UN Commission on Human Rights:

UN Commission on Human Rights:

Brazilian Resolution on Human Rights and Sexual Orientation

Government Briefing Kit

Contents

This briefing kit:[1]

Ø provides information about the Brazilian resolution on sexual orientation, and why it is important…………………………………………………………………...

p. 2

Ø gives examples of human rights violations against lesbians, gays, bisexuals and transgendered people…………………………………….……………………

p. 5

Ø sets out existing language by UN Treaty Bodies and Special Procedures which confirms that the right of lesbians, gays, bisexuals and transgendered people to be protected from discrimination and abuse is already established in international human rights law…………………………………………………..

p. 8

Ø provides examples of support for the resolution across cultures and regions..

p. 12

Ø provides examples of religious support for the resolution ………………………

p. 16

Ø underlines the importance of gender identity inclusion………………………….

p. 19

Ø provides concrete recommendations about actions States can take to support the basic human rights principles embodied in the resolution.………..

p. 21

Summary of Recommendations:

Specifically, we are asking States to make this resolution a priority, and support it to the greatest extent possible, by:

Ø co-sponsoring the resolution (all States can co-sponsor);

Ø voting in favour of the resolution (if a member of the CHR);

Ø speaking out in favour of the resolution, during the high level segment of the CHR, during informal negotiations, and during oral interventions and debates;

Ø supporting the inclusion of gender identity, and speaking publicly in support of this issue during the high level segment, during debate and/or by entering explanations of vote, as appropriate;

Ø being proactive in encouraging other States in your region, or with whom you have ties, to support the resolution.

Basic Principles underpinning the Resolution

About the resolution

The Brazilian resolution does no more than affirm the basic principle that lesbians, gays and bisexuals are human beings and are entitled to be protected from human rights abuses.

The language is a simple and clear recognition that lesbians, gays and bisexuals are seen as equal members of the human family and entitled to the human rights protection accorded to all human beings.

No new rights

A resolution on human rights, sexual orientation and gender identity would not define any new rights or novel standards. Instead, the resolution simply reaffirms the principles that lie at the core of international human rights treaties, and that have underpinned numerous decisions and reports by treaty bodies, UN Special Rapporteurs and the UN Commission on Human Rights itself.

Universality and non-discrimination

As recognised in the Vienna Declaration and Program of Action, human rights are universal, indivisible, interdependent and interrelated. The Vienna Declaration further provides that “human rights and fundamental freedoms are the birthright of all human beings; their protection and promotion is the first responsibility of Governments” and that “the universal nature of these rights and freedoms is beyond question.” [3]

The principles of universality and non-discrimination are intrinsically intertwined. The integrity of human rights and the work of the CHR itself are undermined if human rights can be denied to any marginalised group.

The resolution consolidates non-discrimination principles and underlines the universality of human rights. The drafters of the Universal Declaration of Human Rights stated explicitly that they considered the non-discrimination principle to be the basis of the Declaration, and the principles of non-discrimination and equality form part of the core values underpinning the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

Lesbians, gays, bisexuals and transgendered people come from all races, cultures and religions. They are entitled to protection against discrimination on the ground of their sexual orientation to the same extent as on the grounds of their race, gender or religion. Like human rights, human identity is indivisible, and the UN CHR cannot ultimately fulfil its mandate to protect human rights if a core component of human identity is left unprotected.

Why a resolution?

The resolution recognises that all are entitled to live in a society that fits (rather than excludes) their experiences, to see themselves written into (rather than out of) culture, knowledge, and society, to live free from discrimination and abuse based on sexual orientation and gender identity.

Regrettably, not all States accept the universal application of human rights principles to lesbians, gays and bisexuals. This lack of recognition creates a climate in which such intolerance and abuse can thrive unchecked. It is essential for the Commission to adopt a resolution affirming that human rights cannot be denied on the basis of sexual orientation or gender identity. Such a resolution is important not only to assist the UN in addressing violations that are often concealed in stigma and silence — but also to uphold the basic principle that human rights must be enjoyed equally by all people.

Adoption of the resolution will send a message that the UN’s own work in addressing human rights violations must be carried out in the spirit of core human rights principles, without discrimination and with respect for the equal dignity of all.

Conversely, rejection of the resolution would send a message that lesbians, gays and bisexuals are seen as less than human, and therefore not deserving of basic human rights. This would undermine the principle of universality by suggesting that some human beings are less worthy of human rights protection than others. Such a dangerous message would undermine the integrity of the CHR as a human rights body, and would establish a negative precedent that could be used to deny the human rights of any minority which can be depicted as unpopular or less than human.

Why now?

Many States from regions around the world have now begun to recognise that the human rights abuses regularly perpetrated against lesbians, gays, bisexuals and transgendered people cannot be reconciled with human rights principles. Consistent with rulings by international, regional and domestic tribunals, criminal sanctions are being repealed, and laws are being enacted to protect lesbians, gays, bisexuals and transgendered people from discrimination.

The UN Human Rights Committee has affirmed that the non-discrimination guarantees of the ICCPR extend to the ground of sexual orientation, and treaty bodies and special procedures have consistently recognised sexual orientation issues within their respective mandates.

Despite this substantial progress, however, human rights violations against lesbians, gays, bisexuals and transgendered people persist, and many States recognise the need to speak out clearly to safeguard the human rights of lesbians, gays, bisexuals and transgendered people.

The time has come to consolidate the progress that has been made, by adopting a resolution which clarifies that lesbian, gay, bisexual and transgendered rights are human rights, and should be explicitly included in the work of the CHR.

Evidence of Abuses of the Human Rights of

Lesbians, Gays, Bisexuals and Transgendered People

Despite substantial progress towards recognition of the equal rights of lesbians, gays, bisexuals and transgendered people both internationally and in countries around the world, lesbians, gays, bisexuals and transgendered people are subject to persistent human rights violations because of their actual or perceived sexual orientation and gender identity.

Throughout the world, lesbians, gays, bisexuals and transgendered people experience harassment, humiliation, verbal and physical abuse. More than 80 countries still maintain laws that make same-sex consensual sexual relationships between adults a criminal offence, and in at least 8 countries the maximum penalty is death.[4] In other countries, vaguely-worded and sweeping laws against “public scandals” or “indecent behaviour” are used to penalise people whose only crime is looking, dressing, or behaving differently from rigidly enforced social norms. In many countries, people detained on the basis of their sexual orientation or gender identity are tortured and ill-treated in police custody. Many people face violence in their own communities and families because of their sexual orientation or gender identity. Additionally, some countries treat homosexuality as a medical or psychological disorder and lesbians and gay men have been targeted for medical experimentation and forced psychiatric treatment designed to 'cure' their homosexuality.[5]

These persistent human rights violations have been well documented by UN Special Rapporteurs. For example:[6]

Ø Radhika Coomaraswamy, Special Rapporteur on violence against women, concluded in her 1997 report[7] that community restrictions on women’s sexuality result in a range of human rights violations, including flogging, stoning and death, for women who have relationships outside marriage, ethnic, religious or class communities or outside heterosexual expectations. In 2002, she acknowledged that lesbians are “punished severely” in the context of family violence, providing as an example the multiple rape of a lesbian in Zimbabwe resulting in her pregnancy.[8]

Ø Similarly, Asma Jahangir, Special Rapporteur on extrajudicial, summary or arbitrary executions, included a specific section in her 1999 annual report on the right to life and sexual orientation, in which she reported being “deeply concerned by numerous and consistent reports of persons having been killed or sentenced to death because of their sexual orientation.”[9] Her 2000, 2001, 2002 and 2003 reports similarly expressed concern about prison killings of gay men, death threats and murders based on sexual orientation.[10]

Ø In his 2001 interim and final reports,[11] Sir Nigel Rodley, then UN Special Rapporteur on torture, detailed human rights abuses against sexual minorities:

“Torture and discrimination against sexual minorities

17. For some years, the Special Rapporteur has received information regarding a number of cases in which the victims of torture and other cruel, inhuman or degrading treatment or punishment have been members of sexual minorities. He notes that a considerable proportion of the incidents of torture carried out against members of sexual minorities suggests that they are often subjected to violence of a sexual nature, such as rape or sexual assault in order to ‘punish’ them for transgressing gender barriers or for challenging predominant conceptions of gender roles.

18. The Special Rapporteur has received information according to which members of sexual minorities have been subjected, inter alia, to harassment, humiliation and verbal abuse relating to their real or perceived sexual orientation or gender identity and physical abuse, including rape and sexual assault.”

The report goes on to detail specific allegations of torture and other cruel, inhuman or degrading treatment perpetrated against lesbians, gays, bisexuals and transgendered people, including rape by police or prison authorities, state indifference to mistreatment by members of the general prison population, forcible confinement in medical institutions, “aversion therapy”, including electroshock treatment, and threats by authorities to disclose sexual orientation or gender identity as a means to intimidate lesbians, gays, bisexuals and transgendered people and deter them from pursuing their legal or constitutional rights.

The findings of these and other Special Rapporteurs are consistent with human rights abuses documented in every region of the world. Just some examples include:[12]

Ø In Saudi Arabia, nine young men were sentenced to lengthy prison terms and hundreds of lashes for homosexual behaviour; 24 Filipino workers were sentenced to flogging and deportation for homosexual behaviour; a transgendered person was sentenced to 100 lashes for moral deviancy;

Ø In London, UK, a nail-bomb explosion in a gay bar killed three people and injured dozens of others;

Ø In Peru, Venezuela and Costa Rica, hundreds of lesbians, gays, bisexuals and transgendered people have been detained in police raids on gay bars;

Ø Lesbians, gays, bisexuals and transgendered people detained by police in Ecuador have been tortured and sexually assaulted, and activists have received death threats related to their sexual orientation or gender identity;

Ø In Chile, 19 people were killed in the bombing of a disco’s gay night;

Ø In Afghanistan, men convicted of sodomy have been sentenced to death and executed by being buried alive under rubble as walls are toppled on them;

Ø In the U.S., Fredrick Mason, a black gay man was tortured by police officers in Chicago, who uttered racist and homophobic insults;

Ø In Russia, a lesbian seeking protection from police after assaults and homophobic threats by a neighbour was repeatedly raped by a police officer who threatened to arrest her if she did not comply;

Ø In Egypt, police raided the Queen Boat discotheque in Cairo and arrested 52 gay men on charges of the “habitual practice of debauchery”. The 52 men were tortured in detention, and jailed continuously until their trial. This case has been condemned by the Working Group on Arbitrary Detention;[13]

Ø In Zimbabwe, two members of a gay and lesbian group were arrested and handcuffed leaving a club. At the police station, one was threatened by a police officer who waved a gun at her, saying “our President doesn’t like people like you”. The other was beaten on the legs and chest. Police threatened to put them in with the male prisoners, saying “you will be the guys’ wife today”, unless they paid a fine for “public indecency”;

Ø In Nepal, community groups report regular incidents of assault and torture of lesbians, gays, bisexuals and transgendered people, including at the hands of police, family-members and members of the general public;

Ø In February, 2004, a Belgian gay man, Sébastien Nouchet, was sprayed with gasoline by neighbours, who then turned him into a human torch.[14]

In view of these widespread and recurring human rights abuses, which have been documented both by human rights NGOs and recognised by Special Rapporteurs and other Special Procedures, we urge States to be proactive in supporting the Brazilian resolution and affirming the human rights of lesbians, gays, bisexuals and transgendered people.

Recognition by UN Mechanisms of

Lesbian, Gay, Bisexual and Transgendered Human Rights

In recent years, there has been an emerging consensus by all the UN Treaty Bodies and numerous Special Procedures recognising the ongoing violations of the human rights of lesbians, gays, bisexuals and transgendered people, and the importance of measures to address these rights violations.

The Commission on Human Rights has itself three times adopted resolutions[15] which affirm the right to life of all persons, including on the ground of sexual orientation.

In addition, the following treaty bodies have all explicitly interpreted their treaty protections to include sexual orientation:[16]

the Human Rights Committee;[17]
the Committee on Economic, Social and Cultural Rights;[18]
the Committee Against Torture;[19]
the Committee on the Rights of the Child;[20] and
the Committee on the Elimination of Discrimination against Women.[21]

The Committee on the Elimination of Racial Discrimination has also adopted[22] a background paper prepared by Theo van Boven, member of the Committee, which affirmed that “many persons are suffering in a double sense as victims of accumulated discrimination: race and gender, race and sexual orientation, race and being handicapped, race and age etc.” [23]

Similarly, violations on the basis of sexual orientation have been acknowledged and condemned by a wide range of Special Rapporteurs, Independent Experts, Special Representatives, and Working Groups, including:

the Special Rapporteur on violence against women, its causes and consequences;[24]
the Special Rapporteur on extrajudicial, summary or arbitrary executions;[25]
the Special Rapporteur on torture and cruel, inhuman or degrading treatment or punishment;[26]
the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health;[27]
the Special Rapporteur on freedom of expression;[28]
the Special Representative of the Secretary-General on the situation of human rights defenders;[29]
the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance;[30]
the Special Rapporteur on the right to education;[31]
the Working Group on Arbitrary Detention;[32] and
the Special Rapporteur on the independence of judges and lawyers.[33]

Given the widespread recognition by UN Treaty Bodies and Special Procedures that lesbian, gay, bisexual and transgendered rights are human rights, the following synopsis provides a brief overview of this recognition, but does not purport to be comprehensive:

Ø In 2000, 2002 and 2003, the Commission on Human Rights included sexual orientation in its resolutions on extrajudicial, summary or arbitrary executions.[34] In addition, the CHR resolution on the death penalty in 2002 urged States that still have the death penalty “to ensure that … the death penalty is not imposed for non-violent acts, such as … sexual relations between consenting adults.”[35]

Ø Almost 10 years ago, in 1995, the Sub-Commission on Prevention of Discrimination and Protection of Minorities adopted a resolution recognising that “men who are homosexuals” are amongst those “persons suffering from disadvantaged economic, social or legal status” who “are more vulnerable to the risk of HIV infection owing to the lack of full enjoyment of their fundamental rights”, and calling upon States to take measures to combat this discrimination and ensure the full enjoyment of the rights of these disadvantaged groups.[36]

Ø In 2001, the interim[37] and final[38] reports of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment detailed specific allegations of abuses perpetrated against lesbians, gays, bisexuals and transgendered people, including rape by police or prison authorities, forcible confinement in medical institutions, electroshock treatment, and threats by authorities to disclose sexual orientation or gender identity as a means of intimidation.

Ø The Special Rapporteur on violence against women, its causes and consequences has also affirmed[39] the principle of non-discrimination on the ground of sexual orientation and noted that the Office of the United Nations High Commissioner for Refugees has recognised that lesbians and gay men constitute "members of a particular social group" for the purposes of refugee recognition. This has been recognised in the domestic law of numerous States.