The appointment of the first Independent Expert on Sexual Orientation and Gender Identity in the 32nd session of the Human Rights Council marked an important milestone in the LGBTI struggle. However, the distance yet to be travelled was brought home in a stark fashion in the 36th session of the Human Rights Council in the debate around the death penalty.
The death penalty is currently on the statute books for consensual same sex conduct in thirteen states (or parts of). Regardless of whether people are executed for engaging in same sex relations, the existence of the death penalty on the statute books sends out the chilling message to LGBT persons, that their right to life could be at stake if they engage in intimate sexual conduct. The abolition of this penalty is a matter of pressing importance. Resolution 36/17 is to be welcomed for clearly stating that the punishment of death for same sex conduct, falls outside existing human rights law.
Resolution 36/17 takes a deeply intersectional approach to the abolition of the death penalty.
By specifically referencing ‘economically vulnerable persons’, ‘persons with mental and intellectual disabilities’, the notion of ‘racial and ethnic bias’ as well as the fact that persons engaging in conduct such as ‘apostasy, blasphemy, adultery and consensual same-sex relations’, the resolution indicates that the struggle against the death penalty must encompass an understanding of all of these grounds.
The ‘no’ votes of India, Japan and the US indicate that it’s unlikely that there will any progress on the question of the death penalty for same sex conduct until and unless there is progress on the death penalty per se. The US vote is indicative that the US will not soften its position on the death penalty, even if the global promotion of LGBT rights was (under the Obama administration) an aspect of the US foreign policy. This only indicates that LGBT advocates cannot hope to advance a key aspect of the LGBT agenda, namely the ending of the death penalty without a shift in the position on the death penalty as a whole.
The struggle for the removal of death penalty for consensual same sex conduct should be seen as part of a wider continuum of struggle. It’s important that future advocacy regarding the death penalty recognizes that those who are vulnerable to the death penalty include both those who lack socio economic power and those who are dissenters. In this sense Resolution 36/17 points the way forward.