The most significant and sustained attention paid to SOGI issues at the 31th Session was by the Special Rapporteur on torture, Mr. Juan Ernesto Méndez. Mr. Méndez in his report approached the issue of the right of LGBTI people from the angle of his mandate on torture.
Mr. Méndez said his report assessed the applicability of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment in international law to the unique experiences of women and girls as well as lesbian, gay, transgender and intersex persons, who were at particular risk of torture and ill-treatment when deprived of liberty, both within criminal justice systems and in other contexts such as immigration detention, medical establishments and drug rehabilitation centers.
The Report very powerfully documented the fact that
Lesbian, gay, bisexual, transgender and intersex persons are disproportionately subjected to practices that amount to torture and ill treatment for not conforming to socially constructed gender expectations. Violence motivated by homophobia and transphobia tends to be characterized by particularly brutal acts, often resulting in murder. Private actors typically inflict torture and ill-treatment on such persons in a climate of impunity as many States fail in their due diligence obligations to combat, prevent and remedy abuses. Lesbians and transgender women are at particular risk of mistreatment because of gender inequality and power relations within families and communities. Sexual violence, including the practice of “corrective rape”, uniquely affects lesbian, gay, bisexual, transgender and intersex individuals. Discrimination and violence against lesbian, gay, bisexual, transgender and intersex persons extends into the family sphere and can include placement in psychiatric institutions, forced marriage and honour-based violence.
By approaching the violence and discrimination faced by LGBTI people from the framework of torture, which is a jus cogens norm of international law, Mr. Méndez made the case for why this issue needs to be addressed on an urgent basis. It is not an issue of ‘lifestyle’ as opponents of LGBTI issues tend to portray it, rather it is an issue which affects the most fundamental freedom all human beings are entitled to, which is to live a life free of torture or cruel, inhuman and degrading treatment.
The Report documents the widespread nature of torture and draws implicit attention to the commonalities between LGBTI people and other groupings that are also vulnerable to torture. Even as it documents the widespread nature of torture faced by LGBTI people around the world, the Report also brings out the specificity of the forms of torture faced by LGBTI persons. By drawing attention to the specific issues of violence within families, by medical institutions as well as sexual violence targeting non normative gender expressions, the Report makes a compelling case for the specificity of the forms of torture faced by LGBTI persons.
Mr. Méndez has underscored the fact that LGBTI persons are at serious risk of torture thereby bringing the violence and discrimination faced by LGBTI persons firmly within the framework of international law. The Report is another effort at encouraging everyone to think of LGBTI people from the point of the violations they are suffering and their fundamental right not to be subjected to torture.
In the ensuing discussion on torture, many delegations expressed concerns that lesbian, gay, bisexual and transgender persons in detention faced particular risks of torture, and asked what safeguards could be put in place to prevent such practices. Other countries regretted that the report of the Special Rapporteur on torture set a hierarchy among victims of torture, went beyond the internationally agreed definition of torture, and attempted to advance controversial terms such as sexual orientation and gender identity.
The countries that were supportive of the Report made the following statements
Estonia said that with respect to torture and ill-treatment, sharing expertise would help better address human rights violations and eliminate different forms of abusive practices of women, girls, lesbian, gay, bisexual, transgender and intersex persons.
Denmark attached great importance to the global fight against torture. It expressed concerns that lesbian, gay, bisexual and transgender persons in detention faced particular risks of torture, and asked what safeguards could be put in place to prevent such practices.
Switzerland supported the Special Rapporteur’s focus on the gender dimension of torture and ill-treatment. It welcomed the inclusion of the question of the particular vulnerability of lesbian, gay, bisexual, transgender and intersex persons in detention.
Czech Republic agreed that lesbian, gay, bisexual, transgender and intersex persons were at particular risk of torture and ill-treatment when deprived of their liberty. It asked the Special Rapporteur to share some good examples of State activities to systematically and successfully protect their rights in detention.
Costa Rica agreed that women, girls and lesbian, gay, bisexual and transgender persons deprived of liberty were doubly vulnerable.
Dominican Republic (CELAC) said that, it condemns all types of racism and discrimination, including the based on sexual orientation.
Italy said that, it would like to express its appreciation to the Special Rapporteur for having also taken into consideration the unique experience of LGBTI persons while applying a gender perspective throughout his report.
Paraguay said that the approbation of the protocol of intervention for transgender people deprived of liberty, was an example of national progress.
Uruguay said that, it welcomed the Special Rapporteur focusing his report on a sensitive but important issue to its mandate, the applicability of the prohibition of torture and other cruel, inhuman and degrading treatment in international law to the own experiences of women, girls and LGBTI persons.
Albania said that it supports strategies and preventive measures to protect vulnerable groups such as women and LGBTI, groups that as highlighted in the report face grave violations of human rights in forms of ill –treatment and torture. In Albania there already exists a comprehensive legal framework as well and specific institutions are in place, such as the commissioner against discrimination with responsibility to punish offenders especially for offences committed against the most vulnerable people, including LGBTI persons. Existing stereotypes and discrimination are factors inciting violations committed against persons who transgress sexual and gender norms. Women, girls and especially LGBTI persons, are particular exposed to torture and ill – treatment when in vulnerable situations.
Spain said that, Mr. Méndez has dared to go beyond and referred to the situation of LGBTI as subjects of torture. This is a group that has often been subject of discrimination, and rights violation. Therefore, we believe it is especially important that a radical change must occur in states and governments positions towards this group, by eliminating discriminatory laws, including the ones that criminalize their orientation. This would be a first step to prevent torture.
Luxembourg welcomed the emphasis on the experiences that men and women who are stigmatized by their sexual orientation face in the context of torture.
France welcomed the report and shared the call for more effective implementation of the existing frameworks in the fight against torture and ill – treatment against women and LGBTI people. The fight against violations of human rights based on gender, sexual orientation and gender identity is a human rights priority for France. France deplores that in too many countries, women and LGBTI persons continue to be victims of harassment, torture and ill – treatment, arbitrary detentions and even murder, all of this in a climate of impunity.
Korea commended such a detailed analysis on various types of torture and ill – treatment from gender perspectives. In particular, Korea share the view of Mr. Méndez, that women, girls, and sexual minorities are at particular risk of torture and ill treatment when deprived of liberty, and accordingly, different incarceration and treatment policies and infrastructures are required to address their distinct needs and ensure their protection.
Chile expressed concern that the prohibition of torture and ill-treatment is particularly frequently transgressed when it comes to women and girls as well as people based on their sexual orientation and gender identity. It is an important finding that gender stereotypes, besides preventing the full enjoyment of women´s rights can also be an additional factor in the commission of acts of torture and ill- treatment of men and women, either because of the role the society has assigned to them or because of the sexuality option they have chosen. The criminalization of same-sex relations, the acquiescence of the state agents against violence that affects LGBTI people, as well as homophobic crimes are all factors that affect the practice of torture and ill-treatment against certain group that deserves just as much protection and respect for their life and physical, psychological and emotional integrity as others.
The United Kingdom thanked the SR on torture for his report, which focuses on the prohibition of torture in relation to the experiences of women, girls and LGBTI persons.
Thailand noted that, on this issue of torture, the Ministry of Justice recognizes the importance of protecting LGBTI persons from violation and discrimination on the basis of sexual orientation and gender identity. Recently, internal discussions began on measures to protect LGBTI rights in the justice system, especially for inmates.
Costa Rica noted that it had read with interest the report of Mr. Juan Méndez, which this year addresses the issue of torture and ill-treatment of women and lesbians, gays, bisexual and transgender people deprived from their liberty. Costa Rica agreed with the Special Rapporteur when he highlights the importance of these issues, because these persons are in a situation of double vulnerability.
Fiji recognizes that much work is required domestically to review police procedures at police stations and during informal arrests and detentions. Work is also required to train police officers, lawyers, prosecutors and judges on the rights of persons in custody, including those with disabilities, of various sexual orientations, children and women and girls.
The countries which expressed a concern about the report made the following statements:
Iran noted that it was concerned over the misuse of the noble aim of eradicating torture as a subterfuge to push further a non-internationally-agreed controversial argument on LGBTIs in the report. Hence, this suspicious enclosure of a matter which does not appropriately fit into a report focusing on torture, is cerebrally off-beam, and does not deserve the considerations of this august body.
Russia noted that, Mr. Méndez violated his mandate, because the mandate says to take into account the gender aspects of the victims of torture, and to repeat take into account the gender aspects and not to study the problem of discrimination and violence against women. The approach of the Special Rapporteur highlighting different groups of persons that allegedly suffer more from torture is wrong. Under the logic of Mr. Mendez they require legal protection, this means the Special Rapporteur is attempting to create a hierarchy of victims. (…) We are also quite surprise how lightly and irresponsibly Mr. Méndez, qualifies such phenomenon as overcrowding, detention in isolation cells, the banning of abortion and sex change of operations as a means of torture. Does the Special Rapporteur know that he is distorting the definition of torture? Russia believes that this approach is harmful.
Egypt noted that, the present report is associated with problematic challenges. The report can open the door for setting a hierarchy among victims of torture and thus compromising the objective of universal and absolute prohibition. The report also uses concepts such as torture, ill – treatment, violence including sexual and gender – based violence and harmful practices interchangeably which can negatively reflect on the cohesive global consensus around the definition of torture under article 1 of the Convention against Torture. (…) As on previous occasions, the Special Rapporteur voluntarily expands the scope of the mandate. Equating or creating of an open – ended correlation between issues such as (…) sex change surgeries is legally invalid and certainly counter – productive to the agreed objectives of the mandate. Finally, we strongly disagree with any attempt to use eradication of torture as a platform to promote for controversial issues and concepts such as sexual orientation and gender identity that lack any basis under international law and associated with significant cultural and social sensitivity.
Bangladesh noted that it did not support any torture against any human being. However, it regretted that on such important issue, the report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment has deviated from its focus in various areas. Bangladesh could not endorse some parts of the report.
Nigeria did not approve of the deliberate emphasis on a single controversial subject and allowing it to dominate the entire report. This did not enjoy Nigeria’s support as it negates the essence of this dialogue. Nigeria was of the view that introducing controversial issues into important discussions of this nature, insults the sensibility of the majority of the Members of the international community. Nigeria urges mandate holders to endeavor to ensure broad – spectrum assessment and treatment of topics in line with their mandate. The tendency to reduce an entire report to one controversial topic does not help deliberation in this Council.
The following NGO’s also made statements:
International Lesbian and Gay Association, in a joint statement with Federatie van Nederlandse Verenigingen tot Integratie Van Homoseksualiteit – COC Nederland; and Swedish Federation of Lesbian, Gay, Bisexual and Transgender Rights – RFSL, brought attention to the fact that, in detention facilities, LGBT persons face particular challenges. Recently, 14 Trans women held in an immigration detention facility in the USA were subject to invasive strip searches conducted by male officers. The inappropriate placement of a Maori trans woman within a shared mainstream male cell in New Zealand last year resulted in her rape. Prison officials lack knowledge of LGBT issues and therefore do not have sensitivity in how to deal with LGBT inmates. For example, “V”, a lesbian in a women’s prison in Paraguay, was recently denied the right to be visited by her partner, unlike women with opposite sex partners. The groups welcomed the attention given to the specific torture faced by intersex people and urged governments to take concrete action to bring these practices to an end.
World Organization against Torture voiced deep concern over retrogressive developments witnessed worldwide and welcomed the efforts of the Special Rapporteur to underline the cross-cutting dimension of torture and ill-treatment to many human rights violations suffered by lesbian, gay, bisexual, transgender and intersex persons.
Associacao Brasileira de Gays, Lesbicas e Transgeneros said that lowering the number of inmates and limiting pre-trial detention was necessary to put an end to torture against lesbian, gay, bisexual and transgender persons in detention, and urged Brazil to truly engage in implementing the recommendations of the Special Rapporteur on torture. Speaking of the strengthening of the “Nelson Mandela Rules,” it would be useful to hold a new debate on how prisoners were treated, specifically lesbian, gay, bisexual, transgender and intersex persons, and female prisoners.
The American Civil Liberties Union welcomed this landmark report, which is so fittingly presented on International Women’s Day and which critically assesses the applicability of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment in international law to the unique experiences of women, girls, and LGBTI persons globally, and seeks to more effectively consider ill treatment of persons who transgress sexual and gender norms as human rights violations through the lens of international human rights law and torture and other cruel, inhuman, or degrading treatment. ACLU called on Member States to heed his thoughtful and comprehensive recommendations, and call on the next mandate-holder to follow-up and press for much-needed implementation of legal and human rights obligations to protect women, girls, and LGBTI persons from torture and ill-treatment in various contexts, including detention.
In his concluding remarks, Mr. Méndez said that
The statements made yesterday refer to the fact that my report addressed controversial matters and that there was no agreement in the international community. I assume you don’t refer to the discrimination against women, but you refer to LGBTI individuals. Thematic reports don’t aim to discuss what is been entirely agreed upon but rather they try to flag areas where there needs to be consensus and there needs to be a possible agreement on the frame work regarding torture and cruel, inhumane and degrading treatment. In this regard I want to say that the principle of non – discrimination and equality is broadly accepted by the international community. The ICCPR refers to discrimination, any type of discrimination not only gender discrimination. Prohibition of torture or any ill – treatment or punishment against any individuals of any category is also an absolute prohibition. On this broad consensus, it is a norm of jus cogens. My report links up this two norms, on one hand saying that the states that criminalize same – sex relations generates a cultural situation, and in this situation violence is perpetrated against LGBTI individuals.
For further information on HRC31:
Arvind Narrain | Geneva Director
Kim Vance | Executive Director
All documents referenced in this Report can be found here.