Address by Ms. Navanethem Pillay, United Nations High Commissioner for Human Rights on the theme of gender identity, sexual orientation and human rights
12 June, 2009
Ladies and Gentlemen,
I am pleased that we have an opportunity to discuss in Geneva the principles on the theme of gender identity, sexual orientation and human rights which were enunciated in New York and in Paris in 2008 and 2009, respectively.
The statement in New York was endorsed by 66 States from all regions of the world reflecting different religious and cultural perspectives. The United States of America have now joined their ranks.
The message from New York and Paris was simple, yet momentous. It expressed concerns regarding human rights violations based on sexual orientation or gender identity. Signatory States were disturbed by the violence, harassment and discrimination suffered by victims. They condemned these violations which, in extreme forms, encompass executions, torture, cruel inhuman or degrading treatment, extra judicial killings, and arbitrary arrest and detention.
I wish to reiterate that I share their concerns.
Even the 57 States which issued an alternative statement acknowledged that no human being should face human rights violations on any ground. Those States affirmed that they:
“… strongly deplore all forms of stereotyping, exclusion, stigmatisation, prejudice, intolerance, discrimination and violence directed against people, communities and individuals on any ground whatsoever, wherever they occur.” Similarly, the Holy See expressed its concerns, but stated before the United Nations General Assembly that it continued “to advocate that every sign of unjust discrimination towards homosexual persons should be avoided, and urges States to do away with criminal penalties against them.”
I am encouraged by this growing awareness and emerging consensus that common ground can be found.
Dialogue on the theme at hand today and, more broadly, on the subject of discrimination against gays, lesbians and transgendered persons is frequently prefaced by the caveats that these matters are sensitive and that, legally speaking, they are not yet established as standards.
Indeed, the subject is sensitive: dealing with our own and societies’ inherent prejudice is always sensitive. None of us, I am sure, has grown up in an environment that is one hundred percent free of intolerance and exclusion. Whether we like it or not, admit it or not, in various degrees ingrained prejudices shape our perceptions and actions.
And yet custom evolves everywhere. The prejudice and intolerance that had shaped racist attitudes and gender discrimination throughout history are now widely condemned. I venture to predict that diffident, derogatory, intolerant and violent approaches regarding sexual orientation and gender identity will also eventually be met with reprobation and penalty.
But it is incumbent upon all of us to actively counter prejudices and the specious rationalizations that cloak them. Both undermine the dignity and violate the rights of countless gay, lesbians and transgendered persons. They continue to shape law and custom in too many countries. Let me briefly illustrate how this happens.
At least ten countries maintain the death penalty for consensual same-sex practices. As a result, men, women and transgendered persons have been sentenced to death. Indeed the Special Rapporteur on extrajudicial executions has consistently drawn our attention to such cases.
In some countries corporal punishment exists for so the so called crime of homosexuality including in one case a sentence of 2,400 lashes.
Special procedures mandate holders, have consistently reported that LGBTI persons have been arbitrarily arrested and held in detention, that some have been tortured and even killed in order to obtain information regarding other LGBTI individuals. There are cases of women thought to be lesbian who had been raped ostensibly to “cure” their condition. The Special Rapporteur on human rights defenders has repeatedly illustrated the particular exposure to risk for those working to protect LGBTI individuals. The extent of impunity for these crimes is of enormous concern, as all too often prosecutions are the exception rather than the rule.
These are just a few of the real incidents reported to my Office and to Special Procedures mandate holders, a fraction of the reality of violence to which LGBTI persons are subjected every day and in every part of the world.
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.
Treaty Bodies provide us with the interpretation of human rights law. Their position over the years has become unequivocal. In 1994 the Human Rights Committee considered the case of Toonan v Australia. The committee concluded that the criminalisation of sexual acts between consenting adults was a breach of a right to privacy and that the right to be free from discrimination on grounds of sex included sexual orientation. Since then, the committee has developed and consolidated its own jurisprudence.
I will leave it for Micheal O Flaherty to tell us more as to the Committees’ approach and thinking.
In addition to the position of the Human Rights Committee, the Committee on Economic, Social and Cultural Rights has referred to discrimination against LGBTI persons in several concluding observations. Remarkably, that committee in its recent General Comment 20 on discrimination clearly placed sexual orientation within the prohibited grounds of discrimination. Under the analysis of Other Status, it stated and I quote:
“Other status” as recognized in article 2(2) includes sexual orientation. States parties should ensure that a person’s sexual orientation is not a barrier to realising Covenant rights.
In a similar vein, regional human rights bodies such as the Inter American Court and the European Court for Human Rights in Strasbourg have established that criminalisation of homosexuality violates human rights. They have also examined related issues, such as privacy rights in other contexts, and equal ages of consent with reference to discrimination. The interpretive guidelines issued by the High Commissioner for Refugees state that the well founded fear of persecution for “membership of social groups” includes lesbians and homosexual men. These guidelines have been followed in national courts.
Ladies and Gentlemen,
I wish to point out that the 2008 statement in New York was issued in the context of the 60th anniversary of the Universal Declaration of Human Rights. Let us recall that this fundamental document was a direct response to the horrors of World War II and the Holocaust. It was thus drafted at a time when the world had witnessed–in appalling intensity–the consequences of prejudice and the destruction it caused. The prejudice, intolerance and violence that cost the lives of six million Jews, also claimed the lives of thousands of Roma, of homosexuals, lesbians and transgendered persons in the concentration camps and in prisons. All were targets.
The aim of the drafters of the UDHR was to make sure that these atrocities were never repeated, and that prejudice would give way to the primacy of human rights.
I said this before and I state again that the UDHR is not just aspirational – it is customary law, with universal applicability. No human being, simply because of sexual orientation or gender identity, should be denied their human rights or be subject to discrimination, violence, criminal sanctions, or abuse.
Rooted in the UDHR and in human rights jurisprudence, the prohibition of discrimination on the grounds of sexual orientation and gender identity is not merely a matter of moral obligation.
It is our task and our challenge to move beyond a debate on whether all human beings have rights: this issue was settled 60 years ago. Rather, we should now concentrate our efforts on implementation of all human rights for all.
I am proud that the 1996 Constitution of South Africa protects the rights of LGBTI individuals from discrimination. I am proud that my fellow jurists have identified privacy, dignity and equality as the triad of interdependent and inseparable values. My learned colleague Albie Sachs said, and I quote: “The development of an active rather than a purely formal sense of enjoying a common citizenship depends on recognising and accepting people as they are…. The invalidation of anti-sodomy laws will mark an important moment in the maturing of an open democracy based on dignity, freedom and equality.”
Those of us who have experienced and witnessed the consequences of prejudice and discrimination insist on the need to uphold the rights for all human beings at all times. We cannot and must not do less.
 See General Comments No. 14 and 15.
 National Coalition for Gay and Lesbian Equality et. al. v Minister of Justice et. al., 1999  SA 6 (S. Afr. Const. Ct.) (Sachs, J., Concurring).