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UN treaty bodies: a guide to LGBTI and SOGIESC references in general comments and recommendations

To better serve LGBTI activists and organisations worldwide – as well as international human rights lawyers, researchers, officials and everyone interested in LGBTI human rights standards at the UN –

ILGA World has launched a new publication supporting them to engage with international human rights mechanisms: a report detailing all general comments and general recommendations containing language on lesbian, gay, bisexual, trans and intersex people, and sexual orientation, gender identity, gender expression and sex characteristics (SOGIESC) issued by United Nations treaty bodies.

 

Download the report: General comments (recommendations) by United Nations treaty bodies: references to LGBTI and SOGIESC in English – en español

 

International human rights are recognised globally through nine main human rights international treaties (covenants or conventions) –  for example, the International Covenant on Civil and Political Rights (ICCPR) or the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Under each of these treaties, committees of experts (treaty bodies) have been established to monitor how state parties implement their obligations under the treaties.

Despite the absence of explicit LGBTI / SOGIESC language in the treaties, general comments and recommendations issued by treaty bodies have clearly established the understanding of human rights standards as applied to LGBTI people and SOGIESC issues.

A general comment (general recommendation) is a treaty body’s official document with the interpretation of certain articles of international conventions, themes or treaty bodies’ working methods. General comments often seek to clarify the duties of State parties concerning specific human rights or communities protected.

Since 2000, United Nations treaty bodies have adopted 45 general comments and general recommendations addressing different human rights issues faced by LGBTI persons and clarifying State obligations in this regard.

Until now, nearly all treaty bodies—except for the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment—have developed their interpretations of LGBTI / SOGIESC human rights through general recommendations and general comments.

 

UN treaty bodies’ general comments and general recommendations with LGBTI / SOGIESC language

UN treaty bodies’ general comments and general recommendations with LGBTI / SOGIESC language

 

What do general comments and recommendations in UN treaty bodies say about the human rights of LGBTI people and SOGIESC issues?

State obligations are clarified in the committees’ general comments and recommendations, and they encompass different measures – including adopting, reviewing or repealing legislation, developing and implementing policies, training professional groups, conducting public awareness-raising activities, and taking steps to prevent third parties from violating the rights of LGBTI persons.

The committees clearly stated that the criminalisation of same-sex sexual acts between consenting adults, as well as certain forms of gender identity or expression, violates human rights norms, and therefore criminalising legislation must be repealed.

Many references have been made to SOGIESC-based violence and discrimination and their particular forms, such as gender-based violence, “conversion therapies”, or non-consensual medical interventions towards intersex children. In this regard, States must take special measures to protect LGBTI persons, prohibit and prevent violence and discrimination from third parties, and adopt laws prohibiting discrimination and harassment on the grounds of SOGIESC.

Committees also explained that States must ensure that LGBTI persons can exercise their right to freedom of peaceful assembly, and restrictions supposedly aimed at protecting “morals” should not be imposed because of opposition to expressions of SOGIESC. Furthermore, States should involve and consult with LGBTI groups in developing and implementing measures and policies affecting them.

LGBTI persons’ personal and family relationships must be respected and protected – for example, especially concerning survivor’s pension rights. When LGBTI families are recognised, States should ensure the protection of the economic rights of members of such families. Additionally, children of LGBTI parents must also be protected from discrimination.

Treaty bodies’ general comments and recommendations also pay attention to intersectional forms of discrimination and violence. In this context, SOGIESC has been considered as intersecting with age, gender and disability; discrimination faced by LGBTI persons has been addressed in the context of racial discrimination, migration and climate change.

Notably, the committees also emphasised the developing notions of sex” and “gender and the need to understand “sex” as being based on biology while “gender” reflects social constructs resulting in hierarchies and unequal distribution of power and rights.

Treaty bodies’ general recommendations and comments reflect the growing understanding of LGBTI human rights. They can be a powerful advocacy tool, especially in the absence of explicit LGBTI / SOGIESC language in international human rights treaties.