“You, at the United Nations, have a particular role to play. You have a responsibility. Lesbians, gays, bisexuals, transgender people are equal members of the human family whose rights you have sworn to uphold. Those who face hatred and violence look to you for protection. Do not fail them.”
– Nobel Peace Prize winner, Archbishop Emeritus Desmond Tutu
Q. Why a panel on sexual orientation and gender identity?
Around the world, people face human rights violations because of their sexual orientation or gender identity, including killings, torture, rape, criminal sanctions, and other forms of violence and discrimination. These violations have been consistently brought to the Human Rights Council’s attention by more than a dozen different Special Rapporteurs.
The UN Human Rights Council adopted resolution 17/19 in June 2011 expressing “grave concern” at acts of violence and discrimination based on sexual orientation and gender identity, requested the High Commissioner for Human Rights to prepare a report on “how international human rights law can be used to end violence and related human rights violations based on sexual orientation and gender identity”, and called for a panel discussion at the 19th session of the Human Rights Council to discuss the findings of the report in a “constructive, informed and transparent dialogue”.
The resolution was presented by South Africa and supported by countries from all regions of the world. The OHCHR report was issued in all 6 UN languages in December 2011, and is available as A/HRC/19/41 at: www2.ohchr.org/english/bodies/hrcouncil/19session/reports.htm
The panel to discuss its findings “and appropriate follow-up” will take place on Wednesday, 7 March 2012.
Q. Why is it important?
States have a duty under international law to protect the human rights of all persons, including lesbian, gay, bisexual and transgender persons.
The OHCHR report highlights evidence of violations including:
- “a transgender person found dead in a ditch, her body beaten and burned, showing evidence of rape and blows to her face from stoning so severe as to render the remains virtually unrecognizable” (OHCHR report, para 24);
- “the targeted murder of lesbians, including a case in which two lesbians were beaten, stoned and one stabbed to death” (OHCHR report, para 24);
- “gang rape, family violence and murder experienced by lesbian, bisexual and transgender women”, in some cases based on the belief that “lesbian women would change their sexual orientation if they are raped by a man” (OHCHR report, para. 29);
- “a transgender woman placed in a male-only prison where she was raped more than 100 times, sometimes with the complicity of prison officials” (OHCHR report, para. 36)
- LGBT youth subject to “violence and harassment, including bullying, in school, from classmates and teachers”, in some cases leading to “attempted or actual suicide” (OHCHR report, paras 58 and 60).
UNAIDS, UNDP and the UN Special Rapporteur on Health have also emphasized the importance of addressing human rights violations based on sexual orientation and gender identity as part of HIV education and prevention efforts.
Although issues of sexual orientation and gender identity are sensitive issues for many States, surely all can agree that no human being should face violence, torture, stigmatisation and abuse, on any ground.
Q. Does the existing international human rights framework address human rights violations on these grounds?
The resolution does not seek to create new rights but simply affirms the application of existing human rights standards to those who are lesbian, gay, bisexual or transgender.
The OHCHR report underlines, at para. 5:
“All people, including lesbian, gay, bisexual and transgender persons, are entitled to enjoy the protections provided for by international human rights law, including in respect of rights to life, security of person and privacy, the rights to be free from torture, arbitrary arrest and detention, the right to be free from discrimination, and the right to freedom of expression, association and peaceful assembly.”
As UN Secretary-General Ban Ki-moon reiterated on the Anniversary of the adoption of the UDHR:
“It is not called the ‘Partial’ Declaration of Human Rights. It is not the ‘Sometimes’ Declaration of Human Rights. It is the Universal Declaration, guaranteeing all human beings their basic human rights, without exception.”
In addition, there is almost 20 years of treaty body jurisprudence recognizing that international human rights law prohibits discrimination on grounds including sexual orientation and gender identity. Drafters of both international and regional human rights instruments were careful to ensure that the lists of grounds for non-discrimination were not exhaustive, by employing terms such as “of any kind”, “such as” and “or other status”. Treaty bodies have held that “other status” includes grounds such as sexual orientation and gender identity, in addition to other non-enumerated grounds such as disability, age and health status. This position is consistent with other regional and national jurisprudence, including decisions of the European Court of Human Rights, the African Commission on Human and Peoples Rights, and courts in South Africa, Hong Kong, Fiji, India, Nepal and the USA.
Q. Why focus on sexual orientation and gender identity? Will this detract from other priorities?
Addressing human rights violations based on sexual orientation and gender identity takes nothing away from our shared commitment to combat discrimination based on race, religion, gender, socioeconomic status and other grounds. There can be no hierarchies of rights, and it is our common duty to ensure that no person faces violations of their human rights on any grounds, including because of their sexual orientation or gender identity.
Q. Aren’t these issues culturally sensitive?
It is recognised that these are sensitive issues in many societies. The report does not ask States to take a moral stance on the issues: rather, it merely urges States to protect all persons from human rights violations, including on the basis of sexual orientation or gender identity.
The Vienna Declaration and Programme of Action recognises 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” (art 5).
In calling for an end to laws which criminalise people on the basis of sexual orientation or gender identity on Human Rights Day, UN Secretary General Ban Ki-moon noted:
“Yes, we recognize that social attitudes run deep. Yes, social change often comes only with time. Yet, let there be no confusion: where there is tension between cultural attitudes and universal human rights, universal human rights must carry the day. Personal disapproval, even society’s disapproval, is no excuse to arrest, detain, imprison, harass or torture anyone – ever.”
As recently pointed out by a group of UN experts, including the Independent Expert on Cultural Rights:
“Cultural diversity … can only thrive in an environment that safeguards fundamental freedoms and human rights.”
The Council has a responsibility to address all human rights violations, and we cannot shy away from discussions which challenge us. It is in the spirit of constructive dialogue to foster open respectful discussion on all human rights issues, including those which are sensitive.
Q. Is there a definition of these terms?
As the OHCHR report notes (fn 2) the terms lesbian, gay, bisexual and transgender “refer to same-sex behaviour, identities or relationships, and non-binary gender identities.” The report also underlines (at fn 7) that treaty bodies, UN agencies, courts and others have affirmed the following definitions of “sexual orientation” and “gender identity”:
- ‘sexual orientation’ refers to each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender;
- ‘gender identity’ refers to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms.
The term “sexual orientation” thus applies to both heterosexuals and homosexuals. The obligation of States to make appropriate provision for matters such as age of consent in relation to all sexual conduct, whether heterosexual or homosexual, is clearly established in international instruments, such as the Convention on the Rights of the Child (article 34).
As Rwanda also noted during GA discussions on the extrajudicial executions resolution:
“Mr. President, whether the concept of ‘sexual orientation’ is defined or not, whether or not we support the claims of people with a different sexual orientation, whether or not we approve of their sexual practices, we must deal with the urgency of these matters and recognise that these women and men, these human beings, continue to be the target of murder in many of our societies and are even more at risk than many of the other groups listed. … Believe me, Sir, that a human group does not need to be legally defined to be the victim of execution or massacre, since those who target their members have previously defined them.”
Q. I believe marriage is only between a man and a woman. Can I support this report?
The report references a decision of the UN Human Rights Committee, which concludes that “States are not required, under international law, to allow same-sex couples to marry” (OHCHR report, para 68).
Q. What does the report conclude?
Specifically, the report calls on States to:
- Ensure accountability for killings and other acts of violence based on sexual orientation and gender identity
- Prevent and investigate all reported incidents of torture and other forms of cruel, inhuman or degrading treatment on grounds of sexual orientation and gender identity
- Recognise that persecution on account of one’s sexual orientation or gender identity may be a valid basis for an asylum claim
- Decriminalise consensual relations between adults of the same sex, and abolish the death penalty for offenses involving consensual sexual relations
- Include sexual orientation and gender identity in all anti-discrimination legislation
- Ensure the rights to freedom of expression, association and assembly to all, regardless of sexual orientation or gender identity
- Provide sensitisation and awareness-raising for police and other law enforcement officials
- Legally recognise the self-identified gender of transgender persons without infringements of other human rights
The High Commissioner further recommends that the HRC:
- Keep regularly informed and updated on incidents of violence and discrimination linked to sexual orientation and gender identity
- Encourage special procedures to continue to investigate and report on human rights violations affecting individuals on the basis of sexual orientation or gender identity within the context of their specific mandates.
Q. Why does the Human Rights Council have a responsibility to address these issues?
The Council is “responsible for promoting universal protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner” (GA resolution 60/251, OP 2). Whatever differences may exist on the subject-matter of the resolution, the South African resolution recognises that the Council has a responsibility to address killings, rape, torture and violence, regardless of sexual orientation or gender identity.
Q. What are the next steps? How can the Human Rights Council fulfil its responsibility to ensure human rights and fundamental freedoms for all, including LGBT persons?
In its resolution HRC 17/19, the Human Rights Council “decides to remain seized of this priority issue”. OP 3 of that resolution also decides that the panel will discuss “appropriate follow-up to the recommendations of the study commissioned by the High Commissioner”.
The OHCHR study notes that there is a “protection gap in terms of existing mandates”, particularly in relation to “non-lethal violence directed at individuals on the basis of their sexual orientation or gender identity” (para. 28), and that “a pattern of human rights violations emerges that demands a response” (para. 82).
The HRC is therefore mandated by GA resolution 60/251 and HRC resolution 17/19 to consider creating a mechanism that will more consistently address human rights violations based on sexual orientation and gender identity, fill any gaps in existing protection mandates, enhance constructive and informed dialogue, and ensure a process for ongoing attention to these issues within the Council from a human rights perspective.
This could take the form of a dedicated Special Procedure or some other mechanism to ensure more systematic attention to the issues. In addition, the OHCHR report suggests (para. 81) that:
“A more comprehensive analysis of the human rights challenges facing LGBT and intersex persons would require a more extensive study and, in future, regular reporting.”
We urge all States to engage constructively in the panel to discuss how best to give effect to these commitments. As the High Commissioner has noted:
“It is our task and our challenge to move beyond a debate on whether all human beings have rights – for such questions were long ago laid to rest by the Universal Declaration – and instead to secure the climate for implementation.”
 Dudgeon v United Kingdom, Series A no. 45., 1981; Norris v Ireland, 1991; Modinos v Cyprus, 1993; National Coalition for Gay and Lesbian Equality and another v Minister of Justice and others, 1998; Zimbabwe Human Rights NGO Forum v Zimbabwe, African Commission 245/2002. National jurisprudence examples include: National Coalition for Gay and Lesbian Equality v. Minister of Justice, South Africa Constitutional Court, 1998 ZACC 15, 9 October 1998; Lawrence v. Texas, U.S. Supreme Court, 539 U.S. 558, 26 June 2003; Nadan & McCoskar v. State, High Court of Fiji at Suva, 26 August 2005; Naz Foundation v. Government of NCT of Delhi and Others, High Court of Delhi at New Delhi, WP(C) No. 7455/2001, 2 July 2009. In Hong Kong, recent decisions have struck down as discriminatory provisions related to differing ages of consent and public sexual activity between same-sex partners. See Leung v. Secretary for Justice, CACV 317/2005, 20 September 2006, and Secretary for Justice v. Yau and Another, FACC No. 12 of 2006, 17 July 2007. In Nepal, the Supreme Court ruled that transgender individuals should be recognized as a third gender should be recognized and protected from discrimination. See Writ No. 917 (Blue Diamond Society), 21 December 2007.
 (“Human Rights are essential tools for an effective intercultural dialogue”, Statement for the World Day on Cultural Diversity for Dialogue and Development, by 7 UN Special Procedures.)