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‘I am because you are’ – the first ever UN panel on sexual orientation and gender identity

By Emily Gray, Amnesty International’s researcher on sexual orientation and gender identity.

On 7 March 2012, sitting in the Human Rights Council in Geneva, under Barcelò’s oceanic dome, I was excited, and a little apprehensive, to be witness to the first ever formal inter-governmental debate on sexual orientation and gender identity to take place at the United Nations.

As the panel was about to begin, there was a hum of hurried conversations as diplomats, advisers, UN officials and civil society activists streamed into the room.  As South African Ambassador Abdul Minty opened the panel as moderator, two things happened - a large number of country delegates raised their country placards to speak (see photo); and most members of the Organisation of the Islamic Conference (OIC) and the African Group walked out of the Council.

This panel had come about as a result of Human Rights Council Resolution 17/19 of June 2011 calling for the UN Human Rights Commissioner to author a report on ‘how international human rights law can be used to end violence and related human rights violations based on sexual orientation and gender identity’, and for a panel to be held in the Council to discuss the findings of the report.

In an opening video message, UN Secretary-General Ban Ki-moon told the delegates: “Some say sexual orientation and gender identity is a sensitive subject. I understand. I did not grow up talking about these issues. But I learned to speak out because lives are at stake – and because is it our duty...to protect the rights of everyone, everywhere.”

UN Human Rights Commissioner Navi Pillay echoed those thoughts: “Like millions of other South Africans, I grew up with prejudice around me. I know that it takes time, patience and persuasion to tackle it.”

It was very powerful to hear two of the UN’s most senior figures recount personal and national histories of overcoming prejudice, ignorance and intolerance. And it was a shame many states never heard this message because they chose not to be present.

All of the panellists - from Pakistan, the USA, Brazil and Sweden - supported the UN HRC resolution and report.

Hina Jilani, Chair of the Human Rights Commission of Pakistan, spoke about advances in her country, including a recent Supreme Court decision around transgender people’s right to identity.

Her presentation served as a counterpoint to the Pakistani delegation’s later statement on behalf of the OIC, and was a salient reminder that no country is uniformly homophobic or transphobic.

Advances in advocacy around issues of sexual orientation and gender identity are happening everywhere, in countries like Pakistan, Uganda, Russia and Latvia, despite popular perceptions and despite homophobic rhetoric from leaders in those countries.

The usual suspects lauded the report – the UK, USA, Australia, Norway, Sweden. Encouragingly, they were joined by countries whose support for lesbian, gay, bisexual and transgender (LGBT) issues has not always existed, or been openly acknowledged – states like Ecuador, Cuba, Thailand, Honduras, Republic of Korea, Mexico, Estonia, Nicaragua and Croatia.

Seeking to draw on the lessons of history, the German delegation gave the floor to a civil society activist who powerfully spoke about what her country had learned since the Holocaust, and its persecution of Jewish people and gay men, among others.

Germany’s continued criminalization of homosexuality for decades after the war meant that many gay men were denied reparation because they were not recognized as victims of Nazi persecution. She implored states to address the protection gaps for LGBT people so that such discriminatory persecution never happens again.

Despite their earlier walkout, OIC and African delegations sent representatives back into the room when it was their turn to speak.

Speaking for the OIC, Pakistan said that sexual orientation is “vague and misleading” with no “foundation in international law”, likening it to “licentious behaviour”, and arguing that the recognition of it will lead to of the legitimisation of paedophilia and incest.

This correlation of consensual sex between adults to criminal sexual assault against children is not only wildly erroneous, as study after study has shown, but it is dangerous – exposing LGBT people to harassment and violence because of the supposed “threat” they pose to children.

Mauritania (for the Arab Group), Senegal (speaking on behalf of “almost all” of the African group) and Nigeria argued that sexual orientation and gender identity pose a threat to culture and religion.

Under international human rights law, everyone has the right to culture and the right to freedom of religion. Although those rights sanction freedom of belief, they do not allow for freedom of action resulting in discrimination, harassment or violence against, or the persecution of, one group of people based on their sexual orientation or gender identity.

South Africa’s statement rebutted the cultural rights defence, pointing out that the African Charter on Democracy, Elections and Governance requires the elimination of “all forms of discrimination, especially those based on political opinion, gender, ethnic, religious and racial grounds as well as any other form of intolerance”. The Charter also calls on African states to adopt laws and other measures that guarantee the rights of marginalized and vulnerable groups.

Russia said that the rights of LGBT people are protected domestically, except when LGBT people plan gatherings or meetings. Such events, the delegation said, disrupt public order and morals. Just days after this statement, the Governor of St Petersburg, Russia’s second-largest city, signed into law a bill banning “public actions aimed at propaganda of sodomy, lesbianism, bisexuality and transgenderness amongst minors”. The law effectively bans advocacy and gatherings of LGBT activists in the city.

“Dignity” was used by delegates alternately to oppose and to defend the human rights of LGBT people. Mauritania said that giving weight to “personal likes and dislikes” offends the dignity, and violates the right to dignity, of the majority of members of society. On the other hand, Cuba noted that the dignity of LGBT people is violated when discrimination, persecution and violence are allowed to flourish.

NGOs gave some of the most powerful speeches.  “States may walk out of this room, but they may never walk away from the responsibility to protect their own citizens from discrimination and violence,” Linda Bauman, of the International Lesbian and Gay Association, said in statement endorsed by 284 NGOs from 90 countries.

Kasha Jacqueline Nabagesera from the Coalition of African Lesbians explained how laws criminalizing same-sex conduct are not African at all, but a relic of colonialism. She urged African states to take heed of the southern African philosophy of ubuntu.

Finally, Ambassador Minty concluded the panel by urging all countries to support an end to discrimination and violence on the basis of sexual orientation and gender identity, through recognizing every person’s common humanity, and through adhering to spirit of ubuntu - “I am because you are.”

Author’s note: Amnesty International gave a joint NGO statement with Human Rights Watch and the International Commission of Jurists reiterating the fact that sexual orientation and gender identity are protected under international human rights law.