Human Rights Council holds panel discussion on discrimination and violence based on sexual orientation and gender identity

MIDDAY

7 March 2012

The Human Rights Council today held a panel discussion on discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity

The panel discussion was opened with a video address from the United Nations Secretary-General Ban Ki-Moon, in which he said he understood that sexual orientation and gender identity were sensitive subjects, but there was a need to speak out because lives were at stake. The violence and discrimination directed at people just because they were lesbian, gay, bisexual or transgender was a monumental stain on the collective conscience, and a violation of international law to which the Human Rights Council must respond. The Secretary-General told those who were lesbian, gay, bisexual and transgender persons that they were not alone, that he stood beside them, and that the struggle to end violence and discrimination was a shared one. A historic shift was under way and more States saw the gravity of the problem.

In an opening statement, High Commissioner for Human Rights Navi Pillay said a clear pattern had emerged of targeted violence and discrimination, in all regions of the world, directed at people because they either were, or were perceived to be, lesbian, gay, bisexual or transgender, and the High Commissioner gave examples of reported incidents which included targeted killings, violent assaults, homophobic harassment of children and acts of torture including sexual violence. At least 76 countries had laws that either explicitly criminalized or prohibited same-sex relations between consenting adults. Today was a historic opportunity for the Human Rights Council to begin a new chapter in the history of the United Nations, dedicated to ending violence and discrimination against all people, irrespective of their sexual orientation and gender identity.

Laurence Helfer, Co-Director of the Centre for International and Comparative Law at Duke University, United States, speaking as a panellist, said that all human being were born equal in rights. The Universal Declaration of Human Rights did not exclude any individual or groups, and certainly not lesbian, gay, bisexual and transsexual persons.

Hans Ytterberg, Chairperson of the Council of Europe Expert Committee on Discrimination on Ground of Sexual Orientation and Gender Identity, speaking as a panellist, said threats and violence formed part of the everyday lives of lesbian, gay, bisexual and transgender persons, as well as violations to their right to a private life, freedom of expression, peaceful assembly, to work, or to education.

Irina Karla Bacci, Vice-President, National Council for Lesbian, Gay, Bisexual And Transgender Persons in Brazil, speaking as a panellist, said that today 76 countries still had laws which criminalized same-sex relations between consenting adults. There were also countries which had undergone legal reform, but where violence continued; additional legal reform and cultural transformation of society were urgently needed. It was critical to continue to transform culture in public spaces, but also to reach private spheres.

Hina Jilani, Chair of the Human Rights Commission of Pakistan and former Special Representative of the Secretary-General on human rights defenders, speaking as a panellist, said that without such discussions as today’s panel the stark realities depicted in the High Commissioner’s report would continue to exist unchecked. There were no exceptions to the application of universal human rights, and all Governments had a duty to ensure those laws and rights were applied, and that perpetrators of human rights violations were ultimately brought to justice.

In the discussion speakers said that the issue was not about creating new rights for certain people but about ensuring that all human rights could be enjoyed by all human beings. Issues such as legislative reform, education and awareness-raising campaigns, and decriminalization of same-sex sexual acts were discussed. Some speakers said they found the controversial notion of sexual orientation vague and misleading, and that debate on the issue could lead to discord among Member States, and also reaffirmed the importance of respecting cultural and religious values when it came to dealing with human rights issues, while voicing concern about other States enforcing their cultural values abroad. Other speakers said that it was time for the Human Rights Council to develop a monitoring mechanism to address the situation of lesbian, gay, bisexual and transgender persons.

Abdul Minty, Permanent Representative of South Africa, acting as moderator of the panel, concluded by saying said that speakers had referenced the Ubuntu spirit of South Africa, which was essentially: I am because you are. It conveyed the message that everyone was linked by their common humanity, and everyone had an obligation to protect each other according to the fundamental principles of human rights.

In concluding remarks, Maria Nazareth Farani Azevedo, Permanent Representative of Brazil, asked all present whether it was acceptable to discriminate against someone based on colour. She would reply no and believed most would agree with her. Therefore, was it acceptable to discriminate or humiliate someone based on sexual orientation? Again, Ms. Azevedo would reply no, and she hoped all would agree with her. Today was not an exceptional or landmark panel. It was business as usual. Government and civil society were united and inspired by the same desire to promote and protect human rights, and while there could be differences in the approach, the basic principles were the same.

Speaking in the interactive dialogue were Argentina on behalf of the Common Market of the South (Mercosur), Pakistan on behalf of the Organization of Islamic Cooperation, the European Union, Mauritania on behalf of the Arab Group, Senegal on behalf of the majority of the Member States of the African Group, Nigeria, Russia, Cuba, Norway, Uruguay, Honduras, Ecuador, Sweden, Greece, Austria, Australia, Ireland, Germany, Israel, Thailand, Switzerland, United States, Republic of Korea, Portugal, Mexico, France, Finland, United Kingdom, Estonia, Nicaragua, the Council of Europe, Netherlands and Croatia.

The following non-governmental organizations also took the floor: Human Rights Institutions from the United Kingdom, Scotland, Germany, Australia, New Zealand, Mongolia, Greece, Ecuador and France in a joint statement, The International Lesbian and Gay Association, The International Commission of Jurists, CUC Netherlands, the Joint United Nations Programme on HIV/AIDS and Canadian HIV Legal Network.

The Council will resume the interactive dialogue on arbitrary detention and the human rights of internally displaced persons at 3:00 pm.

Documentation

The Council has before it the study of the High Commissioner on Human Rights documenting discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity (A/HRC/19/41).

Opening Statements

The panel first heard a video address from BAN KI-MOON, United Nations Secretary-General, which can be watched

LAURA LASSERRE DUPUY, President of the Human Rights Council, said that today’s panel should be an opportunity to facilitate a constructive, informed and transparent dialogue on the issue of discriminatory laws, practices and acts of violence against individuals based on the sexual orientation and gender, and to identity and generate greater agreement among States on the way forward.

BAN KI-MOON, United Nations Secretary-General, said that he understood that sexual orientation and gender identity were sensitive subjects, but there was a need to speak out because lives were at stake and because it was a duty of States to protect human rights. There was a pattern of violence and discrimination directed at people just because they were lesbian, gay, bisexual or transgender; people were imprisoned, tortured and even killed. It was a monumental stain on the collective conscience and a violation of international law to which the Human Rights Council must respond. The Secretary-General told those who were lesbian, gay, bisexual and transgender persons that they were not alone, that he stood beside them, and that the struggle to end violence and discrimination was a shared one. A historic shift was under way and more States saw the gravity of the problem. The High Commissioner’s report pointed the way forward and the international community must tackle violence, ban discrimination and educate the public.

The Secretary-General’s address can be watched via the link.

NAVI PILLAY, High Commissioner for Human Rights, said she was conscious of the divergent view both within and outside the Council on the rights of individuals based on sexual orientation and gender identity, but it was time to acknowledge that terrible violence and discrimination had been perpetrated against lesbian, gay, bisexual and transgender people. Last June the Council stood up for the rights of all when States from all regions jointly adopted resolution 17/19 which expressed “grave concern at acts of violence and discrimination, in all regions of the world, committed against individuals because of their sexual orientation and gender identity.” The same resolution requested the High Commissioner to prepare a study on such discrimination and acts of violence. The High Commissioner said her study described some forms of violence, as well as provisions for asylum for those fleeing persecution on grounds of sexual orientation and gender identity. It considered discriminatory laws with particular regard to three areas: laws criminalizing same-sex sexual relations between consenting adults, the application of the death penalty, and arbitrary arrest and detention. It also described discriminatory practices in areas such as employment, health care and education as well as restrictions on freedom of expression and discriminatory practices in the family and community. The study also referred to some of the emerging responses recorded at a national level, and offered conclusions and recommendations.

A clear pattern had emerged of targeted violence and discrimination, in all regions of the world, directed at people because they either were, or were perceived to be, lesbian, gay, bisexual or transgender. Commonly reported incidents included targeted killings, violent assaults, and acts of torture including sexual violence. Many States lacked systems for recording and reporting hate crimes against lesbian, gay, and bisexual and transgender persons. There were reports of gay men being attacked by assailants shouting homophobic insults and left for dead in the street. Lesbians were subjected to gang rape, sometimes characterized as so called ‘corrective rape.’ Transgender persons were sexually assaulted and stoned to death, their bodies so disfigured as to be rendered virtually unrecognizable. There were reports of abuse carried out in police and prison cells – including cases of a lesbian couple beaten by police officers and sexually assaulted, and a transgender woman, placed in an all-male prison and raped more than 100 times, sometimes with the complicity of prison officials. Employers had fired or refused to hire or promote someone because there were gay or lesbian and in schools children as young as eight or nine were subjected to homophobic harassment, intimidation and physical attacks. Within some families, adolescent children were thrown out of the home and disowned by their parents and there were even reports of so-called ‘honour killings’ of gay sons and lesbian daughters.

At least 76 countries had laws that either explicitly criminalized same-sex relations between consenting adults or contained vague prohibitions applied in a discriminatory way to persecute lesbian, gay, bisexual and transgender persons. Those laws breached international human rights law. Human rights defenders working on lesbian, gay, and bisexual and transgender issues had also faced discriminatory restrictions. The balance between tradition and culture on the one hand and universal human rights on the other should be struck in favour of rights. The study proposed three actions: that States improve their response to homophobic and transphobic violence; that discriminatory laws be replaced with laws that provided adequate legal protection to people at risk of homophobic or transphobic discrimination; and recognition that prejudice underlay all violence and discrimination and that eliminating prejudice could not only be done by changing laws but also by changing people’s hearts and minds. Today was a historic opportunity for the Human Rights Council to begin a new chapter in the history of the United Nations, dedicated to ending violence and discrimination against all people, irrespective of their sexual orientation and gender identity.

ABDUL MINTY, Permanent Representative of the Republic of South Africa, acting as moderator of the panel, asked the panellists about the impact of certain customs, practices and laws on the human rights of lesbian, gay, bisexual and transsexual persons, and whether such customs, practices and laws were in compliance with international law.

Statements by the Panellists

LAURENCE HELFER, Co-Director of the Centre for International and Comparative Law at Duke University, United States, said that all human being were born equal in rights. The Universal Declaration of Human Rights did not exclude any individual or groups, and certainly not lesbian, gay, bisexual and transsexual persons. The High Commissioner’s report said that discrimination and violence on the ground of sexual orientation and gender identity existed everywhere and in different forms. All countries had to act. The United Nations human rights system, including Special Procedures and Treaty Bodies, through General Comments, had been addressing the issue of discrimination and violence against lesbian, gay, bisexual and transgender persons for many years; it was not a new topic at the United Nations.

HANS YTTERBERG, Chairperson of the Council of Europe Expert Committee on Discrimination on Ground of Sexual Orientation and Gender Identity, said violence and discrimination against lesbian, gay, bisexual and transgender persons occurred everywhere in the world. Threats and violence formed part of the everyday lives of lesbian, gay, bisexual and transgender persons, as well as violations to their right to a private life, freedom of expression, peaceful assembly, to work, or to education. States were not only obliged to abstain from interference to those rights, but also to actively protect and support lesbian, gay, bisexual and transsexual persons and associations.

IRINA KARLA BACCI, Vice-President, National Council for Lesbian, Gay, Bisexual And Transgender Persons in Brazil, said that today 76 countries still had laws which criminalized same sex relations between consenting adults. There were also countries which had undergone legal reform, but where violence continued; additional legal reform and cultural transformation of society were urgently needed. Lesbian, gay, bisexual and transgender persons were often kicked out of their homes, had lower education levels, lived in sub-human conditions and were often relegated to the margins of society. Many violations could not be considered as public crimes as they took place in private; for example a recent study found that in Brazil discrimination was greater in communities, families and schools. It was critical to continue to transform culture in public spaces, but also to reach private spheres.

HINA JILANI, Chair of the Human Rights Commission of Pakistan and former Special Representative of the Secretary-General on human rights defenders, appreciated the initiative to hold the panel; it was of utmost importance to discuss the serious issues raised in the High Commissioner’s report. Without such discussions the stark realities depicted in the report would continue to exist unchecked. No one denied that there were challenges; States not only had to fulfil their obligations under international treaties, but also those emanating from their own Constitutions, such as the right to full respect of human dignity. A large volume of documentation of abuse and human rights violations based on sexual orientation and gender identity pointed towards the violation of basic and fundamental human rights and freedoms; laws on identity had obstructed the right to citizenship and related rights. There were no exceptions to the application of universal human rights, and all Governments had a duty to ensure those laws and rights were applied, and that perpetrators of human rights violations were ultimately brought to justice.

Discussion

Argentina, speaking on behalf of the Common Market of the South (MERCOSUR), said that a sub-working group in the human rights infrastructure of the MERCOSUR block had been created to address acts of violence and discrimination based on sexual orientation and gender identity. Pakistan, speaking on behalf of the Organization of the Islamic Cooperation, said that it had consistently and firmly opposed the controversial notion of sexual orientation, which was vague and misleading, had no agreed definition and no legal foundation in international law. Licentious behaviour promoted under the concept of sexual orientation was against the fundamental teachings of various religions including Islam. Legitimizing homosexuality and other personal sexual behaviours in the name of sexual orientation was unacceptable to the Organization of the Islamic Cooperation. The European Union said that the issue was not about creating new rights for certain people but about ensuring that all human rights could be enjoyed by all human beings regardless of their sexual orientation or gender identity, and asked the panellists to elaborate on the role of the media in combating negative stereotypes and discrimination.

Mauritania, speaking on behalf of the Arab Group, said that it was against the subject of sexual orientation and that debate on the issue would lead to further discord among Member States and undermine the Council’s effective response to human rights issues. Attempts to impose the controversial topic of sexual orientation were aimed at creating new rights for specific cultural values which would have negative affects on social structures. Senegal, on behalf of the majority of the Member States of the African Group, reaffirmed the importance of respecting cultural and religious values when it came to dealing with human rights issues, and rejected any attempt to impose concepts or notions on certain behaviours which did not fall into the internationally agreed set of human rights. Nigeria stated that no citizen was at risk of violence because of their sexual orientation or gender identity. Nigeria had passed a bill banning same-sex marriage, and did not want other States to enforce their cultural values abroad.

Russia said that discrimination was forbidden in Russia, including on the ground of sexual orientation and gender identity, although it believed it was not appropriate to raise a new legal regime, which would lead to further blurring of international human rights standards. Cuba, said that discrimination and violence against any individual was unjustifiable, that included discrimination on the grounds of sexual orientation and gender identity, but confrontation on the international level had to be avoided, and instead dialogue should be promoted. Norway and Uruguay commended the dedication of South Africa to lesbian, gay, bisexual and transgender rights, and reiterated a call for an end to violence or discrimination. Uruguay said that sexual orientation and gender identity were controversial issues within the Council. However, all Member States were obliged under international law to protect all people against violence and discrimination, including lesbian, gay, bisexual and transsexual persons.

Honduras said it had made legislative progress, including effective implementation of the prohibition of discrimination on the ground of sexual orientation and gender identity. Ecuador said that its current Constitution had greatly advanced protection of transgender persons against violence or discrimination, and that homophobic, racist or sexist violence were criminalised in domestic legislation. Sweden said that all Governments had to ensure that their policies did not lead to discrimination on the ground of sexual orientation and gender identity, and that it would work actively at the international level for the prohibition of discrimination or violence against lesbian, gay, bisexual and transsexual persons. Greece said that it had adopted a domestic anti-discrimination law explicitly addressing the issue, and that sexual orientation would be included in the field of application of a law against xenophobia. Greece and Austria believed there could be no justification on discrimination or violence on the ground of sexual orientation and gender identity, and that there was a clear obligation for States to prevent discrimination on the basis of sexual orientation and gender identity.

Australia was concerned about the significant rates of violence and discrimination occurring against lesbian, gay, bisexual and transsexual persons worldwide. Germany said that repression against lesbian, gay, bisexual and transsexual persons was part of the Nazi ideology, and that Germany was now committed to put an end to violence and discrimination on those grounds. Ireland said the panel discussion was an opportunity for the Council to fully implement its mandate for the promotion of human rights for all. Ending violence and discrimination against lesbian, gay, bisexual and transsexual persons required long term dialogue to raise awareness among the population. Israel fully supported the recommendations contained in the report and called upon all countries that criminalised same sex relationship to repeal their laws. Thailand regretted that discussions on the issue had created a division among the member states of the Council, and said that discrimination on the basis of sexual orientation was explicitly prohibited in the Constitution of Thailand, although more measures, including awareness raising campaigns, were needed. Switzerland said that violence and discrimination against lesbian, gay, bisexual and transsexual persons continued to be a problem, including in Europe. Non discrimination was a fundamental right.

Human Rights Institutions from the United Kingdom, Scotland, Germany, Australia, New Zealand, Mongolia, Greece, Ecuador and France, made a joint statement in which they acknowledged the sensitivity of the issue and supported the High Commissioner’s report, which stated the fact that violence and discrimination against lesbian, gay, bisexual and transsexual persons were violations of human rights instruments already accessed by all United Nations Member States. The International Lesbian and Gay Association, said, on behalf of human rights associations working in the field of sexual orientation and gender identity, it was time for the Human Rights Council to develop a monitoring mechanism to address the situation of lesbian, gay, bisexual and transsexual persons. The International Commission of Jurists, in a joint statement, said that everyone, including lesbian, gay, bisexual and transsexual persons, had a right to all rights, simply because they were human, and that the Vienna Declaration said States had a duty to promote human rights for all. CUC Netherlands said that transgender persons existed everywhere, and were part of all cultures and countries, but were beaten and victims of other types of violence. Governments often refused to provide them with papers representing their identity, and health and justice systems failed transpeople in many ways. International human rights organisations had a duty to protect the rights of transpeople.

Response from the Panel

LAURENCE HELFER, Co-Director of the Centre for International and Comparative Law at Duke University, United States, addressed the main obstacles preventing the effective protection of the human rights of lesbian, gay, transsexuals and bisexuals, which were a lack of information about the full scope of human rights violations, and consistent use of prejudices and stereotypes, which also led to a lack of information. References had been made to the fact that concepts about gender identity and sexual orientation were vague. Whether the concept of sexual orientation was defined or not, it was necessary to recognize that men and women were being persecuted and it needed to stop. All Member States should consider the detailed and careful recommendations provided by the High Commissioner, while the Council should hold a regular discussion and exchange of views on the topic. All Special Procedure holders should continue to investigate the issue of sexual orientation and gender identity according to their respective mandates.

HANS YTTERBERG, Chairperson of the Council of Europe Expert Committee on Discrimination on Ground of Sexual Orientation and Gender Identity, said a serious obstacle was that flagrant violations of human rights law went unnoticed and unpublished, but also unpunished. It was of paramount importance that homophobic crimes were investigated and that perpetrators were prosecuted and appropriately punished. The Council should regularly deal with the subject, not on an ad hoc basis, and it was very important to have an integrated approach. The issues were at the heart of the human rights agenda, and that was where they should remain. Mr Ytterberg quoted former United Nations Secretary-General Kofi Annan, who once said it had struck him that the only people he heard speak of cultural differences, traditional values and differing views on human rights were Governments.

IRINA KARLA BACCI, Vice-President, National Council for Lesbian, Gay, Bisexual And Transgender Persons in Brazil, said that the report of the High Commissioner had highlighted a score of human rights violations against lesbian, gay, bisexual and transgender persons, and in Brazil alone, between 2010 and 2011 over 200 lesbian, gay, bisexual and transgender persons had been murdered; Brazil had the highest number of murders of transsexuals. Numbers of killings of lesbian, gay, bisexual and transgender persons were increasing both in the region and the world, while some persons experienced extreme brutality within their families. Without networks mobilized to identify those violations, no one would know the scale of the systemic violence; many acts went unseen and not included in various Government statistics. The Council should prepare a special report on human rights violations experienced by lesbian, gay, bisexual and transgender individuals.

HINA JILANI, Chair of the Human Rights Commission of Pakistan and former Special Representative of the Secretary-General on human rights defenders, said it was very important to emphasize that a serious obstacle was the persistent denial of protection for people from violence on the basis of sexual orientation and gender identity. That denial and rejection was not prudent for any Government that claimed commitment to the promotion and protection of human rights. It was not convincing when culture and religion were used as a shield and an excuse for failure to protect. There was no notion of responsibility that allowed duty bearers to selectively hold out on protection. The rule of law could only be strengthened when linked to justice, and the judiciary played a very important role. Human rights defenders were also vital, and it was essential to protect them and enable them to fulfil their responsibility as civil society actors.

Discussion

United States, said that gay rights were human rights and human rights were gay rights, and recalled the recent address in Geneva by Secretary of State Hillary Clinton on that subject. The United States noted that 76 countries still criminalized consensual same-sex relationships or conduct, five under penalty of death, and asked the panel to comment on how the protection of human rights of lesbian, gay, bisexual and transgender persons was fully compatible with the protection of human rights for all individuals. The Republic of Korea said that the international community must prohibit and prevent any violence and related human rights violations based on sexual orientation and gender identity, and asked the panellists about the most appropriate steps that could be taken by the Human Rights Council as a follow-up to today’s discussion. Portugal was concerned about the pattern of human rights violations based on sexual orientation and that the death penalty was often imposed for those persons. Mexico said that the debate was not about sexual orientation but about discrimination and urged the use of a gradual approach to bring all Member States together.

France said that it was unacceptable that lesbian, gay, bisexual and transgender persons had been victims of harassment, acts of torture and arbitrary arrests that occurred with impunity. In 2010, France and Norway set up a fund to support non-governmental organizations engaged in combating human rights violations against lesbian, gay, bisexual and transgender persons. Finland said it supported the recommendations in the report to establish systems for monitoring, recording and reporting incidents and asked the panellists to share their views on the best way for the Council to regularly follow those human rights violations. United Kingdom said that decriminalization of same sex acts was an essential first step for driving cultural and societal change. In the United Kingdom, crimes were now recorded in a way that provided a much clearer idea of the scale of the violence and discrimination based on sexual orientation in order to implement targeted measures. Estonia said that it had adopted and implemented comprehensive anti-discrimination legislation including a gender equal treatment act that prohibited discrimination on the grounds of sexual orientation in working life.

Nicaragua said that it had decriminalized sexual acts between same sex adults and had carried out awareness-raising activities to promote greater tolerance. Education was a fundamental tool to change perceptions that led to discrimination based on sexual orientation. The Council of Europe said that although same sex acts had been decriminalized all over Europe, discrimination based on sexual orientation still occurred, and a human rights based approach was needed to counter discrimination. Netherlands said that fighting discrimination and violence were goals everyone could subscribe to, while Croatia was convinced that committed and targeted common efforts in combating discrimination on grounds of gender or sexual orientation would soon bring tangible results. The Joint United Nations Programme on HIV/AIDS expressed hope that the Human Rights Council would find a mechanism to continue today’s dialogue. Canadian HIV Legal Network, in a joint statement, said that African lesbian, gay, bisexual and transgender activists didn’t ask for any special rights, but simply asked their Governments to live up to their obligations under the international law and their own national Constitutions.

Concluding Remarks

ABDUL MINTY, Permanent Representative of the Republic of South Africa, acting as moderator of the panel, said there should be no discrimination and no violence against people based on their gender identity or sexual orientation. Speakers had referenced the Ubuntu spirit of South Africa, which was essentially: I am because you are. It conveyed the message that everyone was linked by their common humanity, and everyone had an obligation to protect each other according to the fundamental principles of human rights.

MARIA NAZARETH FARANI AZEVEDO, Permanent Representative of Brazil, asked whether it was acceptable to discriminate against someone based on colour. She would reply no and believed most would agree with her. Was it acceptable to force someone to live on the margins of society, without work, healthcare, education and other benefits because of skin colour, nationality or religious beliefs? She would reply no and believed most of the Council would say no as well. Therefore, was it acceptable to discriminate or humiliate someone based on sexual orientation? Again, Ms. Azevedo would reply no, and she hoped all would agree with her. Today was not an exceptional or landmark panel. It was business as usual. Government and civil society were united and inspired by the same desire to promote and protect human rights, and while there could be differences in the approach, the basic principles were the same.

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For use of the information media; not an official record