After a unanimous decision at a recent meeting of its world Board, ILGA is supporting the establishment of a Special Procedure on Sexual Orientation and Gender Identity at the UN Human Rights Council. The ILGA Board has also unanimously agreed that it will continue to work on existing gaps in relation to sexual rights and intersex human rights at the UN.
ILGA is committed to the core belief that all persons are born free and equal in dignity and rights. There is no hierarchy of rights. As a federation of LGBTI organizations, ILGA’s mandate is naturally on issues of sexual orientation, gender identity and expression, and sex characteristics. However, the discrimination and violence that persons face on these grounds is also fundamentally linked with other forms of discriminatory repression: on the basis of HIV status, disability, race, occupation, sex, gender, class, language and many others. Understanding and addressing the root causes of discrimination and oppression of all persons is at the core of any response.
What are the Special Procedures?
The UN Special procedures are individual independent human rights experts, or groups of such experts, who report and advise on human rights issues. They are called by many names, including Special Rapporteurs, Special Representatives, Working Groups, and Independent Experts.
Most Special Procedures have thematic mandates. As of June 2015, the Human Rights Council oversees 41 thematic mandates including those on the rights of indigenous persons, migrants, violence against women, discrimination against women, persons with disabilities, racism, health, torture, older persons, persons with albinism, human rights defenders, peaceful assembly and so on.
What would a Special Procedure do?
Special Procedures mandates, such as Special Rapporteurs, are established to bring attention to an issue, in this case SOGI. The Special Procedure is an expert tasked by the Human Rights Council with bringing focused attention to the issues, presenting analysis and reports, engaging with States and civil society, and formulating key recommendations to the council.
A SOGI Special Rapporteur could act in a number of ways to fill protection gaps in the UN system, particularly in areas that have been neglected by existing rapporteurs because of lack of interest and/or capacity. In addition to reports and dialogues at the Human Rights Council, Special Rapporteurs may conduct any number of activities including country visits, help clarify and help develop international law and related standards, liaise with national and regional mechanisms, issue public statements and address individual cases of violations through written communications. The experience to date both at the UN (in relation to other groups) and at the Organization of American States (in relation to LGBTI people), demonstrates clearly that a dedicated Rapporteur can make a significant difference to advancing human rights protection in relation to a specific group. A fuller description of what a Special Rapporteur would be able to do is in the annex.
How is a Special Procedure established?
Special Procedures are established by governments voting at the UN Human Rights Council. Under the leadership of Argentina, Brazil, Chile, Colombia and Uruguay, there is in the coming weeks the opportunity for a Special Procedure to be established on Sexual Orientation and Gender Identity. With strategic outreach to key governments over the coming weeks, such a resolution could pass. There will be opposition by hostile governments, and support by civil society will be needed.
Some civil society have expressed their opposition to the creation of a SOGI Special Procedure. ILGA wishes to respond to some points being raised.
ILGA does not believe that the establishment of a special procedure on sexual orientation and gender identity is at odds with the establishment of other mandates. Many Special Procedures work already on a range of different rights related to sexuality and gender, and there is the potential for more in the future. The establishment of a mandate on SOGI would provide one more space amongst others where discussions on sexuality, gender, bodily autonomy could continue to take place as they do already in other special procedures mandates and elsewhere at the international level. This continuing discourse will help to continue to set the tone for the establishment of other future mandates, such as on Sexuality, Bodily Autonomy and/or Gender.
As LGBTI organizations, we are part of many broader movements that push for the full realization of the human rights of all persons: movements related to sexuality and gender, the labor rights movements, the disability rights movements, liberation struggles, sex workers movements, indigenous movements, health rights movements, sexual and reproductive rights movements, mainstream human rights movements and many more. Our work is intrinsically linked to these and many more different and varied groups. Ensuring that nobody is left behind also means ensuring that groups and issues are better represented.
ILGA accordingly supports the establishment of a special procedure on sexual orientation and gender identity and also the establishment of other mandates to help fill existing gaps in relation to sexual rights and intersex human rights at the UN. While there may not yet be the political will in the UN Human Rights Council for such other Special Procedures, ILGA is committed to working with others to help make this a reality.
As social movements, our agendas intersect just as our realities do, we believe that every step that has been taken in the recognition of the rights of a population that has historically been violated and discriminated against has been a breakthrough for all and we believe that this would be too. We are also convinced that every process, expert group and UN committee must continue to strengthen the analysis of the dimensions of Gender, Sexuality and individual Autonomy; that is the call we are making and will continue to make.
What could a Special Rapporteur do to strengthen SOGI-related human rights protection?
UN Special Rapporteurs have been called "the jewel in the crown” of the UN human rights system. Special Rapporteur mandates are established to bring systematic attention to a specific human rights issue or the human rights needs of a marginalized group.
Existing thematic Special Procedures have been established to bring attention to a broad range of equality and non-discrimination issues, including through the creation of mandates on, for example, violence against women, racism, religious freedom, the rights of persons with disabilities, the rights of the child, the rights of older persons, discrimination against women, and the rights of persons with albinism. In each case, UN Special Procedures have been instrumental in bringing focused attention to the issues, presenting analysis and reports, engaging with States and civil society, and formulating key recommendations to the Human Rights Council.
A Special Rapporteur on SOGI issues would be able to bring dedicated attention to the issues in an unprecedented manner: unpack the differentiated situation of LGBTI people, explore intersectional and multiple forms of discrimination, the situation in different regions, the root causes of violations, as well as study in depth specific thematic issues like violence, torture, criminalisation and ill- treatment, the right to recognition of one’s self-identified gender identity, the work of SOGI human rights defenders, economic, social and cultural rights such as health, housing and access to education, and other subjects, making more concrete and focused recommendations as compared to the more general recommendations made by existing mechanisms that focus on all populations.
While many current Special Rapporteurs and some treaty bodies have addressed SOGI issues within their mandates, attention to the issues can be inconsistent, depends on the commitment of the individual mandate-holder and falls short of the sustained dedicated attention needed to bring to these systemic human rights violations the dedicated attention they deserve. In addition, not all SOGI-related human rights issues are covered by existing mandates. The absence of a dedicated focal point among UN human rights mechanisms has been felt many times. This gap would be filled by a Rapporteur who could ensure more systematic integration of SOGI issues throughout the work of UN Special Procedures specifically and UN mechanisms more generally. This has been the clear experience of other UN mandates that focus on the rights of specific groups (e.g. women, persons with disabilities, migrants, internally displaced persons, persons with albinism, the rights of the child, older persons) as well as the experience of the Inter-American Commission Rapporteur on the rights of LGBTI persons, which have advanced human rights protection in relation to that group in a more focused and significant manner as compared to previous efforts by non-dedicated mechanisms.
Given that a number of States still do not see the international human rights framework as applying to SOGI issues, a Special Rapporteur could build upon the standards set out in the Yogyakarta Principles and in recent jurisprudence at the UN, regional and national levels, and further articulate and bring clarity to existing international standards in this area.
A Special Rapporteur on SOGI issues could bring attention to a broad range of issues through annual reports, on subjects such as root causes, intersectionality, trans rights, the rights of LBTI women,
the situation of children and youth targeted on the basis of SOGI, non-binary people, good practices, and other protection gaps.
UN Special Rapporteurs present their reports to the Human Rights Council, and sometimes also the UN General Assembly, through an annual interactive dialogue, which provides a forum for States, national human rights institutions and civil society organisations to address key issues and priorities relevant to people because of their sexual orientation and gender identity.
A Special Rapporteur could also engage with governments and other stakeholders to address a broad range of issues, such as practical steps to repeal and reform laws around the world which deny trans persons’ right to identity, trainings with police on measures to address hate crimes, working with civil society organisations, making public statements on issues of national, regional or international concern, speaking at and engaging with civil society (such as at conferences, regional workshops, trainings or other events).
A Special Rapporteur could help depolarize the issue of SOGI by highlighting that all countries and regions face challenges in addressing violence and discrimination on these grounds, and by highlighting and supporting positive developments as well as addressing violations.
Special Rapporteurs usually conduct two country visits per year, and these are a valuable opportunity to engage constructively with those governments willing to do more but which may be unfamiliar or uncomfortable with SOGI issues or which could benefit from learning from existing good practices and ways of overcoming challenges.
Recognising that SOGI issues are connected with a broad range of issues such as gender equality, poverty, class, bodily autonomy, sexual health and rights, a SOGI Special Rapporteur could be mandated to carry out their work in a way that recognises multiple and intersecting forms of discrimination, and further articulates and increases awareness of these connections. The Rapporteur could work to identify protection gaps, and initiate discussions to ensure increased attention to issues and connections that are insufficiently addressed.
There have been significant developments at the regional level and a UN Rapporteur could work together with regional mechanisms such as the African Commission on Human and Peoples’ Rights, the Special Rapporteur on the rights of LGBTI persons of the Inter-American Commission on Human Rights, the Council of Europe institutions including the Commissioner for Human Rights and SOGI Unit, the EU Fundamental Rights Agency, the Asia-Pacific Forum of National Human Rights Institutions, to enhance cross-regional collaborations and strengthen attention to the issues at all levels.
 ILGA’s Executive Board is composed of 17 members: two elected representatives from each of the six ILGA regions (Africa, Asia, Europe, Latin America & the Caribbean, North America and Oceania), one representative from each of the organizations elected respectively as the Intersex, Women’s, and Trans secretariats and two Secretaries-General elected at ILGA’s World Conference. For more information see here: http://ilga.org/about-us/board/