Diversity in Humanity, Humanity in Diversity - The First Report of the new UN Independent Expert on SOGI issues

The first-ever report by a UN Independent Expert on sexual orientation and gender identity has just been delivered to the UN Human Rights Council. This article briefly explains the role of Independent Expert, the struggle to establish a mandate on SOGI issues, and the key groundwork laid by the first report.

What is the Independent Expert on SOGI?

An Independent Expert (IE) is an individual who receives a mandate from the UN to promote human rights, either within a particular country or with regard to a specific theme, by preparing analyses and reports, responding to individual complaints, holding expert consultations, conducting country visits, and promoting coordination among actors within and beyond the UN system. The mandate for an “Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity” was established in June 2016 by Human Rights Council Resolution 32/2.

The degree to which this mandate was politically sensitive is clear in its name: the term “LGBT” is never mentioned. Similarly, while the names of other recent thematic mandates refer broadly to the “enjoyment of all human rights,” this one is narrowly restricted to “protection against violence and discrimination.” Resolution 32/2 also takes extra steps to acknowledge the controversial nature of SOGI issues in some countries by adding such caveats as stressing “the fundamental importance of respecting relevant domestic debates at the national level on matters associated with historical, cultural, social and religious sensitivities” (preamble para 8) and opposition to “seeking to impose concepts or notions pertaining to social matters, including private individual conduct, that fall outside the internationally agreed human rights legal framework” (preamble para 9).

Despite such limitations and conciliatory language, the creation of this mandate was unusually heavily contested. Although many resolutions are adopted without even requiring vote, Resolution 32/3 was approved by a narrow vote of 23-18 with 6 abstentions, meaning that less than an absolute majority of all Council members supported it (although a majority of those actually voting did so). Later, in a rare maneuver, a bloc of conservative states attempted to block its implementation at a meeting of the UN General Assembly’s Third Committee by challenging the mandate’s basis in international law.  A final last-ditch effort sought to defund the position. Fortunately, these reactionary challenges were ultimately defeated and the work of the Independent Expert was able to move forward. (The developments leading up to the vote has been documented by ARC International; a detailed accounting of the vote has been compiled by ILGA; a civil society petition by 628 NGOs in 151 countries for the creation of the position is available via the OutRight website.)

What does the first report cover?

In September 2016, Vitit Muntarbhorn, a professor emeritus of law from Chulalongkorn University in Bangkok, was named as the mandate holder for a term of three years. During the first few months of his term, Prof. Muntarbhorn conducted a country visit to Argentina (one of the countries that sponsored the resolution creating the mandate) and held a number of meetings (including a major public consultation in Geneva). But the most important development of the mandate thus far has been the newly released report, on the theme of “diversity in humanity, humanity in diversity.” Importantly, the report lays crucial groundwork in two main areas: establishing the basis within human rights law for the inclusion of SOGI issues and LGBT people and articulating the substantive areas of focus for the future work of the Independent Expert.

Firstly, the report carefully establishes that SOGI issues fall squarely within the purview of established international human rights instruments, citing sources as long-established as the Universal Declaration of Human Rights from 1948 and as recent the Sustainable Development Goals adopted in 2015. It also identifies linkages with the treaties governing regional human rights systems in the Americas, Europe, and Africa, and with both positive and negative policies and practices within countries. Likewise, the report establishes the embeddedness of SOGI issues within the existing work of an array of UN agencies, in particular the UN Office of the High Commissioner for Human Rights (OHCHR) and its Free and Equal Campaign.

Secondly, the report also examines the root causes of violence and discrimination against LGBT people. Six broad areas are specified: 1) decriminalization of consensual same-sex relations; 2) effective anti-discrimination measures; 3) legal recognition of gender identity; 4) destigmatization linked with depathologization; 5) sociocultural inclusion; and 6) promotion of education and empathy. The report indicates that these will six topics will be the focus of future analyses, and also notes that the work of the mandate will address the violations of the human rights of intersex persons where these issues intersect with SOGI.

What is the major message of the first report?

An important theme running throughout the report is that the work of the Independent Expert does not seek to establish new or special rights for particular groups but rather to improve the recognition and protection of existing human rights for people whose SOGI is different from that of the majority. This core point is laid out most comprehensively in paragraph 2, which is quoted here in full:

“Everyone has some form of sexual orientation and of gender identity.  Sexual orientation has an external dimension — it indicates a person’s sexual inclination and feelings towards others. Gender identity has an internal dimension — the term refers to how a person self-identifies in regard to his or her own gender, which may be different from the gender assigned at birth. Even though human rights are inherent to everyone and involve protection for all persons without exception, regrettably persons with an actual or perceived sexual orientation and/or gender identity diverging from a particular societal concept are at times targeted for violence and discrimination, and violations are pervasive in numerous settings. Killings, rapes, mutilations, torture, cruel, inhuman and degrading treatment, arbitrary detentions, abductions, harassment, physical and mental assaults, bullying suffered from a young age, pressures leading to suicide, and discriminatory gestures and measures — aggravated by incitement to hatred — in relation to sexual orientation and gender identity, are widespread on several fronts. These negative incidents call for effective action to counter the violence and discrimination in their various forms. This is a local-global phenomenon that traverses the home, the educational system, community relations, national scenarios and the international setting.”

Raymond A. Smith is an adjunct associate professor with the Center for Global Affairs at New York University.