Any views expressed in this article are those of the author and not of Thomson Reuters Foundation.
By Gabriela De Cicco
In June 2011, the United Nations Human Rights Council (UNHRC) passed Resolution 17/19, the first UN resolution ever to bring specific focus to human rights violations based on sexual orientation and gender identity.
In November 2011 the High Commissioner for Human Rights released a ground breaking Report on discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity.
A year after the passing of Resolution 17/19 AWID talked to Radhika Chandiramani about the relevance of this report on LGBTI Human Rights.
Human rights violations based on actual or perceived sexual orientation and gender identity are a global fact. In recent decades, LGBTI (lesbian, gay, bisexual, transgender and intersex) organizations have strengthened their work exposing these violations of their rights at the regional (like the Organization of American States system in the LAC region) and international (United Nations system) level.
State response to these human rights violations has often been partial or non-existent, leading to full impunity in some cases. In 2007, civil society experts introduced the Yogyakarta Principleson the application of international human rights law in relation to sexual orientation and gender identity issues. The Principles affirm international standards that are legally binding on States.
Last year, South Africa, where “corrective rape” of lesbians is one of the most common forms of violence, presented Resolution 17/19 along with Brazil and 39 additional co-sponsors from all regions of the world. It was passed on June 17, 2011 with 23 in favour, 19 against and 3 abstentions. In passing the Resolution, the Council requested the UN High Commissioner for Human Rights to commission a study on discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity and how international human rights law can be used to end violence and related human rights violations based on sexual orientation and gender identity.
AWID: Why was the release of this Report so ground breaking?
Radhika Chandiramani (RC): The very spirit of human rights means that everyone has them simply because we are all human. So by this logic LGBTI people have the same human rights as anyone else. However, there are acts of violence against people who do not conform to gender and sexual norms, everywhere, in every region of the world. Violations range from psychological intimidation to detention, torture, ‘corrective’ rape, and even death. Why should people not be free to love whoever they want and to express their gender in the way that feels true to them? Why should they be discriminated against in access to education, health care, employment, and housing? In addition to this, there are laws criminalizing same-sex sexual activity in 78 countries and penalizing it with death in five – Iran, Mauritania, Saudi Arabia, Sudan and Yemen.
UN mechanisms have documented such violations of human rights for close to two decades. Therefore, it was very important that the UNHRC commissioned this report to document discriminatory laws and practices and acts of violence against people because of their sexual orientation and gender identity and how international human rights law can be used to end this violence and the violations of people’s human rights.
The UN High Commissioner for Human Rights, Navi Pillay, studied the situation based on earlier reports to the UN, data and reports from regional organisations, some national authorities as well as NGOs. This report is significant in that it is the first UN report that provides details about the violations and discrimination faced by LGBT people around the world because of their real orperceived sexual orientation and gender identity. What is important to underscore is that the report mentions discrimination and violence based on perceived sexual orientation and gender identity. It also refers to intersex people in some parts of the text.
In the report, the High Commissioner called on all States to protect the human rights of LGBT people and to repeal laws that criminalise same-sex sexual activity. This is a very significant report for all these reasons.
AWID: Is the existing international human rights framework enough to address the LGBTI human rights violations?
RC: The international human rights framework is just that – a framework to guide the conduct of States. On its own it can never be enough. It has to be implemented and monitored and States have to be held accountable for their lapses both at home and also in the international sphere. The Universal Periodic Review process is also a good avenue to pursue these issues. It allows for States to monitor each other and puts pressure on them to comply with human rights standards. Within the international human rights framework, activists can also prepare civil society reports that reveal the actual situation on the ground and not just the public face that the government would like to show the world.
The existing international human rights framework calls on States to repeal laws that criminalise consensual same-sex sexual activity between adults. This is a good step, but changing laws is not sufficient. It is only one step in a long journey. In order to address discrimination and violations, we also need to work towards change at the social level. And we need to do this very carefully. In some cases, applying ‘international’ pressure can boomerang because some countries perceive it as a threat to their own sovereignty or an attempt to impose a ‘Western agenda’. There are instances where well meaning but misguided petitions and signature campaigns have led to effects quite different from what was intended.
AWID: What is the role of culture and fundamentalisms in discussions on violence and discrimination based on sexual orientation and gender identity?
RC: Culture varies from place to place but human rights do not. Human rights are also not static, they are concepts in evolution and they highlight particular issues as the human rights framework evolves to cast its light on aspects that may not have been previously been considered. Cultural sensitivity cannot be an excuse.
Those religious groups that make claims based on their interpretation of religious texts are free to do so because of the right to freedom of religion. But human rights advocates cannot engage with them on religious terms or on terms of morality. We have to engage with them in terms of rights.
Arguments of religion and culture are shifting and subjective; there is no point in our using them. In the case of Section 377 of the Indian Penal Code - the law that earlier criminalized ‘carnal intercourse against the order of nature’ - the argument of culture and public morality was used by the group that wanted the law to be retained. The lawyers representing the groups of activists who had asked that the law be read down argued on the principles of rights to life and liberty, equality and non-discrimination. In July 2009, the Delhi High Court upheld the principles of the Constitution and stated that constitutional morality stood above public morality. Similarly, the Secretary-General of the United Nations said in a speech on Human Rights Day 2010, “As men and women of conscience, we reject discrimination in general, and in particular discrimination based on sexual orientation and gender identity ... Where there is a tension between cultural attitudes and universal human rights, rights must carry the day…”
AWID: How can activists use this report as a practical tool for monitoring and demanding that States ensure respect for the human rights of the LGBTI persons?
RC: The Report lists all the obligations that States have under international human right law to prevent violence and discrimination based on sexual orientation and gender identity. This is helpful because activists can use these to demand that States fulfill their obligations.
The report highlights many different kinds of discrimination and violations including homophobic bullying and intimidation. Every culture manifests discrimination and violence in different ways. Activists can use this report to identify how particular forms of discrimination manifest in their own countries and what they can do about it. The report also contains a section on initiatives developed by State and non-State actors to prevent and address violations of rights.
Often attention is not brought to violations because of lack of adequate documentation. Where these do not exist, activists can develop systems to document incidents of discrimination and violence and make these public. Further, activists can contribute to processes at the national human rights councils as well as the United Nations Human Rights Council and other international bodies.
- Radhika Chandiramani is the Executive Director of TARSHI (Talking About Reproductive and Sexual Health Issues), an NGO based in New Delhi, India, that works on issues of sexuality and rights.
- The Principles were developed and unanimously adopted by a distinguished group of human rights experts, from diverse regions and backgrounds, including judges, academics, a former UN High Commissioner for Human Rights, UN Special Procedures, members of treaty bodies, NGOs and others.
- In further readings you can find the latest ILGA report: “6th State-Sponsored Homophobia Report”
- Scott Long cautions us against this in his article available at: http://paper-bird.net/2012/05/16/four-sodomy-sentences-in-iran-on-not-learning-from-our-mistakes/
- Ensure accountability for killings and other acts of violence based on sexual orientation and gender identity; prevent and investigate all reported incidents of torture and other forms of cruel, inhuman or degrading treatment on grounds of sexual orientation and gender identity; recognise that persecution on account of one’s sexual orientation or gender identity may be a valid basis for an asylum claim, decriminalise consensual relations between adults of the same sex, and abolish the death penalty for offenses involving consensual sexual relations; include sexual orientation and gender identity in all anti-discrimination legislation; ensure the rights to freedom of expression, association and assembly to all, regardless of sexual orientation or gender identity; provide sensitisation and awareness-raising for police and other law enforcement officials, amongst others. Source: http://arc-international.net/global-advocacy/human-rights-council/hrc19/sogi-panel-backgrounder