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Governments Must Respect, Protect and Fulfill Human Rights of All People, Regardless of Sexual Orientation, Gender Expression, and Gender Identity

The 29th session of the UN Human Rights Council in June 2015 saw the introduction of the second ever Office of the High Commissioner for Human Rights (OHCHR) report on ‘Discrimination & Violence against Individuals Based on their Sexual Orientation & Gender Identity’. AWID spoke with Cynthia Rothschild, feminist, human rights and sexual rights activist, about the significance of the report and outcomes of the June 2015 Human Rights Council session.

AWID: What is the significance of the new OHCHR report on "Discrimination & Violence against Individuals Based on their Sexual Orientation & Gender Identity?

Cynthia Rothschild (CR): UN reports are only as useful as we make them – but this one does have significance – it’s only the second report out of the UN system – ever on human rights and sexual orientation and gender identity. And while it’s very linked to the content of the first groundbreaking report, from 2011/2012, this one shows an undeniable trend – there is now a precedent and a pattern of focus within the UN’s human rights system. It’s important to remember that the first UN treaty body decision on sexual orientation came over 20 years ago, so these UN reports come late. They follow decades of social justice activism. But they’re a reflection of political will of the times, so here we are: in 2015, governments within the UN system are finally showing more consistent commitment to surfacing the range of abuses LGBT people face. They’re finally willing to say “Stop the killing, the arrests, the harassment, the rape. Stop firing people, stop kicking people out of housing or schools because you think they’re not worthy of protection.”

That political will doesn’t appear in a vacuum, though. So this also means that governments are finally listening to those decades-long demands of activists. A lot of people have died, been assaulted, have had their offices raided, have been detained or harassed, and have been kicked out of health care settings, housing, schools or jobs in that time. These UN reports rest on the activist demands that these human rights violations must end. In fact, they must be prevented. And states have the obligation to engage – to respect, protect and fulfill the human rights of all people, regardless of sexual orientation, gender expression, and gender identity.

One of the things that’s significant about the report is that it argues that the violations we’re talking about are gender based. It doesn’t shy away from saying that bodily autonomy and regulation of sexuality are at the core. This is really important for all people, and certainly for lesbians and women generally, given the sexism, misogyny and gender inequity we live under in all parts of the world North and South alike. And we have to remember, too, that the UN human rights system was slow to respond to address human rights of women, as well. Sometimes that “arc of justice” is stubborn and doesn’t bend quickly!

AWID: What changes/impact are you hoping the report will lead to?

CR: The report can be used in a lot of creative ways by both activist communities and States. In fact, it’s only as useful as people make it. So it ought to be used to hold government actors, other officials and other authorities (including religious authorities, police, and family and community members) accountable in policy and legal arenas, but it can also be a basis of really creative campaigning and even in developing service provision guidelines. People can use the report as a basis for demanding repealing of laws used to kill, torture, arrest and harass gender non-conforming people. They can call for changes in asylum and detention policies. They can demand that forced psychiatric incarceration be ended, as well as the ending of (and punishment for) conversion/reparative therapy. Activists can demand that politicians stop inciting hatred through misogynist, homophobic and transphobic hate speech, which is often used for political purposes, especially related to elections or constitutional reform.  

There are things that desperately need to be fixed – young people must be safe in their schools and their homes. Health systems can and should be reformed, particularly so policies and personnel treat people fairly and with dignity. Trans and gender non-conforming people shouldn’t have to struggle through abusive requirements to have legal recognition of their preferred gender. Young people who are intersex shouldn’t be coerced into “fixing” their sex, and they certainly shouldn’t be forced to undergo medical intervention. No one should be forcibly sterilized or made to undergo unwanted surgeries. No one should be sexually assaulted as a result of their relationship to gender or sexuality – and their expression. No one should be punished for not conforming to gender stereotypes. People in same sex couples shouldn’t receive different benefits from the state based on who they love. So there’s clearly a lot that the report can be used to support, from legal and policy change to changing those “hearts and minds” we know we have to win over.

At the heart of any human rights report rests the idea of accountability  governments and activists can hold people and states accountable when they violate human rights principles, just as they can demand an end to the impunity that often surrounds these violations. Abuses are too often not investigated. Perpetrators, including police, are too often not held to account. In fact, police and even family members are too often complicit in abuses. This report says states have an obligation to investigate, punish and prevent the abuses.  

AWID: How involved have LGBTQI activists been in advocating for and shaping this result?

CR: LGBTQI activists, and others who situate themselves in Sexual Orientation & Gender Identity (SOGIE), queer, sexual rights and even women’s rights movements are undoubtedly at the core of the report. It’s activist demands – and decades of them – that lead to government and UN authorities taking a stand against abuses. And, of course, the activist demands rest on the backs of people historically targeted in decades if not centuries of violence and discrimination. Activists have been working within the halls of government buildings and the UN to make simple arguments: violations are violations, no matter who the victims or survivors. There is no hierarchy. And LGBTQI people exist, all over the world. Such simple sentiments, but there’s a lot of resistance to acknowledging them; so having governments agree to mandate UN reports on the abuses can - and did - take years of advocacy.

A trend of allies within government spaces also makes this possible. And increasingly, this is true for UN staff and high profile people, such as UN Secretary General Ban Ki Moon. He’s been a steady supporter, calling for an end to these abuses since the beginning of his term. But LGBT and sexual rights activists have been using the UN system for a long time – this is increasingly so over the last ten years. The reports and the resolutions that paved their way are products of that strategic engagement.

But one foundational source of strength here is the advocacy that’s taken place at the regional level. The Inter-American Court and Commission has been at the forefront of SOGI-related advocacy. The European system, too, has addressed these issues for many years. And now there’s the work of the African Commission, including the ‘Resolution on Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity’ these all rest on activist demands and smart long-term advocacy in these spaces. 

Of course, the successes rest on recognition that very real and horrific abuses take place at local and national levels. People wear the visible scars of that abuse. So the violations can no longer be denied. States can’t as easily hide behind rhetoric that these are “special rights” or behind assertions of cultural relativity or heteronormative purity. It’s becoming crystal clear that states are finding it harder to manipulate homophobic discourse to deny rights. Even as the rhetoric becomes more vitriolic.

AWID: How can this report lead to real impact and not become a document that is only referred to by researchers and activists?

CR: The report can be used in a lot of creative ways but it has to get beyond the confines of the UN. To start, we’ve got to make it known that it exists. Non-governmental organizations, activist networks and even service providers can use the report, the ideas and demands within it, for many outcomes including for things like decriminalization related to sexual orientation, or holding people who torture accountable. Police, prison and immigration officials can be challenged using the report.   

But it can also be used in schools and by educators who develop programs and curricula. It can be used to support comprehensive sexuality education advocacy. It can be used by allies in religious groups to hold their leaders to account when that becomes necessary. Government officials can use it in lots of ways, from developing anti-discrimination policies in housing, employment, health and education sectors to developing police trainings. Health professionals can use it to help argue against forced medical interventions and “conversion therapy”. The media can use the report for programming. Political groups can use it for campaigning.

AWID: We are seeing increasing reports in mainly alternative and social media of increasing numbers of trans people, in particular black trans women being killed in the US. How can this report contribute to ending this violence?

CR: The report explicitly addresses widespread violence and discrimination against trans people. For example, it notes trans prisoners and rape in detention. It also cites harrowing data from the Trans Murder Monitoring Project, which notes over 1600 murders in 62 countries in six years. Historically, there have been social cleansing efforts that have targeted trans communities. So the references are there for people to use, whether they are activists, policy makers, or government or UN officials.  

On the other hand, there are concerns about what doesn’t get reported, as well. For instance, there is so much violence against lesbians that is never reported – the Inter-American Commission on Human Rights has asserted that there is “major underreporting of acts of violence against lesbians”. So we also have to figure out how this report, as well as others that focus on violence against women and gender non-conforming people, can be used in advocacy where statistical data doesn’t exist.

AWID: At the same Council session where this important report on SOGI came out, so did a resolution on "Protection of the Family'. Do you see the interest in this resolution as part of a backlash or response to the strengthening of human rights standards for LGBT individuals?

CR: Some say Egypt brought the damaging family resolution forward in direct response to the SOGI advances. I’m not sure it was in direct response, but it certainly was connected. I think their bringing the resolution forward does more than just attack SOGI advances it has a deeper political function, including to distract from other human rights issues. Overall, I think this is about weakening the entire human rights system, brick by brick.

The resolution is condemning of many kinds of families, not only those of LGBT people. Think of the stereotype of grandmothers raising kids whose parents have died from HIV/AIDS or Ebola, single parents, women as heads of households and kinship networks that stress communal raising of kids are all in the dragnet. It’s an effort to promote specific, conservative and patriarchal notions of religion, tradition and culture. Another reason the resolution presents risk is that it obscures the fact that many people experience brutal violence and discrimination within families, and that family members must be held accountable for their abuses.

One issue the Egyptian negotiators did not budge on is the idea that “various forms of the family exist”. They, and other co-sponsoring states, fought against including that idea in the versions of the text. When the states sponsoring this kind of resolution are rigid about things like this, it means they see political benefit in promoting a monolithic idea of “family” as a heterosexual nuclear model with no variation. From a human rights (and women’s rights) perspective, their narrow vision is troubling. But this is about more than SOGI, although their fear of gay marriage and women as decision makers in families are among the reasons they run the resolution. The key thing is that they make decisions based on politics – these are ugly geo-political calculations about alliances that can be forged around this set of issues. At this Council session there was a lot on sexual and reproductive rights, with the ever-present undercurrents of economic and military relationships between states; conflicts in terms of Ukraine, Israel / Palestine; resistance to US and European hegemony; the growing power of violent militant movements; austerity measures and the European economy. These and other “big issues” are usually at the core, even if unspoken.     

There is reason to celebrate the release of the OHCHR SOGI report, but we have to see it in the context of everything else going on. This SOGI report is “part 2” of a particular and important effort. Sometimes the successes come with simple messages – including that governments can no longer be silent about violations perpetrated because of real or perceived sexual orientation, gender identity, gender expression and intersex status. The report turns up the collective volume another notch. It’s another tool to use to make our demands. And that just might save a life somewhere.