The Second UN Report on discrimination and violence based on SOGI:  Conceptual advances, political polarizations and the way forward

                                                                                                           By Arvind Narrain

Introduction

The release of the second Report by the Office of the High Commissioner for Human Rights on violence and discrimination (from now on referred to as the Report) based on sexual orientation and gender identity in 2015 is a significant milestone within the UN system.[1] It provides an update on the state of the rights of LGBTI people around the world, signposts the continuing grave challenges in the struggle for equality as well as marks how much has already been accomplished. It captures what Dickens would have called the best of times as well as the worst of times for LGBTI people around the world.

From sexual orientation to gender identity and intersex status

While the Report consciously uses the term LGBT and intersex persons, it should be noted that the use of this terminology is itself a result of a process of learning.  The first LGBTI specific reference in the UN system was only to discrimination on grounds of sexual orientation by the Human Rights Committee in the Toonen decision in 1994.[2]  As late as 2003, when Brazil introduced a draft resolution on ‘Human rights and sexual orientation’, gender identity found no mention.[3] It was only in 2007 that the Yogyakarta Principles, for the first time introduced the term ‘gender identity’ along with ‘sexual orientation’. Following this, in 2011 gender identity made its way into the Human Rights Council with the historic Resolution introduced by South Africa ‘requested the United Nations High Commissioner for Human Rights to commission a study, to be finalized by December 2011, documenting discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity’.[4]

This Report in 2015 presents us with a historic opportunity to broaden our understanding beyond sexual orientation and gender identity by raising the issue of unconscionable violations inflicted on children who are born intersex. As the Report notes, ‘many intersex children are subjected to medically unnecessary surgery and treatment in an attempt to force their physical appearance to align with binary sex stereotypes. Such procedures are typically irreversible and can cause severe, long term physical and psychological suffering.’[5]

The more inclusive nature of the language of the Report is really based upon years of struggle as activists fought to broaden the understanding of the marker of discrimination from sexual orientation to gender identity and finally to also include intersex status. However this Report is not the last word on the point and one has to think of how there can be a constant process of widening the understanding of how gender and sexuality become the grounds of violating basic human rights of all persons.[6]

The symbiotic relationship between LGBTI rights and human rights

A study of the footnotes in the Report reveals that for a large measure the report is really a synthesis of the documentation of numerous UN mechanisms which have referenced the questions of sexual orientation and gender identity.

A range of Special Rapporteurs including the ones on torture, extra judicial executions, right to adequate housing , extreme poverty, freedom of expression, and right to association as well as many others have all commented on the human rights of LGBTI persons. The treaty bodies right from the Human Rights Committee, the Committee on Economic Social and Cultural Rights to the Committee on the Rights of the Child, Committee Against Torture have all referenced the rights of persons discriminated on grounds of sexual orientation and gender identity. As such a reading of the Report’s footnotes lets you know in no uncertain terms, that the protection of rights of LGBTI persons is no mere flash in the pan, but rather the result of a slow, incremental build up by various parts of the UN system. LGBTI people are here to stay and that is what is unambiguously message of the sheer scale of the documentation on which the Report is based. [7]

The way UN mechanisms have engaged with LGBTI rights violations gives us various lens from which we can understand what is happening to LGBTI people at the ground level. The Special Rapporteur on extra judicial executions by referencing the killing of LBGTI persons by their family members citing notions of ‘family honour’ brings ‘honour killings’ within the understanding of extra judicial executions. Similarly the Committee Against Torture makes the case of why conversion therapy could amount to torture under the Convention on Torture.  The Committee on Rights of the Child calls for an end to the practice of medically unnecessary surgery on the bodies of intersex children thereby recognizing a violation of the right to bodily integrity of intersex children.

The engagement with LGBTI issues by the Special Procedures also has implications for how the special procedures understand human rights. Understanding how LGBTI people are deprived of a range of rights pushes our understanding of human rights itself. For example the recognition that honour killing of LGBTI people comes within the mandate of the Special Rapporteur on extra judicial executions, or the fact that intersex mutilation at birth is a form of torture is really a contribution to broadening and deepening the very meaning of human rights.

Non state actors, rights violation and state responsibility

In a substantive sense this report is important because it understands the ways in which LGBTI people are deprived of rights. The obvious symbols of rights denial include anti sodomy laws and morality laws which target cross dressing and sexual non conformity. While the law in many contexts does remain a significant tool of oppression, the specificity of issues faced by LGBTI persons is that it is not just the law or the state which is the oppressor, but equally society. The oppression by society can range from the often intrusive and demeaning inroads into zones of intimate behaviour of LGBTI persons to vigilante elements taking the law in their own hands and inflicting violence on LGBTI people to enforce societal norms. In this complex situation what are the state’s obligations?

As the Report notes, ‘States have well established obligations to respect, protect and fulfill the human rights of all persons within their jurisdiction, including LGBT persons and intersex persons. These obligations extend to refraining from interference in the enjoyment of rights, preventing abuses by third parties and proactively tackling barriers to the enjoyment of human rights, including in the present context, discriminatory attitudes and practices.’[8]

By pointing out the robust nature of the obligations of the state when it comes to rights violations against LGBTI people, the Report gestures to the fact that strategic thinking by states, civil society as well as the LGBTI movement should  encompass a clear understanding of the range of violations and correspondingly the range of state obligations.

The Report draws upon the principle of due diligence to make the point that it is the responsibility of the state to protect LGBTI persons from violence and discrimination and to ensure that there is investigation and punishment when such violations occur.  This is an innovation as till now, the due diligence principle was invoke mainly in the context of disappearances as well as gender based violence. By applying due diligence standards to rights violations of LGBTI persons, the Report gives a new conceptual vocabulary within which one can conceptualize the redressal of violence inflicted on LGBTI people.

The vast sea of violations faced by LGBTI people continue to be at the hands of a range of non-state actors including families, schools, medical establishments, vigilante elements, religious and cultural fundamentalists. Often these non-state actors are emboldened to take action against LGBTI persons because they know that the state will not protect LGBTI persons and even in the case of brutal crimes against LGBTI persons, the state will not prosecute the offenders. The state is often in silent complicity with the offender and will not support (and often actively impede) those who seek to change cultural attitudes and religious opinions about LGBTI people.

This Report makes clear that the state is responsible for violations committed by non-state actors as it has the responsibility to exercise due diligence to ensure the protection of those at particular risk of violence, i.e. LGBTI people. It also makes clear that the responsibility of states extends to ‘diminish(ing) conditions and attitudes that cause or perpetuate such discrimination.’[9]

The Report’s reception at the Human Rights Council  

As much as the Report is a detailed study by a credible UN body and has the potential for becoming an important tool for global as well as regional and national advocacy it also polarized state opinion into those who were totally supportive and those who were strongly opposed.

The states which were supportive included mainly the European States, Latin American and North American states. The opposition stemmed from the OIC and states belonging to the African Group. The states which were supportive organized a cross regional joint statement which was signed by more than 77 states. The organized response by the states opposing was a statement by Pakistan on behalf of the OIC which includes 57 states.

The broad tenor of the statements of support was that the support for the principle of universality meant that LGBT persons had full human rights. There was no exception in international human right law excluding LGBT persons from the protection of human rights. The joint statement delivered by Colombia on behalf of over 79 states expressed concern about continued evidence in every region of acts of violence and related human rights violations based on sexual orientation and gender identity. The grouping called upon states to take steps to end acts of violence, discrimination, criminal sanctions and related human rights violations committed against individuals because of their sexual orientation or gender identity and urged the Council to address these important human rights issues.

The tenor of the opposition was best reflected in the statement of Qatar which said that it had an issue with homosexuality and was of the opinion that it clashed with the precepts of the Shariat and Islam. Pakistan speaking on behalf of the Organization of Islamic Cooperation, noted that the family formed the basic unit of fabric of society and regretted that for the propagation of so called LGBT rights there was a distorted interpretation of the family and a challenge to a universally accepted notion of the family. Nigeria said that its population and two main religions rejected sex-same marriage and lesbian, gay, bisexual and transgender attitudes, adding that human rights should not be used to impose wrong values on people. Nigeria also noted that, gay rights or same-sex orientation would limit the population and impose unintended consequences on the family as an institution.

There was also a joint statement delivered by over 400 NGO’s from around the world in over 105 countries welcoming the resolution passed in September, and the recent report of the OHCHR, as additional positive steps forward and  reiterated that these violations are systemic, and require systemic responses from the Human Rights Council.

Taking things forward at the Council

As the response to the Report noted above makes clear, there are deep divisions within states on the issue of LGBTI rights. There is a core group of states who are supportive and a core group of states which are deeply opposed. There is a middle ground of states that might be voting no or abstaining that could, in future, move to voting yes on these issues. What could a civil society strategy be with respect to these three groups of states?

The supportive states, made their case for supporting LGBTI rights on the basis of the principle of universality. However all the supportive states have a long way to go before they embrace more fully, the principle of universality. Till such time as they embody a less instrumental and more ethical approach to the principle of universality they will always be vulnerable to the charge of double standards. The position of this grouping on a range of issues from the rights of migrants, protection of privacy and the rights of indigenous people leaves much to be desired. Thus any positive movement of this group on other human rights issues is of key importance to LGBTI issues. In this context one must appreciate the shift of the EU on resolutions on human rights violations in Palestine, where it has moved from abstention to a yes vote in the 29th Session of the Human Rights Council. This aligns the EU, with a large part of the world on a key human rights issue which was otherwise deeply divisive. However there is a long way to go on numerous human rights issues from the rights of migrants, protection of privacy to the rights of indigenous people.

In all the statements by states that are opposed to the rights of LGBTI persons the issue has always been put in a polarized fashion. LGBTI people are seen as outside the country’s national culture and outside the framework of religion. The issue of their rights is seen as a ‘western agenda’ with no relationship to the context of the developing world. However, one needs to understand the reasons for the deep and unremitting hostility to LGBTI people in these states.

It is often deeply authoritarian states with a huge crisis of legitimacy which seek to bolster their own failing credentials by targeting LGBTI people. LGBTI people have been targeted by repressive regimes be it Mugabe in Zimbabwe, Putin in Russia as well as the current administrations of Saudi Arabia, Egypt and Nigeria.

With respect to these states the political use to which the homophobia is being put needs to be constantly exposed and one needs to understand that though the state may phrase it as opposition to LGBTI rights the deeper issue may well be the need of the state to bolster its own legitimacy.

With respect to the middle ground of states that are not viciously opposed but neither are they vociferously supportive, the process of open and continued engagement is important. As far as these states are concerned the concerns around family, tradition, culture need to be continuously addressed in a culturally appropriate manner.

One strategy is to demonstrate that LGBTI people are not alien to that particular national context. This calls for enhanced civil society participation from these countries in the Human Rights Council, so the myth of being alien or outside culture and religion can be broken. It is important to demonstrate that religion and culture are not always hostile to LGBTI persons and often there is a history of LGBTI people existence which has been ignored by the mainstream. Clearly there is a strong need for LGBTI people to show that while they are LGBTI they do not renounce their cultural and religious identity. Groups such as Muslims for Progressive Values are important in slowly taking apart the claim that it is the nation state that solely embodies a nation’s cultural and religious identity.

Possible use of the Report at the national level

While the Report has been a lightning rod for expression of supportive and opposing viewpoints at the international level, what role can it play at the national level? Can a UN Report be of any use at the national level?

Use in litigation efforts

The value of such a report is that it is a document which can be used in domestic litigation. While the Report has no binding value it can be used as a source of persuasive value to demonstrate before national courts the current global state of LGBTI rights as well as the direction in which the world community is tilting. The section of the Report on recommendations can in particular be used to make the case for decriminalization of LGBTI lives, repealing of anti-propaganda laws and ensuring legal recognition for transgender people in the gender of their choice. Of course the receptiveness to international sources is likely to vary from jurisdiction to jurisdiction.[10]

Use in law and policy reform

The Report not only documents challenges but clearly signposts advances in the field of rights of LGBTI persons. The Report notes that ‘since 2011, 14 states have adopted or strengthened anti-discrimination and hate crime laws, extending protection on grounds of sexual orientation and /or gender identity and in two cases also introducing legal protections for intersex persons. Three states have abolished criminal sanctions for homosexuality; 12 have introduced marriage or civil unions for same sex couples nationally; and 10 have introduced reforms, that, to varying degrees, make it easier for transgender persons to obtain legal recognition of their gender identity’

The fact that a document by the UN posits a norm of equality of LGBTI persons with all other persons may be useful in certain contexts to push for policy change. It’s possible that sub-regional authorities may be even more receptive to an international report than national authorities. It may also be possible that smaller countries may be very receptive to aligning their policies with what appears to be an international good practice.

Use by civil society in building a vision of tackling LGBTI rights violation

This Report is also important for the issues it raises. The depth and clarity with which issues are presented makes it clear that the Report is not merely an emanation from the UN but builds upon years of patient ground level work by activists around the world which has been fed back through the UN system and finds a place in the Report. The nuanced understanding that oppression on grounds of sexuality and gender has many facets emerges from a strong grassroots engagement. The Report also understands that violations are committed by both state and civil society and that the state cannot escape its responsibility to protect even if murders and violations are committed by vigilante elements. Since the Report presents a complex and nuanced picture of both violation and how one redresses it, it could ideally serve as training material for activists working on LGBTI rights.

Again it’s not one dedicated mechanism which is reporting on LGBTI people’s rights being violated but rather the fact that one cannot take seriously human rights, if one ignores the rights of LGBTI persons.

Thus we see this Report as a summation of years of work and hidden in the footnotes is a fascinating history of continuous engagement with the various UN mechanisms by a range of activists.

[1] A/HRC/29/23

[2] Nicholas Toonen v. Australia, Communication No. 488/1992:

[3] E/CN.4/2003/L.92

[4] A/HRC/RES/17/19

[5] A/HRC/29/23

[6] An example of broadening the understanding of discrimination would be to include the term gender expression as another ground  on the basis of which discrimination is perpetrated. This demand has come from many grasroot level groups in many national contexts.

[7] The scale of the UN engagement with SOGI issues is best illustrated by perusing a 246 page publication by the International Commission of Jurists which shows that  five treaty bodies and 26 Special Rapporteurs, Working Groups and  Independent Experts have engaged with SOGI concerns as part of their mandate. International Commission of Jurists, Sexual Orientation and Gender Identity in International Human Rights Law : The ICJ UN Compilation, www.icj.org/sogi-un-database/

[8] A/HRC/29/23

[9] A/HRC/29/23

[10] For example the OHCHR Report of 2011 was cited before the Indian Supreme Court during the arguments in Suresh Kumar Koushal v. Naz Foundation.  The bench hearing the matter was however  not receptive to arguments based upon international law and was reluctant to engage with international sources.