Dare to speak its name: sexual orientation, gender identity and human rights at the UN

by Kate Donald

On June 17th, the UN Human Rights Council passed a resolution on human rights, sexuality and gender identity, which followed a joint statement on these issues at the March session of the Council.

The resolution has been hailed as 'groundbreaking'; is it really cause for celebration?

It is a sad fact that this is the first UN resolution to specifically focus on human rights violations based on sexual orientation and gender identity. The inclusion of gender identity is arguably a particularly progressive step forward. However, the content of the resolution is otherwise fairly weak.
Other than affirming the universality of human rights, the resolution merely 'express[es] grave concern' at acts of violence and discrimination committed on the basis of sexual orientation and gender identity, rather than, for example, declaring such discrimination and violence a simple human rights violation or demanding that states take action against such events. Owing to this 'grave concern', it takes the less-than-radical action of requesting the Office of the High Commissioner on Human Rights to write a study, deciding to convene a panel discussion next year, and avowing to 'remain seized of the issue.'

Human rights law has always prohibited discrimination as one of its most basic tenets. The resolution is consistent with other regional and national jurisprudence and, in fact, less progressive than some. Yet, the resolution only just passed, with 23 votes – 19 states voted against and 3 abstained.  The rhetoric of opponents is startling – although generally their statements do not openly question the universality of human rights, they implicitly and explicitly deny that these categories of 'homosexual' or 'transgender' exist or are legitimate, and that the behaviour associated with them is worthy of protection. The representative from Nigeria criticized South Africa (who tabled the resolution) for breaking ranks with African countries and siding with 'the West', claiming that more than 90 percent of the African people did not support this resolution.

There is no doubt that sexual orientation and gender identity (SOGI) issues are one of the big weak spots in the UN system, a victim of cultural relativity, persistent counter-lobbying by the Vatican and a motley coalition of Arab and African States, as well as a weak political commitment from the supposedly more progressive States.  Moreover, there is no general upwards trend or 'progress', but rather marked inconsistency. In the same Human Rights Council session, a reference to "women who face sexuality-related violence" was removed from the final version of another resolution focused on the elimination of violence against women. Only in 2009, the members of a UN General Assembly sub-committee responsible for human rights issues voted without precedent to retrospectively remove a reference to 'sexual orientation' from a paragraph enumerating vulnerable populations in a 10-year-old resolution on extrajudicial executions. (Thankfully, the reference was restored in December last year after a strong civil society campaign.) De facto and de jure discrimination based on sexual orientation or gender identity is still widespread and widely tolerated around the world and includes state-legitimated or -perpetrated violence. This year’s report of the Special Rapporteur on Violence Against Women emphasised that lesbian, bisexual and transgender women have greater vulnerability to  a number of violations, including murder and appalling sexual violence.

Just a week before the Human Rights Council resolution, a Political Declaration on HIV/AIDS was adopted at the UN High Level Meeting on AIDS. This was a big step forward in terms of committing to a rights-based approach to the HIV response. Startlingly, it marked the first time men who have sex with men have been explicitly mentioned as a population at higher risk of HIV in a political declaration on AIDS. However, it fails to make any mention of transgender people.

Clearly, the UN and the international human rights regime, which purports to protect the most vulnerable people in the world, has failed to move consistently forward on this issue. However, no matter how overdue or incomplete, this resolution is an encouraging sign and hopefully stronger action will emerge from it. What is needed is more robust political leadership. The stance of the Obama administration is welcome in this regard, as is that of South Africa and various South American countries who have provided leadership on this issue at the Human Rights Council.

Hopefully this marks a significant step in the establishment of an international norm that will eventually take hold, making it more difficult, and eventually impossible, for States to justify or maintain discriminatory laws or to fail to take meaningful action against discrimination or violence against LGBT people.

Amongst the shocking facts the OHCHR study will have to report, is that seven countries still apply the death penalty to homosexuals, and 76 criminalise same-sex sexual relations. Clearly, this struggle is urgent.

Further Reading:

  • The ICHRP project on sexuality, health and human rights, undertaken in conjunction with the WHO, will map existing laws, policies and jurisprudence from around the world relating to sexual orientation and gender identity, and other issues  such as sex work and regulation of marriage. Aiming to foster the respect, protection and fulfillment of human rights related to sexuality and sexual health, it will create a knowledge resource base for actors working on sexuality and human rights policy.
  • See also the Yogyakarta Principles for how international human rights law can be applied in relation to SOGI issues.

    About the Author:

    Kate Donald is Research Fellow at the International Council on Human Rights Policy. She works on the ICHRP project on sexuality, health and human rights.

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