The Mandate of the IE on SOGI: What has been achieved, what can we expect and how can it be useful?

By Arvind Narrain

Introduction

Civil society significantly invested in the struggle to establish the new mandate of the Independent Expert on sexual orientation and gender identity (SOGI), and the investment bore fruit with the appointment of Vitit Muntarbhorn as the first Independent Expert on SOGI. Due to Vitit Muntarbhorn being unable to continue his tenure for reasons of ill-health, this position is now occupied by the second Independent Expert on SOGI, Víctor Madrigal Borlioz.  Now that Víctor Madrigal has begun his tenure, it’s an appropriate time to ask what the mandate has achieved and what can be expected of the mandate going forward?

In the discharge of the mandate, the Independent Expert:

  1.  transmits urgent appeals and letters of allegation to States with regard to cases of violence and discrimination against persons on the basis of their sexual orientation or gender identity.
  2.  undertakes fact-finding country visits.
  3.  submits annual reports to the Human Rights Council, and General Assembly, on the activities, trends and methods of work.[1]

Communications and Country Visits

With respect to urgent appeals and letters of allegation, as of February 2018, there have been only four such communications, in total, sent by the Independent Expert concerning rights violations on grounds of SOGI. These were to Peru, Tunisia, Russian Federation and El Salvador. Of the four countries, only El Salvador has responded to the communication.[2]  In comparison, just for the year 2017, the Mandate Holder on Arbitrary Detention sent 87 such communications to various states.[3] The reason for the comparative underuse of this aspect of the SOGI mandate could be because:

  • the mandate holder has not received information which fits the format prescribed to be considered a letter of allegation of urgent appeal;
  • the mandate holder in spite of receiving many communications, has not sent many urgent appeals or letters of allegations to the concerned government;
  • the mandate holder has felt that strategically it made more sense for the communication to go from another mandate holder with whom the subject matter overlaps.

Keeping in mind the strategic concern highlighted above, it is nonetheless important to increase civil society awareness around the mandate and encourage more civil society organisations with a sexual orientation, gender identity, gender expression and sex characteristics (SOGIESC) focus to begin filing communications with the Special Procedures. A recent study on the impact of communications sent by the Special Rapporteur on human rights defenders shows that a majority of respondents felt the communications by the Special Rapporteur had a positive impact in redressing the human rights violation.[4] The study cautiously indicates that greater engagement with the mechanism of the Special Procedures can be of value to human rights activists seeking redress for egregious human rights violations.

In this context of documented value of the Special Procedures, the underuse by civil society organisations engaging with SOGIESC issues of the Special Procedures is striking, especially when we consider that the campaign letter to support the resolution had over 800 signatories from all regions of the world.

The mandate holder has also undertaken one country visit to Argentina.[5] Country visits can be a powerful tool for bringing visibility to human rights violations within a national context and the decision on which countries the new Independent Expert on SOGI chooses to visit will be awaited with great interest.

Setting a policy direction: The Reports of the Independent Expert

Professor Vitit Muntarbhorn in his role as Independent Expert has come out with two reports submitted to the Human Rights Council and the General Assembly respectively in 2017. The respected human rights scholar Phillip Alston caustically characterized UN Reports as “painfully boring… in which everything said is factually correct and yet where nothing really stimulates fresh thinking.”[6]  Alston went on to say that, “clearly factually correct reports are crucial, but reports which stimulate fresh thinking are equally important, and the present one attempts to be both”.[7] Keeping this high threshold in mind, arguably Prof. Vitit Muntarbhorn in his reports does end up highlighting new factual situations which can also stimulate new thinking.

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. [8]

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, Colombia, 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 like Pakistan, Prof. Muntarbhorn aims to build a larger consensus on the ground of the Universal Declaration of Human Rights (UDHR) i.e. that no persons should be subject to violence and discrimination. Prof. Muntarbhorn has been stressed vigorously 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 Organisation of Islamic Cooperation (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.

Do UN reports stimulate fresh thinking?

The next report to the 38th Session of the Human Rights Council (June 2018) will be submitted by Víctor Madrigal Borlioz from Costa Rica. One hopes that Víctor Madrigal Borlioz will be able to take forward the policy direction which was established by Prof. Muntarbhorn, skilfully navigate the highly politicized environment, and produce reports which, as per Phillip Alston’s injunction, “stimulates fresh thinking”. It’s interesting to note that on the issue of SOGI, the ‘Special Procedures’ have stimulated “fresh thinking” even before the appointment of the Independent Expert.

To cite a few examples…

Leo Heller, the Special Rapporteur on the right to safe drinking water and sanitation analysed the discrimination faced by transgender persons using the lens of gender equality:

People who do not conform to a fixed idea of gender may experience violence and abuse when using gender-segregated sanitation facilities. Gender non-conforming people face harassment in or avoid gender-segregated public toilets altogether out of fear. For example, transgender girls who use the boys’ toilets and transgender boys who use the girls’ toilet in schools are highly vulnerable to bullying, harassment and assault by other students.[9]

Michel Frost, the Special Rapporteur on the situation of human rights defenders, identifies the specific risks faced by defenders of “sexual orientation and gender identity rights”:

Some activists face greater and more specific risks than others. Defenders who challenge social and cultural norms, do not fit stereotypes and prescribed roles, or who challenge power structures in society – such as defenders of sexual orientation and gender identity rights, women defenders, and defenders working on the rights of minorities and indigenous people – are often stigmatized and subjected to threats and attacks from members of society because of who they are or what they do.[10]

Dainius Pūras, the Special Rapporteur on the right to health in his report on mental health concludes that medical pathologization on grounds of sexual orientation and gender identity violates the right to health:

Diagnostic tools, such as the International Classification of Diseases and the Diagnostic and Statistical Manual of Mental Disorders, continue to expand the parameters of individual diagnosis, often without a solid scientific basis. Critics warn that the overexpansion of diagnostic categories encroaches upon human experience in a way that could lead to a narrowing acceptance of human diversity… Mental health diagnoses have been misused to pathologize identities and other diversities, including tendencies to medicalize human misery. The pathologization of lesbian, gay, bisexual, transgender and intersex persons reduces their identities to diseases, which compounds stigma and discrimination. [11]

David Kaye, the Special Rapporteur on the right to freedom of opinion and expression, analysed the role that encryption and anonymity can play in protecting the right to freedom of opinion and expression in a digital context and the particular salience that this has for LBGT persons:

Encryption and anonymity, separately or together, create a zone of privacy to protect opinion and belief. For instance, they enable private communications and can shield an opinion from outside scrutiny, particularly important in hostile political, social, religious and legal environments… The ability to search the web, develop ideas and communicate securely may be the only way in which many can explore basic aspects of identity, such as one’s gender, religion, ethnicity, national origin or sexuality. Artists rely on encryption and anonymity to safeguard and protect their right to expression, especially in situations where it is not only the State creating limitations but also society that does not tolerate unconventional opinions or expression.[12]

Juan Méndez, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment applied the framework of torture to the treatment of LGBTI persons in health-care settings:

In States that permit the modification of gender markers on identity documents abusive requirements can be imposed, such as forced or otherwise involuntary gender reassignment surgery, sterilization or other coercive medical procedures. Even in places with no legislative requirement, enforced sterilization of individuals seeking gender reassignment is common. These practices are rooted in discrimination on the basis of sexual orientation and gender identity, violate the rights to physical integrity and self-determination of individuals and amount to ill-treatment or torture… In many States, children born with atypical sex characteristics are often subject to irreversible sex assignment, involuntary sterilization and genital normalizing surgery, which are performed without their informed consent or that of their parents, leaving them with permanent, irreversible infertility, causing severe mental suffering and contributing to stigmatization. In some cases, taboo and stigma lead to the killing of intersex infants.[13]

Phillip Alston, the Special Rapporteur on extreme poverty and human rights makes the point that, to address forms of extreme inequality one will have to address group based inequality including inequalities based on SOGI. In his analysis:

In many countries, the poorest sector of the population coincides with social and ethnic groups that experience discrimination. It is therefore possible that levels of economic inequality in many countries would be lower today in the absence of discrimination. When dealing with economic inequalities, we should therefore pay specific attention to the overlap between economic inequalities and group-based inequalities (horizontal inequalities), because they can indicate discrimination as an important cause of inequality.[14]

The Office of the High Commissioner for Human Rights (OHCHR) has also produced two pioneering reports on SOGI. The first report addresses critical human rights concerns including forms of violence and discrimination affecting persons on grounds of SOGI and the need to address these forms of violence within the frame of international human rights law.[15] The second report, interalia, broadens the understanding of violations to include ‘many intersex children [who] are subjected to medically unnecessary surgery and treatment in an attempt to force their physical appearance to align with binary sex stereotypes.’ Such procedures are typically irreversible and can cause severe, long term physical and psychological suffering.[16]

Developing a jurisprudence on Sexual Orientation, Gender Identity, Gender Expression and Sex Characteristics

The conclusions of many of the Special Rapporteurs cited above have broadened human rights thinking and pushed the human rights discourse in new directions. These new directions have sedimented into international human rights law through the adoption of the Yogyakarta Principles plus 10 in November of 2017. [17]

Juan Méndez’s understanding of the mutilation suffered by intersex infants as falling within the torture framework is codified in Principle 32 of the Yogyakarta Principles plus 10, which asserts the “right to be free from torture” on the basis of “sexual orientation, gender identity, gender expression and sex characteristics”. In particular Principle 32 notes that, “no one shall be subjected to invasive or irreversible medical procedures that modify sex characteristics without their free, prior and informed consent”.

David Kaye’s understanding of the role that encryption and anonymity play in protecting the right to privacy and consequently the right to hold and express opinions finds reflection in Principle 36 of the YP plus 10 on the “right to the enjoyment of human rights in relation to information and communication technologies”. Principle 36 notes, “secure digital communications including the use of encryption, anonymity and pseudonymity tools are essential for the full realization of human rights”.

Leo Heller’s understanding that the violence faced by those who do not conform to a fixed idea of gender while using sanitation facilities should be redressed, stands codified in Principle 35 of the YP plus 10, which states that, “Everyone has the right to equitable, adequate, safe and secure sanitation and hygiene, in circumstances that are consistent with human dignity, without discrimination, including on the basis of sexual orientation, gender identity, gender expression or sex characteristics.”

Michel Frost’s focus on the specific problems faced by human rights defenders on grounds of SOGI finds expression in Additional State Obligation to Principle 27 in the YP plus10 relating to the right to promote human rights.  Additional State Obligation F. enjoins states to: “Enact a law, including to establish, designate or maintain an adequately resourced mechanism, for the protection of defenders of the rights of persons who experience or are at risk of violations on the basis of sexual orientation, gender identity, gender expression or sex characteristics”

Dainius Pūras’s concern with respect to the human rights implications of the pathologization of LGBTI lives is addressed by Additional State Obligations relating to the right to health (Principle 17) in the YP plus10. Additional State Obligation S. enjoins states to, “Ensure inclusion of affirmative material on sexual, biological, physical and psychological diversity and the human rights of people of diverse sexual orientations, gender identities, gender expressions and sex characteristics in medical curricula and continuing professional development programmes”.

Phillip Alston’s concern with the impact of discrimination in deepening poverty is codified by Principle 34 of the YP plus10, which reads, “Everyone has the right to protection from all forms of poverty and social exclusion associated with sexual orientation, gender identity, gender expression and sex characteristics. Poverty is incompatible with respect for the equal rights and dignity of all persons, and can be compounded by discrimination on the grounds of sexual orientation, gender identity, gender expression and sex characteristics”.

Can the Independent Expert strengthen SOGIESC jurisprudence?

The newly appointed Independent Expert thus has the opportunity to build upon the excellent work of the Special Procedures and further cement their understanding as part of international human rights law. One part of the task of the Independent Expert will be to synthesize these new directions and 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 sediment this new understanding in his work going forward.

The Independent Expert also has the opportunity to develop a deeper understanding of international law as it applies to issues of SOGIESC. 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, the Independent Expert could initiate a series of consultations across the different regions of the world fed by experiences, narrative 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.[18] 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.

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

Apart from contributing to emerging jurisprudence on SOGIESC, 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 SOGIESC 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.[19] 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 SOGIESC. 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.

Conclusion

The work of the Independent Expert is poised at an interesting stage. Post the intensive efforts to eviscerate the mandate ever since it was established, it is possibly as secure as it can be. Now we need to turn to the difficult work of ensuring that the mandate does indeed contribute to the various brave efforts around the world to challenge the status quo and ensure a more secure world for LGBTI persons.

[1] http://www.ohchr.org/EN/Issues/SexualOrientationGender/Pages/Index.aspx (accessed on 12.02.18)
[2] https://spcommreports.ohchr.org/TmSearch/Results (accessed on 13.02.18)
[3] https://spcommreports.ohchr.org/TmSearch/Results?page=1  ( accessed on 13.02.18)
[4] In 25% of the cases the respondents felt that there was a definite impact and in 40% of the cases there was a probable impact. However, as the author notes, ‘impact’ is difficult to measure when complainants pursue a range of strategies.  See Janika Spannagel, Chasing Shadows, GPPI, 2018. 
[5] The Report has not yet been released and any analysis of the country visit will have to await the release of the Report.
[6] Phillip Alston is the presentation of his report on ‘Extreme Poverty and Human Rights’ to the Human Rights Council, cites Jean Marie Guehenno to make this point.  https://documents-dds-ny.un.org/doc/UNDOC/GEN/G16/088/20/PDF/G1608820.pdf?OpenElement 
[7] Ibid.
[8] https://documents-dds-ny.un.org/doc/UNDOC/GEN/G17/095/53/PDF/G1709553.pdf?OpenElement  (accessed on 10.02.18)
[9] https://documents-dds-ny.un.org/doc/UNDOC/GEN/G16/166/97/PDF/G1616697.pdf?OpenElement
[10] https://documents-dds-ny.un.org/doc/UNDOC/GEN/G16/015/56/PDF/G1601556.pdf?OpenElement
[11] https://documents-dds-ny.un.org/doc/UNDOC/GEN/G17/076/04/PDF/G1707604.pdf?OpenElement
[12] https://documents-dds-ny.un.org/doc/UNDOC/GEN/G15/095/85/PDF/G1509585.pdf?OpenElement
[13] https://documents-dds-ny.un.org/doc/UNDOC/GEN/G16/000/97/PDF/G1600097.pdf?OpenElement
[14] http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/29/31
[15] A/HRC/19/41
[16] A/HRC/29/23
[17] http://yogyakartaprinciples.org/wp-content/uploads/2017/11/A5_yogyakartaWEB-2.pdf
[18] 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
[19] 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.