|For a summary of Micronesia’s review at the first cycle please click here.|
23rd UPR session
Date of review: 2 November 2015
Date of report adoption: 23 December 2015
Document number: A/HRC/31/4
SOGIESC issues during Micronesia’s 2nd UPR review
I. SOGIESC issues/recommendations identified by NGOs
2. KALEIDOSCOPE recommended that the Federated States of Micronesia ratify all significant human rights treaties and their Optional Protocols to reinforce the implementation of, and compliance with, international human rights law for the benefit of the Lesbian, Gay, Bisexual, Transgender/Transsexual and Intersexed (LGBTI) community in the Federated States of Micronesia.
5. KALEIDOSCOPE emphasized that the most fundamental protections and freedoms of the people of the Federated States of Micronesia were enshrined in the Constitution of the Federated States of Micronesia. Article IV of the Constitution was titled “Declaration of Rights” and it set out the definitive collection of legal freedoms and protections of the people of Micronesia. Article IV section 4 specifically dealt with the equality of persons before the law and states “equal protection of laws may not be denied or impaired on account of sex, race, ancestry, national origin, language or social status.” Notably absent from this list, however, was the sexual orientation and gender identity of a person. In this connection, KALEIDOSCOPE recommended that constitutional amendments be made to include sexual orientation and gender identity as prohibited grounds of discrimination in Article IV.
Equality and non-discrimination
7. KALEIDOSCOPE noted that Micronesia had in recent years given several indications of its support for human rights, including those of LGBTI persons. Despite this, the Federated States of Micronesia was yet to introduce legislative change or take other meaningful steps to recognise these rights. In particular, the Federated States of Micronesia had not yet introduced any laws prohibiting discrimination against persons based on their sexual orientation or gender identity. In this connection, KALEIDOSCOPE recommended that the Federated States of Micronesia enact comprehensive anti-discrimination legislation that prohibits discrimination on the grounds of sexual orientation and gender identity/expression.
8. KALEIDOSCOPE stated that during the Federated States of Micronesia’s first Universal Periodic Review in 2011, it was recommended that the Federated States of Micronesia include sexual orientation and gender identity as prohibited grounds for discrimination in legislation and equality initiatives, which was accepted by the Federated States of Micronesia. Despite the Federated States of Micronesia having accepted this recommendation, no steps had been taken to implement such initiatives.
9. KALEIDOSCOPE stressed that a framework of legal reform needed to be implemented that will actively prevent and prohibit discrimination of LGBTI persons in all facets of life and society including employment, health and education in the Federated States of Micronesia. Such a framework should include legislation that specifically prohibits discrimination based on sexual orientation and gender identity in all aspects of Micronesian society, including, but not limited to, employment, education, and housing.
10. KALEIDOSCOPE stated that in 2013, there were no known reports of violence, official societal discrimination or workplace discrimination against LGBTI people. However, the culture stigmatized public acknowledgement or discussion of certain sexual matters, and it is rare for individuals to identify themselves publicly as LGBTI people. In this connection, KALEIDOSCOPE recommended that the Federated States of Micronesia take other positive steps to counter stigma, stereotypes and prejudice against LGBTI people, including appropriate policy or educational initiatives.
11. KALEIDOSCOPE also noted that the Federated States of Micronesia currently had in place laws which discriminate against LGBTI individuals. Under the Code of the Federated States of Micronesia (1999) joint adoption by same-sex couples was not permitted. In addition, the law did not permit the marriage of same-sex couples.16 KALEIDOSCOPE recommended that the Federated States of Micronesia amend the Code of the Federated States of Micronesia (1999) to allow adoption of children by same-sex couples.
Right to marriage and family life
21. KALEIDOSCOPE noted that marriage between same-sex couples was not permitted in the Federated States of Micronesia: the marriage laws in the State of Kosrae state that a marriage performed in the state will only be valid if the male at the time of marriage is at least eighteen years of age and the female at least 16 years of age. As such, marriage is conceptualised and permitted between a man and a woman only.
22. KALEIDOSCOPE also noted that same-sex couples were not permitted to adopt in the Federated States of Micronesia: the Code of the Federated States of Micronesia (1999) states that any suitable person who is not married or is married to the father or mother of a minor child, or a husband and wife may adopt a child not theirs by birth. While any “suitable person who is not married” may adopt, this would only allow one member of a same-sex couple to adopt as a single person. Joint adoption by a same-sex couple is not permitted.
23. KALEIDOSCOPE recommended that the Federated States of Micronesia enact legislation permitting same-sex marriage or civil unions, as well as same-sex adoption.
II. Excerpts on SOGIESC issues from the national report
77. The FSM has taken steps to address this recommendation, such as participating in the 2010 and 2014 meetings of the International Conference on Population and Development to understand issues surrounding discrimination on the basis of sexual orientation or gender.
III. Excerpts on SOGIESC issues by UN agencies
Constitutional and legislative framework
6. The country team noted that section 5 of article IV of the Constitution included provisions for non-discrimination on the grounds of sex, race, ancestry, national origin, language and social norms. However, the Constitution did not include gender, sexual orientation or disability as grounds for non-discrimination. The country team encouraged the passage of constitutional amendments to include gender, sexual orientation and disability as grounds for non-discrimination.
IV. References to SOGIESC issues during the Working Group review
33. Canada […] noted that legal and social discrimination persisted, particularly in the area of sexual orientation. It encouraged the Federated States of Micronesia to adopt measures to address remaining gaps.
51. […] Ireland urged the Federated States of Micronesia to amend its laws to ensure the equal protection of all citizens from discrimination on the grounds of gender, sexual orientation, gender identity and disability. Ireland regretted that progress had not yet been made on implementing the recommendations that had been accepted from the previous review cycle to establish a national human rights institution.
V. Conclusions and/or recommendations
Micronesia accepted the following recommendations:
62.14 Ratify the International Covenant on Civil and Political Rights also with a view to help ensure equal rights of, and end discrimination against lesbian, gay, bisexual, transgender and intersex persons (Netherlands);
62.45 Ensure equality of all persons before the law, by including gender, sexual orientation and disability as grounds for non-discrimination in relevant constitutional or legal provisions (United Kingdom of Great Britain and Northern Ireland).
Micronesia noted the following recommendations:
62.51 Take the necessary measures to review its domestic legislation so as to guarantee the prohibition and sanction of discrimination in all its forms, especially on the basis of gender, sexual orientation and disability (Argentina);
62.52 Design and implement policies to prevent and combat discrimination on any grounds, including based on sexual orientation and gender identity (Brazil);
62.53 Include sexual orientation in non-discrimination laws and equality initiatives (Canada);
62.54 Prohibit discrimination on the basis of gender, disability and sexual orientation in the Constitution (Mexico).