Latest posts by Arvind Narrain (see all)
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The Yogyakarta Principles on Sexual Orientation and Gender Identity: Marking ten years of SOGI jurisprudence
Come 30 June 2016 the United Nations Human Rights Council will, in a historic vote, seek to establish the first UN Independent Expert on sexual orientation and gender identity (SOGI). The role of the expert will be to assess the implementation of international laws to overcome violence and discrimination based on sexual orientation and gender identity. The expert is also tasked with raising awareness and addressing root causes of such violations. The annual reports of the expert will bring to light the often invisible, yet brutal infringements of rights suffered by lesbian, gay, bisexual, transgender, intersex (LGBTI) people in all countries around the world, including India.
It was only in 1994 that the UN first acknowledged that sexual orientation could be a ground of non-discrimination. Since that first breaking of the silence, the UN has steadily come to recognize that its founding principle—all persons are equal in dignity and rights—would be a misnomer, if discrimination based on a person’s sexual orientation and gender identity was not acknowledged and tackled.
The historic vote that will take place on Thursday is the culmination of much effort by LGBTI activists around the world, who have managed to mobilize many UN member states to speak out against such human rights violations. In 2003, Brazil’s draft resolution on human rights and sexual orientation at the then Commission of Human Rights faced such opposition from the Organisation of Islamic Conference (OIC) that Brazil decided to withdraw it. It was only in 2011 that the Human Rights Council passed the first resolution (sponsored by South Africa) on sexual orientation and gender identity. This was followed by a second resolution in 2014, sponsored by South American nations Columbia, Brazil, Chile and Uruguay. Both resolutions tasked the Office of the High Commissioner For Human Rights (OHCHR) to produce reports that documented discriminatory laws and practices against individuals based on their sexual orientation and gender identity, as well as best practices when it came to dealing with these violations.
These seminal reports shed light on the lived reality of LGBTI people and form a valuable archive; but documentation by a credible and independent body like the UN also demonstrates how rights guaranteed by international law, such as the right to life, liberty and security, right to equal opportunity, and right to recognition as a person before the law, are violated with impunity when it comes to LGBTI people in every region of the world. LGBTI activists in different national contexts have used these reports in subsequent litigation efforts, as well.
The 2011 report, for instance, brought to the world’s attention the excessive nature of violence suffered by LGBT persons, which included “beatings, torture, mutilation, castration and sexual assault.” The report also nodded to the Naz judgment by the Delhi High Court, which had read sexual orientation into the non-discrimination clause of the Indian Constitution, citing it as an example of good practice.
The second report, which came out in 2015 updated its documentation of instances of violence and discrimination both, by the state and vigilante forces, in all regions of the world. To highlight just one case: In Chile, a gay man was beaten and killed by neo-Nazis, who burned him with cigarettes and carved swastikas into his body. What is unfortunate is that these forms of violation are not the exception, but rather the everyday reality of many LGBT people. The report concluded that despite such continued violence, there was “no dedicated human rights mechanism at the international level that has a systematic and comprehensive approach to the human rights situation of LGBT and intersex persons.”
The present resolution of 2016 has been tabled by seven Latin American countries including Brazil, Argentina, Uruguay and Mexico and seeks to create this mechanism—an Independent Expert, who would report annually to both, the Human Rights Council and the UN General Assembly.
The question that faces us today is how would India, who is a member of the Human Rights Council, vote on this historic resolution? We have a few signposts of Indian responses in the past on the issue of sexual orientation and gender identity.
In 2010 an amendment to a resolution at the General Assembly on extra judicial execution of persons sought to drop sexual orientation as one of the grounds. India voted against this amendment and supported the idea that extra judicial killings of persons on grounds of their sexual orientation, is a crime. Even in later resolutions in 2012 and 2014 on the same matter, India voted for the inclusion of sexual orientation. But in 2014, India also abstained from voting on the resolution to create a report on violence faced by people on grounds of sexual orientation and gender identity—the one that I spoke of above.
In 2015, India joined Russia, Pakistan, Saudi Arabia, China and Iran to vote against the extension of same-sex partner benefits to employees of the United Nations. In this instance, a majority voted in favour of extension of benefits that heterosexual couples receive, to same sex couples irrespective of which country they are stationed in.
Ironically, just as the LGBT voice in India has become louder, the arc of India’s voting on sexual orientation and gender identity at the UN seems to have regressed. If India follows this trend and votes against the establishment of an Independent Expert or for procedural manoeuvres that prevent a discussion on this subject, it would point to the current administration’s hostility to LGBT persons. However if India votes in favour of an Independent Expert, it would be an acknowledgment that LGBT persons are indeed full citizens of the country in the eyes of the Indian government.
We will know on 30 June 2016.