Joint Oral Statement by the International Commission of Jurists and International Federation of Human Rights Leagues
For its last two sessions, the Commission on Human Rights (hereafter the Commission) has had on its agenda a draft resolution entitled "Human Right and Sexual Orientation" presented by Brazil.
In 2003, the Commission failed to act on the resolution because of filiibustering, including the
introduction of 55 "amendments" to the resolution, a no-action motion and the repeated use of points
of order. In 2O04, despite Brazil’s commitment to the issue, tremendous pressure from OIC states and
the Holy See led to the Commission postponing consideration of the drft Resolution to this year.
The International Commission of Jurists (ICJ) and the International Federation of Humans Rights Leagues (FIDH) believe that the debate on this question should be framed in terms of general human rights principles and the particular international obligations of States to prohibit discrimination on grounds of sexual orientation or gender identity, as enshrined in international human rights law.
Discrimination on the grounds of sexual orientation or gender identity gives rise to the most egregious
human dghts violations such as extrajudicial killings, ill-treatment, torture, and arbitrary detention. The
inability of the Commission to address such violations is indefensible, given that the Commission’s
own Special Procedutes, within their respective mandates, have extensively documented cases of human rights violations on the grounds of sexual orientation and gender identity. The work of the Special Procedures of the Commission, in particular the Special Rapporteur on Torture, the Working
Group on Arbitrary Detention, the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, the Special Rapporteur on Violence Against Women and the Special Rapporteur on the Right to Health show clearly that everywhere in the world, whatever the cultural ot religious
environment, human rights violations are perpetuated on the grounds of the real or perceived sexual orientation or gender identity of people. The Concluding Observations and Decisions of the UN treaty monitoring bodies, in particular the Human Rights Committee, reveal a similar pattern.
The work of the Commission special procedures and of the UN treaty bodies shows that discrimination on the grounds of the real or perceived sexual orientation or gender identity manifest itself at various levels:
– the criminalisation of sexual relationships between same-sex consenting adults or "unnatural
behavior", such as the manifestation of transgender behavior. The criminalization of sexual relationships between same-sex consenting adults ot "unnatural behaviour", such as the manifestation of transgender behaviours violates the right to privacy and the right to equal
protection of the law without discdmination. In some countries such acts are punishable with corporal punishments or the death penalty, impairing the right to be free from cruel, inhuman or degrading punishment and the right to life;
– In the criminal justice system. Victims of criminal offences suffer ftom discrimination because
of their sexual orientation or gender identity. Lesbian, gay, bisexual or transgender (LGBT) persons are often perceived as less credible by law enforcement agencies and the police often show a prejudice attitude towards such persons. The ICJ and FIDH are particulady concerned with killings committed on any discriminatory grounds, including
sexual orientation and the refusal of government officials to consider complaints introduced by LGBT victims, in particular in cases of abuses, ill treatment, including rape
or sexual assaults, torture, or sexual harassment. Even more disturbing is the disinclination of government officials or personnel to investigate promptly and thoroughly extrajudicial executions of LGBT persons, or the refusal to bring those tesponsible to justice and to ensure that such killings are neither condoned nor sanctioned by government officials or personnel;
– Discrimination against the author of a criminal offence. Alleged criminal offenders who are lesbian, gay, bisexual or transgender may be subjected to summary criminal procedures
short of fair trial guarantees and may receive harsher punishment, or be detained in worse conditions than those of other inmates. In some cases LGBT prisoners are sexually
abused by their inmates ot prison personnel, or even made sexual slaves, with the prison officials failing to take anv preventive measures or sanctions. Transsexual and transgender persons especially male-to-female, are particularly vulnerable when placed in men’s
prisons;
– Discimination in relation to the right to bealth and access to medical care, in particular after having been
victim of physical abuses or during detention. The ICJ and FIDH are also concerned at the practice of forced internment in psychiatric hospitals, where cruel, inhuman or degrading
psychiatric treatments are imposed on LGBT people to "cure" or "correct" them.
– The situation of LGBT people in the military. Conscripts may be compelled to undergo intrusive and degrading medical examinations on ground of their real or perceived sexual
orientation or gender identity. LGBT persons are barred from joining the military or expelled if their sexual orientation or gender identity is disclosed;
– Human Right Defenders working on LGBT issues are also particularly exposed to harassment and human rights violations. As highlighted by the Special Representative of the Sectetary General on Human rights Defenders, these groups are often vulnerable to prejudice, to
marginalization and to public repudiation, not only by State forces but by other social actors.
A major issue of concern that remains largely ignored is that of multiple discrimination: race, gender, disability, age, poverty and sexual orientation or gender identity. People suffering from multiple discrimination are even more exposed to human rights violations and even less in a position to claim their rights and to obtain remedies. For example, as high-lighted by the Special Rapporteur on Violence Against Women, lesbian women could "be targeted for rape specifically because of their sexual orientation in order for the aggressor to prove [the victim’s] womanhood".
The principle of non-discrimination is enshrined in numerous international instruments and has a wide scope of application. The principle of non-discrimination is embodied in the Charter of the United Nations (articles 1 (3) and 55), the Universal Declaration of Human Rights (articles 2, 7 and 10), the International Covenant on Civil and Political Rights (articles 2, 3, 14, 17, 25 and 26) and the
International Covenant on Economic Social and Cultural Rights (article 2). These provisions substantiate the principle of non-discrimination and reiterate the principle of equality before courts and tribunals, equality before the law and the right without discrimination to equal protection of the law.
The prohibition of discrimination is a cornerstone of human rights which underlies the human rights protection system set up by the United Nations.
The Human Rights Committee has recognised that the prohibition of discrimination in the International Covenant on Civil and Political Rights (article 2(1) and article 26) includes the prohibition of discrimination on the grounds of sexual orientation. The Committee on Economic, Social and
Cultural Rights has adopted a similar interpretation under article 2, paragraph 2 of the Covenant on
Economic, Social and Cultutal Rights.
Discrimination on the grounds of sexual odentation or gender identity may give rise to the most egregious violations, demonstrating that discrimination has consequences in the deprivation of enjoyment of all other guaranteed human rights. These include the right to life, right to liberty, right to a fair trial by an independent and impartial tribunal, right to privacy, freedom of conscience, freedom of opinion and expression, freedom of assembly and freedom of association, equal access to public
services, equality before the law and equal ptotection of the law, right to work, right to social security
including social insurance, right to the enjoyment of the highest attainable level of health, and right to
education. The social stigmatisation of human beings on the gtounds of their real or perceived sexual
orientation or gendet identity leaves them more exposed to violence and human rights abuses. This
social stigmatisation also increases the climate of impunity and indifference to human rights violations
committed against LGBT victims.
Under international human rights law States are obliged to abstain from carrying out any discrimination. Such obligation requires that states repeal all measures criminalizing sexual relationships between same-sex consenting adults or "unnatural behaviour". The State is also under the general obligation to protect, which entails taking measures to prevent third parties, including non-state-actors, from engaging in such discrimination and to take remedial measures. States must promptly and
thoroughly investigate cases of human tights abuses on grounds of sexual orientation or gender identity.
At the Vienna World Conference on Human Rights, all States made a solemn commitment to recognize and affirm that "all human rights derive from the dignity and the worth inherent in the human person" and that "all human rights are universal, indivisible and interdependent and
interrelated". While acknowledging that "the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind", they affirmed that "it is
the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms".
The Commission on Human Rights should take these commitments made by all UN members seriously and:
– Adopt a resolution on the prohibition of discrimination on any basis, including on the grounds of sexual orientation or gender identity and condemning discrmination and other human rights violations on such grounds;
– Remind States of their international obligation regarding the fight against discrimination, which includes the obligation to abstain from discdmination against people on whatever basis and the positive obligation to take remedial measures when discrimination occurs;
– Request relevant special procedures and mechanisms of the Commission on Human Rights as well as UN treaty bodies to examine, within their respective mandates, the question of discrimination and other human rights violations on grounds of sexual orientation or gender identity. It is time for the main human rights body of the United Nations to stop turning a blind eye to the serious human rights violations that take place on the grounds of the real or perceived sexual
orientation or gender identity. The Commission cannot let a group of persons particularly exposed to
human tights violations fall outside the scope of human rights protection.