Sexual Orientation

It’s about non-discrimination

A BRAZILIAN draft resolution on 'Human rights and sexual orientation' will hit the ground in next week's voting process. The question is: running or lame? Should the resolution pass narrowly the victory would be real but shallow. It would add another brick to the wall cementing sexual orientation as a category of discrimination, the pervasiveness of which is increasingly recognised within the UN human rights system, and offer an important reference to NGOs and the civil society lobby on lesbian, gay, bisexual and transgender (LGBT) issues. It would, however, hardly project anything like a global consensus among and acknowledgment by the UN's member states of the issue.

The process of consultations among delegations favourable to the draft  from the Western Group, South America but also including South Africa  made clear that even some of the draft's supporters are only at the stage of 'getting their head around' the topic, a position falling disappointingly short of full commitment to pushing the issue.

Should the resolution fail, however, what would be the conclusion to draw? That denial of human rights on grounds of sexual orientation is alright? But then again maybe some countries really have no non-heterosexual citizens after all … in which case it would be difficult to understand why the same countries see a need to criminalise homosexuality and to oppose the Brazilian draft resolution, as can be predicted.

The magnitude of human rights violations against persons on the grounds of their sexual orientation cannot be underestimated. Social taboos and criminalisation of same-sex relations as 'sodomy', 'crimes against nature' or 'unnatural acts' lead to public and private violence and discrimination. In a landmark report in 2001, Amnesty International found that "In virtually every part of the globe, LGBT lives are constrained by a web of laws and social practices which deny them an equal right to life, liberty and physical security, as well as other fundamental rights such as freedom of association, freedom of expression and rights to private life, employment, education and health care". This social reality, affecting "a planetary minority", is covered up by a "veil of silence and indifference".

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". Violating the standard that obliges them to prevent and punish human rights violations committed by private actors, many states connive in the persecution of LGBT activists.

The basic idea behind the draft resolution is that grounds of discrimination enumerated in the UDHR are merely exemplary. Recognising widespread human rights violations on grounds of sexual orientation, the draft resolution therefore sets out to:

• express the CHR's "deep concern" at the occurrence of such violations,

• underline that "the enjoyment of rights and freedoms should not be hindered in any way on the grounds of sexual orientation"

• note the attention given to the issue by the special procedures and treaty monitoring bodies and encourages the former "within their mandates, to give due attention to the subject"

• request that the High Commissioner pay due attention to it.

While the Brazilian delegation stresses that the resolution proposes "no new rights", neither is sexual orientation as a ground of discrimination new to UN human rights mechanisms. In 1992, the Human Rights Committee, in Nicholas Toonen v Australia, stated that discrimination on grounds of sexual orientation constituted discrimination on grounds of sex under Articles 2(1) and 26 of the International Covenant on Civil and Political Rights.

The Committee on Economic, Social and Cultural Rights concurred with this interpretation in its General Comment 14 (2000) on the right to health.

In 1999, the Committee on the Elimination of all Discrimination against Women recommended to the Government of Kyrgyzstan that "lesbianism be reconceptualized as a sexual orientation and that penalties for its practice be abolished".

In 2002, the Committee on the Rights of the Child expressed itself "concerned that homosexual and transsexual young people do not have access to the appropriate information, support and necessary protection to enable them to live their sexual orientation" and encouraged the UK government, inter alia, to repeal section 28 of the Local Government Act 1988. These committees' lists of issues and concluding observations to states parties' reports have frequently made reference to discrimination on grounds of sexual orientation.

The Working Group on Arbitrary Detention, in 2002, in an opinion on the infamous Queen Boat case in Egypt established that "the detention of persons prosecuted on the grounds that, by their sexual orientation, they incited 'social dissention' constituted … arbitrary deprivation of liberty" and so added another category of arbitrariness of detention to include deprivation of liberty ordered in violation of guarantees against discrimination as laid down in articles 2(1) and 26 ICCPR.

The CHR's independent experts on torture, violence against women, freedom of opinion and expression, extra-judicial executions, human rights defenders, and the independence of the judiciary have called for information on sexual minorities issues within their mandate and expressed their readiness to transmit individual cases and urgent appeals in this area.

The 2001 report of the Special Rapporteur on torture to the General Assembly acknowledged the pervasiveness of human rights violations against members of sexual minorities and their disproportionate exposure to torture and other forms of ill-treatment, especially of a sexual nature, for failing "to conform to socially constructed gender expectations."

The Rapporteur, Sir Nigel Rodley, warned that "discrimination on grounds of sexual orientation or gender identity may often contribute to the process of the dehumanization of the victim, which is often a necessary condition for torture and ill-treatment to take place." His successor, Theo van Boven, has again dealt with violence and discrimination against members of sexual minorities in his mission report on Uzbekistan.

Since her appointment in 1998, the Special Rapporteur on extrajudicial, summary and arbitrary executions, Asma Jahangir, has addressed the issue of death threats or killings of persons on grounds of the sexual orientation or gender identity in her reports. This year, she took up cases from Taliban-ruled Afghanistan, Venezuela, and Mexico and devoted a section of her report on a mission to Honduras to the issue.

So has the Special Representative of the Secretary-General on human rights defenders, Hina Jilani, who, in her first report in 2001, referred expressly to the "greater risks" faced by human rights defenders active on the issue of sexual orientation "as their work challenges social structures, traditional practices and interpretation of religious precepts that may have been used over long periods of time to condone and justify violation of the human rights of members of such groups."

At this year's CHR, an NGO panel entitled "Suffering in silence - the despair and confusion of children questioning their sexual orientation or gender identity" organised by the International Research Centre on Social Minorities (IRCSM), a recently established Geneva-based NGO which lobbied strongly on the Brazilian draft resolution featured the CHR's Special Rapporteurs on the right to education, Katarina Tomasevski, and on the right to health, Paul Hunt.

Ms Tomasevski announced that her report to the CHR next year would address the long overdue question of "what school children learn about sex, sexuality and gender; what they are taught, what they are not told, and what they are told not to ask about". Her emphasis on the importance of human rights education for respect (and her clear repudiation of the term "tolerance" as a "passive behaviour against something which was considered abnormal") is reflected in the Brazilian resolution which affirms that "human rights education is a key to changing attitudes and behaviour and to promoting respect for diversity in societies". 

Mr Hunt argued that right to health issues associated with sexual minorities fall directly within one of the two main themes that he proposed to address: discrimination and stigma in the context of the right to health. During an NGO briefing, Paulo Sergio Pinheiro strongly affirmed that as Rapporteur of the Sub-Commission on the Protection and Promotion of Human Rights responsible for a two-year study on violence against children he intended to address violence faced by children on grounds of their sexual orientation and gender identity. 

A growing familiarity of the UN mechanisms with issues of discrimination on grounds of sexual orientation, however, in no way prejudges vigorous opposition to the draft which can be predicted on this "provocative piece of work" (USA during consultations). A showdown in the form of a paragraph-by-paragraph vote on the Brazilian draft resolution is clearly in the offing starting with the draft's title, as one opposed delegation announced. We are likely to be treated to a rerun on positions brought forward during last year's GA debate on Ms. Jahangir's report on extrajudicial executions.

The delegations of Egypt, the Sudan and Pakistan found her exceeding her mandate by addressing concepts 'sexual minorities' and 'sexual orientation' which (so the Egyptian delegation) had not been elaborated or explained by any intergovernmental body. The Swiss delegate expressed opposition to the inclusion of the term 'sexual minority' in the report as it "fell outside the internationally recognised definition of minority".

While expressing "grave concern about the impunity with which people who did not belong to the recognised sexual orientations or minorities were treated", Ms. Jahangir maintained that far from discussing issues of (im)- morality she had merely called for accountability for governments which perpetrated summary executions, drownings and killings against persons because of their sexual orientation.          

sexual orientation" more specifically in the future.

The treacherous waters of definition, which Ms Jahangir navigated, skilfully threatened to unsettle the draft resolution too even though here the above-cited objecting countries and others of their ilk no longer deigned to participate. The draft now does not contain an attempt at definition of 'sexual orientation' which, in an earlier version, was taken to "encompass heterosexuality, homosexuality, bisexuality and transsexuality". The omission of a definition by enumeration is justified on the grounds that its inclusion would militate against the purpose of the resolution, the promotion of non-discrimination, by necessarily being exclusionary of some possible sexual orientations. Ironically, some of those countries not even willing to be part of the consultations on the resolution insist that they are only willing to consider negotiations on the issue once a definition is on the table (a definition acceptable to them, that is). The Holy See too "would like to understand the meaning of 'sexual orientation' before embarking on any further deliberations.

Once the original definition section had been deleted on the EU's suggestion, and the term "transsexuality" was no longer expressly covered by the resolution, a debate ensued about the inclusion of the term "gender identity". Despite strong support from Canada, Germany, Liechtenstein, New Zealand, Brazil, Norway, and Sweden for its inclusion, the EU as a whole confounded the resolution's sponsor by remaining unclear on who amongst them would find this term unacceptable. Ireland, the suspected culprit, declared that it did not oppose inclusion. In the end, it was decided to leave the term out so as not to lose possible votes. The Brazilian delegation promised, however, to include the term in next year's resolution.

As of the afternoon of 17 April 2003, the draft had 20 co-sponsors. The GA's vote on the 2002 resolution on extrajudicial executions, sponsored by Finland, might give some indication of a likely voting pattern on this draft. The EJE resolution, in OP 6, called "upon Governments concerned to investigate promptly and thoroughly all cases of killings committed … for any discriminatory reason, including sexual orientation … ". OP 6, which was voted on separately, was retained by a margin of 104 votes in favour, 37 against with 29 abstentions. If the voting pattern on OP 6 is projected onto the membership of the CHR, a vote of 30 in favour, 11 against and 8 abstentions would be predicted (three CHR member states were absent when the OP 6 vote took place). Once OP 6 was included the vote on the resolution came out as 130 in favour, none against with 49 abstentions. The abstaining states here closely mirrored those opposed to the inclusion of OP 6.

This draft resolution reaffirms the corner stone of human rights protection, the principle of non-discrimination. Either human rights apply universally or they do not. If they do and if we face up to the realities outside Room XVII (as well as inside it) then this draft resolution should be the CHR's message to the wider world: whatever your sexual orientation, your human rights are our concern.