The international legal framework protecting the rights of LGBTI persons

The UPR was set up as a new mechanism aimed at fostering the implementation of states’ human rights obligations. As presented in the following paragraphs, by the time the UPR started the interpretation of these obligations had been consolidated by international human rights experts, notwithstanding the polarisation of states around the topic.

22 List of the five top issues at the UPR: 1. international instruments (20.69 per cent); 2. women’s rights (18.41 per cent); 3. rights of the child (17.22 per cent); 4. justice (7.9 per cent); 5. torture and other CID treatment (7.51 per cent). Source: UPR info statistics www.upr-info.org accessed 9 September 2016.

1.2.1. International legal developments for the protection of LGBTI persons

At the core of the international human rights law framework are the principles of equality and human dignity. The 1948 Universal Declaration of Human Rights enshrined in its preamble the

‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family’ as the ‘foundation of freedom, justice and peace in the world’. All human rights instruments are to be read and interpreted in light of these underlying principles.

Intrinsically linked to these principles, the principle of non-discrimination is embodied in the Charter of the United Nations; the Universal Declaration of Human Rights; and all the core human rights treaties.²³ The specific grounds for discrimination referred to in these instruments are not exhaustive.²⁴ The drafters intentionally left the grounds of discrimination open by using the phrase

‘other status’.

Sexual orientation and gender identity – like disability, age and health status – have progressively been added to the list of prohibited grounds by treaty bodies, charged with the interpretation of these instruments. Most notably, in 1994, the Human Rights Committee (HRCtee) spelled out in the Toonen case²⁵ the principle of non-discrimination on the ground of sexual orientation. In the general comments²⁶ adopted since then, the Committee on Economic, Social and Cultural Rights (CESCR);²⁷ the Committee on the Rights of the Child (CRC);²⁸ the Committee Against Torture (CAT);²⁹ and the Committee on the Elimination of Discrimination against Women (CEDAW)³⁰ explicitly included the prohibited grounds of sexual orientation and gender identity in the implementation and

interpretation of the treaty they are respectively tasked to monitor.

23 Universal Declaration of Human Rights (Art 1); International Covenant on Civil and Political Rights (Art 26); International Covenant on Economic, Social and Cultural Rights (Art 2); Convention on the Elimination of all Forms of Discrimination against Women (Art 1);

International Convention on the Elimination of all Forms of Racial Discrimination (Art 1.1); Convention on the Rights of the Child (Art 2);

and Convention on the Rights of Persons with Disabilities (Art 2).

24 See n16 above.

25 Toonen v Australia Human Rights Committee (31 March 1994) Communication no 488/1992, UN Doc CCPR/C/50/D/488/1992 (1994).

26 General comments are defined as ‘a treaty body’s interpretation of the content of human rights provisions, on thematic issues or its methods of work. General comments often seek to clarify the reporting duties of state parties with respect to certain provisions and suggest approaches to implementing treaty provisions. Also called “general recommendation” (CERD & CEDAW)’. See Glossary of treaty body terminology

www2.ohchr.org/english/bodies/treaty/glossary.htm accessed 9 September 2016.

27 CESCR, ‘General Comment n 22: Right to sexual and reproductive health’ (Art 12) (2016) UN Doc E/C.12/GC/22, para 9. CESCR, ‘General Comment n 20: Non-discrimination in economic, social and cultural Rights (Art 2, para 2)’ (2009) UN Doc E/C.12/GC/20, para 32. CESCR,

‘General Comment n 19: Right to Social Security (Art 9)’ (2008) UN Doc E/C.12/GC/19, para 29. CESCR, ‘General Comment n 15: Right to Water (Arts 11 and 12)’ (2002) UN Doc, E/C.12/2002/11, para 13. CESCR, ‘General Comment n 14: Right to the highest attainable standard of health (Art 12)’ (2000) UN Doc E/C.12/2000/4, para 18. CESCR, ‘General Comment n 18: Right to Work (Art 6)’ (2006) UN Doc E/C.12/GC/18, para 12.

28 CRC, ‘General Comment n 13: Right of the child to freedom from all forms of violence’ (2011) UN doc CRC/C/GC/13, para 72. CRC,

‘General Comment n 4: Adolescent health and development in the context of the Convention on the Rights of the Child’ (2003) UN Doc CRC/GC/2003/4. CRC, ‘General Comment n 3: HIV/AIDS and the rights of the child’ (2003) UN Doc CRC/GC/2003/1.

29 CAT, ‘General Comment n 3 (Art 14)’ (2012) UN Doc CAT/C/GC/3, para 8.

30 CEDAW, ‘General Recommendation n 28 on the core obligations of States parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women’ (2010) UN Doc CEDAW/C/GC/28, para 18. CEDAW. ‘General recommendation n 27 on older women and protection of their human rights’ (2010) UN Doc CEDAW/C/2010/47/GC.1, para 13.

In so doing, the Committees align the interpretation of the core international treaties with the growing amount of national³¹ and regional³² jurisprudence protecting the rights of LGBTI persons.

Looking only at regional and international legal instruments, a number of soft law³³ instruments were adopted, especially in Europe.³⁴ However, it is only in 2013 that the concepts of ‘sexual orientation’,

‘gender identity’ and ‘gender expression’ were altogether incorporated for the first time in a legally binding instrument, the Inter-American Convention against all Forms of Discrimination and Intolerance.³⁵

At the political level, the process has been more hectic. In 2003, the Brazilian government presented to the Human Rights Commission³⁶ a draft resolution on sexual orientation and human rights.

The proposal stirred a debate that became highly contentious, with particular opposition from the Organisation of Islamic Cooperation (then Organisation of the Islamic Conference – OIC). The vote was postponed until the 2004 session of the Commission and Brazil eventually withdrew the resolution. In 2005, 32 states made the first-ever joint statement on sexual orientation and human rights in the Commission on Human Rights.³⁷

In 2006, in the context of a fragmented international framework and well-documented patterns of abuses, a number of distinguished human rights experts met in Yogyakarta, Indonesia. These experts consolidated into one document 29 principles built on the interpretation of international human rights law as it applies to people of diverse sexual orientations and gender identities. The Yogyakarta Principles (the ‘Principles’)³⁸ unfold the implications of the principle of non-discrimination on a comprehensive range of rights, from the most referred to by treaty bodies, such as the right to security, to the less referred to, such as the right to found a family.

Since the development of the Yogyakarta Principles, the political process has continued to unfold.

In 2006, 2008 and 2011, three further joint statements were made on sexual orientation, gender

31 See for instance: STJ–6, Resp No 395.904, Relator: Min. Hélio Quaglia Barbosa, 12 Dec 2005, para 2.2 138 (Brazil). Corte Constitucional, 16 Apr 2008, sent C-336/08 (paras 5.6–5.8); Corte Constitucional, 3 Oct 2007, sent C-811/07 (part 5); Corte Constitucional, 7 Feb 2007, sent C-075/07 (Dr Rodrigo Escobar Gil, dissenting opinion, part 6); Corte Constitucional, 15 May 2005, sent C-373/02 (Colombia). Pant v Nepal, Writ No 917 of the Year 2064 BS (2007 AD) (Nepal). Satchwell v President of the Republic of South Africa 2002 (6) SA 1 (CC) at 11, 23 (South Africa). Juzgado de Primera Instancia No 1 en lo Contencioso Administrativo del Departamento Judicial de La Plata [1a Inst], 9/3/2005 ‘Y., E. A. C/ Caja Pervisión y Seguro Médico de la Provincia de Buenos Aires S/ Amparo,’ www.scba.gov.ar/falloscompl/Infojuba/

ContenciosoEsp2/412.doc accessed 9 September 2016 (Argentina).

32 See for instance, Karen Atala Riffo & daughters v Chile (Merits, Reparations and Costs Judgment) IACtHR, Series C No 239 (24 February 2012); Homero Flor Freire v Ecuador, (Merits report n 81/13), IACHR Case 12.743 (4 November 2014); Angel Alberto Duque v Colombia, (Merits Report n 5/14) IACHR Case 12,841 (2 April 2014); Kozak v Poland App no 13102/02 (ECHR, 2 March 2010); Antonio Mata Estevez v Spain, App no 56501/00 (ECHR, 10 May 2001); Fernando dos Santos Couto v Portugal, App no 31874/07 (ECHR, 21 September 2010); Dudgeon v the United Kingdom, App no 7525/76 (ECHR, 22 October 1981); and ADT v the United Kingdom, App no 35765/97 (ECHR, 31 July 2000). For a comprehensive overview, see Frédéric Edel, Case law of the European Court of Human Rights relating to discrimination on grounds of sexual orientation or gender identity (Council of Europe 2015).

33 Soft law can be defined as ‘normative provisions contained in non-binding texts’. See Dinah Shelton, ed, Commitment and Compliance: The Role of Non-binding Norms in the International Legal System (OUP 2000), 292. For instance, most resolutions and declarations of the UN General Assembly, statements, principles, codes of conduct, codes of practice, action plans etc, are soft law instruments.

34 See for instance, Council of the European Union, ‘Guidelines to promote and protect the enjoyment of all human rights by lesbian, gay, bisexual, transgender and intersex (LGBTI) persons’ (Luxembourg 2013).

35 Organisation of American States, Inter-American Convention against all Forms of Discrimination and Intolerance (adopted 5 June 2013, not yet entered into force) A-69, Art 1, para 1: ‘Discrimination may be based on nationality; age; sex; sexual orientation; gender identity and expression; language; religion; cultural identity; political opinions or opinions of any kind; social origin; socioeconomic status; educational level; migrant, refugee, repatriate, stateless or internally displaced status; disability; genetic trait; mental or physical health condition, including infectious-contagious condition and debilitating psychological condition; or any other condition’.

36 The UN Commission on Human Rights was a governmental body created in 1946 and tasked with addressing human rights issues and developing standards for states on the matter. It was replaced in 2006 by the UNHRC.

37 Joint statement on sexual orientation and human rights delivered by New Zealand on behalf of 32 states, Commission on Human Rights, March 2005.

38 Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity (2007).

identity and human rights, supported respectively by 54, 67 and 85 states.³⁹ These proposals built a momentum for the first SOGI resolution at the Human Rights Council in 2011.⁴⁰ This was followed by two consecutive resolutions at the Human Rights Council in 2014⁴¹ and 2016.⁴² The latter established the mandate of an ‘independent expert’ on matters of protection against violence and discrimination on the basis of sexual orientation and gender identity.

1.2.2. The unique role of the Yogyakarta Principles in international law

The Yogyakarta Principles are not as legally binding on states as a treaty would be. Rather, the Principles aim to be a restatement of existing, binding international law. The Principles are just an articulation of rights already held in international law. The Principles may qualify as ‘the teachings of the most highly qualified publicists of the various nations’ and constitute as such, ‘subsidiary means for the determination of rules of law’.⁴³

In choosing to employ gender-neutral language, the Principles apply to all people, whether they choose an identity within a binary gender framework or outside of it. The Principles provide comprehensive guidance about the level of protection that states should apply to LGBTI persons.

Although the drafters of the Yogyakarta Principles did not specifically address the rights of intersex people, the Principles do identify the right to be free from medical abuses.⁴⁴

From a civil society perspective, the Yogyakarta Principles are a benchmark for the international protection of human rights in relation to SOGIESC. They occupy a unique role as a soft law instrument. At a different scale and with no legal force, a few international statements and declarations were made from the different groups of the LGBTI community. For instance, the 1996 Montreal Declaration was one of the first international declarations from the trans community. In 2013, during The Third International Intersex Forum in Malta, 34 human rights defenders, representing 30 intersex organisations from all continents, adopted a call to action (the ‘Malta statement’).

39 Joint statement on human rights violations based on sexual orientation and gender identity delivered by Norway on behalf of 54 States, Human Rights Council, December 2006. Joint statement on sexual orientation, gender identity and human rights delivered by Argentina on behalf of 67 states at the UN General Assembly, 2008. Joint statement on sexual orientation, gender identity and human rights delivered by Colombia on behalf of 85 states, Human Rights Council, 2006.

40 UNHRC, ‘Human rights, sexual orientation and gender identity’ (2011) UN Doc A/HRC/RES/17/19. Resolution 17/19 expressed grave concern and acts of violence and discrimination, in all regions of the world, committed against individuals because of their sexual orientation and gender identity. The resolution was passed by a vote of 23 to19 with three abstentions. It requested the OHCHR to prepare a study on discrimination based on SOGI (December 2011) and a panel discussion (March 2012).

41 UNHRC, ‘Human rights, sexual orientation and gender identity’ (2014) UN Doc A/HRC/RES/27/32. Resolution 27/32 was adopted by a vote of 21 to 14 with seven abstentions. It called on the OHCHR to update its 2011 report with a view to sharing good practices and ways to overcome violence and discrimination on the basis of sexual orientation and gender identity. The report was published in 2015.

42 UNHRC, ‘Protection against violence and discrimination based on sexual orientation and gender identity’ (2016) UN Doc A/HRC/RES/32.2.

Resolution 32/2 was adopted by a vote of 23 to 18 with six abstentions. The 2014 and 2016 Resolutions were preceded by two civil society joint statements, which were supported by 500 and 628 NGOs representing all regions.

43 Statute of the International Court of Justice, Art 38.1: ‘The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply... d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.’

44 Sheila Quinn, An Activist’s Guide to The Yogyakarta Principles (2010), 24-25 www.ypinaction.org/files/02/85/Activists_Guide_English_

nov_14_2010.pdf accessed 9 September 2016.

The Yogyakarta Principles have been referred to at international and regional levels,⁴⁵ as well as in national courts, especially in Asia.⁴⁶ The Indian⁴⁷ and Nepalese⁴⁸ landmark decisions highlighted what may well be the greatest success of the Yogyakarta Principles: confirming the integration of the term

‘gender identity’ into international law and the language of human rights.⁴⁹

Given the status of the instrument in all spheres, it is in light of the Yogyakarta Principles that the present report assesses the UPR recommendations related to SOGIESC.