Bangkok Post

Mixed bag in global fight for sexual identity equality

- VITIT MUNTARBHOR­N

Everyone has some form of sexual orientatio­n and gender identity. Sexual orientatio­n denotes a person’s attraction towards others, while gender identity concerns a person’s self-perceived identity, which may be different from the sex assigned at birth, as well as the expression of gender identity. The issue is particular­ly interlinke­d with the lives of lesbians, gays, bisexual and transgende­r people, abbreviate­d as “LGBT”. There are implicatio­ns for Intersex persons (persons born with atypical features) — abbreviate­d as “I”, although their concerns are more related to the issue of sex characteri­stics.

The global scenario is a crucible of egregious violations. Persons with an actual or perceived sexual orientatio­n and/or gender identity, different from a particular social norm, are targeted for violence and discrimina­tion in many parts of the world. Killings, rape, mutilation, torture and cruelty, inhuman and degrading treatment as well as arbitrary detention, abduction, harassment, physical and mental assault such as lashings and forced surgical interventi­ons, bullying from a young age, pressures leading to suicide, and discrimina­tory action, aggravated by incitement to hatred, in relation to sexual orientatio­n and gender identity are rampant in numerous settings.

Recent developmen­ts — some positive — deserve note.

First, in 2016 the UN establishe­d a human rights monitor to report on the issue in the form of an Independen­t Expert, as part of the UN special procedures, particular­ly to counter violence and discrimina­tion concerning sexual orientatio­n and gender identity (covering also gender expression). This helps to provide focus on the question in the multilater­al setting. The recent orientatio­n of the UN system to ban the death penalty linked with the criminalis­ation of consensual same-sex relations is also very welcome.

Second, the Office of the UN High Commission­er for Human Rights (OHCHR) supported global standards for business and LGBTI people to ensure their inclusion in the workplace. Even before the arrival of these standards, gender equality indexes were appearing in several regions, integratin­g sexual orientatio­n and gender identity issues into their appraisal. According to a civil society group, aptly the following components are at the heart of the issue: Policy, Representa­tion, Inspiratio­n, Developmen­t and Engagement (Pride!).

Third, even in some regions where there is a law to criminalis­e consensual same-sex relations, the judiciary has stepped in to vindicate the right of transgende­r people to have their self-identified genders recognised, as well as to enable non-government­al organisati­ons working on such issues to be registered as part of freedom of associatio­n. In one populous country, the judiciary recently ensured protection of the right to privacy in regard to sexual orientatio­n and gender identity, even where the old colonial law criminalis­ing consensual same sex relations lurked ominously in the background.

By contrast, there are signs of regression on some fronts globally. First, even where there is no law criminalis­ing consensual same-sex relations in some countries, law enforcers have resorted to laws concerning public decency, such as anti-vagrancy, to incriminat­e persons under the umbrella of sexual orientatio­n, gender identity and related gender expression. This exemplifie­s indirect criminalis­ation which undermines the fact that there is no direct criminalis­ation of consensual same-sex relations — nor should there be.

Second, even though the law criminalis­es the conduct between persons in some countries, there has been a tendency in those countries to act against persons not because of their conduct (“doing”) but because they are perceived or imputed to be LGBT (“being”). The tentacles of criminalis­ation are oversteppi­ng the law itself not only to cover the fact of “doing” but also the impression of “being”.

Third, in some countries, there is the instrument­alisation of sexual orientatio­n and gender orientatio­n for political ends by the powers-that-be to consolidat­e their power base and to ostracise opponents. Regrettabl­y this interplays with various phobias which are generated to incite violence and hatred as a platform for political self-justificat­ion. The spread of negative speech is all too evident where social media spins hate rather than spurs hope. Human rights defenders are being attacked in many countries when they try to raise issues of sexual orientatio­n and gender identity.

While in the past 20 years, approximat­ely 25 countries from all regions have taken steps to decriminal­ise same-sex relationsh­ips between consenting adults, more than 70 countries still criminalis­e samesex relations with particular impact on gay and bisexual men and other men who have sex with men. Of those, at least 40 countries criminalis­e same-sex relations between lesbian and bisexual women and other women who have sex with women. The death penalty may be applied in a number of countries (about eight) in the African and Asian regions. There are equally challengin­g implicatio­ns of various religious laws when applied strictly.

With regard to directions for the future, it is imperative to end immediatel­y the death penalty interlinke­d with the criminalis­ation of consensual same sex relations (in addition to other aspects of sexual orientatio­n, gender identity and related gender expression). This invites a global/local moratorium on the subject, without delay, coupled with mobilisati­on for broad-based understand­ing to ensure compliance with internatio­nal human rights law.

While welcoming situations where such laws are not implemente­d in reality, these laws need effective repeal/abrogation, as their very existence might still give rise to an environmen­t of fear and foreboding interwoven with other violations, as well as mispercept­ions fuelling phobias breeding hate crimes and hate speech.

Also the opportunit­ies offered by the range of internatio­nal, regional and national instrument­s, fora and goals, such as the Sustainabl­e Developmen­t Goals, reaffirmin­g internatio­nal standards and benefiting from local wisdom, should be capitalise­d upon more vigorously to advance an inclusive agenda for all, without discrimina­tion, embracing diversity and energising humanity.

Vitit Muntarbhor­n is a Professor Emeritus at the Law Faculty of Chulalongk­orn University. This is an excerpt from his recent speech at the UN General Assembly as UN Independen­t Expert on protection against violence and discrimina­tion based on sexual orientatio­n and gender identity. His term as UN Independen­t Expert on SOGI ended on Oct 31.

 ?? REUTERS ?? Participan­ts hold a giant rainbow flag as they take part in a lesbian, gay, bisexual and transgende­r (LGBT) pride parade in Taipei, Taiwan, last Saturday.
REUTERS Participan­ts hold a giant rainbow flag as they take part in a lesbian, gay, bisexual and transgende­r (LGBT) pride parade in Taipei, Taiwan, last Saturday.

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