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?

Need for Renewal of the Mandate: Institutionalizing a SOGIESC Jurisprudence

The analysis of these Reports shows that they have been successful in  building upon the excellent work of the Special Procedures and further cementing the emerging conceptual frameworks of SOGI as part of international human rights law. This work needs to continue. For that its essential that in the 41th session of the Human Rights Council, states vote to renew the mandate.

As can be seen by the range of countries which the mandate has interacted with as well as the nature of thematic issues which have been engaged with, there has been both depth and breadth in the work undertaken so far.

One part of the task of the Independent Expert in the time going forward will be to ensure that the future reports advance a global understanding of violations affecting persons on grounds of SOGIESC, from the substantial base already established.

After the adoption of the Yogyakarta Principles plus 10, both international law and policy will have to respond to sexual orientation, gender identity, gender expression and sex characteristics as co-equal markers of discrimination. International human rights law has travelled quite a distance from its initial exclusive concern with sexual orientation to then include gender identity to now addressing four coequal markers of discrimination referred to by the acronym SOGIESC. This is an important landmark in the evolving understanding of the forms of discrimination to finally redress the wrongs suffered by historically marginalized sub populations among the broader LGBTI community. The Mandate Holder will have to take forward this new understanding in his work going forward.

New jurisprudential directions have usually emerged from an intense engagement with both international human rights law and the context of violations. The Yogyakarta Principles acknowledge this origin point in preambular paragraph 9, which states that ‘this articulation must rely on the current state of international human rights law and will require revision on a regular basis in order to take account of developments in the law and its application to the particular lives and experiences of persons of diverse sexual orientations and gender identities over time and in diverse regions and countries’

The Independent Expert is uniquely placed to develop new understandings of international human rights law, if he can draw upon a grass roots understanding of the changing forms of violations and analyse these violations from within the frame of international human rights law. To get a global sense of the pattern of violations, if a new Independent Expert is appointed, he/she/they could initiate a series of consultations across the different regions of the world, which would feed in experiences, narratives and perspectives which can be the basis of new jurisprudential thinking.

To signpost two possible areas in which the jurisprudence could be strengthened:

  • There is strong documentation about the human rights violations faced by persons of diverse SOGIESC who engage in sex work.[1] The violations suffered are egregious including torture, illegal detention, sexual violence besides violations of socio-economic rights. The community of persons who engage in sex work fall at the intersections of many forms of marginalisation including class, race and caste and there is indeed a necessity for sustained and systematic attention by the UN system to these egregious forms of violation. Principle 33 B of the Yogyakarta Plus 10, calls on states to ‘Repeal other forms of criminalisation and sanction impacting on rights and freedoms on the basis of sexual orientation, gender identity, gender expression or sex characteristics, including the criminalisation of sex work, abortion, unintentional transmission of HIV, adultery, nuisance, loitering and begging.’ It’s imperative that this understanding of the impacts of criminalisation be deepened in the future.
  • The lives, experiences and violations suffered by LGBTI communities around the world have been historically invisibilized. The issue of invisibility of violations suffered is particularly stark when it comes to the intersex community whose experiences of ‘genital normalizing surgery’ at birth, though now recognized as ‘torture’ by international human rights law still continues to be seen as ‘normal’ and ‘acceptable’ in large parts of the world. This has resulted in untold suffering to intersex persons which has yet to be acknowledged in any significant sense. It is emerging from this context that the demand for the right to truth (both the truth as to the individual violation suffered by intersex persons and the collective truth about the violations suffered by the intersex community) has begun to be articulated and is now enshrined in Principle 37 of the Yogyakarta Principles plus 10 which is the right to truth. Developing this dimension of the human rights framework is to acknowledge that the violations suffered on grounds of SOGIESC have not only an individual dimension but also a collective dimension. Taking forward the collective dimension of Principle 37 could take the form of apologies, pardons, monetary compensation, building of spaces of memory to acknowledge the violations etc. In short, the collective dimension of human rights violations suffered on grounds of SOGIESC awaits further development.

With respect to the other dimensions of the mandate, be it the country visits or the letters of allegation, as has been shown they are a significant mechanism for putting the policies of a country in the global spotlight. As such these aspects of the mandate and in particular, ‘letters of allegation’   should be used more effectively by the LGBTI community.

To not renew the mandate would be a huge setback for the global LGBTI movement as it would violate the principle of non-retrogression. That is, rights once recognized, can’t be taken away without adequate and proper justification. [2]

The mandate of the SOGI Independent Expert has ensured a sustained and committed focus on violations on grounds of SOGI and this focus has to continue in the time going forward. It is for all these reasons that its vital that mandate be renewed so that LGBTI struggles can continue to draw upon the work of the Independent Expert as a resource for advocacy at national, regional and international levels.


[1] Boglarka Federka and Lukas Berredo, The vicious circle of violence: Trans and gender-diverse people, migration, and sex work, http://transrespect.org/wp-content/uploads/2018/01/TvT-PS-Vol16-2017.pdf
[2]In General Comment No. 22, which specifically deals with the topic of sexual and reproductive health, the CESCR observed:
Retrogressive measures should be avoided and, if such measures are applied, the State party has the burden of proving their necessity. This applies equally in the context of sexual and reproductive health. Examples of retrogressive measures include the removal of sexual and reproductive health medications from national drug registries; laws or policies revoking public health funding for sexual and reproductive health services; imposition of barriers to information, goods and services relating to sexual and reproductive health; enacting laws criminalizing certain sexual and reproductive health conduct and decisions; and legal and policy changes that reduce oversight by States of the obligation of private actors to respect the right of individuals to access sexual and reproductive health services. In the extreme circumstances under which retrogressive measures may be inevitable, States must ensure that such measures are only temporary, do not disproportionately affect disadvantaged and marginalized individuals and groups, and are not applied in an otherwise discriminatory manner.

 

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