The Mandate of the SOGI Independent Expert: The compelling case for its renewal in 2019

By Arvind Narrain

This article makes the case for why the mandate of the Independent Expert on SOGI must be renewed based on an analysis of the work of the Independent Expert in three areas, namely country visits, sending letters of allegation to individual countries and producing thematic reports on SOGI issues. The analysis of these three areas of work reveals that the Independent Expert on SOGI has become a vital element in the defence of the rights of the LGBT community worldwide and a failure to renew the mandate would be a huge setback to the LGBTI struggle.

Introduction

Urgent Appeals/ Letters of Allegation

Country Visits

Building a SOGI Jurisprudence: The Reports of the Independent Expert

The mandate holder has submitted four Reports in all to the Human Rights Council and the General Assembly. The fifth Report is expected to be presented in the 41 Session of the Human Rights Council. The four reports which have been submitted, between them make significant contributions to the development of a SOGI jurisprudence.

The First Report: Six Underpinnings

The first Report which was introductory in nature outlined what Vitit Muntarbhorn called the six underpinnings to which attention will have to be paid to come up with a ‘strategy of preventing and protecting against violence and discrimination on the basis of sexual orientation and gender identity’

  • Decriminalization of consensual same-sex relations
  • Effective anti-discrimination measures
  • Legal recognition of gender identity
  • Destigmatization linked with depathologization
  • Sociocultural inclusion
  • Promotion of education and empathy [1]
The Second Report: Focussing on Decriminalisation and Discrimination

In the second report Prof Muntarbhorn specifically analysed the first two underpinnings, namely decriminalisation and anti- discrimination. The two Reports of the Independent Expert on SOGI established a policy direction in the international realm. By highlighting both best practices as well as violations when it came to both criminalisation of same-sex relations, gender identity and expression as well as non-discrimination on grounds of SOGI, Prof Muntarbhorn highlighted two areas in which policy action has been undertaken by some countries and is also urgently called for in other countries.

With respect to decriminalisation of same-sex relations, gender identity and expression he noted that states such as Belize, Mozambique, Nauru, Palau, Sao Tome and Principe and Seychelles had decriminalized same sex relations in recent years. The Report also highlighted best practices with respect to non-discrimination from a range of countries from the global south including India, Pakistan Fiji, Ecuador, South Africa, Bolivia, Malta, Thailand, Philippines, Bolivia, Mexico, Argentina, Brazil, Columbia, Uruguay, Peru as well as many western countries. By stressing the fact that change has been happening including from countries which opposed the SOGI mandate (Pakistan), Prof Muntarbhorn aims to build a larger consensus on the basis of fidelity to  the Universal Declaration of Human Rights  (UDHR) philosophy,  i.e. that no persons should be subject to violence and discrimination. Prof Muntarbhorn has been at pains to stress that he is not talking about ‘advocacy of new rights for particular groups’ but rather ‘action against violence and discrimination’ which is based on ‘existing international law’.

However, this effort to build a broader consensus is still to bear fruit as the OIC and the Africa Group continued to boycott the presentations of the Independent Expert on SOGI both in the Human Rights Council and the General Assembly.

The Third Report: Intersectionality, Negation and Acknowledgment

While raising awareness is an important part of the work of the mandate, the other function, which this report of the Independent Expert in particular does, is to shed light on the nuances of how violence and discrimination affect persons differentially and examine the root causes of such violations. The Third Report disaggregates the acronym LGBT and explores the specific forms of violence experience by lesbians, bisexuals, trans men and trans women. To give an example from this report:

 Information currently available suggests that trans men and other trans-masculine persons tend to be less visible in reports and data than lesbians, gays or trans women. Arguably, if this is a reflection of less visibility in everyday situations, this may shield them from the types of societal violence usually affecting other gender non-conforming persons; they are, however, victims of severe violence in the family, in the health sector, and of school bullying. Acts of violence include verbal, physical and sexual abuse, including so-called “corrective” rape, and forced marriage. [2]

By highlighting the specific forms of violence faced by trans men, the mandate holder has demonstrated a sensitivity to nuance and a willingness to engage with the complex lived realities of marginalized groups within the LGBT spectrum. This is an important perspective to stress because even as  the issues facing trans communities in general are being taken up at the global and national level, the specificity of violence facing transmen often slips through the cracks.

By stressing the intersectionality of forms of oppression, the mandate holder has painted a picture of a human continuum along which violence and discrimination happens. Sexual orientation and gender identity are not discrete and insular categories but instead form part of the make up of persons who may also be older persons, refugees, of Afro-Asian descent, etc. Thus one cannot think of SOGI outside the actual life experiences of persons. By stressing intersectionality as an approach, the mandate holder signals his intention to produce more complex accounts of the actual forms of violence and discrimination that persons suffer on the basis of their sexual orientation or gender identity, even as they relate to other forms of marginalization based on caste, class gender, disability, etc. Intersectionality also points to how the SOGI mandate is connected to the work of other mandate holders and hence, the importance of working closely with other mandate holders.

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 being human:

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. [3]

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.” [4]

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, 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’ [5]

. 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 Fourth Report of the Independent Expert: Deconstructing the gender norm

UN Reports were caustically characterized by Phillip Alston as “painfully boring… in which everything said is factually correct and yet where nothing really stimulates fresh thinking.” The Report of the Independent Expert on Sexual Orientation and Gender Identity, Victor Madrigal-Borloz which was presented in the General Assembly in October 2018 is anything but that in its willingness to challenge one of the fundamental tenets of socio-cultural life in the modern world, namely the link between sex one is born into and the gender assigned at birth.

Madrigal declares that ‘the notion that there is a gender norm, from which certain gender identities “vary” or “depart” is based on a series of preconceptions that must be challenged if all humankind is to enjoy human rights’. The Madrigal report shows the problematic nature of the social assumption that gender roles and behaviour are determined by sex.

By referencing a range of sources Madrigal makes the case that to persist with the gender norm which neatly divides the world into male and female and assigns gender based on the sex into which one is born into, is to do violence to all those who fall outside the norm. The gender norm itself violates the right to individuality, the right to privacy, the right to identity and a range of socio-economic rights which flow from the right to recognition before the law.

The Independent Expert makes the important case that the pervasiveness of gender as source of identification can violate the right to privacy and integrity of the person. Madrigal challenges the shibboleth that identity documents must have gender as a category. The centrality of ‘gender’ as a marker of official identity documents be it in passports, driving licences or birth certificates, end up stigmatizing those who fall outside the normative expectations of gender. To give an example, the harassment faced by many transgender people by immigration authorities is based on the fact that for example they could ‘look’ female, but the passport says that they are male. If gender was not a category in the passport, there would be no reason for such harassment.

The Independent Expert expresses, ‘significant doubts as to the real need for the pervasive exhibition of gender markers in official and non-official documentation’ and asserts that the survival of the gender marker ‘appears to be fulfilling the vestiges of needs that have long been superseded’. Madrigal makes the point that the need for gender in official identity documents is not a given but must be demonstrated. ‘The simple principle remains that States must refrain from gathering and exhibiting data without a legitimate, proportionate and necessary purpose.’

Of course gender will continue to be a marker of identification especially when persons choose to identify on the basis of gender. The Report documents that the question of the right to choose  gender is now entering the legal domain with 10 countries around the world adopting a legislative model of recognition based on self-determination: Argentina in 2012; Denmark in 2014; Colombia Ireland and Malta in 2015; Norway in 2016; Belgium in 2017; and Austria, Brazil and Pakistan in 2018. Since the Report was published, Uruguay and Chile can be added to this list of ten countries adopting self-recognition of gender.

The right to choose one’s gender, Madrigal locates within deeper wellsprings of the human right to individuality. Drawing from the recent advisory opinion OC-24/17,17 the Inter-American Court of Human Rights, Madrigal argues that ‘the very basis of individual rights is the right of persons to be recognized as unique and distinguishable from others.’ The judgment of the Inter-American Court notes that, “consolidating the individuality of the person before the State and before society implies having the legitimate authority to establish the exteriorization of their persona according to their most intimate convictions”. This passage is cited by the Independent Expert to make the point that there is a ‘close connection with self-determination, self-perception, dignity and liberty’ and to conclude that ‘Self-determined gender is a fundamental part of a person’s free and autonomous choice in relation to roles, feelings, forms of expression and behaviours, and a cornerstone of the person’s identity’.

The point the Report is making is that we need to see non normative gender expression not as a pathology but rather as embodying a deep meaning of  the right to freedom of intimate choice. As a part of an individual’s right to express a fundamental aspect of their personality, such a choice should be inviolable. If classification systems based on gender violate this aspect of personhood, then these classification systems must change. If states impose barriers right from sterilization to sex reassignment surgery, for a person to be recognized in the gender of their choice, then these requirements need to go.

This thoughtful and nuanced Report also signposts one of the significant challenges to the recognition of the right of transgender persons. Just when parts of the UN system are showing a willingness to rethink some of the core concepts which have marginalized transgender people, the resistance to such rethinking is also building. The Independent Expert ‘notes the emergence in certain regions of the world of a populistic discourse that seeks to delegitimize the plight of persons discriminated against on the basis of sexual orientation or gender identity through an attempt to rebrand the term “gender ideology”.

The point being referenced in no uncertain terms by the Independent Expert is the problematic position being taken by the Trump administration both domestically and internationally. The US Department of Health and Human Services in a memo noted that “Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth.” Activists have also noted that in the recently concluded session of the Commission on Status of Women (CSW62), the USA proposed a similar restrictive definition of gender.

Taking into account these emerging battle lines, this Report of the Independent Expert will be a significant resource for those fighting against current attempts to strip transgender people of their human rights. If one of the objectives of the mandate of an Independent Expert is to produce reports which generate fresh thinking and chart new directions in international law, this Report fulfils that expectation in ample measure. The struggle now will be to use this pioneering report  as a basis to bring about changes in laws and policies at the national level.

Can the Reports be used in national/regional level advocacy?

Need for Renewal of the Mandate: Institutionalizing a SOGIESC Jurisprudence


[1] https://documents-dds-ny.un.org/doc/UNDOC/GEN/G17/095/53/PDF/G1709553.pdf?OpenElement  (accessed on 10.02.18)
[2] https://www.ohchr.org/EN/Issues/SexualOrientationGender/Pages/AnnualReports.aspx
[3] https://www.ohchr.org/EN/Issues/SexualOrientationGender/Pages/AnnualReports.aspx
[4] https://www.ohchr.org/EN/Issues/SexualOrientationGender/Pages/AnnualReports.aspx
[5] 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.

 

Download the full article here.