The logic underlying a resolution on sexual orientation and gender identity
The core group (Mexico, Uruguay, Chile, Argentina, Brazil and Colombia) announced at the organizational meeting of the 32nd Session of the Human Rights Council, the intention to take forward the conclusions of the 2015 High Commissioners Report on sexual orientation and gender identity. The High Commissioners Report of 2015 on SOGI had indicated that when it came to the question of sexual orientation and gender identity there was a protection gap which required a dedicated mechanism at the Human Rights Council.
Following the announcement at the organizational meeting, the Core group, which was previously the LAC 6, expanded to include Costa Rica, making it the LAC 7. The LAC 7 circulated a concept note that made the case for why an Independent Expert was required. The concept note referenced the previous report of the Office of the High Commissioner on SOGI which documented brutal violations on grounds of sexual orientation and gender identity around the world and highlighted the inadequacy of current arrangements to protect individuals from violations on these grounds.
The Concept note then went on to argue that:
We are convinced that the scale, seriousness and widespread nature of violence and discrimination against individuals based on their actual or perceived sexual orientation or gender identity requires a specific response from the Human Rights Council in the form of a dedicated mechanism.
The concept note also made clear that the inspiration for the proposed resolution remained the Universal Declaration of Human Rights and the Vienna Declaration and Programme of Action.
We recall that the Vienna Declaration and Programme of Action indicates that ‘while the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States regardless of their political, economic and cultural systems to promote and protect all human rights and fundamental freedoms.
The balance articulated in the Vienna Declaration of taking into account national and regional particularities while remaining committed to universal human rights was reiterated in the concept note. The concept note then went on to make the case that the universal basis of the resolution lay in the fact that:
There is no country or region that has called for or has tolerance to violence or discrimination. There is no country or region that is opposed to dialogue. In fact, one hundred States from all regions of the world have made voluntary commitments to address violence and discrimination based on sexual orientation and gender identity in the context of the Universal Periodic Review. More than two thirds of all States that received such recommendations accepted at least one (and often several) such recommendations, indicating that a majority of States welcome constructive dialogue and have made express commitment to address these human rights concerns.
The LAC 7 by circulating the concept note, sought to frame the issue of violence and discrimination on grounds of sexual orientation and gender identity within the logic of universal human rights and also within the framework of the Council’s function to promote constructive dialogue. As such, the LAC 7 sought to portray the resolution as drawing from international law and being based on an approach which eschewed conflict in favour of promoting dialogue.
The draft resolution
The draft resolution, circulated by the LAC 7 fleshed out the themes outlined in the concept note. The preambular paragraphs inter alia, reaffirmed the Universal Declaration of Human Rights and recalled the Vienna Declaration and the two Human Rights Council resolutions on sexual orientation and gender identity in 2011 and 2014. The operative paragraphs inter alia, deplored violence and discrimination in all regions of the world, committed against individuals because of their sexual orientation and gender identity and in operative paragraph 2,‘decides to appoint for a period of three years, an Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity’.
The mandate of the Independent Expert as per operative para 2 is as follows:
a) To assess the implementation of existing international human rights laws and standards with regard to ways to overcome violence and discrimination against persons on the basis of their sexual orientation or gender identity while identifying both best practices and gaps;
b) To raise awareness of violence and discrimination against persons on the basis of their sexual orientation or gender identity and to address the root causes of such violations;
c) To engage in dialogue and consult with States and other relevant stakeholders, including United Nations agencies, programmes and funds, regional human rights mechanisms, national human rights institutions, civil society organizations and academic institutions;
d) To work in cooperation with States in order to foster the implementation of measures that contribute to the protection of all persons against violence and discrimination based on sexual orientation and gender identity;
e) To address the multiple, intersecting and aggravated forms of violence and discrimination faced by persons on the basis of their sexual orientation and gender identity;
f) To conduct, facilitate and support the provision of advisory services, technical assistance, capacity-building and international cooperation in support of national efforts to combat violence and discrimination against persons on the basis of their sexual orientation or gender identity;
The mandate, while focused on sexual orientation and gender identity, understands that it’s not possible to abstract these concepts from older histories of domination. Hence, the mandate is expressly envisaged as having a focus on intersectionality as noted by the reference to ‘multiple, intersecting and aggravated forms of violence and discrimination and to addressing ‘root causes of such violations.’
Informals on the draft resolution
It was this text which was the subject of two informals conducted by the core sponsors of the resolution. The first informal was attended by 51 states. The key highlight of the informal was the fact that many vocal opponents who were members of the Organisation of Islamic Conference (OIC) and the African group, chose not to attend. Thus, Nigeria, Egypt, Saudi Arabia and Pakistan were prominent by their absence. Among the members who were present, there were two kinds of responses from opposite ends of the spectrum.
First was a response from some supportive states wondering why the sponsors chose an Independent Expert and not a Special Rapporteur. The European Union, for example, noted that it preferred a Special Rapporteur due to the grave situation and that a Special Rapporteur would result in better and more systematic monitoring of the situation worldwide and would send a strong signal to end violence and discrimination. This proposal was also seconded by Canada and New Zealand.
Uruguay, in response, noted that the choice of an Independent Expert over Special Rapporteur was based on the need to have a special procedure that is perceived in a more constructive manner. A Special Rapporteur is perceived as more of a mechanism of monitoring, while the Independent Expert can enter into a dialogue in a more constructive way. Uruguay said that their approach since 2014 has been to take into account everybody’s views and that they had spent a long time talking to many delegations, and the choice of the special procedure was based upon an understanding of which special procedure was going to be perceived in the best possible way.
Apart from supportive statements from states in Europe, North America and Latin America, there was also a supportive statement by the small Pacific Island state of Samoa who said that the Samoan Constitution recognizes all people, and that Samoa would support the establishment of an Independent Expert. The attendance of some Pacific states and the strong statement by Samoa, in particular, was possibly linked to the presence of a strong civil society representative from the region who did significant outreach to Pacific delegations.
The strongest opposing statement was made by Russia, who noted that it was deeply disappointed that the resolution proposed to put forward such a complicated, controversial and unacceptable topic. Russia noted that, while it agreed that every country should do its best to eliminate discrimination for all people, they were against creating a new category with a special regime of protection. They felt the majority of the world’s population would not support such ideas, and that even though the sponsors spoke about dialogue, it was clear to Russia that two groups were absent, namely the Africa group and the OIC group. Russia stated that there is no agreement in law or science on what is meant by sexual orientation and gender identity. Russia also said that it was against this idea in principle and hence they were not ready to engage in the drafting process. Russia then requested the sponsors to reconsider and withdraw the resolution.
China also took the floor to observe that the sponsors had chosen a controversial topic. As there were already a lot of mandates, China choose to reserve its position on the establishment of the Independent Expert.
Albania was in the unique position of both being a member of the OIC as well as a part of the Eastern European grouping. Albania commended the leadership of the sponsors and highlighted that it was disappointed that OIC partners were not there. They also noted that as an OIC member state, it had encouraged others in the OIC to engage in an open dialogue.
Although they were present in the informal there was intriguing silence from both India and South Africa.
The first informal was followed by the second informal to discuss the draft resolution. This informal was attended by 35 countries. There were no substantive discussions and the session wound up in half an hour despite being scheduled to go on for two hours. However, the fact that the informal was short only indicated that the hard work of getting members of the Council to agree to the text had to be done outside the space of the informal through bilateral negotiations.
Civil Society Advocacy Efforts
The time period from the announcement of the resolution to the final vote on June 30 was the crucial time when states who were members of the Human Rights Council were the subjects of intense lobbying and advocacy efforts from states supportive of the resolution, as well as civil society at both national and global levels.
It was this intensive effort that resulted in the resolution passing. Indicative of the forms of pressure to which states were subjected to, was a letter by 12 organisations from El Salvador to their government asking them to vote yes. Similarly, there were letters from civil society groups in Vietnam, Mongolia, Philippines, India and South Africa all urging their governments to vote in favour of the resolution. In some countries, like India, civil society also engaged in a media campaign in both print and television, in which the government was urged to vote in favour of the resolution.
On a more global level one of the remarkable activist efforts was a joint letter, signed by 628 NGOs from 151 countries, asking their governments to ‘move beyond one-off initiatives and piecemeal measures’ and urgently address the ‘protection gap’. The joint letter called upon ‘the Human Rights Council to address this gap through the creation of an Independent Expert to address discrimination and violence against persons based on sexual orientation and gender identity.’
The geographical diversity and breadth of the signatories is indicated below:
List of Signatories: Regional Overview
The telling statistic is that the majority of signatories (sixty-eight percent), are from the global south, coming from the Asia Pacific, LAC and African regions. This indicates the deeply felt need among LGBT groups in the global south for more systematic attention to violations against LGBT persons at the UN level.
Joint statements by civil society
There were four important civil society joint statements delivered at the Human Rights Council making the case as to why an independent Expert on SOGI was required from diverse perspectives.
Firstly, there was the joint statement delivered on behalf of 628 civil society organisations from 151 countries around the world.
We, the 628 NGOs listed at the end, call for a SOGI Independent Expert to monitor and document human rights violations, prepare regular reports on issues such as root causes, trans rights, and protection gaps, engage with States from around the world to build awareness of SOGI issues, identify good practices and encourage reforms, help ensure the issues are better integrated throughout the UN system, work to support civil society and NGOs working on these issues, enhance regional and cross-regional collaborations and strengthen attention to the issues at the national, regional and international levels, highlight multiple and intersecting forms of discrimination, and further articulate and increases awareness of these connections, particularly by recognizing that SOGI issues are connected with a broad range of issues including gender equality, class, bodily autonomy, sexual and reproductive health and rights.
The establishment of a dedicated protection mechanism to address SOGI-related human rights violations is a necessary step towards urgently addressing the serious abuses on these grounds in every region of the world. We urge the Human Rights Council to act urgently and establish such a mandate. As UN Secretary General Ban Ki-moon affirmed: “The time has come”.
There was a joint statement delivered by RSFLon the question of gender identity.
Each person’s self-defined gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom. Too many transgender persons are forced to live with identity documents that do not correspond to their self-defined gender. Opening a bank account, applying for a job, boarding a plane, or lodging a harassment complaint can become a repeated source of harassment, unfounded suspicion, and even violence.
However, many States in all regions require the individual to give up one or more human rights to gain another for the protection of private life. Requirements may include diagnosis of a mental disorder, sex reassignment surgery, forced sterilization or hormonal therapy, and being single or divorced. These violate a person’s dignity, right to form a family and right to be free from degrading and inhumane treatment.
The creation of an independent expert mandate on sexual orientation and gender identity would raise awareness and bring greater understanding of these issues. It would also be a platform to share best practices and provide technical assistance to States in ensuring human rights based laws, policies and procedures on the legal gender recognition of all persons.
There was a statement from NGOs in the LAC region commending the leadership of the LAC 7 delivered by COC Netherlands and others.
Argentina, Brazil, Colombia, Costa Rica, Chile, Mexico and Uruguay have presented before this Council a historic resolution recognizing the discrimination and violence against persons on grounds of sexual orientation and gender identity and support the creation of an Independent Expert. These seven states have the support of the voices of 140 NGO’s from 25 countries in the Latin American and Caribbean region. We would like to state with joy that we are not alone and civil society in more than 130 countries support this call.
Finally, there was a statement from Mantiqitna Network, PAN Africa ILGA and ARC International.
In Africa some 36 countries maintain laws that criminalise homosexuality. We call for the immediate decriminalization of homosexuality, including a review of all legislation which could result in the discrimination, prosecution and punishment of people solely for their sexual orientation or gender identity. Where these laws have been scrapped and repealed, we urge leaders to ensure adequate follow up legislation such as anti-discriminatory laws to ensure full human rights of all its citizens- without exception.
We are proudly African and we are proudly LGBTI. We want our governments to acknowledge the reality that LGBT people exist and suffer brutal violations of human rights. It would be in keeping with the principles of the Universal Declaration of Human Rights as well as the African Charter on Human and People’s Rights for African countries to vote for the resolution at the Human Rights Council establishing an Independent expert on Sexual Orientation and Gender identity.
The four statements sought to make four separate but related points. Firstly, the fact that discrimination on grounds of sexual orientation and gender identity is an issue of global significance and hence needs to be addressed. Secondly, that Latin American NGOs stand with the LAC 7’s advocacy of the resolution. Thirdly, from the African civil society perspective, the passing of the resolution would be in keeping with African Charter on Peoples and Human Rights. The final point was the fact that the passing of the resolution would enormously benefit advocacy around gender identity issues. As such, a compelling case for the passing of the resolution emerged from a global civil society perspective.
Making the case for an Independent Expert at the Human Rights Council
While joint statements are one way of making a case before the Council, the time limit precludes more in-depth engagement. Side events provide this opportunity for a more in-depth engagement. Mid-way through the second week of the Council, a side event on ‘Ending violence against LGBT people? Addressing the protection gap in the UN system’, made a more detailed case for why the Independent Expert was so vital for taking forward the struggle of LGBT communities globally.
The event was chaired by Arvind Narrain, ARC International, and the speakers in the event were:
- Joleen Brown Mataele, Tonga Leiti’s Association
- Fadi Saleh, Syrian LGBT activist
- Yahia Zaidi, Mantiqitna Network
- Sheherezade Kara, Human Rights Consultant
- John Fisher, Human Rights Watch
Arvind Narrain began by paying a tribute to the victims of the brutal attack on Orlando. He stated that the outrage provoked by the mass shooting of 49 people at a gay night club in Orlando resonated with LGBT communities around the world from Chandigarh, Nellore, Delhi in India to Kampala, Nairobi, Rabat and Tunis in Africa from Mexico city and Bogota in Latin America to Suva, Tonga, Seoul and Bangkok in Asia. While the global media covered the outpouring of support and solidarity from cities around the global north, it did not highlight the important fact that the horror of the Orlando shooting resonated very strongly with LGBT communities in the global south. At this point a slide photo presentation highlighting the moving tributes from LGBT communities from places as diverse as Suva, Kampala, Nellore and Mexico City was played. According to the moderator, the grief and pain of Orlando resonated with LGBT communities in the global south because the sting of discrimination and the pain of violence was something that was a part of the everyday experience of being LGBT. He said that he wanted to explore a bit more of this resonance by asking the panelists who worked in the difficult contexts of Syria, North Africa and Tonga, as well as globally, to share their thoughts on two points:
1) The forms of violence faced by LGBT persons and whether there is specificity to the violence faced by LGBT persons.
2) How can the proposal of the LAC 7 to establish an Independent Expert at the Human Rights Council address the endemic violence which is a reality in LGBT lives around the world?
With respect to the first question the panelists responded as follows:
Joleen Brown Mataele, from Tonga Leiti’s Association observed that LGBT people encounter many difficulties coming out in public, speaking out and forming associations and communities. From her personal experience as a transgender woman, Joleen Mataele explained how she was abused by both parents and classmates. In these conditions of loneliness and hardship, it takes a lot of courage to be oneself, as society is hardly accepting.
Fadi Saleh, a Syrian LGBT activist, stated that unlike what media coverage portrays, violence against LGBT people happens not just under ISIS but also in areas controlled by the regime in Syria. There are very specific forms of violence that remain undocumented and un-talked about. They don’t seem to capture the same media attention for there are not on the scale of ISIS’ atrocities nor as spectacular. LGBT people are punished without legal authority, arrested and tortured. Transwomen tend to be the group most targeted, especially by the (Free) Syrian Army. Arbitrary arrests happen frequently: recently, six people were arbitrary arrested based on their looks, and amongst them a trans-woman. Without any connections or money to help them out, some of these people had to spend many days in jail, though they didn’t commit any infractions.
Yahia Zaidi, of Mantiqitna Network, stated that North Africa has also a high rate of violence against LGBT people: “proved” homosexuality, often through the practice of humiliating anal testings, can lead to jail. There are many types of violence: violence in the family sphere, violence condoned by religious figures and violence by the state. Nowadays, the tendency seems to have shifted towards violence from non-states agents particularly focused on gay men and trans-women. For the last two years, LGBT people have endured a new wave of increased violence, by groups of harassers, who also tend to film and publicly spread their violent acts on platforms such as internet.
Sheherezade Kara, Human Rights Consultant, expressed her wish to bring more attention to LBT women. Women suffer from different types of violence: one of the forms it can take is lesbians being submitted to corrective rapes, a subject which has been addressed in the session of the Council. The working group on discrimination against women also showed that LBT women face double discrimination for being, for instance, both women and part of LGBT communities.
John Fisher from Human Rights Watch stressed the importance of doing an homage to LGBT people killed in Orlando, as the event is representative of the sufferings endured by LGBT people in the world.
On the importance of having an UN independent expert to ensure sustained attention to human rights violations based on sexual orientation and gender identity the panelists responded as follows:
The panelists highlighted the importance and the need of having an UN independent expert on sexual orientation and gender identity. The establishment of the Independent Expert would be an important contribution as the mandate would be able to engage with States, the civil society, media and raise awareness while enabling better conceptual understanding of SOGI issues. Any systematic violation requires a systematic solution from the UN, and a mechanism would do that.
The activists also strongly contended that from the perspective of the global south, a dedicated mechanism on sexual orientation and gender identity would focus attention on the problems faced by LGBT persons and be of concrete relevance in national level struggles.
The demand for an independent mechanism was really from civil society groups in the global south. An analysis of the joint NGO letter by 628 organisations to the Human Rights Council reveals that the vast majority of organisations which had demanded the creation of such a mechanism, were from Africa, the LAC region and Asia Pacific. Hence the heartfelt need for an UN mechanism really came from these regions.
The contributions of the panelists was summed up by the moderator who stated that the panelists highlighted the dire human rights situation in many regions of the world which included violence by the state, vigilante elements, families and medical establishments. As such the scale and nature of the violations made a compelling case for urgent action. Being in Geneva, one of the key contributions towards addressing this state of rightlessness would be to establish an Independent Expert who could help take the struggle of LGBT people for a life free of discrimination and violence forward.
The panelists also thanked the LAC 7 for the important initiative to place issues of sexual orientation and gender identity on the human rights agenda of the UN.
A number of states including France, The European Union, the United Kingdom, Uruguay and Colombia spoke after the presentations. In response to a question as to whether the issue of LGBT rights was a western agenda, the delegates from Colombia and Uruguay drew attention to the fact that these issues were issues they confronted within their own national contexts and hence it was a personal matter for them. As the delegate from Colombia put it, he knew people who had been killed for their sexual orientation. Both Uruguay and Colombia concluded by stating that they felt energized after this meeting and would now go and fight even harder to ensure that the resolution passed.
GENERAL DEBATE ON HUMAN RIGHTS SITUATIONS THAT REQUIRE THE COUNCIL’S ATTENTION
GENERAL DEBATE ON THE IMPLEMENTATION OF THE VIENNA DECLARATION AND PROGRAMME OF ACTION
GENERAL DEBATE ON THE PROMOTION AND PROTECTION OF ALL HUMAN RIGHTS
GENERAL DEBATE ON THE REPORT OF THE HIGH COMMISSIONER OF HUMAN RIGHTS
INTERACTIVE DIALOGUE ON EXTREME POVERTY
INTERACTIVE DIALOGUE ON FREEDOM OF PEACEFUL ASSEMBLY AND OF ASSOCIATION
INTERATIVE DIAGLOGUE ON THE RIGHT TO HEALTH
UN COMMISSION OF INQUIRY ON SYRIA: ISIS IS COMMITTING GENOCIDE AGAINST YAZIDIS
UNIVERSAL PERIODIC REVIEW
Action on Draft Amendments L.71 to L.81
Action on Draft Resolution L.2/Rev.1
Action on Non-Action Motion
Action on Operative Paragraph 2
Action on the Title of Draft Resolution L.2/Rev.1
Introduction of the Resolution
Separate Action on Operative Paragraphs 3 To 7
Action on the Amendments L.82, L.83, L.84 L.89
Action on Draft Resolution L.35
Action on Amendments L.52, L.53, L.54, L.55, L.56, L.59, L.60, L.61, L.62, L.63, L.64, L.65
Action on the Resolution on Civil Society Space
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Albania, Argentina, Armenia, Australia, Belgium, Brazil, Canada, Czech Republic, Chile, China, Colombia, Costa Rica, Cuba, Denmark, El Salvador, Estonia, European Union, Finland, Guatemala, Holy See, Honduras, Iceland, India, Iran, Ireland, Italy, Lithuania, Liechtenstein, Mexico, Mongolia, Morocco Netherlands, New Zealand, Norway, Panama, Poland, Portugal, Russia, Samoa, Singapore, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Thailand, Togo, Tuvalu, United Kingdom and USA.
Armenia, Australia, Austria, Belgium, Botswana, Canada, China, Cuba, Czech Republic, Denmark, EU, France, Germany, Guatemala, Honduras, Ireland, Japan, Latvia, Morocco, Namibia, Panama, Paraguay, Poland, Singapore, Sweden, Thailand, UK, US, Mexico, Uruguay, Colombia, Chile, Brazil, Argentina and Costa Rica.
 The other cosponsors were Human Rights Law Centre, ILGA, International Humanist and Ethical Union, International Federation for Human Rights Leagues, LGBT Denmark and Lesbian and Gay Federation in Germany, LSVD
 The side event was organized jointly by Arc International, COC Netherlands, Mantiqitna Network, Tonga Leitis Association. For a perspective on the side event see Sharan Bhavnani, Progression of a Progressive International Stance: ARCs Side Event at the 32nd Session of the Human Rights Council.
 This slide presentation can be accessed at http://arc-international.net/global-advocacy/human-rights-council/32nd-session-of-the-human-rights-council/