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Promoting and Protecting Human Rights in Relation to Sexual Orientation, Gender Identity and Sex Characteristics

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Promoting and Protecting Human Rights in Relation to Sexual Orientation, Gender Identity and Sex Characteristics Promoting and Protecting Human Rights in relation to Sexual Orientation, Gender Identity and Sex Characteristics A Manual for National Human Rights Institutions Note The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the APF or the UNDP concerning the legal status of any country, territory, city or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries. ISBN 978-0-9942513-6-7 (print) ISBN 978-0-9942513-7-4 (electronic) Promoting and Protecting Human Rights in relation to Sexual Orientation, Gender Identity and Sex Characteristics: A Manual for National Human Rights Institutions © Copyright Asia Pacific Forum of National Human Rights Institutions and the United Nations Development Programme June 2016 No reproduction is permitted without prior written consent from the APF or the UNDP. Asia Pacific Forum of National Human Rights Institutions GPO Box 5218 Sydney NSW 1042 Australia United Nations Development Programme Bangkok Regional Hub 3rd Floor, United Nations Service Building Rajdamnern Nok Avenue Bangkok 10200 Thailand Credits United Nations, UNDP, UNESCO and UN Women photographs are copyright and all rights in connection with their usage remain with these entities. Copyright of all other photographs in this manual remain with the individual artists. Cover photographs Left: Pride rainbow flags by Chomiji, reproduced under a CC BY-NC 2.0 license. Centre: Participants at the Being LGBTI in Asia, 2015 Regional Dialogue on LGBTI Human Rights and Health in the Asia-Pacific. Photo by UNDP/W. Field. Bottom: Participants at the Being LGBTI in Asia, Asia-Pacific Consultation on LGBTI Bullying. Photo by UNESCO/UNDP/V. Dithajohn. Contents Acknowledgements iv Foreword v List of abbreviations vi Glossary vii Introduction for users 1 Part I Experiences of being lesbian, gay, bisexual, transgender and intersex in the Asia Pacific 7 Chapter 1: Understanding sexual orientation, gender identity and sex characteristics 8 1.1. Introduction 8 1.2. Concepts and terminology 9 1.3. Definitions 11 1.4. Regional-specific terms 15 1.5. Umbrella terms used in this manual 20 1.6. Defining diverse sexual orientation, gender identity and sex characteristics as illnesses 21 1.7. Disclosure about sexual orientation, gender identity and intersex status 23 Chapter 2: Being lesbian, gay and bisexual in the Asia Pacific 27 2.1. Introduction 27 2.2. Dignity and criminalisation 31 2.3. Safety and violence 35 2.4. Equality and discrimination 39 2.5. Expression, assembly and association 42 Chapter 3: Being transgender in Asia and the Pacific 45 3.1. Introduction 45 3.2. Violence 46 3.3. Discrimination 48 3.4. Criminalisation 53 3.5. Gender recognition 55 3.6. Access to gender-affirming health services 61 i Promoting and Protecting Human Rights in relation to Sexual Orientation, Gender Identity and Sex Characteristics A Manual for National Human Rights Institutions Chapter 4: Being intersex in Asia and the Pacific 65 4.1. Introduction 65 4.2. Human rights issues 66 4.3. The right to physical integrity 68 4.4. Discrimination 77 4.5. Recognition before the law 80 4.6. Effective remedies and redress 85 Part II International human rights law 87 Chapter 5: International and regional developments in human rights law 88 5.1. The universality of all human rights 88 5.2. Legal recognition of the human rights of lesbian, gay, bisexual, transgender and intersex people 89 5.3. The interpretation and application of international human rights law by treaty monitoring bodies 92 5.4. The views and approaches of the special procedures of the Human Rights Council 102 5.5. Sexual orientation, gender identity and sex characteristics in UN political forums 110 5.6. Regional perspectives on law 122 Chapter 6: The Yogyakarta Principles 131 6.1. Introduction 131 6.2. The content: what do the Yogyakarta Principles say? 134 6.3. What the Yogyakarta Principles do not say 137 6.4. The Yogyakarta Principles since Yogyakarta 142 Part III What national human rights institutions can do 147 Chapter 7: The APF’s response to the Yogyakarta Principles 148 7.1. Introduction 148 7.2. The APF Yogyakarta Workshop, 2009 149 7.3. The APF Advisory Council of Jurists Advisory Opinion, 2010 152 7.4. ACJ-initiated projects, 2011 156 7.5. The IDLO-UNDP-APF NHRI SOGI project, 2012–13 157 7.6. The APF-UNDP Programme of Action and Support, 2015 158 ii Chapter 8: What more national human rights institutions can do 165 8.1. Introduction 165 8.2. Recognition 167 8.3. Advice 168 8.4. Education and awareness raising 171 8.5. Monitoring 174 8.6. Complaint handling 176 8.7. Court interventions and monitoring 180 8.8. Advocacy 182 8.9. Cooperation and engagement 184 8.10. National inquiries 188 Summary 195 Appendices 201 1. Human Rights Council Resolution 17/19: Human rights, sexual orientation and gender identity 202 2. Human Rights Council Resolution 27/32: Human rights, sexual orientation and gender identity 204 3. Joint NHRI statement to the Human Rights Council on discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity 206 4. The Yogyakarta Principles 209 5. Expert signatories to the Yogyakarta Principles 226 6. APF-UNDP Programme of Action and Support 228 7. Members of the reference group for the preparation of this manual 232 iii Promoting and Protecting Human Rights in relation to Sexual Orientation, Gender Identity and Sex Characteristics A Manual for National Human Rights Institutions Acknowledgements Promoting and Protecting Human Rights in relation to Sexual Orientation, Gender Identity and Sex Characteristics: A Manual for National Human Rights Institutions is a publication of the Asia Pacific Forum of National Human Rights Institutions (APF) and the United Nations Development Programme Bangkok Regional Hub (UNDP). The manual was written by Chris Sidoti, APF senior consultant and Jack Byrne, APF consultant. The manual was enriched through materials, case studies and comments from members of the manual reference group, listed in Appendix 7, and by APF member national institutions. The APF and UNDP thank the following APF and UNDP staff and consultants who contributed to the development and production of the manual: APF Pip Dargan, APF Deputy Director and Gender Focal Point James Iliffe, Black and White Media Australia, editor Lisa Thompson, JAG Designs, layout and design UNDP Bangkok Regional Hub Edmund Settle, Policy Adviser, HIV, Health and Development Team Nicholas Booth, Programme Advisor, Governance, Conflict Prevention, Access to Justice and Human Rights Katri Kivioja, Programme Specialist, Coordinator – Being LGBTI in Asia, HIV, Health & Development Team iv Foreword National human rights institutions (NHRIs) are official, independent, legal institutions established by the State and exercising the powers of the State to promote and protect human rights. In every country where they are established, they should be the principal mechanisms for human rights promotion and protection. They are concerned for the human rights of everyone within the jurisdiction of the State but they should have a particular concern for those who experience human rights violations or are most at risk of human rights violations. Because of this particular concern for those most at risk, NHRIs need to ensure that their work includes lesbian, gay, bisexual, transgender and intersex people. The United Nations High Commissioner for Human Rights, the United Nations Development Programme (UNDP), the Asia Pacific Forum of National Human Rights Institutions (APF), individual NHRIs and non-government organisations have consistently found and reported that human rights violations based on sexual orientation, gender identity and sex characteristics occur in every country and that people are at risk of violations based on these attributes. NHRIs therefore have a responsibility to respond with effective action to promote and protect the human rights of lesbian, gay, bisexual, transgender and intersex people. Many NHRIs in the Asia Pacific region have already accepted this responsibility and have implemented significant activities and programs. This manual contains many excellent examples of their work. The APF has worked for almost ten years on human rights issues relating to sexual orientation and gender identity and more recently on human rights issues relating to sex characteristics. It has taken seriously the recommendation in the Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity (the Yogyakarta Principles) that “[n]ational human rights institutions promote respect for these Principles by State and non-State actors, and integrate into their work the promotion and protection of the human rights of persons of diverse sexual orientations or gender identities”. It has developed this manual to assist NHRIs further to respond more effectively to this responsibility. The manual has been produced as part of a longstanding partnership between the APF and UNDP. In recent years that partnership has included collaboration on a number of individual activities concerning human rights in relation to sexual orientation, gender identity and sex characteristics. Now the partnership is moving to a new level of collaboration in a two-year integrated program of activities on these issues. The program will build on this manual with: • a regional conference to mark the tenth anniversary
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