The Mandate of the United Nations Independent Expert on Protection against Violence and Discrimination based on Sexual Orientation and Gender Identity: Opportunities for The Human Rights of All Persons in a World of Gender Diversity

Vitit Muntarbhorn is Professor Emeritus at the Faculty of  Law, Chulalongkorn University, Bangkok.  He is currently UN Independent Expert on Protection against Violence and Discrimination based on Sexual Orientation and Gender Identity.  This Keynote  speech was for the International  Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) World Conference, Bangkok, opening session, 30 November 2016.

The quantum leap of  the world community to set up a mechanism, a new UN mandate –  the United Nations Independent Expert on  protection against violence and discrimination based on sexual orientation and gender identity (UN IE SOGI) advances the global agenda to “Leave No one Behind” and to protect the human rights of all persons, irrespective of  their state or  status.   It is an invitation to all of  us to open our hearts and minds to the  beauty of  diversity, no less in regard to SOGI:  A  World of Gender Diversity.   In this regard, I must thank profoundly the great work done by the vast number of  non-governmental organisations (NGOs), communities, governments and other actors worldwide to make the new mandate a reality. Giving voice to our  global message:  Treat people decently, respectfully, kindly, humanely whatever their origins, our origins.

The focus of  my presentation today is  threefold.  First, to introduce the mandate.  Second, to note some points of  reflection. And, third, to outline some possible directions for the future.

First, the mandate.

It is thematic and covers the globe.  The mandate was established by UN Human Rights Council resolution 32/2 in 2016, requesting the mandate-holder:

“- to assess the implementation of existing international human rights instruments with regard to ways to overcome violence and discrimination against persons on the basis of their sexual orientation or gender identity, while identifying both best practices and gaps;
– to raise awareness of violence and discrimination against persons on the basis of their sexual orientation or gender identity, and to identify and address the root causes of violence and discrimination;
– to engage in dialogue and to consult with States and other relevant stakeholders, including United Nations agencies, programmes and funds, regional human rights mechanisms, national human rights institutions, civil society organizations and academic institutions;
– to work in cooperation with States in order to foster the implementation of measures that contribute to the protection of all persons against violence and discrimination based on sexual orientation and gender identity;
– to address the multiple, intersecting and aggravated forms of violence and discrimination faced by persons on the basis of their sexual orientation and gender identity;
– to conduct, facilitate and support the provision of advisory services, technical assistance, capacity-building and international cooperation in support of national efforts to combat violence and discrimination against persons on the basis of their sexual orientation or gender identity.” (See IE SOGI , OHCHR web)

The Independent Expert is appointed for a three year term, renewable once, and monitors the situation on behalf of  the UN, submitting  reports to the UN in Geneva and New York under the mandate.  He/she can also take complaints from victims and act on their behalf  by issuing urgent appeals and letters of  allegations to the concerned authorities, thereby exercising leverage and pressure for  compliance with international human rights law.  This is complemented by field visits to countries to enable lessons learned from the ground to be shared in the global setting.  It should be added that the expert is not a UN employee but a pro bono person, acting independently and objectively in assessing the situation, under the UN umbrella.

Second, some points of reflection.

On the positive side, there have been many constructive developments in recent years to nurture a sense of  understanding and corresponding action in favour of  the rights of  all people, irrespective of  their SOGI.  Simply put, sexual orientation concerns a person’s sexual inclination towards others (homosexual, heterosexual or bisexual) ; it has an external dimension.  Gender identity concerns a person’s  self-identification of  gender which is not necessarily the biological sex assigned at birth; it has an internal dimension.  In practice, UN programmes and other actors/activities use the term SOGI to cover Lesbian, Gay, Bisexual and Transgender people, and there has also been increasing attention to the rights of  Intersex people (LGBTI) . A number of  countries on every continent have seen reforms of  antiquated and obstructive laws and policies, even though the progress is not always universal.  Court cases have vindicated the rights of  LGBTI people in many countries in all regions.  New laws and policies at the national level in several countries, including national Constitutions,  now refer directly  to SOGI and or LGBTI for the purpose of  entrenching human rights and inclusive protection.

Interestingly, a very recent law of  a  country now opens the door to facilitate change from biological gender to legal gender  by respecting the person’s choice to choose the gender, even from a young age, without the need for medical intervention and without legalistic and administrative complications.  In liberalizing the approach towards Intersex persons, another  country now recognizes the choice of  such persons to choose  their gender, and even the birth certificate no longer has to specify the classification of “male” or “female”, leaving room for a category  of  gender “ undetermined”.

At the heart of  the discourse is particularly the principle of  non-discrimination underlined by the 1948 Universal Declaration of  Human Rights and developed by international human rights law and practice.  As evidenced by the application of  the wide range of  international human rights treaties, international human rights bodies and procedures, ranging from the human rights treaty bodies, their general comments and recommendations, the Universal Period Review of  the UN, the coverage by the UN Special Procedures in regard to SOGI related violations, and UN resolutions and studies on SOGI,  the international human rights system has been strengthening  the promotion and protection of  the rights of LGBTI  people progressively.  The protection of  persons based on their SOGI and the mandate of  the UN Independent Expert  are based on International Law, complemented and supplemented by State practice.

This does not imply, however, that all is smooth and that there are no uncontested areas.  Issues such as the right to marry, to adopt children and to use assisted reproduction are not yet totally settled, particularly from the angle of  how much discretion is to be left to the State itself to reflect these concerns substantively when related with LGBTI and when matched  with the evolving nature of  national law and international law.

On a disquieting note, there lingers a penumbra of  negativity which demands more effective counteraction immediately.   Violence and discrimination in relation to SOGI rear their ugly heads  with rampancy, in  a variety of  forms and situations. Instances of  murder, killings, rape, mutilation and other cruel treatment are well documented in various parts of  the world and by many sources.  At times, LGBTI communities are affected by common violations such as stereotyping and stigmatization, while at times, each community – L, G, B, T or I – is impacted upon specifically and distinctly; the situation is not homogeneous.  For example, while lesbian, gay and bisexual people  are particularly disadvantaged by laws criminalizing same-sex sexual relations, transgender persons often suffer from laws and practices which criminalize their appearance, subject them to forced sterilization and  block their desire to change their gender on official documents.  While in various settings, lesbians are subjected to corrective rape in the warped belief that this will change their ways, intersex persons ( i.e. persons with atypical sex characteristics, such as persons with both male and female organs) are subjected to coerced medical surgery or treatment from a young age.

Some 70 countries still criminalize same-sex relations causing many injustices for lesbian, gay and bisexual communities.  While there has been much coverage in regard to  gays in this regard, there has been less visibility in regard to lesbians and bisexuals, even though they  are also impacted upon.  In a recent study, out of  the 70 countries mentioned, some 40 criminalize sexual conduct between lesbians.  Bisexuals (male or female) are also caught in the criminalization web.

There is also the challenge of  pathologization  and implications for  the medical, biological and scientific sectors.  In the not too distant past, even at the global level, homosexuals were classified as abnormal, as suffering from an illness. This has been rectified to some extent, but at the national level, the pathologization of LGBTI people still prevails in many settings. Some psychiatrists (wrongly) attempt to use aversion therapy/conversion therapy to change gays into heterosexuals.  Transgender and intersex persons are still classified medically as abnormal.  Labels such as “gender identity disorder” and “dysphoria” add to the stereotyping and stigmatization and are strongly linked to human rights violations in the medical field.

The lack of  status recognition for those who simply wish to be what they are is the rule rather than the exception in several settings.  In many countries, transgender persons are unable to change their birth certificate or identification cards and passports to recognize their  gender, resulting in many negative consequences.  They are laughed at, bullied, violated in multiple forms and many times ranging from situations at schools to universities, from the work place to hospitals, from immigration control to prisons and access to toilets.  Even in some countries where they are now able to change that status, they are forced to undergo surgery, leading to human rights violations and other complications, such as access to medical care, medical costs and linkage with the  insurance sector and denial of  medical coverage. With regard to intersex persons, their plight was invisible till recently.  A major predicament is that from a young age, they are operated upon without  consent to change their appearance  – with others imposing  the imputed gender-sex  on them,  thus  causing interminable damage and trauma.

Various historical antecedents and narrow  interpretations of  religions and beliefs aggravate the situation as part of  the political-cum-cultural challenge.  The classic case is the variety of  laws in a number of  countries derived from the colonial era which still criminalize same-sex sexual conduct, even when and where the colonizing power discarded such laws  a long time ago.  On another front,  while care, kindness and consideration are at the heart of  religions in their common humanity and linkage with human rights , various interlocutors misconstrue or  resort to less than inclusive  interpretations  to  justify  violence and discrimination.  At times, the misconstruction is for political purposes to constrain the call for a more pluralistic environment where a variety of  ideas, beliefs and public formations and  associations, complemented by respect for privacy and intimacy, should enjoy much needed space.  This is hampered by the overuse of  national security and public morality by  the authorities in some settings , for their political agenda, to curb freedom of  speech and peaceful assembly, as also in regard to LGBTI people.

Stereotyping, stigmatization and ostracism are often the result of a non-liberal mind and non-peaceful behavior, currently witnessed by the proliferating hate speech , often rampant on media and social web/networks, which fuels  the  antagonism steeped in homophobia and transphobia.  This is compounded by overemphasis on the binary approach to gender-sex and inadequate integration of  gender  diversity in the educational setting and people’s upbringing  from a young age which should open the door to a less binary , or non-binary,  understanding.  The vortex of  violence and discrimination, in their  multiple forms, often starts in the home, at school, in the community and in the surrounding environment, with violations breeding violations.

Third, some directions for the future. 

The establishment of  the UN mandate on SOGI complements the wide variety of  human rights instruments/mechanisms  at the international level, offering protection to all,  and the  global adoption of  the Sustainable Development Goals (SDGs) in 2015, with  opportunities for all.  In particular, the SDGs target an end to violence and discrimination in the timeframe of  2015-2030. Importantly, resolute action is required to stop the violence and discrimination affecting not only LGBTI communities but also the human rights defenders working with them. These go hand in hand with the broader aspirations of  human rights,  freedoms, democracy , and peaceful and inclusive society.

The following linchpins direct our actions towards the future, based on the totality of  human rights and calling for our global partnership:

  • Decriminalization: abrogate  laws which criminalize consensual same sex conduct and which criminalize transgender people on the basis of  their appearance;  pending their reform, desist from applying these laws; and adopt a moratorium accordingly;
  • Depathologization: reform the  classification of  LGBTI people as suffering from illness/ disorder ;  work with the medical, scientific and other sectors to delist LGBTI people  from such classification, including at the national level;  and end  the practice of  aversion therapy/conversion therapy (wrongly) aimed at changing LGBT peoples’ orientation and identity;
  • Status recognition: recognize in law and practice  the desire of  people to change their gender identity on official and other documents; discard the condition that they must undergo surgery before they can change gender; and overcome bureaucratic hurdles in official and other circles on this front ;
  • Gender-diverse Cultural Inclusion: identify and disseminate all-inclusive interpretations of  religion and other beliefs with space for gender diversity; work with religious, political,  community and opinion leaders to advocate respect for and protection of  LGBTI people; and enable LGBTI people to associate and participate fully in family life and societal change;
  • Empathization: promote a human rights sensitive and less binary (or non binary) educational and socialization process to address violence and discrimination from childhood onwards; prevent bullying from a young age; and involve teachers, parents, communities, and children/youth in nurturing an all-inclusive understanding of

For we seek simply to be what we are, in our love, friendship, privacy and intimacy, under the protection of  International Law.