First of all I would like to express my gratitude to ILGA for the organization of this Panel and for inviting me to share with you some ideas and opinions regarding the Human Rights perspective of such an important issue as violence against persons based on their sexual orientation or gender Identity.
Why is Colombia so active in Sexual Orientation Issues in Geneva?
Why are we part of the core group of delegations that promotes the inclusion of a Human Rights perspective of the sexual orientation and gender Identity issues in the Human Rights Council? Why we consider that the joint statement signed by 85 states was a big step in Geneva?
I will talk about the Colombian experience, then I will make a reference to the regional situation, and finally I will talk about the statement.
Despite the multiple challenges we have to face as a country during the last 50 years, we have a solid democracy and an important and advanced legal framework that allows all Colombian citizens to demand their fundamental freedoms and Rights.
In 1940 the first “Gay Group” appeared in Colombia, this group worked in clandestine, and it was not until 1970 that the first public and open movement appeared to promote the rights of the LGTB community in Colombia.
In 1981 Colombia made a big step with the reform of the penal code that eliminates homosexuality as a crime. This reform to the Penal code brought a special momentum that allows the conformation of several civil society organizations dedicated to demand the rights of the LGBT community in Colombia.
In 1991 Colombia adopted a new Constitution that recognizes the prevalence of Human Rights, creates the Constitutional Court, and gives the citizens an instrument (action of tutela) to demand before the judicial authorities the respect for their fundamental rights.
Since 1991, with the new constitutional dispositions, many Colombian citizens and civil society organizations, start to demand before the Constitutional Court their right to no discrimination on the grounds of their sexual orientation or gender identity.
In this context, the Constitutional Court has adopted until today several sentences that consider as unconstitutional and illegal the discrimination on the bases of sexual orientation or gender identity.
For the Constitutional Court, every citizen has the right to the free development of his or her personality, including his or her sexual orientation or gender identity, and no one can be discriminated for this reason.
The first sentence in this line was dated in 1993, when a man demanded his right to change his male name to a female name, and was fallowed by sentences related to the gay persons in the army, the rights of same sex couples, the right to health, the right to work, and the right to education.
Today, and thanks to the sentences of the Court, in Colombia there is legal recognition for the civil union of same sex couples.
But many challenges still remain regarding the rights of the LGBT community, unfortunately we can not say that we are an homophobic free society, and the LGBT community has not escaped to the generalized violence that has suffered Colombia for several decades.
There are cases of violence, discrimination and stigmatization that we have to resolve.
But we are glad to have and active civil society working for the rights of the LGBT community, we have democratic institutions with a high level of commitment for the promotion of human rights, and we have a strong and independent Constitutional Court.
In this sense, I would like to make reference to 2 specific examples of how Colombia is dealing with their challenges. There is recognition at the highest level of the national authorities that the LGBT community has concerns that we have to address from a Human Rights perspective. In that sense the Vice-president of Colombia has installed a channel de dialog on human rights with the LGTB community in Colombia.
With the participation of the organizations of the civil society and several national institutions, including the national police, the Ministry of Defence, the Prosecutor Office and the Ministry of Social Protection among others, we want to generate a space to address the main concerns of the community and to look for solutions to the challenges and problems of the LGBT community.
Anther important step in Colombia is the victims’ law adopted by the National Congress last week.
Like I said before, the members of the LGTB community have not escaped to the generalized violence and terror acts that the Colombian people have had to suffer during the last decades.
For that reason the victims law, aimed to provide reparation to the victims of the violence and to give them the guaranty of no repetition, has decided that the law will apply without any discrimination because of the sexual orientation or gender identity of the victims or their relatives, and guarantees the right to reparation of same sex couples.
And I want to point out the victim’s law, because the National Congress has adopted these dispositions, and this is a very important step in the fight against discrimination in Colombia. It is important because the recognition is in the law, was made by the Congress, we don’t have to wait for a sentence of the Constitutional Court.
The Experience in the Organization of American States
Well, now allow me to make a quick reference to the regional experience, which I consider it is very important like and example to the Human Rights Council.
In 2008 the General Assembly of the Organization of American States, adopted resolution AG/RES. 2435 entitled “ Human Rights, Sexual Orientation and Gender Identity”, and since then the issue is included in the Agenda of the Organization which has adopted several resolutions on the matter.
In these resolutions, the General Assembly has expressed its concern and condemnation of acts of violence and human rights violations committed against persons because of their sexual orientation and gender identity. It urged states to investigate these acts and violations and to ensure that their perpetrators are brought to justice.
The General Assembly also encouraged member states to take all necessary measures to ensure that acts of violence and related human rights violations are not committed against persons because of their sexual orientation or gender identity, and to ensure that the victims are given access to justice on an equal footing with all other persons, inviting member states to consider ways to combat discrimination against persons.
The General Assembly also requested the Inter-American Commission on Human Rights and other organs of the inter-American system to continue to pay due attention to this issue, and requested the Commission to consider the possibility of conducting a thematic study on the matter at the hemispheric level.
Lastly, it instructed the Committee on Juridical and Political Affairs of the Permanent Council to include the subject on its agenda.
The experience of the Organization of American States, is very important and useful for us, because if proves that sexual orientation and gender identity issues could be addressed from a Human Rights perspective in a multilateral fora, were not all its members have the same political, cultural or legal frameworks on the matter.
Some of the member States have penal code dispositions against homosexuality while others recognize the marriage between same sex couples, but all them, despite their differences have accepted to include the issue in the agenda of the Organization and to talk about it. In the multilateralism scenario this is the first step, to put an issue in the agenda and to start to talk about it. That is what we need here in Geneva.
The Joint Statement
The issues related to sexual orientation and gender identity are not new in the UN System, like we know some treaty bodies, like the Human Rights Committee, have already addressed specific situations where they have declared that violence and discrimination based on sexual orientation are not legal under the application of the core international instruments on Human Rights.
Several special procedures address the issue in their reports to the Human Rights Council and we have to recognize the work that the Office of The High Commissioner for Human Rights is doing. Also in the framework of the UPR there is an important development in the inclusion of the sexual orientation and gender identity matters. We cannot forget also that the violence based on the sexual orientation and gender identity has been a concern addressed by the Secretary General in several statements, and during the last year the Secretary General demanded to the Human Rights Council to take action.
We had previous statements in 2006 in the Human Rights Council and in 2008 in the General Assembly in New York.
During the past Human Rights Council session in March we delivered a Joint Statement signed by 85 delegations and entitled: “ Ending acts of violence and related human rights violations based on sexual orientation & gender identity.”
Our starting point here is the fight against violence. We all have a commitment and obligation to combat violence against any human being, despite any political, cultural or religious background. Under the human rights principles of universality and non-discrimination the violence based on sexual orientation or gender identity can not be admitted. The statement took a constructive approach, welcoming attention to LGBT issues as a part of the Universal Periodic Review process, noting the increased attention to LGBT issues in regional human rights fora, encouraging the Office of the High Commissioner for Human Rights to continue addressing LGBT issues, and calls for states to end criminal sanctions based on LGBT status.
What comes next?
Well, from the Colombian perspective we share, like many other delegations, the point of view of the Secretary General, that the Human Rights Council should be able to address the issue of violence and criminalization based on Sexual Orientation and Gender Identity from a Human Rights perspective.
We think 85 signatories is a very important number, it is almost half of the UN members. It is evident that sooner or later the Human Rights Council should be able to address the issue of sexual orientation and gender identity.
We know this is a very sensitive issue, and we are not looking for a blame a shame scenario, Colombia does not believe that the Human Rights Council should operate like a confrontational fora.
We think we have to work and look for a constructive approach. We have to facilitate dialogue to reach commitments and mutual understanding, respecting the broad diversity in the UN composition, and in that sense I turn back to the example that we have with the OAS in dealing with sexual orientation and gender identity issues.
We should avoid the idea that this is a cultural or religious confrontation, it is not about that, it is about working together to put an end to the violence in general, and to the violence against any specific sector of the population because its sexual orientation or gender identity.
Alvaro Enrique Ayala Melendez, for Ms Alicia Victoria Arango, Ambassador of Colombia
French and Spanish versions: click on the language symbol on the left hand side of the screen.