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.
Introduction
Who we are:
Ø
We are
writing to you on behalf of a coalition of international NGOs and domestic
organisations from every geographic region represented on the UN Commission on
Human Rights (“CHR”), to urge you to support the Brazilian resolution on sexual
orientation.
Ø
This
briefing kit was prepared through the joint efforts of an international
Steering Committee struck at a consultation in
Ø The Steering Committee has been liaising with
a growing network in support of the resolution, involving representatives from
about 40 countries including Egypt, Kenya, Nigeria, South Africa, Uganda, Zimbabwe, China/Hong Kong, Fiji, India, Israel, the Republic of Korea, Malaysia, Nepal, Pakistan, the Philippines, Sri Lanka, Thailand, Croatia, Russia, Argentina, Brazil, Chile, Colombia, Costa Rica, Ecuador, Honduras, Mexico, Australia, Austria, Belgium, Canada, France, Germany, Italy, the Netherlands, New Zealand, Sweden, Switzerland, the UK and the USA.
Background to the Resolution:
Ø In April 2003, the Brazilian
delegation to the UN CHR introduced a historic resolution on “human rights and
sexual orientation” (Resolution L.92). [2]
Ø This resolution affirms the
universality of human rights and the basic principle that lesbians, gays and
bisexuals are entitled to the same human rights protection as other human
beings.
Ø The resolution was
co-sponsored by a broad range of States, including Austria, Belgium, Brazil,
Canada, Croatia, Cyprus, the Czech Republic, Denmark, Finland, France, Germany,
Greece, Ireland, Italy, Liechtenstein, Luxembourg, the Netherlands, New
Zealand, Norway, Poland, Portugal, Serbia and Montenegro, Slovenia, Spain,
Sweden, Switzerland and the United Kingdom of Great Britain and Northern
Ireland.
Ø At the 59th
session of the CHR, a motion to take no action on the resolution was rejected,
but the CHR ultimately voted to defer discussion of the resolution until the
60th Session in 2004. The issue is
therefore likely to be prominent at this year’s CHR.
Ø Lesbians, gays, bisexuals and
transgendered people face persistent human rights violations on a daily basis,
and this resolution is urgently needed.
We know that your country is respectful of human rights principles and
we trust that we can count on you to uphold the universality of human
rights. At the very least, we hope that
no State will oppose the resolution, which would send a devastating message
that lesbians, gays, bisexuals and transgendered people are not worthy of basic
human rights and that those who abuse our human rights can do so with impunity.
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
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
Ø In
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
Ø In
Ø In
Ø In the
Ø In
Ø In
Ø In
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 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:
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.