On March 7, the UN Human Rights Council is due to hold its very first panel discussion on “discrimination and violence based on sexual orientation and gender identity.” Not much of an accomplishment for this international institution charged with “strengthening the promotion and protection of human rights around the globe,” I think. But I know the way there was arduous.
The panel discussion was requested in a Council resolution, along with a report on discrimination and violence against LBGTI people, in June 2011. The resolution passed with only a very slim margin—23 in favor, 19 against, and 3 abstentions. Considering that some of the members of the Council are among the most homophobic countries in the world—Mauritania, Nigeria, and Saudi Arabia all maintain the death penalty for same-sex relations in their law books—this is perhaps not very surprising. Nevertheless, it is sad to say the least that this is the current state of affairs.
Although the resolution was hard to get through the Human Rights Council, the report prepared by the UN High Commissioner for Human Rights is an interesting read. Drawing on the Yogyakarta Principles the report states very clearly—and provides ample evidence—that international treaty law has progressed to protect LGBTI persons from discrimination. But the report makes it equally clear that the implementation of these norms has been a tragic farce. For example, at least 67 countries still criminalize same-sex relations (76 according to a report by ILGA—The International Lesbian, Gay, Bisexual, Trans and Intersex Association) , while at the same time the International Covenant on Civil and Political Rights prohibits discrimination on the basis of sexual orientation in access to Covenant rights—at least since the Toonen v. Australia case in 1994 when the Human Rights Committee decided that this is an obligation under the treaty.
Unfortunately the Human Rights Council has become another venue where states argue—without much resistance—that gay rights is Western imperialism, culturally and religiously unacceptable in the rest of the world. Of course, we know that this is not true but sexual and gender minorities from countries that still criminalize same-sex relations rarely have an opportunity to make their voices heard. And when they do this can be at great personal cost. An excellent exception is The Outlawed Amongst Us, a 2011 report by the Kenya Human Rights Commission about the LGBTI community in that country. The many personal testimonies of rape, violence, death threats and disease make the report a horrifying read, but important for anyone who wants to understand what this community is dealing with. The report also refutes the idea that homosexuality, and thus gay rights, was forced on Africa by white colonialists or Islamic slave-traders.
I like to think that the 2011 resolution by the Human Rights Council represents some degree of progress, and that we will see more of it during the session in March. On a positive note, at least a few states accepted to decriminalize same-sex relations during the Council’s so-called Universal Periodic Review (UPR) process. Unfortunately, they were mostly tiny countries like Palau, Nauru, São Tomé and Príncipe, and Seychelles. Many other states agreed to improve enforcement of or introduce antidiscrimination legislation, and to better tackle homophobic violence. The full record of implementation, however, is unclear at this point.
Moreover, gay rights have got a few new champions at the UN. The United States is one of them. Despite many problems at home—including discriminatory laws, a spate of suicides among LGBT teens, and hateful political rhetoric—the Obama administration has made a commendable effort to introduce concerns for LGBT communities into its foreign policy. Other countries, like South Africa and Cuba, also seem to be slowly, slowly moving in the right direction.
I’m keeping my fingers crossed for March 7, but my expectations are small. Unfortunately, LGBTI people continue to be murdered, raped, and harassed—sometimes by the government that is supposed to protect them—while the UN is unable to unanimously decide whether these crimes actually violate human rights at all.