Strasbourg, 17 November 2016
The UN Human Rights Council in its resolution 32/2 this year established the mandate of Independent Expert on the Protection against Violence and Discrimination based on Sexual Orientation and Gender Identity (SOGI), operational since 1 November 2016.
The mandate is thematic and covers the globe. The UN Independent Expert is appointed for a three year term, renewable once, and monitors the situation on behalf of the UN, submitting reports to the UN in Geneva and New York under the mandate. He/she can also take complaints from victims and act on their behalf by issuing urgent appeals and letters of allegations to the concerned authorities, thereby exercising leverage and pressure for compliance with international human rights law. This is complemented by field visits to countries to enable lessons learned from the ground to be shared in the global setting. The expert is not a UN employee but a
pro bono person, acting independently and objectively in assessing the situation, under the UN umbrella.
On the positive side, there have been many constructive developments in recent years to nurture a sense of understanding and corresponding action in favour of the rights of all people, irrespective of their SOGI. Simply put, sexual orientation concerns a person’s sexual inclination towards others (homosexual, heterosexual or bisexual); it has an external dimension. Gender identity concerns a person’s self-identification of gender which is not necessarily the biological sex assigned at birth; it has an internal dimension. In practice, UN programmes and other actors/activities use the term SOGI to cover Lesbian, Gay, Bisexual, Transgender (LGBT) people, and there has also been increasing attention to the rights of intersex people. A number of countries on every continent have seen reforms of antiquated and obstructive laws and policies, even though the progress is not always universal. Court cases have vindicated the rights of LGBTI people in many countries in all regions. New laws and policies at the national level in several countries, including national Constitutions, now refer directly to SOGI and or LGBTI people for the purpose of entrenching human rights and inclusive protection.
At the heart of the discourse is particularly the principle of non-discrimination underlined by the 1948 Universal Declaration of Human Rights and developed by international human rights law and practice. As evidenced by the application of the wide range of international human rights treaties, international human rights bodies and procedures, ranging from the human rights treaty bodies, their general comments and recommendations, the Universal Period Review of the UN, the coverage by the UN Special Procedures in regard to SOGI related violations, and UN resolutions and studies on SOGI, the international human rights system has been strengthening the promotion and protection of the rights of LGBTI people progressively. The protection of persons based on their SOGI and the mandate of the UN Independent Expert are based on international law, complemented and supplemented by State practice.
On a disquieting note, there lingers a penumbra of negativity which demands more effective counteraction immediately. Violence and discrimination in relation to SOGI rear their ugly heads with rampancy, in a variety of forms and situations. Instances of murder, killings, rape, mutilation and other cruel treatment are well documented in various parts of the world and by many sources. At times, LGBTI communities are affected by common violations such as stereotyping and stigmatization, while at times, each community – L, G, B, T or I - is impacted upon specifically and distinctly; the situation is not homogeneous. For example, while lesbian, gay and bisexual people are particularly disadvantaged by laws criminalizing same-sex sexual relations, transgender persons often suffer from laws and practices which criminalize their appearance, subject them to forced sterilization and block their desire to change their gender on official documents. While in various settings, lesbians are subjected to corrective rape in the warped belief that this will change their ways, intersex persons (i.e. persons with atypical sex characteristics, such as persons with both male and female organs) are subjected to coerced medical surgery or treatment from a young age.
Some 70 countries still criminalize same-sex relations causing many injustices for lesbian, gay and bisexual communities. While there has been much coverage in regard to gays in this regard, there has been less visibility in regard to lesbians and bisexuals, even though they are also impacted upon. In a recent study, out of the 70 countries mentioned, some 40 criminalize sexual conduct between lesbians. Bisexuals (male or female) are also caught in the criminalization web.
There is also the challenge of pathologization and implications for the medical, biological and scientific sectors. In the not too distant past, even at the global level, homosexuals were classified as abnormal, as suffering from an illness. This has been rectified to some extent, but at the national level, the pathologization of LGBTI people still prevails in many settings. Some psychiatrists (wrongly) attempt to use conversion therapy to change gays into heterosexuals. Transgender and intersex persons are still classified medically as abnormal. Labels such as “gender identity disorder” and “dysphoria” add to the stereotyping and stigmatization and are strongly linked to human rights violations in the medical field.
The lack of status recognition for those who simply wish to be what they are is the rule rather than the exception in several settings. In many countries, transgender persons are unable to change their birth certificate or identification cards and passports to recognize their gender, resulting in many negative consequences. They are laughed at, bullied, violated in multiple forms and many times ranging from situations at schools to universities, from the work place to hospitals, from immigration control to prisons and access to toilets. Even in some countries where they are now able to change that status, they are forced to undergo surgery, leading to human rights violations and other complications, such as access to medical care, medical costs and linkage with the insurance sector and denial of medical coverage. With regard to intersex persons, their plight was invisible till recently. A major predicament is that from a young age, they are operated upon without consent to change their appearance – with others imposing the imputed gender-sex on them, thus causing interminable damage and trauma.
Various historical antecedents and illiberal interpretations of religions and beliefs aggravate the situation as part of the political-cum-cultural challenge. The classic case is the variety of laws in a number of countries derived from the colonial era which still criminalize same-sex sexual conduct, even when and where the colonizing power discarded such laws a long time ago. On another front, while care, kindness and consideration are at the heart of religions in their common humanity and linkage with human rights , various interlocutors misconstrue or resort to less than liberal interpretations to justify violence and discrimination. At times, the misconstruction is for political purposes to constrain the call for a more pluralistic environment where a variety of ideas, beliefs and public formations and associations, complemented by respect for privacy and intimacy, should enjoy much needed space. This is hampered by the overuse of national security and public morality by the authorities in some settings, for their political agenda, to curb freedom of speech and peaceful assembly, as also in regard to LGBTI people.
Stereotyping, stigmatization and ostracism are often the result of a non-liberal mind and non-peaceful behavior, currently witnessed by the proliferating hate speech, often rampant on media and social web/networks, which fuels the antagonism steeped in homophobia, transphobia and (even) humanrightsphobia. This is compounded by overemphasis on the binary approach to gender-sex and inadequate integration of gender-and-sexual diversity in the educational setting and people’s upbringing from a young age which should open the door to a less binary, or non-binary, understanding. The vortex of violence and discrimination, in their multiple forms, often starts in the home, at school, in the community and in the surrounding environment, with violations breeding violations.
Thus future actions to overcome violence and discrimination should aim for decriminalization, depathologization, status recognition, cultural liberalization, and empathization through a human rights sensitive educational and socialization process from childhood onwards, on the basis that prevention is better than cure.
Vitit Muntarbhorn is Professor Emeritus at the Faculty of Law, Chulalongkorn University, Bangkok. He is currently UN Independent Expert on the Protection against Violence and Discrimination based on Sexual Orientation and Gender Identity. This is an excerpt from a speech delivered at the European Governmental LGBTI Focal Point Network Roundtable, Council of Europe, Strasbourg, 17 November 2016.