By Paula Gerber
In 2014, one can barely read the news without coming across a story about lesbian, gay, bisexual, transgender and intersex (LGBTI) people. These stories range from celebrations that yet another jurisdiction has legalised marriage for same-sex couples, to despair at the violence, discrimination and persecution inflicted on individuals because of their sexual orientation or gender identity/expression. Unfortunately, stories of gay bashing, the passing of draconian homophobic laws and courts imposing harsh sentences for consensual homosexual conduct tend to outweigh the good news stories. This is not surprising as 80 countries still classify homosexuality as a crime. Visit http://antigaylaws.wordpress.com/ for the current list.
Africa has the most countries that still criminalise homosexuality (36), while Europe has the least (0). Europe has the most countries that permit same-sex couples to marry (11) while the Asia Pacific region has none, and Africa just one (South Africa). The widespread criminalisation of homosexuality in 2014 is dispiriting, and it is particularly disappointing that criminalisation appears to be a hallmark of the British Commonwealth.
Eighty per cent of Commonwealth countries (43 out of 53) treat gay sex as an offence, compared with only 25 per cent of non-Commonwealth countries. Indeed, human rights campaigner, Peter Tatchell has labelled the Commonwealth ‘a bastion of global homophobia’. Yet the Commonwealth has shown little willingness to encourage reforms. Instead, the UN must become the vital global player in efforts to protect and promote the rights of LGBTI persons. Yet its three principal human rights organs have patchy records on LGBTI rights.
UN Human Rights Committee
The Committee – which oversees the International Covenant on Civil and Political Rights (ICCPR) – has played a pivotal role in promoting homosexual rights since its landmark 1994 decision in Toonen v Australia, clarifying that laws criminalising consensual homosexual conduct violate rights to privacy and non-discrimination. More recently, the Committee found that Russia’s anti-gay ‘propaganda’ laws breach the right to freedom of expression.
However, the Committee’s record of raising LGBTI concerns when reviewing a country’s human rights record is somewhat unpredictable. Sometimes it recommends that a state repeal its laws criminalising homosexuality, and sometimes it is silent in the face of such laws. The explanation for this inconsistency appears to be twofold.
First, the issue is more likely to be raised if it is highlighted in an NGO’s shadow report to the Committee. Second, the Committee’s membership seems to influence whether LGBTI issues are raised. Professor Michael O’Flaherty of Ireland consistently raised LGBTI issues during country reviews. During his time on the Committee (2004-2012), O’Flaherty raised LGBTI concerns 25 times. Fabian Omar Salvioli of Argentina had the next highest number, raising LGBTI issues 11 times.
It is disappointing that the membership of the Committee seems to directly influence which human rights violations are raised. We hope that the Committee will continue to criticise states for laws criminalising homosexuality, even without O’Flaherty to lead the charge. If the Committee reduces its focus on LGBTI issues, the Office of the High Commissioner for Human Rights (OHCHR) should provide appropriate training to Committee members to ensure they are attuned to violations of the rights of sexual minorities.
Human Rights Council (HRC)
The HRC is a very different body to the Human Rights Committee, because, unlike the Committee, its members are not human rights experts. Rather they are state representatives, so the HRC’s actions are as much influenced by politics and international relations as they are by international human rights law. Nevertheless, the HRC has raised the criminalisation of homosexuality while reviewing the human rights records of states, and many have accepted recommendations that they repeal these laws, including Mauritius, Nauru and Seychelles. On the negative side, efforts to promote broader LGBTI rights within the HRC, such as to appoint a Special Rapporteur on the matter, have stalled.
Office of the High Commissioner for Human Rights (OHCHR)
Finally, the OHCHR has a strong record of promoting LGBTI rights. Its achievements include the Free & Equal campaign (www.unfe.org/) launched in 2013, and the High Commissioner Navi Pillay’s vocal criticism of recent moves to further oppress LGBTI people in Africa. In relation to new draconian Nigerian anti-gay legislation, she said:
“Rarely have I seen a piece of legislation that in so few paragraphs directly violates so many basic, universal human rights. Rights to privacy and non-discrimination, rights to freedom of expression, association and assembly, rights to freedom from arbitrary arrest and detention: this law undermines all of them.”
The OHCHR has also published a guide for states setting out their core obligations towards LGBTI persons. A similar exercise was undertaken in 2006, when a group of human rights experts, lead by O’Flaherty, developed the landmark Yogyakarta Principles, which explain the application of human rights law to persons of diverse sexual orientation and gender identity.
The OHCHR’s booklet is likely to have greater standing and authority because it is published by the UN, rather than an informal group of experts. It focuses on issues such as homophobic and transphobic violence, decriminalisation of homosexuality and discrimination based on sexual orientation and gender identity.
While some parts of the world are going backwards when it comes to respecting the rights of LGBTI people, we can take some comfort from the fact that the UN devotes significant resources to combatting this wave of homophobia. In the meantime, LGBTI people around the world must continue to ride the rollercoaster and fight to ensure that, over time, there are more highs than lows when it comes to respecting their rights and dignity.
This piece is featured in the 2014 Castan Human Rights Report. You can read the full report and download a pdf here.
Peter Tatchell ‘Commonwealth is a Bastion of Homophobia’ The Guardian, 17 May 2011www.theguardian.com/commentisfree/2011/may/17/commonwealth-homophobia-anti-gay-discrimination
Gerber, Paula & Gory, Joel ‘The UN Human Rights Committee and LGBT Rights: What is it doing? What could it be doing?’ (2014) 14 Human Rights Law Review (forthcoming).
Gerber Paula ‘Living a life of crime: The ongoing criminalisation of Homosexuality within the Commonwealth’ (2014) Alternative Law Journal (forthcoming).
Fedotova v Russian Federation CCPR/C/106/D/1932/2010 (November 2012).
Born Free and Equal www.ohchr.org/Documents/Publications/BornFreeAndEqualLowRes.pdf