Council holds first ever panel debate on sexual orientation and gender identity
Wednesday, 07 March 2012 14:52


On 7 March the Human Rights Council (the Council) held its first dedicated discussion on the issue of sexual orientation and gender identity. The holding of the panel discussion polarised Council proceedings prior to its start. The panel was boycotted by the OIC, almost all of whose members staged a walkout from the Council as the debate got underway. Burkina Faso was one of the few OIC States to remain in the room. However, given that most 'hostile' States had chosen to remain silent, the panel itself sent a strong signal that the international community will no longer accept discrimination and violence on the basis of sexual orientation and gender identity. 


The debate opened with a recorded video address from the Secretary-General of the United Nations, Mr Ban Ki-moon. The High Commissioner for Human Rights, Ms Navi Pillay, made a strong statement against 'bigotry and intolerance' and clearly affirmed the primacy of international human rights law.  


The divisive discussion saw Pakistan (on behalf of the OIC), Senegal (which noted that it was speaking on behalf of 'almost all' the African Group), Mauritania (on behalf of the Arab Group), and the Russian Federation, deny that there is any legal foundation in international law for 'controversial concepts' such as sexual orientation and gender identity.


As panellist, Mr Laurence Helfer, of the Center for International and Comparative Law at Duke University in the United States (US) made eminently clear, however, the default position of international law is that it applies without distinction of any kind, and that nowhere in international human rights law is there any exclusion stated that these standards do not apply to individuals on the basis of their sexual orientation or gender identity. This position was echoed by States including Argentina (on behalf of MERCOSUR), Austria, Australia, Cuba, Ecuador, the European Union, Greece, Honduras, Norway, the Republic of Korea, Sweden, the United States, and Uruguay.


The OIC's decision not to participate in the debate, aside from through the statement delivered by Pakistan, was openly criticised by some States. Austria commented that States that do not address violence and discrimination against individuals on the basis of their sexual orientation and gender identity are in breach of their legal obligations and that those obligations will not be changed by marching out of UN meetings. Switzerland regretted the decision, and pointed to the importance of dialogue on sensitive issues, a position echoed by Ireland.


The session also saw the delivery of a joint statement by A-status NHRIs, supporting the call for dialogue and reaffirming that the prohibition of discrimination on the grounds of sexual orientation and gender identity is integrated into the existing international legal framework that States have committed to protecting. A joint statement on behalf of 284 NGOs from 90 countries from all regions set out clearly that they were not calling for rights, which already exist as a birthright, but for States to implement their legal obligations and for the Council to fulfil its role in that regard.


Specific attention was paid to the rights of transgender persons during the discussion, with Finland drawing particular attention to this issue. Panellist Ms Irina Karla Bacci, noting that discrimination against LGBTI persons was a problem in countries across the world, pointed to the sterilisation requirement that transgender individuals face in many European countries. As an example of positive progress in this regard, Ms Hina Jilani, formerly the Special Representative of the Secretary-General on the situation of human rights defenders, pointed out that Pakistan has national legislation to protect the rights of transgender persons after a Supreme Court ruling that mandated that hijras be officially recognised as a third gender on national identity cards.


Other key issues raised included the need to protect human rights defenders who work on behalf of lesbian, gay, bisexual, and transgender individuals, an issue raised by Mr Hans Ytterberg, from the Council of Europe, and Ms Hina Jilani.


In terms of follow-up to the panel, Mr Helfer and Mr Ytterberg called on the Council to continue respectful dialogue on this issue on a regular basis, and called on special procedure mandate holders to give attention to the issue as appropriate within their mandates and to be supported by States in doing so. Mr Ytterberg spoke out against a suggestion that there should be a separate mandate holder on this issue, stating that this would propagate the idea that there is a call for separate rights.


Echoing this sentiment, the Ambassador of Brazil, making concluding remarks, stated that the panel should not be seen as an historic moment, but rather 'business as usual' for the Council, as it fulfils its role of promoting and protecting the human rights of all. 


Last Updated on Wednesday, 07 March 2012 18:22
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