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

In the three years of the mandate there have been four country visits which have been undertaken to Ukraine, Georgia, Argentina and Mozambique. Country visits are at the invitation of the country concerned and provide an opportunity for a more in-depth engagement with both the best practices in the country regarding the protection of the rights of all persons regardless of SOGI as well as the specific challenges posed in ensuring full protection of the human rights of all persons regardless of their SOGI.

Country visits are an important mechanism through which an international focus can be given to a domestic context. It’s also an opportunity for a more sustained interaction allowing for the understanding of nuance and context. If we take the example of the country visits to Ukraine, the Independent Expert was able to reflect upon the situation of LGBT persons in the self-proclaimed ‘Donetsk People’s Republic’ and self-proclaimed ‘Luhansk People’s Republic in Ukraine and how conflict lessens the space for acceptance of LGBT persons.

The other point to be noted about country visits is that they are structured by the mandate of ‘constructive dialogue’ and as such, the mandate holder often begins by acknowledging the work done by the concerned country before highlighting the challenges still faced. Thus a country visit could become a way in which some successful local level initiatives get a wider profile. In this context it may be useful to highlight some of the successful initiatives which were highlighted by the Independent Expert on his visit to Argentina.

The Independent Expert apart from commending Argentina for its Gender Identity law, noted a couple of interesting experiments in the NGO sector:

The Mocha Celis Trans High School, ‘the first of its kind worldwide, was initiated by the non-governmental sector and subsequently received recognition as a high school, with teachers and school staff receiving funds from the Autonomous City of Buenos Aires. It is a response to the sad finding that many transgender people drop out of school and have to resort to prostitution to survive. It offers education to help end violence and discrimination, with a focus on sexual and gender diversity. It benefits, in particular, transgender persons and provides a rounded experience which enables the students to leave their past marginalized settings behind and progress towards other professions.[1].

The Independent Expert also heard about “Hotel Gondolín”, a place historically open to trans people from all over the country and also for those from other countries. It helps address the housing gaps faced by trans women, particularly as many leave their original homes in the provinces or neighbouring countries at a young age and as part of a migration to the capital city and have no place to live when they arrive in Buenos Aires. The hotel now works as a cooperative where the expenses and household chores are shared among the inhabitants. This institution offers great insight into how to deal with intersectional issues (e.g., sexual orientation and gender identity and migration) and also interlinks with sociocultural and economic inclusion by providing a safety cushion for those who are already marginalized.[2]

The Independent Expert also provided an insight into how the comprehensive sexuality programme in Argentina was functioning.

The Independent Expert met with several teachers who are part of the implementation process. They provided great insight into the methodology, psychology and substance for integrating sexual orientation and gender identity into the curriculum, underlining the need to engage parents, teachers and children in the process. The following comments by one of the teachers are particularly instructive:

“Instead of saying ‘the girl has a boyfriend’, we should ask, ‘is she with a partner?’”

“Girls and boys — as men and women — will have sex, so let’s build them so that at school, they have the tools they need. Let’s speak about prevention …. We have to speak about this … to prevent HIV. The only thing to use is a condom.”

“A princess can save a prince.’’

“Two kings might get married.” [3]

Of course the Independent Expert in all country visits also points out to lacunae and what the country concerned should be addressing. In the context of Argentina the Independent Expert noted that ‘Various forms of violence and discrimination are pervasive in the country. In particular, institutional violence remains ingrained, historically deep rooted in society, and it lies at the heart of the problem. Institutional violence, through negative acts and omissions on the part of State officials, is a root cause of violence and discrimination’

In the case of Georgia as well the Independent Expert, appreciated  the slew of positive legislations which had been enacted he did go on to observe that the problem lay in  ‘the pervasive notion that this inherent aspect of the identity of each one of these [LGBT]Georgians is something sinful, shameful or pathologic’ and the encouragement given by the Church and the political establishment to these attitudes. [4]

In the case of Mozambique, while the Independent Expert was appreciative of the fact that Mozambique was ‘free from massive, systematic or flagrant physical violence against LGBT persons’ he went on to observe that this was not enough as  ‘During his visit, he said LGBT people had provided many examples of invisible mechanisms of exclusion that have led to their marginalisation’ and that he was “convinced that the problem lies in the State not yet having taken fully on board its responsibility to dispel some misconceptions around this topic, including the fact that homosexuality, lesbianism, bisexuality and gender diversity cannot be promoted. These are not lifestyles: they are inherent traits of human nature, and I believe that every Mozambican knows that.”  [5] 

The Independent Expert was also deeply appreciative of the work of the LGBT group LAMBDA and noted that, “Seldom in my career have I reported on a context in which a single organisation has taken it, entirely upon itself, to defend the lives and integrity of every LGBT person in a country of almost 30 million persons. I am convinced that through its work Lambda has saved many lives and furthered the cause of human rights. Every Mozambican, and the Mozambican State, owes a debt of gratitude to this most extraordinary organisation.” [6]

It’s important to note that the country visit has the potential to both give greater visibility and profile to domestic level activism as seen in Argentina and Mozambique and highlight sometimes forgotten issues within a country context as seen in the mention of conflict in the Ukraine. The value of the visit is dependent to some degree on how civil society sees it as an opportunity to mobilize, the degree of press coverage the visit gets and the response of the state to the visit itself. As such a county visit can be useful lever to take forward the LGBT rights struggle.

Building a SOGI Jurisprudence: The Reports of the Independent Expert

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/G18/097/10/PDF/G1809710.pdf?OpenElement
[2] Ibid.f
[3] Ibid.
[4] https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=23682&LangID=E
[5] https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=24002&LangID=E  (accessed on 31.05.19)
[6] Ibid.

 

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