International women’s human rights activists gathered in New York on Monday, March 9, 2009, to observe the 30th anniversary of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Organized by the Kuala Lumpur-based International Women’s Rights Action Watch-Asia Pacific and New Jersey-based the Center for Women's Global Leadership, the event featured a panel on the theme: Celebrating 30 Years of CEDAW: Achievements and Continuing Challenges Towards the Realization of Women's Human Rights. Featured speakers traced the origins of CEDAW and described its achievements, which occurred despite its “step-child” status in the United Nations system—denied the support, credibility and resources given to other treaty monitoring bodies. Speakers also addressed the impact the Convention has had on challenging governments and improving commitments to respect, defend and promote women’s human rights.
IGLHRC’s Asia Regional Coordinator, Grace Poore monitors how CEDAW provides protections to lesbians, bisexual women and transgender (LBT) people. At the March 9 event, she provided a global perspective about obstacles to the full implementation of CEDAW because of violations on the basis of non-heteronormative sexual orientation, gender identity and gender expression. The text of her speech, including her recommendations to the CEDAW Committee for greater inclusion and accountability to LBT people, are included below.
First adopted by the United Nations in 1979, CEDAW has been ratified by 185 countries that agree to uphold the principles of the Convention, designed to ensure that governments and quasi-governmental agencies work to achieve equality and nondiscrimination for women in their respective countries.
A Committee of independent women’s rights experts from 23 countries monitors how well or poorly countries are complying with the Convention. Country reviews take place three times a year in Geneva and New York, at which time the CEDAW Committee hears reports from governments and women’s non-governmental organizations (NGOs) about the advance or failure to advance women’s human rights. In 2008, for the first time in the CEDAW Committee’s history, lesbian activists gave a briefing on the impact of state and non-state violence and discrimination against LBT individuals. To facilitate the Committee’s deliberations on including sexual orientation and gender identity under the CEDAW mandate, IGLHRC compiled a special report which is available as attachment to this document (please see the right hand column).
What I’m going to talk about is the struggle within CEDAW to recognize that sexual orientation, gender identity and gender expression are grounds for human rights abuses.
The terms, lesbian, bisexual women and transgender persons are used mostly in the English language and primarily in the global North. However, alternative language is being developed to be more inclusive, more cognizant of the sexual and gender hierarchies, and to move away from the binaries of male and female, man and woman. In the absence of a concise term to describe women who express their sexual orientation and gender identity differently from prescribed heteronorms, I will be using the term, LBT persons or LBT individuals which is the abbreviation for lesbians, bisexual women and transgender people.
I'll start with the example of a young Burmese lesbian living and working in a factory in Mae Sod, Thailand, who went shopping with a male friend. Returning home that night, they were joined by several other men who worked at the same factory. Blocking her way, one of the men told her that she was beautiful, and said that it was a waste for her to be a lesbian. He urged his friends to take her to the paddy field and change her sexuality to be 'normal.' He grabbed her and told his friends to "cure this abnormal lesbian so she can enter womanhood." All six men raped her. The next day, the whole factory knew about the rape, but no one came to her defence. In tears, she asked why the community allowed these rapists to go unpunished, and blamed only her. 1
Bhakti Shah, a former corporal and trainer in the Nepal army with outstanding performance and who surpassed her male peers in all categories, was put into 60 days solitary confinement and subsequently discharged from the army. Her partner, a recently joined trainee, was sentenced to 45 days house arrest and subsequently discharged as well. Grounds for dismissal and punishment was lesbianism and corporal socializing with a cadet in living quarters, which was a code violation. Although Bhakti's roommates were always present when the girlfriend visited, and the two were never caught in sexual activity, the army has imposed double penalty—confinement and discharge. After postponing the hearing multiple times, the army decided in July 2008 that the 60 days confinement was unnecessary. However, there has been no reinstatement although Bhaki has already served the time. The army now says they were not punished for lesbianism but for breaking the army code of conduct although it is widely known that male officers frequent the rooms of junior female cadets and have not been penalized. 2
LBT individuals face discrimination as women (because of their sex and gender) and as sexual beings (because of their sexual orientation). Many LBT individuals face additional discrimination because of their class, ethnicity, age, race, economic status and disability status. In countries with sodomy laws, LBT women frequently remain closeted and lead double lives. When they experience discrimination or violence, they are less likely to report it or seek redress. In countries where homosexuality is criminalized, even if the law does not explicitly include lesbianism, the fear of state penalties, family rejection or community recrimination silences LBT persons. As a result, discrimination against women on the basis of their (actual or perceived) sexual orientation and/or gender identity is often underreported, if reported at all. Many government and shadow reports make no reference to LBT groups. But the fact is, when conditions are bad for heterosexual women, they are bad if not worse for women who are sexual minorities.
For example, LBT persons experience forced institutionalization in mental rehabilitation clinics, electro shock treatment as aversion therapy, sexual harassment in school and at work, threats of rape to make you straight, school expulsions, eviction by landlords, police kidnapping, family violence, media stigmatization. Lesbians face discrimination in the workplace because of their gender and their sexual orientation. Employment and job promotions are denied if women look too masculine. Male coworkers stalk and sexually harass lesbians who cannot report for fear of backlash and retaliation. Transgender persons are marginalized in their jobs, and are targeted for blackmail, harassment, and sexual violence from the community or people in positions of authority like the police. Activists who defend the rights of LBT individuals experience threats to their safety, in some cases, harassment, attacks, even torture and abuse, with police participating in or doing nothing to stop these violations.
Between 1994 and 2001, CEDAW explicitly referenced sexual orientation in several concluding observations relating to the criminalization of consensual sexual relations among women, anti-discrimination legislative protections, and asylum. But after 2001, CEDAW was silent on this issue and fell behind other treaty bodies in recognizing that non-heternormative sexual orientation and gender identity were grounds for discrimination and violence. During this silence, other UN treaty bodies and Special Rapporteurs, including the Special Rapporteurs on Violence Against Women talked about sexual orientation in relation to the right to work, the right to highest attainable standard of health, adolescent health and development, anti-discrimination legislative protections, repeal of criminalization of consensual same-sex sexual relations, anti-hate crime protections, being targeted for threats and violence, torture, murder, and rape.
Almost seven years after not responding to human rights abuses against LBT persons, CEDAW lifted the veil of silence at its 42nd session in October/November 2008. In concluding comments on Ecuador, the Committee addressed discrimination against sexual minorities and asked for an investigation by state authorities. In concluding comments on Kyrgyztan, the Committee expressed concerns about harassment and discrimination against women because of their sexuality, and urged the State to take appropriate measures to ensure that the CEDAW Convention applied to all women without discrimination and to offer protections from harassment and violence by public and private individuals. In January 2009, in concluding comments on Guatemala the Committee listed sexuality as one of the reasons women faced multiple forms of discrimination, and urged the State to take steps to address this problem.
While this step forward by the Committee is celebrated, inclusion of sexual orientation and gender identity by CEDAW is constantly challenged on the basis of legitimacy, with questions such as: Does the Convention apply to LBT individuals since CEDAW only covers discrimination against women? If all gay people face discrimination, is the discrimination faced by LBT persons greater than or different from the discrimination faced by gay men and if not, is CEDAW the place to bring up LBT concerns? Wouldn't it be more appropriate for LBT issues be taken up by other human rights committees instead of CEDAW?
The fact is, CEDAW recognizes the intersecting oppressions women face and the interlocking barriers to women's full enjoyment of their rights because of racism, nationalism, and able bodied elitism. Why are sexual orientation and gender identity an exception? Did women who are marginalized because of nationality, disability, race have to prove that the discrimination and violence they faced was greater than the discrimination faced by men who were marginalized because of their nationality, race, disability? Did marginalized women facing intersectional discrimination have to show that their discrimination was greater and different from the discrimination faced by non-marginalized women?
Another concern raised is that inclusion of sexuality rights will hamper ratification of CEDAW or increase reservations, in part because States object to CEDAW's interference in their social, cultural and religious rights. Some States also perceive references to sexual orientation and gender identity as introduction of new rights. But this is not new terrain for CEDAW. The Committee has argued in other instances effectively that what they seek to uphold are not new rights but new ways of addressing existing long-term violations, and new interpretations of the Convention’s mandate, and new clarifications of violence and discrimination. Even with controversial issues like female genital cutting, CEDAW members found a way to hold the line that traditional practices resulting in harm, suffering and violence had to be changed or suspended. With the controversial right to abortion, CEDAW found a way to navigate this as reproductive rights and health rights. CEDAW must find a way to navigate the controversy about sexual orientation and gender identity as the right to sexual autonomy, which includes the right to determine your own sexual identity and expression, who you partner with, when, if and with whom to have sexual relations.
Another anxiety about respecting and protecting the rights of lesbians is that this could be perceived as promoting homosexuality. When CEDAW called on States to end the practice of stoning for adultery, was this read as promoting adultery? Even if it was, it did not stop CEDAW members from speaking up about a lethal practice than often targeted women. Likewise, CEDAW has defended women’s right not to marry or the right to choose their own partner without facing violent sanctions. LBT individuals have the right to choose their partners and the right not to be forced to marry someone they don’t desire.
To address some of the challenges in addressing LBT issues at CEDAW, the International Gay and Lesbian Human Rights Commission is releasing a Guide that is intended to help NGOs and activists prepare inclusive shadow reports for CEDAW. An inclusive report not only recognizes that women experience multiple intersecting forms of discriminations based on factors like race, class, age, ethnicity, physical ability and national origin, but also incorporates an analysis of the discrimination women face on the basis of their sexual orientation, gender identity and gender expression. For more information about the guide, please visit the IGLHRC website or contact me or Adrian Coman at the International Gay and Lesbian Human Rights Commission.
I’ll end my comments today with the following recommendations.
- In response to shadow reports from LBT groups about rights violations in their countries, the CEDAW Committee must urge member States that come up for review that they have to live up to their commitment to all women not just some women
- In keeping with the spirit of the CEDAW Convention, which is designed to eliminate all forms of discrimination against women, the Committee must adopt the broadest definition of equality. In its recommendations on Article 2 of the Convention, the Committee must make explicit reference to sexual orientation and gender identity as bases for violence and discrimination so that lesbians and transgender persons are not left without the protection of the CEDAW Convention in states that are hostile to the sexual autonomy of women.
- The Committee must consistently address human rights abuses faced by LBT persons even when the State argues these abuses are culturally and socially unavoidable. The Committee must send a clear message to state and non-state violators that denying LBT women their rights because of their sexual orientation, gender identity and expression violates the Convention and keeps LBT individuals from enjoying all other rights.
- Women’s human rights must not be desexualized. The right to sexual autonomy should not be seen as incidental or an inferior right compared to the other rights because sexual autonomy is integral to women’s wholeness, self-determination, dignity and empowerment. The right to sexual autonomy should not be limited to heterosexual, gender conforming women but also apply to LBT persons.
- It is vital that the CEDAW Committee honor the spirit of inclusion and protection for all women so that the CEDAW Convention as a living document moves forward and not backwards, extends more protections not less, and so that there is no hierarchy of discrimination where some vulnerable groups are protected and others are not. Not recognizing sexual orientation and gender identity and expression pose a serious challenge to the aspiration and implementation of CEDAW. The Committee as an international body of independent experts needs to lead by example and confront institutional and non-institutional homophobia in the fight for women’s equality.
2- IGLHRC “United Nations: CEDAW Debates Equality,” July 18, 2008, available at: http://www.iglhrc.org/cgi-bin/iowa/article/takeaction/resourcecenter/11.html
Published on March 9, 2009 | OutRight Action International an LGBT human rights organization