Mixed bag in global fight for sexual identity equality
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.