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ECONOMIC AND SOCIAL COUNCIL
COMMISSION ON HUMAN RIGHTS
Sixtieth session
Item 6 of the provisional agenda
RACISM, RACIAL
DISCRIMINATION, XENOPHOBIA AND ALL FORMS OF DISCRIMINATION:
HIV/AIDS,
SEXUAL ORIENTATION, GENDER IDENTITY
AND
NON-DISCRIMINATION
Written statement submitted
by Canadian HIV/AIDS Legal Network,
a non-governmental
organization in special consultative status
[
A. Introduction/Overview
1. The
Canadian HIV/AIDS Legal Network (“the Network”) affirms the principles of the
Vienna Declaration and Program of Action that human rights are universal,
indivisible, interdependent and interrelated, and welcomes the work of the UN
Commission on Human Rights in recognizing the importance of the protection of
human rights in the context of HIV and AIDS.
2. The
Network affirms the importance of non-discrimination in protecting the human
rights of all vulnerable groups, but wishes to place particular emphasis in
this written statement on the human rights of gays, lesbians, bisexuals and
transgendered people.
3. This
statement first examines the connection between non-discrimination and
effective responses to HIV/AIDS, and then 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 is already
established in international human rights law.
4. Finally,
we underline the importance of gender identity inclusion, and conclude with
concrete recommendations that the Commission on Human Rights adopt resolutions affirming the
right of lesbians, gays, bisexuals and transgendered people to be protected
from discrimination, and calling for a study by the Office of the High Commissioner for Human Rights on human rights
violations based on sexual orientation and gender identity.
B. Importance of Non-Discrimination in
Addressing HIV/AIDS
5. The
Network shares the Commission’s expression of concern in CHR resolution 2003/47
that “in many countries, many people infected and affected by HIV, as well as
those presumed to be infected, continue to be discriminated against in law,
policy and practice”. The Network
welcomes the resolution’s recognition that stigma and discrimination continue
to be “obstacles to an effective HIV/AIDS response” as well as the Commission’s
call for States to “take all necessary measures to eliminate stigmatization of
and discrimination against those infected and affected by HIV/AIDS, especially
for women, children and vulnerable groups”.
6. As
the International Guidelines on HIV/AIDS and Human Rights (further recognized
in CHR resolution 2003/29) make clear, the protection of human rights is
essential to safeguard human dignity and ensure an effective, rights-based
response to HIV/AIDS.[1]
7. Similarly, the
UNGASS Declaration of Commitment on HIV/AIDS[2]
notes that “stigma, silence, discrimination and denial … undermine prevention,
care and treatment efforts” and commits States, by 2003, to adopt “measures to
eliminate all forms of discrimination against and to ensure the full enjoyment
of all human rights and fundamental freedoms by people living with HIV/AIDS and
members of vulnerable groups.”
8. While
the Network emphasizes the importance of eliminating discrimination against all
vulnerable groups affected by HIV and AIDS – including women, children, those living in poverty, minorities,
indigenous people, migrants, refugees and internally displaced persons, people with disabilities,
prisoners, sex workers, men who have sex with men and injecting drug users –
the focus of this written statement is on the elimination of discrimination
against gays, lesbians, bisexuals and transgendered people. We recognize also that different grounds of
vulnerability intersect and that gays, lesbians, bisexuals and transgendered
people experience the world differently depending on their sex, race, age,
class, socio-economic status, dis/ability, culture, religion, language and
other factors.
9. The
Network recognizes that preventing the transmission of HIV is complex, and
requires the creation of an environment in which people are free to acknowledge
their sexual identity, to seek information and get information, to experience
the support of peers and role models, to receive services that fit (rather than
exclude) their experiences, to see themselves written into (rather than out of)
culture, knowledge, and society. For gays, lesbians, bisexuals and
transgendered people, preventing HIV transmission requires eliminating
discrimination based on sexual orientation and gender identity.
C. Recognition by UN Mechanisms of
Non-Discrimination on Grounds of Sexual Orientation and Gender Identity
10. In
recent years, there has been an increasing recognition by the UN Treaty Bodies
and Special Procedures of the ongoing violations of the human rights of gays,
lesbians, bisexuals and transgendered people, and the importance of measures to
address these rights violations.
11. In
2001, the interim[3]
and final[4]
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.
12. The
Special Rapporteur on violence against women, its causes and consequences has
also affirmed[5]
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
recognized that lesbians and gay men constitute "members of a particular
social group" for the purposes of refugee recognition. This has been recognized in the domestic law
of numerous States.
13. Building
on successive reports of the Special Rapporteur on extra-judicial, summary or
arbitrary executions, the Commission on Human Rights has three times adopted
resolutions[6]
which affirm the right to life of all persons, including on the ground of
sexual orientation.
14. The
Committee on Economic, Social and Cultural Rights has affirmed the principle of
non-discrimination on grounds including sexual orientation,[7] as
has the Committee on the Rights of the Child.[8]
15. The UN
Human Rights Committee has found that "... the criminalization of
homosexual practices ... by driving underground many of the people at risk of
infection ... would appear to run counter to the implementation of effective
education programmes in respect of HIV/AIDS prevention".[9]
The Committee noted that the term "sex" in article 26 of the Covenant
includes "sexual orientation".
16. As
noted by the Working Group on Arbitrary Detention,[10]
the Committee subsequently called on States not only to repeal laws
criminalizing homosexuality, but also to include in their constitutions the
prohibition of any discrimination based on sexual orientation.[11]
17. In a
communication involving a claim by a surviving gay partner to equal recognition
under pension legislation, the Committee affirmed that the obligation of
non-discrimination in the ICCPR extends to sexual orientation.[12]
18. On
D. Importance of “Gender Identity”
Inclusion
19. The
Network also wishes to draw particular attention to the importance of affirming
the principle of non-discrimination on the ground of gender identity. Transgendered people face particularly severe
human rights violations in countries around the world. The Special Rapporteur on torture and other
cruel, inhuman or degrading treatment or punishment has noted cases in which:[14]
- male-to-female transsexual women have been beaten intentionally,
causing implants to burst and releasing toxic substances into their
bodies;
- ill-treatment against sexual minorities is believed to have also
been used in ‘social cleansing’ campaigns;
- members of sexual minorities have received inadequate
medical treatment in public hospitals on grounds of their gender identity.
Prisoners diagnosed as suffering from gender dysphoria are often said to
be denied medical treatment for gender dysphoria, such as hormone therapy;
- Transsexual and transgendered persons, especially male-to-female
transsexual inmates, are said to be at great risk of physical and sexual
abuse by prison guards and fellow prisoners if placed within the general
prison population in men’s prisons.
20. Despite
many similarities in the abuse experienced by lesbians, gays and bisexuals, and
by transgendered people, the language of “sexual orientation” is insufficient
to protect transgendered people.
Different language is necessary to adequately ensure recognition and
protection on the basis of each of these different grounds.
E. Recommendations:
21. The
Canadian HIV/AIDS Legal Network urges the Commission on Human Rights:
a)
to adopt a resolution recognizing that lesbians, gays, bisexuals
and transgendered people are entitled to the full enjoyment of their human
rights and fundamental freedoms without discrimination;
b)
given that the principle of non-discrimination applies to
the equal enjoyment of all human rights, to incorporate language affirming
non-discrimination on the grounds of sexual orientation and gender identity
throughout relevant resolutions under consideration by the Commission across a
range of agenda items;
c)
to support resolution E/CN.4/2003/L.92 on human rights and
sexual orientation, which was deferred from the 59th session of the Commission
on Human Rights, and which affirms the basic principle that lesbians, gays and
bisexuals are entitled to enjoy the same human rights as other human beings;
d)
to explicitly affirm the principle of non-discrimination on
the ground of gender identity;
e) to request that the Office of the High Commissioner for Human Rights
gather information concerning human rights violations based on sexual
orientation and gender identity, and make recommendations concerning the
obligations of States to promote and protect human rights on these grounds.