High Commissioner’s statement at the GA, 2008

Address by Ms. Navanetham Pillay, United Nations High Commissioner for Human Rights on the theme of gender identity, sexual orientation and human rights
63rd session of the General Assembly
New York, 18 December 2008

Excellencies,
Ladies and Gentlemen,
Dear friends,

I regret that I am unable to be with you in person today, but I am glad that I can at least send this message to express my full support at this important and extremely timely event.

As we commemorate this month the 60th anniversary of the Universal Declaration of Human Rights, it is timely to remember the spirit and intent behind that most vital of instruments which demands that all human beings have equal rights and prohibits discrimination in the enjoyment of them.

The UDHR is not just aspirational – most of the rights are customary law, with universal applicability.  Whilst there is clarity in its terms, there has been resistance to its implementation and sadly, 60 years later we are still having to face the contention that whilst it applies to everyone it does not do so equally: the ageless cliché that everyone is equal but some are more equal than others is not acceptable. No human being should be denied their human rights, simply because of their perceived sexual orientation or gender identity. No human being should be subject to discrimination, violence, criminal sanctions, or abuse, simply because of their perceived sexual orientation or gender identity.

The protection of the rights of those who identify as lesbian, gay or bisexual, and those who are transgender, transsexual or intersex, has attracted extremities of thought and passions. There has been considerable progress in terms of legal recognition, including the interpretations by treaty bodies, in particular the Human Rights Committee and the Committee on Economic, Social and Cultural Economic Rights. There is now a considerable body of decisions affirming that discrimination on the basis of sexual orientation is contrary to international human rights law.

The position of the human rights courts is becoming similarly homogenous with the courts upholding rights of privacy, freedom of expression and bodily integrity as well as principles of non discrimination. And I would pause a moment on this element, as there are those who argue that because sexual orientation or gender identity are not explicitly mentioned in any of the conventions and covenants, there would be no protection. My response is that such a position is untenable in legal terms, which is confirmed by the evolving jurisprudence. The principle of universality admits no exception. Human rights truly are the birthright of all human beings.

Within the realms of soft law, the Special Procedures mandate holders are increasingly ensuring consideration of these issues within their respective mandates, and indeed, have consistently identified that human rights violations based on  sexual orientation or gender identity reflect  a protection gap that needs to be closed.

Sadly, despite this progress, there remain all too many countries which continue to criminalize sexual relations between consenting adults of the same sex in defiance of established human rights law.  Ironically, many of these laws, like the Apartheid laws that criminalized sexual relations between consenting adults of different  races, are relics of the colonial era, and are increasingly becoming recognised as anachronistic, and as inconsistent both with international law and with traditional values of dignity, inclusion, and respect for all.

At the global level, some 10 countries still have laws making homosexual activity punishable by death. These laws legalize violence and are used to justify threats, attacks to the physical and moral integrity of persons, including their exposure to torture. Human rights defenders are particularly vulnerable. The stigma attached to these issues means that violence and discrimination often go unpunished, as victims dare not report their cases and the authorities do not pay sufficient attention to those who do.

In South Africa, the right to be protected from discrimination based on sexual orientation is guaranteed by the Constitution, and as a member of the Women’s National Coalition,  I was proud to have contributed to the inclusion in the Constitution of the equality clause which prohibits discrimination on grounds of, inter alia, sexual orientation.  We would do well to remember the words of then South African Minister of Health to the Beijing 4th World Conference on Women, who stated :

“To show that we do not have a short memory regarding matters of discrimination, our Constitution has a non-discriminatory clause and discrimination on the basis of sexual orientation is prohibited.  Though the number of people may be small, we do not discriminate against them, as we do not discriminate against anyone.”

It is an example of where law is seeking to lead society by showing how the universality of human rights must be made to work in practice. It is not easy for decades of prejudice and intolerance to disappear by the stroke of the legislators’ pen, but change must be started. 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.

I am delighted and encouraged that there are so many member states, from every region of the globe and reflecting different religious and cultural perspectives, who are supporting this statement. It is exactly a reflection of the UDHR and how human rights protections work, and indicative of the fact that it is the United Nations which must show leadership in protecting what it has crafted. Those who are lesbian, gay or bisexual, those who are transgender, transsexual or intersex, are full and equal members of the human family, and are entitled to be treated as such.

I support absolutely the statement on sexual orientation, gender identity and human rights to be read at the General Assembly, and I hope that it will have resonance and impact on this issue and guarantee that my Office will continue to work to uphold the human rights of everyone.

My very best wishes.