As the International Bar Association’s Human Rights Institute (IBAHRI) reflects on the celebration of Pride across the world, we recognise the great strides made by the LGBTQI+ community and acknowledge the vast amount of work still to be done to ensure the protection of LGBTQI+ rights and persons everywhere.
In May 2010, the IBAHRI passed the Resolution on Sexual Orientation and Human Rights. The Resolution recognises that discrimination against anybody on the grounds of their sexual orientation and gender identity is contrary to the fundamental principles of human rights. As a result of this recognition, the IBAHRI is committed to the repeal of criminal laws imposing penalties against people in respect of consensual, adult, private sexual conduct. Specifically, the IBAHRI is committed to advocating for:
- the decriminalisation of same sex relations;
- the end of discriminatory practices;
- marriage equality;
- a universal ban on conversion therapies; and
- legal recognition of transgender identities and equality in gender identity.
The decriminalisation of same sex relations
Same sex relations remain criminalised in at least 76 countries and territories worldwide, exposing millions of individuals to arrest and imprisonment, and, in at least six countries, the death penalty. Prohibitive laws not only promote stigma and discrimination, but also increase LGBTQI+ vulnerability to sexually transmitted infections, including HIV. In 1994, the United Nations Human Rights Committee confirmed that laws criminalising homosexuality violate rights to privacy and non-discrimination in breach of States’ legal obligations under the International Covenant on Civil and Political Rights.
Despite some international progress on decriminalisation, significant challenges remain in Africa, the Middle East and certain parts of Asia. In Turkmenistan, authorities arrested several men in the entertainment business this past March and charged them with violating same-sex relations under the nation’s Criminal Code. On 30 March, a Singapore court struck down a constitutional challenge to the nation’s ban on same sex relations. Homosexual activity between consenting adults has been illegal in Singapore since 1938, following the implementation of the Penal Code under British colonial rule.
The end of discriminatory practices
Even in countries where laws do not criminalise same-sex relations, attitudes remain dangerously hostile towards LGBTQI+ peoples. A series of leaked Zoom calls last month revealed Azerbaijani politicians advocating for the extermination of LGBTQI+ people in the country. In Kyrgyzstan, police officers are reported to have deliberately targeted members of the LGBTQI+ community. Logging on to social media platforms designed for LGBTQI+ communities, police officers have adopted pseudonyms and uploaded fake pictures in order to arrange dates with other users. Upon meeting, the police officers have threatened to reveal users’ sexuality identities to family members unless they paid sums ranging from Kyrgyzstani Som 3,799 to 37,944 (US Dollar 50 to 500). In Chechnya, authorities have conducted a series of anti-gay purges and beaten, starved, detained, tortured and killed men suspected of being gay.
Marriage equality
Presently, only 30 out of 195 countries in the world have legalised same sex marriage. Marriage equality is a fundamental international human right. Without marriage equality, same sex couples are relegated to second-class citizens and denied many health, financial and social benefits granted to heterosexual couples.
A universal ban on conversion therapies
Conversion therapies, based on the premise that homosexuality is a mental illness, use a variety of shaming, emotionally traumatic or physically painful stimuli to make their victims associate those stimuli with their LGBTQI+ identities. These therapies, practiced across the globe, violate the international human rights law principles of universality, equality and non-discrimination. Further, certain treatments may also violate the prohibition of torture and ill-treatment, depending on the severity of physical and mental pain and suffering inflicted.
The tragic death of a bisexual Indian woman last month illustrates the danger of these ‘therapies’ and the need to abolish them internationally. In 2018, the Indian Psychiatric Society categorically stated that homosexuality is not a disease and called for all conversion treatments to cease, but ‘de-addiction centres’ remained throughout the country. This past spring, university student Anjana Hareesh came out to her family as bisexual. In a Facebook video posted in March 2020, Ms Hareesh said she was forcibly taken by her family to two separate ‘de-addiction centres’ without her consent where she was subjected to violence, solitary confinement and required to take heavy medication that left her unable to speak or walk. On 12 May 2020, Ms Hareesh was found dead. Police and friends believe she took her own life. Roughly one week after Ms Hareesh’s death, the Indian Association of Clinical Psychologists issued a statement condemning conversion therapies and urging mental health practitioners to resist all forms of conversion therapies, use queer affirmative language and be aware of the challenges and concerns faced by LGBTQI+ individuals.
On 21 June 2020, the UN Independent Expert on Sexual Orientation and Gender Identity, Victor Madrigal-Borloz, released a report calling for a global ban on conversion therapy: ‘The degrading nature of many conversion therapy practices, including physical abuse, electro-shock therapy, pseudo-medical procedures and the use of anti-LGBT epithets and slurs, contribute to an overall dehumanising environment towards persons with diverse sexual orientation and gender identity (SOGI).’
Legal recognition of transgender identities and equality in gender identity
For transgender individuals across the world, legal gender recognition is essential. Gender identity should have no bearing on whether someone should enjoy fundamental rights, like the ability to be recognised by their government, or to access healthcare, housing, education or employment. Transgender individuals also face disproportionately high rates of violence and murder from both fellow citizens and government authorities, making legal recognition and subsequent de-stigmatisation essential for their health and safety.
In 2008, police in Northern Peru stripped, raped and beat Azul Rojas Marín, and made derogatory comments about her sexual orientation. At the time, Ms Rojas Marín was living as a gay man, but now identifies as a transwoman. In November 2019, the IBAHRI presented an amicus curiae to the Inter-American Court of Human Rights (IACtHR) on discrimination as the purpose of torture and the obligation to investigate violence against the LGBTI+ community, based on regional and international jurisprudence, and on the implementation of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) in a gender-inclusive manner. A landmark ruling on 6 April by the IACtHR held that Ms Rojas Marín’s detention was ‘manifestly arbitrary’ and that she was subjected to an act of torture by police authorities. The Court ordered that the Government of Peru pay damages, provide the victim with medical and psychological treatment, and introduce a series of measures to prevent future crimes of a similar nature in Peru. These measures include a new protocol for investigating attacks against LGBTQI+ peoples; tracking statistics of violence against the community; and creating and implementing a training and sensitisation plan for State representatives on violence against LGBTQI+ peoples. The ruling reinforced that an individual’s sexual orientation, gender identity or expression are categories protected by the American Convention on Human Rights and, in doing so, set an important legal precedent for the protection of LGBTQI+ rights in the Western hemisphere.
The Hon Michael Kirby AC CMG, IBAHRI Co-Chair
Anne Ramberg Dr jur hc, IBAHRI Co-Chair
Baroness Helena Kennedy QC, IBAHRI Director
ENDS
Notes to the Editor
- In May 2010, the International Bar Association’s Human Rights Institute (IBAHRI) passed the Resolution on Sexual Orientation and Human Rights. The Resolution recognises that discrimination against anybody on the grounds of their sexual orientation and gender identity is contrary to fundamental principles of human rights. As a result of this recognition, the IBAHRI is committed to the repeal of criminal laws imposing penalties against people in respect of consensual, adult, private sexual conduct.www.ibanet.org/Human_Rights_Institute/About_the_HRI/HRI_Activities/sexual-orientation
- IBAHRI Co-Chair The Hon Michael Kirby AC CMG was a Justice of the High Court of Australia (1996-2009) and has previously held international posts including as Chair of the United Nations Human Rights Council on North Korea (2013-2014).
- IBAHRI Co-Chair Anne Ramberg Dr jur hc is the Immediate Past Secretary General of the Swedish Bar Association (2000-2019) and has held a number of assignments including as an ad hoc judge of the European Court of Justice.
- The Director of the IBAHRI is Baroness Helena Kennedy QC, a British barrister, broadcaster, Labour member of the United Kingdom’s House of Lords and the founding force behind the creation of the Bonavero Institute of Human Rights at Oxford University.
- The International Bar Association, the global voice of the legal profession, is the foremost organisation for international legal practitioners, bar associations and law societies. Established in 1947, shortly after the creation of the United Nations, it was born out of the conviction that an organisation made up of the world's bar associations could contribute to global stability and peace through the administration of justice.The International Bar Association’s Human Rights Institute, an autonomous and financially independent entity, works to promote, protect and enforce human rights under a just rule of law, and to preserve the independence of the judiciary and the legal profession worldwide.
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