Classification of the recommendations by level of acceptance

Of the 1,110 SOGIESC recommendations received, 413 have been accepted and 697 noted. This rate is relatively low in comparison to the overall acceptance rate of UPR recommendations, which is 74 per cent.

83 The Romanian Constitutional Court has approved a citizen’s initiative that might change the constitutional definition of family to essentially prevent any future recognition of same-sex relationships, and this may be the way Romania plans to implement the recommendation. ILGA EUROPE, Romanian Court Gives Green Light to Constitutional Referendum Proposing Discrimination against Same-sex Couples (ILGA Europe 2016).

84 Karen Atala Riffo & Daughters v Chile (Merits, Reparations and Costs Judgment). IACtHR, Series C No 239 (24 February 2012), para 176.

Figure 6: percentage of SOGIESC recommendations accepted and noted at the UPR

Noted 63%

Accepted 37%

2.4.1. Ratio of accepted and noted recommendations by regional groups

Figure 7: percentage of accepted SOGIESC recommendations by regional groups

WEOG 15.5%

Africa 10.17%

Asia 15.74%

EEG 37.05%

GULAC 21.55%

It is commendable that 108 of the 162 states under review that have received a SOGIESC

recommendation have accepted at least one, and 50 states have noted all of their recommendations.

Another positive trend is that noting some SOGIESC recommendations has not prevented states under review from accepting others. Further, 78 states under review have accepted more than one SOGIESC recommendation. With 17 accepted recommendations, Mongolia has accepted most SOGIESC recommendations, followed by Serbia and Honduras with 15 each.

Most states do not appear to take a blanket approach to either accepting or noting SOGIESC recommendations.

‘That shows that there is openness to dialogue; that most states are open to accepting at least some recommendations. The idea of the UPR is to try to find entry points where states can voluntarily commit to implementing certain measures, to address human rights issues, so in that sense it is important to note that more than two-thirds of states that received SOGI-related recommendations accepted at least one of them. That is also important to highlight, and not just the ratio.’ (Officer of a UN body)

Recommendations on investigation and/or prosecution of crimes committed, for example by law enforcement officers, have the highest rate of acceptance, at 70 per cent.⁸⁵ Sixty-three per cent of recommendations calling for awareness-raising/education programmes on LGBTI/SOGIESC have also been accepted. Recommendations on decriminalisation have the lowest rate of acceptance, at only 5.95 per cent, corresponding to 15 countries.⁸⁶

Forty per cent of recommendations that called for adopting anti-discrimination laws protecting LGBTI persons have been accepted. This may, therefore, be considered as an entry point for states where criminalisation is still on the horizon. However, it appears that only states that were planning to decriminalise same-sex relationships, such as Nauru, have also accepted anti-discrimination laws recommendations. Two notable exceptions are Kenya and Liberia, which have simultaneously received an anti-discrimination law and a decriminalisation recommendation, and have noted both.

States have also mentioned that noted recommendations are frustrating:

‘[But] this is the process. We must understand that this will take a long time... We can talk to the state under review bilaterally in a space of confidentiality. We can build trust. We believe in this process and we are talking about an issue. We have 193 countries and this is a difficult issue for every one of them, even in our country. At least we are raising those concerns. We are opening up a space for dialogue. We are creating momentum for even more dialogue and we can take advantage of this. This is why the UPR is so important, because this is the space where we can openly raise these concerns, register them and afterwards we can simply talk about those with all countries. It is frustrating, but it always gives us hope, because we know that is going to be a long process, but the process is on its way. A few years ago, you would not have this kind of opportunity to do this in a constructive way; now we have this structure, this mechanism, and it provides us with some hope.’ (GRULAC recommending state)

Civil society has also agreed that states should accept more SOGIESC recommendations, but regardless of the response of the state, civil society has used recommendations, statements or

responses made by the state under review to achieve their goals or to find entry points with their own government:

85 For example, this type of recommendation includes: US to Antigua and Barbuda: ‘Condemn acts of violence and human rights violations committed against persons because of their sexual orientation or gender identity and ensure adequate protection for those human rights defenders who work on the rights of LGBT persons’; Australia to Iraq: ‘Ensure all reports of human rights violations including those against religious and homosexuals, are investigated and prosecuted’; or Canada to St Lucia: ‘Ensure that thorough investigations of allegations of acts of violence committed against individuals because of their sexual orientation or identity are promptly conducted’.

86 Chile, Guyana, India, Lithuania, Mongolia, Nauru, Palau, Peru, Russian Federation, Samoa, São Tomé and Príncipe, Seychelles, Solomon Islands, Turkey and Ukraine.

‘We will do advocacy on the recommendations anyway, even though they were noted by the previous government. We have talked to many members of this new government and they seemed to be open-minded. Last year, we did a lot of advocacy with them and they were supportive.’ (Hla Myat Tun, Colors Rainbow, Myanmar – cisgender gay man)

‘We will try to do advocacy even if the government just noted the recommendations. We will use the points we raised to do advocacy with the government. We do not expect them to suddenly change their position overnight. It would not happen. We want to take the next few years to make changes though, so that in the future when we decide to talk about 377A [Section of the Singapore penal code criminalising sex between mutually consenting adult men], it will not sound like it came out of nowhere.’ (Bryan Choong, Oogachaga & Pink Dot joint team, Singapore – cisgender gay man)