Report on decriminalisation and anti-discrimination measures


Published
19 July 2017
Author
Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity
Presented
To the General Assembly at its 72nd session
Link

Summary

The theme of the present report is “Embrace diversity and energize humanity”. The report highlights key developments in 2017, particularly in regard to:

  • the progression of human rights law and practice at the international and national levels;
  • intersectionality between sexual orientation and gender identity and other issues concerning violence and discrimination; and
  • dialogue and cooperation with Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity and stakeholders.

Two of the various underpinnings introduced in the Independent Expert’s first report (A/HRC/35/36) are addressed in the present report: the decriminalisation of consensual same-sex relations and gender identity and expression, and effective anti-discrimination measures.

The expert includes an overview of country situations, as highlighted by various actors through submissions sent to the Independent Expert. The report calls for reform of the laws, policies and practices which criminalize consensual same-sex relations, as well as those relating to gender identity and its expression. Pending repeal of discriminatory laws, the preferred policy is to desist from applying such negative laws and policies. Effective anti-discrimination measures are also critically needed concerning laws, policies and other actions.

Read the press release

Watch the interactive dialogue at the 34th session of the General Assembly

Key findings

In his report, the Independent Expert expresses concern that a number of countries criminalize consensual same-sex relations as well as gender identity and its expression. He notes that changes are possible, and highlights the role of checks and balances at national level, together with the role of stakeholders to help energize the path to reform and compliance with international standards.

With regard to anti-discrimination laws and policies, the Independent Expert underscores the need to ensure effective practical implementation, correlated with the need for a holistic approach interlinking laws and policies with responsive programming, case enforcement in the courts, protection mechanisms, resources, data, education and capacity-building, accountability and redress, as well as participation.

The Independent Expert calls on States to reform the laws, policies and practices which criminalize consensual same-sex relations, transgender persons in relation to gender identity and its expression and other vague laws used to arbitrarily detain and harass LGBT persons. Pending reform, he recommended that States desist from applying such laws and policies. He also noted that the adoption of effective anti-discrimination measures by States is critically needed.

Methodology

Open consultation (2017)

The Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity convened a public consultation in January 2017 to give States, UN bodies and stakeholders the opportunity to exchange views with the Independent Expert.

The Independent Expert addressed the following five linchpins, interrelated and mutually reinforcing, that are instrumental in addressing the challenges of violence and discrimination based on sexual orientation and gender identity:

  • Decriminalisation
  • Destigmatisation
  • Legal recognition of gender identity
  • Cultural inclusion with gender-and-sexual diversity
  • Empathisation

See concept note, programme and guiding questions

In the context of this consultation, he received almost a hundred submissions. See the graphics below for breakdowns by stakeholder type and region.


Call for inputs

The Independent Expert also sent a questionnaire in May 2017 requesting inputs regarding the five underpinnings mentioned above, with a particular focus on the following areas:

  • the current situation in the country/region;
  • key laws, policies and practices, including good practices; and
  • legal cases, including court judgements.

Almost 80 inputs received in reply to the questionnaire. See breakdowns by stakeholder type and region below.


Through these means, the Independent Expert received the input of 180 stakeholders. He took these into consideration when elaborating the present report, as well as his 2018 and 2019 reports.