The Rights of Women and Girls Must Include Lesbian Bisexual and Trans

Reflections on the International Conference of National Human Rights Institutions and Non-Governmental Organizations on the Rights of Women and Girls

Nearly 70 National Human Rights Institutions (NHRI) from Africa, Asia Pacific, Middle East, Europe and the Americas gathered in Amman, Jordan on November 5-7, for a conference on the role of these institutions on protecting and promoting the rights of women and girls. Two days prior to the conference, civil society activists from about 100 non-governmental organizations (NGOs) around the world gathered in Amman for a "parallel" Forum, organized by the Amman Center for Human Rights to discuss best practices for women's rights NGOs to engage with National Human Rights Institutions. I participated in both convening's.

Champions of NRHIs call them "gatekeepers for the advancement of human rights in their countries" and "cornerstones of human rights protections systems." They urge support for them because they have limited or no power to compel states to accept their recommendations and inadequate resources to properly investigate complaints of human rights abuses and carry out human rights monitoring. Activists counter these arguments saying NHRIs can publicize government's failure to accept the recommendations, as well as inform civil society, treaty bodies and the Human Rights Council, which can pressure the state. They can receive grants to train on human rights monitoring and documentation, and ask activists to help document violations.

Randa Siniora, member of the International Coordinating Committee (ICC), accrediting body of NHRIs, says in a forthcoming article, the Role of National Human Rights Institutions in Countries in Transition in the Arab World, that many of these institutions "provide a smoke screen for the actions of despotic and non-democratic regimes" and give the false impression that their governments are complying with international human rights principles. She says that non-independent NHRIs are "incapable of accurately and objectively reflecting the status of human rights in their countries."

Siniora, also executive director of the Palestinian Independent Commission for Human Rights, spoke at the international NGO Forum in Amman, urging women's NGOs not to give up on NHRIs. She pushed NGOs to continue developing "creative and imaginative" best practices to engage with them even if some of them "need to gain the public's trust."

What about Lesbian, Bisexual and Trans Women?

However, when asked about best practices for engaging the Institutions on the rights of lesbian, bisexual and transgender women, Siniora said, "This is too sensitive an issue for many countries" and she did not think the NHRIs could tackle such sensitive issues. Siniora's adamant refusal seemed misplaced given that the NGO Forum was an international event not a Middle East regional event. Siniora is herself a member of the International Coordinating Committee of the NHRIs, which should lead by example. Her refusal to acknowledge that the rights of lesbians, bisexual women and transgender women are worthy of attention sends a negative message to NGOs. Instead, Siniora could have reiterated the importance of LBT women's groups to educate, sensitize and invite these national institutions to participate in LGBT events, offer capacity building assistance such as help with documenting violations against LBT women, developing awareness messages, and training on the Yogyakarta Principles. She could have urged LBT groups to be part of consultations that the NHRIs must convene before submitting independent reports to UN treaty bodies and the Human Rights Council.

Henri Tiphagne, a long-time critic and monitor of NHRI ‘s performance, speaking at the NGO Forum on behalf of the Asian NGO Human Rights Institutions Network (ANNI) explained, "These Institutions are a new type of hybrid body, not government and not civil society organizations. They are state funded and state supported. They are state institutionalized human rights defenders but they work independently and have to function without political interference."

National Human Rights Institutions and Asia

Eighteen of the world's eighty accredited NHRIs are in Asia – fifteen with "A" status accreditation: Afghanistan, Australia, India, Indonesia, Jordan, Malaysia, Mongolia, Nepal, New Zealand, Palestine, Philippines, Qatar, Korea, Thailand and Timor Leste, and three with "B" status accreditation: Bangladesh, Maldives and Sri Lanka. "A" status indicates full compliance with the Paris Principles and "B" status indicates partial compliance. The International Coordinating Committee of NHRIs (ICC) decides which institutions comply with the 1993 Paris Principles that serve as criteria for their establishment and proper functioning.

"Not trustworthy and not reliable" are the two main complaints about many NHRIs in the Asia Pacific Islands region because government-appointed commissioners feel beholden to their governments and fail to investigate and expose human rights violations, conduct cursory investigations resulting in inconclusive findings, don't know the duties of an NHRI and lack knowledge about human rights.

As for LGBT issues in general and LBT women's issues in particular, API activists report a pattern of poor follow through, failure to acknowledge cross-cutting aspects of discrimination that LGBT people face, and failure to go beyond lip service to interest in LGBT concerns.

In Indonesia, Arus Pelangi, a national LGBT organization said it appreciated the position taken by the National Human Rights Commission of Indonesia (Komnas HAM) to publicly condemn religious vigilante "hooliganism" that violently disrupted LGBT gatherings, film festivals and educational seminars in 2010, 2011 and 2012. However, there was frustration that Komnas HAM would not mediate with police to ensure police enforced rule of law and kept their word to provide protection in the face of violent opposition to LGBT rights, did not include human rights violations against LGBT in its report to the Human Rights Council, and to date has not publicly endorsed, translated and disseminated the Yogyakarta Principles to state agencies for implementation.

In Thailand, LGBT activists were glad that the National Human Rights Commission of Thailand initiated a meeting to promote gender change legislation for transgender and intersex people and convened a seminar to discuss implications of Section 3 in the Gender Equality Bill, which states, "All measures proposed in this bill can be curtailed in the interest of public order and public morality." But the Commission was also criticized for not responding to requests to investigate hate crimes and lesbian murders, for being condescending towards community activists, over-relying on academics and overlooking the knowledge and experience of activists about LGBT issues, as well as being unnecessarily bureaucratic – "they are unwilling to touch an issue unless a formal complaint is lodged with the Commission" even when discrimination was clear cut – for instance when a transgender student was ejected from an academic institution and universities prohibited cross-dressing at graduation ceremonies.

In Malaysia, sexuality rights advocates said, they appreciated Suhakam, the Human Rights Commission of Malaysia, for defending LGBT human rights in its 2010 annual report, saying, "LGBT human rights and fundamental liberties must be upheld and respected at all times." However, in 2011 and 2012, Suhakam downplayed and distanced from LGBT issues partly in response to reactions from religious hardliners, partly in response to government pressure. At the 2011 launch of Suhakam's report, the chair stated, "The LGBT community is demanding more than they deserve." At regional meetings, I have personally heard Suhakam object to including sexual orientation and gender identity as a priority for the NHRIs

In India, criticisms of the National Human Rights Commission ranged from "The Commission has done zilch for LGBT rights," "The Commission is not empathetic to LGBT rights," and "The NHRI is aloof from LGBT groups, not pro-active in reaching out." At the beginning of 2012, the Indian National Human Rights Institutions convened ten LGBT activists for a consultation funded by the United Nations Development Programme. Activists considered this a UNDP event.

In Jordan, where the international conference and NGO forum were held, LGBT activists contacted by the International Gay and Lesbian Human Rights Commission refused to be associated with either event, saying they had no reason to trust the Jordan National Centre for Human Rights, and didn't want to be known or identified by this institution.

The NGO Forum in Amman culminated with an NGO Statement. I was excited to be part of a team of seven human rights activists from Jordan, Malaysia, India, Georgia (in the Balkans), Maldives and Sri Lanka that helped draft and deliver the NGO Statement to the National Human Rights Institutions Conference. The NGO Statement was more progressive and inclusive than the Amman Declaration (PDF) and Program of Action (PDF), adopted on the final day of the National Human Rights Institution conference. The NGO Statement contained references to women's sexual orientation and gender identity – in paragraph four of the statement, the section on violence against women and girls, and the section on rights to sexual and reproductive health.

In addition to the Amman Declaration and Program of Action, each region adopted regional action plans with specific steps to protect and promote the rights of women and girls at the regional levels. These action plans will be part of the Amman Declaration.

Sexual Orientation Excluded

The Asia Pacific regional action plan, developed by the Asia Pacific Forum (APF, a consortium of eighteen NHRIs) initially excluded sexual orientation and gender identity. In December 2010, the Advisory Council of Jurists (ACJ) of the Asia Pacific Forum released a report showing a broad range of human rights violations against LGBT people in the Asia Pacific region, nonconformity of national laws with international human rights standards, and widespread discrimination and violence against LGBT people in 17 Asian countries with National Human Rights Institutions. In 2011 the APF agreed to take action to stop violence, discrimination and criminalization of LGBT people in their countries. The 2011 commitment was premised on fifty-four recommendations from the Asia Pacific Forum's s Advisory Council of Jurists that guide the region's NHRIs on addressing LGBT issues.

When I pointed out the oversight in the APF's action plan, the NHRI of Malaysia I objected to the inclusion of sexual orientation and gender identity, saying, "Some issues we can't take up, not at this time. We have to move slowly. Not all countries are ready to take up certain sensitive issues. Some governments just won't agree to it." Fearing a lack of consensus, the APF then conceded to adding this sentence to its 16-point action plan: "[We] reaffirm our commitment towards the implementation of the Advisory Council of Jurists recommendations in relation to gender." When I objected to the omission of sexual orientation, the NHRIs from India explained, "We are making recommendations to ourselves and we are aware of the ACJ's recommendations and what they mean so we are not in any way saying this is not a commitment. We should formally adopt the draft [of the action plan] as is." A member of the APF Secretariat told me, "We have to be gentle here otherwise it undermines what we're trying to do."

On December 11, 2012, the Secretary General of the United Nations, Ban Ki-moon delivered an address on "Role of Leadership in the Fight Against Homophobia." He said, "LGBT people are entitled to the same rights as everyone else. They too are born free and equal…I understand it can be difficult to stand up to public opinion. But just because a majority might disapprove of certain individuals does not entitle the State to withhold their basic rights… Democracy is more than majority rule. It requires defending vulnerable minorities from hostile majorities. It thrives on diversity. Governments have a duty to fight prejudice, not fuel it."

What is meant by gender equality?

NHRIs are tasked with "lessening the implementation gap between international standards and human rights practices on the ground." By delinking "sexual orientation" from "gender" in its regional action plan, does the APF understand its use of the term "gender" to mean third gender, transgender, or fluidity of gender expression? Or did it couch "gender" under the Amman conference theme -- "The human rights of women and girls: Promoting gender equality: The role of national human rights institutions." Gender here referred to equality between two sexes – hetero-normatively defined men and women. Has the APF ended up lowering the bar on implementing the commitments it agreed to in 2011, which covered both sexual orientation and gender identity?

There remain some NHRIs around the world that are uncomfortable even hostile about LGBT rights. They hinder progress of these rights. The governments of these same NHRIs have consistently voted against or abstained from voting on resolutions in the UN to protect LGBT people from extra judicial killings, other forms of violence and widespread discrimination. In Asia, these governments allowed sexual orientation and gender identity to be excluded from the ASEAN Human Rights Declaration.

The NHRIs conference in Amman was an opportunity for human rights commissions around the world to publicly declare and commit to advancing the rights of women and girls – all women and girls, not a select group. Lesbians, bisexual women and transgender women experience double and triple the discrimination that heterosexual women face. They experience violence and discrimination as women and as sexually and gender variant people – from the home, religious groups, police, and security forces. They are at risk for corrective rape, forced marriage, domestic violence, sexual harassment, and discrimination in all sectors, including as migrant workers, poor women, rural women, displaced women, homeless women, elderly women. Girls experience bullying, violent discipline in school and at home, leading to depression even suicide. Some are forced out of school and lose an education. Older lesbians who have taken care of aging parents face isolation in old age when parents die and they become homeless, without the right to inherit property as unmarried daughters, without legal protections for same sex partnerships, and the general lack of support for marginalized and vulnerable women as they age.

LBT women's concerns may not always be visible to these institutions. This does not indicate absence of human rights violations. It indicates that the National Human Rights Institutions need to understand how the closet silences LBT women, and that the state is complicit in this silencing, and the "inferiorizing" of LBT issues.