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Leila Lohman Prof. G. Andreopoulos Columbia University

May 2012

Human Rights Violations Based on Sexual Orientation and Gender Identity:1 Negotiating Rights at the United Nations

“Sexuality and sexual activity, regardless of the society [or culture], are intricately linked with the exercise of power. (…) This is because sexuality is a highly value laden terrain.”2 As American philosopher Nancy Fraser writes: “[overcoming] homophobia and heterosexism requires changing the culture valuations (…).”3 Such an approach focuses on demanding recognition, and is based on identity politics. Other activists have focused on legal reform, such as the repeal of anti-sodomy laws or any other laws that specifically target LGBT persons. As Scott Long recalls for example: “(…) in India, the focus of LGBT activism for almost two decades has not been cultural affirmations of identity (…).” 4 As a consequence, in 2009, New Delhi’s highest Court overturned its ban on “carnal intercourse against the order of nature,” which had been previously put in place in 1837 by the British. Western bourgeoisie in the 19th century created the “homosexual” as “(…) a personage, a past, a case history (…),”5 in order to control social relations and protect the rising capitalist/patriarchal kin structure. In turn, one can trace anti-sodomy laws in the postcolonial world to the penal code imposed by the colonial authorities in the 19th and 20th centuries: Great Britain imposed a sodomy law on its Indian possessions in 1837. The Indian Penal 1

The terms “Sexual Orientation” and “Gender Identity” are currently still controversial and widely debated within at the UN.

2

Msibi Thabo, “The Lies We Have Been Told: On (Homo) Sexuality in Africa,” In Africa Today, vol. 58, num. 1, Fall 2011.

3

Fraser Nancy, “Justice Interruptus: Critical Reflections on the “Postsocialist Condition,” Routledge, 1997.

4

Long Scott, “Unbearable witness: how Western activists (mis)recognize sexuality in Iran,” In Contemporary Politics, Vol., 15, No., 1, 119-136, March 2009. 5 Foucault Michel, “The History of Sexuality: An Introduction,” Volume One, Vintage Books, 1990.

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Code, a vast imperial experiment in making a conquered territory submit to codified Western law, criminalized “unnatural lust.” The provisions spread to other colonies; today the Republic of India, Bangladesh, Singapore, Malaysia, Kenya, Uganda, and Tanzania are among its inheritors. Other colonizers-French, Dutch, German-imposed their own penalties on homosexual acts.6

In 2007, approximately one half of United Nations’ (“UN”) members, namely 85 states, still had anti-sodomy laws and/or other legal provisions against same-sex sex activities (most are postcolonial states). However, none of the five permanent members of the Security Council have explicitly anti-gay laws, although Russia does not have any provisions protecting against discrimination based on sexual orientations nor gender identity. This paper looks at the development of issues around sexual orientation and gender identity (hereinafter “SOGI”) at the UN level. The underlying suggestion in this paper is that domestic development among some UN members, reports by UN Special Procedures, and jurisprudence from treaty bodies and other entities (within and without the UN) are influencing normative perceptions around SOGI issues at the UN. In addition, states that criminalize same-sex activity have led LGBT activists to seek help at the international level, creating “a boomerang-effect,”7 domestically. Consequently, we are witnessing mounting pressure from below (activists), from within the UN (Special Procedures, treaty bodies, and the Human Rights Council), and more recently from above (UN inter-governmental subgroups) directed at states to decriminalize same-sex sex. From a theoretical standpoint, this paper draws on Martha Finnemore and Kathryn Sikkink’s “International Norm Dynamics and Political Change,” 8 as well as Wayne Sandholtz and Kendall Stiles’ “International Norms and Cycles of Change.” 9 In the former study, 6

Long Scott, “Two Novembers, Movements, Rights, and the Yogyakarta Principles,” Human Rights Watch’s World Report, 2008. 7 Keck Margaret E. and Kathryn Sikkink, “Activists beyond boarders: Advocacy Networks in International Politics,” Cornell University Press, 1998. 8 Finnemore Martha and Sikkink Kathryn, “International Norm Dynamics and Political Change,” In International Organization, vol. 52(4), pp.887-917, 1998. 9 Sandholtz Wayne and Stiles Kendall, “Interntational Norms amd Cycles of Change,” Oxford University Press, 2009.

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Finnemore and Sikkink describe, through a linear model, the institutionalization of women’s rights and laws of war, from their stage of “norm emergence,” and “tipping point” into the stage of “norm cascade” until reaching their present stage of internalization. In a similar fashion, this paper analyzes developments around SOGI issues at the UN through the theoretical stages of the “normative process.” However, as Sandholtz and Stiles recall by presenting there cyclical normative model, the linear model presents some flaws in that it sees “norms as essentially outcomes,” and also because it ignores “the ubiquitous and potent dynamic of change that is inherent to every normative system.”10 This paper is constructed in the following way: documented historical facts such as conferences, UN resolutions, speeches and reports and jurisprudence by UN treaty bodies on SOGI issues are used as points of reference to demonstrate the different stages of its normative process within the UN context. Hence, part one starts by describing the efforts made to bring SOGI issues to the UN, in the last decades, by what Finnemore and Sikkink coin “norm entrepreneurs.” Among the notable successes are the elimination of the phrase “homosexuality” from the World Health Organization’s International Classification of Diseases on May 17th 1990 (depathologization), advancements made by “framing” sexual rights and sexual health during the International Conference on Population and Development (ICPD) held in Cairo (1994) as well the case Toonen v. Australia (1994)11 in which the Committee ruled that criminalizing samesex activities was an infringement to the right of privacy protected by the ICCPR (decriminalization). In other words, part one serves to identify the origin or “norm emergence” stage of SOGI issues, and as such will also provide a description of some of the challenges to existing “logics of appropriateness” faced by “norm entrepreneurs.” Part two argues that more or less two decades following the norm emergence stage, we 10

Idem.

11

Toonen v. Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994).

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are currently at tipping point stage. This can be seen through the combination of a series of joint statements relating to SOGI made by an ever-increasing “critical mass” of member states. In this case “critical mass of member states” is to be understood as both the growing number of countries that are following the path of decriminalization, and the disproportionate power possessed by the adherents of this new norm have in the international sphere, such as the permanent members of the UN Security Council. Among the landmark documents discussed is the “Joint statement on sexual orientation and gender identity,” delivered in 2008 at the UN General Assembly, by Argentina on behalf of sixty-six member states acting as “co-sponsors.” In addition, in the context of the UN, it is important to mention that alongside a “critical mass of member states” supporting anti-discrimination based on SOGI, non-state actors, such as Special Procedures, and the Secretary General, or sub-groups of intergovernmental members, such as the UN Human Rights Council 12 have relatively high legitimacy and/or power to influence other states’ behavior through reports and speeches by the former and resolutions by the latter. The third part serves as a conclusive chapter, which will discuss the most recent significant developments within the UN around SOGI issues. This part also brings us back to the normative theories mentioned above, and presents an overview of potential outcomes.

Part One: Normative Emergence of SOGI Issues at the UN LGBT NGOs at the UN: Access denied 12

See: UN Human Rights Council Resolution on “Sexual orientation and gender identity,” June 17, 2011, Resolution 17/19, A /HRC/RES/17/19. In Human Rights Watch Report: “Keeping the Momentum, One Year in the Life of the UN Human Rights Council,” 2011.

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Finnemore and Sikkink stress that for norm entrepreneurs, the motivation behind activism comes from “empathy,” “altruism,” and “ideational commitment.” However, when dealing with SOGI issues, in most cases, motivation is rather to be understood as essentially egocentric and always in part about recognition. Indeed, due to some states’ “(…) insistence that LGBT people have no human rights,”13 SOGI violations “rise the most egregious human rights violations,”14 which have inherent impact on the self of such activists.15 Hence, for some LGBT activists, mainly from postcolonial countries, more recently the international platform has been the only sphere to be heard. Ironically, though, because UN members are comprised of the same states that sponsor homophobia in their countries, activists working on SOGI issues have been confronted with a disproportionate amount of barriers in accessing international organizations such as the UN. Since the Economic and Social Council (“ECOSOC”) passed resolution 1996/31, the NGO Committee is responsible to evaluate applications by NGOs.16 Access to the UN for non-governmental organizations working on SOGI issues has (and still is) been challenging due to the political nature of the accreditation process: “[few] LGBT NGOs have been granted (…) status in the last few years and all of them have followed the same path: negative recommendation from the NGO Committee, subsequently overturned by ECOSOC (…).”17 As Joke Siebel recalls: “[social] and political movements, such as the LGBT movement, have various stages to go through – or barriers to overcome – in approaching international organizations.”18 The International Gay and Lesbian Human Rights Commission has stated 13

Long Scott, “Two Novembers, Movements, Rights, and the Yogyakarta Principles,” Human Rights Watch’s World Report, 2008. 14 International Commission of Jurists, “Sexual Orientation and Gender Identity in Human Rights Law, References to Jurisprudence and Doctrine of the United Nations Human Rights System,” 2007. 15 See Report by the Special Representative of the Secretary General on Human Rights Defenders (2001): United Nations Economic and Social Council, Report of the Special Representative of the Secretary General on Human Rights Defenders, E/CN.4/2001/94 (2001), para 89(g). 16 See resosultion 1996/31: http://www.un.org/documents/ecosoc/res/1996/eres1996-31.htm (Consulted May 5 2012) 17

International Gay and Lesbian Human Rights Commission, “LGBT NGOs and Consultative Status at the United Nations in 2008,” October 2008. 18 Swiebel Joke, “Lesbian, gay, bisexual and transgender human rights: the search for an international strategy,” In

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that “questions from opponents states tend to associate LGBT people and their NGOs with pedophilia.”19 Resistance from by the NGO Committee in the accreditation process can be seen as symptomatic of a dispute between conflicting ideas of “shared social purpose,” which occurs during the first stage of the “normative process.” In the first phase of the “normative process,” “norm entrepreneurs,” as Finnemore and Sikkink suggest are faced with harsh opposition against their new or alternative ideological position. In this case, since the norm being negotiated touches upon sexuality and the body, both closely interpreted according to cultural values, resistance is exacerbated. Difficulty for NGOs working on SOGI affairs to have a voice within the UN could also explain why, as later described, a Dutch government representative was the first to mention the term “lesbian rights” in a UN sponsored discussion. A point of Departure: The UN World Conferences on Women According to Joke Swiebel, activist and former member of the European Parliament, “[the] first speaker to introduce the issue at a formal UN meeting was the Dutch (…) Minister Annalien Kappeyne van de Coppello, who in her speech to the (third) UN World Conference on Women, in Nairobi in 1985, pleaded for lesbian rights (…).”20 However, as Cynthia Rothschild recalls, “[no] conference is an island,”21 and thus the Nairobi conference built on the two previous UN World Conferences on Women, in Mexico City in 1975 and in Copenhagen in 1980. The fact that “lesbian rights” were mentioned only during the third UN World Conference on Women echoes Charlotte Bunch’s following statement: “[women’s] movements in almost every region have been fearful of lesbianism (…).” 22 Nevertheless, the Contemporary Politics, Routledge, March 2009. 19 International Gay and Lesbian Human Rights Commission, “LGBT NGOs and Consultative Status at the United Nations in 2008,” October 2008. 20 Swiebel Joke, “Lesbian, gay, bisexual and transgender human rights: the search for an international strategy,” In Contemporary Politics, Routledge, March 2009. 21 Rothschild Cynthia, “Written Out, How Sexuality Is Used To Attack Women’s Organizing,” A Report of the International Gay and Lesbian Human Rights Commission and the Center for Women’s Global Leadership, 2000. 22 Bunch Charlotte and Claudia Hinojosa, “Lesbians Travel the Roads of Feminism Globally,” in John D’Emilio, William B. Turner and Urvashi Vaid, eds., “Creating Change: Public Policy, Civil Rights and Sexuality,” New York, 2000.

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advancements made during the first three UN World Conferences on Women, are immense, and eventually lead the path to the visibility around the discourse on “sexual rights,” later concretized during the Cairo International Conference on Population and Development (“ICPD”) in 1994 and as well as during the Beijing Fourth World Conference on Women in 1995. During the ICPD in 1994 and the Beijing Fourth World Conference on Women in 1995, some NGOs working on SOGI issues and/or many NGOs women’s rights were represented: “[in] 1995, women worldwide mobilized to support references to “sexual orientation” in the final document (…) in Beijing.”23 All activists present during these conferences were concerned about raising the issues of bodily control and regulation of sexuality by the state, whether through sodomy laws, which target homosexual persons, denial of access to contraception and abortion, or forced sterilization among others. Bodily integrity and sexual autonomy were seen as central to a developing human rights framework for both women’s rights and SOGI advocates. The ICPD held in 1994 was a “landmark event” because states recognized that sexual and reproductive health is fundamental to a person’s wellbeing, however, in Beijing, sexual health were to become linked but would no longer act as a subset to reproductive health. Needless to say that this attempt at separating the sexual from the reproductive aspect was met with great resistance by religious leaders, for who sexual acts are solely linked to procreation: “The Holy See formed alliances (…), with government delegations and conservative NGOs to combat any mention of sexual rights, or any appearance of sexual nonconformity, during the conference.”24 As a result of the separation of sexual rights from reproductive rights, Alice Miller writes: “disappeared (…) people of varying ages and non-conforming sexual identities,

23

Long Scott, “Two Novembers, Movements, Rights, and the Yogyakarta Principles,” Human Rights Watch’s World Report, 2008. 24 Rothschild Cynthia, “Written Out, How Sexuality Is Used To Attack Women’s Organizing,” A Report of the International Gay and Lesbian Human Rights Commission and the Center for Women’s Global Leadership, 2000.

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as well as non-reproductive sexual practices (…),”25 could finally gain a voice. The most tangible result of the Beijing Fourth World Conference on Women became the Platform for Action (“PFA”). Despite resistance from The Holy See and its allies, Paragraph 96 of the PFA recalls that the “free experience of sexuality,” is central to women’s rights: “The human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination, and violence.”26 One step ahead: The European Courts and The Human Rights Committee According to Lauri Sivonen, advisor to the Commission for Human Rights of the Council of Europe, the term “sexual identity” is mentioned in European jurisprudence since the 1970’s. Since then the Court of Justice of the European Union in Luxembourg “has approached gender identity discrimination through the “sex” ground.” 27 On the other hand, because the European Court of Human Rights (“ECtHR”) “operates on an open-ended list of discrimination grounds [it has not had] such imperative need to identify gender identity discrimination with the sex ground.”28 The ECtHR has nevertheless made distinctions between gender identity and sexual orientation. In most cases, the ECtHR rarely ruled under Article 14 of the European Convention on Human Rights (“ECHR”), related to the prohibition of discrimination. Instead, in most cases related to transgender persons, the ECtHR has usually “preferred to decide (…) with reference to the substantial Articles (e.g. 3 (Prohibition of Torture), (…), 8 (Right to Respect for Private and Family Life) and 12 (Right to Marry)), (…).29 25

Miller Alice M., “Sexual But Not Reproductive: Exploring the Junction and Disjunction of Sexual and Reproductive Rights,” In Health and Human Rights, 2000. 26 UN Fourth World Conference on Women, Beijing Platform for Action, Paragraph 96. See: http://www.un.org/womenwatch/daw/beijing/pdf/Beijing%20full%20report%20E.pdf (Consulted May 5 2012) 27 Sivonen Lauri, “Gender Identity Discrimination in European Judicial Discourse,” In The Equal Rights Review, Vol., 7, 2007. 28 Idem. 29

Idem.

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Building on European jurisprudence, in the Toonen vs. Australia case in 1994, the UN Human Rights Committee (“the Committee”), treaty body of the Covenant on Civil and Political Rights (“ICCPR,”1976), judged discrimination based on “sexual orientation” as a breach of the right to privacy (Article 17): “[in] so far as article 17 is concerned, it is undisputed that adult consensual sexual activity in private is covered by the concept of “privacy” (…).30 This milestone ruling came after Nicholas Toonen a Tasmanian resident had brought his claim before the Committee in 1991.31 Hence, Australia, who had ratified the ICCPR on August 13th 1980, found itself in breach of the treaty and subsequently overturned its last anti-sodomy law, which it had inherited as a British colony, which consequently overturned Tasmania’s criminalization of same-sex activity. In the Toonen vs. Australia case, the Committee acted as a norm entrepreneur on an international level, by demonstrating that the limits between the public and the private spheres are interconnected, and that as Gayle Rubin as said: “sex is always political (…).” This case also serves as an example of the “boomerang effect,” in that Nicholas Toonen successfully sought support at the international level in order to make domestic laws change. Moreover, since the Toonen vs. Australia case, the Committee has been the most active treaty body relating to explicitly referring to SOGI. In some cases, requests were addressed by the Committee to repeal anti-sodomy laws or other anti-homosexual legal provisions. Such a request was addressed, for example, to Chile in 1997, Romania in 1999, Egypt in 2002, and Kenya in 2005.32 In addition, the Committee has “welcomed” repeals, if following a previous request by the Committee, a state has overturned its anti-sodomy laws. In this line, the Committee addressed a “welcome” to Australia in 2000 and to Chile in 2007.33 In addition to

30

See the Human Rights Committee’s findings: http://www.unhchr.ch/tbs/doc.nsf/0/d22a00bcd1320c9c80256724005e60d5 (Consulted May 5 2012) 31 At the time same-sex sex was criminalized in Tasmania. 32

International Gay and Lesbian Human Rights Commission, “Summary of References re. Sexual Orientation and Gender Identity by CEDAW, Other UN Treaty Bodies and Special Rapporteurs,” October 2008. 33 Idem.

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welcoming and/or requesting the repeal of anti-sodomy laws, the Committee has acted in a progressive manner by additionally welcoming or condemning anti-discrimination as well as anti-hate crime legislation protections. Time for Change at the World Health Organization: “Undoing” Homosexuality In 1990, some changes had been underway at the World Health Organization (“WHO”); under Norwegian Director-General Gro Harlem Bruntland, the WHO eliminated the phrase “homosexuality” from its list of International Classification of Diseases (“ICD10”).34 Here there can be only slight suspicion over the correlation between Director-General Harlem Bruntland’s background and liberal stance on homosexuality and the elimination of the phrase from the ICD-10 in 1990, during her tenure of the WHO. 35 Furthermore, since 1975, the American Psychological Association, the largest of its kind in the United States, had already dissociated “homosexuality” from a mental disorder: “homosexuality per se implies no impairment in judgment, stability, reliability, or general social and vocational capabilities.”36 Given the influence of the United States’ government at the UN in general, the discursive developments seen within the country’s leading psychological association can also be interpreted has having had relative impact at the WHO. This discursive shift within the WHO constitutes the deconstruction or undoing of “homosexuality” as a medical anomaly. This shift is ever more paradigmatic because the ICD-10 is the world’s most widely used medical classification list, along with the American Psychiatric Association’s “Diagnostic and Statistical Manual of Mental Disorders,” (“DSM”).37 Canadian activist Françoise Girard, referring to Foucault’s work has linked this

34

The ICD 11th revision is due by 2015. See: http://www.who.int/classifications/icd/revision/en/index.html

35

Homosexuality was decriminalized in 1972 in Norway. See http://old.ilga.org/Statehomophobia/ILGA_State_Sponsored_Homophobia_2010.pdf 36 Fox, R. E. (1988). Proceedings of the American Psychological Association, Incorporated, for the year 1987: Minutes of the annual meeting of the Council of Representatives. American Psychologist, 43, 508-531. doi: 10.1037/h0091999 37 At this point, only the USA and China have their own medical classification list.

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shift within the WHO as a move away from the “psychiatrization” of homosexuality. Indeed, in

Foucault’s

“History

of

Sexuality,” 38

“hysterization,”

“pedagogization,”

the

“responsibilization,” and “psychiatrization” of perverse pleasures”39 are identified as four strategies developed in the Western world since the eighteenth-century to deploy and control sexuality. The following comment on homosexuality by Austrian neurologist Sigmund Freud serves as primary example of what Foucault coined the “psychiatrization” of homosexuality as a perverse pleasure: “The most important of these perversions, homosexuality, scarcely deserves the name. It can be traced back to the constitutional bisexuality of all human beings and to the after-effects of the phallic primacy.”40 That said, however, even though the WHO has removed the diagnosis of homosexuality as a mental disorder from the ICD-10, the list still includes a diagnosis of “Ego-Dystonic Sexual Orientation,” (“EDSO”) under the rubric “Psychological and behavioral disorders associated with sexual development and orientation,” which is in part “F66” of the ICD-10. This rubric starts with a preliminary note, which reads: “sexual orientation by itself is not to be regarded as a disorder.” In part “F66.1” one finds a definition of EDSO: “The gender identity of sexual preference (heterosexual, homosexual, bisexual, or prepubertal) is not in doubt, but the individual wishes it were different because of associated psychological and behavioral disorders, and may seek treatment in order to change it.”41 Note that the American Psychiatric Association eliminated the diagnosis of EDSO from its DSM in 1987, and that same year the American Psychological Association released a resolution, which equally condemned the use of the EDSO diagnosis. Recently, however, Ronald Schlittler, Program Coordinator at the American Psychological Association has announced

38

Foucault Michel, “The History of Sexuality: An Introduction,” Volume One, Vintage Books, 1990.

39

Girard Françoise, “Negotiating Sexual Rights and Sexual Orientation at the UN,” In Sexpolitics; Reports from the Frontline.” 40 Freud, S. (1964). An autobiographical study (J. Strachey, Trans.; rev. ed.). In Strachey, J. (Ed.). The standard edition of the complete psychological works of Sigmund Freud. London: The Hogarth Press and the Institute of Psycho-Analysis. 41 See ICD-10, Part F66.1: http://apps.who.int/classifications/icd10/browse/2010/en#/F66.1

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that the diagnosis of EDSO will most likely be eliminated from WHO’s ICD-11 list, which is currently under review and due in 2015. Special Procedures, Special “norm-entrepreneurs” One could read the appointment in 1994 of a UN Special Rapporteur on Violence against Women following the 1993 Vienna Conference on Human Rights as a direct outcome of the accumulation of claims addressed by participants during the three previously held World Conferences on Women, and simultaneously as a support system for the posthumous Beijing Fourth World Conference on Women (1995). Radhika Coomarasway, a native Sri Lankan and US-trained lawyer was appointed as first UN Rapporteur on Violence against Women, and subsequently became a key figure around SOGI issues in demonstrating that women who “live out their sexuality in ways other than heterosexuality” 42 are particularly susceptible to being rejected and discriminated against in society. Coomarasway also demonstrated “how gender-based violence is rooted in social constructions of feminine and masculine identity and perpetuated or justified by narrow interpretations of tradition, culture, privacy, and family.”43 More recently, in a 2001 report the Special Rapporteur on Torture, Sir Nigel Rodley equally focused on patterns of torture against sexual minorities, among which he found: “prevalence of sexual violence, the infliction of cruel, inhuman, and degrading punishments for consensual same-sex relationships or transgender behavior, and ill treatment in prisons, state medical institutions, and the armed forces.”44 In a subsequent report, Rodley 42

See: United Nations Economic and Social Council, Report of the Special Rapporteur on Violence against Women, Violence against Women in the Community, E/CN.4/1997/47 (1997), para 8. 43 Saiz Ignacio, “Bracketing Sexuality: Human Rights and Sexual Orientation – A Decade of Development and Denial at the UN,” SPW Working Papers, No. 2, November 2005. Also see: United Nations Economic and Social Council, Report of the Special Rapporteur on Violence against Women, Violence against Women in the Family, E/CN.4/1999/68 (1999), paras 6-18; United Nations Economic and Social Council, Report of the Special Rapporteur on Violence against Women, Cultural Practices that are Violent Towards Women, E/CN.4/2002/83 (2002), paras 99-104. 44 Saiz Ignacio, “Bracketing Sexuality: Human Rights and Sexual Orientation – A Decade of Development and Denial at the UN,” SPW Working Papers, No. 2, November 2005. See Also: United Nations Economic and Social Council Report of the Special Rapporteur on Torture, E/CN.4/2002/76 (2001). “Torture and discrimination against sexual minorities” are included as special concerns.

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demonstrated how discrimination based on SOGI can “compound the risk of torture or illtreatment for people who are (…) living with HIV/AIDS.”45 In 2001, Hina Jilani, the UN Special Representative of the Secretary General on Human Rights Defenders, highlighted that activists dealing with challenging social structures and values, face an overwhelming risk and barriers: “[of] special importance will be (…) those who are active on issues of sexuality, especially sexual orientation and reproductive rights, (…).”46 Moreover, in her 2006 annual report, Jilani stresses: The Special Representative has sent communications concerning defenders working specifically on the rights of lesbian, gay, bisexual and transgender (LGBT) persons who have had their right to peaceful assembly violated. In one case from India, the police, allegedly several times, barred defenders and LGBT persons from entering the office of an organization working on LGBT rights. In a case from Poland, an “Equality March” organized by LGBT defenders was banned by the authorities; however, the Special Representative was pleased to note that it was allowed the following year. 47

Paul Hunt who was Special Rapporteur on the right to health (2002 – 2008) as well as his successor Anand Grover have both been particularly dedicated at including discrimination and SOGI issues in their research and reports. In a controversial 2004 report, “[as] part of his contribution to the tenth anniversary of the ICPD,” Paul Hunt wrote about sexual and reproductive health and refers explicitly to sexual minorities:

The legal prohibition of same-sex relations in many countries, in conjunction with a widespread lack of support or protection for sexual minorities against violence and discrimination, impedes the enjoyment of sexual and reproductive health by many people with lesbian, gay, bisexual and transgender identities or conduct. 48 45

Saiz Ignacio, “Bracketing Sexuality: Human Rights and Sexual Orientation – A Decade of Development and Denial at the UN,” SPW Working Papers, No. 2, November 2005. See also: United Nations Economic and Social Council, Report of the Special Rapporteur on Torture, E/CN.4/2004/56 (2004), para 64. 46 United Nations Economic and Social Council, Report of the Special Representative of the Secretary General on Human Rights Defenders, E/CN.4/2001/94 (2001), para 89(g). 47 See Annual Report of the Special Representative to the General Assembly of the United Nations, A/61/312, September 5, 2006, In “Sexual Orientation and Gender Identity in Human Rights Law, References to Jurisprudence and Doctrine of the United Nations Human Rights System,” International Commission of Jurists, Third updated edition, 2007. 48 See Report of the Special Rapporteur Paul Hunt: http://daccess-ddsny.un.org/doc/UNDOC/GEN/G04/109/33/PDF/G0410933.pdf?OpenElement

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Paul Hunt’s successor Anand Grover49 became Special Rapporteur on the right to health in 2008, and simultaneously played a key role in the nine-year battle, which brought Delhi’s highest Court to decriminalize same-sex sex in 2009. In 2010 and 2011, Grover produced two reports dedicated to sexual health and reproductive health. In the former the Special Rapporteur writes: “the criminalization of private, consensual sexual interaction between adults represents a significant impediment to the realization of the right to health of all persons, particularly those against whom the law is directed.”50

Part Two: States Taking Responsibility, “tipping-point” Two decades after the phrase “lesbian rights” was raised in the context of a UN conference, states as well as relatively influential UN inter-governmental bodies have started to take responsibility and address SOGI by passing resolutions and statements. In addition, SOGI issues have recently become taken up and addressed at the Office of the High Commissioner for Human Rights as well as at the Office of the High Commissioner for Refugees. In other, words, SOGI issues are making there way to increasingly powerful actors and through increasingly binding mediums within the UN. Although, SOGI issues have not yet reached the stage of “norm cascade,” building on reports by UN Special Procedures, doctrine by treaty bodies, and by keeping in mind the unequal power-dynamics between states, one sees that norm leaders have already begun to attempt to “socialize other states to become norm followers.” For example, in order to incite developing countries to repeal their homophobic laws, British Prime Minister James Cameron recently stressed an aid conditionality strategy, by which a percentage of funding would be redirected based on how badly states treat sexual minorities. However, such strategies do not 49

Anand Grover is known for his legal activism related to same-sex sex and HIV/Aids.

50

See report on the “right to health and criminalization of same-sex conduct and sexual orientation, sex-work and HIV transmission”: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G10/131/18/PDF/G1013118.pdf?OpenElement

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come without resistance and disputes. The attempt by norm-entrepreneurs to socialize other actors was previously demonstrated through reports by Special Procedures, as well as addresses made by the Human Rights Committee. And one could also argue that the elimination of the phrase “homosexuality” from the World Health Organization’s International Classification of Diseases in 1990 acted as cry demanding for discursive and normative shift, at least in the medical field. In this sense, as Sandholtz and Stiles recall, norms are not “essentially outcomes.” Rather, they are a dynamic production of multidimensional discursive forces, which act to reproduce the same. However, every once in a while, one of the dimensions that were contributing to the normative process in place, attempts, for various reasons, to deviate and fight back. The question is whether this new norm entrepreneur is capable of gaining the support of the other contributors or dimensions of the norm s/he is willing to change. It appears, that things are moving towards a more inclusive end for persons with nonconforming sexual and gender identities.

States finally take up SOGI Issues – The “Yogyakarta Principles” In 2003, during the 59th session of the Commission on Human Rights (“CHR”), the Brazilian delegation presented “The resolution on Human Rights and Sexual Orientation,” 51 in which it called upon all states to “promote and protect the human rights of all persons regardless of their sexual orientation.”52 According to the International Gay and Lesbian 51

For the full text of the resolution see: http://ilga.org/ilga/en/article/406

52

Idem.

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Human Rights Commission, Brazil has been at the “forefront” of state effort to include language on SOGI and human rights at the UN. The proposal was initially supported by the European Union, Canada, Australia, Mexico and Costa Rica. However, after pressure by the Vatican with the collaboration of the Islamic Conference countries, “particularly Pakistan, 53 Malaysia, Saudi Arabia and Bahrain,” and other states such Zimbabwe, Mexico and Costa Rica eventually withdrew their support for the resolution. Resistance against this resolution was strong in part because of the pioneering nature it presented, and so due to mounting pressure from opposing states, in 2004 Brazil eventually withdrew its resolution. The significance of Brazil’s attempt lies in the fact that this UN CHR resolution presents the first state-led attempt to “connect the full range of human rights to sexual orientation and to condemn discrimination against people because of their sexual orientation.” 54 About Brazil’s withdrawal of the resolution, Scott Long has noted: “the political sides of international institutions have shown little will to address even grave abuses related to sexuality or gender identity.” According to Long, the old Commission, the Human Rights Council as well as the Office of the High Commissioner for Human rights are directly impacted by political or cultural disputes among UN members. The withdrawal of “The resolution on human rights and sexual orientation,” by Brazil in 2004, had two main direct outcomes; first, on December 1 st 2006 Norwegian Ambassador Wegger Strommen presented a “Joint Statement,” on behalf of fifty-four states, 55 at the third session of the Human Rights Council in Geneva. 56 The second major outcome was the meeting between sixteen eminent experts on international human rights in Yogyakarta, 53

At the time, the Ambassador of Pakistan said that the resolution was “politically incorrect,” and that it presented a “direct insult to all 1.2 billion Muslims in the world.” See: International Gay and Lesbian Human Rights Commission, “Resolution on Sexual Orientation and Human Rights,” Campaign Dossier, 2003. 54 Idem. 55

Among the fifty-four states co-sponsors were Albania, Andorra, Bosnia and Herzegovina, Brazil, Bulgaria, Guatemala, Latvia, Malta, Peru, the Republic of Korea, Timor-Leste and Switzerland. 56 See joint statement: http://www.ilgaeurope.org/home/issues/ilga_europe_s_global_work/united_nations/ilga_europe_and_joint_statements/joint_statement_on_se xual_orientation_gender_identity_and_human_rights_at_united_nations_2008/norwegian_statement_at_the_un Among the states co-sponsoring the “Joint Statement” were eighteen members of the Human Rights Council.

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Indonesia, in 2006 to discuss issues such as sexuality, gender, and human rights. According to Scott Long: “The experts believed that if the UN’s institutions could not say the obvious about how human rights applied to sexuality and gender, they would do so themselves.” 57 Among these experts present in Yogyakarta was “UN special rapporteur to the United Nations Human Rights Council, four present and former members of UN treaty bodies, a member of Kenya’s National Commission on Human Rights (…).”58 The meeting led to a concluding document titled: “The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity,” 59 more commonly known as “The Yogyakarta Principles.” This document represents the first of its kind to claim itself “a universal guide to human rights which affirm binding international legal standards with which all States must comply,” and to be related to SOGI at the same time. Scott Long has summarized the pioneering character of the Yogyakarta Principles in the following way: “The Yogyakarta Principles attempt to treat sexuality and gender in ways they have nor usually been treated by the law: not as embarrassments better left alone, but as places where human beings do things that help define themselves.”60 The finalized document of the Yogyakarta Principles was launched at the UN Human Rights Council in Geneva on March 26 th 2007. That same year, following a trip to Latin America by Boris Dittrich, the newly appointed Director of Advocacy at the LGBT Program at Human Rights Watch, to introduce the Yogyakarta Principles to Brazil, Argentina and Uruguay, the three states co-sponsored the presentation of the document during an event at the UN headquarters in New York. By 2008, several governments had officially endorsed the Yogyakarta Principles, including for example the Netherlands. In an address to the Human

57

Long Scott, “Two Novembers, Movements, Rights, and the Yogyakarta Principles,” Human Rights Watch’s World Report, 2008. 58 Idem. 59

See “Yogyakarta Principles” website: www.yogyakartaprinciples.org

60

Long Scott, “Two Novembers, Movements, Rights, and the Yogyakarta Principles,” Human Rights Watch’s World Report, 2008.

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Rights Council, then Dutch Minister of Foreign Affairs, Maxime Verhagen, expressed in a statement: “The Dutch government subscribes to the Yogyakarta Principles (…). I call upon other States to embrace these principles as well.” 61 Moreover, in 2010, David Brown noted that among the 29 Principles inscribed in the document “(…) [several] have already become a fixture in the proceedings of the United Nations Human Rights Council, (…).” 62 Brown continues to explain that national courts, when overturning discriminatory laws, which target same-sex activity, have cited several of the principles. A “Clash of Civilizations” at the United Nations’ General Assembly In December 2008, after the Ambassador of Gabon was pressured not to introduce the “Joint statement on sexual orientation, gender identity and human rights,” in front of the UN General Assembly,63 Argentina took the lead and presented the resolution on behalf of sixtysix states, and the United States joined the coalition shortly thereafter. In this document, among other things, Argentina refers to, the previous statement presented by Norway in 2006 to the Human Rights Council. As the first “Joint statement” on SOGI ever to be addressed at the United Nations’ General Assembly, the decades of development since the UN Women’s conferences, reports by special procedures, and jurisprudence by treaty bodies among other things were illustrated in the tone of the document: “We condemn the human rights violations based on sexual orientation or gender identity wherever they occur (…).” 64 Immediately after Argentina presented its statement on behalf of sixty-six UN members, a counterstatement was read by Syria on behalf of a coalition of fifty-four states. Among the arguments made in the counterstatement were that extending human rights to homosexual persons would lead to the 61

Statement by H. E. Mr. Maxime Verhagen, Minister of Foreign Affairs of the Kingdom of the Netherlands, 7 th session of the Human Rights Council, Geneva, March 3, 2008, AVT08/BZ89826. In Human Rights Watch report: “Controlling Bodies, Denying Identities,” 2011. 62 David Brown, “Making Room for Sexual Orientation and Gender Identity in International Human Rights Law: An Introduction to the Yogyakarta Principles,” In Michigan Journal of International Law, 31,4, Summer 2010: 821-879. 63 70th-71st General Assembly plenary meeting 64

See Article 6 of the joint statement: http://ilga.org/ilga/en/article/1211

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promotion of “pedophilia,” “bestiality,” and “fornication,” associated with “adultery.” No more extrajudicial killings says the Human Rights Council The Human Rights Council (successor to the UN Commission on Human Rights) is an inter-governmental body within the UN made up of forty-seven states. The Council is “responsible for the promotion and protection of all human rights around the globe.” 65 Although current Secretary General Ban Ki Moon, and former High Commissioner for Human Rights, Mary Robinson have criticized the Human Rights Council (“UNHRC”) for prioritizing political interests over protecting human rights, the UNHRC has on several occasions raised concern around discrimination based on SOGI. Its predecessor the Commission on Human Rights raised the issues especially in the context of reports on extrajudicial killings and the question of the death penalty. For example, in a 2002 resolution,66 in which it refers to a previous report by the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, the Commission on Human Rights writes: “attention is given therein to violations of the right to life of women, (…) and persons killed because of the sexual orientation.”67 Note that the Human Rights Committee refers to a report by a Special Rapporteur, which confirms the idea of such actors serving as norm entrepreneurs, and the extent of their impact. Furthermore, in a subsequent 2005 resolution, the Commission urged “all States that still maintain the death penalty: (…) [to] ensure that the notion of most serious crimes does not go beyond intentional crimes with lethal or extremely grave consequences and that the death penalty is not imposed for non violent acts such as (…) sexual relations between consenting adults.”68

Part Three: Most Recent Developments, and Conclusions 65

See website of the UN Human Rights Council: http://www.ohchr.org/EN/HRBodies/HRC/Pages/HRCIndex.aspx

66

See resolution by the Commission on Human Rights: E/CN.4/RES/2002/36

67

See report by Special Rapporteur: (E/CN.4/2002/74 and Corr.1, Add.1 and Add.1/Corr.1 and Add.2)

68

See resolution by the Commission on Human Rights: E/CN.4/RES/2005/59

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At this point it has been established that developments around SOGI issues at the UN are moving with pace towards unprecedented support. In June 2011 the Council adopted its first ever resolution on SOGI and human rights. Among other things, the resolution called on the High Commissioner for Human Rights to commission a study, which would be presented during its winter session of the same year and discussed during its March 2012 session. 69 The study would have to document “discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity, in all regions of the world.”70 In addition the Council called upon the Office of the High Commissioner to “examine how international law can be used to end violence and related human rights based on sexual orientation and gender identity.” 71 About this resolution, Juliette Rivero, Geneva director at Human Rights Watch has said: “By adopting this resolution the Council took a first bold step into territory previously considered off-limits. It is the first text of its kind to recognize the suffering of people who are targeted because of their sexual orientation and gender identity.” 72 Thereafter in February 2011, in a powerful speech during the 16 th session of the Human Rights Council in Geneva, US Secretary of State Hilary Clinton affirmed: “gay rights are human rights and human rights are gay rights,”73 in a similar fashion to her address in 1995 at the Beijing Fourth World Conference on Women in 1995, where she stated: “human rights are women’s rights, and women’s rights are human rights.” US Secretary of State Clinton’s speech had followed an address by Navanethem Pillay, UN High Commissioner for Human Rights, as well as the “Joint Statement” delivered by Colombia on behalf of eightyfive states, which makes this statement the most successful yet to cover the issues of SOGI. 69

See Human Rights Council resolution: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/148/76/PDF/G1114876.pdf? OpenElement 70 Human Rights Watch Report: “Keeping the Momentum, One Year in the Life of the UN Human Rights Council,” 2011. 71

Idem.

72

Ibid.

73

Sentence extracted from Secretary of State Hilary Clinton’s speech at the Palais des Nations, on International Human Rights Day, Geneva, 2011.

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Additionally, for the first time, the number of co-sponsors not only was superior to opposing states; but the number of co-sponsors actually represented a majority of all 193 current UN members. In March 2012 as scheduled during its June session in 2011, and following its firstever resolution (17/19) on SOGI and human rights, the Human Rights Council held its first formal UN inter-governmental meeting relating to SOGI. The panel discussion was sponsored by South Africa and Brazil and the event was opened by a speech by UN Secretary General Ban Ki Moon in which he stated: To those who are lesbian, gay, bisexual or transgender, let me say: You are not alone. Your struggle for an end to violence and discrimination is a shared struggle. Any attack on you is an attack on the universal values the United Nations and I have sworn to defend and uphold. Today, I stand with you…and I call upon all countries and people to stand with you, too…a historic shift is underway… the time has come.74

Conclusions This paper has attempted to demonstrate that change is on its way; as UN Secretary General stated and even though their still remain multiple barriers, “a historic shift is underway.” At this point however, due to the discrepancy between discourses held at the UN, and the experience LGBT persons face on the ground, especially in countries where statesponsored homophobia still prevails, it would be premature to consider that a global normative shift is on its way. As the above lines will have recalled, politics still guide many of the decisions made within the UN, and very often politics are influenced by values (inherited or traditional). Also, there seems to be a global trend between Judeo-Christian countries that were once colonizers and Muslim and some African countries, most of which are postcolonial countries, even though ironically, the Holy See is at the forefront of the far-right/Conservative movement within the UN. As mentioned in the introduction, this can be traced to the legacy 74

Speech by UN Secretary General Ban Ki Moon, at the Human Rights Council session in March 2012.

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of penal codes imposed during colonial rule from the 18th until the 20th centuries. In essence, one could say that the normative shift has occurred among some states, and a growing number of states is currently decriminalizing same-sex activity, however on the other hand, a number of countries has also been closed to discussing or negotiating issues relating to SOGI, and this has significantly widened the gap between countries that uphold the death penalty for samesex activity and countries that provide equal civil and political rights for all, regardless of sexual orientation or gender identity. This paper has highlighted the interconnectedness and the diversity of norm entrepreneurs. It appears that an important shift happened once states started to promote nondiscrimination based on SOGI, both at the UN General Assembly and the Human Rights Council. This state-pressure has allowed the powerful ones to “socialize” other governments as well as on the Human Rights Council, which has now taken the issue into its own hands through resolution (17/19) in 2008. For the time being the most urgent advocacy work, which needs to be done around SOGI issues, is around the repeal of laws that discriminate against LGBT persons. Aid conditionality might not be the most elegant approach, but we have yet to find a more effective one.

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Other virtual sources: Homosexualit ywas decriminalized in 1972 in Norway http://old.ilga.org/Statehomophobia/ILGA_State_Sponsored_Homophobia_2010.pdf (Consulted May 5 2012) For the full text of the Brazilian resolution see: http://ilga.org/ilga/en/article/406 (Consulted May 6 2012) “Yogyakarta Principles� website: www.yogyakartaprinciples.org (Consulted May 9 2012) Article 6 of the joint statement: http://ilga.org/ilga/en/article/1211 (Consulted May 9 2012)

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Human Rights Violations Based on Sexual Orientation and Gender Identity