The Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity (IE SOGI), Mr. Graeme Reid, will dedicate his report to the 79th session of the United Nations General Assembly to an exploration of the obstacles to full and meaningful participation in electoral processes that individuals face, linked to their real or perceived sexual orientation and gender identity. The report will be prepared with an eye not only to the record number of elections being held globally in 2024, but also to the salience of issues of gender and sexuality in contemporary politics worldwide, and hence to the realization of rights in electoral democracies.

Within the framework of international human rights law, the IE SOGI will explore structural obstacles arising from laws, policies, regulations and administrative or other practices that inhibit electoral participation, contrary to international standards for democratic elections. Such obstacles will include actions by State and non-State actors, and the resulting inequitable outcomes (as voters, candidates for office, election workers, and with regard to SOGI issues). Those obstacles and outcomes will be analyzed in relation to the realization of democratic governance in general, with specific attention to examples provided of the varied experiences of discrimination and violence linked to SOGI, including as intersecting with race, caste, religion, place, ethnicity, disability and other structures of exclusion. To the extent that there are obstacles to effective participation arising out of specific situations, such as persons in detention/with criminal records, persons seeking suffrage (on change of legal status such as immigration, marital status, etc.), or for persons outside their country, the report will seek to highlight the SOGI-linked obstacles and consider comprehensive solutions. In recognition that elections are key parts of political processes, the report will pay close attention to the impact of political rhetoric, including during the campaign process and online, on the electoral participation of lesbian, gay, bisexual, trans and other gender-diverse (LGBT) persons.

In addition to outlining the challenges faced by LGBT persons, the report will identify good practices and policies to overcome obstacles and ensure meaningful electoral participation for all, as a basis for developing corresponding remedial recommendations to States.

The report will put forward recommendations to States and other relevant stakeholders to support them in meeting their obligations under international human rights law to protect and empower all persons, including LGBT persons, in the exercise and enjoyment of all their human rights. The goal is to underscore the many factors contributing to full and equal participation in determining the structures of governance, including through effective electoral participation in ways responsive to current as well as future needs for LGBT persons and their societies, globally.

Background

Article 25 of the International Covenant on Civil and Political Rights (ICCPR) provides for the “right and opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions […] to vote and to be elected.” It also outlines that elections should be periodic, genuine, based on universal and equal suffrage, secret, and free. While variations in electoral systems and methods of voting may stem from traditions and historical background, the exercise of these rights may only be conditioned by “objective and reasonable criteria” and “any [electoral] system operating in a State party must be compatible with the rights protected by article 25.”^[1]

“Democracy and human rights are mutually reinforcing.”^[2] Meaningful democracy requires not only full and equal electoral participation by, but also protection of the human rights and fundamental freedoms of, all members of society.^[3] Political discourse and the broader environment for the free and full exercise of human rights thus impacts the right and the opportunity of LGBT persons to meaningfully participate in electoral processes. Respect of other rights relevant to electoral participation, such as non-discrimination (in law and in fact) on the basis of sex and gender, race, caste and disability among other grounds, as well as freedoms of expression, association, and assembly, is crucial for facilitating full electoral participation of LGBT persons. Beyond formal gaps in protections of these rights, threats, incitement, or actual instances of violence (by State or non-State actors) linked to sexual orientation and gender identity, alone or intersecting with other bases of exclusion, may also restrict political and electoral participation.

The role of civil society, and especially citizen election observer groups, is crucial for protection and promotion of human rights during the elections.[4] The cooperation between citizen observers and nongovernmental organizations (NGOs) focusing specifically on LGBT issues can be mutually reinforcing, but the restrictive laws and practice may limit their very ability to operate.

Each electoral process is comprised of legal, administrative, fiscal, socio-cultural, and political aspects. The Independent Expert’s report will account for and consider all of these elements to identify and analyze any obstacles to the full and meaningful electoral participation of LGBT citizens. Laws may formally grant rights, such as the right to vote, but may be denied in practice, such as when women and non-gender normative others are unable to access voting because of law of identity cards; physical mobility including safety and security and the timing and place of registration and voting matter to actual accessibility of voting, etc.

Legal environment

Elections are not a one-day event, and all stages before, during and after voting and counting are governed by laws and regulations, some of a constitutional nature. Laws may impose unreasonable restrictions on the rights guaranteed by international human rights treaties, or may have a discriminatory effect.

While the human rights of LGBT persons to vote and to stand for office are rarely expressly restricted by law, other legal measures – directly or indirectly targeted at LGBT persons – may lead to de facto disenfranchisement. For example, suffrage may be restricted on the basis of criminal conviction or imprisonment, impacting LGBT persons who are disproportionately targeted by the express criminalization of same-sex conduct, the deployment of morality provisions, and the application of other facially neutral laws. While the human rights of LGBT persons to vote and to stand for office are rarely expressly restricted by law, application of morality provisions or criminalization of same-sex relations may lead to de facto disenfranchisement. In addition, efforts to promote gender diversity and equity in electoral representation, such as gender quotas and other temporary special measures, may not allow or be interpreted in ways that do not encompass the range of gender categories, presenting challenges for integrating trans men, trans women, and non-binary people into these frameworks. The assumption of two genders may impact the regulations of candidate registration, campaign, media coverage of the elections, political finance, and filling of the vacated seats. How the national anti-discrimination policy on the basis of sex or gender, if such a policy exists, squares with the diversity of gender identities and applies in the electoral context may also be of relevance. For example, whether consideration of bias-motivated crimes is sensitive to SOGI issues has an impact on the actual and perceived security of public persons, such as LGBT candidates, or their active supporters.

Guided by law, elections are also an administrative process. Even if well-funded, non-burdensome and efficient, procedures may be discriminatory and impede full and meaningful participation of all groups in society. Administrative procedures, such as civil registration or the use of digital services for identity verification or processing of electoral documentation, may appear neutral on their surface, but can have a discriminatory effect on many voters, including LGBT voters and candidates. For example, a lack of access to legal gender recognition, and a resulting mismatch between documentation and gender identity may preclude obstacles for full participation.

Political aspects

Elections are not only a legal and administrative matter. They are also about political competition and access to positions of power, so that stakes on issues and candidates may be very high. Some politicians may denigrate lesbian, gay, bisexual, trans and other gender-diverse persons for political gain. Intolerant rhetoric and hate speech may enter the discourse in relation to specific candidates, political platforms, or generally by instilling fear “the other” rhetorically projected onto LGBT people, with the intention of stoking moral panic. Homophobia can be both amplified by other negative attitudes based on national origin, race, migration, disability, etc., and be one form of expression of xenophobic attitudes that can target several categories at once. Intersectional discrimination in politics and elections is not a new phenomenon, and often is carried out by non-State actors and informal means.

Electoral processes take place at all levels, and politics may play out differently in national- and local-level elections. Local political and cultural practices, which often vary by geography can play a major role: is it safe to travel to polling stations? Safe for whom? How are differently gendered persons registered in local sites? Are they accessible to differently abled persons? Are gender traditions in movement (for example, male escorts) an aspect of equal voting power?

In some localities, LGBT voters may be a significant voting block, or be valued part of solidarity alliances, and in some constituencies SOGI issues and rights may be a more prominent campaign topic than in others. That said, practice shows that SOGI issues do not enter the political discourse because of their salience but most often based on political calculations by key actors. Referenda on such topics as same-sex marriage or rights of LGBT couples to adopt children or comprehensive sexuality education are at times introduced for the purpose of political polarization or to distract public opinion from other matters of societal concern. At other times, sexual rights issues have been part of successful politics and policy advance, as with city and municipal non-discrimination laws passed by ballot, or parliamentary votes on gender identity recognition in line with campaign promises. Where LGBT issues do not feature in the political discourse or as campaign topics, this may be linked to the overall restrictiveness of the political environment and intolerance towards political dissent.

Political campaigns use a multitude of methods to reach out to the voters. Public assemblies, where considerations of security are important, remain an important component of campaigns. Coverage in traditional media, such as television, radio, or print editions, continues to reach most of the voters, shape public opinions and normalize certain discourse. Campaigning online remains underregulated, even as multiple countries aim to find ways to counter disinformation, intolerant rhetoric, and incitement of violence online. It appears that the rhetoric that is less socially acceptable offline may be a more frequent occurrence online, just as are verbal violence and threats of physical violence against LGBT persons. Campaign financing and the resources available for non-traditional candidates and campaigns are an issue which require attention and rights analysis.

Call for Inputs

The Independent Expert invites all interested States, civil society organizations, academics, international organizations, national human rights institutions, activists, corporations, and others, to provide written inputs to the following questions for his thematic report. Inputs in relation to specific practices and policies in States or territories are welcomed, as are more general inputs concerning regions or the international community as a whole.

The following questions are provided as illustrative points of reference to guide the formulation of inputs. Please provide any relevant support of substantive inputs (such as documentation, links to evidence of impact, etc.) with submissions.

1. Does your country have any laws, policies, or practices that, explicitly or implicitly, ban or restrict suffrage rights in ways linked to beliefs about sexual orientation, gender identity, or other broader concepts of sex or gender that may include SOGI in some form?
   1. If such laws include limitations on the right to vote or to stand for office linked to de jure or de facto factors linked to gender identity or sexual orientation, please identify the mechanism by which disenfranchisement is created? (I.e., exclusion because of criminal conviction or application of morality provisions?)
   2. What other exclusions intersect with these exclusions de facto or de jure? (I.e. marital status? registration in party? literacy tests?)
   3. Do the administrative practices and procedures allow for change of notation of sex or gender in the official documents that serve for identification of voters? Have there been cases in which people were deprived of the right to vote or stand for office because of such inaccuracies in the identification documents?
2. Are there any laws, policies, or practices that, explicitly or implicitly, ban or restrict participation of persons in any elements of the electoral process, such as campaign events or media coverage, linked to sexual orientation and/or gender identity – including in relation to broader restrictions on speech, association, assembly or otherwise?
   1. In particular, are there examples of how administrative practices and procedures ban or restrict electoral participation of LGBT persons by relying on the assumption of two genders?
3. What other laws, policies or administrative practices and procedures of electoral processes function as barriers to full suffrage or participation in campaigns? Please identify the specific practices that constitute barriers.
4. Do any of the laws flagged above have a character of constitutional provisions?
5. Have such laws, policies, or practices been challenged in courts? If so, what were the outcomes?
6. If there are no current laws, policies, or practices as described above or of concern, have there been attempts or incentives in the last ten years (2014–2024) to introduce such explicit or implicit restrictions? If so, who were the actors/groups/individuals or organizations behind these attempts, and what is the current situation?
7. In the last ten years (2014–2024), have there been any documented instances of physical violence, psychological violence or threats of violence targeting candidates, political activists or voters based on their sexual orientation or gender identity? Have there been relevant election-related instances of incitement of violence, hate speech, discriminatory or intolerant rhetoric? If so, who were the actors/groups/individuals or organizations behind these acts, attempts or rhetoric, and what was the reaction of the authorities?
8. Do politicians or other public actors (including religious and cultural leadership) engage in propagating the sense of moral panic for political gain through denigrating persons based on their real or perceived sexual orientation and gender identity (for instance in the context of advocacy for certain legislation, electoral smears of opponents, or otherwise)? Have there been political or legislative campaigns focused on SOGI issues? What were the political motivations behind them?
9. In considering how general context and political climate matter for rights, please describe how SOGI issues are presented and positioned in relation to the dominant political and ideological divisions? Are there instances when political positioning of SOGI issues exemplifies broader xenophobic or other racist/anti-migrant etc. attitudes? Are there specific examples of how factors such as race, class, gender, age and disability compound sexual orientation and gender identity discrimination in relation to electoral participation?
10. Is the rhetoric about LGBT candidates, political activists or voters different in the offline and online domains? What is the discourse in the traditional media? Are there instances of discriminatory political rhetoric specific to the online domain? Do the policies of the technological companies strike a good balance between protection of freedom of expression and helping guarantee meaningful, safe, and equal electoral participation of LGBT persons?
11. Do you have any examples of good practices, policies or interventions that:
    1. Made political space for the entry of non-traditional candidates across gender and sexuality?
    2. Created materials or forms of communication and information that counter-acted mis-information (whether about HIV, childhood development, marriage and family values) in electoral campaigns?
    3. Revised institutional practices to facilitate greater accessibility and electoral participation across SOGI?