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

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

Apart from contributing to emerging jurisprudence on SOGI, one hopes that the Reports of the Independent Expert will continue to capture the current state of the law and practise when it comes to concerns of SOGI and hence can begin to be used to shape change in various national and regional contexts. The possible uses of the Reports can include:

Use in litigation efforts

Previous reports of the UN system have been used as credible documentation in domestic level litigation.[1] While the Reports have no binding value they can be used as a source of persuasive value to demonstrate before national courts the current global state of LGBTI rights as well as the direction in which the world community is tilting. The section of the Report on recommendations can in particular be used to make the case for decriminalization of LGBTI lives, repealing of anti-propaganda laws and ensuring legal recognition for transgender people in the gender of their choice. Of course, the receptiveness to international sources is likely to vary from jurisdiction to jurisdiction.

Use in law and policy reform

The Reports of the Independent Expert have not only documented challenges but clearly signposts advances in the field of rights of LGBTI persons. In particular the Second Report of the Independent Expert can be used to persuade reluctant states as to the sea change in vast parts of the globe regarding the willingness to protect the rights of those discriminated on grounds of SOGI. The fact that a document by the UN posits a norm of equality of LGBTI persons with all other persons may be useful in certain contexts to push for policy change. It’s possible that sub-regional authorities may be even more receptive to an international report than national authorities. It may also be possible that smaller countries may be very receptive to aligning their policies with what appears to be an international good practice.

 Building a vision for tackling rights violation on grounds of SOGIESC

As noted above the policy direction signified by the Reports of the Independent Expert can become useful documents in thinking about the nature of violation itself. If the Reports draw from grassroots level experience and analysis, they can capture both current forms of violation as well as possible responses to the violation. This can be very useful in setting an agenda for civil society which is trying to both comprehend and redress violations. For example, the understanding of sexual orientation, gender identity, gender expression and sex characteristics as distinct markers of discrimination can play a role in orientating civil society action to be within a more inclusive frame.

Need for Renewal of the Mandate: Institutionalizing a SOGIESC Jurisprudence


[1] For example, the OHCHR Report of 2011 was cited before the Indian Supreme Court during the arguments in Suresh Kumar Koushal v. Naz Foundation by counsel representing Voices Against 377 The bench hearing the matter was however not receptive to arguments based upon international law and was reluctant to engage with international sources.

 

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