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LGBTI Rights and the UN: Where To From Here?

BY PAULA GERBER / GlobalPost

Analysis: If the United Nations builds on steps it has taken on LGBTI rights in the recent past, it may prove to be an antidote to the increased violence and persecution against LGBTI people around the world.

UnIn 2014, one can barely read the news without coming across a story concerning lesbian, gay, bisexual, transgender or intersex (LGBTI) persons. Invariably these stories relate to violence, discrimination or other human rights violations inflicted on individuals because of their sexual orientation or gender identity/expression.

Occasionally, a good news story creeps in, like the recent legalising of marriage for same-sex couples in the United Kingdom, France and New Zealand. But more often than not, the story is about gay bashing in Russia, draconian homophobic laws being enacted in various African countries, or the Indian Supreme Court re-criminalising consensual sexual conduct between men, after the Delhi High Court struck down the relevant provision of the criminal code four years ago.

With 81 states still criminalising homosexuality, the plight of LGBTI persons in many parts of the world is dire.

In light of an apparent increase in the intensity and frequency of LGBTI rights violations, it is appropriate to ask: What is the United Nations doing in response? And what more could it be doing?

There are three UN bodies that are particularly useful to consider, namely the Human Rights Committee, the Human Rights Council and the Office of the High Commissioner for Human Rights.

MalawiHUMAN RIGHTS COMMITTEE

As the body responsible for monitoring state parties’ compliance with the International Covenant on Civil and Political Rights (ICCPR), the Human Rights Committee has an important role to play in promoting and protecting the rights of LGBTI persons.

There are three ways in which it can do this, namely, in its Concluding Observations, in its General Comments and in its Views on individual communications. The degree to which it has succeeded in raising LGBTI rights through these different avenues is variable.

The Human Rights Committee’s approach to raising violations of the rights of LGBTI persons in its Concluding Observations has been patchy. Although it has improved in recent times, there have still been instances where the Human Rights Committee has failed to explicitly address the fact that a state continues to criminalise homosexuality in clear breach of the ICCPR.

In 2014, the Committee will review 18 states. Of those, Sierra Leone, Malawi, Sudan, Burundi and Sri Lanka still criminalise homosexuality.

Of course, many of the states where homosexual conduct is legal also have significant LGBTI rights violations, because, for example, there is no anti-discrimination legislation that protects sexual minorities.

One only has to look at recent events in Russia, where homosexuality was legalised in 1993, to know that decriminalisation is only the start of the journey towards dignity and equality for LGBTI persons, not the end.

Logo_unThe Human Rights Committee should therefore include recommendations not only about decriminalising homosexuality in its Concluding Observations for these 18 states, but also other reform measures necessary to ensure that LGBTI persons can be free and equal.

The Human Rights Committee has a woeful record when it comes to including LGBTI persons in its General Comments. To date the Committee has published 34 General Comments and not one of them has mentioned LGBTI rights. This is in stark contrast to other treaty committees, which have all made explicit reference to sexual minorities in at least one General Comment.

There may be signs that the Human Rights Committee is ready to catch up. General Comment 35 on Article 9 (liberty and security of person) is currently being drafted and does include a reference to sexual minorities. Let’s hope this language is retained in the final version.

The Human Rights Committee has considered five communications from LGBTI persons and in four of those cases found there had been breaches of the ICCPR. Most recently, it found that Russia’s gay ‘propaganda’ laws are inconsistent with the right to freedom of expression, read in conjunction with the right to freedom from discrimination (Fedotova v Russian Federation, 2012).

Thus, while the Human Rights Committee is making good progress with promoting and protecting the rights of LGBTI persons in its Concluding Observations and Views, there is definite room for improvement in its General Comments.

SogiHUMAN RIGHTS COUNCIL

The Human Rights Council is also making a positive contribution to the UN’s efforts to promote and protect the rights of LGBTI persons, most particularly through its landmark resolution on sexual orientation and gender identity in 2011 (SOGI Resolution) and through comments and recommendations made during the Universal Periodic Review Process (UPR).

The SOGI Resolution was the first ever passed by a UN body on LGBTI rights. It is now imperative that the Council build on this success by adopting a follow up resolution further condemning the ongoing discrimination and violence against LGBTI persons, and establishing a mechanism or process to ensure that the Human Rights Council can identify and respond to violations of LGBTI rights in a systematic, coordinated and ongoing manner.

(image: vote on SOGI Resolution)

The continuing criminalisation of homosexuality has been raised with a number of states during the UPR and many have accepted recommendations that they repeal these laws, including Mauritius, Nauru and Seychelles. That LGBTI issues are being raised as part of the UPR is pleasing, particularly as 11 of the 47 current members of the Human Rights Council are states where homosexuality is still a crime (Algeria, Botswana, Kenya, Kuwait, Maldives, Morocco, Namibia, Pakistan, Saudi Arabia, Sierra Leone and United Arab Emirates). It is hoped that in 2014, the HRC will consistently raise LGBTI issues within the UPR, whether it be about the criminalisation of homosexuality, the absence of anti-discrimination legislation or violence against sexual minorities.

OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS (OHCHR)

PillayThe Free & Equal campaign launched by OHCHR last year is a standout achievement, but by no means does it represent the extent of the Office’s work to promote LGBTI rights. High Commissioner Navi Pillay has been a vocal critic of recent moves to oppress LGBTI people in Africa even further. In relation to new draconian Nigerian anti-gay legislation, she said:

"Rarely have I seen a piece of legislation that in so few paragraphs directly violates so many basic, universal human rights. Rights to privacy and non-discrimination, rights to freedom of expression, association and assembly, rights to freedom from arbitrary arrest and detention: this law undermines all of them."

Another OHCHR achievement is the drafting of the first UN report documenting discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity. This 2011 report was prepared pursuant to a request by the HRC in the SOGI Resolution.

Finally, in 2012, OHCHR published a very helpful booklet that sets out the core obligations that states have towards LGBTI persons, and describes how various UN mechanisms have applied international human rights law to LGBTI persons.

Fortunately, we can be confident that OHCHR will continue its work to increase respect for the rights of LGBTI persons, because the high commissioner has said as much in her annual report to the General Assembly.

If the Human Rights Committee, Human Rights Council and OHCHR build on some of the important steps they have taken on LGBTI rights in the recent past, it may prove to be an antidote to the increased levels of violence and persecution we are witnessing being inflicted on LGBTI people in many parts of the world.

Dr Paula Gerber is an Associate Professor at Monash University Law School and Deputy Director of the Castan Centre for Human Rights Law.

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Comments

  1. What ever happened to that couple from Malawi [the one in handcuffed above] ?

    Posted by: Andy | Mar 10, 2014 8:18:22 PM


  2. Dint hold your breath. The UNhas a spectacular record of producing very expensive conferences, paying employees enormous salaries, issuing thorough and fancy reports ( on glossy paper!) and accomplishing nothing.

    The people are generally well meaning but utterly incompetant. Its a cushy and prestigious b for the politiclaly well connect pd whio are too stupid to actually do anything else.

    At the end of the day, all the un will do is ask these countries politely, wont you please treat gays as humans?

    Posted by: Randy | Mar 10, 2014 8:36:20 PM


  3. How effective has the UN been for women? Or people suffering genocide? I'm not real pleased with the UN's track record.

    Posted by: Randy | Mar 10, 2014 8:49:06 PM


  4. Unfortunately people are people, regardless of what atrocities, people in power, whether familial or financial will win, there is no such thing as democracy.

    Posted by: Gordon | Mar 10, 2014 9:06:10 PM


  5. LGBTI? LOL!!

    Posted by: roger | Mar 10, 2014 11:36:15 PM


  6. Perhaps the international LGBTA community should simply stop providing any protection to any government official who violates human rights of the LGBTA community. No impunity. No diplomatic immunity. Nothing but punishment since government officials already know they shouldn't be violating the human rights of so many people. Ultimately it falls to the LGBTA community to enforce the human rights of the LGBTA community by punishing violations.

    Posted by: Daniel | Mar 11, 2014 12:50:41 AM


  7. What's the "I" for? I can't keep track of all the non-heterosexuals and differently-gendered we're supposed to identify with.

    Posted by: Knock | Mar 11, 2014 12:56:51 AM


  8. Great article with info I have not seen elsewhere.

    Now - here we go again. I understood the LGBT (no, not GLBT) thing. It was invented because "gay" was mostly synonymous with young men in good shape with mustaches and Levis. It made a point of including men and women and eventually a couple other discriminated against and misunderstood sexually related minorities, although it diluted the essential homosexual angle. It was the acceptable alternative to the same idea expressed as "queer" which never quite got entirely reclaimed, at least among straight people. It was used officially by the president and others. So fine, it served its purpose and still does.

    Now, since Ellen said "Yes I'm gay" years ago the popular concept of "gay" has broadened. It isn't time to add more and more letters to LGBT but to start going back to "gay".

    Please stop with the "I" stuff now.

    Posted by: emjayay | Mar 11, 2014 1:28:40 AM


  9. So glad to see the UN standing up; they've been weak in advocacy of LBGTIYWZ rights.

    Posted by: Randal Oulton | Mar 11, 2014 1:28:54 AM


  10. What about the UN Human Rights Commission's new initiative, Free and Equal? I was surprised it wasn't mentioned at all in the article. Check it out at: www.unfe.org.

    Posted by: Gary | Mar 11, 2014 2:42:43 AM


  11. Tired of global abuses against LGBT people?
    Please consider sending/posting a
    postcard.
    http://www.artpostcard.com/postcard/1027_803245/postcard-for-humanity-message-from-stephen-mead.cfm


    Further details can still be found at:
    http://postcardtoputin.weebly.com/

    Posted by: Stephen Mead | Mar 11, 2014 7:21:36 AM


  12. The U.N. is perhaps the biggest waste of real estate in the world. And, I might add, getting a job there is like suddenly coming into a life-long annuity.
    As you can all see from the articles above, the U.N. is great at drafting reports. Blah Blah. But the bottom line is that they rarely, if ever, act on those reports.

    Posted by: Taylor | Mar 11, 2014 8:30:36 AM


  13. When did we add another letter to the acronym and why? I don't remember voting on this at the last gay agenda meeting.

    Posted by: Chris | Mar 11, 2014 10:56:46 AM


  14. @Knock: An "I" stands for Intersexed (i. e. people who were born with ambiguous genitalia who could not be definitively classified as male or female.)

    Posted by: GregV | Mar 11, 2014 11:35:04 AM


  15. @Chris: You can use whatever acronym you want, with as many or as few groups included as makes sense to you for the context. Intersexed people are, across the world often forced as children into unnecessary surgery to make them fit into society's notions of what they should look like, and that often destroys not only their bodies but their lives.
    Gay people should speak up for the rights of Intersexed people for the same reasons straight people should speak up for the rights of gay people.

    Posted by: GregV | Mar 11, 2014 11:41:23 AM



  16. This is a very informative article on a topic that is rarely covered.

    It's great to see the UN making progress on LGBTI issues. Of course, it is extremely difficult and slow to make progress when some of your own members are ragingly hostile to human rights for LGBTIs, a few of them have the right of veto, and you depend on some others for your finances.

    But that's the world we live in. The UN is better than the alternative.

    Posted by: FYoung | Mar 11, 2014 12:08:44 PM


  17. Thanks for this article and your reporting. What you do is appreciated. 
     
    I posted it to the largest LGBT Group on LinkedIn with over 25,200+ global members to spur members to read your article and to make comment. I also scooped it at Scoop.It on my LGBT Times news mashup. 
     
    Link to group >> http://www.linkedin.com/groups?home=&gid=63687
     
    All LGBT+ and community allies.... please come join me and 25,200+ of your soon to be great connections on LinkedIn. The member base represents 80% of the world's countries.  
     
    It's core value is - Visibility can lead to awareness which can lead to equality. Come stand with us and increase our visibility on the globe's largest professional networking site. Be a professional who just happens to be LGBT - or a welcomed community ally.  

    Posted by: Dennis Velco | Mar 14, 2014 6:29:42 PM


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