André du Plessis: LGBTI Activity at the UN in 2014-2015

The article appeared in ILGA’s State Sponsored Homophobia 2015. A World Survey of Laws: criminalisation, protection and recognition of same-sex love.

Looking back and looking forwards: what’s been going on at the UN on SOGIE and intersex

The question “What’s the UN doing on LGBTI rights?” is a tricky one to answer simply because the simple acronym ‘UN’ hides a huge, complicated and multi-faceted family of organisations and fora that operate on any number of issues. The General Assembly in New York is certainly ‘the UN’, but so is the World Health Organization’s representation in Argentina or UNDP’s country office in Bangladesh. As such, this short article offers a bird’s eye overview of the central concerns for SOGIE and intersex issues at the UN over the past year.

It’s a good time to pause and take stock because 2014 was a big year for Sexual Orientation, Gender Identity, Gender Expression (SOGIE) and Intersex issues at the UN. And already 2015 is proving to be another milestone year. The big question is: ‘how do we leverage this – the world’s premier intergovernmental organisation – to make significant changes that will assist LGBTI persons the world over to live in the fullness of their human rights?’

SOGI Resolution Take Two

After more than three years of waiting since the first Sexual Orientation and Gender Identity (SOGI) resolution at the UN Human Rights Council brought by South Africa in June 2011, there was finally a second resolution brought in September 2014 by Brazil, Chile, Colombia and Uruguay.

The statistics from the vote count are encouraging. The resolution passed with the support of States from all regions. It also did so this time with an absolute majority of the Council (the previous resolution passed because of government abstentions and absences). There was also a substantial increase in the margin of success. With 47 States able to vote, it went from a vote margin of 4 in 2011 to a margin of 11. We are seeing a change in governments’ views: The Philippines and Viet Nam were welcome new ‘yes’ votes. Benin, Congo, Kazakhstan and Sierra Leone all abstained or were purposefully absent: these are all States that had voted ‘no’ on similar issues in the past. It is progress, but this incremental pace of change is felt as painfully slow to those whose human rights are being violated on a daily basis.

Of course, the resolution’s ‘ask’ was a modest one: an updated report by the UN. This is now imminent (to be delivered in June 2015), and civil society will be closely watching for the High Commissioner’s recommendations to the Human Rights Council. That will set the tone for the next resolution, which is expected during 2016.

Family, Executions and Tradition

Of course there are many other resolutions at the UN that impact LGBTI persons and not just this one specifically on SOGI. Some have been outright hostile, while others are more positive.

In June 2014 we saw Egypt leading a “Protection of the Family” resolution that explicitly refused to include wording recognising the diversity of family forms. While there is, thankfully, nothing specifically excluding such forms, the track we are on is a dangerous one: governments edging towards a ‘national sovereignty’ argument on family forms, with each State deciding for itself what a family means.

Thankfully, at the General Assembly in New York, there was growing support for the recognition that governments must investigate and prosecute those responsible for extrajudicial, summary, and arbitrary executions no matter what group is a target.  That includes those targeted on the basis of their sexual orientation or gender identity.

Another (4^th since 2009) Russian-led ‘Traditional Values’ resolution was not brought during 2014 as expected, but such a formulation could re-emerge at any point.

The Secretary General

In the first part of 2015 we saw the Russian Federation fail in a bid to stop UN staff benefits applying to same-sex couples. While this is not an action with global consequences, it was evidence of a government using LGBTI persons as a political tool in a more general attempt to undermine the authority of the UN Secretary-General. It’s a stark reminder of just how open to attack LGBTI persons are in international politics. We continually have to remind governments we are not pawns in a power game.

We are also drawing near to the end of Ban Ki Moon’s term as Secretary General on 31 December 2016. This year and 2016 will be years when the shortlist for his successor is drafted, followed by elections. Ban has been a staunch supporter of the human rights of LGBTI persons and we will be looking for an equally supportive successor.

Our bodies, our health

The International Classification of Diseases 11^th Revision is due by 2017 and we will likely see moves to important reclassifications of identities and conditions that matter to LGBTI persons. Already in 2014, we saw a beta draft from the Working Group including two newly proposed categories: ‘Gender incongruence of adolescence and adulthood” and “Gender incongruence of childhood’ which would be part of a new chapter on “Conditions related to sexual health”. This takes trans-related issues out of ‘mental and behavioural disorders’ category.

Similarly, we are hopeful that the variations in sex characteristics will also be depathologized in this revision – a development that would have significant positive impacts for intersex persons as a way to discourage medical practitioners from carrying out mutilating and ‘normalising’ practices such as genital surgeries, psychological and other medical treatments.

Separately, the World Health Organization will no doubt continue to be a place where the human right to health for all will be fought over by diplomats. With plans for a LGBT health resolution currently shelved, during 2015 and 2016 we can expect there to be real changes in approach.

Bread & Butter

Of course, a lot is happening away from the ‘landmark moments’ of the UN. We see that in the various country reviews that take place. The most famous of these processes is the Universal Periodic Review (UPR), and we are seeing big increases in recommendations relating to the human rights aspects of human sexuality.

We do see some changes in how countries respond to the UPR recommendations: Zambia, the Russian Federation and Barbados are all examples of countries where not everything to do with SOGI has been rejected (recorded as ‘noted’) and there have been progressive ‘acceptances’ (for example, to do with training of public servants). Much of this is down to hard work by, and strong collaboration between, civil society actors.

Similarly, the UN human rights treaty bodies are making recommendations to countries reviewed under their various mandates. For example, the early-2015 review of Switzerland by the Committee on the Rights of the Child highlighted that non-consensual intersex surgery was a harmful practice and “a kind of violence to children”. And in March 2015, the Human Rights Committee expressed concern about reports of discrimination, harassment, threats to physical integrity and intimidation against persons because of their sexual orientation, and made multiple recommendations to the government.

Further, the UN’s ‘Special Procedures’ experts are consistently raising LGBTI-relevant issues. In March 2015, the Special Rapporteur on Freedom of Religion or Belief highlighted the violence against LGBT persons carried out in the name of religion, providing opportunities for progressive faith and human rights groups alike to make headways on these issues. Similarly, in September 2014 the Special Rapporteur on Water and Sanitation highlighted the violence in accessing water and sanitation that LGBTI persons face, often linked to deeply entrenched stigmatization.

These are just a few examples. Significant wins like this are happening frequently in the UN human rights system. Naturally, in all these situations the real news is when these recommendations lead to actual change at country levels. There is evidence that what happens at the UN can help bring about change on the ground. Of course more can and should be done to make that connection.

Nobody left behind

There will be a lot of pomp and ceremony at the UN Sustainable Development Summit in New York in September (2015) when governments will finally agree the Sustainable Development Goals (SDGs) – the set of targets relating to future international development, replacing the Millennium Development Goals (MDGs) that expire at the end of this year.

We are unlikely to find explicit references to SOGIE in the goals themselves. Much work will relate to the establishment of indicators: how these development goals will be measured, and that will continue into 2016. A key cross-cutting principle is likely to be “leaving no one behind” and there will be significant work to ensure that LGBTI persons are both universally recognised as marginalised groups, and that there be consequent commitment to eliminate discrimination in national development plans.

Other Anniversaries

2015 is not just the anniversary of the MDGs. It is also the 20^th anniversary of the UN Women’s Conference in Beijing. In the Commission on the Status of Women (CSW) in March this year, there was bitter disappointment when the Beijing+20 declaration by governments was a weak, formal declaration. While in other parts of the United Nations issues of sexual orientation are discussed openly – as well as in Beijing itself – the same cannot be said for the CSW.

2016 will see the 10-year anniversary of the Yogyakarta Principles – on the application of international human rights law to the specific situations of LGBTI persons. This moment presents an opportunity to consider their impact in different legal systems, and various policy environments, around the world, and how they can best guide action in meeting the needs that LGBTI persons face today.

Into the future

So looking into a SOGIE and intersex crystal ball of 2015 into 2016, what can we expect to see at the UN?

There will be increasing debate over the definition and protection of the family. Parts of the UN will also start to better address the question of children who are facing stigma and discrimination on the basis of their gender expression, their intersex status or their actual or perceived sexual orientation or gender identity.

With increased attention on these issues, we can expect to see an increase in extreme religious and conservative voices painting an inaccurate and hate-filled picture of LGBTI persons. This will prompt more moderate faith and non-faith voices to speak up and present visions of acceptance and tolerance that should, I think, be our real and collective traditional values of humankind.

With the development agenda so clearly in flow, we will also see an increase in attention to the rights that really matter for many LGBTI persons: economic, social and cultural rights. There will be increasing emphasis that we are not only fighting for non-discrimination in the provision of these rights, but also that we have a right to these rights: to water, to healthcare and to education. In that light, our struggle is linked with that of so many others.

It was against the background of all this activity at the UN that ILGA moved its headquarters to Geneva in May 2014. Being present in the human rights capital of the world has enabled us to be physically present at the table when important decisions are made and, more importantly, to facilitate the input of LGBTI groups into the policy and legal changes being developed at the UN (which we do through frequent notifications and support through the UPR and other processes). An office in Geneva firmly plants ILGA – the family of LGBTI organisations from around the world – as a human rights-based organisation.

With more and more opportunities available to LGBTI advocates at the multilateral level, ILGA is developing capacity to better-engage with parts of the UN system that have been covered less: the work of the UN treaty bodies such as the Committee on the Rights of the Child, and the Committee on Economic, Social and Cultural Rights are some examples where we will put significant resources in place during 2015. There are many other opportunities of course that present themselves on a near-daily basis: developing relationships between ILGA member organisations and UN agency country offices, working with the UN High Commissioner for Refugees, engaging with the International Labour Organization, as well as increased collaboration with UNAIDS and the Global Fund.

And by being in Geneva and part of the international human rights movement, we are also applying in our daily work the principle that all human rights are interconnected: the principle that “I am not truly free while another group remains oppressed”.

And that takes us to a final theme: intersectionality. There will, I believe, be increasing attention given to understanding the human rights challenges faced by LGBTI persons in our wider contexts and identities, giving fuller recognition that our experiences are linked not only to our sexual orientation and gender identity, but also our colour, race, religion, class, HIV status, gender expression, age, and many more.

In all of this, the crucial point is of course to ensure that change that happen at the UN reflect the changes that LGBTI communities actually want. And that everything that is done ‘at the UN’ is continually rooted in how it can assist change in our communities. The UN does not exist for the UN. It exists for ‘we, the peoples’ and our collaborations can help to ensure it delivers.