‘Negation and acknowledgment’ as a frame of the Report

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By Arvind Narrain and Kim Vance

Introduction

‘Negation and acknowledgment’ as a frame of the Report

The report also makes an important theoretical contribution by stressing the importance of what the mandate holder calls ‘negation’ and ‘acknowledgement’. One of the reasons for the extreme forms of violence and discrimination faced on grounds of SOGI is the negation of the experience of one’s sexual orientation or gender identity as a part of the human experience:

Negation is adopting the position that violence and discrimination based on sexual orientation or gender identity do not exist in a particular context or that, in a given social context, there are no lesbian, gay, bisexual, trans or gender non-conforming persons. It enables violence and discrimination and lies at the root of some of the heinous acts described in the present report. In a context of negation, perpetrators feel motivated and enabled to suppress or punish diversity. Invariably, any data gathered will be unreliable, unsystematic and biased; all State measures to address violence and discrimination, be it public policy, access to justice, law reform or administrative actions, will be therefore hindered by this fact.[2]

If ‘negation’ is the problem, then ‘acknowledgement’ is part of the solution. The report goes on to document best practices of ‘acknowledgement’.

Acknowledgment of responsibility — the opposite of negation — is an essential element in the establishment of historical truth, the process of reparation and the reconstitution of the social fabric… On 17 April 2018, the Prime Minister of the United Kingdom expressed deep regret for the fact that discriminatory legislation had been introduced across the Commonwealth, and the resulting “legacy of discrimination, violence and even death that persists today. The Independent Expert values these statements highly, in that they include both acknowledgment of the facts and acceptance of responsibility; he is persuaded that they will be valuable building blocks in the process of eradication of violence and discrimination on the basis of sexual orientation and gender identity.”[3]

The Independent Expert is right to identify one of the key problems being that of ‘negation’. If the very existence of a grouping is denied, then the violence and discrimination to which the grouping is subjected to remains an invisible crime, committed on invisible bodies. To visibilize the grouping, to document the violence and to demand acknowledgement remains an ongoing task.

By documenting these forms of ‘acknowledgment’, the report opens out important pathways to combatting violence and discrimination on grounds of SOGI. By noting the ‘deep regret’ expressed by the Prime Minister of UK for the introduction of anti sodomy laws in the Commonwealth, the Independent Expert points to a form of acknowledgement which can alter the existing frames of reference. Activists throughout the Commonwealth have been contesting the frame of reference which sees same sex conduct as alien to local cultures, traditions and religions. The acknowledgement by the British Prime Minister, provides LGBT activists in all parts of the Commonwealth a tool to argue that, it is in fact these laws which are an ‘alien legacy’.

This Report has, interalia, initiated new thinking about the right to truth as embodied in Principle 37 of the Yogyakarta Principles plus 10, with its stress on countering ‘negation with ‘acknowledgment’.[4] The right to truth, with its emphasis on public apology, expungement of relevant criminal convictions and records, rehabilitation and recovery services, adequate compensation and guarantees of non-recurrence remains an important goal for much of LGBTI activism, even as it confronts new challenges.

The dialectic between ‘negation’ and ‘acknowledgement’, can be a frame to analyse the state responses to the Communications issued jointly by the Independent Expert along with other Special Procedures to Russia, Indonesia and the Republic of Korea.

Using ‘Negation and acknowledgment’ to analyze Communications issued by the mandate

State Responses to the Report in the 38th Session of the Human Rights Council

Conclusion

[2] https://www.ohchr.org/EN/Issues/SexualOrientationGender/Pages/AnnualReports.aspx

[3] https://www.ohchr.org/EN/Issues/SexualOrientationGender/Pages/AnnualReports.aspx

[4] Principle 37: Every victim of a human rights violation on the basis of sexual orientation, gender identity, gender expression or sex characteristics has the right to know the truth about the facts, circumstances and reasons why the violation occurred. The right to truth includes effective, independent and impartial investigation to establish the facts, and includes all forms of reparation recognised by international law. The right to truth is not subject to statute of limitations and its application must bear in mind its dual nature as an individual right and the right of the society at large to know the truth about past events.