For proponents of the principle that everyone is entitled to the same human rights irrespective of their sexual orientation or gender identity, February 2012 started disappointingly:
On 7 February 2012, a Bill was tabled in the Liberian legislature aimed at criminalising all same sex sexual conduct. On the same day, the Anti-Homosexuality Bill (2009) was reintroduced in the Parliament of Uganda. The following week, Gambian President Yahya Jammeh reiterated his stance against homosexuality and in favour of stricter laws prohibiting same-sex relationships. At the same time, Uganda’ Ethics Minister busied himself with the forceful closure of a meeting organised by Freedom and Roam Uganda, an association that lobbies for the recognition of same-sex relationships in Uganda.
One recent encouraging law reform process, is the Draft Penal Code, which is currently before parliament in Angola. The draft Penal Code prohibits the threat to commit a crime aimed at a person’s physical integrity, personal liberty, freedom and sexual self-determination. The penalty for such threat would be aggravated if the threat is directed at a person because of sexual orientation. The draft law also penalises discrimination on the basis of sexual orientation in the workplace. Significantly, and as a prime example of how States should incorporate international law, the draft Penal Code prohibits crimes against humanity, including widespread or systemic attacks and persecution for reasons of sexual orientation.
The end of the month will hopefully mark a historical milestone for the recognition of the rights of LGBTI on an international level. The United Nation’s Human Rights Council will embark on its 19th session sitting from 27 February to 23 March 2012. At the Human Rights Council’s session in June 2011, it passed a historic Resolution on Human Rights, Sexual Orientation and Gender Equality. The absence of a universal understanding of human rights by States was apparent when the Resolution was finally adopted after a vote with 23 States in favour of the Resolution, 19 against, and 3 abstaining.
The UN Resolution emphasises the universality and interrelatedness of the human rights enshrined in the Universal Declaration of Human Rights and other human rights instruments including the International Covenant on Civil and Political Rights. The Human Rights Council sees itself as responsible for “promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in fair and equal manner” and it accordingly expressed “grave concern at acts of violence and discrimination, in all regions of the world, committed against individuals because of their sexual orientation and gender identity.”
In preparation for the forthcoming Human Rights Council session, where a response to the human rights abuses faced by LGBTI will be further debated, the United Nations High Commissioner for Human Rights has compiled a Report on the discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity.
The Report makes for grim reading. International law has, for nearly 2 decades already, incorporated ‘sexual orientation’ as a prohibited ground of discrimination under the Universal Declaration on Human Rights and the International Convention on Civil and Political Rights. States are accordingly obliged to protect individuals from discrimination on the basis of their sexual orientation. Yet, the reality in many States is far removed from international law and the Resolutions passed by international bodies – even in States which have ratified the International Covenant on Civil and Political Rights, such as Uganda, Gambia, and Liberia, to name but a few.
The UN High Commissioner’s Report notes that homophobic and transphobic violence has been recorded in all regions of the world. The Report defines such physical and psychological violence as gender-based violence “driven by the desire to punish those seen as defying gender norms”. The UN High Commissioner recommends that Member States proactively and responsively deal with violence committed against people on the basis of their sexual orientation and gender identity. The Commissioner also urges States to repeal laws used to criminalize individuals for engaging in consensual same-sex conduct and to ensure that other criminal laws are not used to harass or detain people based on their sexuality or gender identity and expression.
It is thus important to note the Human Rights Council debate is taking place within an extremely hostile context. Increasingly, politicians are resorting to measures such as hate speech and criminalisation of LGBTI to promote their own career ambitions and divert attention away from the multitude of problems facing their governments. The coming Human Right Council session nevertheless represents an important opportunity for States which supported the Resolution to highlight the discrimination and abuse faced by many people across the world based on their sexual orientation and gender identity, and the need for meaningful commitment from States to acknowledge and act against such discrimination and abuse.