Resistance to diversity and inclusion measures in relation to the LGBTI community is not a recent phenomenon. However, over the years, such resistance has intensified in some countries as the punishment and persecution of the LGBTI community have increased through the enactment of more severe and harsher criminal laws. The criminalization of LGBTI persons and the denial of their rights has impacted not only interstate relations but has also presented a major challenge to the approach that global companies take in relation to LGBTI rights. For instance, when Uganda passed the Anti-Homosexuality Act in 2023, companies like Google that had supported the LGBTI community considered it ‘bad for business.’ Moreover, there were suggestions that certain foreign companies would consider closing (hereinafter the business-exit approach) in Uganda in response to the Act. In this post, I examine the merits of the business-exit approach in light of the corporate responsibility to respect LGBTI rights and the UN Guiding Principles on Business and Human Rights (UNGPs). I argue that while the business-exit approach taken by foreign companies can be an appropriate part of what I call ‘queer human rights due diligence’ to comply with LGBTI rights obligations, consideration must also be given to the possible adverse consequences of ill-considered exit responses by foreign companies in situations such as that in Uganda.
Corporate Responsibility to Respect LGBTI Rights
Corporate actions impact human rights. Yet, in making the business case for human rights, there is no easy answer as to what corporate responsibility requires. In particular, the extent to which corporations have direct obligations under international human rights law suffers from indeterminacy. Since states are considered the archetypal subject of international law, a common mantra is that any attempt to impose direct obligations on non-state actors is bound to fail. The UNGPs were devised partly to address this legal quandary. Although these principles are not legally binding per se, they have become the most authoritative global standard on business and human rights and have gained wider recognition. While they have played a key role in making human rights issues central to business operations, they lack direct engagement with issues of sexual orientation and gender identity. Indeed, the LGBTI human rights agenda and the field of Business and Human Rights (BHR) have historically largely ignored one another.
The Office of the High Commissioner for Human Rights (OHCHR) made the very first effort to bridge this gap through its LGBT-related Standards of Conduct. There are five standards designed to reflect international human rights laws and the UNGPs: (1) respect human rights; (2) eliminate discrimination in the workplace; (3) provide support in the workplace; (4) prevent other human rights violations in the marketplace; and (5) act in the public sphere. The first standard complements Principle 11 by interpreting corporate responsibility to respect human rights as including LGBTI rights. According to this standard, companies should respect LGBTI rights all the time. The responsibility continues even when states do not fulfil their own human rights obligations. This, however, does not address how companies should respect LGBTI rights in countries where there are laws against the LGBTI community.
Conflicts of Human Rights: The Business-Exit Approach and Queer Human Rights Due Diligence
The conflict between domestic and international human rights laws in the context of BHR is a complex issue, and the UNGPs do not set out any ‘hierarchy of laws’ to help companies determine priorities. As per Principle 23, when faced with a conflict between international human rights and domestic laws, companies should strive to ‘honour’ the former. Although the principle does not clarify what ‘to honour’ means, the commentary to the Principle explains that companies are not expected to reject human rights in toto even if the context demands otherwise. In fact, companies should endeavour to comply with human rights as far as possible. In other words, whether or not international human rights have been honoured will depend, at least in part, on the company’s intentions and the efforts they undertake.
Exactly what efforts must be undertaken is not, however, laid out in the UNGPs. In this respect, the suggestion by the Interpretive Guide of the OHCHR that human rights due diligence be exercised is useful as it would help companies to identify the adverse risks that the conflict poses and the measures companies need to address the risks. Human Rights Due Diligence (HRDD), as provided in Principle 17, is a process of assessing both actual and potential adverse human rights impacts. That includes not only the assessment of business risks but also the impacts on a particular group. While this form of due diligence should apply to deal with risks from anti-LGBTI laws and policies, the OHCHR Standards demand that companies exercise ‘more extensive due diligence’. The Standards follow Principle 17 to define HRDD but do not explain the meaning of ‘more extensive’. However, they refer to the ‘more extensive due diligence’ twice and each time in response to ‘higher levels of human rights violations’ of LGBTI people. For instance, the Standards ask companies to apply a ‘more extensive’ form of due diligence in countries with ‘discriminatory laws and practices’ against the group.
On that basis, anti-homosexuality laws fall within ‘discriminatory laws and practices’ and therefore demand that ‘more extensive due diligence’ be exercised by companies. In my view, ‘more extensive’ in this context entails extra caution or vigilance to ‘identify, prevent, mitigate and account for how they address the adverse human rights impacts’ of their activities on LGBTI people. I call this ‘queer human rights due diligence’ (QHRDD) for two reasons. First, the exercise of such diligence is aimed at protecting only non-normative sexual and gender groups like LGBTI people. Second, it requires corporations to exert greater efforts than usual or adopt measures that may not be typically taken in addressing LGBTI rights in other contexts. The threat to exit business indicates a greater effort by a company as it aims to bring a positive change in the socio-legal context to create a more inclusive environment for LGBTI persons. Therefore, the approach can be a part of exercising QHRDD.
The Problems of Exercising Queer Human Rights Due Diligence
While a decision by a business to exit would normally indicate a positive corporate intention, the approach could come with certain negative socio-political ramifications. First, tying the continuation of business to the legal status of LGBTI rights might reinforce the image of homosexuality as a Western import in countries like Uganda. Anti-LGBTI groups in Uganda tend to portray homosexuality as a Western value and ‘un-African’. This was illustrated in the aftermath of debates over a 2009 draft Anti-Homosexuality Bill, in response to which Uganda faced a threat of losing foreign aid unless the bill was changed. In response, James Nsaba Butoro, then Minister of State for Ethics and Integrity, replied ‘… I have told them they can keep their money and the homosexuality because it is not about charity at the expense of our moral destruction’. This statement suggests how some societies consider homosexuality to be nothing more than a Western moral imposition and want to resist it by enacting anti-homosexuality laws with severe penalties. The same reaction could apply to corporations that stand up for LGBTI rights. The business-exit approach, like the cut in bilateral aid, can be understood as just another way by which to pursue the mission of Western companies to civilize and modernize ‘backward’ nations such as Uganda.
Second, foreign companies taking a stance for LGBTI rights might put their own LGBTI employees at particular risk. Such employees might become a public target when the company publicly condemns anti-homosexuality legislation. This, in turn, potentially exposes LGBTI employees to serious harm and injury, including public harassment, bullying, and worse.
Third, since LGBTI rights are typically framed as Western values, an automatic reaction by foreign companies against anti-LGBTI laws may inadvertently spur local legislators to enact more such laws. In the past, some African countries have doubled down on criminalizing homosexuality as a tactic to proclaim that they are safeguarding national values from foreign influence. Hence, the response of Muhoozi Kainerugab, the son of Uganda’s President, to foreign companies’ decision to leave Uganda during the debates over the 2023 Anti-Homosexuality Act was that ‘We are willing to help them pack their bags and leave our blessed country forever!’.
Conclusion
It is, of course, difficult to generalize the question of when a company should opt to close down its business in a country in response to governments’ anti-LGBTI rights measures that preclude companies from continuing their own LGBTI policies. There is rarely going to be an easy answer. Still, the main thrust of my argument is that it should not be assumed that a high-profile declaration of intent to close down and exit a country in protest at anti-LGBTI policies by a government is the best one. In the short run, many commentators might applaud a brave and decisive rejection of discriminatory governmental policies by corporate actors. However, it is essential that full consideration also be given to the possible negative consequences of the exit approach. International human rights law clearly constrains the options open to companies in such contexts, but it does not demand that they always take the exit route if they wish to uphold LGBTI rights.
The Business-Exit Approach, Human Rights Due Diligence and The Perils of Queering Business and Human Rights
Written by Arifur RahmanResistance to diversity and inclusion measures in relation to the LGBTI community is not a recent phenomenon. However, over the years, such resistance has intensified in some countries as the punishment and persecution of the LGBTI community have increased through the enactment of more severe and harsher criminal laws. The criminalization of LGBTI persons and the denial of their rights has impacted not only interstate relations but has also presented a major challenge to the approach that global companies take in relation to LGBTI rights. For instance, when Uganda passed the Anti-Homosexuality Act in 2023, companies like Google that had supported the LGBTI community considered it ‘bad for business.’ Moreover, there were suggestions that certain foreign companies would consider closing (hereinafter the business-exit approach) in Uganda in response to the Act. In this post, I examine the merits of the business-exit approach in light of the corporate responsibility to respect LGBTI rights and the UN Guiding Principles on Business and Human Rights (UNGPs). I argue that while the business-exit approach taken by foreign companies can be an appropriate part of what I call ‘queer human rights due diligence’ to comply with LGBTI rights obligations, consideration must also be given to the possible adverse consequences of ill-considered exit responses by foreign companies in situations such as that in Uganda.
Corporate Responsibility to Respect LGBTI Rights
Corporate actions impact human rights. Yet, in making the business case for human rights, there is no easy answer as to what corporate responsibility requires. In particular, the extent to which corporations have direct obligations under international human rights law suffers from indeterminacy. Since states are considered the archetypal subject of international law, a common mantra is that any attempt to impose direct obligations on non-state actors is bound to fail. The UNGPs were devised partly to address this legal quandary. Although these principles are not legally binding per se, they have become the most authoritative global standard on business and human rights and have gained wider recognition. While they have played a key role in making human rights issues central to business operations, they lack direct engagement with issues of sexual orientation and gender identity. Indeed, the LGBTI human rights agenda and the field of Business and Human Rights (BHR) have historically largely ignored one another.
The Office of the High Commissioner for Human Rights (OHCHR) made the very first effort to bridge this gap through its LGBT-related Standards of Conduct. There are five standards designed to reflect international human rights laws and the UNGPs: (1) respect human rights; (2) eliminate discrimination in the workplace; (3) provide support in the workplace; (4) prevent other human rights violations in the marketplace; and (5) act in the public sphere. The first standard complements Principle 11 by interpreting corporate responsibility to respect human rights as including LGBTI rights. According to this standard, companies should respect LGBTI rights all the time. The responsibility continues even when states do not fulfil their own human rights obligations. This, however, does not address how companies should respect LGBTI rights in countries where there are laws against the LGBTI community.
Conflicts of Human Rights: The Business-Exit Approach and Queer Human Rights Due Diligence
The conflict between domestic and international human rights laws in the context of BHR is a complex issue, and the UNGPs do not set out any ‘hierarchy of laws’ to help companies determine priorities. As per Principle 23, when faced with a conflict between international human rights and domestic laws, companies should strive to ‘honour’ the former. Although the principle does not clarify what ‘to honour’ means, the commentary to the Principle explains that companies are not expected to reject human rights in toto even if the context demands otherwise. In fact, companies should endeavour to comply with human rights as far as possible. In other words, whether or not international human rights have been honoured will depend, at least in part, on the company’s intentions and the efforts they undertake.
Exactly what efforts must be undertaken is not, however, laid out in the UNGPs. In this respect, the suggestion by the Interpretive Guide of the OHCHR that human rights due diligence be exercised is useful as it would help companies to identify the adverse risks that the conflict poses and the measures companies need to address the risks. Human Rights Due Diligence (HRDD), as provided in Principle 17, is a process of assessing both actual and potential adverse human rights impacts. That includes not only the assessment of business risks but also the impacts on a particular group. While this form of due diligence should apply to deal with risks from anti-LGBTI laws and policies, the OHCHR Standards demand that companies exercise ‘more extensive due diligence’. The Standards follow Principle 17 to define HRDD but do not explain the meaning of ‘more extensive’. However, they refer to the ‘more extensive due diligence’ twice and each time in response to ‘higher levels of human rights violations’ of LGBTI people. For instance, the Standards ask companies to apply a ‘more extensive’ form of due diligence in countries with ‘discriminatory laws and practices’ against the group.
On that basis, anti-homosexuality laws fall within ‘discriminatory laws and practices’ and therefore demand that ‘more extensive due diligence’ be exercised by companies. In my view, ‘more extensive’ in this context entails extra caution or vigilance to ‘identify, prevent, mitigate and account for how they address the adverse human rights impacts’ of their activities on LGBTI people. I call this ‘queer human rights due diligence’ (QHRDD) for two reasons. First, the exercise of such diligence is aimed at protecting only non-normative sexual and gender groups like LGBTI people. Second, it requires corporations to exert greater efforts than usual or adopt measures that may not be typically taken in addressing LGBTI rights in other contexts. The threat to exit business indicates a greater effort by a company as it aims to bring a positive change in the socio-legal context to create a more inclusive environment for LGBTI persons. Therefore, the approach can be a part of exercising QHRDD.
The Problems of Exercising Queer Human Rights Due Diligence
While a decision by a business to exit would normally indicate a positive corporate intention, the approach could come with certain negative socio-political ramifications. First, tying the continuation of business to the legal status of LGBTI rights might reinforce the image of homosexuality as a Western import in countries like Uganda. Anti-LGBTI groups in Uganda tend to portray homosexuality as a Western value and ‘un-African’. This was illustrated in the aftermath of debates over a 2009 draft Anti-Homosexuality Bill, in response to which Uganda faced a threat of losing foreign aid unless the bill was changed. In response, James Nsaba Butoro, then Minister of State for Ethics and Integrity, replied ‘… I have told them they can keep their money and the homosexuality because it is not about charity at the expense of our moral destruction’. This statement suggests how some societies consider homosexuality to be nothing more than a Western moral imposition and want to resist it by enacting anti-homosexuality laws with severe penalties. The same reaction could apply to corporations that stand up for LGBTI rights. The business-exit approach, like the cut in bilateral aid, can be understood as just another way by which to pursue the mission of Western companies to civilize and modernize ‘backward’ nations such as Uganda.
Second, foreign companies taking a stance for LGBTI rights might put their own LGBTI employees at particular risk. Such employees might become a public target when the company publicly condemns anti-homosexuality legislation. This, in turn, potentially exposes LGBTI employees to serious harm and injury, including public harassment, bullying, and worse.
Third, since LGBTI rights are typically framed as Western values, an automatic reaction by foreign companies against anti-LGBTI laws may inadvertently spur local legislators to enact more such laws. In the past, some African countries have doubled down on criminalizing homosexuality as a tactic to proclaim that they are safeguarding national values from foreign influence. Hence, the response of Muhoozi Kainerugab, the son of Uganda’s President, to foreign companies’ decision to leave Uganda during the debates over the 2023 Anti-Homosexuality Act was that ‘We are willing to help them pack their bags and leave our blessed country forever!’.
Conclusion
It is, of course, difficult to generalize the question of when a company should opt to close down its business in a country in response to governments’ anti-LGBTI rights measures that preclude companies from continuing their own LGBTI policies. There is rarely going to be an easy answer. Still, the main thrust of my argument is that it should not be assumed that a high-profile declaration of intent to close down and exit a country in protest at anti-LGBTI policies by a government is the best one. In the short run, many commentators might applaud a brave and decisive rejection of discriminatory governmental policies by corporate actors. However, it is essential that full consideration also be given to the possible negative consequences of the exit approach. International human rights law clearly constrains the options open to companies in such contexts, but it does not demand that they always take the exit route if they wish to uphold LGBTI rights.
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