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1-277 Clarence St, Ottawa, ON, Canada, K1N 5R2 Ph. : 1-613-321-9841 z Fax : 1-613-321-9826 arc@arc-international.net z www.arc-international.net.

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OUT AT THE UN: Advancing Human Rights based on Sexual Orientation and Gender Identity at the 61st Session of the UN Commission on Human Rights March - April, 2005 __________________________________________________________________________________

This report provides an overview of sexual orientation and gender identity issues at the 61st Session of the Commission on Human Rights. While we have tried to be thorough, we welcome additions or amendments and will be more than happy to incorporate additional feedback from participants. We are grateful to those who provided input, and particularly wish to acknowledge Hassiba Hadj Sahraoui of the International Commission of Jurists (ICJ) for her assistance and support in compiling this information. ARC International is a not-for-profit organization, which works collaboratively with existing international and domestic organizations to advance recognition of human rights based on sexual orientation and gender identity at the international level, by building global networks and integrating these issues into international human rights machinery and discourse.


Executive Summary This year saw increased visibility, NGO participation and State awareness around sexual orientation and gender identity issues at the UN Commission on Human Rights (“CHR”). This report collates references to sexual orientation and gender identity by States, NGOs, Special Procedures and media at this year’s CHR. Through the determined efforts of NGOs from around the world, it is clear that lesbian, gay, bisexual and transgender issues are slowly, but surely, making their way onto the UN agenda. The increase in awareness around sexual orientation and gender identity issues was reflected in the reports of Special Procedures, statements made by Foreign Ministers during the high-level segment, and State party interventions throughout the Commission. NGOs continued to build awareness and visibility through oral and written statements to the plenary, film screenings, and parallel educational panels on a wide range of issues pertaining to sexual orientation and gender identity. NGO interventions covered a much broader ranger of topics and CHR agenda items than in previous years, and there was greater support from mainstream human rights NGOs. In addition, NGOs arranged and participated in meetings with State delegations, Special Rapporteurs and the UN High Commissioner for Human Rights, Louise Arbour. Perhaps surprising in the face of such increased visibility has been the relative absence of a vocal response from those opposed. Only one NGO made an intervention expressing concerns about sexual orientation equality (and then only in the context of the free speech implications of a specific Swedish law prohibiting the promotion of disrespect towards minorities). No State in plenary explicitly spoke against recognition of human rights based on sexual orientation, although Pakistan on behalf of the OIC (Organization of the Islamic Conference) warned against recognition of “new rights that can be contrary to religious and cultural values”. It may be that this unwillingness to engage merely reflects a desire to maintain the invisibility of our issues by refusing to acknowledge that they even constitute rights worthy of discussion on the UN agenda. Despite this outward indifference, behind-the-scenes opposition remains vigorous, resulting in substantial pressure on governments not to support sexual orientation and gender identity issues. At an International Dialogue hosted by ARC International in December 2004, participants agreed to pursue a two-pronged strategy regarding resolutions at the CHR: ¾ NGOs agreed to explore States that might be willing to co-lead on a cross-regional resolution specifically addressing sexual orientation and gender identity issues. ¾ In addition, it was agreed that we should seek to integrate our concerns within a broad range of relevant resolutions, such as violence against women, freedom of expression, torture, human rights defenders, extrajudicial executions etc. Both of these are significant challenges which may well take some years to realize. Although the Brazilian resolution on sexual orientation and human rights, first introduced in 2003 and twice deferred, finally lapsed from the CHR agenda this year, nothing prevents a new resolution being presented in future, and a significant focus of NGO efforts went into laying the groundwork, developing principles on which such a resolution could be based, and building State support for such a resolution. Particularly encouraging was a statement on sexual orientation made by New Zealand on behalf of 32 States from 4 of the 5 CHR regions (Latin America, Asia, Central and Eastern Europe, and the Western Europe and Other Group). i


This statement provides hope for cross-regional State sponsorship of a resolution on sexual orientation and gender identity in future. Similarly, integrating our concerns within a broader range of resolutions will also require substantial education and preparation work. It quickly became apparent, for example, that the States leading on resolutions such as torture and human rights defenders were unwilling to jeopardize existing language by introducing new elements perceived to be controversial. Even generally-supportive mainstream human rights NGOs were sometimes cautious about supporting lesbian, gay, bisexual and transgender issues if this could lessen support for broader principles already under siege (such as attempts by States to weaken the absolute prohibition on torture, an understandably important concern). Significantly, NGOs succeeded in persuading Sweden and the co-sponsors to include “gender identity” in the draft resolution on extrajudicial executions. This represented the first time ever that language pertaining to “gender identity” was included in a draft resolution at the UN. Though the reference was eventually dropped before final adoption of the resolution, it put the issue of gender identity squarely on the agenda for the Commission to examine and debate, and it provided the opportunity to educate many States about the unique issues and needs facing transgender and intersex people. A reference to “sexual orientation” in the extrajudicial executions resolution was narrowly retained, and for the first time, “sexual orientation” was included in the draft resolution on Violence against Women, although this language was withdrawn, in the face of concerns about whether inclusion might jeopardize consensus on the resolution. These concerns echo the reasons advanced by Brazil for deciding not to proceed with its resolution on sexual orientation and human rights in 2004. At that time, Brazil indicated in a Press release that no issue at the Commission should “generate controversies”, and that it had “not yet been able to arrive at a necessary consensus. By its very nature, a subject such as non-discrimination and sexual orientation presupposes the search for consensus.” In this era of UN reform, it is however noteworthy that Secretary General Kofi Annan has expressed concern that the desire for consensus cannot be allowed to undermine the principled advancement of the legitimate work of the UN. Clearly, much education work will need to be done to build support for our issues across a range of resolutions and reinforce the awareness that human rights need not be a zero-sum game. In addition, the desire to achieve consensus needs to be addressed, since our issues will never (at least in the foreseeable future) be decided by consensus, which amounts to providing human rights abusers with a veto over the rights of the most marginalised. The total number of States at the CHR expressing support for human rights based on sexual orientation has now risen to 48, a substantial increase over previous years. Up to 42 States were also willing to support inclusion of “gender identity” in the extrajudicial executions resolution. A summary of State positions and voting records is attached as Appendix I. Moreover, a record number of Special Procedures highlighted human rights concerns based on sexual orientation and gender identity (see Appendix V). There is no question that advancing sexual orientation and gender identity issues internationally is longterm work, which will engage our communities for many years to come. Nonetheless, when one considers the near-total invisibility of these issues at the UN Commission on Human Rights a mere two to three years ago, it is difficult not to be inspired by the progress that has been achieved through the courage and commitment of dedicated activists from across the globe. ii


OUT AT THE UN: CHR 61

CONTENTS Executive Summary Contents

Page i iii

References to sexual orientation and/or gender identity: A.

State and NGO Interventions

1.

1.

High Level Segment:

1.

2. 3.

• • • • • • • • •

Switzerland Canada Sweden Spain Finland Uruguay Slovakia Norway Mexico

Item 3: Organization of the Work of the Session •

3.

Pakistan

Item 6: Racism, Racial Discrimination, Xenophobia and all Forms of Discrimination

3.

a) Interactive Dialogue: •

Canada

b) Country statements: •

Luxembourg (on behalf of EU and Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Iceland, Romania, Serbia and Montenegro, Turkey and the Former Yugoslav Republic of Macedonia.)

c) NGO Written Statement: •

Canadian HIV/AIDS Legal Network & ARC International (Richard Elliott & John Fisher)

d) NGO Oral Interventions: • •

4.

Canadian HIV/AIDS Legal Network (Hudson Tucker, SLLAGA) ICJ & FIDH (Hassiba Hadj Sahraoui, ICJ)

Item 11: Civil and Political Rights

4.

a) Interactive Dialogue with Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions: •

Luxembourg (EU)

b) NGO Oral Intervention: iii


5.

Canadian HIV/AIDS Legal Network (Philipp Braun, LSVD)

Item 12: Integration of the Human Rights of Women and the Gender Perspective

4.

a) NGO Oral Interventions: • •

6.

Amnesty International and the Center for Women’s Global Leadership Canadian HIV/AIDS Legal Network (Susana Fried, IGLHRC)

Item 13: Rights of the Child

5.

a) NGO Oral Interventions: •

7.

MADRE (Mauro Cabral, IGLHRC)

Item 14: Specific Groups and individuals

5.

a) Country statements: •

Finland

b) NGO Oral Interventions: • • • • • •

8.

ISHR, Canadian HIV/AIDS Legal Network and Human Rights Council of Australia (Chris Sidoti, ISHR) Human Rights Council of Australia (Howard Glenn, HRCA) Canadian HIV/AIDS Legal Network (Carlos Perera, Women’s Action for Change, delivered by Kim Vance, ARC International) MADRE (Marcelo Ferreyra, IGLHRC) Asamblea Permanente por los Derechos Humanos (Pedro Anibal Paradiso, CHA) The Becket Fund for Religious Liberty (Peng Voong, USA)

Item 17: Promotion and Protection of Human Rights

5.

a) Country statements: • •

New Zealand (on behalf of 32 States) Argentina

b) NGO Oral Interventions: • • • •

B.

Canadian HIV/AIDS Legal Network (John Fisher, ARC International) FORUM Asia Human Rights Defenders, International Service for Human Rights (Julie de Rivero) Women’s Human Rights Defenders, Asia Forum for Human Rights and Development, Centre for Women’s Global Leadership, Madre, Asia Pacific Forum on Women, Law and Development, the International Service for Human Rights, World Young Women’s Christian Association, AsiaJapan Women’s Resource Centre, Korea Women’s Association United, International Women’s Rights Action Watch-Asia Pacific, Pax Romana and International Young Catholic Students (Emma Sydenham)

Resolutions • • • •

Item 11(b): Extrajudicial, Summary or Arbitrary Executions Item 11(c): The Right to Freedom of Opinion and Expression Item 12(a): Elimination of Violence against Women Item 17: The Question of the Death Penalty

7. 7. 10. 10. 11. iv


C.

Parallel Activities • • • • • • • • •

D.

13.

Film Screening: Dangerous Living: Coming out in the Developing World 14.

High Commissioner for Human Rights (Louise Arbour) Special Rapporteur on Violence Against Women (Yakin Erturk) Special Representative on Human Rights Defenders (Hina Jilani) Special Rapporteur on Independence of Judges and Lawyers (Leandro Despouy) Special Rapporteur on Religious Freedom or Belief (Asma Jahangir) Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (Ambeyi Ligabo)

Media Recognition • • • • • • • •

11.

Human Rights Violations on the Grounds of Sexual Orientation: Is the Commission turning a blind eye? Written Out:: Sexuality-Baiting and Challenges to Women’s Organizing “Is God Homophobic?” Lesbian and Bisexual Women: Suffering Multiple Discrimination In Union: How can workers’ rights and the struggle for equality for sexual minorities advance together? Human Rights For All: Taking action against multiple discrimination Expressing Gender: The need to protect human rights of transgender people Defending Sexual Rights: Voices from the Global South

Other Meetings • • • • • •

E.

Item 17: Sexual Orientation and Human Rights

16.

“Respect: The Human Rights Newsletter”, OHCHR International Commission of Jurists Press Release Human Rights Watch Press Release Amnesty International Press Release Têtu Galeria Alaska Productions TerraViva News Lifesite News (opposed)

Appendices I. II. III. IV. V.

State Positions and Voting Records Written Statement Gender Identity Fact Sheet NGO Oral Interventions References by Special Procedures to Sexual Orientation and Gender Identity

21. 23. 28. 32. 51.

v


References to sexual orientation and gender identity at the 61st CHR A. State and NGO Interventions 1. Excerpts from the High Level Segment During the first week of the Commission, Foreign Ministers from various States speak about their human rights priorities during the “high level segment”. In 2005, the Foreign Ministers of 8 States spoke in support of sexual orientation rights. In addition, Canada referred specifically to “gender identity”, and Norway to “sexual orientation or identity”. •

Switzerland: http://www.unchr.info/61st/docs/0314-HLS-Switzerland-Fr.pdf “Nous constatons qu’il devient difficile d’introduire de nouveaux thèmes devant la Commission, tel que par exemple celui de la non-discrimination fondée sur l’orientation sexuelle”. (English translation- "We note that it is becoming difficult to introduce new subjects before the Commission, such as non-discrimination based on sexual orientation.")

Canada: http://www.unchr.info/61st/docs/0314-HLS-Canada-En-Fr.pdf “What do we expect from a multilateral system for promotion and protection of human rights? ... This system should be flexible, so that we can make progress in new areas, such as fighting discrimination based on sexual orientation and gender identity”.

Sweden: http://www.unchr.info/61st/docs/0315-HLS-Sweden.pdf “Well aware of that the issue of non-discrimination on the grounds of sexual orientation has led to fierce debate in this commission during the past years, I believe that if we together work from our common vision, as stated in the Universal Declaration on Human Rights, we will be able to agree. We, as human beings, are equal in dignity and rights and everyone has the right to fully enjoy his or her human rights without discrimination on any ground. No one should be arbitrarily executed and everyone has the right to liberty and security of person. We may differ in tradition and culture, but we must be equally committed to our human rights obligations, which are universal. I am pleased that the Secretary-General has decided that UN personnel living in homosexual marriages or partnerships will have the same employment benefits as married heterosexual employees, and I urge all UN organs and specialized agencies to follow suit.”

Spain: http://www.unchr.info/61st/docs/0314-HLS-Spain-Sp.pdf

1


“Asimismo, se han dado ya importantes pasos para eliminar diferencias en materia de derechos como consecuencia de la orientación sexual.” (English translation - “Likewise, important steps have already been taken to eliminate differences regarding rights based on sexual orientation”.) •

Finland: http://www.unchr.info/61st/docs/0315-HLS-Finland.pdf “Sexual orientation continues to spark discrimination, harassment and human rights violations in many parts of the world. It is clear, however, that each and every individual should benefit from the principle of non-discrimination and be protected against human rights violations. This Commission cannot shy away from addressing the clearly existing human rights challenges related to sexual orientation”.

Uruguay: http://www.unchr.info/61st/docs/0315-HLS-Uruguay-Sp.pdf “En esta misma dirección, solicitaremos cooperación internacional para la elaboración de un comprensivo Plan Nacional de Derechos Humanos, que incluya planes nacionales específicos, sobre derechos de la mujer, violencia domestica, derechos de niño y la niña, sobre racismo, discriminación racial y todas las formas de discriminación, que inspirado en los acuerdos de la Conferencia Regional de Santiago, incluya a las relacionadas a la orientación sexual de las personas”. (English translation- “In this same direction, we will ask for international cooperation to elaborate a comprehensive National Plan on Human Rights that includes specific national plans on women’s rights, domestic violence, children’s rights, racism, racial discrimination and all forms of discrimination, and which, inspired by the Santiago Regional Conference agreements, shall also include sexual orientation issues.”)

Slovakia: http://www.unchr.info/61st/docs/0317-HLS-Slovakia.pdf “I am pleased to announce today that the Law on Equal Treatment in Certain Areas and Protection against Discrimination (the Antidiscrimination Act) has since been adopted and entered into force on 1 July 2004. The purpose of the law is to guarantee protection against any discrimination on grounds of sex, religion or belief, racial, national or ethnic origin, disability, age and sexual orientation.”

Norway: http://www.unchr.info/61st/docs/0317-HLS-Norway.pdf “The principle of non-discrimination is at the core of our understanding of what human rights are all about. No discrimination on the basis of a person’s race, colour, sex, language, religion, descent, national or ethnic origin must take place. This fundamental principle must also apply to people regardless of their sexual orientation or identity. We note with great concern that discrimination on the grounds of sexual orientation or identity is giving rise in certain cases to grave human rights issues.”

Mexico (not specifically referring to “sexual orientation”, but to “vulnerable groups” generally: http://www.unchr.info/61st/docs/0315-HLS-Mexico.pdf “No person or group must be left out of the system of protection of their rights, particularly those that constitute vulnerable groups.”

2


2. Item 3: Organization of the Work of the Session •

Pakistan (not specifically referring to “sexual orientation”, but expressing concern at “new rights that can be contrary to religious and cultural values”): “Religious and cultural diversity should be a vehicle for promoting cohesion and not for creating divisions and confrontation. Respect of all religions and cultures is critical. ... In this regard efforts to create new rights that can be contrary to religious and cultural values add to confrontation. Mutual respect and understanding should be the basis of decision making at the CHR”.

3. Item 6: Racism, Racial Discrimination, Xenophobia and all Forms of Discrimination a) Interactive Dialogue with Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance: •

Question from Canada: « Nous soutenons particulièrement vos efforts pour accorder un traitement égal à toutes les formes de racisme et de discrimination, ainsi que vos conclusions à savoir que la hiérarchisation dans ce contexte peut aboutir à une forme de discrimination. Dans le même ordre d’idée, plusieurs rapporteurs spéciaux intègrent des préoccupations liées à l’orientation et l’identité sexuelles à leurs recherches. Dans quelle mesure pensez-vous que les expériences de racisme peuvent être exacerbées par l’orientation et l’identité sexuelles? Dans les années à venir, vous tournerez-vous vers ces questions et pensez-vous vous appuyer sur une approche basée sur l’intersectionalité pour explorer les facteurs multiples contribuant à une aggravation des formes de discrimination? » [Translation] “We particularly support your efforts to treat all forms of racism and discrimination equally, as well as your conclusion that “hierarchization, in this context, can lead to a form of discrimination”. Similarly, many Special Rapporteurs have been integrating concerns based on sexual orientation and gender identity into their reports. To what extent do you think that experiences of racism are exacerbated by sexual orientation and gender identity? In upcoming years, will you be considering these issues, and do you plan to rely upon an intersectional approach to explore the multiple factors which can exacerbate various forms of discrimination?”

The Special Rapporteur did not respond, saying only: “Mr. Chairman, there were other questions, which I will treat in a bilateral approach with the countries who raised them.”

b) Country statements: •

Luxembourg (on behalf of 34 countries, listed below): "I have the honour to take the floor on behalf of the European Union [25 States]. The Acceding countries Bulgaria and Romania, the candidate countries Turkey and Croatia, the Countries of the Stabilisation and Association Process and potential candidates Albania, Bosnia and Herzegovina, the Former Yugoslav Republic of Macedonia, Serbia and Montenegro and the EFTA country Iceland, member of the European Economic Area, align themselves with this declaration. ... 3


Discrimination can take many forms, often insidious. In that connection, the EU would stress the unacceptability of any discrimination based on sexual orientation. The EU is deeply concerned about reports of continued and unacceptable violence, persecution, denial of fundamental freedoms and violations of human rights (including the right to life), arrests, arbitrary detentions and other abuses and violations of human dignity on the basis of sexual orientation.”

c) NGO Written Statement: NGOs have an opportunity to submit written statements in advance of the CHR. These written statements then form part of the CHR official documentation and are distributed to Member States and NGOs under the relevant agenda item. •

A written statement was submitted under item 6 by the Canadian HIV/AIDS Legal Network and ARC International in English and Spanish, and circulated as UN document E/CN.4/2005/NGO/143. A copy of the statement is attached as Appendix II.

d) NGO Oral Interventions: • •

Canadian HIV/AIDS Legal Network: delivered by Hudson Tucker with the Sierra Leone Lesbian and Gay Association (SLLAGA) (see Appendix IV) International Commission of Jurists (ICJ) and the International Federation for Human Rights Leagues (FIDH): delivered by Hassiba Hadj Sahraoui with ICJ (English) (see Appendix IV)

4. Item 11: Civil and Political Rights a) Interactive Dialogue with Special Rapporteur on extrajudicial, summary or arbitrary executions: •

Question from Luxembourg (on behalf of EU) “In your report you highlight targeting killings of persons due to their sexual orientation, could you elaborate on the international trend in this respect?” Answer: it is a matter of great concern and it is essential to take careful note of which persons are subject to extrajudicial executions because of the sexual orientation.

b) NGO Oral Intervention: •

Canadian HIV/AIDS Legal Network: delivered by Philipp Braun, LSVD (Germany) (see Appendix IV)

5. Item 12: Integration of the human rights of women and the gender perspective a) NGO Oral Interventions: • •

Amnesty International and the Center for Women’s Global Leadership (see Appendix IV) Canadian HIV/AIDS Legal Network: delivered by Susana Fried, IGLHRC (see Appendix IV) 4


6. Item 13: Rights of the Child a) NGO Oral Intervention: •

MADRE: delivered by Mauro Cabral, IGLHRC (Argentina) (see Appendix IV)

7. Item 14: Specific groups and individuals a) Country statements: •

Finland: “The equal implementation of all human rights without discrimination based on ethnic origin, religion, belief, nationality, sex, age, opinion, disability, sexual orientation or other grounds, is a principle on which the protection of human rights and Finland's human rights policy are essentially based.” ... “Multiple discrimination is a problem that deserves our particular attention. On Tuesday 12 April, Finland will organise a side event where this issue will be discussed in more detail. The main purpose of this panel discussion is to underline the need to take stronger action against multiple discrimination, and to highlight examples of the particularly difficult situation of persons facing discrimination on more than one ground. In our view, the Commission on Human Rights should do more to address all forms and aspects of discrimination. Sexual orientation continues to spark discrimination and other human rights violations. It is clear, however, that each and every individual should benefit from the principle of non-discrimination and be protected against human rights violations. The Commission on Human Rights cannot shy away from addressing the clearly existing human rights challenges related to sexual orientation.”

b) NGO Oral Interventions: • • • • • •

ISHR, Canadian HIV/AIDS Legal Network, and Human Rights Council of Australia: delivered by Chris Sidoti, ISHR (see Appendix IV) Human Rights Council of Australia: delivered by Howard Glenn, Rights Australia (see Appendix IV) Canadian HIV/AIDS Legal Network: prepared by Carlos Perera from Women’s Action for Change (Fiji) and delivered by Kim Vance, ARC International (see Appendix IV) MADRE: delivered by Marcelo Fererrya, IGLHRC (Argentina) (see Appendix IV) Asamblea Permanente por los Derechos Humanos (Permanent Task Force for Human Rights): delivered by Pedro Anibal Paradiso from CHA (Argentina) (see Appendix IV) The Becket Fund for Religious Liberty: delivered by Peng Voong (USA) (see Appendix IV)

8. Item 17: Promotion and Protection of Human Rights a) Country statements: •

New Zealand on behalf of 32 States (listed below):

5


“I have the honour to make this statement on behalf of Andorra, Argentina, Austria, Belgium, Canada, Chile, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Guatemala, Iceland, Ireland, Luxembourg, Mexico, New Zealand, Netherlands, Norway, Portugal, Republic of Korea, Romania, Slovenia, Spain, Sweden, Switzerland, the United Kingdom of Great Britain and Northern Ireland, Uruguay and Venezuela. It has been sixty years since the Universal Declaration of Human Rights first set down that all human beings are equal in dignity, in rights and in freedoms, without distinction of any kind. Over the past decade, the Human Rights Committee, the Committee on Economic, Cultural and Social Rights and the Committee on the Rights of the Child have all found that sexual orientation should be understood to be a status protected against discrimination. And, it has been two years since Brazil first tabled their draft resolution at this Commission seeking to condemn discrimination on the basis of sexual orientation. Mr. Chairman, we deeply regret that this Commission is still not ready to address that resolution today. We cannot ignore the mounting evidence of serious human rights violations against individuals on the basis of their sexual orientation, reported by the human rights treaty bodies and the Commission's special procedures. It is beyond any doubt that in all too many parts of the world, individuals are being deprived of their rights to life, to health and to freedom from torture and violence. These human rights violations have been brought to our attention, and we must respond. To remain silent, is to condone some of the worst forms of discrimination. Sexual orientation is a fundamental aspect of every individual's identity and an immutable part of self. It is contrary to human dignity to force an individual to change their sexual orientation, or to discriminate against them on this basis. And, it is repugnant for the State to tolerate violence against individuals. All States must exercise due diligence to prevent, investigate, prosecute and punish the perpetrators of violence committed against individuals because of their sexual orientation. We fully support, therefore, the Nordic resolution on Extra-Judicial, Summary and Arbitrary Executions that established that killings of individuals because of their sexual orientation is a human rights violation. Mr. Chairman, we recognise that sexuality is a sensitive and complex issue. But, we are not prepared to compromise on the principle that all people are equal in dignity, rights and freedoms. This Commission must uphold the principle of non-discrimination. We urge all States to recognise this common ground and to participate in debate. We hope this Commission will not be silent for too much longer.” •

Argentina: Also speaking under item 17, Argentina further endorsed the New Zealand statement on sexual orientation and human rights.

b) NGO Oral Interventions: • • • •

Canadian HIV/AIDS Legal Network: delivered by John Fisher, ARC International (see Appendix IV) FORUM Asia (see Appendix IV) Human Rights Defenders, International Service for Human Rights: delivered by Julie de Rivero (see Appendix IV) Women’s Human Rights Defenders, Asia Forum for Human Rights and Development, Centre for Women’s Global Leadership, Madre, Asia Pacific Forum on Women, Law and Development, the International Service for Human Rights, World Young Women’s Christian Association, AsiaJapan Women’s Resource Centre, Korea Women’s Association United, International Women’s Rights Action Watch-Asia Pacific, Pax Romana and International Young Catholic Students: delivered by Emma Sydenham (see Appendix IV)

6


B. Resolutions NGOs were active across a broad range of relevant resolutions at the CHR this year, and there are many resolutions containing general language relevant to the rights of our communities. We have highlighted below the main resolutions touching specifically on sexual orientation and gender identity issues.

Item 11(b): Extrajudicial Executions The resolution on extrajudicial, summary or arbitrary executions (“EJEs”) remains the only resolution ever adopted by the CHR to include a reference to sexual orientation. In 2005, a focus of NGO lobbying was to seek the inclusion of “gender identity” in the resolution for the first time. Operative paragraph 5 (OP5) of the resolution lists groups particularly vulnerable to extrajudicial killings, and cites as one area of concern “all killings for any discriminatory reason, including sexual orientation.” The sexual orientation reference was first included in 2000, was not included in 2001 (in order to maximise consensus for the renewal of the Special Rapporteur’s mandate), and was again included in 2002, 2003 and 2004. In each of 2002, 2003 and 2004, States opposed called both a paragraph vote on OP5 and a vote on the resolution as a whole. (Technically, in 2002, the vote was not on the paragraph as a whole, but on a motion by Pakistan to delete only the words “sexual orientation”). Over time, opposition to sexual orientation inclusion has decreased. In 2002, Pakistan’s motion to delete the words “sexual orientation” was defeated by a vote of 28-15, with 9 abstentions. In 2003, the vote on the paragraph as a whole was adopted by a vote of 27-10, with 15 abstentions, and 1 no-vote. In 2004, the vote on the paragraph as a whole was adopted by a vote of 30-7, with 14 abstentions, and 2 no-votes. In other words, opposition to sexual orientation inclusion has decreased from 15 States opposed in 2002, to 10 opposed in 2003 to only 7 opposed in 2004. Similarly, in 2002, the resolution as a whole was adopted by a vote of 36-2, with 14 abstentions, and 1 novote; in 2003, by a vote of 37-0, with 16 abstentions; and in 2004, by a vote of 39-0, with 12 abstentions, and 2 no votes. These figures demonstrate a modest increase in support for the resolution, with no States voting against in either 2003 or 2004. For some years, the Special Rapporteur has expressed concerns about the extrajudicial killings of transsexuals, and significant effort at this year’s CHR was therefore put into adding “gender identity” to the list of grounds in OP5. Sweden, which leads the resolution, was open to the concept, and the issue was raised at a meeting of cosponsors. It became clear that many States were not well-informed of gender identity issues, and John Fisher of ARC International was invited to prepare a briefing for co-sponsors to help explain what is gender identity, how it differs from sexual orientation, and why it needs to be included. Subsequent written materials (attached as Appendix III) were further developed by Mauro Cabral of IGLHRC’s Trans and Intersex Program, Scott Long of Human Rights Watch, Marcelo Fererrya of IGLHRC and John Fisher of ARC International. 7


Following the briefing, Canada proposed adding “gender identity” to OP5, a proposal which was accepted by co-sponsors, although some expressed concern that it might need to be subsequently removed if its inclusion might jeopardize the vote on either the paragraph or the resolution as a whole. During open informal meetings, States speaking in support of gender identity included the UK, Sweden, France, Finland, Canada, Germany, New Zealand, Australia and Norway. Informal expressions of support were also received from Mexico, Peru and Argentina. Those speaking against gender identity inclusion (or against the entire list) included Pakistan ("you're promoting this aberration, this abnormal behaviour"), Egypt ("in relation to sexual orientation, I got it it's taken 3 or 4 years, but I got it, but what is gender identity?"), the Holy See ("of course we support the right to life, but the listing reduces the complexity of the human person"), and Russia ("we don't support the listing which gives a preferential approach to certain kinds of person"), as well as Malaysia and China. At the conclusion of informal consultations, Sweden tabled the text of the resolution (L.47), which included - for the first time ever - gender identity. The relevant extract read: "OP5: Reaffirms the obligation of States to protect the inherent right to life of all persons under their jurisdiction and calls upon States to investigate promptly and thoroughly all cases of killings including those committed in the name of passion or in the name of honour, all killings committed for any discriminatory reason, including sexual orientation and gender identity, ... [etc]" Following continued lobbying by those opposed, however, Sweden became concerned that there might not be a sufficient base of support for the paragraph to be adopted if the reference were retained. A number of States, particularly Finland, Canada and New Zealand, worked hard with Sweden and NGOs to maintain the reference. Ultimately, however, Sweden filed a revised version of the resolution (L.47 Rev.1) which maintained the reference to sexual orientation, but not gender identity. When the matter came up for a vote in plenary, Sweden introduced the resolution, and spoke in support of every human being's right to life and the need to reflect the specific concerns of the Special Rapporteur through the listing in OP5. Orally, in plenary, Sweden also amended OP12 to delete a reference to the attention given by the Special Rapporteur to “specific categories of victims who are particularly vulnerable”. The Netherlands then spoke “on behalf of the Member States of the European Union that are members of the Commission on Human Rights [i.e. Finland, France, Germany, Hungary, Ireland, Italy and the United Kingdom of Great Britain and Northern Ireland], and the Acceding Country Romania.” The Netherlands stated that “the EU supported and co-sponsored L.47 as originally tabled by Sweden. It also supports L.47 revision 1, which takes into consideration concerns expressed in informal consultations.” This is significant because in expressing the support of the EU and Romania for L.47 “as originally tabled”, the Netherlands is expressing the support of those countries for the inclusion of “gender identity” in the resolution. Taken together with the co-sponsors of L.47 as originally tabled (Albania, Andorra, Armenia, Austria, Belgium, Brazil, Canada, Chile, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Mexico, Norway, Poland, Portugal, Romania, Serbia and Montenegro, Slovenia, Slovakia, Spain, Sweden, Switzerland, Ukraine and United Kingdom of Great Britain and Northern Ireland), as well as countries expressing support during co-sponsors’ meetings, informals and discussions with NGOs, this brings the total number of States willing to support “gender identity” inclusion in the resolution to 42. 8


However, it is also clear that even supportive States see this as a new issue regarding which many States are ill-informed, and will not maintain their support if they feel it might jeopardize the vote or existing language. In plenary, Pakistan, on behalf of the OIC, affirmed the view of the OIC that “Every person has a right to life, liberty and security of person” and that “States have an obligation to take all necessary measures to protecting this basic right of all citizens without discrimination.” However, it "continued to have some difficulties" with the listing of groups. In particular, Pakistan said, “The Co-sponsors over the past three years have included a list which is contentious, not exclusive and non-exhaustive. They continue to expand this list based on their own selective interpretation and without developing consensus.” Consensus could be achieved, Pakistan said, if the listing were dropped so that OP5 affirmed every person's right to life and called upon States to investigate promptly all killings. Pakistan therefore proposed an amendment to delete from OP5 the entire listing of groups vulnerable to extrajudicial executions. Finland responded on behalf of the co-sponsors. Finland not only defended the list, but also pointed out that "killings based on gender identity have been consistently highlighted by the Special Rapporteurs since 1997, and co-sponsors felt it important to draw the Commission’s attention to the need to afford additional protection to these persons." A vote was called on Pakistan's proposal to drop the listing from OP5, which was defeated by a vote of 20 States voting to drop the list, 25 in favour of retaining the list, 7 abstentions and 1 State (Cuba) which did not vote. As a result, the paragraph was retained as it stands, with sexual orientation included in the listing, but no explicit reference to gender identity. The breakdown of votes is attached as Appendix I. There was then a vote on a US amendment to weaken language relating to the International Criminal Court, which was defeated by a vote of 9 in favour, 35 against, with 8 abstentions and 1 no-vote. The US then called a vote on the resolution as a whole, which was adopted by a vote of 36-0, with 17 abstentions. This year’s vote is of significant concern. For the first time, States opposed did not set their sights too narrowly (by singling out “sexual orientation” for a vote), nor too broadly (by calling for a vote on the entire paragraph), but by calling for a vote on the listing were able to appeal to those who oppose sexual orientation inclusion, to those who oppose listings in general, and also to those uncomfortable about the continued expansion of the list to include unfamiliar grounds such as gender identity. The result was a vote (20-25, with 7 abstentions) that was much closer than in previous years. Furthermore, the vote on the resolution as a whole dropped from 39-0 in 2004 to 36-0 in 2005, illustrating the continuing political tensions within the CHR. In previous years, for example, the vote on the resolution as a whole was called by the OIC; this year, it was called by the USA, which abstained rather than supporting the resolution as it had in previous years. On the other hand, this was the first year that the issue of gender identity was introduced to, and debated by, many States in a substantive way. The increase in awareness and degree of support was encouraging, laying a foundation for future work. The final point of note is that the EJE resolution has now been biennialized, so there will be no specific EJE resolution at the CHR next year, although there will still be a report by the Special Rapporteur and an interactive dialogue.

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Item 11(c): The Right to Freedom of Opinion and Expression The resolution on the right to freedom of opinion and expression is one that was identified as important in consultations with NGOs working on lesbian, gay, bisexual, transgender and intersex issues. Canada leads this resolution, and NGOs monitored resolution discussions, and met with Luca Lupoli, assistant to the Special Rapporteur, Mr. Ambeyi Ligabo. The resolution currently contains strong language on gender-based violence and discrimination, and intimidation and harassment of human rights defenders (OP3(a)). It also contains a paragraph focused on raising awareness and disseminating information on HIV/AIDS targeted to vulnerable groups (OP3(j)). Finally, it makes specific reference to false images and negative stereotypes promoted by the media about vulnerable groups and individuals. There are clearly many areas of potential investigation and comment by the Special Rapporteur which could send a clear message that lesbian, gay, bisexual, transgender and intersex persons are among the vulnerable groups and individuals referenced in the resolution.

Item 12(a): Elimination of Violence Against Women This resolution is a significant one in the advancement of sexual and reproductive rights. The Special Rapporteur in her report had highlighted “cases of lesbian women being targeted for rape specifically because of their sexual orientation” and the fact that “the intersection of discrimination related to gender, HIV status and sexual orientation - often combined with race and class - create multiple forms of oppression and violence that keep women subordinated.” Canada, which leads the resolution, initially presented co-sponsors with a draft of the resolution that included both “sexual orientation” and “HIV status” as grounds of intersectional discrimination in PP6, which read: “PP6. Deeply concerned that all forms of discrimination, including racial discrimination, xenophobia and related intolerance, and multiple forms of discrimination and disadvantage lead to some groups of women, such as ... women who are otherwise discriminated against including on the basis of sexual orientation and/or HIV status, being especially targeted or vulnerable to violence.”

However, Canada also indicated that it wanted the resolution to continue to be adopted by consensus, and would drop the “sexual orientation” reference if it meant that the resolution might be contested. A number of co-sponsors expressed support for the reference, but concern with the approach, and felt that the reference should not be included unless Canada was willing to see it through to a possible resolution vote. Ultimately, Canada felt that there were already enough controversial references to defend in the resolution, and withdrew "sexual orientation" from the resolution. The resolution as adopted (2005/41) does retain the reference to “women who are otherwise discriminated against including on the basis of HIV status”. When the resolution came to a vote in plenary, Canada made a last-minute amendment changing the "sexual and reproductive rights" language in OP11 to "reproductive rights and sexual health". They did, however, in their opening comments make strong reference to sexual and reproductive rights language. Pakistan, on behalf of the OIC, called for an amendment to replace the reference to "marital rape" in OP17(h) with "domestic sexual violence." (Defeated. 14-Yes, 25-No, 13-Abst.) The USA called for an

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amendment to delete OP20, which references the International Criminal Court. This was also defeated. (5-Yes, 36-No, 10-Abst.) Some countries (e.g. Costa Rica, Ecuador) explained that they do not understand the Beijing language to constitute a right to abortion. Both the USA and Pakistan also commented that the reference to the "summary of the Guidelines on HIV/AIDS and Human Rights" in OP11 could lead to same-sex marriage, which contradicted their domestic law. Ultimately, the resolution was adopted by consensus.

Item 17: The Question of the Death Penalty The resolution on the question of the death penalty (2005/59) is another important one for lesbians, gays, bisexuals and transgender people. Although it contains no explicit reference to sexual orientation or gender identity, OP5(f) calls on States “to ensure that the death penalty is not imposed for non-violent acts such as ... sexual relations between consenting adults.” Introduced by Luxembourg on behalf of the European Union, this resolution attracts opposition from States that maintain or support the use of the death penalty. Paragraph votes have been called on various sections of the resolution, although not on the reference in OP5(f) to the prohibition on the use of the death penalty for consensual adult sexual relations. In 2005, the USA called for a vote on the resolution as a whole, which was adopted by 26 votes to 17, with 10 abstentions (a slight drop in support compared with 28 votes to 19, with 6 abstentions in 2004).

Item 17: Sexual Orientation and Human Rights Another significant feature of the CHR in 2005 was the final disposition of the Brazilian resolution on sexual orientation and human rights. This resolution had first been introduced in 2003, when the Commission (following an unsuccessful no action motion) voted to defer consideration of the resolution until 2004. Brazil was unwilling to proceed with the resolution in 2004, and the Commission adopted without objection a Chair’s statement proposing the further deferral of the resolution until 2005. In the intervening year, it became clear that Brazil did not plan to proceed with debate and vote on the resolution and that no cross-regional grouping of States was willing to assume responsibility for the resolution at this year’s CHR. As expected, there was no discussion at the CHR this year of the original Brazilian resolution under agenda item 17, nor any attempt to carry it over for another year. As a result, the resolution has now lapsed from the CHR agenda. Nothing prevents any State (or combination of States) from introducing a new resolution next year. Certainly, the Brazilian resolution had the effect of raising visibility, awareness and expectations, and the way is now clear for a new resolution that NGOs can be actively involved in negotiating and discussing with supportive States cross-regionally. A focus of NGO efforts this year was on laying the groundwork for cross-regional sponsorship of a new resolution at the 2006 session of the Commission.

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An informal meeting between NGOs and supportive States was organized by Human Rights Watch, and attended by States from Uruguay, Finland, Sweden, Canada and Spain. In addition, a number of specific States hosted NGO meetings focused on issues of sexual orientation and gender identity. For example, the German delegation, represented by Human Rights Commissioner Koenigs and the vice-chair of the Parliamentary Human Rights Committee Funke, hosted a meeting with a broad range of NGOs, facilitated by LSVD and ILGA. The delegation was particularly interested to hear the perspectives of NGOs from the Global South, including representatives from Turkey, Sri Lanka, Indonesia, Jamaica, Peru, Argentina, and Sierra Leone. Germany took note of participants' recommendations and expressed its support and commitment for advancing both sexual orientation and gender identity issues. A particularly encouraging development was the item 17 statement (see above under item 17) addressing sexual orientation and human rights, made by New Zealand on behalf of 32 States from 4 of the 5 CHR regions. By contrast, in 2004, New Zealand delivered a statement on behalf of only itself and Canada, which in turn inspired a statement by the UK on behalf of 18 EU countries. This demonstrates a significant increase in State awareness and support of sexual orientation issues, and a solid base of crossregional support for a future resolution. A further focus of NGO efforts was identifying a set of principles that could form the basis of a future resolution. These principles are intended to advance recognition of human rights based on sexual orientation and gender identity in a meaningful and substantive way, while highlighting human rights violations likely to attract maximum State support. Participating NGOs therefore agreed to seek a resolution, or resolutions, at the Commission which: • • • • • • • • • •

Affirms the main UN human rights instruments and customary international law, and in particular the basic principle of universality of human rights as it applies to all people, whatever their sexual orientation or gender identity; Recognises and welcomes the existing work of the Special Procedures of the Commission on Human Rights, and treaty monitoring bodies, concerning human rights violations based on sexual orientation or gender identity; Recognises and condemns human rights abuses experienced by lesbians, gays, bisexuals and transgender people around the world, including extrajudicial killings, "disappearances", arbitrary detention, torture and the imposition of the death penalty for adult consensual sexual relations; Recognises that a well-founded fear of persecution based on sexual orientation or gender identity is a legitimate ground for a refugee claim; Affirms the freedom to express one’s identity, and to live without harassment, discrimination, vilification or violence based on sexual orientation or gender identity; Affirms the right of to work, education, health care, social security and other economic, social and cultural rights without discrimination based on sexual orientation or gender identity; Calls for States to repeal laws criminalizing consensual adult sexual relations, and refrain from any practice that effectively criminalises such relations; Calls for States to ensure appropriate educative, legislative and other measures to address human rights violations based on sexual orientation or gender identity and to promote and protect human rights; Calls for integration of sexual orientation and gender identity issues throughout the work of the Special Procedures of the Commission and other UN human rights bodies; and Calls for continued consideration of these issues throughout future Sessions of the CHR, and in any body which replaces the Commission.

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C. Parallel Activities during the Commission NGOs can organize lunchtime and other panels during the Commission to raise awareness of human rights issues. These are often well-attended by NGOs and State representatives. This year, there were a significant number of parallel events: y

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y

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y

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April 5 Human Rights Violations on the Grounds of Sexual Orientation and Gender Identity: Is the Commission on Human Rights turning a blind eye? Moderator: Hassiba Hadj Sahraoui, International Commission of Jurists Panelists: Philip Alston (Special Rapporteur on extra-judicial, summary or arbitrary executions), Jacob Egbert Doek (Chairperson of the Committee on the Rights of the Child), Mr. Leandro Despouy (Special Rapporteur on the Independence of Judges and Lawyers), Prof. Vitit Muntarbhorn (Faculty of Law, Chulalongkorn University), Charlotte Bunch (Center for Women’s Global Leadership) ICJ, ISHR, FIDH, HRW, IGLHRC, ILGA April 6 Written Out: Sexuality-Baiting and Challenges to Women’s Organizing Charlotte Bunch (Center for Women’s Global Leadership), Yakin Erturk (Special Rapporteur on Violence Against Women), Rosanna Flamer-Caldera (Equal GroundSri Lanka), Hassiba Hadj Sahraoui (ICJ), Susana Fried (IGLHRC) IGLHRC, Center for Women’s Global Leadership April 7 Is God Homophobic? Moderator: Kursad Kahramanoglu, (ILGA) Panelists: Véronique Soulié (David & Jonathan-France), Ghassan Makarem (Helem-Lebanon), Joël Behmoras (World Congress of LGBT Jews-France), Dede Oetomo (Gaya Nusantara-Indonesia) ILGA, ISHR, FIDH, IGLHRC, HELEM and Rights Australia April 8 Lesbian and Bisexual Women: Suffering Multiple Discrimination Moderator: Rosanna Flamer-Caldera (Equal Ground-Sri Lanka, ILGA) Panelists: Anna Leah Sarabia (Women’s Media Circle-Philippines), Dorothy Aken’ova (INCRESE-Nigeria), Claudine Ouellet (Human Rights Lawyer), Susana Fried (IGLHRC) ILGA, ISHR, CHA, FIDH, IGLHRC, RFSL, Equal Ground-Sri Lanka, and RIGHTS Australia. April 11th In Union: How can workers’ rights and the struggle for equality for sexual minorities advance together? Moderator: Philipp Braun (LSVD-Germany) Panelists: Kursad Kahramanoglu (ILGA), Beto de Jesus (EIN-Brasil), Hans Engelberts (Public Services International), Rebecca Sevilla (Education International), Anna Biondi (ICFTU) ILGA, LSVD, ISHR, FIDH, Rights Australia and ARC International April 12th Human Rights For All: Taking action against multiple discrimination Moderators: Johanna Suurpaa (Ministry of Foreign Affairs-Finland) and Kristina Stenman (Advisory Board on International Human Rights Affairs-Finland) Panelists: Mehr Khan Williams (Deputy High Commissioner for Human Rights), Martin 13


Sponsors: y

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y

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Scheinin (Human Rights Committee), Miranda Vuolasranta (Special Advisor on Roma Related Issues), Scott Long (Human Rights Watch-U.S.A.), Rosanna Flamer-Caldera (ILGA-Sri Lanka) Permanent Mission of Finland together with Finnish Advisory Board on International Human Rights Affairs April 13th Expressing Gender: The need to protect human rights of transgender people Moderator: Uma Kali Shakti (Board-member - ILGA) Panelists: Belissa Andia Perez (Instituto Runa para la identidad de genero - Peru), Deborah Lambillotte (ILGA Europe), Mauro Cabral (Trans and Intersex Program Associate, IGLHRC-Argentina) ILGA, Instituto Runa para la Identitad de Genero, ISHR, Rights Australia, FIDH, IGLHRC and ARC International

Sponsors:

April 14th Defending Sexual Rights: Voices from the Global South Moderator: Marcelo Fererrya (IGLHRC-Argentina) Panelists: Toni Kasim (Sisters in Islam-Malaysia), Dorothy Aken’ova (INCRESE-Nigeria), Mauro Cabral (IGLHRCArgentina) Sponsors: Global Rights, IGLHRC, and ARC International

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April 14th Film Screening: Dangerous Living - Coming Out in the Developing World John Scagliotti ARC International and Global Rights

D. Other Meetings: Note: All cases directed toward any Special Rapporteur can be addressed to: urgent-action@ohchr.org •

Louise Arbour, UN High Commissioner for Human Rights It is encouraging to note that the High Commissioner has addressed human rights based on sexual orientation and gender identity within her mandate. For example, at the 49th session of the Commission on the Status of Women in New York on 3 March 2005, she said: "It is well recognized that women are not a homogenous group and that their priorities differ widely according to region, class, ethnicity, age, education, marital status, and sexual orientation, among many other categories. The women's movement has perceived these differences as a strength. It has sought to embrace these diverse perspectives and adopt a holistic approach to social justice. This holistic approach has allowed a strong emphasis on the equal importance and indivisibility of all human rightscivil, cultural, economic, political and social. The reality of women's lives has demanded this emphasis. The women's human rights movement has also highlighted the centrality of rights to equality and nondiscrimination."

She also raised the issue of violence and discrimination against these vulnerable groups in her reports to the Commission on Sierra Leone and Colombia.

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NGO Participants John Fisher (ARC International), Hassiba Hadj Sahraoui (ICJ), Susana Fried (IGLHRC) and Kursad Kahramanoglu (ILGA) met with the High Commissioner during the CHR. The High Commissioner expressed the view that it would be helpful to develop a clearer analytical framework for addressing these issues. There was some discussion about the pros and cons of an approach based on non-discrimination compared with one emphasizing different types of human rights violations. Addressing as a priority human rights violations such as extrajudicial executions, torture or arbitrary detention was one suggestion. Decriminalization of same-sex sexual conduct between consenting adults was raised as an area of concern, as was the issue of multiple forms of discrimination. The importance of having a strong evidentiary foundation and addressing specific human rights violations through examples and cases was also emphasized. Participants discussed mechanisms for raising submissions with the Special Procedures. The group agreed to develop jointly some suggestions for next steps. •

Special Rapporteur on Violence Against Women (Yakin Erturk) The Special Rapporteur emphasized that she needs cases. Next year’s thematic report is on “obstacles to justice”. She emphasized that the mechanisms of the Special Rapporteur do not require a legal case, per se, but that she is able to explore specific concerns and allegations. She is committed to highlighting sexual orientation and gender identity issues, when presented with cases. She is planning visits to Algeria, Congo, and Western Europe this year. Trans issues, in particular, could be highlighted in the Western Europe component of her trip.

Special Representative on Human Rights Defenders (Hina Jilani) Participants met with her assistant Ben Majekodumni. There is only one year left in her mandate and she would like to give more attention to human rights defenders working around issues of sexual orientation and gender identity. Nigeria, Palestinian Territories and Brazil are her areas of focus this year. She agreed in a meeting with a Nigerian activist to meet separately with LGBT groups in that country for safety reasons. There was discussion around the fact that some problems with LGBT human rights defenders come from other defenders reluctant to address these issues. There have been standards for defenders established by her office that include a statement about upholding the indivisibility of human rights.

Special Rapporteur on Independence of Judges and Lawyers (Leandro Despouy) Participants met with the Special Rapporteur’s assistant Sonia Cronin. She articulated that the Special Rapporteur is interested in these issues. As a new mandate-holder, his focus has shifted to exploring access to justice issues, however the mandate is vast. Judicial bias and judicial appointments have garnered comments from the Special Rapporteur in the past, as there is a clear code of ethics and international standards in place. While policing is not directly within his mandate, intimidation and threats by police could be framed in the larger context of a dysfunctional criminal justice system. She also emphasized that discriminatory application of the 15


law is part of their mandate, but there must be some statistics and patterns to back it up. This year, the Special Rapporteur will focus on Central Asia and also explore the possibility of considering human rights issues in Nigeria or Kenya, and possibly Paraguay and Iran. •

Special Rapporteur on Religious Freedom or Belief (Asma Jahangir) NGOs also met with Anthony Cardon, assistant to the Special Rapporteur on Religious Freedom or Belief, Asma Jahangir. He iterated the Rapporteur’s commitment to LGBT issues. When discussing areas of potential intersection between the Rapporteur’s mandate and our issues, he articulated that it could be within the mandate of the Special Rapporteur to investigate cases where certain churches, for instance those that minister to the LGBT community, were experiencing discrimination. Another situation discussed with him included the rights of subgroups within organized religions seeking to explore progressive alternate or critical perspectives of doctrine, etc. Ultimately he said that NGOs should forward any case that they feel may fall within the Rapporteur’s mandate. It will either be addressed under her mandate or forwarded to the appropriate Special Rapporteur.

Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (Ambeyi Ligabo) NGOs met with Luca Lupoli, assistant to the Special Rapporteur. The meeting served as a valuable opportunity to underline the silence, invisibility and fear of persecution that often prevents lesbians, gays, bisexuals and transgender people from expressing themselves freely. Another key issue raised was the right of transgender and intersex people to express their gender identity without violence, harassment or reprisal.

E. Media Recognition: •

“Respect: The Human Rights Newsletter”, Office of the United Nations High Commissioner for Human Rights (Issue 5, May 2005), p. 6: http://www.ohchr.org/english/about/ publications/docs/issue5respect.pdf “Comments from the Corridors: This Commission has seen increased visibility on lesbian, gay, bisexual and transgender issues. These issues are a litmus test of the Commission's capacity to address persistent human rights violations against marginalized groups. We are encouraged that for the first time ever, the rights of transgender people are being advanced through the extrajudicial executions resolution, and New Zealand has made a statement in support of human rights based on sexual orientation on behalf of more than 30 States from 4 different CHR regions. The era of invisibility is over, and we look forward to continued progress on sexual orientation and gender identity issues in the years to come. - John Fisher, ARC International”

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International Commission of Jurists Press Release, 22 April, 2005 http://www.icj.org/IMG/pdf/Press_release.pdf “UN Commission on Human Rights: Erratic Political Will Despite Rhetoric for Change At the end of an erratic Commission on Human Rights, the International Commission of Jurists (ICJ) said that structural reform of the UN human rights system must be built on the foundation of political will to tackle the worst human rights situations around the world. The Commission also again shamefully abandoned those who suffer human rights violations because of their sexual orientation or gender identity. As highlighted by New Zealand, speaking on behalf of 33 countries, for the Commission "to remain silent" on this question "is to condone some of the worst forms of discrimination." Still, no state, in the face of obstruction by the group of Islamic states and the Vatican, opted to break the silence by introducing a resolution. Beyond their obsessive opposition to the International Criminal Court, the United States relentlessly sought to blunt progress in international human rights law or undermine existing standards, especially in relation to the applicability of human rights law in times of war, the absolute prohibition of cruel, inhuman and degrading treatment and sexual and reproductive rights. The US again revealed itself as the only state in the world not to accept the validity of economic, social and cultural rights, as the lone dissenter in 52-1 votes on the rights to food and health.”

Human Rights Watch Press Release, 22 April, 2005 http://hrw.org/english/docs/2005/04/22/global10534.htm “U.N. Rights Body Ignores Major Abuses; U.N. Commission on Human Rights Takes a Few Positive Steps This year’s session of the Commission on Human Rights ended today without addressing a number of the most disturbing human rights situations which afflict the world, Human Rights Watch said. This confirms the recent assessment by the Secretary-General that the U.N. Commission on Human Rights needs to be replaced with a new and more effective body. ... Strong language on the protection of people on the grounds of sexual orientation was retained in the resolution on extra-judicial executions. However, an attempt to explicitly condemn extrajudicial killings of transgender people, a frequent phenomenon in some countries, was blocked. At the same time, the commission maintained its silence on the human rights abuses relating to sexual orientation and gender identity in other contexts, despite strong calls by non-governmental organizations for a resolution on this subject.” “Even though the commission took some positive steps, overall it was even more timid than in preceding years,” Weschler said. “This only confirms the need to replace the commission with a body that would take more decisive action against human rights violations wherever they occur, respond to human rights crises, and be ready to follow up on commitments made by violating countries.”

Amnesty International Press Release, 22 April 2005 http://web.amnesty.org/library/index/engior410462005 “2005 UN Commission on Human Rights: Positive developments at the 61st Session fall far short of correcting the Commission's "credibility deficit" The Commission made no progress at this session on some important issues, such as sexual rights and human rights violations targeted at persons due to their sexual orientation or identity.” 17


Têtu (French lesbian and gay magazine): - article in June issue.

Galeria Alaska Productions: Coverage of ILGA’s activities in Geneva and Krakow for a documentary on LGBT rights in Europe, a co-production of ARD and Arte (airing August 30, 2005).

TerraViva News, 20 April 2005 http://ipsnews.net/ “Human Rights: Gay and Lesbian Rights Postponed Yet Again by Gustavo Capdevila GENEVA (IPS) - For the third year in a row, discussion and voting on a Brazilian resolution addressing sexual diversity has been postponed at the United Nations Commission on Human Rights, which is wrapping up its 61st annual session this week. The resolution, which asserts that sexual diversity is an integral aspect of universal human rights, was first presented in the Commission by the Brazilian delegation in 2003. On that occasion, and the following year, it was withdrawn before reaching a vote. This year, despite the backing of over 20 countries, mostly European, the resolution has been postponed once again. The Brazilian delegation attributed its decision to withdraw the resolution to pressure from Islamic nations. The country is currently preparing for an Arab-South American Summit to be held in the capital, Brasilia, on May 10 and 11, which is to be attended by the heads of state and government of 22 Arab and 12 Latin American nations. According to Kim Vance, director of ARC International -- a Canadian-based non-governmental organisation that promotes gay, lesbian, bisexual and transgender (GLBT) equality -- the Brazilian authorities admitted that they did not want to endanger their relations with these particular countries when they were about to host the summit. Another reason offered by the Brazilians for pulling back on the resolution was its "divisive and contentious" nature in the context of the Commission, noted Vance, whose organisation is a member of the International Lesbian and Gay Association (ILGA). Nevertheless, in a conversation with IPS, an official from the Brazilian mission to the United Nations in Geneva denied that the upcoming Arab-South American Summit was behind the decision to withdraw the proposition. "This issue continues to be an important one for Brazil, although we don't know when we will put it forward again," said the official, who asked to remain anonymous. She maintained that Brazil's decision was based on the fact that the resolution did not have the desired or expected support of other countries on the 53-member Commission. Moreover, she said, the current make-up of the Commission is not a propitious one for a resolution of this kind. For its part, human rights watchdog Amnesty International reported that the Brazilian draft resolution had come up against solid opposition from the Organisation of Islamic Conferences (OIC), which proposed 55 amendments to the original text, in addition to less vocal protest from the Vatican. 18


At the Commission's 2004 session, the Brazilian delegation announced in an official statement that it had requested the postponement of discussion on the proposition because "we have not been able to reach the necessary consensus." The international GLBT community has mobilised in support of the resolution originally presented in 2003, and is still hopeful that a specific resolution will be presented and voted on at next year's session, noted Vance. "We will look to Brazil and to other countries within Latin America that have expressed support, like Argentina and Uruguay, and there are certainly many countries within the European group that will offer support, as well as Canada," she noted. "We are hoping that countries such as South Africa, which has sexual orientation protection in their constitution, will be willing to at least promote the kind of ideas that they already have within their constitution domestically, at this Commission," she added. The original Brazilian resolution does not establish the creation of a new category of human rights abuses. Rather, it expresses concern over violations that are committed on the basis of an individual's sexual orientation. Pedro Paradiso Sottile, a representative of the Argentine Homosexual Community (CHA), addressed the Commission last week about "the violations of human rights we face because of our sexual orientation and gender identity." In many countries around the world, being gay, lesbian, bisexual or transgender means suffering discrimination and exclusion, he said. Amnesty International has documented cases of abuse including torture and other mistreatment as a result of the real or perceived sexual orientation of detainees, as well as cases where GLBT rights defenders have been threatened, imprisoned, beaten or killed. Vance noted that the situation of the GLBT community varies greatly across different countries and regions. "Sometimes when there are advances in one region, it can have repercussions in other areas of the world, and at times these are negative repercussions. When issues of relationship rights are advancing in one part of the world, other countries may feel threatened by that and actually go further to restrict rights than they had previously, because they fear what may be coming," she explained. "So it's necessary for all our groups around the world to be in constant communication, to ensure that we're trying to advance these causes together and that we're working in cooperation," she stressed. The continued postponement of a discussion on GLBT rights in the Commission on Human Rights has focused attention on the status within the U.N. system of organisations that work in this field. ILGA was formerly a member of the UN Economic and Social Council (ECOSOC), but subsequently lost that status and has been unable to regain it because of a "groundswell of opposition", based on the same arguments being used to prevent the discussion of the Brazilian resolution, including the claim that it is not an appropriate forum for this issue, said Vance. (END)�

19


•

Lifesite News (opposed), April 15, 2005 http://www.lifesite.net/ldn/2005/apr/05041505.html “Canada & 32 Other Countries Frustrated at Block of Homosexual Agenda at United Nations Disgruntled at unsuccessful lobbying efforts to push a homosexual agenda through at a meeting of the United Nations Commission on Human Rights underway in Geneva, New Zealand, Canada and 32 other countries pushing the agenda issued a bitter statement this morning. "It has been two years since Brazil first tabled their draft resolution at this Commission seeking to condemn discrimination on the basis of sexual orientation," said the statement. "We deeply regret that this Commission is still not ready to address that resolution today." Behind the scenes homosexual activists from the International Gay and Lesbian Human Rights Commission along with other activist groups have been working for two years since Brazil first introduced the resolution. (see the Action kit on the issue developed by activists here http://www.iglhrc.org/files/iglhrc/UNCHR%20Action_... ) Initially, opposition to the proposal from the Vatican, and the Organization of Islamic states and many other countries, succeeded in delaying consideration of the measure. While activists believed that 2005 would be a ripe time for the proposal, the alarming fruits of the measure have been realized in Canada, and other nations with the world beginning to take notice. The current Vatican delegate to the negotiations on women's issues is Jane Adolphe, an international law expert and an assistant professor of law at Ave Maria Law School. Speaking on the "sexual orientation" proposal when it was first introduced at the UN in 2003, Adolphe said "This initiative opens the door for further attacks on the Church. With respect to the Commission, individuals could presumably use this discrimination language to bring complaints against the Church with regard to hiring, employment, even the doctrines of the Church itself." Those predictions have been realized in Canada where the term "sexual orientation" being read into the Charter of Rights and inserted into national and provincial human rights codes has led to same sex 'marriage' being imposed in most Canadian provinces by judicial fiat. Moreover, a Christian college in Canada has been told by the courts it could not dismiss a teacher based on the school's discovery that he was a practicing homosexual. Currently, Canadian Catholic Bishop Fred Henry of Calgary, Alberta is facing two separate complaints before the provincial human rights commission based on his faithful rendering of Church teaching on homosexuality. With the world looking on, Canada has demonstrated the dangers inherent in the proposal to condemn discrimination based on 'sexual orientation'. Observers suggest that Canada's experience has added to apprehension on the part of some nations to impose the 'sexual orientation' language globally via the United Nations. However, the statement read by the block of countries pushing the homosexual agenda, was merciless in its characterization of its opponents as tolerant of violence. Falsely portraying the sexual orientation proposal as aiming principally to stem violence against homosexuals, the statement said: "It is contrary to human dignity to force an individual to change their sexual orientation, or to discriminate against them on this basis. And, it is repugnant for the State to tolerate violence against individuals." The statement also slammed the Commission for failing to come on side with the homosexual agenda. "To remain silent, is to condone some of the worst forms of discrimination ... We hope this Commission will not be silent for too much longer," the statement said. New Zealand Ambassador Tim Caughley presented the statement on behalf of his country and Andorra, Argentina, Austria, Belgium, Canada, Chile, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Guatemala, Iceland, Ireland, Luxembourg, Mexico, Netherlands, Norway, Portugal, Republic of Korea, Romania, Slovenia, Spain, Sweden, Switzerland, The United Kingdom of Great Britain and Northern Ireland, Uruguay, and Venezuela.� 20


ig

H

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CHR Region Africa Africa Africa Asia Eastern Europe Latin America WEOG Africa Africa Africa Africa Africa Africa Africa Africa Africa Africa Africa Africa Asia Asia Asia Asia Asia Asia Asia Asia Asia Asia Asia Eastern Europe Eastern Europe Eastern Europe Eastern Europe Latin America Latin America Latin America Latin America Latin America Latin America Latin America Latin America Latin America Latin America WEOG WEOG WEOG WEOG

CHR Member (2006)

H

COUNTRY Burkina Faso Gabon Swaziland Sri Lanka Ukraine Paraguay Ireland DR of Congo Egypt Eritrea Ethiopia Guinea Kenya Mauritania Nigeria South Africa Sudan Togo Zimbabwe Bhutan China India Indonesia Japan Malaysia Nepal Pakistan Qatar Korea Saudi Arabia Armenia Hungary Romania Russian Federation Argentina Brazil Costa Rica Cuba Dominican Republic Ecuador Guatemala Honduras Mexico Peru Australia Canada Finland France

CHR Member (2005) 2005 2005 2005 2005 2005 2005 2005 2006 2006 2006 2006 2007 2007 2006 2006 2006 2007 2007 2005 2006 2005 2006 2006 2005 2007 2006 2007 2006 2007 2006 2007 2006 2007 2006 2005 2005 2006 2006 2006 2007 2006 2006 2007 2006 2005 2007 2007 2007

ve ls heg le m v en EU el s Ite eg t: s e m m en xua N 6 Z S lo t :g Ite ta rie te en m nt m de G 1 e at 7 en nt ri io St de d n a e te ri n tit m de en y nt t Vo ity te in on EJ E lis re t: so EJ lu E EJ tio re E n so re lu so tio lu n tio n

Appendix I: State Positions and Voting Records- CHR 61

9 9 2006 2006 2006 2006 2007 2007 2006 2006 2006 2007 2007 2008 2006 2008 2006 2006 2008 2007 2006 2007 2006 2007 2006 2007 2006 2007 2006 2008 2008 2006 2006 2006 2007 2006 2006 2007 2006 2008 2007 2007 2007

9

9

(8) 9

9 9

9 9

9 9 9 (9) 9

9 (9)

9 9

9

9 9 9

9 9 9

(9) (9) 9 9 9 9

abstained 8 9 abstained 9 9 9 8 8 8 8 8 8 8 8 abstained 8 8 abstained abstained 8 8 8 9 8 8 8 8 9 8 9 9 9 abstained 9 9 9 no vote 9 9 9 abstained 9 9 9 9 9 9

abstained abstained 9 9 9 9 9 9 abstained 9 abstained abstained 9 abstained 9 9 abstained abstained 9 9 abstained abstained abstained 9 abstained abstained abstained abstained 9 abstained 9 9 9 9 9 9 9 9 9 9 9 9 9 9 9 9 9 9

21


ua St lo t: at g rie m en em nt G de en at en 17 r S io t de id ta n en te ri m tit de e y nt nt Vo ity te in on EJ l is E re t: so EJ lu E EJ tio r es E n ol re ut so i on lu t io n

ex t: s

m en

en m

9 9 9 9 9 9 (9) 9 9 9

9 9 9 53

53

9

2

6

Ite

N Z

9

9

9

m

EU

9 9 9 9

9 9 9 9 9 9 9 9 9 9 9 9 9 9 9

9

It e

ve

ls

eg

eg ls ve

hle

hle

H ig

CHR Region WEOG WEOG WEOG WEOG WEOG Africa Africa Africa Asia Eastern Europe Latin America WEOG Asia Eastern Europe Eastern Europe Eastern Europe Eastern Europe Eastern Europe Eastern Europe Eastern Europe Eastern Europe Eastern Europe Eastern Europe Eastern Europe Eastern Europe Eastern Europe Latin America Latin America WEOG WEOG WEOG WEOG WEOG WEOG WEOG WEOG WEOG WEOG WEOG WEOG WEOG WEOG

CHR Member (2006) 2008 2006 2006 2006 2008 2008 2008 2008 2008 2008 2008 2008

H ig

COUNTRY Germany Italy Netherlands United Kingdom USA Botswana Cameroon Morocco Bangladesh Azerbaijan Venezuela Austria Cyprus Albania Bosnia & Herzegovina Bulgaria Croatia Czech Republic Estonia Latvia Lithuania Poland Serbia & Montenegro Slovakia Slovenia TFYR of Macedonia Chile Uruguay Andorra Belgium Denmark Greece Iceland Luxembourg Malta New Zealand Norway Portugal Spain Sweden Switzerland Turkey TOTAL:

CHR Member (2005) 2005 2006 2006 2006 2005

9 34

9 9

9 9 9

9 9

9 9 9 9 9 9 9 9 9

9 9 9 9

9 9 9 9 8

9 9 9 9 abstained

25/20/7/1

36/0/17

9 9 9

9 9 9 9 9 9 9 9 9 9 9 9 9 9

9 9 9 9 9 9

9 (9) 9 9 9 9 9 9

32

42

22


Appendix II: NGO Written Statement E/CN.4/2005/NGO/143 ECONOMIC AND SOCIAL COUNCIL COMMISSION ON HUMAN RIGHTS Sixty-first session Item 6 of the provisional agenda

RACISM, RACIAL DISCRIMINATION, XENOPHOBIA & ALL FORMS OF DISCRIMINATION: HIV/AIDS, SEXUAL ORIENTATION, GENDER IDENTITY AND NON-DISCRIMINATION Written statement submitted by Canadian HIV/AIDS Legal Network, a non-governmental organization in special consultative status [February 9, 2005] A. Introduction/Overview 1. The Canadian HIV/AIDS Legal Network and ARC (“Allied Rainbow Communities�) International affirm the principles of the Vienna Declaration and Program of Action that human rights are universal, indivisible, interdependent and interrelated, and welcome the work of the UN Commission on Human Rights in recognizing the importance of the protection of human rights in the context of HIV and AIDS. 2. We affirm the importance of non-discrimination in protecting the human rights of all vulnerable groups, but wish to place particular emphasis in this written statement on the human rights of gays, lesbians, bisexuals and transgendered people. 3. This statement first examines the connection between non-discrimination and effective responses to HIV/AIDS, and then sets out existing language by UN Treaty Bodies and Special Procedures which confirms that the right of lesbians, gays, bisexuals and transgendered people to be protected from discrimination is already established in international human rights law. 4. Finally, we underline the importance of gender identity inclusion, and conclude with concrete recommendations that the Commission on Human Rights adopt resolutions affirming that lesbians, gays, bisexuals and transgendered people are entitled to the full enjoyment of their human rights without discrimination, and calling for a study by the Office of the High Commissioner for Human Rights on human rights violations based on sexual orientation and gender identity.

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B. Importance of Non-Discrimination in Addressing HIV/AIDS 5. We share the Commission’s expression of concern in CHR resolution 2003/47 that “in many countries, many people infected and affected by HIV, as well as those presumed to be infected, continue to be discriminated against in law, policy and practice”. We welcome the resolution’s recognition that stigma and discrimination continue to be “obstacles to an effective HIV/AIDS response” as well as the Commission’s call for States to “take all necessary measures to eliminate stigmatization of and discrimination against those infected and affected by HIV/AIDS, especially for women, children and vulnerable groups”. 6. As the International Guidelines on HIV/AIDS and Human Rights (further recognized in CHR resolution 2004/40) make clear, the protection of human rights is essential to safeguard human dignity and ensure an effective, rights-based response to HIV/AIDS.1 7. Similarly, the UNGASS Declaration of Commitment on HIV/AIDS2 notes that “stigma, silence, discrimination and denial … undermine prevention, care and treatment efforts” and commits States, by 2003, to adopt “measures to eliminate all forms of discrimination against and to ensure the full enjoyment of all human rights and fundamental freedoms by people living with HIV/AIDS and members of vulnerable groups.” 8. While we emphasize the importance of eliminating discrimination against all vulnerable groups affected by HIV and AIDS – including women, children, those living in poverty, minorities, indigenous people, migrants, refugees and internally displaced persons, people with disabilities, prisoners, sex workers, men who have sex with men and injecting drug users – the focus of this written statement is on the elimination of discrimination against gays, lesbians, bisexuals and transgendered people. We recognize also that different grounds of vulnerability intersect and that gays, lesbians, bisexuals and transgendered people experience the world differently depending on their sex, race, age, class, socioeconomic status, dis/ability, culture, religion, language and other factors. 9. We recognize that preventing the transmission of HIV is complex, and requires the creation of an environment in which people are free to acknowledge their sexual identity, to seek information and get information, to experience the support of peers and role models, to receive services that fit (rather than exclude) their experiences, to see themselves written into (rather than out of) culture, knowledge, and society. For gays, lesbians, bisexuals and transgendered people, preventing HIV transmission requires eliminating discrimination based on sexual orientation and gender identity. C. Recognition by UN Mechanisms of Non-Discrimination on Grounds of Sexual Orientation and Gender Identity 10. In recent years, there has been an increasing recognition by the UN Treaty Bodies and Special Procedures of the ongoing violations of the human rights of gays, lesbians, bisexuals and transgendered people, and the importance of measures to address these rights violations.

Guideline 5, Second International Consultation on HIV/AIDS and Human Rights (E/CN.4/1997/37, annex I), September 1996. 1

2

Adopted by the General Assembly: S-26/2, 27 June, 2001.

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11. The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment has detailed specific allegations of abuses perpetrated against lesbians, gays, bisexuals and transgendered people, including rape by police or prison authorities, forcible confinement in medical institutions, electroshock treatment, and threats by authorities to disclose sexual orientation or gender identity as a means of intimidation.3 12. The Special Rapporteur on violence against women has also affirmed4 the principle of nondiscrimination on the ground of sexual orientation and noted that the Office of the United Nations High Commissioner for Refugees has recognized that lesbians and gay men constitute "members of a particular social group" for the purposes of refugee recognition. This has been recognized in the domestic law of numerous States. 13. In 2005, the Special Rapporteur on violence against women specifically noted that “cases of lesbian women being targeted for rape specifically because of their sexual orientation in order for the aggressor to ‘prove [the victim’s] womanhood’ have also been documented” and emphasized that “rape and sexual assault take away women’s control over when, with whom, and how they have sex, significantly increasing risk of HIV.”5 14. Building on successive reports of the Special Rapporteur on extra-judicial, summary or arbitrary executions, the Commission on Human Rights has four times adopted resolutions6 which affirm the right to life of all persons, including on the ground of sexual orientation. 15. In 2005, the Special Representative of the Secretary General on Human Rights Defenders has recognized that “violations have also taken place against human rights defenders working on a wide array of issues including ... lesbian, gay, bisexual and transgender issues.”7 16. The Committee on Economic, Social and Cultural Rights has affirmed the principle of nondiscrimination on grounds including sexual orientation,8 as has the Committee on the Rights of the Child.9 17. The UN Human Rights Committee has found that "... the criminalization of homosexual practices ... by driving underground many of the people at risk of infection ... would appear to run counter to the implementation of effective education programmes in respect of HIV/AIDS prevention".10 The Committee noted that the term "sex" in article 26 of the Covenant includes "sexual orientation". 3

See, for example, A/56/156, 3 July 2001; E/CN.4/2002/76, 27 December 2001.

E/CN.4/1999/68, 10 March 1999; Integration of the Human Rights of Women and the Gender Perspective: Violence Against Women, UNCHR ESCOR, 59th Sess., Annex, Agenda Item 12(a), UN Doc. E/CN.4/2003/75 (2003).

4

5

E/CN.4/2005/72, paras 27 & 28.

6

CHR resolutions 2000/31, 2002/36, 2003/56 and 2004/56.

7

E/CN.4/2005/101, para 27.

General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12), E/C.12/2000/4, 11 August 2000. 8

9

General Comment No. 3: HIV/AIDS and the Rights of the Children, CRC/GC/2003/3, 17 March 2003.

Communication No. 488/1992: Australia. 04/04/94. CCPR/C/50/D/488/1992. (Toonen, v. Australia, Date of communication: 25 December 1991). 10

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18. As noted by the Working Group on Arbitrary Detention,11 the Committee subsequently called on States not only to repeal laws criminalizing homosexuality, but also to include in their constitutions the prohibition of any discrimination based on sexual orientation.12 19. In a communication involving a claim by a surviving gay partner to equal recognition under pension legislation, the Committee affirmed that the obligation of non-discrimination in the ICCPR extends to sexual orientation.13 D. Importance of “Gender Identity” Inclusion 20. In addition, transgendered people face particularly severe human rights violations in countries around the world. The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment has noted cases in which:14 •

male-to-female transsexual women have been beaten intentionally, causing implants to burst and releasing toxic substances into their bodies;

ill-treatment against sexual minorities is believed to have also been used in ‘social cleansing’ campaigns;

members of sexual minorities have received inadequate medical treatment in public hospitals on grounds of their gender identity. Prisoners diagnosed as suffering from gender dysphoria are often said to be denied medical treatment for gender dysphoria, such as hormone therapy;

Transsexual and transgendered persons, especially male-to-female transsexual inmates, are said to be at great risk of physical and sexual abuse by prison guards and fellow prisoners if placed within the general prison population in men’s prisons.

21. Despite many similarities in the abuse experienced by lesbians, gays and bisexuals, and by transgendered people, the language of “sexual orientation” is insufficient to protect transgendered people. Different language is necessary to adequately ensure recognition and protection on the basis of each of these different grounds. E. Recommendations: 22.

We therefore urge the Commission on Human Rights: a) to adopt a resolution recognizing that lesbians, gays, bisexuals and transgendered people are entitled to the full enjoyment of their human rights and fundamental freedoms without discrimination;

11

Working Group on Arbitrary Detention, E/CN.4/2003/8/Add.1, 24 January 2003; Opinion 7/2002.

12

Concluding observations of the Human Rights Committee (Poland), 29 July 1999 (CCPR/C/79/Add.110, para. 23.

13 Communication No 941/2000: Australia. 18/09/2003, CCPR/C/78/D/941/2000. Young v. Australia, Communication 941/2000 (29 June 1999). 14

A/56/156, 3 July 2001; E/CN.4/2002/76, 27 December 2001.

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b) given that the principle of non-discrimination applies to the equal enjoyment of all human rights, to incorporate language affirming non-discrimination on the grounds of sexual orientation and gender identity throughout relevant resolutions under consideration by the Commission across a range of agenda items; c) to explicitly affirm the principle of non-discrimination on the ground of gender identity; d) to request that the Office of the High Commissioner for Human Rights gather information concerning human rights violations based on sexual orientation and gender identity, and make recommendations concerning the obligations of States to promote and protect human rights on these grounds.

27


Appendix III: Gender Identity Fact Sheet Extrajudicial, Summary and Arbitrary Executions There were two of them. They said they were police and they had uniforms under their coats. The car moved and I asked where we were going—I thought to the police station. But they said: “Shut up and do what we say. If you don’t, you’ll be killed.” And they put a gun against my head. They told me to get undressed … and the one who was the boss said, “Shut up: we will destroy you all, all the trans people.“…. He took a knife and started to stab my leg. We were in a dark road on the edge of the city and they stopped. In the car, they made me go from front seat to back seat and give them blow jobs, then they took turns raping me from behind. And while that was happening the torture started. …First the officer started hitting me with his hand—beating and slapping me, and pulling my hair. Then he started to smoke, and stamped out the cigarettes on my toes. Then he started pummeling me. If I said anything he would hit me harder and harder. And always saying they would destroy us all. I couldn’t say anything because there was a gun against my head. He took my shoe and with the heel he started to hit my face. There were wounds on my lips and all my face was full of scars and the two men were raping me one by one. I said, “Please stop”: now my face was unrecognizable. But he didn’t listen to me. There was blood all over the car. Then the car was moving on … and the two men talked about what they would do with me. One said: “Let’s burn her some more.” The other said, “No, she’ll shout and someone will hear.” One wanted to stab me, the other wanted to smash my skull. … --Testimony of Hulya, a Turkish transgender woman, from a forthcoming report by Human Rights Watch

Recommendation Since 1997, Special Rapporteurs on Extrajudicial, Summary, and Arbitrary Executions have repeatedly drawn attention to killings of transgender people. It is time for the resolution on extrajudicial executions to include “gender identity” or “transgender people” in the list of those particularly targeted for such killings.

What is gender identity? ¾ “Gender identity” refers to each person’s deeply felt, internal sense of being of a particular gender, which may or may not correspond with that assigned to them at birth. Gender identity is a profoundly rooted, fundamental aspect of human personality, essential to an individual’s identity and belonging. It should not be a basis for discrimination or abuse. ¾ Gender identity is internally and personally defined. It may, however, be expressed through external attributes, such as dress, mannerisms, speech patterns, social interactions and other aspects of personal and cultural expression. And failure to conform to a society’s expectations of how to be “masculine” or “feminine” can make one vulnerable to violence.

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¾ People whose gender identity differs from their birth-assigned gender and from social norms of “male” and “female” are often referred to as “transgender”, an umbrella term often used to include pre- and post-operative transsexuals, those whose gender identity differs from their birthassigned gender but who do not seek to change their bodies, cross-dressers, and others. It includes individuals who do not fit neatly into the binary male/female categories. •

The narrower term “transsexual” is often used to describe people who undergo medical treatments, such as hormone therapy or surgeries, to change their physical sex.

Where do killings based on gender identity happen? Around the world. Cases like the following show why it is essential that the resolution on extrajudicial executions should call for the prompt and thorough investigation of killings based on gender identity. The frequency of such cases may also show why some States resist encouraging the United Nations to shed light on these violations. 8 In the United States, transgender people regularly suffer brutal and often murderous violence. The organization “Transgender Day of Remembrance” reports that one transgender person is killed every month in the U.S.15 In 2002, Gwen Araujo, a 17-year-old transgender woman, was raped, then brutally murdered at a party by men who discovered she was biologically male; her alleged assailants were freed in 2004 after a mistrial. In 2003, Eamonie Spaulding was brutally killed in Washington, D.C. Despite individual prosecutions, figures suggest an inadequate government response. The Federal Bureau of Investigation’s 2002 statistics showed that hate crimes based on sexual orientation and gender identity made up 16.6% of hate crimes in the country.16 However, a coalition of lesbian, gay, bisexual, and transgender anti-violence groups found 26% more cases of sexual orientation- and gender-identity-based violence than did the government—in a study of only twelve urban areas, as opposed to the government’s nationwide study. The disparity suggests that many crimes go either unreported or unresponded to by State officials. In the last six months of 2003, the same coalition reported a 24% increase in such crimes.17 8 In India in December 2002, Chandini, a 22-year-old hijra or transgender woman was found dead. Although circumstances suggested the strong possibility of murder, police accepted an account that the death was suicide. They also refused to accept complaints or petitions from the local hijra community, stating they did not recognize that community or its relationships, and that only Chandini’s biological parents were entitled to file a complaint.18 8 In Honduras, at least seven persons were killed apparently due to their sexual orientation or gender identity in San Pedro Sula in June-July 2003. Only one, the extrajudicial execution of Erick David Yanez (Ericka) led to an investigation, which is reportedly stagnant. Elkyn Suarez Mejia (China), a transgender human rights defender, received death threats in July-September 2003, warning her against standing as a witness against two officers accused in Erick David Yanez´s

15

See the website of the Transgender Day of Remembrance, www.gender.org/remember/day/. Federal Bureau of Investigation, Uniform Crime Report, 2002. The government does not keep separate statistics on hate crimes based on gender identity. 17 See the website of the National Coalition of Anti-Violence Programs (U.S.) at http://www.ncavp.org/. 18 IGLHRC Action Alert, December 17, 2002; see also People’s Union for Civil Liberties – Karnataka, Human Rights Violations against the Transgender Community: A PUCL Report, 2004. 16

29


murder. Members of a lesbian, gay, bisexual, and transgender organization which denounced the murders received anonymous phone calls threatening to bomb the group´s offices.19 8 In Chile, two transvestites, Vladimir Mario Ibanez Carrasco and Boris Javier Covarrubias, were killed in unexplained circumstances in 2002. While judicial investigations have been opened into these killings, Amnesty international has expressed concern that the authorities do not appear adequately to investigate reports of threats and attacks on transvestites. The organization has also voiced concern that those reporting such violations may face further threats to prevent the complaint from being pursued effectively. In December 2003, Rodriogo Lopez Barrera, a campaigner for the rights of transvestites in Chile, received death threats and was shot at on the street.20 8 In Brazil, in late December 2002, a transvestite known as Ze Galinha was shot to death; witnesses alleged a military police officer surnamed Edras was responsible. Local police refused to hear the witnesses´ testimony and took no action to arrest the alleged murderer. A local lawyer, Marcelo Cruz, took up the case; as a result, a judge ordered Edras’ preventive arrest. Cruz, together with the president of a local organization, received threats and harassment. On January 27, 2003, Marcelo Cruz was found murdered in his apartment.21

Why are transgender people singled out for killing? In 2001, the Special Rapporteur on Torture told the UN General Assembly that transgender people are “often subjected to violence … in order to ‘punish’ them for transgressing gender barriers or for challenging predominent conceptions of gender roles.“22 People who violate cultural norms concerning “masculinity” or “femininity” face not only discrimination but violence in many countries around the world. Such violence may take the form of abuse, rape, or even murder. Many transgender people find little protection in the law. As the Special Rapporteur on Torture declared, “Discriminatory attitudes to members of sexual minorities can mean that they are perceived as less credible by law enforcement agencies or not fully entitled to an equal standard of protection, including protection against violence carried out by non-state agents.”23 In his 2005 report, the Special Rapporteur on the Right to Health called transgender youth “among the most vulnerable and marginalized young people in society.”24 At the same time, transgender people’s rights are firmly grounded in international law. Numerous States have passed legislation ensuring that transgender people’s legal identities reflect their gender identity. South Africa’s 2003 “Alternation of Sex Description and Sex Status Act,” for instance, states that “Any person whose sexual characteristics have been altered by surgical or medical treatment or by evolvement through natural development resulting in gender reassigment, or any person who is intersexed,” can change their legal documents accordingly. In its decision in the 2003 case of Von Kuck v Germany, the European Court of Human Rights stated that defining one’s own gender identity is “one of the most basic essentials of self-determination.” It held that 19

Amnesty International [AI] Index UA 258/2003 – AMR 37/013/2003, AI Index AMR 37/109/2003 – AMR 37/015/2003. 20 AI Index UA 04/2004 – AMR 22/01/2004. 21 IGLHRC Action Alert, February 11, 2003. 22 “Report of the Special Rapporteur on torture and other c ruel, inhuman or degrading treatment or punishment,” UN General Assembly, UN Doc. A/156/56, July 3, 2001, at 17. 23 Ibid., at 21. 24 “Report of the Special Rapporteur on the Right to Health,” UN Doc. E/CN.4/2004/9, at 123.

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“the very essence of the [European Convention on Human Rights] being respect for human dignity and human freedom, protection is given to the right of transsxexuals to personal development and to physical and moral security.”25

Are transgender identities cross-cultural? Yes. Transgender people exist around the world and have fulfilled diverse cultural roles: “The Travesti in Brazil, the Bakla in the Philippines, the Tomboys in Thailand, Nadle among the Dine or Navajo, the Mahu of Hawaii and the Kothi in India all in their diversity contribute to the vitality of the human family. … in many traditional and tribal societies men and women with different gender identities and sexual orientations played valued and valuable roles as healers and shamans.” 26 The ways in which we approach gender and sex are shaped by our individual beliefs, the traditional beliefs of our cultural and ethnic communities, and also by the ways in which colonialism has affected those communities. For example, colonial "The notion that there are two and only two anthropologists’ and settlers’ records of genders is one of the most basic ideas in our binary indigenous cultural approaches to sex and Western way of thinking. Transgender people gender are often derogatory, reflecting an challenge our very understanding of the world. implicit assumption of the superiority of And we make them pay the cost of our confusion Western culture. by their suffering." 27 New Zealand is proud to claim the world’s first transgender Member of Parliament, the first transsexual is openly serving in the armed forces in Spain, transsexuals have obtained government support for sex reassignment surgeries in Iran, and in Latin America recent years have seen a vibrant growth in transgender organisations and activism. Around the world, transgender people participate in and contribute to their societies and cultures. Yet a country’s progressive record on international human rights issues, or strong domestic protections against discrimination, may still offer minimal safeguards to transgender victims of violence. Police or communities may still be driven by hatred despite the law. Prejudice may prevent officials from offering protection or from investigating crimes of hatred. In many countries, vaguely-worded and sweeping laws against “public scandals” or “indecent behaviour,” as well as laws enforcing “public morals,” are used to penalize people whose only crime is looking, dressing, or behaving differently from rigidly enforced social and cultural norms. Such laws create the pretext for arbitrary arrest or for “social cleansing” campaigns. Both provide a context where arbitrary killings of transgender people may happen. All the above factors put many transgender people at daily risk—of their freedoms, bodily integrity, and lives. It is imperative that the Commission on Human Rights affirm in its resolution on extrajudicial executions that the right to life carries no exceptions for gender identity.

25

Judgment, Von Kuck v Germany, application no. 35968/97, European Court of Human Rights, Third Section, June 12, 2003. 26 Roth, 22nd International Lesbian and Gay Association (ILGA) Conference, Manila, Philippines (November 18, 2003). 27 barbara findlay, cited in Canadian HIV/AIDS Legal Network/Canadian AIDS Society, Gay and Lesbian Legal Issues and HIV/AIDS: Final Report (1998), at 53.

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Appendix IV: NGO Oral Interventions Item 6: Racism, Racial Discrimination, Xenophobia and all Forms of Discrimination Canadian HIV/AIDS Legal Network (Hudson Tucker, SLLAGA) Chairperson, distinguished delegates, My name is Hudson Tucker and I am speaking on behalf of the Canadian HIV/AIDS Legal Network which has links with many organisations including the Sierra Leone Lesbian and Gay Association of which I am the Country Coordinator. Last year, my predecessor, Fanny Ann Eddy addressed this Commission. I replaced her in September when she was brutally murdered whilst she was working late at the offices of the Sierra Leone Lesbian and Gay Association. Despite efforts by some States to dismiss our issues as “new rights that are contrary to religious and cultural values�, our sexual orientation is as much a part of our identity as our race, our faith, or our gender. As the Vienna Declaration and Programme of Action recognises, human rights are indivisible and interrelated, and it is meaningless to accord human rights protection to one part of our identity, such as our race, sex or religion, but to deny it to another part of our identity, such as our sexual orientation or gender identity. Lesbians, gays, bisexuals and transgender people experience the world differently depending on their race, sex, age, class, disability, culture, religion, language and other factors. The struggle against one form of oppression cannot in practice be separated from the many other struggles for equality in which members of our communities - and the international community generally - are engaged. We note with dismay that some States retain colonial laws that criminalize same-sex sexual activity and nonnormative sex and gender expression. In fact, some of these laws have been extended in the name of religion and culture. We reject this political use of religion and culture that enforces colonial and patriarchal values, and promotes fundamentalisms and extremism of all kinds. We face a troubling contradiction: on the one hand, rich and diverse global advocacy on sexual and gender diversity; and on the other, a climate of hatred and violence targeted toward marginalized groups. Many countries are committed to advancing our rights, as they have stated publicly and privately. However, unequal power relations and coercive tactics often force this support underground. Lesbians, gays, bisexuals, and transgender people confront harassment from police; abuse by our neighbours and our families; and violence and brutality—sometimes punitive rape. At the same time, we have and have always had a place in our communities. Despite the pressure of prejudice, many of our families do not succumb; many of our neighbours, co-workers, and friends continue to love and to support us. Many of our communities continue to affirm that we are an integral part of their web of relationships. We say to you: we are part of your countries and constituencies. This Commission must break its silence and recognize us as full and equal members of the human family. We must acknowledge, embrace and celebrate the diversity of human kind. To do less is an insult to the foundation of the UN system. 32


J o i n t O r a l S t a t e m e n t b y t h e International Commission of Jurists (ICJ) and International Federation for Human Rights Leagues (FIDH) (Hassiba Hadj Sahraoui, ICJ)

Mr. Chairperson, For its last two sessions, the Commission on Human Rights (hereafter the Commission) has had on its agenda a draft resolution entitled “Human Right and Sexual Orientation” presented by Brazil.28 In 2003, the Commission failed to act on the resolution because of filibustering, including the introduction of 55 “amendments” to the resolution, a no-action motion and the repeated use of points of order. In 2004, despite Brazil's commitment to the issue, tremendous pressure from OIC states29 and the Holy See,30 led to the Commission postponing consideration of the draft Resolution to this year.31 The International Commission of Jurists (ICJ) and the International Federation of Humans Rights Leagues (FIDH) believe that the debate on this question should be framed in terms of general human rights principles and the particular international obligations of States to prohibit discrimination on grounds of sexual orientation or gender identity, as enshrined in international human rights law. Discrimination on the grounds of sexual orientation or gender identity gives rise to the most egregious human rights violations such as extrajudicial killings, ill-treatment, torture, and arbitrary detention. The inability of the Commission to address such violations is indefensible, given that the Commission’s own Special Procedures, within their respective mandates, have extensively documented cases of human rights violations on the grounds of sexual orientation and gender identity. The work of the Special Procedures of the Commission, in particular the Special Rapporteur on Torture, the Working Group on Arbitrary Detention, the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, the Special Rapporteur on Violence Against Women and the Special Rapporteur on the Right to Health32 show clearly that everywhere in the world, whatever the cultural or religious environment, human rights violations are perpetuated on the grounds of the real or perceived sexual orientation or gender identity of people. The Concluding Observations and Decisions of the UN treaty monitoring bodies, in particular the Human Rights Committee,33 reveal a similar pattern. The work of the Commission special procedures and of the UN treaty bodies shows that discrimination on the grounds of the real or perceived sexual orientation or gender identity manifest itself at various levels:

28 Brazil, supported by many States – 20 States were co-sponsors of the resolution later joined by 7 other states –, presented to the 59th session of the Commission on Human Rights a draft resolution E/CN.4/2003/L.92 reaffirming the universal character of human rights and that the enjoyment of human rights and fundamental freedoms should not be hindered in any way on the grounds of sexual orientation. 29 See: letter of 26 February 2004 of the Permanent Mission of Pakistan on behalf of the Organisation of the Islamic Conference (OIC) addressed to the Chairperson of the Commission on Human Rights. In addition, certain countries allegedly threatened to boycott the first Arab-South America Summit to be held in Brazil. In December 2003, the President of Brazil had proposed an Arab-South America summit, which Brazil will now host in Sao Paulo in May 2005. 30 See: Note of 1st March 2004 of the Permanent Mission of the Holy See on “the Project of resolution of the United Nations Commission on Human Rights concerning ‘Sexual orientation’ and Discrimination”. 31 See: Commission on Human Rights Decision 2004/104 of 15 April 2004, to defer consideration of draft resolution E/CN.4/2003/l.92 to its 61st session. 32 See: Compilation of international human rights references to non-discrimination on the grounds of sexual orientation prepared by the ICJ. Available at http://www.icj.org/news.php3?id_article=3397&lang=en 33 Ibid.

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By the criminalisation of sexual relationships between same-sex consenting adults or "unnatural behaviour", such as the manifestation of transgender behaviours. The criminalization of sexual relationships between same-sex consenting adults or "unnatural behaviour", such as the manifestation of transgender behaviours violates the right to privacy and the right to equal protection of the law without discrimination. In some countries such acts are punishable with corporal punishments or the death penalty, impairing the right to be free from cruel, inhuman or degrading punishment and the right to life;

In the criminal justice system. Victims of criminal offences suffer from discrimination because of their sexual orientation or gender identity. Lesbian, gay, bisexual or transgender (LGBT) persons are often perceived as less credible by law enforcement agencies and the police often show a prejudice attitude towards such persons. The ICJ and FIDH are particularly concerned with killings committed on any discriminatory grounds, including sexual orientation and the refusal of government officials to consider complaints introduced by LGBT victims, in particular in cases of abuses, ill treatment, including rape or sexual assaults, torture, or sexual harassment. Even more disturbing is the disinclination of government officials or personnel to investigate promptly and thoroughly extrajudicial executions of LGBT persons, or the refusal to bring those responsible to justice and to ensure that such killings are neither condoned nor sanctioned by government officials or personnel;

Discrimination against the author of a criminal offence. Alleged criminal offenders who are lesbian, gay, bisexual or transgender may be subjected to summary criminal procedures short of fair trial guarantees and may receive harsher punishment, or be detained in worse conditions than those of other inmates. In some cases LGBT prisoners are sexually abused by their inmates or prison personnel, or even made sexual slaves, with the prison officials failing to take any preventive measures or sanctions. Transsexual and transgender persons, especially male-to-female, are particularly vulnerable when placed in men's prisons;

• Discrimination in relation to the right to health and access to medical care, in particular after having been victim of physical abuses or during detention. The ICJ and FIDH are also concerned at the practice of forced internment in psychiatric hospitals, where cruel, inhuman or degrading psychiatric treatments are imposed on LGBT people to “cure” or "correct" them. • The situation of LGBT people in the military. Conscripts may be compelled to undergo intrusive and degrading medical examinations on ground of their real or perceived sexual orientation or gender identity. LGBT persons are barred from joining the military or expelled if their sexual orientation or gender identity is disclosed; • Human Rights Defenders working on LGBT issues are also particularly exposed to harassment and human rights violations. As highlighted by the Special Representative of the Secretary General on Human Rights Defenders, these groups are often vulnerable to prejudice, to marginalization and to public repudiation, not only by State forces but by other social actors.34

Report of the Special Representative of the Secretary-General on human rights defenders, /CN.4/2001/94, January 26, 2001, § 89. 34

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A major issue of concern that remains largely ignored is that of multiple discrimination: race, gender, disability, age, poverty and sexual orientation or gender identity. People suffering from multiple discrimination are even more exposed to human rights violations and even less in a position to claim their rights and to obtain remedies. For example, as highlighted by the Special Rapporteur on Violence Against Women, lesbian women could “be targeted for rape specifically because of their sexual orientation in order for the aggressor to prove [the victim's] womanhood”.35 The principle of non-discrimination is enshrined in numerous international instruments and has a wide scope of application. The principle of non-discrimination is embodied in the Charter of the United Nations (articles 1 (3) and 55), the Universal Declaration of Human Rights (articles 2, 7 and 10), the International Covenant on Civil and Political Rights (articles 2, 3, 14, 25 and 26) and the International Covenant on Economic Social and Cultural Rights (article 2). These provisions substantiate the principle of non-discrimination and reiterate the principle of equality before courts and tribunals, equality before the law and the right without discrimination to equal protection of the law. The prohibition of discrimination is a cornerstone of human rights which underlies the human rights protection system set up by the United Nations. The Human Rights Committee has recognised that the prohibition of discrimination in the International Covenant on Civil and Political Rights (article 2(1) and article 26) includes the prohibition of discrimination on the grounds of sexual orientation. The Committee on Economic, Social and Cultural Rights has adopted a similar interpretation under article 2, paragraph 2 of the Covenant on Economic, Social and Cultural Rights. Discrimination on the grounds of sexual orientation or gender identity may give rise to the most serious violations, demonstrating that discrimination has consequences in the deprivation of enjoyment of all other guaranteed human rights. These include the right to life, right to liberty, right to a fair trial by an independent and impartial tribunal, right to privacy, freedom of conscience, freedom of opinion and expression, freedom of assembly and freedom of association, equal access to public services, equality before the law and equal protection of the law, right to work, right to social security including social insurance, right to the enjoyment of the highest attainable level of health, and right to education. The social stigmatisation of human beings on the grounds of their real or perceived sexual orientation or gender identity leaves them more exposed to violence and human rights abuses. This social stigmatisation also increases the climate of impunity and indifference to human rights violations committed against LGBT victims. Under international human rights law States are obliged to abstain from carrying out any discrimination. Such obligation requires that states repeal all measures criminalizing sexual relationships between samesex consenting adults or “unnatural behaviour”. The State is also under the general obligation to protect, which entails taking measures to prevent third parties, including non-state-actors, from engaging in such discrimination and to take remedial measures. States must promptly and thoroughly investigate cases of human rights abuses on grounds of sexual orientation or gender identity. At the Vienna World Conference on Human Rights, all States made a solemn to commitment to recognize and affirm that “all human rights derive from the dignity and the worth inherent in the human person” and that “all human rights are universal, indivisible and interdependent and interrelated”. While 35 Report of the Special Rapporteur on Violence against Women, its Causes and Consequences, “Integration of the human rights of women and the gender perspective: violence against women; Intersections of violence against women and HIV/AIDS”, E/CN.4/2005/72, 17 January 2005, § 27.

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acknowledging that “the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind”, they affirmed that “it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms”.36 Mr. Chairperson, The Commission on Human Rights should take these commitments made by all UN members seriously and: - Adopt a resolution on the prohibition of discrimination on any basis, including on the grounds of sexual orientation or gender identity and condemning discrimination and other human rights violations on such grounds; - Remind States of their international obligation regarding the fight against discrimination, which includes the obligation to abstain from discrimination against people on whatever basis and the positive obligation to take remedial measures when discrimination occurs; - Request relevant special procedures and mechanisms of the Commission on Human Rights as well as UN treaty bodies to examine, within their respective mandates, the question of discrimination and other human rights violations on grounds of sexual orientation or gender identity. It is time for the main human rights body of the United Nations to stop turning a blind eye to the serious human rights violations that take place on the grounds of the real or perceived sexual orientation or gender identity. The Commission cannot let a group of persons particularly exposed to human rights violations fall outside the scope of human rights protection. Thank you.

Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights in Vienna on 25 June 1993, preamble and § 5. 36

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Item 11: Civil and Political Rights Canadian HIV/AIDS Legal Network Chairperson, distinguished delegates,

(Philipp Braun, LSVD)

My name is Philipp Braun and I am speaking on behalf of the Canadian HIV/AIDS Legal Network which has links with many organisations including the Lesbian and Gay Federation in Germany, of which I am a Board Member. Today I am addressing the issue of the civil and political rights that lesbians, gay men, bisexuals and transgender people are entitled to under both the Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights. I am doing this coming from a country that epitomizes both some milestones of activism for LGBT people as well as one of the darkest hours faced by LGBT people in the last century. The fight against the criminalization of gay men and lesbians through so called “sodomy laws” stood at the beginning of the more than 100 years old movement of LGBT people for emancipation and equality before the law. Indeed it still is our most basic demand today! In 1867, Karl Heinrich Ulrichs, the first known gay activist, spoke against sodomy laws at a legal conference in Germany. In 1897, the first gay activist group (the Scientific Humanitarian Committee) was formed by Magnus Hirschfeld in Berlin. The issue of Germany’s infamous Section 175 was discussed in parliament the same year. After being the site of the first political movement for LGBT rights that flourished in the 1920s, Germany was also the site for the worst persecution of LGBT people under the Nazis. Gay men were forced to wear the infamous pink triangle in the Nazi concentration camps and thousands perished. Germany’s example demonstrates how societies can change and overcome extreme discrimination and prejudice. In 2000, the German Parliament unanimously apologized for the prosecution of lesbians and gays under the Nazis and for their continuing criminalization in the 50s and 60s. In 2003, it voted for the construction of a memorial for the persecuted homosexual victims of the Nazis for which a design competition is being currently held (http://www.gedenkort.de/eng-chronicle.htm). We invite High Commissioner Arbour and all delegations and NGOs at the Commission to come to Berlin for the inauguration of the memorial and to contemplate the painful lessons we have had to learn in Germany about persecution and intolerance. Today over 70 countries still criminalize consensual same-sex sexual relations in spite of the fact that in 1994 the Human Rights Committee ruled in Toonen v. Australia (Communication No. 488/1992: CCPR/C/50/D/488/1992, April 4, 1994) that such laws are in contravention of the International Covenant on Civil and Political Rights. Indeed there are members in this Commission that still torture and execute gay men and lesbians for consensual same-sex activity. On all continents LGBT people continue to have their rights to free speech, association, privacy, liberty, freedom from torture and even to life itself infringed by states and private actors. In Egypt gay men have been entrapped by the state and charged with debauchery. In Nepal transgender people are subject to police harassment and violence. In Jamaica some popular dance hall music has called openly for the murder of gay men and last year the founder of the group J-FLAG Brian Williamson was murdered. In Poland the mayor of Warsaw prohibited a LGBT pride parade because he saw it as violating public decency. Many special rapporteurs and treaty bodies have repeatedly underlined the obligations of states to prohibit discrimination on the grounds of sexual orientation or gender identity. Today together with the International Lesbian and Gay Association, which has members in 90 countries, we call upon this Commission to recognize the human rights of LGBT people and upon states to uphold their duty to protect people from discrimination on the grounds of sexual orientation and gender identity. 37


Item 12: Integration of the human rights of women and the gender perspective Amnesty International and Center for Women’s Global Leadership Mr Chair, Millions of women and girls in every society in the world face discrimination and violence at the hands of the state, the community and the family. It cuts across boundaries of wealth, race and culture. Some women are at particular risk of violence by virtue of a multiplicity of factors including discrimination based not only on gender, but also on race, ethnicity, nationality, religion, sexual orientation or identity, health, age or physical or mental ability. These dimensions of discrimination intersect, forcing many women into situations of multiple marginalization. The nature and extent of this violence is well known to governments present at the Commission. Yet little has been done to impact on it. Violence against women and girls will not stop unless the underlying cause of discrimination and the impact of violence on other areas of women's lives is fully recognized and addressed. Violence both derives from discrimination and serves to reinforce it. Women's access to, for example, housing, land and economic independence is both affected by the violence women suffer and makes them more susceptible to violence. Violence is used to restrict women's independence, their freedom of expression and movement, their sexuality and their reproductive choices. Restrictions on sexual self determination have many consequences. For example, in some countries women are criminalized for same sex relationships or consensual heterosexual sexual relationships outside marriage. It also perpetuates racial, religious and sexual stereotypes, including that women, and particularly married women, are always available for sex with or without their consent. Sexuality baiting and violence against women close down opportunities for organizing and advocating for women's rights. In her report to the 61st session the Special Rapporteur on violence against women highlights the intersections of violence against women and girls and HIV/AIDS, noting that violence not only increases women's risk of HIV infection but being HIV positive also makes them targets for further violence. Women face a number of gender-specific circumstances which increase their risk of HIV infection. They are exposed to sexual violence and coerced sex inside and outside marriage, as well as to traditional practices such as female genital mutilation, early marriage, and wife inheritance. Many women lack information about and access to HIV prevention measures and to healthcare, as well as to support and medication after infection. At the 49th session of the Commission on the Status of Women, governments reaffirmed the Beijing Platform for Action, adopted by the 4th UN World Conference on Women in 1995. In doing so they committed themselves to advancing women's human rights in many areas. The commitments to women made in the Beijing Platform for Action must be incorporated into the Millennium Summit and the centrality of women and gender issues into all aspects of UN reform must be recognized. Without gender equality and women's human rights, the Millennium Development Goals and all UN commitments to equality, development and human rights will not be realized. Thank you, Mr. Chair.

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Canadian HIV/AIDS Legal Network (Susana Fried, IGLHRC)

One night, not so long ago, a mother was beating her daughter. She was placed in a sack, hung from the ceiling, and beaten by a broom again and again. On other occasions, the daughter was made to kneel on painful rocks or dry mung beans, arms stretched out, both hands holding glasses of water, and told to hold that position for hours on end unless she wanted to be mercilessly beaten again. When she was not beaten, she was forced to do manual domestic labor, often doing “traditional” male chores like fixing broken pipes or standing near the front door all night long. All this, simply because she is a lesbian. I am speaking today on behalf of the Canadian HIV/AIDS Network and the International Gay and Lesbian Human Rights Commission. The story I have just told comes from a report on violence against lesbians in the Philippines. It could have taken place in nearly any country of the world where countless women are discriminated against at work, tortured by the police and other state officials, raped by male family members, and subject to other forms of violence and inhumane treatment because of their actual and/or perceived sexual orientation and gender expression. International human rights experts have called for greater attention to the intersections of gender-based discrimination, hetero-normativity, homophobia and other forms of racism and intolerance. Violence perpetrated and/or condoned by the state on the basis of sexual conduct and/or gender expression meets the standard deserving the attention and recognition of the international community. In a report to the commission on Human Rights, the former Special Rapporteur on Violence Against Women maintained that, “Gender-based violence is also related to the social construct of what it means to be either male or female. When a person deviates from what is considered “normal” behavior they are targeted for violence.” (1Radhika Coomaraswamy, Report to Commission on Human Rights, l0 April 2002) The current Special Rapporteur on Violence Against women has received information about lesbian women “being targeted for rape, specifically because of their sexual orientation in order for the aggressor to ‘prove the [victim’s] womanhood.’ ” (Yakin Eturk, Report to the Commission on Hunan Rights, 17 January 2005, E/CN.4/2005/72). Colleagues in Guatemala have told us about how women who appear "masculine" are lured into bars and then raped. While the rape of any woman puts her at risk of contracting HIV/AIDS, stigma and discrimination against women whose sexual and gender expression does not conform to social and cultural norms puts them in a compromised position. All too often, women who have sex with women, whether or not they define themselves as lesbian or bisexual, find it impossible to receive appropriate and accessible HIV/AIDS support, treatment and care because they fear hatred or dismissal by health care providers. This points to the multiple ways state-sponsored and/or state supported violence is inflicted upon lesbian and bisexual women, and women who-transgress societal gender prescriptions. Any expression of identity or divergence from cultural norms that require the expression of gender neatly correspond to biological sex, causes fear and hatred leading to actual violence, threats of violence, and psychic harm. Rooted in stereotypes stemming from rigid conceptions of masculinity and femininity, this violence occurs on many levels ranging from daily torment and harassment in schools to hate-driven murder. It is precisely the eradication of these cultural stereotypes that is required by Article 5 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). And yet, despite violence perpetrated against women who have sex with other women, individuals and groups throughout the world are mobilizing to demand their human rights. We are these women, and they are also our colleagues, our friends, and human rights activists for whom national and international systems that promote and protect their human rights remain a distant dream.. 39


Item 13: Rights of the Child MADRE (Mauro Cabral, IGLHRC)

Mr Chairman, I'm Mauro Cabral, from MADRE. I am here to speak about a secret but daily occurring horror: intersex infant genital mutilation. Every time an intersex child is born - a child whose sexual and reproductive anatomy varies from both male and female bodily standards - his or her body is forced into surgical and medical treatments aimed to modify the appearance of his or her genitals, without the child even having the opportunity of consenting or refusing them, and without any medical reason to justify them. Statistically, situations related to intersexuality take place in one over 2 500 births; the immense majority of those intersex children will suffer, since the very beginning of their life, invasive and mutilating procedures. Fear of difference, sexism and homophobia persistently “justify” the practice of clitoridectomies, vaginoplasties and other treatments, which produce, in many cases, an experience similar to castration and/or repeated violation. Aimed to eliminate that "monstrosity" represented by genitally different bodies, these procedures create another kind of “monstrosity", as that of a differentiated ethical standard, that prescribes and justifies inhuman means of so-called bodily “normalization”. Who is speaking before you and this Commission is one of those monsters, Mr. Chairman, and just like too many intersex people, I carry in the flesh and the experience the marks that genital mutilation leave through a human life. Treated as “exceptions of nature”, genital mutilation turns us brutally into human rights exceptions. The Universal Declaration on Human Rights, the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Right of the Child demand an urgent and radical change in the way we deal with bodily diversity. To this change to become real, decisional autonomy and bodily integrity must be recognized and fulfilled as rights of the child, as well as the right of intersex children to live in a world with room for them, a world that considers each human life as valuable and respectable, a world that daily celebrates the diversity of all what exists, including human bodies diversity. Stopping intersex infant genital mutilation is an unavoidable ethical and political imperative. I invite you and this commission to join our effort to eradicate it.

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Item 14: Specific groups and individuals International Service for Human Rights, Canadian HIV/AIDS Legal Network and Human Rights Council of Australia (Chris Sidoti, ISHR) Mr Chairman, The International Service for Human Rights, the Canadian HIV/AIDS Legal Network and the Human Rights Council of Australia acknowledge at the outset the gay, lesbian, bisexual and transgender members of government and other delegations throughout this room. We know that many of you are unable to express your sexual orientation or gender identity for fear of discrimination or worse treatment from your governments and colleagues. We thank you for your work for human rights and express the hope that, through our work, you will be able soon to enjoy in full the human rights to which you are entitled. Diversity among human beings is a fact. It is also a fact that many people experience human rights violations because of this diversity, because they are different. People continue to experience violations of their human rights based on their real or perceived sexual orientation and gender identity. From the Vienna World Conference in 1993, this has been acknowledged on many occasions by states, by the special procedures of this Commission and by treaty monitoring bodies. And yet this Commission itself has been silent on the issue as a whole. States come to this Commission with differences based on culture, tradition and religion. Those differences are reflected in different views about the morality of some sexual behaviour. But alongside the differences there are many areas of commonality that are not properly explored on the basis of law. Does any state here consider it acceptable that persons are subjected to persecution on the basis of their sexual orientation or gender identity? that they are extra-judicially executed? that they are tortured? that they are arbitrarily detained? that they are denied due process of law and a fair hearing in an impartial tribunal? that they are denied or restricted in access to employment, education, health care and housing? If so, speak up now. If not, then persecution, as well understood in international law, based on sexual orientation and gender identity should be the subject of condemnation and concern at this Commission. This is not an issue that will go away without receiving proper attention. It must be dealt with according to law. The time has come to begin to do that. It requires only the initiative of a few states, drawn from all regions, to begin discussions to identify not differences but commonalities on this issue. There are states that, with good will, can draw on their own history and culture – states like South Africa and Ecuador that have constitutional protection for gays and lesbians, like Indonesia that does not criminalise consenting adult sexual relationships, like Uruguay and Argentina and Brazil that have spoken in this forum to condemn these violations of rights, like many Western states, for example, Canada, that have extensive laws to protect the rights of gays, lesbians, bisexuals and transgender people. These national measures of protection and promotion have had a positive effect on the lives of countless individuals. This kind of leadership at the national level has been and is still needed at the international level. We call for leadership and initiative from states of goodwill from all regions and relevant nongovernment organisations to meet between this session of the Commission and the next to develop a cross-regional proposal to address persecution based on sexual orientation and gender identity. Those discussions could take as their starting point the statement of principles to address persecution based on sexual orientation and gender identity, developed and endorsed by a number of non-government organisations, including the three for which I speak, the International Service for Human Rights, the Canadian HIV/AIDS Legal network and the Human Rights Council of Australia. We look for an effective resolution with wide sponsorship that can attract the support of this Commission in 2006 to begin to deal at last with a form of persecution that this Commission has ignored for far too long.

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Human Rights Council of Australia (Howard Glenn, HRCA) We believe that the Commission on Human Rights (CHR) has a crucial role to play in the advancement of the protection and promotion of human rights of all peoples. Increased attention is being given to the denial of human rights to people on the basis of their sexual orientation or their gender identity. These are not new rights, but areas where more action needs to be taken, as documented through many of the special procedures and treaty bodies over recent years. The International Commission of Jurists has published an excellent document summarising this. A wide range of NGOs are meeting and working to promote dialogue and initiatives to increase protection from persecution and other gross human rights violations on the grounds of sexual orientation or gender identity. As our objective, we seek a resolution, or resolutions, at the Commission which: • Affirms the main UN human rights instruments and customary international law, and in particular the basic principle of universality of human rights as it applies to all people, whatever their sexual orientation or gender identity; • Recognises and welcomes the existing work of the Special Procedures of the Commission on Human Rights, and treaty monitoring bodies, concerning human rights violations based on sexual orientation or gender identity; • Recognises and condemns human rights abuses experienced by lesbians, gays, bisexuals and transgender people around the world, including extrajudicial killings, "disappearances", arbitrary detention, torture and the imposition of the death penalty for adult consensual sexual relations; • Recognises that a well-founded fear of persecution based on sexual orientation or gender identity is a legitimate ground for a refugee claim; • Affirms the freedom to live without harassment, discrimination, vilification or violence based on sexual orientation or gender identity; • Affirms the right of to work, education, health care, social security and other economic, social and cultural rights without discrimination based on sexual orientation or gender identity; • Calls for States to repeal laws criminalizing consensual adult sexual relations, and refrain from any practice that effectively criminalises such relations; • Calls for States to ensure appropriate educative, legislative and other measures to address human rights violations based on sexual orientation or gender identity and to promote and protect human rights; • Calls for integration of sexual orientation and gender identity issues throughout the work of the Special Procedures of the Commission and other UN human rights bodies; and • Calls for continued consideration of these issues throughout future Sessions of CHR, and in any body which replaces the Commission. We seek the support of States from amongst each region who accept the importance of this work. We invite these States to meet with us and prepare a resolution to introduce at a future session. We will be working between this Commission and the next to consult and develop support amongst States and other NGOs. At this session, we invite Delegates, NGO participants and other interested participants to: • discuss these issues with representatives of the organisations listed below; • take note of the interventions made by these organisations and by States at the Commission; • attend the various panel and parallel sessions on these issues; and • engage in dialogue as to the best way of addressing these concerns. Organisations supporting this initiative: • • • • • •

ARC International Canadian HIV/AIDS Legal Network El Closet de Sor Juana Gaya Nusantara Foundation, Indonesia Global Rights Human Rights Watch

• • • • • •

International Commission of Jurists International Lesbian and Gay Association International Service for Human Rights, Geneva Lesbian and Gay Federation in Germany (LSVD) “Right Society”, Siberian Human Rights Network, Russia Rights Australia 42


Canadian HIV/AIDS Legal Network (Prepared by Carlos Perera, Women’s Action for Change, delivered by Kim Vance, ARC International)

Mr Chairman, My name is Kim Vance and I am presenting on behalf of my colleague, Carlos Perera, who had to return home to Fiji yesterday. He works with the Lesbian, Gay, Bisexual, Transgender and Intersex communities in the South Pacific. I am here to talk about the discrimination that members of our communities face. Human Rights are for all humans, but we usually do not enjoy these fundamental freedoms, because we are not perceived as having rights or humanity. On a daily basis, we face abuse ranging from being cursed and sworn at; to being made to feel that we are less human than others; rejected by our families, ostracized from society, loss of work and homes, denied health care and other services; through to violence leading to hospitalization or even death. A clear example, Mr. Chairman, happened two weeks ago in Saudi Arabia. Men had been attending a private party celebrating a birthday where they had the audacity to ‘dance and behave like women’. A hundred of these men were arrested and sentenced to imprisonment and in several cases to such severe flogging that it could lead to the very real possibility of death - all for so-called ‘Deviant Sexual Behaviour.’ Another incident happened only last week in Fiji. Two men were arrested and sentenced to two years imprisonment for unnatural offences and indecent practices. The Presiding magistrate during the sentencing made abusive comments, accusing the couple of taking part in "shameful acts" and adding that their conduct was "something so disgusting that it would make any decent person vomit." He also wrongly accused one of the men of pedophilia. In fact, both men were over 21 years of age and engaged in consensual sex in a private place. Currently Fiji’s Constitution, quite similar to that of South Africa, in its Bill Of Rights has an antidiscrimination clause which includes sexual orientation and a right to privacy section. Thus the Magistrate who made these offensive and derogatory comments was in clear breach of his obligation to uphold the Constitution with impartiality. Cases like this utterly destroy our lives and our families. In far too many cases, such persecution has driven those targeted to suicide, given the intense stigma and widespread discrimination they encounter once they have been held up for public targeting through criminal proceedings that violate the most fundamental rights to privacy and equality. Mr Chairman, we call upon the Commission to recognize the importance of sexual orientation and gender identity throughout its work and we call on the Commission to consider a particular resolution dedicated to this topic.

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MADRE (Marcelo Ferreyra, IGLHRC) Mr Chair My name is Marcelo Ferreyra and as a member of the International Gay and Lesbian Human Rights Commission constantly receive information from throughout Latin America stating that people are killed, raped, assaulted, beaten, and forced to receive medical, psychological or religious treatment to alter their sexuality, they are also tortured, and arbitrarily deprived of their freedom because of their apparent or real sexual orientation and gender identity or expression. Indeed, in many cases, these abuses are legally endorsed. Several countries still have legislation banning or regulating consensual sexual activity between same sex adults. In certain cases, these laws have an unfortunately wide field of application (for instance, when they forbid any sexual act arbitrarily defined as "unnatural" or "indecent". Some laws combine sexual orientation with other offences. In Argentina, for instance, La Rioja, Mendoza, San Juan, Buenos Aires, NeuquĂŠn, and Santa Cruz Provincial Penal Codes do so under the title "SCANDALOUS PROSTITUTION AND HOMOSEXUALITY" Legislation exists that seeks not only to discriminate, but also, in fact to convert people's gender identity or expression into an offence. Once again in Argentina, Buenos Aires, Mendoza, Santa Fe and Santiago del Estero Provincial Penal Codes punish those who in daily life are clothed and attempt to pass as a person of the opposite sex. Even though we know that in many cases these laws have a colonial source or derive from restrictive period and they are been revised, their continued existence violates the rights to privacy, equality, peaceful meeting and association, participation in community life, and equality in employment and education, to be free from arbitrary arrest, life, freedom and personal safety, and not to be submitted to torture, cruel, inhuman or degrading treatment.

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Asamblea Permanente por los Derechos Humanos (Pedro Anibal Paradiso, CHA) Dear President, distinguished members of the Human Rights Commission As a member or the Asamblea Permanente por los Derechos Humanos (Permanent Task Force for Human Rights), member of the Comunidad Homosexual Argentina (Argentine Homosexual Community Organization) and of the International Lesbian and Gays Association (ILGA), I hereby denounce the violation of our human rights due to sexual orientation and gender identity issues Being gay, lesbian, transgender, bisexual, transsexual and intersexual means being exposed to discrimination and isolation in many countries of the world. We are denied fair access to justice, the right to adequate healthcare, the right to life, to education, to equal opportunities for employment, to a decent standard of living. We are required to hide our identity, to live in silence, to seek asylum and we are the victimized by fear, offence, harassment, invisibility and even victimized to death; thousands of people are murdered because of their sexual orientation and gender identity. Human rights are universal and indivisible. Fighting for only one or two of them, religious or racial equality for example is not enough. Sexual orientation and gender identity are part of our identity, together with race, gender or religious beliefs. This Human Rights Commission must declare and guarantee the principle that the right to freely live one’s sexual orientation and choose one’s gender identity are fundamental basic human rights. We expect once and for all, the condemnation of all violations of human rights against lesbians, gays, bisexuals and transgender around the world. Delaying the final decision on this issue from this commission protects by omission a myriad of barbarous acts, such as massacres, arbitrary arrests, torture, and the use of the death penalty. The urgent and necessary acknowledgement of the rights of our community by this Human Rights Commission will announce a NUNCA MAS (never more) and be an acknowledgment of universal values: equality before the law and against unequal and unfair treatment among human beings. Your passage and acceptance of this resolution will send a signal to all peoples in the world to start building more just and egalitarian societies, in which we can rid ourselves of irrational hate and segregationist justifications based on the persecution of all that is different and the rejection of human diversity. It is fundamental for us to promote and build a society founded in a culture of peace and a world mentality favourable to the recognition and acceptance diversity in all countries in the world. The grand fight against oppression cannot be won if we choose to oppose certain forms of it while turning a blind eye to others. The members of this Human Rights Commission have the opportunity, the power and even the obligation to assure the prevalence of human rights granted to all of us as human beings. We are falling behind and it is time, distinguished members of the Human Rights Commission; It is time to act for millions of human beings who are waiting for this act of justice and fairness. Throughout the history of humanity, silence has always been the cover for injustice and barbarity. Now it is your time, dear members. There are no religions, no dogmas, no fundamentalisms, nor political policy that can defend injustice because of sexual orientation and gender identity. Argentina supports the acknowledgement and protection of human rights by this body of all human beings without regard to their sexual orientation and gender identity. Our President, Mr. Nestor Kirchner, has publicly endorsed a UN resolution on this matter. We hope you will also do so. I will finish my speech today with the slogan Comunidad Homosexual Argentina (Argentine Homosexual Community Organization) “the desire for all liberties lies at the very heart of our struggle and mission.”

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The Becket Fund for Religious Liberty (Peng Voong, USA) Mr. Chairman, Sweden’s Law Against Expression of Disrespect The Becket Fund for Religious Liberty is an international legal and educational institute that defends the free expression of all religious traditions. Our past clients have included Muslims, Jews, Christians, Buddhists and Zoroastrians. We draw the Commission’s attention to Chapter 16, section 8 of Sweden’s criminal code. This law prohibits the expression of “disrespect” towards favored minority groups. The law carries a penalty of up to four years of imprisonment. It requires no evidence of incitement to violence and lacks any objective standard for identifying disrespect. Its supporters argue that it will create greater tolerance of distinct national, ethnic, religious and social groups, but it will not. Instead, it is a dangerous mechanism for censorship that will foster intolerance towards disfavored minorities. The Government’s Prosecution of Pastor Ake Green Last year, a Swedish court sentenced Pastor Ake Green to one month in prison for publishing a sermon that contained “contemptuous expression” towards homosexuals. In February, an appeals court overturned the conviction stating that “it is not the role of a government composed of men to declare what is orthodoxy by punishing those who publicly teach one religious view of what is right, even if that view may offend others.” (emphasis added). However, the government rejected this reasoning and is now petitioning Sweden’s Supreme Court to reexamine the case. Toleration of Minority Views The late Pope John Paul II also dissented from popularly held views on homosexual behavior, abortion, and divorce. Yet, last week UN Secretary General Kofi Annan praised him for his “irreplaceable voice speaking out for . . . mutual respect . . . .” The Secretary General recognized that though the Pope held controversial views, he also espoused a commitment to respecting the voices of others, even when he believed they were in the wrong. Similarly, the law must respect all peaceful voices, even those that are unpopular. Sweden’s law infringes not only upon Pastor Green’s freedom, but upon the freedom of all Swedish citizens to speak their consciences. The right to enjoy a freedom can only be as secure as it is for the smallest minority--the individual. German pastor Martin Niemoller recognized this truth in a poem that he wrote after World War II about the need to protect our neighbors’ voices. They came first for the Communists and I didn't speak up because I wasn't a Communist. Then they came for the Jews and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I was a Protestant. Then they came for me--and by that time no one was left to speak up. In pluralistic societies, very few values are shared by all. Often times the only shared value is the belief that we must respect each other’s differences. Countries, like Sweden, that genuinely desire open dialogue between diverse groups do so best by strenuously protecting freedom of expression for all. Thank you, Mr. Chairman

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Item 17: Promotion and Protection of Human Rights Canadian HIV/AIDS Legal Network (John Fisher, ARC International)

Chairperson, distinguished delegates, I wish to speak to you today about silence. Let me therefore begin by acknowledging those who aren’t with us, those whose voices have been silenced forever by human rights violations that this Commission has been content to ignore for far too long. This year alone, more than 8 of the Special Procedures have expressed concern about abuses of the human rights of lesbians, gays, bisexuals and transgender people. Their reports detail arbitrary arrests, deprivation of food and water, beatings, rape and murder. Even while we have been here at the Commission, we have received reports of Metis (or feminised males) beaten by police in Nepal, of two gay men arrested and sentenced to imprisonment in Fiji, of dozens of gay men sentenced to flogging in Saudi Arabia, of a transgender person murdered in Argentina. Chairperson, distinguished delegates: the era of silence is over. In ever-increasing numbers, lesbians, gays, bisexuals, transgender people, our friends, supporters and allies are raising our voices, and we seek no more than the recognition of our inherent right to be treated with the equal dignity and respect to which all members of the human family are entitled. And just as NGOs are speaking out, so too we are encouraged at the increasing numbers of States recognizing that these persistent rights violations can no longer be ignored. We celebrate the statement made by New Zealand on behalf of more than 30 States from 4 different CHR regions. Together with those which have supported the issue during the high level segment, made State party interventions or cosponsored the original Brazilian resolution, almost 50 States have now expressed their support for sexual orientation equality at this Commission. We also commend the leadership of Sweden, and those who have consistently supported the sexual orientation reference in the extrajudicial executions resolution. Each year, support for this reference has increased, and we acknowledge the courage of those States which have opposed or abstained in the past but have come to lend your voices in support. It is precisely this spirit of self-reflection and commitment to progressive change that gives hope for the future functioning of this Commission. This year, Commission members have the opportunity to send a clear message that transgender people should not be arbitrarily killed because of their gender identity, a concern consistently highlighted by the Special Rapporteur since 1997. All too often, those who challenge societal perceptions of gender are singled out for heart-breaking violence and abuse. We urge States to support the gender identity reference in the extrajudicial executions resolution: anything less would send the message that the lives of those amongst the most marginalized have lesser value. In this time of UN reform, these issues are a litmus test of the Commission's capacity to address persistent human rights violations against marginalized groups credibly and effectively. Human rights based on sexual orientation and gender identity are now firmly on the Commission agenda. They must be squarely addressed, for the issue will never go away. We look forward to continued progress in the year to come.

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FORUM ASIA Mr. Chairperson, Asian Forum for Human Rights and Development (FORUM-ASIA) applauds the valuable work that the Special Representative of the Secretary General on Human Rights Defenders has done and continues to do in protecting Human Rights Defenders. [In particular, we welcome the report to the Commission on Human Rights by the Special Representative (E/CN.4/2005/101)]. ... 4. Special HRDs FORUM-ASIA ernphasizes the importance of recognizing the special contribution that Women, Lesbian, Gay, Bisexual and Transgender Defenders make, in Defending Human Rights. Attention must be paid to specific challenges they face as Defenders, due to their gender and sexuality, as well as the specific Human Rights they defend.

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International Service for Human Rights (Julie de Rivero)

Human Rights Defenders As Human Rights Defenders we acknowledge that the 61st session of the Commission should be a forum in which Human Rights Defenders present human rights issues and violations without threats to themselves or their organizations. Unfortunately many human rights defenders are threatened because of their presence and participation in this session. ... Regardless of any attempts by governments to silence us or obstruct our work, we will not stop our activities, nor will we be silent. Also women activists as human rights defenders are confronted by particularly difficult challenges as they work in male dominated environments. They are often stigmatized and face heightened risks because of the challenges to cultural and religious stereotypes. Women activists require gender specific protection measures. Lesbian, gay, bisexual and transgender human rights defenders and those who defend the rights of these groups are not only stigmatized but often criminalized. Intolerance, as well as cultural and religious stereotyping contribute to the risks and challenges, including summary execution, which these groups face.

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Women Human Rights Defenders Asia Forum for Human Rights and Development, Centre for Women’s Global Leadership, Madre, Asia Pacific Forum on Women, Law and Development, the International Service for Human Rights, World Young Women’s Christian Association, Asia-Japan Women’s Resource Centre, Korea Women’s Association United, International Women’s Rights Action Watch-Asia Pacific, Pax Romana and International Young Catholic Students (Emma Sydenham)

Women advocating for all human rights take tremendous risks to challenge the status quo and to defend their rights and those of others. They receive little recognition for their role - often faceless, and denied credibility and legitimacy in their work. Women human rights defenders (WHRDs), such as those from Burma, are commonly denied legal status, leaving them vulnerable in a cycle of uncertainty and violence. ... Women’s defenders confront gross and frequent human rights violations on multiple grounds: 1. Shared risks confronted by all human rights defenders; 2. Gender-Specific risks and vulnerabilities on account of their status as women; 3. Risks that arise from working on women specific rights or issues, such as reproductive and sexual rights. In July 2004, Nepal’s Supreme Court issued a writ demanding that the Ministry of Affairs show cause why “open homosexual activities” should not be banned. The writ came in response to a private petition, requesting a ban on the activities of the Blue Diamond Society, an NGO working on sexual health and human rights issues, on the grounds that Nepal prohibits, by law, homosexual conduct. This illustrates how the legal system is being used to restrict the exercise of rights by others, specifically lesbian, gay, bisexual and transgender (LGBT) groups. ... Alarmed by the plight of WHRDs and sharing concerns of the Special Representative, a coalition of NGOs has launched a campaign on Women Human Rights Defenders. The Campaign gives international visibility to WHRD concerns; works on measures to ensure accountability for acts of violence against women; and calls attention to the situation of LGBTs. The campaign will organise an international consultation in November 2005. We invite all to participate in the Campaign.

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Appendix V: References by Special Procedures to sexual orientation and gender identity A significant number of Special Procedures highlighted human rights concerns based on sexual orientation and gender identity in their reports to the Commission this year. The following extracts are drawn from the excellent compilation by the International Commission of Jurists of UN sexual orientation and gender identity references: International Commission of Jurists, “International Human Rights References to Human Rights Violations on the Grounds of Sexual Orientation and Gender identity” (March-April, 2005), http://www.icj.org/IMG/pdf/Compilation_on_SO.pdf In 2005, the following Special Procedures referred to human rights based on sexual orientation or gender identity: • • • • • • • •

the Special Rapporteur on extrajudicial, summary or arbitrary executions the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment the Special Rapporteur on violence against women, its causes and consequences the Special Representative of the Secretary-General on the situation of human rights defenders the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression the Special Rapporteur on the independence of judges and lawyers.

In addition, sexual orientation and gender identity human rights concerns were raised in reports of the Secretary-General and the High Commissioner for Human Rights. As a result, it is clear that human rights violations based on sexual orientation and gender identity are increasingly and systematically being brought to the attention of the Commission. The relevant excerpts from these various reports are detailed in the following pages.

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Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, E/CN.4/2005/7, December 22, 2004 para. 18: transmitted communications regarding “4 persons killed for various discriminatory reasons, including their sexual orientation.” para. 71: Crimes, including murder, carried out by individuals can also give rise to State responsibility in instances in which the State has failed to take all appropriate measures to deter, prevent and punish such crimes as well as to address any attitudes or conditions within society which encourage or facilitate such crimes. Two sometimes contested examples include honour killings ... and killings directed at groups such as homosexuals and members of minority groups. Interim report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Note by the Secretary-General, A/59/319, September 1, 2004 1. Violations of the right to life of persons belonging to national, ethnic, religious or linguistic minorities or because of their sexual orientation. 60. The Special Rapporteur has continued to receive reports of persons having been subjected to death threats or who were extrajudicially killed because of their sexual orientation. During her visit to Afghanistan, the Special Rapporteur received credible reports of suspected homosexuals being buried alive during the Taliban period. She also sent a letter of allegation to the Government of Venezuela concerning the killing of three transsexual persons into which the authorities had reportedly failed to carry out proper investigation. Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, E/CN.4/2005/7/Add.1, March 17, 2005

Summary of cases transmitted to Governments and replies received: Ecuador (Available only in Spanish) 222. Llamamiento urgente, enviado con el Relator Especial sobre la promoción y protección del derecho a la libertad de opinión y de expresión, la Representante Especial del Secretario General sobre la situación de los defensores de los derechos humanos y el Relator Especial sobre la tortura, 17 de marzo de 2004. Patricio Ordóñez Maico, miembro de la Fundación Amigos por la Vida, una organización no gubernamental que trabaja para los derechos de las personas lesbianas, gays, bisexuales y transexuales, habría sido detenido en mayo y junio de 2001 por agentes de la Policía Nacional en Quito. Durante su primera detención habría sido sometido a abusos sexuales por un agente que le habría amenazado de muerte en caso de que denunciara los hechos. Sin embargo, en junio de 2001 habría presentado una denuncia ante la Policía Nacional. Desde que interpuso su primera denuncia, Patricio Ordóñez Maico habría recibido varias amenazas de muerte y el 12 de marzo de 2004 habría sufrido un atento contra su vida dentro de la sede de su ONG. Habría conseguido escapar pero habría resultado herido en el pecho y la espalda. El intruso no habría robado nada, y todo indicaría que su única intención era atacar a Patricio Ordóñez Maico. Habría presentado una denuncia ante la Policía Judicial de Guayaquil. El incidente del 12 de marzo de 2004 habría ocurrido una semana después de que Patricio Ordóñez Maico expuso su caso durante una reunión organizada en Quito por la Federación Internacional de Derechos Humanos.

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224. Llamamiento urgente, enviado con el Relator Especial sobre la promoción y protección del derecho a la libertad de opinión y de expresión, y la Representante Especial del Secretario General sobre la situación de los defensores de los derechos humanos, 26 de abril de 2004.. Patricio Ordóñez Maico, miembro de la Fundación Amigos por la Vida, una organización no gubernamental que trabaja para los derechos de las personas lesbianas, gays, bisexuales y transexuales habría recibido varias amenazas de muerte y estaría víctima de hostigamiento. El 11 de abril de 2004 en la Fundación Amigos por la Vida se habría recibido una llamada telefónica anónima anunciando que se iba a colocar una bomba. El mismo día, un individuo vestido en de civil que se habría identificado como miembro de la Policía Nacional de Ecuador habría acudido a la Fundación Amigos por la Vida. Habría dicho que venía para llevar a Patricio Ordóñez Maico a la comisaría para que hiciera una declaración. Cuando el personal de la Fundación le pidió que mostrara su identificación, el individuo se habría en coche sin placa de matrícula. Jamaica 370. Allegation, 22 September 2004: Mr. Brian Williamson, a 59-year-old prominent gay rights activist, was brutally murdered at his home on 9 June 2004. According to the information received, a suspect was detained in connection with the case and an identity parade later held at the Half Way Tree police station. It is however reported that the individuals in the identification parade were wearing towels on their head and white cream on their faces, making them almost unrecognizable. Concern has been expressed that there has not yet been fair, effective and adequate investigation into this incident. 371. Mr. Victor Jarrett was reportedly chopped, stabbed and stoned to death by Montego Bay residents on 18 June 2004. It is alleged that the police participated in this incident, first beating Mr. Jarrett with batons and then urging others to beat him because he was a homosexual. According to the information received, such attacks are not isolated as the police generally do not respond adequately to incidents of violence against gay men or men suspected of homosexual conduct. Mexico (Available only in Spanish) 425. Llamamiento urgente, enviado con el Relator Especial sobre la tortura, 2 de junio de 2004. Hiram Oliveros, un preso de 28 años de la prisión de Nuevo Laredo, Estado de Tamaulipas habría sido detenido por la policía el 26 de marzo de 2004 junto con su compañero, Mario Medina, un ciudadano estadounidense de 23 años. Ambos habrían sido sospechados de haber asesinado a su vecino, Roberto Javier Mora, director del periódico local El Mañana, cuyo cuerpo habrían hallado apuñalado en su apartamento de la localidad de Nuevo Laredo el 19 de marzo de 2004. De acuerdo con la información recibida, antes de su muerte, el periodista había denunciado públicamente casos de corrupción y de tráfico de drogas. La Procuraduría de Justicia de Tamaulipas habría declarado que Roberto Javier Mora habría sido asesinado por celos porque Mario Medina sospechaba que su compañero estaba teniendo una aventura con él. Se habría utilizado una presunta confesión en vídeo de Mario Medina para respaldar esta denuncia. Se alega que tras su detención, Hiram Oliveros y Mario Medina habrían sido torturados para que confesaran el crimen. Mario Medina también habría declarado haber sido agredido sexualmente y amenazado con ser desaparecido y que el acceso a su familia y a su abogado le habría sido negado. El 30 de marzo de 2004 los dos detenidos habrían hecho una declaración a la prensa en la que habrían negado ser responsables de la muerte del periodista, manifestado que habían sido acusados del crimen porque eran una pareja gay a la que se podía obligar a confesar, y denunciado que habían sido torturados. Tras las denuncias de tortura realizadas por Mario Medina, un juez habría ordenado que dos policías comparecieran en una vista judicial. Según los informes, ninguno de los dos se habría presentado. El 13 de mayo de 2004, Mario Medina habría sido asesinado por otro preso que le habría apuñalado 88 veces en la prisión de Nuevo Laredo. Esto habría ocurrido a pesar de que el 12 de mayo de 2004 las autoridades 53


penitenciarias habrían ofrecido a un funcionario consular estadounidense garantías de que Mario Medina se encontraba a salvo y separado de los demás presos. A la luz de estas alegaciones, se han expresado temores por la seguridad de Hiram Oliveros. 426. Respuesta del 17 de agosto de 2004. El 26 de marzo de 2004, fueron detenidos los Sres. Oliveros Ortiz y Medina Vázquez, como consecuencia de de la cumplimentación del mandato judicial en el que se ordenaba la detención de esas personas. La Procuradora General de Justicia de Tamaulipas señala que el argumento de que los detenidos fueron torturados para que confiesan el crimen carece de razón jurídica, estableciendo que por la hora en que fue dictada tal orden, comunicada a la Policía Ministerial, ejecutada y puestos a disposición del Ministerio Publico, median sólo tres horas con veinte minutos, tiempo en el que se llevaron a cabo actividades de búsqueda, localización y detención material de los indiciados. El 28 de marzo, los Sres. Hiram Oliveros Ortiz y Mario Medina Vazquez confesaron el crimen de Roberto Javier Mora. Fueron asistidos por sus abogados defensores y que en ésta diligencia estuvo presente el Lic. José Homero Rodríguez Flores, integrante de la Quinta Visitaduría de la Comisión Estatal de Derechos Humanos en la cuidad de nuevo Laredo, Tamaulipas. En relación con el delito de homicidio en contra del Sr. Mario Medina Vazquez, se inició una averiguación previa. Según los resultados, la probable responsabilidad se le atribuye a Roberto Herrera Gonzalez. El 15 de mayo, fue ejercitada la acción penal en contra de dicha persona. Continuando con la investigación, el 8 de julio, se ejercitó acción penal en contra de Juan Antonio Herrera González, Francisco Javier Herrera González y Osiel Marroquín García, por estimarse que son probables responsables de la comisión del homicidio de Mario Medina Vázquez, de Epitafio Sebastián Arias, custodio del Centre Penitenciario, por sus probables responsabilidades en la comisión de los hechos antijurídicos en el desempeño de sus funciones administrativas, falsedad en declaraciones y encubrimiento. Por lo respecta al Sr. Hiram Oliveros se encuentra sujeto a proceso penal, dictándosele auto de formal prisión por haberlo encontrado probable responsable en la comisión del delito de homicidio en agravio de Roberto Javier Mora García. Para garantizar la vida e integridad de dicha persona, éste za fue trasladado del Centro de Readaptación Social No 2 en ciudad Nuevo Laredo al Centro de Readaptación Social en ciudad Victoria. Asimismo, se encuentra sujeto a otro proceso legal por resultarle probable responsabilidad penal en la comisión del delito de falsedad de declaraciones, relacionado con el homicidio de Mario Medina Vazquez. Interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, A/59/324, September 1, 2004 III. The principle of non-refoulement 39. The Special Rapporteur also wishes to draw attention to factors and circumstances that stem from conditions that may prevail in a country and touch at the same time upon the vulnerability of persons whose removal to such a country is at stake. Reference is made here to persons belonging to any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds, such as sexual orientation, and who for that reason are targeted by the authorities or, with the connivance of the authorities, risk being subjected to persecution or systematic discrimination amounting to torture or other cruel, inhuman or degrading treatment or punishment. These factors and circumstances also have to be taken into account in determining the non-refoulement issue. Report of the Special Rapporteur on the question of torture and other cruel, inhuman or degrading treatment or punishment, E/CN.4/2005/62/Add.1, March 30, 2005

Summary of cases transmitted to Governments and replies received:

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Argentina (Available only in Spanish) 94. El Relator Especial considerado apropiado llamar la atención sobre ciertas cuestiones reflejadas como motivos de preocupación por el Comité Contra la Tortura (CAT/C/CR/33/1 párr. 6). Al Comité le preocupan en particular: ... las alegaciones de torturas y malos tratos que padecen otros grupos vulnerables, como por ejemplo los miembros de las comunidades indígenas, minorías sexuales y mujeres... Ecuador (Available only in Spanish) Llamamientos urgentes 564. El 17 de marzo de 2004, el Relator Especial envió un llamamiento urgente juntamente con el Relator Especial sobre la promoción del derecho a la libertad de opinión y de expresión, la Relatora Especial sobre ejecuciones extrajudiciales, sumarias o arbitrarias y el Representante Especial del Secretario General para los defensores de los derechos humanos sobre la situación de Patricio Ordóñez Maico, miembro de la Fundación Amigos por la Vida, una organización no gubernamental que trabaja para los derechos de las personas lesbianas, gays, bisexuales y transexuales. Habría sido detenido en mayo y junio de 2001 por agentes de la Policía Nacional en Quito. Durante su primera detención habría sido sometido a abusos sexuales por un agente. A pesar de que éste le habría amenazado de muerte en caso de que denunciara los hechos, habría presentado una denuncia ante la Policía Nacional. En su carta de fecha 2 de septiembre de 2002, el Relator Especial sobre la cuestión de la tortura notificó al Gobierno que había recibido información sobre estas alegaciones (E/CN.4/2003/68/Add.1, párr. 430). Desde que interpuso su primera denuncia, Patricio Ordóñez Maico habría recibido varias amenazas de muerte. El 12 de marzo de 2004, un intruso se habría introducido en las instalaciones de la Fundación Amigos por la Vida y habría atacado a Patricio Ordóñez Maico, quien habría resultado herido en el pecho y la espalda. Se habría presentado una denuncia ante la Policía Judicial de Guayaquil. Este último incidente habría ocurrido una semana después de que Patricio Ordóñez Maico expusiera públicamente su caso durante una conferencia internacional de derechos humanos. El Salvador (Available only in Spanish) 567. Francisco Alexander Cerna Manzanares habría sido interceptado por agentes de la Policía Nacional Civil el 15 de agosto de 2002 en la ciudad de San Salvador. Habría sido obligado a acompañar a los agentes en un terreno abandonado. Los agentes le habrían preguntado si era homosexual y seguidamente le habrían propinado patadas y golpes, incluso con sus porras. Antes de abandonarle, los agentes le habrían amenazado con otra paliza si denunciaba los hechos. 568. El Gobierno informó de que el 22 de agosto de 2002 se abrió expediente en la Fiscalía General de la República, y se ordenó la práctica del reconocimiento médico forense de lesiones, en la que se reconoció que Francisco Alexander Cerna Manzanares presentaba golpes. El Gobierno indicó igualmente que la Fiscalía no presentó solicitud de juicio por falta de individualización de los responsables de los hechos y no contando con suficientes elementos probatorios para ejercer acción penal. Además, la legislación nacional daría un plazo perentorio de un año para hacerlo. 569. Liseth Rivas Sánchez, una mujer transexual, habría sido detenida el 19 de octubre de 2002 en la ciudad de San Salvador por cuatro agentes de la Policía Nacional Civil. Habría sido tirada al suelo y los agentes le habrían propinado golpes y patadas. También habría recibido insultos relacionados con su orientación sexual. Habría sido maniatada y conducida a la Comisaría del Parque Centenario, donde habría sido nuevamente insultada y privada de libertad durante 72 horas.

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570. El Gobierno indicó que Liseth Rivas Sánchez (Juan Carlos Rivas Sánchez) fue remitido a sede fiscal el 19 de octubre de 2002. En las diligencias que fueron asignadas a la Unidad de Administración de Justicia de la Fiscalía, consta que esta persona se negó a ser trasladada al Cuerpo de Agentes Metropolitano y que seguidamente opuso resistencia física a ser esposada. Se ocasionó un forcejeo a raíz del cual el detenido resultó con algunos golpes leves. Según consta en las diligencias, el detenido intentó autolesionarse. El Gobierno informó igualmente que el tribunal competente falló sentencia por inobservancia de las providencias de la autoridad, en perjuicio del orden y la falta de tranquilidad pública. Sin embargo se le otorgó el perdón judicial, absolviéndolo por responsabilidad civil. Mexico (Available only in Spanish) Llamamientos urgentes 946. El 2 de junio de 2004, el Relator Especial envió un llamamiento urgente juntamente con Relatora Especial sobre ejecuciones extrajudiciales, sumarias o arbitrarias de conformidad sobre la situación de Hiram Oliveros, preso de 28 años de la prisión de Nuevo Laredo, Estado de Tamaulipas. Habría sido detenido por la policía el 26 de marzo de 2004 junto a su compañero, Mario Medina, ciudadano estadounidense de 23 años. Ambos serían sospechosos del asesinato de su vecino, Roberto Javier Mora, director del periódico local El Mañana, cuyo cuerpo habrían hallado apuñalado en su apartamento de la localidad de Nuevo Laredo el 19 de marzo de 2004. De acuerdo con la información recibida, antes de su muerte, Roberto Javier Mora había denunciado públicamente casos de corrupción y de tráfico de drogas. La Procuraduría de Justicia de Tamaulipas habría declarado que Roberto Javier Mora habría sido asesinado por celos porque Mario Medina sospechaba que su compañero Hiram Oliveros estaba teniendo una aventura con él. Se habría utilizado una presunta confesión en vídeo de Mario Medina para respaldar esta denuncia. Se alega que tras su detención, Hiram Oliveros y Mario Medina habrían sido torturados para que confesaran el crimen. Mario Medina también habría declarado haber sido agredido sexualmente y amenazado con ser desaparecido y que el acceso a su familia y a su abogado le habría sido negado. El 30 de marzo de 2004 los dos detenidos habrían hecho una declaración a la prensa en la que habrían negado ser responsables de la muerte de Roberto Javier Mora, y habrían manifestado que habían sido acusados del crimen porque eran una pareja gay a la que se podía obligar a confesar, y denunciado que habían sido torturados. Tras las denuncias de tortura, un juez habría ordenado que dos policías comparecieran en una vista judicial. Según los informes, ninguno de los dos se habría presentado. El 13 de mayo de 2004, Mario Medina habría sido asesinado por otro preso que le habría apuñalado 88 veces en la prisión de Nuevo Laredo. Esto habría ocurrido a pesar de que el 12 de mayo de 2004 las autoridades penitenciarias habrían ofrecido a un funcionario consular estadounidense garantías de que Mario Medina se encontraba a salvo y separado de los demás presos. La investigación sobre la muerte de Mario Medina estaría en manos de policías de la Procuraduría de Justicia de Tamaulipas. Se teme que esto pueda crear un conflicto de intereses, ya que serian los mismos que detuvieron a Mario Medina y a Hiram Oliveros. Nepal 1019. Jaya Bahadur Lama, aged 28, and Mani Lama, aged 20, Chuchepati, Kathmandu, working at a carpet factory in Boudha. On 6 December 2003, they were approached by some individuals who tried to extort money from them. At the same time, night patrolling armed police arrived at the scene and beat Mani Lama after the individuals who assaulted them told the police that they were homosexuals. Jaya Bahadur Lama was slapped when he tried to help his friend. Both men were thrown into a police van, where they were handcuffed and forced to lie face down with the head covered. They were severely beaten with rifles and boots. It is alleged that when Jaya Bahadur Lama mentioned that they were members of the Blue Diamond Society, a NGO working for the welfare of homosexuals, the assault became more severe. One hour later, they were taken to an unknown armed police camp. They were locked into a dark room, where 56


they were severely beaten by 20 police officers. The police allegedly attempted to force them to have oral sex. They were reportedly accused of being Maoist. They were put again in the police van and later thrown in a street with their heads covered. When they uncovered their heads, they found themselves near Ratopul and Pashupatinah temple. There, they met another police van, and they explained to the police officers what had happened. Although they were in need of immediate medical assistance, the police abandoned them on the street, allegedly after they learned that they were homosexuals. Some hours later, they were taken by the Blue Diamond Society to a hospital. A complaint was filed by the same organization with the armed police headquarters. No action has been taken to investigate this case. 1161. Jaya Bahadur Lama, Ramesh Lama, Binod and Madan. On 25 July 2004, the four men were stopped by the police at about 3.30am in a street near Jamal, forced into a police van, beaten and had their money taken. While driving around the city, the van stopped and one officer took Jaya Bahadur Lama out into the street, beat him, forced him to perform oral sex and anally raped him. The men were then taken to Gausala police station where Ramesh Lama was taken into the backyard of the police station, beaten and forced to perform oral sex. Although Jaya Bahadur and Ramesh Lama manage to escape from the police, Binod and Madan were kept inside the van and were beaten and raped by approximately 12 policemen for around three hours. The Blue Diamond Society, a non-governmental organization which campaigns for the rights of sexual minorities, made a complaint to police authorities about this attack and the recent arrests may be in retaliation for this complaint. United States of America 1868. Frederick Mason. The Government informed that in August 2000, he filed a lawsuit against the Chicago Police Department and two officers, alleging that on 19 July 2000, he was sodomized and called racist and anti- gay names by the two officers. The Office of Professional Standards investigated this case. The Chicago Police Superintendent indicated that a medical examination on 20 July 2000, did not support Frederick Mason’s allegations and that even the most basic facts do not support his allegations of physical abuse. His civil suit was settled in June 2002 for $20,000. The City of Chicago has denied all wrongdoing and stated that there was no evidence to support the removal of the officers from the police force. The City also claims the settlement was merely for nuisance value. According to press reports, on 6 September 2002, the two police officers involved counter-sued Frederick Mason for $20,000, claiming malicious prosecution. The Department of Justice Criminal Section closed its file in this matter after reviewing the Federal Bureau of Investigation investigation report and concluding that the matter lacked prosecutorial merit under federal criminal civil rights statutes. 1869. Kentin Waits. The Government informed that according to press reports, in July 2000 he argued with a Chicago police officer and shortly thereafter returned and squirted the officer with a water bottle. The following morning approximately seven officers arrested him at his home and held him at the police station for 22 hours, subjecting him to physical and anti- gay verbal abuse. In May 2001, Kentin Waits filed a lawsuit against the city, the chief of the office of Professional Standards, and certain unidentified officers. Press reports also indicated that in November 2002, after a jury trial, Waits was awarded $15,000 in compensatory damages and $2 million in punitive damages. Upon review, the judge reduced the jury’s punitive award to $45,000. Report of the Special Rapporteur on violence against women, its causes and consequences, “Integration of the human rights of women and the gender perspective: violence against women; Intersections of violence against women and HIV/AIDS”, Mission to Guatemala, E/CN.4/2005/72/Add.3, February 10, 2005

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II. Intersecting Systems of Oppression and Female-Headed Households 21. Women’s exposure to violence is related to their position in the multiple systems of inequality and shows a tendency to increase as these systems intersect, creating layers of discrimination and exclusion for different groups of women. Four basic systems of inequality intersect with gender hierarchies to distinguish diverse categories of women in the Guatemalan society: class (poverty); ethnicity; urban/rural residence; and displacement. Other intervening factors such as disability and sexual orientation were brought to my attention as bases for human rights violations. Therefore, most if not all women are subjected to various forms of discrimination which places them at risk of violence. Report of the Special Rapporteur on violence against women, its causes and consequences, “Integration of the human rights of women and the gender perspective: violence against women; Intersections of violence against women and HIV/AIDS”, E/CN.4/2005/72, January 17, 2005 para 27 : cases of lesbian women being targeted for rape specifically because of their sexual orientation in order for the aggressor to ‘prove [the victim’s] womanhood’ have also been documented. para 58: The intersection of discrimination related to gender, HIV status and sexual orientation - often combined with race and class - create multiple forms of oppression and violence that keep women subordinated. Report of the Special Rapporteur on violence against women, its causes and consequences, “Integration of the human rights of women and the gender perspective: violence against women”, E/CN.4/2005/72/Add.1, March 18, 2005

Summary of cases transmitted to Governments and replies received: Honduras (Available only in Spanish) 177. J. R. F. R., 25 años, una trabajadora comercial del sexo travestí, habría sido hostigada, golpeada, incluso con culatas de rifles, y amenazada por agentes de seguridad del Estado Mayor Conjunto en Comayagüela, el 16 de abril de 2004. Seguidamente, habría sido detenida. Los golpes recibidos le habrían provocado hematomas e hinchazón en el rostro, dorso y brazos. 178. Y. L. M. L. 23 años, una travestí, trabajadora comercial del sexo, y tres travestís más, Noelia, Luna y Carolina, habrían sido agredidas por agentes de la Policía Preventiva de la Estación de Policía número 4 de Comayagüela el 15 de agosto de 2004, cuando se encontraban en la Calle Real de la ciudad. Los agentes las habrían insultado y golpeado con sus porras y las culatas de sus armas, arrancado parte de sus vestidos. Paulina habría presentado hematomas e hinchazón en las piernas, el rostro y el dorso y contusiones en los brazos y habría sangrado de la nariz. 179. O. A. Z., 34 años, una travestí, trabajadora comercial del sexo, habría sido golpeada, incluso con porras y culatas de pistolas, por agentes de la Policía Preventiva de la Estación de Policía número 4 de Comayagüela el 15 de agosto de 2004. Habría sido conducida a la mencionada estación de policía donde habría permanecido hasta la tarde del mismo día, sin poder comunicarse con nadie ni ser atendida por ningún médico. Tras la agresión, habría presentado hematomas e hinchazón en las piernas, el rostro, el dorso y los brazos, fiebre y dolor de cabeza. Leonela habría sido mortalmente apuñalada el 6 de septiembre de 2004. Se alega que fue asesinada por un grupo de personas homofóbicos.

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Kuwait Urgent appeal 232. On 15 July 2004, the Special Rapporteur sent an urgent appeal jointly with the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance concerning A.M.Al-D., aged 27 and male by birth, who underwent sex-change surgery in 2001 and changed his name from Ahmed to a women’s name. She wishes to be addressed in accordance with her female status. It is reported that the subject caused constant friction and conflict with her family. She was asked to leave Kuwait University, was subjected to constant harassment and not allowed to work. She reportedly presents classical symptoms of gender identity disorder, with psychosocial stressors including family difficulties, stress at work and study environment and difficulties coping with societal pressure. In view of these circumstances, she tried to commit suicide three times. It is reported that she went to court regarding her legal status following her sex change. She was later told that her lawyer had conducted an interview with the local media regarding her case without her consent. She is said to have taken the newspapers to court regarding the negative reports published about her. However, a group reportedly filed a request on behalf of society and on religious grounds that the case be rejected. On 23 June 2004 the judge is said to have postponed the final judgement until 7 September 2004. In this context, fears have been expressed for her physical security and access to justice owing to discrimination on the basis of her sex. Government reply 233. By letter dated 9 September 2004, the Government reported that A.M.Al-D.A. presented a request to the judiciary on 7 June 2003 that has sex change be recognized. The court approved his request and confirmed his right to change his sex in a decision dated 24 April 2004. The Government stated that the decision confirms the fairness of the Kuwaiti judiciary and its independence, allowing a person to exercise their right to change sex and not be subjected to any discrimination. 234. In regard to the allegations in the letter sent by the Special Rapporteurs that A.M.Al.D was humiliated and discriminated against at work, leading to his dismissal, the Government affirmed that the dismissal was not based on discrimination but was in accordance with laws governing public service in Kuwait. In regard to the allegations that he suffered harassment by his family, they stated that it is not possible for the Government to intervene in such issues. Report of the Special Representative of the Secretary-General on the situation of human rights defenders, E/CN.4/2005/101, December 13, 2004 A. Which defenders are being targeted, and where? 27. Violations have also taken place against human rights defenders working on a wide array of issues including women’s rights, peace, disappearances, and lesbian, gay, bisexual and transgender issues. 2. Violation of the rights to life and mental and physical integrity 46. A number of detained defenders have been held in poor conditions without access to food, water, or medical care. Others have been held incommunicado or in solitary confinement with no access to their relatives or legal counsel. Defenders have equally been subjected to ill-treatment and torture while in custody. Thirty-nine members of an NGO working with sexual minorities on sexual health, including 59


HIV/AIDS, and campaigning for the rights of sexual minorities were reportedly arrested and deprived of food and water for the first 15 days of their detention; four were allegedly forced into a police van, beaten and raped. Report of the Special Representative of the Secretary-General on the situation of human rights defenders, E/CN.4/2005/101/Add.1, March 16, 2005

Summary of cases transmitted to Governments and replies received: Ecuador (Available only in Spanish) 240. El 17 de marzo de 2004, la Representante Especial, junto con el Relator Especial sobre el derecho a la libertad de opinión y de expresión, la Relatora Especial sobre ejecuciones extrajudiciales, sumarias o arbitrarias y el Relator Especial sobre la tortura, envió un llamamiento urgente en relación con Patricio Ordóñez Maico, de 27 años de edad, miembro de la Fundación Amigos por la Vida, una organización no gubernamental que trabaja para los derechos de las personas lesbianas, gays, bisexuales y transexuales. Patricio Ordóñez Maico habría sido detenido dos veces en mayo y junio de 2001 por agentes de la policía nacional en Quito. Durante su primera detención habría sido sometido a abusos sexuales por un agente que le habría amenazado de muerte en caso de que denunciara los hechos. Sin embargo, en junio de 2001, habría presentado una denuncia ante la Policía Nacional. En su carta de fecha 2 de septiembre de 2002, el Relator Especial sobre la cuestión de la tortura notificó al Gobierno que había recibido información sobre estas alegaciones (E/CN.4/2003/68/Add.1, párr. 430). Desde que interpuso su primera denuncia, Patricio Ordóñez Maico habría recibido varias amenazas de muerte. El 25 de febrero de 2002, uno de los agentes denunciados se habría presentado en un restaurante donde se encontraba con unos amigos y lo habría amenazado de muerte si no retiraba la denuncia. Tras este incidente, Patricio Ordóñez Maico habría presentado otra denuncia y se habría instalado en otra ciudad por temor a su seguridad. El pasado 12 de marzo de 2004, un intruso se habría introducido en las instalaciones de la Fundación Amigos por la Vida, habría atacado a Patricio Ordóñez Maico y lo habría amenazado de muerte. Patricio Ordóñez Maico habría conseguido escapar pero habría resultado herido en el pecho y la espalda. El intruso no habría robado nada en las instalaciones, y todo indicaría que su única intención era de atacar a Patricio Ordóñez Maico. Más tarde, éste habría presentado una denuncia ante la Policía Judicial de Guayaquil. El incidente del 12 de marzo de 2004 habría ocurrido una semana después de que Patricio Ordóñez Maico expuso su caso durante una reunión organizada en Quito por la Federación Internacional de Derechos Humanos. Según la información recibida, Patricio Ordóñez Maico todavía no habría sido notificado de los resultados de las investigaciones abiertas a raíz de sus repetidas denuncias ni habría sido informado sobre las medidas tomadas para llevar los agentes denunciados ante la justicia. 242. El 26 de abril de 2004, la Representante Especial, junto con el Relator Especial sobre el derecho a la libertad de opinión y de expresión y la Relatora Especial sobre ejecuciones extrajudiciales, sumarias o arbitrarias, envió un llamamiento urgente sobre la situación de los miembros de la Fundación Amigos por la Vida, y en particular de unos de los miembros de la organización, Patricio Ordoñez Maico. Según la información recibida, Patricio Ordóñez Maico habría sido detenido en mayo y junio de 2001 por agentes de la Policía Nacional en Quito. Durante su primera detención habría sido sometido a abusos sexuales por un agente que le habría amenazado de muerte en caso de que denunciara los hechos. Sin embargo, en junio de 2001 habría presentado una denuncia ante la Policía Nacional. Desde que interpuso su primera denuncia, Patricio Ordóñez Maico habría recibido varias amenazas de muerte y el 12 de marzo de 2004 habría sufrido un atento contra su vida. Su caso ya fue objeto de una llamamiento urgente enviado conjuntamente el 17 de marzo de 2004 por la Representante Especial, el Relator Especial sobre la tortura, el Relator Especial sobre el derecho a la libertad de opinión y de expresión y la Relatora Especial sobre ejecuciones extrajudiciales, sumarias o arbitrarias, y de un llamamiento por el Relator Especial sobre la tortura el 2 de septiembre de 2002. Según la información adicional recibida, el 11 de abril de 2004 el personal de la Fundación Amigos por la Vida habría recibido una llamada telefónica anónima cuya autor habría dicho “se va a colocar una bomba en la 60


Fundación para que vuelen con todo, ya que son unos maricones hijos de puta.” El mismo día, según se informa, un individuo en civil que se habría identificado como miembro de la policía nacional de Ecuador habría acudido a la Fundación Amigos por la Vida. Habría dicho que venía para llevar a Patricio Ordóñez Maico a la comisaría para que hiciera una declaración. Cuando el personal de la Fundación le pidió que mostrara su identificación, el individuo se habría marchado y según se informa, habría sido visto entrando en un automóvil dorado con cristales tintados y sin placa de matrícula.

Jamaica 342. On 6 December 2004, the Special Representative, jointly with the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, transmitted a letter of allegation regarding individuals and associations defending the rights of gays and lesbians in Jamaica, in particular the members of the human rights organization JFLAG (Jamaican Forum of Lesbians, Allsexuals and Gays). Attention has been drawn to a letter to the editor by the Jamaican Police Federation‘s Public Relations Officer, published in the Jamaica Observer of 25 November 2004. In his letter, which follows the publication on 16 November 2004 of a report by Human Rights Watch entitled “Hated to death: Homophobia, Violence and Jamaica‘s HIV/AIDS epidemic”, the Police Federation‘s Public Relations Officer “condemn[s] the role of these so-called ‘human rights’ groups to spread lies and deliberately malign and slander the police force and the government”. He calls on “the Minister of Justice to examine these allegations and slap on sedition charges where necessary to both foreign and local agents of provocation”. In stating that “the Government and the police cannot be held responsible for.... the cultural responses of the population towards gay”, the letter also appears to condone violence against gays and lesbians. This impression is insufficiently dispelled by the assurance that “as law enforcement officers we try our utmost ‘to serve, to reassure and to protect’”. The letter to the editor raises particular concerns against the background of reported attacks and threats against persons defending the rights of homosexual men and women in Jamaica. According to the information received, on 9 June 2004, Brian Williamson, a well-known gay rights activist, was murdered at his home. Within an hour after his body was discovered, reportedly a crowd gathered outside the crime scene. A smiling man called out, “Battyman [homosexual] he get killed!” Many others reportedly celebrated Williamson’s murder laughing and calling out, “let’s get them one at a time, ” “that’s what you get for sin, ” “let’s kill all of them.” Furthermore, it is reported that JFLAG regularly receives intimidating mail, e-mails and telephone calls. By way of example, according to the information received, on 16 November 2004 an anonymous male called JFLAG and said “homosexuals should be dead”. These incidents have been reported in writing to the Matilda’s Corner police station in Kingston on 26 November 2004. In view of the above, concern is expressed that individuals and associations defending the rights of gays and lesbians, in particular the members of JFLAG, may be at risk of both attempts by public authorities to suppress their exercise of free speech and of violent attacks by homophobic individuals who may have gained the impression that the Government will not vigorously pursue such violence. Nepal 409. On 12 August 2004, the Special Representative, together with the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health and the Special Rapporteur on the question of torture, sent an urgent appeal regarding several male transvestites and the Blue Diamond Society of Nepal, a NGO working with sexual minorities on sexual health including HIV/AIDS and campaigning for the rights of sexual minorities. According to the allegations received, on 9 August 2004, 39 male transvestites, usually called metis, all members of the Blue Diamond Society, were arrested on the street and in public places including bars and restaurants. They are now held in Hanuman Dhoka police station and were not given food or water during the first 15 hours in 61


custody. They have not yet been charged with any offence. Concerns have been expressed that their physical integrity may be at risk. On 25 July, the Police allegedly raped four male transvestites, Jaya Bahadur Lama, Ramesh Lama, Binod and Madan. They were reportedly stopped by the police at about 3.30 a.m. in a street near Jamal, forced into a police van, beaten and their money was taken away. While driving around the city, the van stopped and one officer allegedly took Jaya Bahadur Lama into the street, beat him, forced him to perform oral sex and raped him. The men were then reportedly taken to Gausala police station where Ramesh Lama was taken into the backyard of the police station, beaten and forced to perform oral sex. Although Jaya Bahadur and Ramesh Lama managed to escape from the police, Binod and Madan were kept inside the van and were reportedly beaten and raped by 12 policemen for around three hours. The Blue Diamond Society made a complaint to police authorities about this attack and there is concern that the recent arrests may be in retaliation for this complaint. A private writ was recently filed in the Supreme Court of Nepal against the Blue Diamond Society, which calls for closing down the Blue Diamond Society on the grounds that the organization "promotes homosexuality". Concerns have been expressed that defending this court action would seriously hinder the effective functioning of the Blue Diamond Society, given the organization’s limited human and financial resources, and that closing down the Blue Diamond Society would be detrimental to HIV prevention efforts in Nepal. Concerns also have been expressed that other organizations working in the area of HIV prevention among gay men could be open to similar charges. Uzbekistan 586. On 16 January 2004, the Special Representative, together with the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, sent a follow-up urgent appeal concerning Ruslan Sharipov, a 25-year-old journalist and human rights defender. According to the information received, Ruslan Sharipov was allegedly excluded from a general amnesty announced in December 2003 by the President, reportedly on the ground that the crime he committed was "too serious". According to our previous information, Ruslan Sharipov was arrested on 29 May 2003 and convicted on 13 August by the Tashkent City Court on charges of homosexual conduct, sex with a minor and involving minors in "antisocial behaviour" (articles 120, 128 and 127 of the Criminal Code). He was reportedly first sentenced to five and a half years in prison, which was subsequently reduced to four years following his appeal in September. This was maintained despite reports indicating that forensic medial tests conducted after his arrest found no evidence of sexual relations with minors and despite reported evidence that his confessions were obtained under duress. Reports also indicate that Mr. Sharipov may have been framed in connection to his human rights activities, including his reporting on police corruption and human rights abuses in the country. Fears have been expressed that his exclusion from the presidential general amnesty may aim at further targeting him for his activities in the defence of human rights. It is reported that calls have been made for the presidential general amnesty to extend to his conviction. 590. On 14 April 2004, the Special Representative, together with the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, sent a follow-up urgent appeal concerning Ruslan Sharipov ... He was reportedly subjected to torture and threats while in detention. ... In this context, it is alleged that he has been barred from resuming his human rights and journalism activities, under threat of losing the possibility of early release. In particular, it is reported that Mr. Sharipov will not be allowed to travel to Istanbul in late May 2004 to receive an award on the occasion of the World Newspaper Congress and World Editors’ Forum.

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Report of the Special Representative of the Secretary-General on the situation of human rights defenders, E/CN.4/2005/101, December 13, 2004 Ecuador 94. The majority of cases concerned threats at gunpoint, beatings and threats by phone. ... In a few instances, the use of torture or other ill-treatment was reported in connection with defenders working on the rights of gays, lesbians and transsexuals. In many cases the perpetrators were not identified, but the police were reportedly involved in a few cases, notably those relating to defenders of gay rights. Study by the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, "Women and adequate housing", E/CN.4/2005/43, February 25, 2005 Summary Critical factors affecting women’s right to adequate housing and land are lack of secure tenure, lack of information about women’s human rights, lack of access to affordable social services as a result of privatization, lack of access to credit and housing subsidies, bureaucratic barriers preventing access to housing programmes, rising poverty and unemployment and discriminatory cultural and traditional practices. The Special Rapporteur notes that a State’s obligation to eliminate gender discrimination is one of immediate effect and failure to do so constitutes a human rights violation. There is an urgent need to address multiple forms of discrimination that women face on grounds including race, class, ethnicity, caste, health, disability, sexual orientation, and other factors. An intersectional approach to gender discrimination is essential to address such multiple forms of discrimination faced by women. I. Activities undertaken since 2003 E. Other events and initiatives concerning women and housing 33. The Special Rapporteur participated in an international conversation on women’s economic, social and cultural rights, An Exploration of Gender in the Context of Economic, Social and Cultural Rights (India, October 2004). Participants discussed the importance of applying an indivisible and intersectional approach to human rights that is inclusive of economic, social and cultural rights, as well as discriminations on the grounds of class, gender, race, caste, ethnicity, disability, sexual orientation, etc. The meeting also recommends the integration of economic, social and cultural rights, such as the right to housing, into the work of women’s organizations. II. Thematic findings A. Violence against women 47. The regional consultations also revealed new areas of research, such as gaining a deeper understanding of: the principle of non-discrimination as reflected in the International Covenant on Economic, Social and Cultural Rights in addition to expanding on the housing and land rights dimensions of nondiscrimination as traditionally understood in CEDAW; the precise meaning and application of substantive equality and the intersectionality approach, which can illustrate how adequate housing manifests differently for each person according to his or her age, economic status, gender, race, ethnicity, caste, citizenship, health, sexual orientation or other factors, and which can guide policy formulation on women and adequate housing, particularly for specific groups of women. 63


F. Multiple discriminations 63. It has been widely recognized that many women face multiple forms of discrimination, including on grounds of race, class, ethnicity, caste, health, disability, and other factors. In addition ... lesbian and transgender women may face violations of their right to adequate housing because of their marginalized status. 69. The Special Rapporteur will provide a more complete list of particular groups of women who face multiple forms of discrimination and recommendations for specific policy actions in his next report. Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, E/CN.4/2005/51/Add.1, February 2, 2005

Summary of cases transmitted to Governments and replies received: 50. Nepal - Communications sent On 12 August 2004, the Special Rapporteur sent a joint urgent appeal with the Special Rapporteur on freedom of opinion and expression, the Special Representative of the Secretary-General on human rights defenders, and the Special Rapporteur on torture, regarding information that had been received concerning the Blue Diamond Society of Nepal, a non-governmental organization working with sexual minorities and sexual health, including HIV/AIDS. The Society is a member of the Asia Pacific Council of AIDS Service Organizations. It was alleged that on 25 July 2004 the police seriously abused four male transvestites, Jaya Bahadur Lama, Ramesh Lama, Binod and Madan. The alleged abuse included anal rape. The Blue Diamond Society lodged a complaint against the police regarding this attack. It is alleged that on 9 August 2004, 39 members of the Society were arrested. There was concern that these arrests might be retaliation for the complaint against the police regarding the allegations of 25 July. Also, a private writ was recently files in the Supreme Court of Nepal calling for the Society to be closed down on the grounds that the organization “promotes homosexuality”. The Special Rapporteur was concerned, inter alia, that closing down the Society would be detrimental to HIV prevention efforts in Nepal. Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Mission to Colombia, E/CN.4/2005/64/Add.3, November 26, 2004 B. Sexual discrimination and the AIDS pandemic 75. In accordance with the nature and the spirit of his mandate, the Special Rapporteur considers that all citizens, regardless of, inter alia, their sexual orientation, have the right to express themselves, and to seek, receive and impart information. The Special Rapporteur also considers that Governments have the obligation to provide citizens with reliable information on health issues in general and, bearing in mind the extreme gravity of the epidemic, on AIDS in particular. 76. In Colombia, despite the crucial role women play in almost all sectors of the society, sexual matters are still marked by male dominance. For instance, government officials have often used concepts such as “homosexuality” and, words like “homosexual” to denigrate their political enemies. Gay and lesbian groups and individuals’ right to freedom of opinion and expression is hindered by the opposition they find in the media where sexual issues, especially homosexuality, are treated in a prudish and traditional way and never broadcast on prime time. 64


77. It emerged during the meeting that the Special Rapporteur held with representatives of the Ministry for Social Protection that homosexuals and prostitutes are severely discriminated against and stigmatized, as they are considered to bear the main responsibility for the spreading of AIDS in the country. The Ministry stated that there is no reason for the stigmatization of homosexuals because the number of people infected is equally divided between heterosexuals and homosexuals/bisexuals. […] Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, E/CN.4/2005/64/Add.1, March 29, 2005

Summary of cases transmitted to Governments and replies received: Ecuador (Available only in Spanish) Further details on this case can be found in the report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, E/CN.4/2005/64/Add.1, March 29, 2005, paras. 324 and 327.

Iran (Islamic Republic of) 468. On 12 August 2004, the Special Rapporteur sent an urgent appeal regarding an official bill on the punishment of crimes linked to the Internet. According to the information received, the bill proposed a legislative framework that could contravene international standards on freedom of expression. […] The bill reportedly proposed sentences of up to one year in prison and a fine of 10 million rials for offences such as “sexual organs or sexual acts—heterosexual, homosexual or with animals”. […] Jamaica 494. On 6 December 2004, the Special Rapporteur, jointly with the Special Representative of the Secretary-General on the situation of human rights defenders, sent a letter of allegation concerning individuals and associations defending the rights of homosexual men and women in Jamaica, in particular the members of the human rights organisation JFLAG, the Jamaican Forum of Lesbians, All-Sexuals and Gays. The Special Rapporteur’s attention had been drawn to a letter to the editor by the Jamaican Police Federation’s Public Relations Officer, published in the Jamaica Observer of 25 November 2004. In his letter, which followed the publication on 16 November 2004 of a report by Human Rights Watch entitled “Hated to death: homophobia, violence and Jamaica’s HIV/AIDS epidemic”, the Police Federation’s Public Relations Officer “condemn[s] the role of these so-called ‘human rights’ groups to spread lies and deliberately malign and slander the police force and the Government”. He called on “the Minister of Justice to examine these allegations and slap on sedition charges where necessary to both foreign and local agents of provocation”. In stating that “the Government and the police cannot be held responsible for ... the cultural responses of the population towards gay” people, the letter also appeared to condone violence against homosexual men and women. This impression was insufficiently dispelled by the assurance that “as law enforcement officers, we try our utmost ‘to serve, to reassure and to protect’ ”. The letter to the Observer editor raised particular concerns, against the background of reported attacks and threats against persons defending the rights of homosexual men and women in Jamaica. According to information received, on 9 June 2004 Brian Williamson, a well-known gay rights activist, was murdered in his home. Within an hour after his body was discovered, a crowd reportedly gathered outside the crime scene. A man called out, “Battyman [homosexual] he get killed!” Many others reportedly celebrated Williamson’s murder, laughing and calling out, “Let’s get them one at a time”, “That’s what you get for sin” and “Let’s kill all of them.” Furthermore, it is reported that JFLAG regularly received intimidating mail, e- mails and telephone calls. For example, according to the information received, on 16 November 2004 an anonymous male called JFLAG and stated that “homosexuals should be dead”. On 17 65


November at 2 p.m., an anonymous female caller stated that homosexuals should “either stay in the closet or seek asylum abroad”. On 22 November an anonymous male caller again stated that homosexuals should be dead. A letter received through the regular mail service during that week bore the message “You are a go-dead faggard”. These incidents were reported in writing to the Matilda’s Corner police station in Kingston on 26 November 2004. In view of the above, concern was expressed that individuals and associations defending the rights of homosexual men and women, in particular the members of JFLAG, might have been at risk of, on the one hand, attempts by public authorities to suppress their exercise of free speech, and, on the other hand, of violent attacks by homophobic individuals who may have gained the impression that the Government would not vigorously pursue such violence. Nepal 648. On 12 August 2004, the Special Rapporteur, jointly with the Special Rapporteur on the question of torture, the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health and the Special Representative of the Secretary-General on the situation of human rights defenders, sent an urgent appeal regarding several male transvestites and the Blue Diamond Society of Nepal, a non-governmental organization working with sexual minorities on sexual health, including HIV-AIDS, and campaigning for the rights of sexual minorities. According to the allegations received, on 9 August 2004, 39 male transvestites, called metis, all members of the Blue Diamond Society, were arrested on the street and in public places, including bars and restaurants. They were, at the time this communication was sent, being held in Hanuman Dhoka police station and were not given food or drinking water for their first 15 hours in custody. They were not charged with any offence at the time this communication was sent. Concerns were expressed that their physical integrity might have been at risk. On 25 July, the Police allegedly raped four male transvestites, J.B.L., R.L., B and M. They were reportedly stopped by the police at about 3:30 a.m. on a street near Jamal, forced into a police van, beaten, and their money was taken away. While driving around the city, the van stopped and one officer allegedly took J.B.L. into the street, beat him, forced him to perform oral sex and anally raped him. The men were then reportedly taken to Gausala police station, where R.L. was taken into the backyard of the police station, beaten and forced to perform oral sex. Although J.B. and R.L. managed to escape from the police, B and M were kept inside the van and were reportedly beaten and raped by approximately 12 policemen for around three hours. The Blue Diamond Society made a complaint to police authorities about this attack, Concern was expressed that the arrests might have been in retaliation to this complaint. A private writ was then filed with the Supreme Court of Nepal against the Blue Diamond Society, a non-governmental organization which is a member of the Asia Pacific Council of AIDS Service Organizations. The writ called for the closing down of the Blue Diamond Society on the grounds that the organization “promotes homosexuality”. Concerns were expressed that defending this court action would seriously hinder the effective functioning of the Blue Diamond Society, given the organization’s limited human and financial resources, and that closing down the Blue Diamond Society would be detrimental to HIV-prevention efforts in Nepal. Concerns were also expressed that other organizations working in the area of HIV prevention could be open to similar charges. Saudi Arabia 790. […] Moreover, since early March 2004, Saudi authorities reportedly blocked access to the website www.gaymiddleeast.com, a news site for the Middle East’s homosexual community. The site was also blocked in June 2003, but the Government lifted the ban one month later. According to information received, this website focuses mainly on issues dealing with homosexual rights, and does not post any information of a pornographic nature. The United States-based website www.365gay.com, with which gaymiddleeast.com is affiliated, had also reportedly been censored. […] 66


Uzbekistan 972. On 19 January 2004, the Special Rapporteur, jointly with the Special Representative of the SecretaryGeneral on the situation of human rights defenders, sent an urgent appeal concerning Ruslan Sharipov, a 25-year old journalist and human rights defender whose case was already subject of other communications sent on 5 June 2003 (E/CN.4/2004/62/Add.1) by the Special Rapporteur on the right to freedom of opinion and expression, the Special Rapporteur on the question of torture, the ChairmanRapporteur of the Working Group on Arbitrary Detention and the Special Representative on human rights defenders and, on 13 August and 1 October 2003 (E/CN.4/2004/62/Add.1), by the Special Rapporteur on the right to freedom of opinion and expression, the Special Rapporteur on the question of torture and the Special Representative on human rights defenders. According to information received, Ruslan Sharipov was allegedly excluded from a general amnesty announced in December 2003 by the President, reportedly on the ground that the crime he committed was “too serious”. According to previous information, Ruslan Sharipov was arrested on 29 May 2003 and convicted on 13 August by the Tashkent City Court on charges of homosexual conduct, sex with a minor and involving minors in “antisocial behavior” (arts. 120, 128 and 127 of the Criminal Code). He was reportedly first sentenced to five and a half years in prison, a duration which was subsequently reduced to four years following his appeal in September, despite reports indicating that forensic medial tests conducted after his arrest found no evidence of sexual relations with minors and despite reported evidence that his confessions were obtained under duress. Reports also indicated that Mr. Sharipov might have been framed in connection to his human rights activities, including his reporting on police corruption and human rights abuses in the country. Fear was expressed that his exclusion from the presidential general amnesty might have been aimed at further targeting him for his activities in the defense of human rights. It was reported that calls had been made for the presidential general amnesty to extend to his conviction. 981. On 14 April 2004, the Special Rapporteur, jointly with the Special Representative of the SecretaryGeneral on the situation of human rights defenders, sent an urgent appeal concerning Ruslan Sharipov, a journalist and human rights activist, whose case was already the subject of urgent appeals sent by the Chairperson-Rapporteur of the Working Group on Arbitrary Detention, the Special Rapporteur on the question of torture, the Special Rapporteur on the right to freedom of opinion and expression and the Special Representative of the Secretary-General on human rights defenders on 5 June 2003 (E/CN.4/2004/62/Add.1); by the Special Rapporteur on the right to freedom of opinion and expression, the Special Rapporteur on the question of torture and the Special Representative of the Secretary-General on human rights defenders on 13 August and 1 October 2003 (E/CN.4/2004/62/Add.1); and by the Special Rapporteur on the right to freedom of opinion and expression and the Special Representative of the Secretary-General on human rights defenders on 19 January 2004. Ruslan Sharipov was reportedly found guilty on 13 August 2003 under articles 120 (homosexuality) and 128 (sexual relations with a minor) of the Criminal Code, despite the lack of forensic medical evidence, and sentenced on appeal to four years in prison. He was reportedly subjected to torture and threats while in detention. It was widely believed that his prosecution was linked to his work as an investigative journalist and a human rights defender, in particular reporting on corruption and human rights abuses. According to information received, Mr. Sharipov, who was reportedly eligible for early release on 11 June 2004, had reportedly been placed since 13 March 2004 under house arrest and was required to report every day to a low-security prison for work. It was reported that such a transfer was automatic once a detainee has completed one quarter of a sentence. In this context, it was alleged that he had been barred from resuming his human rights and journalism activities, under threat of losing the possibility of early release. In particular, it was reported that Mr. Sharipov would not be allowed to travel to Istanbul in late May 2004 to receive an award on the occasion of the world Newspaper Congress and World Editors’ Forum. 67


Report of the Special Rapporteur on the independence E/CN.4/2005/60/Add.3, February 22, 2005, Mission to Brazil

of

judges

and

lawyers,

A. Discrimination against or further victimization of social groups within the judicial system 24. Lack of access to justice is more of a problem for social groups who suffer from discrimination or marginalization. The Special Rapporteur heard many accounts of court cases involving people from these groups who claimed that the initial violation of their rights had been compounded by their victimization by the judicial system, which reproduces the same discrimination and the same prejudices in the administration of justice. The people most affected are children and young persons, women, people on low incomes, indigenous people, homosexuals, transvestites, the Quilombola, people of African descent, the sick and members of social movements such as landless workers and environmentalists. 28. The victims of sexual exploitation and individuals who prostitute themselves are generally at a high risk of violence and ill-treatment in a climate of blatant impunity for their aggressors. The Special Rapporteur received information from attorneys acting on behalf of such individuals regarding specific cases in which the complaints filed by them had not been processed. Transvestites, transsexuals and homosexuals are also frequently the victims of violence and discrimination. When they turn to the judicial system, they are often confronted with the same prejudices and stereotypes they face in society at large. 29. Nevertheless, there is already in Brazil a body of jurisprudence on issues related to sexual orientation, which has enabled significant progress to be made in recognizing the human rights of lesbians and gays. Although still insufficient, this jurisprudence contains pioneering judgements on issues such as equal treatment in the public sector, employment contracts and family matters. Report of the Secretary-General on integrating the human rights of women throughout the United Nations system, E/CN.4/2005/68, January 10, 2005 14. In his report to the Commission (E/CN.4/2004/9), the Special Rapporteur on the sale of children, child prostitution and child pornography identified groups at greater risk of trafficking and sexual exploitation, including children belonging to ethnic minorities and indigenous peoples, those living in extreme poverty, street children, migrants, homosexuals, lesbians, bisexuals and transgender children. He further stated that transgender youth could be especially vulnerable to entering into prostitution because of adverse reactions from family and peers to their gender and sexuality, often leaving them alone and unsupported. Young transgender people experienced discrimination when trying to find accommodation, obtain an education, get a job and access health services, making them among the most vulnerable and marginalized young people in society. Report of the High Commissioner for Human Rights on the situation of human rights in Colombia, E/CN.4/2005/10, February 28, 2005 Summary Situation of especially vulnerable groups Other vulnerable groups included women, children, journalists and opinion makers, government employees such as judicial officials, mayors, former mayors and councilmen, along with members of the

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Unión Patriótica and the Communist Party, and persons suffering discrimination because of their sexual orientation, such as gays, lesbians, bisexuals and transsexuals. III. Situation of human rights and international humanitarian law B. Situation of human rights 84. The office in Colombia continued to record allegations of human rights violations attributed to the direct action of public servants, particularly members of the security forces. ... Several of these cases affected vulnerable groups, including human rights defenders, trade unionists, indigenous and AfroColombian communities, journalists, persons deprived of their liberty, women, social leaders, and victims of abuses due to their sexual orientation. In some cases, omission on the part of the authorities or complicity with illegal armed groups, particularly paramilitaries, invoked the responsibility of the State. IV. The situation of especially vulnerable groups 127. Local officials, particularly mayors and former mayors, councillors and former councillors, public officials, judicial officers, members of the Unión Patriótica and the Communist Party, doctors and business people were also particularly vulnerable to actions by illegal armed groups. Lesbians, gays, bisexuals and transgenders were also victims of abuses and discrimination, including mistreatment and acts of “social cleansing”, because of their sexual orientation. Annex III: Situation of especially vulnerable groups 22. The internal armed conflict reinforced gender discrimination, homophobia and heterosexism. Reports were made of attacks by the illegal armed groups, through physical or psychological abuse or social cleansing, against persons because of their sexual orientation. Such persons were also frequently the victims of abuses and discrimination by the authorities. Allegations were received against members of the National Police in Medellín, Bucaramanga and Santa Marta. The Constitutional Court took action on behalf of the right to equality and other fundamental rights, emphasizing that a person’s sexual orientation constitutes an element that defines their identity and a fundamental component of individual autonomy. Nonetheless, there is a lack of appropriate policies for guaranteeing the rights of lesbians, gays, bisexuals and transsexuals, as well as explicit legislative initiatives to provide criminal and disciplinary sanctions for discrimination against people based on their sexual orientation. Report of the High Commissioner for Human Rights on the situation of human rights in Sierra Leone, E/CN.4/2005/113, February 2, 2005 B. The right to life and security of the person 8. Recent months have witnessed a spate of unresolved killings in Freetown and in the regions, especially of women. In September 2004, a well-known lesbian activist, Fanny Ann Eddy, was murdered in Freetown allegedly for her sexual orientation and outspokenness in support of gay and lesbian rights. Prior to her death, she made a submission to the Sub-Commission for the Protection and Promotion of Human Rights in Geneva, advocating lesbian and gay rights in Sierra Leone.

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Statement by the High Commissioner for Human Rights to the High Level Panel on synergies between national level implementation of the Beijing Declaration and Platform for Action and the CEDAW Convention, 49th session of the Commission on the Status of Women, New York, 3 March 2005: “It is well recognized that women are not a homogenous group and that their priorities differ widely according to region, class, ethnicity, age, education, marital status, and sexual orientation, among many other categories. The women's movement has perceived these differences as a strength. It has sought to embrace these diverse perspectives and adopt a holistic approach to social justice. This holistic approach has allowed a strong emphasis on the equal importance and indivisibility of all human rights-civil, cultural, economic, political and social. The reality of women's lives has demanded this emphasis. The women's human rights movement has also highlighted the centrality of rights to equality and non-discrimination.�

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Out at the UN  

Advancing Human Rights based on Sexual This report provides an overview of sexual orientation and gender identity issues at the 61st Session...

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