UN - Brazilian resolution
EU Priorities for the 60th Session of the UN Commission on Human Rights
Meeting of the Human Rights EU Contact Group, European Parliament, Brussels
3 February 2004
CONTRIBUTION BY ILGA-EUROPE, THE EUROPEAN REGION OF THE INTERNATIONAL LESBIAN AND GAY ASSOCIATION
ILGA-Europe urges the European Union to
- prioritise the protection of LGBT people
- Co-sponsor a resolution on Human Rights, Sexual Orientation and Gender Identity
1/ that directly mandates further work by the Office of the High Commissioner on Human Rights (OHCHR) towards the protection of LGBT people
2/ that explicitly extends protection to those discriminated against on grounds of gender identity and sexual orientation
Seek the support of other states to co-sponsor or vote in favour of this resolution
In April 2003, the Brazilian delegation to the United Nations Commission on Human Rights introduced an historic resolution prohibiting discrimination based on sexual orientation (1). The resolution – which was co-sponsored by all EU Member States and supported by Canada, Japan, Korea, some Latin American and Eastern European countries (2) – elicited strong opposition from a number of countries. After prolonged debate, the UN/CHR voted to postpone further discussion on the resolution to the 2004 Commission session, due to commence in March. Brazil is currently re-drafting the resolution text. As co-sponsors, the EU delegations play a vital role in this process and are urged to ensure that the text is not watered down.
Considering the magnitude of human rights violations against persons on the grounds of their sexual orientation or gender identity, this resolution is a vital tool in reaffirming lesbian, gay, bisexual and transgender rights as human rights. Social taboos and criminalisation of same-sex relations as 'sodomy', 'crimes against nature' or 'unnatural acts', lead to public and private violence and discrimination. LGBT persons throughout the world continue to experience harassment, humiliation, verbal and physical abuse relating to their real or perceived sexual orientation or gender identity. This ranges from homophobic rhetoric, abuse by state actors such as the police to violence and harassment by their own communities and families (3).
Many states are complicit in the persecution of LGBT activists, violating the standard that obliges them to prevent and punish human rights violations committed by private actors. Numerous heads of state or other government officials openly incite hatred against lesbians, gay, bisexual and transgendered persons, as happened in recent years in Kenya, Malaysia, Namibia, Peru, Swaziland, Uganda, Zambia and Zimbabwe (4). Nearly 80 countries continue to have laws that make same-sex consensual sexual relationships between adults a criminal offence (of which approximately half ban such relationships between both women and men (5), while the remainder ban such relationships between men only - 6 -). In at least 7 countries the maximum penalty is death (7). Additionally, some countries treat homosexuality as a "medical or psychological disorder and lesbians and gay men have been targeted for medical experimentation and forced psychiatric treatment designed to 'cure' their homosexuality" (8).
Transgender people are particularly at risk of hate-induced violence, abuse and – in some cases – murder (9). They are visible and vulnerable to the effects of hatred in almost every culture, daily confronting some of the worst abuses inflicted on those who fail to conform to socially enforced norms. And yet, there is no sufficient recognition and protection in the international human rights system to date. What is more, gender identity and sexual orientation are closely interlinked – both with regard to categories of experience and in the context of public perception. Despite similarities in the abuse experienced by lesbians, gays, bisexuals and transgender people, the term "sexual orientation" is insufficient to protect transgender people. "Gender identity" refers to a person’s sense of conformity between their biological and psychological gender whilst "sexual orientation" is used to depict a person’s sexual and emotional attraction to people of the same or the opposite gender. Non-inclusion of the term "gender identity" is in fact a fundamental contradiction to the underlying principle of the draft resolution, namely the condemnation of all kinds of discrimination and the affirmation of the universality of human rights. It is therefore vitally important to explicitly include gender identity as a ground of protection in the new resolution.
A resolution on human rights, sexual orientation and gender identity would not define any new rights or novel standards. Instead, it would be a means to reaffirm and spell out the principles that have underpinned numerous decisions and reports by the UN human rights mechanism. Most notable are the decisions reached by the UNCHR in March 1994 in Toonen v Australia, which confirmed that anti-discrimination provisions in the covenant (ICCPR) should be understood to include sexual orientation as a protected status (10), and in September 2003 in Young v Australia, the first decision affirming the partnership rights of same-sex couples under the ICCPR (11). Both created a clear legal basis for the UN mechanism to act upon. This has been reconfirmed by numerous contributions of Special Rapporteurs and treaty bodies, who have repeatedly expressed their readiness to transmit individual cases and urgent appeals in this area (12).
There is an increasing awareness of the pervasiveness of human rights violations against LGBT persons. The urgency and serious nature of these violations calls for a strengthened UN mechanism and for particular attention to the issues at the highest level of the UN machinery dealing with human rights, i.e. the UN Commission on Human Rights. The UN must adopt a resolution that grants a direct mandate to the Office of the High Commissioner for Human Rights (OHCHR) to address human rights violations of LGBT people.
ILGA-Europe urges all European Union Member States to actively contribute to a UN resolution that affirms the universality of human rights and offers protection to those persons most vulnerable to human rights abuses. ILGA-Europe urges all EU Member States to work towards a strong and clear resolution: do not water down the text until all protections offered are rendered meaningless. We need a UN resolution that reaffirms LGBT rights as human rights. A UN resolution on human rights, sexual orientation and gender identity is a unique contribution to a more progressive global understanding of human rights for all. Beyond the mere symbolic, this resolution is a clear message that the international community no longer tolerates the perpetuation of violence, persecution and abuse of lesbians, gays, bisexuals and transgender people.
1/ E/CN.4/2003/L.92 "Human Rights and sexual orientation" and proposed amendments E/CN.4/2003/L.106-110
2/ Resolution E/CN.4/2003/L.92 was sponsored by Austria, Belgium, Brazil, Canada, the Czech Republic, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Liechtenstein, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden and the United Kingdom of Great Britain and Northern Ireland. Croatia, Cyprus, New Zealand, Poland, Serbia and Montenegro, Slovenia and Switzerland subsequently joined.
3/ For further information on the Americas, see: Sexual Orientation and Human Rights in the Americas, Andrew Reding, World Policy Institute at New School University, New York, 2003
4/ For further information on the situation in Southern Africa, see: More than a name. State-sponsored homophobia and its consequences in Southern Africa, Human Rights Watch and IGLHRC, USA, 2003
5/ Algeria, Angola, Benin, Burundi, Cameroon, Cape Verde, Djibouti, Ethiopia, Guinea Conakry, Liberia, Libya, Malawi, Mauritania, Mauritius, Morocco, Senegal, Sudan, Swaziland, Togo, Tunisia, Afghanistan, Bangladesh, Brunei, Pakistan, Solomon Islands, Western Samoa, Chechen Republic, Bahrain, Iran, Lebanon, Oman, Qatar, Saudi Arabia, Syria, United Arab Emirates, Yemen, Barbados, Grenada, Nicaragua, Puerto Rico, Saint Lucia, Trinidad and Tobago
6/ Botswana, Kenya, Mozambique, Namibia, Nigeria, Seychelles, Sierra Leone, Somalia, Tanzania, Uganda, Zambia, Zimbabwe, Bhutan, Burma/Myanmar, Cook Islands, Fiji, India, Kiribati, Malaysia, Maldives, Marshall Islands, Nauru, Nepal, Niue, Papua New Guinea, Singapore, Sri Lanka, Tajikistan, Tokelau, Tonga, Tuvalu, Uzbekistan, Kuwait, Guyana, Jamaica, and certain states of the USA.
7/ Mauritania, Sudan, Afghanistan, Pakistan, Chechen Republic, Iran, Saudi Arabia, Yemen
8/ Crimes of hate, conspiracy of silence. Torture and ill-treatment based on sexual orientation, Amnesty International Publications, 2001
9/ see, inter alia, GA Report 2001 of the UN Special Rapporteur on Torture
10/ UNCHR, CCPR/C/50/D/488/1992, Toonen v Australia, 31 March 1994
11/ UNCHR, CCPR/C/78/D/941/2000, Young v Australia, 18 September 2003
12/ Stephanie Schlitt, ‘Sexual Orientation: It’s about Non-Discrimination’, in: Human Rights Features, Vol. 6.6, 22-25 April 2003. NOTE: A notable recent development has been the official recognition of registered partnership of UN staff in January 2004 by Kofi Annan.