. The truth is that companies with impressive records of supporting gay and lesbian issues in North America need to evaluate those records if they have operations in countries like Nigeria, where a global non-discrimination policy written in Canada or the United States will not save the life of a gay employee working in the oil fields of Nigeria’s northern states.
This article is for your own, personal use. To order reprints for any other use, please go to http://cases.ivey.uwo.ca/cases.