Draft resolution at Human Rights Council on
human rights, sexual orientation and gender identity
“You, at the United Nations, have a particular role to play. You have a responsibility. Lesbians, gays, bisexuals, transgender people are equal members of the human family whose rights you have sworn to uphold. Those who face hatred [and] violence look to you for protection … Do not fail them.”
- Nobel Peace Prize winner, Archbishop Emeritus Desmond Tutu
About the resolution:
The resolution, presented by South Africa, recalls the universality of human rights, and notes concern about acts of violence and discrimination based on sexual orientation and gender identity. It requests the High Commissioner for Human Rights to prepare a study on violence and discrimination on these grounds, and calls for a panel discussion to be held at the Human Rights Council to discuss the findings of the study in a constructive and transparent manner.
Importance of addressing these issues:
Around the world, people face human rights violations because of their sexual orientation or gender identity, including killings, torture, rape, criminal sanctions, and violence. These violations have consistently been brought to the Human Rights Council’s attention by UN Special Rapporteurs. UNAIDS, UNDP and the UN Special Rapporteur on Health have also emphasized the importance of addressing human rights violations based on sexual orientation and gender identity as part of HIV education and prevention efforts.
Although issues of sexual orientation and gender identity are sensitive issues for many States, we trust we can all agree that no human being should face violence, torture, stigmatisation and abuse, on any ground.
Existing international human rights framework
The resolution does not seek to create new rights but simply affirms the application of existing human rights standards to those who face human rights violations because they are lesbian, gay, bisexual and transgender, and calls for further information and dialogue on discrimination and violence based on sexual orientation and gender identity.
The right of all human beings to life, to freedom from torture, privacy, and protection from arbitrary detention are as old and timeless as the Universal Declaration itself. In addition, there is almost 20 years of treaty body jurisprudence recognizing that international human rights law prohibits discrimination on grounds including sexual orientation and gender identity. Drafters of both international and regional human rights instruments were careful to ensure that the lists of grounds for non-discrimination were not exhaustive, by employing terms such as “of any kind”, “such as” and “or other status”.
This position is consistent with other regional and national jurisprudence, including decisions of the European Court of Human Rights, the African Commission on Human and Peoples Rights, and courts in South Africa, Hong Kong, Fiji, India, Nepal and the USA. Just this week, the 2011 United Nations Political Declaration on HIV and AIDS recognised the need to address the human rights of men who have sex with men, and the OAS adopted by consensus a resolution on human rights, sexual orientation and gender identity.
The Human Rights Council’s responsibility to address these issues
The Council is “responsible for promoting universal protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner” (GA resolution 60/251, OP 2). Whatever differences may exist on the subject-matter of the resolution, the South African resolution recognises that the Council has a responsibility to address killings, rape, torture and violence, regardless of sexual orientation or gender identity.
ALLEGATIONS OF VIOLATIONS OF THE HUMAN RIGHTS OF LGBT PERSONS:
SOME EXCERPTS FROM REPORTS TO THE 17th SESSION OF THE HRC
Extrajudicial, summary or arbitrary executions:
· During the past 18 months, 31 lesbian, gay, bisexual and transgender persons have been murdered in one country alone.
· On December 22, 2010, a 23 year old transgender person was reportedly found dead in a ditch. According to reports, her body was beaten and burned. Information received also indicates that the blows to her face caused by stoning have been so severe that her remains had been virtually unrecognizable. There were also indications that she had been raped.
That same day, another transgender person was found at her home. According to reports, her body had been incinerated and showed numerous stab wounds. Neighbors reported that they saw two suspects running away from her home when the fire started.
· On January 2, 2011, another young transgender person had been found murdered in the main street of her town. According to information received, her body had stab wounds in the chest.
[A/HRC/17/28/Add.1 – Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, communications to and from governments, pages 114-117]
· LGBT activists had received numerous death threats in connection with their work, and especially following the publication of an article entitled “Hang them” in Rolling Stone, a local newspaper. The article provided names, addresses and photos of members and perceived members of the LGBT community, including on the front cover.
[A/HRC/17/28/Add.1 – Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, communications to and from governments, pages 390-391]
Violence against women:
· On 14 January 2011 a lesbian woman was allegedly “strangled with a wire, tortured and raped for five hours by [an acquaintance] who intended to ‘turn her straight’.”
· A local community activist reached out to women who had been raped because of their sexual orientation through a small local charity in the township to rescue and support survivors of "corrective” rape. However, the same accused asked family and friends to attack the community worker, constantly harassed her and made threats against her life and against her partner. This forced her to go into hiding as well, which had prevented her from carrying out the assistance work she provided to other women victims of violence.
[A/HRC/17/26/Add.1 – Report of the Special Rapporteur on violence against women, communications to and from governments, para.204-210]
· The Special Rapporteur expressed concerns during a country visit at accounts of widespread discrimination and violence, generally overlooked by the Government, “including brutal gang rapes and family violence owing to their sexual orientation or gender identity”.
· A specific case study is provided of a transgender person “brutally attacked and shot by a group of men when she was leaving a nightclub”, treated harshly and with disdain in hospital by health-care personnel because she was transgender and HIV-positive, detained in a male prison where she was placed in a cell with gang members and raped more than 100 times, and further attacked upon her release from jail.
[A/HRC/17/26/Add.2 – Report of the Special Rapporteur on violence against women, follow-up mission to El Salvador, para. 29]
Imposition of the death penalty:
· A 17 year old was charged with sexual activity between males and sentenced to death. It is alleged that he was beaten, blackmailed and forced to confess.
[A/HRC/17/30/Add.1 – Report of the Special Rapporteur on the independence of judges and lawyers, communications to and from governments, paras. 556-571]
Right to health:
· Two men were arrested for alleged homosexuality by officers of the 1st squadron of gendarmes, and are currently detained in prison. They were arrested after their houses were searched. They were forced to undergo an anal examination. It is also alleged that they were handcuffed during medical examinations and were not informed about their right to remain silent or to have recourse to legal assistance.
[A/HRC/17/25/add.1 – Report of the Special Rapporteur on the right to health, communications to and from Governments, para.70-71]
· On December 4, 2010, a human rights defender was arbitrarily detained by members of the judicial police, handcuffed, blindfolded and placed in a vehicle where he was insulted by an officer and taunted with homophobic expressions. According to information received, the agents beat him repeatedly in the face, chest and back while asking him about his work defending the rights of people living with HIV and gay, lesbian, bisexual and transgender people. Later, he was released under threat of being attacked again if any complaints were received about the events.
[A/HRC/17/25/add.1 – Report of the Special Rapporteur on the right to health, communications to and from Governments, para.195-196]
· In cases of homosexual detainees, prison staff follow an isolation procedure, during which time these prisoners receive psychological “treatment” and are kept apart from the rest of the prison population for no reason besides their sexual orientation or gender identity.
[A/HRC/17/25/add.3 – Report of the Special Rapporteur on the right to health, mission to the Syrian Arab Republic, para.78]