Human Rights Based Approach at Sida Compilation of Briefs on Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) Persons

Briefs on Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) Persons

Sub-Saharan Africa South East Asia 1. Sub-Saharan Africa 18. South East Asia 2. Burkina Faso 19. Afghanistan 3. Democratic Republic of Congo 20. Bangladesh 4. Ethiopia 21. Cambodia 5. Kenya 22. Myanmar 6. Liberia 7. Mali Western Balkans 8. Mozambique 23. Western Balkans 9. Rwanda 10. Somalia Eastern Europe 11. Sudan and South Sudan 24. Eastern Europe 12. Tanzania 25. Russia 13. Uganda 14. Zambia Latin America 15. Zimbabwe 26. Colombia 27. Guatemala Middle East and North Africa 16. Middle East and North Africa 17. Palestine

Art.no.: sida61920en, urn:nbn:se:Sida-61920en Introduction

Human Rights Based Approach at Sida Human Rights Based Approach and The Human Rights Based Approach (HRBA) is estab- Lesbian, Gay, Bisexual, Transgender lished in Swedish policy, where it is called the rights and Intersex Persons perspective. It is based on the UN Universal Declara- Promoting and increasing respect for the human tion of Human Rights and adopted conventions, and is rights of LGBTI persons is a Swedish priority. Sweden a central starting point for development cooperation. works on many levels to advance the human rights of The integration and application of a HRBA in devel- LGBTI persons. The support includes capacity development cooperation is relevant in the analysis and opment of LGBTI organisations, legal aid and protec- management of operations and in the dialogue and tion measures as well as social and health initiatives. cooperation with partners and other stakeholders. This compilation includes 27 briefs with informa- For Sida, applying a HRBA implies both what to be tion and guidance on the application of the HRBA achieved and how it can be done. A HRBA is primarily in relation to LGBTI persons. There are briefs for applied through the four principles of non-discrimi- almost every country and/or region where Sweden nation, participation, transparency and accountability. is engaged in development cooperation. The briefs The main purpose of a HRBA is to empower boys, provide basic information about the situation of girls, men and women to claim their human rights LGBTI persons and inspire discussions on what (as rights holders) and to increase the capacity of Sweden could do to better include LGBTI rights in those who are obliged to respect, promote, protect programmes and dialogue. and fulﬁ l those rights (as duty bearers). In addition, there are two more compilations of briefs Sida has developed methodological material on how available: one on information and guidance on the to integrate a HRBA into development cooperation. application of a HRBA in different thematic areas and The methodological material is intended to provide one on information and guidance on the application Sida staff with information, tools and inspiration to of the HRBA in relation to persons with disabilities. apply a HRBA. It includes a number of HRBA related information briefs on a range of issues. However, Sida partners and stakeholders have also found the More information about the methodological material useful. material is available on: The methodological material includes guidance on practical application of a HRBA in various thematic areas, and addressing and including the human rights of children, Lesbian, Gay, Bisexual, Trans- gender and Intersex (LGBTI) persons and persons with disabilities. The LGBTI and disability briefs are available for almost all countries and regions where Sida works. The Rights of LGBTI people in Sub-Saharan Africa

November 2014

General situation of LGBTI people Legal and human right instruments Despite what many claim, homosexuality is not new Constitutional provisions and legal to the African continent. There is documentation of framework same sex sexual practice and gender transgression in all places and at all times throughout history. As of 2014, 36 countries in Africa criminalise certain same-sex sexual acts. In most cases through so The situation of LGBTI (lesbian, gay, bisexual, called ‘sodomy laws’, often introduced during the transgender and intersex) persons in African British colonial rule and kept after independence, countries is generally very difficult. Over 35 countries criminalising anal sex or “sex against natural order”. in Africa criminalise certain same-sex sexual acts The extent to which the legislation is implemented and few have any anti-discrimination or other varies between countries. Men have mostly been supportive legislation. The psychosocial impact of targeted in this colonial-inherited legislation, but in living under criminal laws is huge and the more recent legislation women are also targeted. consequent and continual threat of arrest or violence Trans-gender persons are rarely mentioned in laws, constitutes in itself a violation of the right to peace, as focus is often on the same-sex acts, but are still safety and security of the person. The impact often a target for arbitrary arrests and accusation of includes depression, anxiety, substance (drug and homosexuality. Few countries support trans-gender alcohol) use and addiction with social and persons with medical support to undergo sex psychological consequences for those affected. correction and there are few countries that have any Living openly, or even just being perceived as an anti-discrimination legislation in support of trans- LGBTI person, often brings a risk of getting rejected gender persons. On the contrary, authorities often when applying for employment, housing and assume that trans-gender persons are homosexuals, education as well as being denied access to food and they face the same persecution, often targeted and health care, including SRHR services and because of their visibility and non-conforming gender information. This exclusion and marginalisation expression. contributes to poverty and leads to further vulnerability and constitutes a violation of the socio- In countries where the penal codes are not economic and political rights of those who suffer implemented, ‘sodomy laws’ can still be used by these oppressions. Loss of social networks, in terms authorities to legitimise harassments and arbitrary of supporting families or the support from state arrests and to deny LGBTI persons rights like institutions, also contributes to poverty. freedom of expression or the right to organise, as well as everyday matters like custody of children, In recent years, LGBTI movements and persons on marriage or family insurance. In countries that do not the African continent have become more visible and have laws that explicitly criminalise homosexuality, vocal in claiming acceptance and rights. At the same authorities routinely use other laws to penalise or time, many African countries have experienced a arrest LGBTI persons, e.g. disorderly conduct, public backlash, in terms of human rights of LGBTI persons, indecency, contempt of religion and prostitution. In fuelled by religious fundamentalism. One of the most countries where the penal codes are implemented, extreme examples is Uganda, where evangelical punishments range from imprisonment of varying pastors from the US have paired up with homophobic lengths to the death penalty. politicians to spread anti-LGBTI propaganda. The same development is visible in other African countries, not at least in middle and central African countries.

Legal Illegal (male and/or female Death penalty Anti-homosexuality same-sex) propaganda laws Benin, Burkina Faso, Cape Algeria, Angola, Botswana, Mauritania, Gambia (2014), Nigeria Verde (2004), Congo, Chad, Burundi, Cameroon, Central Sudan, as well (2013), Tanzania Côte d’Ivoire, Democratic African Republic, Comoros, as 12 northern (2014) Uganda (2013, Republic of Congo, Djibouti, Egypt (female unclear), Eritrea, states in Nigeria abolished 2014 but Equatorial Guinea, Gabon, Ethiopia, Gambia, Ghana (male), and the appealed and re-written Guinea- Bissau (1993), Guinea, Kenya, Lesotho, Liberia, southern parts to be presented in Madagascar, Mali, Libya, Malawi, Mauritania, of Somalia. parliament). Mozambique (2014), Niger, Mauritius (male), Morocco, Rwanda, São Tome & Namibia (male), Nigeria, Senegal, Principe, South Africa Seychelles (male), Sierra Leone (1998). (male), Somalia, South Sudan, Sudan, Swaziland (male), Tanzania, Togo, Tunisia, Uganda, Zambia, Zimbabwe.

Reference: ILGA, 2014, State-sponsored Homophobia: A world survey of laws prohibiting same sex activity between consenting adults The accountability of governments in Africa for the “common law”, while not implementing the legislation Human Rights of LGBTI persons is generally very and allowing LGBTI movements to work freely. The poor. Very few governments in Africa have shown (un-official) marriage of two men passed without themselves willing to make commitments to protect interference from government and had some positive the rights of LGBTI persons. reviews in media. Some countries are responding to the visibility of the Regional and international human rights LGBTI movement by sharpening their words against instruments LGBTI rights. Uganda, Liberia, Zimbabwe and Mali During the past years, there have been several are debating the limitation of the rights of LGBTI referendums in the UN on resolutions with reference persons. Nigeria, Tanzania, Uganda and Liberia to sexual orientation and the rights of LGBTI have passed laws against homosexuality, although persons. The number of African nations that have the Ugandan law 2014 was repealed (at least raised their voices against LGBTI rights and voted temporarily). Some newly adopted constitutions against these resolutions is notable. South Africa is (Kenya, Zimbabwe) explicitly discriminate LGBTI the African country mostly voting in favour of LGBTI persons. rights at UN and other international level. Yet, some progress on a political level can be found In May 2014, the African Commission on Human and in other countries, especially in southern Africa. In Peoples’ Rights adopted a resolution condemning Malawi, the new elected president seems to open up violence based on sexual orientation and gender for a decriminalisation and in South Africa, the identity. The resolution calls on “State parties to country with one of the most protective constitutions ensure that human rights defenders are able to work for LGBTI persons in the world, the LGBTI movement in an environment free from stigma, reprisals or pushes the government to take action against the criminal prosecution as a result of their human rights hate crimes. Mozambique has a labour code that protection activities”. It further urges States to prohibits discrimination on the basis of sexual recognise acts of violence and abuse by individuals orientation, but at the same time they are not and groups by enforcing appropriate laws prohibiting allowing LGBTI organisations to register. Namibia is and punishing all forms of violence including those still criminalising same-sex acts through colonial

targeting people on the basis of their sexual decision to have children is either frowned upon or identities. They must also ensure the proper used as an argument for the person to enter a investigation and diligent prosecution of perpetrators heterosexual relationship. This pressure often also and have the necessary judicial procedures to comes from their families and the rest of the respond to the needs of victims. This resolution is a community. The reality is that many lesbians and milestone, but it has yet to be followed up by most women who have sex with women also have intimate national governments. sexual relationships with men alongside their same sex relations because of the social stigma and the Sexual and Reproductive Health and Rights, hostility towards their sexuality and gender identity. HIV/AIDS and Gender Based Violence Coherent with the global pattern, MSM and male to Where it is taboo to talk about sexuality in general, it female transsexuals (MTF) in Africa are, in is even more difficult to talk about homosexuality. It percentage, more affected by HIV than the general becomes a breeding ground for arguments about population, also in high risk countries where the homosexuality being a western influence, a sinful prevalence for heterosexual persons is high. lifestyle and a threat to the heterosexual family. So it Marginalisation, self-stigmatisation, discrimination is important to raise LGBTI issues within the sexual and lack of access to information and services make and reproductive health and rights (SRHR) field, to it more difficult for MSM and MTF persons to protect promote an understanding of homosexuality and themselves from infection. HIV prevalence among trans-gender as a natural part of the complex MSM has been found to be as high as 25 per cent in spectrum of human sexuality and gender identity Ghana and 43 per cent in coastal Kenya. MTF are often involved in sex-work, something which is also When promoting a positive attitude to sexuality, it is criminalised by many African countries, putting sex- also important to include the practices of women who workers at even higher risk of stigmatisation and have sex with women (WSW) and men who have sex arbitrary arrests. with men (MSM), who may identify as heterosexual and/or trans-gender. Sexuality education in school In those African countries where information is that promotes a positive view of sexuality and of available, research indicates that only 12 per cent of sexual diversity is essential for creating a society that MSM have access to HIV services. Stigma, respects the human rights of LGBTI persons. discrimination and fear of public exposure mean that these groups are less likely to access appropriate Stigma and discrimination paired with health staff’s services. Furthermore, LGBTI groups are usually not lack of knowledge of LGBTI-related issues around included in National Strategic Plans and most sexual health and education means that LGBTI countries in Africa have failed to report on MSM persons many times cannot access health care that indicators. is adequately adjusted to their specific and individual needs. Their sexual orientation or gender identity Violence against LGBTI persons is increasing in risks coming under scrutiny by health care workers countries where politicians and religious leaders are who are both ignorant about and biased against their hostile (and thereby indirectly or directly legitimising sexuality or gender identity. This vulnerability is often violence), resulting in murders and “corrective rapes”. invisible in external (Western) analyses that are Violence is often based on non-conforming gender largely based on identity categories rather than on identity or sexuality, also a form of gender-based the lived realities, practices, patterns and trends in violence. “Corrective rapes” often targets lesbians the contexts in which lesbian, gay, bisexual, and with masculine expression or transgender, FTM, transgender people live. persons or others that have non-conforming gender expressions. Lesbian women might risk being discriminated against while attending family planning and other reproductive health services. LGBTI persons’

Civil society organisations and institutions However, the needs and strategies of the LGBTI active in the LGBTI field movement differ from country to country. All support should be provided in full cooperation and agreement African LGBTI communities organise in various with local activists. ways, depending on the specific conditions of the country in question. In countries where Some important regional LGBTI homosexuality is criminalised, LGBTI organisations organisations on the continent are: are often not allowed to register as such. In these countries the organisations are often, but not always, CAL – Coalition of African Lesbians: small and ‘young’ and face many challenges to their http://www.cal.org.za/new/ growth and development. They sometimes work Pan Africa ILGA - gathering 41 organisations in under other official names and titles, e.g. ‘HIV Africa: http://africa.ilga.org prevention’ or ‘women’s or human rights’, or operate as branches within larger and better-established AMSHER – The African Men for Sexual Health and LGBTI friendly organisations. In some countries, the Rights: http://www.amsher.org/ LGBTI communities have not come to the point S.H.E - The Social Health and Empowerment where they are able to demand LGBTI rights openly feminist collective for transgender and intersex and officially, but prefer to work as social or health women in Africa, a feminist body working on the support groups. These organisations remain African continent. Based in South Africa but working dependant on others for their survival and are often regionally with trans and feminist issues. unable to act autonomously and without http://transfeminists.org conditionality in funding. The restrictions that LGBTI- organisations work under often violate the right to Iranti-org - is a queer human rights visual media freedom of association and expression and constrain organisation, formed with the clear intention of the ability of the organisations to become true building local partnerships and movements that use participants of the civil society, freely able to organise media as a key platform for lobbying, advocacy and and advocate for and defend the human rights of educational interventions across Africa. It works and LGBTI people. educates regionally, though based in Johannesburg, South Africa. http://www.iranti-org.co.za To promote meaningful participation and empowerment of LGBTI persons, the LGBTI Other important supporting CSOs and community generally needs institutions are: • Legitimacy, e.g. by participation in public Africagroups of Sweden –Swedish NGO, supporting dialogues, lobbying and sensitisation advocacy HIV, SRHR and civil society organisations in 5 work with states and religious groups without fear countries in southern Africa of persecution, ability to articulate and address immediate rights violations of LGBTI people, The African Commission on Human Rights www.achpr.org • Ability to monitor government decisions in terms of development and implementation of legislation HIVOS - a Dutch organisation, important funder of and policy, LGBTI organisations and allies. www.hivos.org • Capacity development of organisations, and IGLHRC - the International Gay and Lesbian Human Rights Commission. It is supporting organisations on • Systems to speedily and efficiently help human the African continent, e.g. with lobbying work within rights defenders of the rights of LGBTI people to the UN system. It has a South Africa-based office mount defence, protection and emergency www.ighlhrc.org responses,

ILGA - The International Lesbian, Gay, Bisexual, • Could Sweden do more to keep updated on the Trans and Intersex Association, an umbrella legal and security situation and the judgements organisation gathering more than 670 member and priorities of the LGBTI movements in the organisation world-wide: www.ilga.org region? Offer protection to activists and organisations at risk? Monitor and participate in International HIV/AIDS Alliance trials against LGBTI persons and LGBT Panos Network - works to strengthen independent organisations? journalism and information flows for poor and • marginalised people. Has several offices; in East Could Sweden do more to systematically Africa http://www.panosea.org/, Southern Africa influence regional mechanisms that have the http://www.panos.org.zm/ and http://www.panos- potential to engage with sexual orientation and ao.org/ gender identity issues (SOGI)? E.g. by raising LGBTI rights in dialogue with regional human RFSL, the Swedish Federation for the rights of rights organisations and institutions and LGBTQ persons. Organiser of global training supporting the capacity development of the Rainbow Leaders, active member of ILGA, National Human Rights Institutions (NRHI) to partnership with several organisations globally: enhance their understanding and work to protect www.rfsl.se and promote the human rights of LGBTI people. SafAids - promotes effective and ethical development • Could Sweden do more to enhance the capacity responses to Sexual Reproductive Health and of regional LGBTI actors and activists by Rights, HIV and TB through advocacy, supporting regional networking and capacity communication and social mobilisation. development of Human Rights and LGBT http://www.safaids.net/ organisations and to encourage synergies and UHAI- Provides grants and capacity support to sex experience exchange? worker and lesbian, gay, bisexual, transgender and • Could Sweden do more to support embassies intersex (LGBTI) organisations in the five East and consulates in the region to develop their African countries: Burundi, Kenya, Rwanda, capacity and interest to address LGBTI rights Tanzania and Uganda. http://www.uhai- within country level strategies and portfolios? eashri.org/ENG/ • Could Sweden do more to include LGBTI What Sweden can do at the regional level? – organisations in social, cultural and professional events and encourage embassies and 9 questions to discuss consulates to do the same? There are enormous obstacles for LGBTI people to • Could Sweden do more to include SOGI issues take part in the democratic processes, through which and LGBTI rights in on-going regional level human rights and individual freedoms can be programmes and in negotiations of new realised such as civil, economic, social, cultural and programmes (e.g. in cultural, legal/judiciary political development. Regional level programmes capacity building, anti-corruption, police have great potential to support movements which are training/correctional services and human rights oppressed in their respective countries, to raise programmes)? issues which are difficult at the national level and to encourage regional action in the African Commission • Could Sweden do more to bring up anti- for on Human and Peoples rights and in the UN discrimination, codes of conduct and labour system. In line with the Swedish regional strategy legislation, with the aim of reducing the following questions could be discussed: discrimination against people based on sexual orientation or gender identity in the private sector?

• Could Sweden do more to promote inclusion of For further advice on dialogue regarding LGBTI LGBTI persons in SRHR, HIV/AIDS and GBV issues, download the Sida ‘Human Rights of Lesbian, initiatives? Especially gender non-conforming Gay, Bisexual and Transgender persons - transgender and intersex persons? Conducting a Dialogue and the Ministry of Foreign Affairs Dialogue brief. Also refer to the EU tools and • Could Sweden do more to facilitate and support guidelines in the reference list. LGBTI reporting in Universal Periodic Reviews (UPR), shadow reports and other UN and African Union instruments?

References and reports Amnesty International Publications 2008 Love, Hate and the Law: http://www.amnesty.org/en/library/info/POL30/003/2008/en Amfar 2008, MSM, HIV, and the Road to Universal Access — How Far Have We Come? Anyamele, Chukwuemeka, et al, 2005, Africa Region Working paper for the World Bank, No. 84 World Bank: http://www.worldbank.org/afr/wps/wp84.pdf ILGA 2006, Lesbian and Bisexual Women's Health Report: http://doc.ilga.org/ilga/publications/publications_in_english/other_publications/lesbian_and_bisexual_women_ s_health_report ILGA, 2014, State-sponsored Homophobia: A world survey of laws prohibiting same sex activity between consenting adults. (see updated version at www.ILGA.org) Kiragu, Jane , 2007, This Body! Supporting LGBTI organising in East Africa, Urgent Action Fund for Women’s Human Rights: http://tinyurl.se/jzz_a2 Open Society Institute 2007, LGBT Health and Rights in East Africa: A Snapshot of Successes and Challenges for the Advocacy Community: http://www.soros.org/initiatives/health/focus/sharp/articles_publications/publications/lgbteastafrica_20070930 Piehl, Mathilda and Lenke, Karin, 2009, ‘Women Who have Sex with Women in the Global HIV Pandemic’, in: Development 52.1 on Sexuality and Development: http://www.ingentaconnect.com/content/pal/dev/2009/00000052/00000001/art00015 RFSL, 2008, LGBT in development - a handbook on LGBT perspectives in development cooperation: http://www.rfsl.se/public/LGBT_in_development.pdf EU news, tools and guidelines: http://eeas.europa.eu/human_rights/lgbt/index_en.htm The EU Guidelines (2013): Guidelines for supporting LGBTI persons' human rights

The human rights of LGBTI persons have been a Swedish government priority since 2009. As a service to staff, guidance notes have been prepared to provide basic information about the situation of this (often forgotten) group and inspire discussions on what Sweden could do to better include LGBTI rights in diplomacy and programming.

www.sida.se The Rights of LGBT persons in Burkina Faso

September 2012

General developments HIV/AIDS During the last few years, lesbian, gay, bisexual and Two organizations provide health services to men who transgender (LGBT) persons in Burkina Faso have begun have sex with men (MSM) and promote the right to health to come out publicly in the media. This has created for the group. L’Association African Solidarité (AAS) in debates that has shown the general reluctant and Ouagadougo has a webpage and can be found on homophobic attitude. However, the media attention can Facebook. According to a presentation at MSM Global also be interpreted as a sign of a loosening of the taboo forum, AAS provides people living with HIV/AIDS with surrounding the issue of homosexuality. prevention, medical and psychological care services. They Aggressive statements against homosexuality in Burkina also run a prevention program and a program for Faso come mostly from religious leaders. Statements in management of sexually transmitted infections (STI) the media opposing the human rights of LGBT persons among MSM. Responsabilité-Espoir-Vie-Solidarité+ have been based on religious motivations and the idea that (REVS+) in Bobo Dioulasso is a community based homosexuality is ‘un-African’. association working to prevent HIV and AIDS, providing comprehensive care to people living with the disease. Government attitude Burkina Faso is one of the countries included in the World The legislation in Burkina Faso does not explicitly prohibit Bank’s Multi-Country HIV/AIDS programme with focus homosexuality or homosexual acts. The Penal Code of on vulnerable groups, in particular MSM. An assessment 1996, however, includes ‘public nuisance’, which can be by World Bank Map Initiative reports that the level of interpreted and used against LGBT persons. The crime is awareness among MSM about STIs and HIV/AIDS is low, punishable with two months to two years of prison. Public and that the numbers of sexual partners among the nuisance is defined as ‘Any deliberate act that is contrary majority of MSM are high. There is a lack of prevention to good morals and is committed in public or in a private focused on the specific needs of the MSM group, which place visible to the public and may offend the sense of means that there is a need to develop targeted prevention decency of third parties who involuntarily witness the act’. actions in favour of this group. There are no documented arrests on grounds of this law. Statistics from the 2010 UNGASS report (Declaration of Instead, the government is silent on issues of Commitment on HIV/AIDS) shows that the HIV infection homosexuality. rate is 16 per cent among MSM in Burkina Faso compared The law further prohibits marriage between people of the to 1.2 per cent in the population in general. It also shows same sex. There is no legislation in Burkina Faso that that only 37 per cent of MSM is reached by HIV protects LGBT persons from discriminatory treatment. prevention program, and only 50 per cent report using a condom, despite being at high risk of HIV and STI. These In June 2011, Burkina Faso abstained to vote on a alarming statistics highlight the need of adequate resolution by South Africa to the United Nations Human prevention tools for the MSM group. Rights Council requesting that the United Nations High Commissioner for Human Rights should make a report on the situation of LGBT citizens worldwide. The resolution passed by 23 to 19 votes.

LGBT Organising information first hand from LGBT organisations when addressing the government, and Sida could In countries where the legislation does not recognise LGBT rights, people usually live and act in secrecy, which • establish relations with the LGBT organisations and is an obstacle to organised human rights work. In Burkina MSM outreach organisations and identify their needs Faso, some LGBT organisations are registered to work for and strategies for capacity building. the ‘protection of marginalised and estranged individuals’, Sida could approach local advocacy and educational due to fear of persecution from the authorities. organisations that work for increased respect, protection A central challenge for the LGBT community in Burkina and promotion of Human Rights to support local LGBT Faso is the attitude of the general public. LGBT organisations. Entry points could be: organisations work primarily with counselling and • the cooperation with the National Democratic Institute support, helping people to deal with their sense of guilt to promote women’s participation, caused by the stigma from the society. They also provide models of affirmation to increase self-esteem. Thus, the • to raise LGBT issues and supporting concrete organisations works mainly towards a long-term measures for inclusion of the MSM group as part of improvement within their member base, as they do not at the education and health sector support, this point have the capacity to reach out to the public or to • inviting these groups to meetings with other relevant advocate for the rights of LGBT people. Their first priority actors, such as Human Rights groups, Women’s is to raise funds to create a safe meeting space for their groups, HIV/AIDS organisations (these groups could members. This has so far been a challenge. function as entry points into larger networks in civil society), and Addressing LGBT within the Cooperation Strategy • ensure inclusion of measures for the MSM group in support via the Aids Alliance. Within the democracy and human rights theme, Sida Investigate ways to cooperate with the Diakonia office in supports capacity development of the government. Sida Burkina Faso regarding LGBT. (Regionally, Diakonia has can, in cooperation with likeminded donors, promote and worked with the issue in some other countries, such as monitor inclusion of LGBT issues in these efforts. For Zambia, Uganda and through the regional office in more information and support, see the SIDA LGBT Kenya.) Dialogue Papers. For further advice on dialogue regarding LGBT issues, Coherent with the country strategy and Swedish download Sida’s ’Human Rights of Lesbian, Gay, cooperation with Burkina Faso, Sida could consider to: Bisexual and Transgender persons – Conducting a • investigate the possibilities to include LGBT rights in Dialogue’ the cooperation with the National Democratic More specific advice and support measures, as well as Institute. contact information to mentioned groups, can also be When working in an environment where the topic same provided through ILGA or RFSL, should the Embassy sex relations is sensitive, it is crucial to receive wish for a dialogue.

List of acronyms CAL - Coalition of African Lesbians FTM - Female to male transsexual Gender expression - The gender that a person chooses to express with their clothes and other attributes, this may differ from their biological and legal gender. Gender identity - The gender that a person identifies with is their gender identity, this may differ from their biological and legal gender. HRW - Human Rights Watch ILGA - International Lesbian, Gay, Bisexual, Trans and Intersex Association LGBT - Internationally recognised term for lesbian, gay, bisexual and transgender. LGBTI - lesbian, gay, bisexual, transgender and intersex MSM - Men having sex with men MTF - Male to female transsexual RFSL - The Swedish Federation for Lesbian. Gay, Bisexual and Transgender rights SOGI - sexual orientation and gender identity SRHR - Sexual and Reproductive Health and Rights STI – Sexually Transmitted Infections Transgender - An umbrella term used to denote people who see their gender identity and/ or a gender expression that differ from the gender they have been assigned, biologically and/or legally. UPR - Universal Periodic Review WSW – Women who have sex with women

References specifically related to Burkina Faso Global Forum on MSM and HIV: Statistics Burkina Faso: http://www.msmgf.org/index.cfm/id/110/country_id/46 Men who have sex with men in Burkina Faso, Senegal, and The Gambia: The multi-country HIV/AIDS program approach. Niang, C., et al, 2004: http://www.popcouncil.org/pdfs/BangkokPosters/Niang_MSM_4Country.pdf http://www.iasociety.org/Default.aspx?pageId=11&abstractId=2168879 National Democratic Institute: http://www.ndi.org/content/burkina_faso S.Kalifa, et al, 2008, Study on the prevention needs of men who have sex with men in the town of Ouagadougou, Burkina Faso, AIDS 2008 - XVII International AIDS Conference: Abstract no. THPE0404: http://www.iasociety.org/Default.aspx?pageId=11&abstractId=200719602 Sida Strategy, Burkina Faso, 2004-2006: http://www.regeringen.se/sb/d/1390/a/23602 Targeting Vulnerable Groups in National HIV/AIDS Programs, Niang, C., et al, 2004 The Case of Men Who Have Sex with Men Senegal, Burkina Faso, The Gambia: http://siteresources.worldbank.org/AFRICAEXT/Resources/no_82.pdf

UNAIDS Statistics on HIV in Burkina Faso: http://www.unaids.org/en/regionscountries/countries/burkinafaso/

General references 3-year Action Plan on LGBT rights for 2007-2009, Swedish only: http://www.sida.se/Documents/Import/pdf/Sidas- arbete-med-Homo--Bi--och-Transfr229gor-i-utvecklingssamarbetet2.pdf An introduction in how to include LGBT in programming in development, by RFSL: http://www.rfsl.se/public/LGBT_in_development.pdf ILGA: http://africa.ilga.org RFSL: http://www.rfsl.se Sexual orientation and gender identity at the United Nations, Wikipedia: http://en.wikipedia.org/wiki/Sexual_orientation_and_gender_identity_at_the_United_Nations Sida ‘Human Rights of Lesbian, Gay, Bisexual and Transgender persons - Conducting a Dialogue’: http://www.sida.se/PageFiles/31955/12659_Dialogue_paper_HBT_web.pdf State-sponsored Homophobia: A world survey of laws prohibiting same sex activity between consenting adults. Bruce- Jones, Eddie and Itaborahy, Lucas Paoili, 2011, International Lesbian and Gay Association (ILGA): http://old.ilga.org/Statehomophobia/ILGA_State_Sponsored_Homophobia_2011.pdf Swedish Gender Policy: http://www.sweden.gov.se/sb/d/574/a/152297 Swedish policy on sexual rights: http://www.sida.se/Global/About Sida/Så arbetar vi/Sexual Rights for All_webb.pdf

www.sida.se The Rights of LGBTI People in the DR of Congo

December 2014

General situation of LGBTI people Few organisations work openly to protect the rights Attitudes among the Congolese public are not friend- of LBGTI persons and members of these organisa- ly towards lesbian, gay, bisexual, transgender, and tions are stigmatised and often accused of promot- intersex (LGBTI) people. Several LGBTI activists ing homosexuality, especially outside Kinshasa. In claim that the society is extremely homophobic and Bukavu, members of one organisation have report- transphobic and that they cannot be open about their edly been victims of arbitrary arrest, of sexual vio- sexual orientation or gender identity with their fami- lence, and of death threats to the extent that the lies or at work. In eastern Congo, the experiences of President of the organisation fled abroad. the Swedish organisation, Kvinna till Kvinna, (Wom- an to Woman) is that LGBTI people experience ex- There is currently no legislation governing homo- treme discrimination, violations, and threats. Even sexual activity. A draft bill has been prepared that minor deviations from traditional gender roles can would criminalise same-sex sexual acts. D iscus- cause violence or attempts to erase the existence of sion and passage of the bill would likely increase discrimination against LGBTI persons or persons LGBTI people, making them silent and invisible. perceived to be LGBTI, thereby exacerbating the Diverse sexual and gender identities are taboo, and country’s poor record on human rights protection those who are open about their experience face vio- particularly in connection with sexual and gen- lence, hostility, widespread discrimination, rejection, der‐based violence. social exclusion, and harassment, with LGBTI people lacking real support services. Cross-dressing or chal- Legal and human rights instruments lenging gender norms in other ways can result in violence or harassment and Congolese activists have Constitutional provisions and legal framework given personal examples of the hardships they en- There is no explicit criminalisation of same-sex sexu- counter being homosexual or transgender in the al acts in the DRC and it should be noted that it has DRC. They give evidence of widespread discrimina- never been illegal. However, some sources indicate tion and that their families and communities often re- that same-sex acts can be criminalised under the ject them and subject them to threats, rejection, and ‘public decency provisions’ in the Congolese Penal insults. Assault and rape is commonly reported. Re- Code, Article 176. However, in practice, prosecutions spondents suggest that lesbian and transgender are rare. people are particularly exposed to sexual violence. The DRC's Constitution guarantees equality (Article Religious institutions play a major role in spreading 12), non-discrimination (Article 13), and the right to homophobia. The widespread cultural belief in witch- privacy (Article 31). All of which is not secured for craft, "La sorcellerie", is a threat to the rights of LGBTI persons. LGBTI persons, when homosexuality is often linked As in neighbouring countries, the DRC has debated to witchcraft. whether homosexuality should be criminalised or not. In many parts of the country, LGBTI persons keep In November 2010, a proposal for a ‘Sexual Practic- a very low profile, often outwardly conforming to es Against Nature Bill’ was discussed in the Parlia- the norm (by being married and having children, ment, but was not approved and is presently not un- for example) but keep their same-sex sexual rela- der consideration. Such a law would, apart from crim- tions outside the marriage. In Kinshasa, like often inalising same-sex sexual acts, violate the freedom with larger cities, it is reported that there is more of expression, freedom of organisation, and the right tolerance and it is easier to organise and have so- to privacy. This must be regarded as a serious back- cial gatherings.

lash and threat to democratic progress. It is notable Commission on Human and Peoples’ Rights. All of that the language used in the Bill was similar to that these instruments could be used to hold the DRC ac- of the infamous Anti-Gay Bill in Uganda and it is re- countable to better ensure LGBTI rights. ported that the Ugandan bill directly inspired MPs in The UN General Assembly 2010 adopted a declara- both the DRC and several neighbouring countries, tion of LGBTI rights, which was not supported or op- such as Rwanda, Burundi and Kenya. posed by the DRC government. Similarly, they nei- There is no legal recognition of same-sex couples ther supported nor sponsored the Human Rights and the first paragraph of Article 40 of the Congolese Councils 2011 resolution on LGBT right. Constitution explicitly defines marriage and the family In May 2014, the African Commission on Human and as reserved for straight couples by stating, “Every in- Peoples’ Rights adopted a resolution condemning dividual has the right to marry the person of their violence based on sexual orientation and gender choice of the opposite sex”. identity. The resolution calls on “State parties to en- There is no anti-discrimination or hate crime legisla- sure that human rights defenders are able to work in tion that protects LGBTI people from harassment and an environment free from stigma, reprisals or criminal violence on the basis of their sexual orientation prosecution as a result of their human rights protec- and/or gender identity. There is also no legislation on tion activities.” It further urges States to recognise gender recognition or other rights for transgender or acts of violence and abuse by individuals and groups intersex people who may wish to change their legal by enforcing appropriate laws prohibiting and punish- documents. ing all forms of violence including those targeting people on the basis of their sexual identities. They Traditions and customary laws can differ in different must also ensure the proper investigation and dili- areas of the DRC, and yet have a very important role gent prosecution of perpetrators and have the nec- in practice. When working with customary law and essary judicial procedures to respond to the needs of gender, it is useful to bear in mind that sexuality and victims. This resolution is a milestone, but it has yet gender are perceived differently in different contexts. to be followed up at (the) national level. The organisations Si Jeunesse Savait and Sexual Rights Initiative (SRI) notes in the shadow report to the 19th UPR session 2014 that “ the state is commit- Sexual and Reproductive Health and ted to investigate and prosecute the military, police, intelligence officers involved in torture, killing, rape Rights, HIV/AIDS and Gender-based Vio- and other human rights violations but we find that this lence was not the case for lesbians gay bisexual, trans- The DRC has been embroiled in internal conflict for gender and intersex Congolese” the last two decades with the health infrastructure dismantled during the armed conflict. The sexual and Regional / international human rights instruments reproductive health of the Congolese people remains DRC has ratified many of the main international hu- unaddressed and basic services were unavailable or man rights instruments. As such it is bound to fulfil, inaccessible to the majority of the population with a protect, and respect the rights enshrined in these in- dire situation in the eastern part of the country. The struments. All Congolese people may turn to the UN sexual and reproductive health and rights (SRHR) of Human Rights Committee through procedure 1503, LGBTI people face immense challenges, with the to the Special Rapporteurs for violations of specific country recording some of the poorest SRHR statis- human rights, to ECOSOC for women's rights viola- tics globally. tions, and use the UNESCO procedure for human The 2014 Country report by DRC to UNAIDS pre- rights violations in UNESCO's fields of mandate. The sents an HIV prevalence of 17.9% and low access to DRC is also a member of the African Union and its health services among men who have sex with men citizens and NGOs may file complaints to the African

(MSM) in the DRC. The statistics they draw upon Civil society organisations and institu- come from the non-governmental organisation, tions active in LGBTI work Progrès Santé Sans Prix (PSSP, Progress and Health Without a Price) in Kinshasa, an HIV service Lesbian, gay, bisexual, transgender and intersex provision organisation. This follows global figures people in the DRC often work underground and or- that show disproportionately higher rates of HIV ganisations take the form of loose networks rather among MSM compared to the general population, than formal ones. especially in low income countries where poverty and There is an LGBTI-inclusive feminist association criminalisation lead to lack of information and less based in Kinshasa, Si Jeunesse Savait, affiliated with service to high risk populations. Without proper pre- the International Lesbian, Gay, Bisexual, Trans and vention strategies, MSM will continue to further Intersex Association (ILGA). http://www.mwasi.com/ spread the epidemic. Increased awareness about MSM and HIV can also be used to put LGBTI rights There are a number of smaller LGBTI organisations issues on the agenda, which makes it strategically in Kinshasa, where acceptance and visibility of useful to allocate resources for research on MSM LGBTI people seems to be a bit higher than in the prevention and prevalence. country as a whole. Rainbow Sunrise Mapambazuko is an LGBTI non-governmental organisation in The feminist organisation Si Jeunesse Savait reports Bukavu. Although they do not work openly, they are that LBT women are at very high risk of family pres- supportive of LGBTI members. sure, forced marriage, and sexual violence. It reports that the patriarchal structures require that even het- Another small LGBTI organisation is the Movement erosexual women need to come with her husband for Promotion of Respect and Equal Sexual Rights /male partner to access reproductive service. LBT (MOPRED, Mouvement pour la Promotion de du Re- women who are in e.g. sex work can have hardship spect et Egalité des Droits Sexuel en RDC), located to access Kit pep or emergency contraception be- in Goma and extends into the Grand Kivu (South and cause they don’t live with a man North Kivu). MOPRED aims to find strategies and means to support and help LGBTI communities in As a result of the conflict, much of the population, in- Goma; however, it is challenging as few organisa- cluding LGBTI people, has been subjected to sys- tions are willing to include LGBTI issues, even when tematic sexual and gender-based violence, which it comes to HIV/AIDS, and it is difficult to access has been used as a weapon of war basically to hu- funding to do outreach. miliate and intimidate the enemy. The widespread sexual violence against women in eastern DRC is Other relevant organisations are: well documented and has led to a UN resolution to Lesbian Human Rights Commission (IGLHRC): end it. Less known is the number of men who are al- http://iglhrc.org/ , so victims of extreme sexual violence and, in some areas, especially in eastern Congo, up to 22% of ILGA Africa: http://africa.ilga.org, men are reported to have been raped. Many victims Diakonia: http://www.diakonia.se/Har-finns- avoid seeking help because of the stigma and shame vi/Afrika/Kongo-KinshasaDRK/ , associated with being raped and it has been reported International Alert: http://www.international-alert.org/ by hospitals and humanitarian organisations that people have died from untreated injuries after being sexually assaulted. Soldiers are believed to use the general taboo against homosexuality to humiliate LGBTI people by raping them.

What Sweden could do? – 8 questions organisations and mainstream Human Rights organisations, both nationally and regionally? Within the broader context of support to democracy, human rights, and gender equality in the DRC, Swe- • Could Sweden do more to include LGBTI organi- den has a great opportunity to include issues related sations in civil society and human rights network- to the rights of LGBTI persons. When addressing ing and capacity development support? LGBTI perspectives in a non-supportive government • Could Sweden do more to raise anti- context like the DRC, it is very important to consult discrimination, codes of conduct, and employ- local LGBTI organisations to ensure their work is not ment legislation, with the aim of reducing discrim- conflicted. ination against people based on sexual orienta- Questions to discuss: tion or gender identity? • Could Sweden do more to stay updated on the • Could Sweden do more to include gay, lesbian, legal and security situation and the needs and bisexual, trans and intersex people and the MSM priorities of the LGBTI movement? group in the supported SRHR initiatives or work with HIV/AIDS? • Could Sweden do more to seek effective strategic alliances and continue to raise LGBTI rights • Could Sweden do more to include the LGBTI in the dialogue with the government? population in gender-based violence initiatives? • Could Sweden do more to offer protection to ac- For further advice on dialogue regarding LGBTI is- tivists and attend court cases? Could Sweden do sues, download Sida’s Human Rights of Lesbian, more to contribute to the protection of organisa- Gay, Bisexual and Transgender Persons - Conduct- tions at risk? ing a Dialogue and the Ministry of Foreign Affairs Dialogue brief. Also refer to the EU tools and guide- • Could Sweden do more to encourage and sup- lines in the reference list. port cooperation and synergies between LGBTI

References ILGA, 2014, State-sponsored Homophobia: A world survey of laws prohibiting same-sex activity between consenting adults (See updated version at www.ILGA.org) RFSL, LGBT in Development, An introduction in how to include LGBT in programming in development http://www.rfsl.se/public/LGBT_in_development.pdf Sida’s Human Rights of Lesbian, Gay, Bisexual and Transgender Persons - Conducting a Dialogue and the Ministry of Foreign Affairs Dialogue brief. EU news, tools and guidelines: http://eeas.europa.eu/human_rights/lgbt/index_en.htm The EU Guidelines (2013): Guidelines for supporting LGBTI persons' human rights

Specific references Cassiau-Haurie, Christophe and Luwa, Sylvestre, 2009: L’homosexualité en Afrique, un tabou persistant L’exemple de la RDC, Africultures (French only): http://www.africultures.com/php/index.php?nav=article&no=8630 Head, Josephine, 2014, Effecting Culture Change around Attitudes to LGBTQ Communities in the Democratic Republic of Congo, Argus Foundation. Immigration and Refugee Board of Canada (2008 - February 2011) Democratic Republic of the Congo: Situa- tion of homosexuals, including legislation and support services; treatment of homosexuals by society and government authorities: http://www.unhcr.org/refworld/docid/4db7c4272.html Makwelebi, Voulo, 2012, Effectiveness of rapid night-time HIV testing for men who have sex with men (MSM) in Kinshasa, Democratic Republic of Congo, abstract: http://pag.aids2012.org/Abstracts.aspx?SID=188&AID=15064 Programme National Multisectoriel de Lutte Contre le Sida 2014, RAPPORT SUR L’ETAT D’AVANCEMENT DE LA REPONSE A L’EPIDEMIE DU VIH/Sida, (French only) http://www.unaids.org/sites/default/files/en/dataanalysis/knowyourresponse/countryprogressreports/2014coun tries/COD_narrative_report_2014.pdf Si Jeunesse Savait & Sexual Rights Initiative, 2014 Examen périodique universel de la République Démocra- tique du Congo 19ièm Session. http://fr.scribd.com/doc/228270191/RDCongo-Rapport-Alternatif-Droits- Sexuels-presente-a-l-evaluation-periodique-universelle-de-2014#scribd Storr, Will and Powell, Jim 2011-07-15: Male rape: a weapon of war: http://www.guardian.co.uk/world/interactive/2011/jul/15/democratic-congo-male-rape The Global Forum on MSM & HIV, 2010-11-03: MSM Groups Mobilise Against DRC's Anti-Gay Bill: http://www.msmgf.org/index.cfm/id/11/aid/2094

The human rights of LGBTI persons have been a Swedish government priority since 2009. As a service to staff, guidance notes have been prepared to provide basic information about the situation of this (often forgotten) group and inspire discussions on what Sweden could do to better include LGBTI rights in diplomacy and programming.

www.sida.se The Rights of LGBTI people in Ethiopia

December 2014

General situation of LGBTI people Legal and human rights instruments LGBTI persons in Ethiopia are living in a country Constitutional provisions and legal frame- where homo- and transphobia is widespread, in work general society, politics as well as in religious The Constitution (from 1991) guarantees certain hu- settings. The state criminalises sex between man rights for all Ethiopians, for example Article 24 men and Pew Research Centre’s 2007 Global on right to Honour and Reputation: Attitude Survey found that 97% of Ethiopians 1. Everyone has the right to respect for his hu- harboured some homophobic beliefs. Interviews man dignity, reputation and honour. with LGBTI persons in Ethiopia provide evi- 2. Everyone has the right to the free develop- dence of the invisibility of LGBTI persons, the ment of his personality in a manner compati- impossibility to be open to your family, and vio- ble with the rights of other citizens. lence against LGBTI persons in society, and not at least, in prisons. 3. Everyone has the right to recognition every- where as a person. The largest percentage of Ethiopia’s population And Article 25, the Right to Equality: identifies as Orthodox Christian, while Muslims All persons are equal before the law and are entitled make up around 34% of the population, and without any discrimination to the equal protection of Protestant 19%. The Ethiopian Orthodox Church the law. In this respect, the law shall guarantee to all plays a very important role in society. Over the persons equal and effective protection without dis- past few years, Ethiopia has witnessed a small crimination on grounds of race, nation, nationality, or but growing campaign against homosexuality. At other social origin, colour, sex, language, religion, the forefront is the Weyneye Abune Tekleha- political or other opinion, property, birth or other sta- imanot Spiritual Association, a religious society tus. linked to the Orthodox Church. Recently, some Despite this, both male and female same-sex religious leaders have moved toward emphasis- sexual activity is illegal in the country since ing so-called “rehabilitation” for homosexuals. 2004, with a penalty of imprisonment of 10 years They claim to have “helped” hundreds of gay or more, according to The Criminal Code (Proc- people leave their homosexuality behind and lamation No. 414/2004 Art. 629, 630,106). How- want the government support to continue their ever, there are indications that no one has been work. charged or convicted of the crime since this legislation was introduced. Human rights lawyer While the state criminalise same-sex sexual Abebe Hailu explains this to a journalist from acts, the government in April 2014, acted to pre- Good Governance Africa that Ethiopia’s criminal vent a religiously motivated anti-homosexuality system is overloaded, and that therefore is little rally that had been planned for. There are indi- judicial appetite to prosecute homosexuality. cations that the state was afraid of possible cuts to Ethiopia’s aid, as human rights groups had In March 2014, Ethiopian lawmakers considered advocated on behalf of LGBTs in the country. changing the legislation so that someone convicted for same sex acts could not be pardoned,

but this did not happen. Information Minister human rights violations on the basis of sexual Redwan Hussein is quoted by the Guardian as orientation and gender identity, adopted by the having said that homosexuality is not a serious United Nations Human Rights Council in Sep- crime, and that it is not as widespread as some tember 2014. people suggest. He continued to say that it is al- All inhabitants of Ethiopia may turn to the UN ready a crime with a punishment prescribed for Human Rights Committee through procedure it, and so the government therefore thinks the 1503, to the Special Rapporteurs for violations current jail term is enough. of specific human rights or to ECOSOC for In February 2009, the Government adopted women's rights violations. Ethiopia is a member the Proclamation to Provide for the Registration state of UNESCO, and citizens may use the and Regulation of Charities and Socie- UNESCO procedure for human rights. These ties (CSP), Ethiopia’s first comprehensive law avenues are yet to be tried by the LGBTI com- governing the registration and regulation of munity. NGOs. The law violates international standards In May 2014, the African Commission on Human relating to the freedom of association. Notably, and Peoples’ Rights adopted a resolution con- the Proclamation restricts NGOs from engaging demning violence based on sexual orientation in essentially all human rights and advocacy ac- and gender identity. The resolution calls on tivities if they receive more than 10% of their fi- “State parties to ensure that human rights de- nancing from foreign sources The CSP includes fenders are able to work in an environment free barriers to engage in activities that include gen- from stigma, reprisals or criminal prosecution as der and religion, the promotion of conflict resolu- a result of their human rights protection activi- tion or reconciliation, and the promotion of the ties.” Additionally, States are urged to no longer efficiency of the justice and law enforcement tolerate acts of violence and abuse by executing services. This law could be an obstacle in sup- laws to prohibit and punish these forms of vio- porting the work of LGBT rights. lence directed toward people on the basis of Regional or international human rights in- their sexual identity. States are advised to inves- struments tigate and prosecute perpetrators of violence and have the necessary judicial means to sup- Ethiopia has ratified several conventions, includ- port victims. This resolution is a milestone, but it ing the ICCPR, CEDAW, ICESCR and CAT, has yet to be followed up in member states. conventions of special importance when it comes to human rights for LGBTI persons. In- Sexual and Reproductive Health and habitants of Ethiopia and their representatives are able to invoke their human rights through Rights and HIV/AIDS these bodies, which could be addressed e.g. According to UNAIDS statistics, the HIV preva- through UPR processes However, Ethiopia has lence in Ethiopia is relatively low, around 1,2% rejected the United Nations member states' for the adult population. However, it was in- genuine concerns about freedom of expression creasing in large towns including Addis Ababa, in the country and it is not likely to listen to rec- from 2005 to 2011. The HIV epidemic in Ethio- ommendations on LGBTI rights. Ethiopia was pia is becoming more concentrated in urban ar- one of the countries to vote “No” on the LGBTI eas and along major transport corridors. rights resolution for human rights on combatting

Information about MSM is lacking in Ethiopia, as Civil society organisations and institu- reliable data are not available. The group is vul- tions active in LGBTI field nerable, little researched and under-served. In There are not many organisations openly work- Sub-Saharan Africa, available data show that ing for LGBTI persons in Ethiopia. There are men who have sex with men (MSM) face high some Internet based forums, but no LGBTI or- HIV prevalence and incidence. In most countries ganisations working in the country. There are, with reliable data, HIV prevalence amongst however, some programmes that address the MSM is higher than or nearly equal to preva- health related needs of those most at risk and lence in the general population. In the region as those most marginalised, especially MSM. a whole, aggregated HIV prevalence for MSM is more than three times that of the general popu- The Sida supported East African regional organ- lation. It could be assumed that this would be isation UHAI, which is supporting LGBTI initia- the case in Ethiopia as well. Studies have seen tives and organisations, has not yet engaged that criminalisation of sex between men, togeth- with Ethiopia. The LGBTI community in Ethiopia er with stigma and discrimination is one factor needs allies nationally and regionally who can driving the pandemic in vulnerable groups. The help champion their cause. criminalisation of MSM effectively disempowers their access to services and hurts the clinics that What Sweden can do – 10 questions to could potentially offer them the specialised ser- consider vices necessary. There is limited ability for MSM to openly participate in shaping the national pro- Within the framework of the new results strategy cesses that appropriate programs and financing. for Ethiopia, Sweden has a great opportunity of including the rights of LGBTI persons. Within the At an event organised in July 2014, by the Ethi- areas of a) democratic development and in- opian Interfaith Forum for Development Dia- creased respect for human rights as well as b) logue and Action and UNAIDS in collaboration access to justice and rule of law, Questions to with Christian Aid, Norwegian Church Aid and discuss: Dan Church Aid, the leaders of the major reli- • gious groups of Ethiopia announced their united Could Sweden do more to stay updated on stance to end the AIDS epidemic by 2030. Reli- the legal and security situation by conducting gious leaders produced a joint position paper a dialogue with LGBTI activists and allies? calling on the Ethiopian government to uphold • Could Sweden do more to bring up LGBTI principles of human decency and equality, and rights in the dialogue with the government in to make a commitment toward reducing HIV in cooperation with the UN and other donors? the post-2015 agenda for sustainable develop- • Could Sweden do more to promote and sup- ment. Making sure to include MSM as a group at port inclusion of LGBTI rights in reporting to high risk could be an entry point for LGBTI rights the African and UN human rights systems? and it is a positive sign that religious leaders ad- • Could Sweden do more to encourage and dress human rights in the work of HIV/AIDS. support Swedish faith-based organisations operating in Ethiopia to include the issue of LGBTI rights?

When addressing LGBTI rights where there is a Presently, discrimination within the labour mar- non-supportive government, it is very important ket is a factor that strongly contributes to the to consult LGBTI organisations in the country to marginalisation of LGBTI persons, and puts make sure not to overrule their agenda. While them at risk of poverty. there is a lack of organisations based in Ethio- • In the support to private sector development pia, it could be wise to contact regional organi- and entrepreneurship, could Sweden do sations, like Pan-African ILGA, CAL and UHAI more to bring up anti-discrimination concern- for advice and consultation in order to help an ing codes of conduct and labour legislation, emerging LGBT movement to become part of a with the aim that it does not discriminate pluralistic civil society people due to sexual orientation or gender • Could Sweden do more to encourage and identity? support mainstream Human Rights organi- For further advice on dialogue regarding LGBT sations and agencies in Ethiopia to work issues, download the Sida the Sida ‘Human with promotion and protection of LGBTI Rights of Lesbian, Gay, Bisexual and rights, and support them to nurture emerging Transgender persons - Conducting a Dialogue LGBT organisations? and the Ministry of Foreign Affairs Dialogue • Could Sweden do more to include LGBT brief. Also refer to the EU tools and guidelines in persons and the MSM group into work of the reference list. sexual and reproductive health and rights or More specific advice and support measures, as HIV prevention initiatives? In gender equality well as contact information to mentioned groups, and GBV initiatives? can also be provided through ILGA or RFSL, should the Embassy wish for a dialogue.

References General references MSM Global Fund http://www.msmgf.org RFSL, LGBT in Development, An introduction in how to include LGBT in programming in development: http://www.rfsl.se/public/LGBT_in_development.pdf Sida ‘Human Rights of Lesbian, Gay, Bisexual and Transgender persons - Conducting a Dialogue and the Ministry of Foreign Affairs Dialogue brief EU news, tools and guidelines: http://eeas.europa.eu/human_rights/lgbt/index_en.htm The EU Guidelines (2013): Guidelines for supporting LGBTI persons' human rights

Specific references ILGA, 2014,State-sponsored Homophobia: A world survey of laws prohibiting same sex activity between consenting adults. (See updated version at www.ILGA.org) PEW Research Centre, http://www.pewresearch.org/ Rainbow Ethiopia An online magazine, http://rainbowethiopia1.net USAID -Democratic and Health Surveys Programme, http://dhsprogram.com/ UNAIDS Ethiopian religious leaders call for ending the AIDS epidemic by 2030, 11 July 2014, http://www.unaids.org/en/resources/presscentre/featurestories/2014/july/20140711fbo UNDP Joint Programme on Gender Equality and Women Empowerment, http://www.et.undp.org/content/ethiopia/en/home/operations/projects/democratic_governance/projec t_GenderEqualityandWomenEmpowerment/ UNESCO2010, Claiming Human Rights - in Ethiopia, http://www.claiminghumanrights.org/ethiopia.html%3F%26L=0 UNHCR Ref World Ethiopia: Declines to accept UN member states' recommendations on free expression, 8 July 2014, http://www.refworld.org/docid/53d0e86f4.html

www.sida.se The Rights of LGBTI People in Kenya

January 2015

General situation of LGBTI people Lesbian, gay, bisexual, transgender and intersex Constitution specifically states that marriage has to (LGBTI) persons in Kenya face discrimination, stig- be between a man and a woman. ma, and physical violence, including sexual and gen- Further, in Chapter 63, Sections 162, 163 and 165 of der-based violence. There are high levels of homo- the Kenyan Penal Code, carnal knowledge “against phobia and transphobia in Kenyan society, which is the order of nature” is criminalised with the penalty of often incited by religious organisations and leaders 5 - 14 years’ imprisonment. Arrests of LGBTI people publicly condemning homosexuality. under these sections are not very common because Strategic litigation has been used to try to access of the burden of proof required. According to GALCK, rights for transgender and intersex people, who par- when arrests do occur the Police usually change the ticularly experience high levels of stigma, discrimina- charges to something that can more easily be proven tion and violence. Trans-persons are not able to ac- in court. Although only men are explicitly mentioned, cess gender affirming therapy, while intersex people the phrase “against the order of nature” can be inter- face hostility and violence in society. Due to uncer- preted for use against same-sex relations between tainty about their gender, intersex people may not be women as well. One main problem facing LGBTI issued a birth certificate and consequently can be persons is the continual rhetoric that same sex sexu- denied Kenyan citizenship, employment and the right al relationships is an immoral ‘un-African’ practice to vote. Countless intersex Kenyans are forced to live and is against biblical teachings, which leads to their unrecognised as citizens. on-going harassment by Police and wider society. HIV training workshops for men who have sex with Government representatives have made hostile pub- men (MSM) and LGBTI people have also been at- lic statements about LGBTI people. In February tacked in Likoni, Mombasa, with the attacks reported- 2014, a group of Kenyan Members of Parliament ly organised by religious leaders. Local LGBTI launched a parliamentary caucus against homosexu- groups concerned about the safety of participants ality. They vowed to ensure the enforcement of exist- have advised that they should be consulted prior to ing laws against gay sex and strengthening of the such workshops. laws, if required, and sought explanation from the At- torney General, the Director of Public Prosecutions, The Gay and Lesbian Coalition of Kenya (GALCK), and the Registrar-General as to why openly gay an LGBTI umbrella organisation, has identified some people are not being charged with criminal offences improvements in societal attitudes, particularly signs and why they are being allowed to form lobby of acceptance within media in the less- groups. The response from the parliament was an sensationalised reporting of LGBTI issues. The gen- acknowledgement that the legislation is active and eral public is beginning to take a ‘let them be’ stance, that persons are prosecuted although there is still a long way to go to ensure proper understanding of LGBTI issues. In 2014, two important cases regarding trans persons were won, in the High Court. One where the High Court ordered the National NGO Council to register Legal and human rights instruments the trans organisation Transgender Education and Advocacy, and one where a trans person, Audrey Constitutional provisions and legal framework Mbugua got the right to change name and gender on The Constitution, adopted in August 2010, forbids her academic certificate. Given that there are no ex- discrimination on a number of grounds, but does not isting legal measures to legally change names or include sexual orientation or gender identity. The

genders, nor protections for transgender and intersex identity. The resolution calls on “State parties to en- people regarding anti-discrimination, hate crimes or sure that human rights defenders are able to work in asylum those were important land mark cases that an environment free from stigma, reprisals or criminal could change the situation for trans gender persons. prosecution as a result of their human rights protec- There is a perception in society that transgender tion activities.” It further urges States to recognise people are homosexuals or sex workers. GALCK re- acts of violence and abuse by individuals and groups ports that transgender people often are arrested, alt- by enforcing appropriate laws prohibiting and punish- hough charges may not actually be pressed. ing all forms of violence including those targeting people on the basis of their sexual identities. They Incremental strategic litigation has been seen as a must also ensure the proper investigation and dili- way to address situations that discriminate against gent prosecution of perpetrators and have the nec- transgender and intersex people, as well as gay and essary judicial procedures to respond to the needs of lesbian people. There is an on-going case against victims. This resolution is a milestone, but it has yet the NGO Co-ordination Board and the Attorney Gen- to be followed up at the national level. eral run by The Kenya Human Rights Commission and National Gay & Lesbian Human Rights Commis- A joint working group with representatives from Ac- sion (NGLHRC), on the refusal to register an organi- tion Canada for Population and Development sation with the words “gay and lesbian” in its name (ACPD) with Minority Women in Action, the Coalition of African Lesbians (CAL) and Pan Africa Interna- Several organisations, including The Gay and Lesbi- tional Lesbian, Gay, Bisexual, Trans and Intersex an Coalition of Kenya (GALCK), the Kenya Human Association (ILGA), submitted a shadow report to Rights Commission and National Gay & Lesbian 15th Session of the Human Rights Council for the Human Rights Commission (NGLHRC), has publicly 2010 UPR on Kenya. In the report, the organisations condemned homophobia and urged the Kenyan urged the Kenyan state to take its Human Rights Government and general public to support LGBTI commitments seriously and include protection of rights, recommending the removal of certain sections LGBTI persons in the new Constitution. of the Penal Code and the enacting of a comprehensive equality and non-discrimination law. Sexual and Reproductive Health and Rights, Regional and international human rights instruments HIV/AIDS and Gender-based Violence Kenya is a member of the UN and has ratified almost The 2010 Constitution for the first time guarantees all the main international human rights instruments. the right to healthcare, including reproductive health. As such it is bound to fulfil, protect and respect the However, violations of the right to sexual and repro- rights enshrined in these instruments. Kenyans may ductive health continue to be experienced throughout turn to the UN Human Rights Committee through Kenya. As homosexuality is largely considered a ta- procedure 1503, to the Special Rapporteurs for viola- boo and repugnant in Kenyan society, high levels of tions of specific human rights, to CEDAW for wom- stigma and discrimination towards MSM, as well as en's rights violations, and use the UNESCO proce- other members of LGBTI communities, deter many dure for human rights violations in UNESCO's fields people from seeking the HIV services they need with of mandate. Kenya is also a member of the African over half of HIV infections still going undiagnosed. In Union and its citizens and NGOs may file complaints recent years, LGBTI rights have made some head- to the African Commission on Human and Peoples’ way in Kenya as organisations working with Rights. All of these instruments could be used to hold HIV/AIDS and Human Rights have begun to question Kenya accountable to better ensure LGBTI rights. the exclusion of LGBTI people in their work and instead include the group. In May 2014, the African Commission on Human and Peoples’ Rights adopted a resolution condemning Kenya has the fourth-largest HIV epidemic in the violence based on sexual orientation and gender world (UNAIDS 2013 notes a prevalence rate of

around 6% among adult population and 1,6 million ing countries, there are many on-going initiatives and people living with HIV/AIDS). HIV prevalence among growing activism, despite hostile government atti- men who have sex with men (MSM) is almost three tudes. Since the mid-2000s, transgender and inter- times that among the general population (studies are sex activists have become increasingly active and rare, but UNAIDS refers to a study in 2008 that visible within LGBTI communities. showed prevalence of 18,2% among MSM). MSM, An organised LGBTI movement began in 1997 with transgender people, and sex workers of all genders the forming of Ishtar MSM, at the forefront of ad- are a most at risk population, with greater risk be- vancing LGBT health rights in Kenya. Ishtar MSM cause of criminalisation of sexual behaviours. How- was among the founders of the Gay and Lesbian ever, Kenya is one of the countries in East Africa that Coalition of Kenya (GALCK). GALCK is an umbrella has included MSM as a vulnerable group in the Ken- organisation currently consisting of five LGBTI mem- yan National HIV and AIDS Strategic Plan (KNASP ber organisations: Ishtar MSM, Artists For Recogni- III), which can serve as a valuable entry point for tion and Acceptance (AFRA), Gay Kenya Trust (G- LGBTI issues. In June 2014, the Kenyan Ministry of KT, Transgender Education Advocacy (TEA) and Mi- Health published a report, Kenya HIV Prevention nority Women in Action. Revolution Road Map, aimed at dramatically strengthening HIV prevention and reducing new HIV GALCK has several close allies throughout the coun- infections to zero by 2030. try, working to promote LGBTI rights, mobilising, campaigning, and defending the rights of LGBTI Lesbians and women who have sex with women people, despite societal and government attitudes (WSW) also often have intimate sexual relationships limiting the space for activism. Activism is slowly de- with men alongside their same-sex relations because veloping with the creation of more LGBTI organisa- of social stigma and hostility towards their sexuality tions. GALCK in partnership with various other and gender identity. Lesbian women, WSW, and stakeholders has drafted a strategy, the Multi-Tier transgender men are part of a vulnerable group when Approach Towards Equality and Non-Discrimination it comes to HIV/AIDS prevention. Young women are of LGBTI People, that targets media, society, gov- three times more likely to be exposed to sexual vio- ernment, religious leaders and healthcare among lence than young men and are forced into early mar- other aspects of an LGBTI person’s life, as only ad- riage and often unable to negotiate safer sex. dressing the law would not make a profound change to people’s attitudes and a wider approach is need- Violence against LGBTI people is often based on ed. non-conforming gender identity or sexuality. Lesbian A new organisation is the National Gay & Lesbian women with a masculine gender expression and Human Rights Commission (NGLHRC) which aims to transgender people of all genders are at risk of being achieve policy and legal reforms towards equality raped, while other people with non-conforming gen- and full inclusion of sexual and gender minorities in der expressions risk violence due to their gender Kenya (web-page was bugged at the time of writing presentation. Many individuals risk coming under the this report). scrutiny of healthcare workers who are both ignorant of, and biased against, sexuality or gender identity. There is also the Q-initiative, an organisation working for sexual diversity. It has received long term organisational development support from RFSU. Civil society organisations and institutions The Kenya Human Rights Commission (KHRC) is an active in LGBTI work independent, non-governmental organisation and Kenya has a somewhat exceptional position in the works in partnership with GALCK to mainstream region and stands out as an East African country with LGBTI human rights into the human rights discourse a thriving LGBTI movement. Unlike most neighbour- in Kenya.

HIV and SRHR organisations that have been LGBTI- the efforts in addressing discrimination against inclusive or shown support for including LGBTI per- LGBTI persons? The Swedish engagement in spectives in HIV work are National AIDS and STIs LGBTI rights could for example be used to pro- Control Programme (NASCOP), Kenyan Sex Work- mote donor dialogue with the LGBTI-movement ers Alliance (KESWA), Kenya AIDS NGO Consorti- in Kenya, to support coordination of efforts in the um (KANCO), and Network of People Living with HIV movement and among donors and to engage in in Kenya (NEPHAK). RFSU has also cooperated with dialogue with the government, when possible Family Health Options Kenya, a SRHR organisation and after consulting the LGBTI movement. and member of IPP, to mainstream LGBTI issues. • Could Sweden do more to encourage and support cooperation and synergies between LGBTI International and regional organisations active in organisations and mainstream Human Rights or- Kenya include: ganisations, both nationally and regionally? Coalition of African Lesbians (CAL), Pan-African • ILGA (regional), African Men for Sexual Health and Could Sweden do more to include LGBTI organi- Rights, AMSHeR (regional), UHAI, a grant making sations in social and professional mechanism for activist organisations (regional). events/networks and in programmes focussing Open Society Institute of East Africa (OSI-EA), on civil society capacity development and/or hu- Action Canada for Population and Development man rights enhancement? (ACPD), American Jewish World Service (AJWS), • Could Sweden do more to include LGBTI rights Humanist Institute for Cooperation with Developing in private sector development, for example rais- Countries (HIVOS). ing anti-discrimination, codes of conduct, and employment legislation, with the aim of reducing What Sweden can do? – 8 questions to discrimination against people based on sexual discuss orientation or gender identity? Within the broader context of the Swedish results • Could Sweden do more to promote inclusion of strategy for Kenya, with particular focus on strength- LGBTI people and the MSM group in supported ening of civil society capacity, respect for civil and social security and SRHR initiatives (including political rights and access to social security, Sweden HIV/AIDS)? has a great opportunity to include issues related to the rights of LGBTI people. While addressing LGBTI • Could Sweden do more to include the LGBTI perspectives in a non-supportive government context population in efforts to combat gender-based vio- like Kenya, it is very important to consult local LGBTI lence? organisations to make sure not to conflict with their For further advice on engagement regarding LGBTI work. Questions to discuss: issues, download Sida’s Human Rights of Lesbian, • Could Sweden do more to stay updated on the Gay, Bisexual and Transgender persons - Conduct- legal and security situation and the needs and ing a Dialogue or the Ministry of Foreign Affairs Dia- priorities of the LGBTI movement? It is often im- logue brief or the EU tools referred to in the refer- portant to act fast, strategically and in line with ence list. the wishes of the movement? More specific advice and support measures, as well • Could Sweden do more to offer protection to ac- as contact information, can also be provided through tivists and attend court cases, to contribute to the ILGA or RFSL, should the Embassy wish for a dia- protection of organisations at risk? logue. • Could Sweden do more to seek strategic alliances with other development partners to enhance

References RFSL, LGBT in Development - An introduction in The Kenya Human Rights Commission, 2011, The how to include LGBT in programming in development Outlawed Amongst Us, A Study of the LGBTI Com- http://www.rfsl.se/public/LGBT_in_development.pdf munity’s Search for Equality and Non-discrimination in Kenya: Sida’s Human Rights of Lesbian, Gay, Bisexual and http://www.khrc.or.ke/resources/publications/doc_do Transgender persons - Conducting a Dialogue or the wnload/14-the-outlawed-amongst-us.html Ministry of Foreign Affairs Dialogue brief National Aids Control Unit of Kenya, 2014, Kenya EU news, tools and guidelines: AIDS Response Progress Report 2014Progress to- http://eeas.europa.eu/human_rights/lgbt/index_en.ht wards Zero, UNAIDS, m http://www.unaids.org/sites/default/files/en/dataanaly The EU Guidelines (2013): Guidelines for supporting sis/knowyourresponse/countryprogressreports/2014c LGBTI persons' human rights ountries/KEN_narrative_report_2014.pdf ILGA, 2014, State-sponsored Homophobia: A world UNAIDS, 2014 Kenya, retrieved 2015 01-20 survey of laws prohibiting same sex activity between http://www.unaidsrstesa.org/region/countries/kenya consenting adults (www.ILGA.org) UNESCO Claiming Human Rights, 2010 http://www.claiminghumanrights.org/kenya.html Organisations The Kenya Human Rights Commission (KHRC) Coalition of African Lesbians http://www.khrc.or.ke/ http://cal.org.za/index.php Family Health Options Kenya http://www.fhok.org/ Pan-African ILGA (regional) http://africa.ilga.org Gay and Lesbian Coalition of Kenya (GALCK): African Men for Sexual Health and Rights, AMSHeR www.galck.org. (regional) http://www.amsher.org/, Ishtar MSM: http://www.ishtarmsm.org/, UHAI, a grant making mechanism for activist organisations (regional) http://www.uhai-eashri.org/ENG Artists for Recognition and Acceptance (AFRA): http://www.afrakenya.org/, Open Society Institute of East Africa (OSI-EA): http://www.soros.org/ Gay Kenya Trust (G-KT): http://www.gkenyatrust.org Action Canada for Population and Development Transgender Education Advocacy (TEA): (ACPD): http://www.acpd.ca/ https://www.transgenderkenya.com/ American Jewish World Service (AJWS): Minority Women in Action: http://ajws.org/ http://www.minoritywomen.org/ Humanist Institute for Cooperation with Developing National Gay & Lesbian Human Rights Commission Countries (HIVOS): http://www.hivos.nl/eng (NGLHRC) www.nglhrckenya.com

The human rights of LGBTI persons have been a Swedish government priority since 2009. As a service to staff, briefs have been prepared to provide basic information about the situation of this (often forgotten) group and inspire discussions on what Sweden could do to better include LGBTI rights in diplomacy and programming.

www.sida.se The Rights of LGBTI People in Liberia

December 2014

General situation of LGBTI people marriage have caused aggressive responses from conservative and religious groups. General social attitudes towards lesbian, gay, bisex- The introduction of new anti-same-sex bills in Liberia ual, transgender and intersex (LGBTI) people are has led to more open hostility and intolerance to- homophobic and transphobic. There is increasing wards LGBTI people, intensifying the adverse effects hostility on the political level, as a result of LGBTI of existing laws that criminalise same-sex conduct. people’s claims for rights becoming more visible, and Activists allege that the police target or harass those there is open discrimination against LGBTI people they believe to be LGBTI and there are only a few who face hate crimes and rejection by their families. civil society groups promoting the rights of LGBTI in- It is common for many people to enter straight mar- dividuals. These are maintaining a very low profile riages due to family pressure and lack of other op- due to fear of persecution. According to the UPR tions and resources. It is understood that the situa- shadow report (produced by LIPRIDE), there have tion of transgender and intersex people is very diffi- been records of increase violations and human rights cult, with no legal recognition or right to change legal abuse of people perceived or actual have different gender. sexual orientations and gender identity, since the end The media, as a main source of information and ex- of 2011, after the National Elections. posure to LGBTI people and issues, contributes to the climate of intolerance and violence against LGBTI individuals through misleading, biased and Legal and human rights instruments inflammatory reporting. A number of politicians have made hostile public statements about homosexuality, Constitutional provisions and legal framework stressing religious and cultural arguments. The Libe- It is illegal to engage in sexual contact with people of rian Council of Churches has also blamed LGBTI the same sex. This is regulated in the Penal Law, people for the Ebola virus outbreak in Liberia with Section 14.74, and is criminalised as ‘voluntary sod- more than 100 religious leaders signing a prejudiced omy’ and applies to men and women. The offence is and potentially dangerous statement linking Ebola regarded as a ‘minor misdemeanour’ but can result in with homosexuality. one year’s imprisonment. Although the law already criminalises same-sex conduct, the Liberian legisla- When the US government announced plans to work ture has been considering even more repressive leg- on LGBTI issues abroad, directing US agencies to islation. consider LGBTI rights when making aid decisions, and the UK government declared it was considering In July 2012, a Bill was passed in the Senate that cutting aid to countries that violate LGBTI rights, this would ban same-sex marriage, making it a first de- was perceived by many Liberians as a threat to cut gree felony offence, punishable by imprisonment for off foreign assistance due to the country’s anti-LGBTI up to five years. The Bill was passed in the Senate laws and stirred up debate in the media over whether as an amendment to the Domestic Relations Law, to decriminalise same-sex sexual behaviour and in- but it has not been enacted. The President has stat- troduce same-sex marriage. These further enflamed ed that she would veto any proposed ‘homosexuality’ public attitudes against LGBTI people, who were legislation and it appears the law has stalled. The blamed for threatening much-needed development President has also stated that she would not engage aid. Opponents of LGBTI rights argued that the re- in any LGBTI politics, referring to cultural and tradi- quirements in these policies were a new kind of colo- tional values. Indeed, the country’s former Solicitor nialism. Demands for LGBTI rights and same-sex General remarked, “If she tried to decriminalise the [current anti-gay] law it would be political suicide”. A

number of politicians have made previous unsuc- identity. The resolution calls on “State parties to en- cessful attempts to toughen legislation on same-sex sure that human rights defenders are able to work in sexual acts with their supporters actively resisting the an environment free from stigma, reprisals or criminal agenda of UN Secretary General, Ban Ki Moon, who prosecution as a result of their human rights protec- urged African leaders to consider LGBTI rights. tion activities.” It further urges States to recognise acts of violence and abuse by individuals and groups There are no laws against discrimination based on by enforcing appropriate laws prohibiting and punish- sexual orientation or gender identity, nor protection ing all forms of violence including those targeting against hate crimes based on sexual or gender iden- people on the basis of their sexual identities. They tity. There is also no legislation on gender recognition must also ensure the proper investigation and dili- or other rights for transgender or intersex people who gent prosecution of perpetrators and have the nec- may wish to change their legal documents. essary judicial procedures to respond to the needs of The Constitutional Review Committee, which started victims. This resolution is a milestone, but it has yet to work in 2014, is so far silent on the rights of LGBTI to be followed up at the national level. persons – but there is a fear that negative provisions may be inserted. The Liberian development plan “Agenda for Transformation” 2012-17 is said to take Sexual and Reproductive Health and a human rights based approach in its 5 pillars, but fails to mention sexual orientation as one of the Rights, HIV/AIDS and gender based vio- grounds of discrimination. lence Liberia set up an Independent National Commission Given the general lack of healthcare infrastructure, on Human Rights in 2010 after substantial delays. It there are many issues facing LGBTI people when it is still to develop its role and methods. There is a Na- comes to their sexual and reproductive health and tional Human Rights Action Plan (November 2013). rights, including social isolation, lack of education, LGBTI issues are not yet part of these processes. traditional practices, economic disparities, violence, and issues of confidentiality and stigmatisation. The Regional and international human rights instru- impact of the on-going Ebola crisis has contributed to ments a further breakdown of the healthcare system with Liberia is a member of the UN and has ratified many limited or no treatment services. of the main international human rights instruments. HIV prevalence is in general relatively low in Liberia. As such it is bound to fulfil, protect and respect the It is estimated that 1.5% of the population are living rights enshrined in these instruments. All Liberians with HIV. As for the situation for men who have sex may turn to the UN Human Rights Committee with men (MSM), in the most recent Integrated Bio- through procedure 1503, to the Special Rapporteurs Behavioural Surveillance Survey (IBBSS) result for violations of specific human rights, to ECOSOC (2013) on key affected groups, MSM accounted for for women's rights violations, and use the UNESCO the highest number of HIV infections at 19.8% fol- procedure for human rights violations in UNESCO's lowed by female sex workers at 9.8%. This data fields of mandate. Liberia is also a member of the Af- points to disproportionately high rates of HIV among rican Union and its citizens and NGOs may file com- MSM, compared to the general population, particular- plaints to the African Commission on Human and ly in low income countries and where lack of infor- Peoples’ Rights. All of these instruments could be mation due to criminalisation is a problem. MSM used to hold Liberia accountable to better ensure were targeted as a Most At Risk Population (MARP) LGBTI rights. in the National HIV/AIDS Strategic Framework that In May 2014, the African Commission on Human and was adopted 2010, which also mentions MSM Peoples’ Rights adopted a resolution condemning among the incarcerated as a group with special violence based on sexual orientation and gender needs.

Without proper prevention strategies, MSM risk fur- Regional LGBTI organisations covering the region ther spreading the epidemic. Data and statistics are are ILGA: http://africa.ilga.org useful tools to increase awareness and develop programmes that successfully target MSM. Raising awareness about MSM and HIV can also be used as What Sweden can do? – 9 questions to a window of opportunity to put LGBTI rights issues discuss on the agenda, and it can be strategically useful to allocate resources to research on MSM prevention Within the broader context of support to democracy, and prevalence. human rights, SRHR, economic empowerment and gender equality in Liberia, Sweden has a great op- The right to health is always a highly prioritised issue portunity to include issues related to the rights of for LGBTI communities as discrimination in LGBTI people and their access to justice. When ad- healthcare can have lethal consequences. Sexual dressing LGBTI perspectives in a non-supportive and reproductive health and rights or HIV prevention government context like Liberia, it is very important to initiatives can be entry points to advocate for LGBTI consult local LGBTI organisations to make sure not rights as acceptance will help fight the spread of the to conflict with their work. epidemic. The organisation, Stop AIDS in Liberia (SAIL), works with HIV issues and they see a great Questions to discuss: need for HIV information and education to the LGBTI • Could Sweden do more to stay updated on the community. legal and security situation and the needs and There is a high incidence of gender-based vio- priorities of the LGBTI movement? lence with rape and sexual violence being par- • Could Sweden do more to offer protection to ac- ticularly prevalent. LGBTI people in Liberia are tivists and attend court cases? Could Sweden frequently targeted as victims of gender-based contribute to the protection of organisations at violence. risk? • Could Sweden seek more effective strategic alli- Civil society organisations and institu- ances and continue to raise LGBTI rights in the tions active in LGBTI work dialogue with the government? • Could Sweden do more to encourage and sup- There are a few organisations working for LGBTI port cooperation and synergies between LGBTI rights in Liberia. Main challenges for the movement organisations and mainstream Human Rights or- are legal and security issues, discrimination in the ganisations, both nationally and regionally? community and health institutions, and increasing hate crimes. The lack of a legal framework for protec- • Could Sweden do more to include LGBTI organi- tion of basic human rights creates problems, includ- sations in social and professional ing issues of blackmail. This brief therefore does not events/networks and capacity building efforts for mention the names and contact details of organisa- human rights organisations? tions actively working for LGBTI rights. The Swedish • Could Sweden do more to encourage inclusion of Embassy can provide further information to those LGBTI rights in accountability mechanisms (e.g. with genuine interest to support the movement. reform of constitution, laws, and national human The homophobic and transphobic climate in the polit- rights commission mandate)? ical sphere puts the safety of LGBTI people at high • risk. Since 2012, security training to support the Could Sweden do more to engage in dialogue with private sector and market development initi- LGBTI response to homophobic attacks has been established, supported by international organisations. atives around anti-discrimination, codes of conduct, and employment legislation, with the aim of

reducing discrimination against people based on For further advice on dialogue regarding LGBTI is- sexual orientation or gender identity? sues, download Sida’s Human Rights of Lesbian, Gay, Bisexual and Transgender Persons - Conduct- • Could Sweden do more to include gay, lesbian, ing a Dialogue and the Ministry of Foreign Affairs bisexual, trans and intersex people and the MSM Dialogue brief. Also refer to the EU tools and guide- group in the supported SRHR initiatives (includ- lines in the reference list. More specific advice and ing HIV/AIDS)? support measures, as well as contact information, • Could Sweden do more to encourage supported can also be provided through ILGA or RFSL, should gender-based violence initiatives to include the the Embassy wish for a dialogue. LGBTI population?

General References RFSL, LGBT in Development, An introduction in how to include LGBT in programming in development http://www.rfsl.se/public/LGBT_in_development.pdf Sida’s Human Rights of Lesbian, Gay, Bisexual and Transgender Persons - Conducting a Dialogue and the Ministry of Foreign Affairs Dialogue brief. EU news, tools and guidelines: http://eeas.europa.eu/human_rights/lgbt/index_en.htm The EU Guidelines (2013): Guidelines for supporting LGBTI persons' human rights

Specific references Barat et al, 2007, Elevated Risk for HIV Infection among Men Who Have Sex with Men in Low- and Middle- Income Countries 2000–2006: A Systematic Review, PLoS Med 4(12): e339: http://www.plosmedicine.org/article/info:doi/10.1371/journal.pmed.0040339 ILGA, 2014, State-sponsored Homophobia: A world survey of laws prohibiting same-sex activity between consenting adults (See updated version at www.ILGA.org) Human Right´s Watch, 2013, “It’s Nature, Not a Crime” - Discriminatory Laws and LGBT people in Liberia, http://www.hrw.org/sites/default/files/reports/liberia1113_ForUpload.pdf Liberia Initiative for the Promotion of Rights, Independence, Diversity, and Equality (LIPRIDE), 2014, Univer- sal Periodic Reporting (UPR) Liberia. MSM Global Fund: http://www.msmgf.org National AIDS Commission 2010: National HIV/AIDS Strategic framework II 2010-2014 National Commissions for UNESCO of France and Germany Claiming Human Rights, 2010, www.claiminghumanrights.org/liberia.html?&L=0 SAIL, Stop Aids in Liberia

www.sida.se The Rights of LGBTI People in Mali

November 2014

General situation of LGBTI people LGBTI issues remain a taboo topic in Mali. LGBTI and fundamental freedoms. This further compromis- persons are completely hidden and often live double es the safety and security of LGBTI people in Mali. lives. Same-sex sexual activity is not explicitly prohibited in Mali, although while technically legal, the Legal and human rights instruments prevailing culture, ancestral traditions and religious beliefs of most Mali citizens view same-sex sexual Constitutional provisions and legal framework activity and non-traditional gender roles as immoral The Malian Constitution guarantees freedom of as- and evil acts. sociation, although in practice, this right is not always respected as there is a law prohibiting association In Gao, jihadists enforced sharia rule amputating “for an immoral purpose”. According to a report by limbs, flogging and executing criminals, including the US State Department, the Governor of the Dis- men who were alleged to have had sexual relations trict of Bamako cited this law in 2005 to refuse official with other men. Two men, who were bound, beaten, recognition of an LGBTI rights association, and from interrogated, and due to be executed for homosexu- this point, the law can be regarded as violating the ality were saved by French air strikes that drove out freedom of association of LGBTI people. The Police the Islamist rebels in January 2013. have also violated LGBTI individuals’ right to freedom Social discrimination is widespread and laws against of assembly, according to the US Human Rights Re- public indecency may be used against LGBTI people. port. As many as 98% of Malian residents believe that The legislation in Mali does not explicitly prohibit ho- homosexuality should be rejected by society (Pew mosexuality or same-sex acts, however, provisions Global Attitudes Report 2007), which was the highest against sexual offences (for example, indecency and rejection rate of homosexuality in the 44 countries immorality) are regularly cited where individuals’ di- surveyed. In 2011, the African LGBTI online maga- verse sexual and/or gender identities are suspected zine, Behind the Mask, cited a doctor working with or expressed. There is no anti-discrimination or hate HIV and men who have sex with men (MSM) in Mali, crime legislation that protects LGBTI people from who stated that 95% of the population will not accept harassment and abuse on the basis of their sexual MSM in their families. orientation and/or gender identity. There is also no The strongest voices against LGBTI rights come from legislation on gender recognition or other rights for fundamentalist religious groups. This is most evident transgender or intersex people who may wish to during election cycles. Religious groups attempt to change their legal documents. influence politicians to fight homosexuality by por- A new family law was adopted in 2012, enforcing that traying it as societal decay and the failure of govern- marriage should only be permitted between a man ment. There are no publicly visible LGBTI organisa- and a woman. The 2012 family law also forbids ho- tions in the country and the free association and es- mosexual persons to adopt children. A formal refer- tablishment of LGBTI organisations has been imped- ence to this group is a (first ever) recognition of their ed by a law prohibiting association “for an immoral existence. It also of course represents their stigmati- purpose”. sation and moral rejection by the majority of the pop- In 2010, Mali was removed from the French list of ulation. ‘safe countries’. The status of ‘safe countries’ indi- The law is not considered by civil society organisa- cates that the country respects the principles of de- tions to be favourable to children’s and women’s mocracy and the rule of law, as well as human rights rights, nor in compliance with the Constitution. Its le-

gal standing is unclear as it was never signed by the prosecute perpetrators of violence and have the nec- president. essary judicial means to support victims. This resolution is a milestone, but it has yet to be followed up at There is also a National Human Rights Commission, national level. which is about to be reformed. A draft law for a new commission with a stronger mandate is expected to In November 2010, a majority of the UN Assembly be presented in parliament 2014. The Commission voted in favour of an amendment that removed the will have the mandate to monitor and report on hu- reference to sexual orientation from a resolution that man rights violations in Mali. The EU delegation is condemned extrajudicial, summary and arbitrary ex- the main donor of the Commission, but the Danish ecutions and other killings. The UN votes on the res- Institute for Human Rights has also supported the re- olution every two years and the resolution had con- form process of the Commission and the Ministry of tained a reference to sexual orientation since 1999. justice together with The UN High Commissioner's Mali and Morocco introduced the amendment that office for HR and MIUSMA (UN joint program). The called for the words ‘sexual orientation’ to be re- Danish Institute for Human Rights also supports pro- placed with “discriminatory reasons on any basis”. gram concerning access to justice/paralegals through Homophobia and transphobia are often the motives national legal aid/human rights organisation “Deme for extrajudicial killings, and the removal of the defini- So” and capacity development for the police. Sweden tion will make it even more difficult to ensure that is lead donor in these human rights efforts. states live up to their legal obligations. Regional and international human rights instru- Mali was also one of the countries that voted directly ments against the UN Declaration on Sexual Orientation Mali is a member of the UN and has ratified many of and Gender Identity in 2008. the main international human rights instruments. As such it is bound to fulfil, protect and respect the rights Sexual and Reproductive Health and Rights, enshrined in these instruments. All Malians may turn HIV/AIDS and Gender-based Violence to the UN Human Rights Committee through procedure 1503, to the Special Rapporteurs for violations The political and social climate does not favour major of specific human rights, to ECOSOC for women's changes in laws and policies regarding SRHR. The rights violations, and use the UNESCO procedure for occupation and conflict in Northern Mali resulted in human rights violations in UNESCO's fields of man- increased sexual violence and cruel sharia punish- date. Mali is also a member of the African Union and ment and this also affected the LGBTI population. its citizens and NGOs may file complaints to the Afri- LGBTI persons must hide their sexual orientation be- can Commission on Human and Peoples’ Rights. All cause even the least suspicion of same-sex activity of these instruments could be used to hold Mali ac- can lead to abuse, disgrace, and dishonour. countable to better ensure LGBTI rights. The fear of discovery often leads MSMs to avoid In May 2014, the African Commission on Human and medical care in the event that they contract an STI or Peoples’ Rights adopted a resolution condemning HIV infection, which has resulted in a drastically violence based on sexual orientation and gender higher HIV infection rate among this group than the identity. The resolution calls on “State parties to en- general population. According to ARCAD/SIDA, an sure that human rights defenders are able to work in organisation in Mali that provides healthcare for MSM an environment free from stigma, reprisals or criminal and supports people living with HIV/AIDS, in Bama- prosecution as a result of their human rights protec- ko, the capital of Mali, screening tests carried out in tion activities.” Additionally, States are urged to no 2008 on a few hundred MSMs revealed that the in- longer tolerate acts of violence and abuse by execut- fection rate was around 37%, compared to official ing laws to prohibit and punish these forms of vio- statistics of the national infection rate among the lence directed toward people on the basis of their general population at 1.3%. The spread of infection sexual identity. States are advised to investigate and among LGBTI communities is exacerbated by the

fact that 77% of the MSMs questioned admitted to talised after having been severely beaten by his having unprotected sex. neighbours. Mali and Senegal are the only countries in French- There are no known LGBTI organisations working in speaking Africa that have included MSM as a com- Mali, although there are some NGOs providing medi- ponent in their proposals to The Global Fund to fight cal and support programmes focusing specifically on AIDS, Tuberculosis and Malaria. MSM, transgender MSM. people, and other sexual minorities are among the groups and communities most affected by HIV/AIDS What Sweden can do – 6 questions to dis- around the world. cuss Mali has also to some extent reported on MSM indi- Within the broader context of support to democracy, cators to the UNGASS survey (Declaration of Com- human rights and gender equality in Mali, Sweden mitment on HIV/AIDS). Available statistics show that has opportunity to include issues related to the rights 53.9 per cent of MSM reported the use of a condom of LGBTI people and their access to justice. When the last time they had anal sex with a male partner addressing LGBTI perspectives in a non-supportive (2009) and that 17 per cent of MSM were HIV posi- government context like Mali, it is very important to tive (2007). consult local HIV/AIDS or Human Rights organisa- A 2008 study on risk factors among MSM who en- tions to make sure not to conflict with their work and gage in selling sex in Mali recommended that MSM cause unnecessary backlashes. Questions to con- “should be trained to negotiate or propose condom sider: use”, information that can be used when arguing for • Could Sweden do more to stay updated on the the inclusion of MSM as a most at risk population in legal and security situation and the needs and the National Strategic Plan on HIV/AIDS. priorities of the LGBTI population? Could Swe- Gender-based violence is a major issue for women in den consider offering protection to activists and Mali, including lesbian and bisexual women. Emo- attend court cases? tional, physical, and sexual violence is also perpe- • trated against MSM, transgender and intersex peo- Could Sweden do more to seek strategic allianc- ple, and sex workers as a form of humiliation and es with likeminded donors to discuss a common discrimination against their sexual and gender identi- agenda on LGBTI rights? ties. Such violence increases their risk for HIV; how- • Could Sweden do more to encourage that LGBTI ever, healthcare providers have been slow to ad- persons’ rights become part of the UN pro- dress violence against LGBTI people, either being grammes (and other joint donor initiatives) deal- unaware of their vulnerability to violence or reluctant ing with human rights, reconciliation, peace and to address these health and social issues. security (e.g. United Nations Multidimensional In- tegrated Stabilisation Mission in Mali - MINUSMA)? Civil society organisations and institutions • Could Sweden do more to encourage and sup- active in LGBTI work port mainstream Human Rights organisations In 2005, an initiative was taken to form an LGBT or- and institutions (e.g. the national Human Rights ganisation, however, the application for registration Commission) to include LGBTI rights in their ad- was denied, with reference to the ‘illicit purpose’ of vocacy and monitoring, both nationally and re- the group. Media reported the incident using degrad- gionally? Shadow reporting to the UN? ing language and, from an article in Le Carnard (27 • Could Sweden do more to encourage partners to July 2005), it is understood that the person who include LGBTI persons and the MSM group in made the application, prior to the event, was hospi-

supported SRHR initiatives or work with ing a Dialogue and the Ministry of Foreign Affairs HIV/AIDS? Dialogue brief. Also refer to the EU tools and guidelines in the reference list. More specific advice and • Could Sweden do more to encourage partners to support measures, as well as contact information, include LGBTI persons in gender-based violence can also be provided through ILGA or RFSL, should initiatives (e.g. UN Women)? the Embassy wish for a dialogue. For further advice on dialogue regarding LGBTI issues, download Sida’s Human Rights of Lesbian, Gay, Bisexual and Transgender Persons - Conduct-

References MSM Global Fund: http://www.msmgf.org ILGA: http://africa.ilga.org International Gay and Lesbian Human Rights Commission (IGLHRC): http://www.iglhrc.org/cgi-bin/iowa/home/index.html RFSL, LGBT in Development, An introduction in how to include LGBT in programming in development http://www.rfsl.se/public/LGBT_in_development.pdf Study on Sida’s work on the Human Rights of LGBTI persons (2014) An introduction in how to include LGBT in programming in development, by RFSL: http://www.rfsl.se/public/LGBT_in_development.pdf EU news, tools and guidelines: http://eeas.europa.eu/human_rights/lgbt/index_en.htm The EU Guidelines (2013): Guidelines for supporting LGBTI persons' human rights. ILGA, 2014, State-sponsored Homophobia: A world survey of laws prohibiting same-sex activity between consenting adults (See updated version at www.ILGA.org) Pew Global Attitudes Project, World publics welcome global trade – but not immigration, 2007: http://pewglobal.org/ C. Broqua Article Date: 01 Aug, 2008/ 2010, Is transactional sex among MSM in Mali a HIV risk factor? http://www.msmgf.org/index.cfm/id/11/aid/866 Behind the Mask, 2011-03-15, Homophobia and stigmatization hamper HIV prevention efforts in Mali, http://www.mask.org.za/homophobia-and-stigmatization-hamper-hiv-prevention-efforts-in-mali/ ARCA/SIDA http://www.arcadsida.org/

The human rights of LGBTI persons have been a Swedish government priority since 2009. As a service to staff, guidance notes have been prepared to provide basic information about the situation of this (often forgotten) group and inspire discussions on what Sweden could do to better include LGBTI rights in diplomacy and programming.

www.sida.se The Rights of LGBTI People in Mozambique

December 2014

General situation of LGBTI people Mozambique is one of only three countries in Africa In July 2014, a new Penal Code was approved, re- to offer any form of anti-discrimination protection for moving references to “vices against nature”. Alt- LGBTI people, with protection on sexual orientation hough there was no explicit reference to same-sex grounds in employment since 2007. practices in the old law and no documented prosecutions of LGBTI people, the new law ensures that “We can no longer afford to discriminate against same-sex acts are not criminalised in Mozambique. people on the basis of age, sex, ethnicity, migrant status, sexual orientation and gender identity, or any Mozambican law does not explicitly protect LGBTI other basis — we need to unleash the full potential of people from discrimination. However, significant pro- everyone,” Joaquim Chissano, former president of gress was made in 2007 with Article 4 of the Labour Mozambique, wrote in an open letter to African lead- Law, outlawing discrimination on the basis of sexual ers (2014). orientation in employment. For most LGBTI people, the main concerns relate to discrimination and lack of General societal attitudes towards LGBTI people and access to health, social services, justice, and educa- diverse sexual and gender identities are however tion. There are no laws protecting against hate largely negative. Homosexuality is often referred to crimes based on sexual or gender identity. There is as a Western import with no roots in local culture and also no legislation on gender recognition or other tradition. Younger people and those living in cities rights for transgender or intersex people who may are more tolerant. wish to change their legal documents. Strong traditional gender roles are another challenge Regional or international human rights instru- for LGBTI people, with many forced to live double ments lives in normative straight relationships as the only Mozambique is a member of the UN and has ratified way to be socially accepted. This contributes to the many of the main international human rights instru- invisibility and silencing of LGBTI people in Mozam- ments. As such it is bound to fulfil, protect and re- bique. For several years, LAMBDA (the Mozambican spect the rights enshrined in these instruments. All Association for the Defence of Sexual Minorities), the Mozambicans may turn to the UN Human Rights main LGBTI organisation, has tried to register as a Committee through procedure 1503, to the Special non-governmental organisation, but it still remains Rapporteurs for violations of specific human rights, to unrecognised by the Mozambican Government. CEDAW for women's rights violations, and use the UNESCO procedure for human rights violations in Legal and human rights instruments UNESCO's mandate. Mozambique is also a member Constitutional provisions and legal framework of the African Union and its citizens and NGOs may file complaints to the African Commission on Human While the Mozambican Constitution enshrines “the and Peoples’ Rights. All of these instruments could principle of universality and equality”, it does not be used to hold Mozambique accountable to better specifically mention sexual orientation. It states that ensure LGBTI rights. all “enjoy the same rights and are subject to the same duties, regardless of colour, race, sex, ethnic In May 2014, the African Commission on Human and origin, place of birth, religion, level of education, so- Peoples’ Rights adopted a resolution condemning cial position, marital status of their parents, profes- violence based on sexual orientation and gender sion or political option”. identity. The resolution calls on “State parties to ensure that human rights defenders are able to work in

an environment free from stigma, reprisals or criminal higher among transgender women than among the prosecution as a result of their human rights protec- rest of the adult population. In sub-Saharan Africa, tion activities.” It further urges States to recognise adolescent girls and young women account for one in acts of violence and abuse by individuals and groups four new HIV infections. by enforcing appropriate laws prohibiting and punish- Since 2010, the National Strategic Plan for HIV/AIDS ing all forms of violence including those targeting includes MSM as a priority for prevention efforts, as a people on the basis of their sexual identities. They result of LAMBDA’s advocacy work. The 2014 must also ensure the proper investigation and dili- UNGASS progress report (Declaration of Commit- gent prosecution of perpetrators and have the nec- ment on HIV/AIDS) for Mozambique estimated HIV essary judicial procedures to respond to the needs of prevalence among MSM in Maputo at 8.2%, Beira at victims. This resolution is a milestone, but it has yet 9.1% and Nampula/Nacala at 3.7%, with HIV preva- to be followed up at the national level. lence significantly higher among older rather than In 2011, at the UN Human Rights Council’s Universal younger MSM. There is a shortage of information Periodic Review, it was recommended that Mozam- about HIV prevention specifically formulated for MSM bique allow LGBTI organisations to register, that the and it is difficult to access public health services due possible criminal sanctions against sexual activity be- to discrimination and hostility from healthcare provid- tween consenting adults were removed, and that the ers. right to freedom of association was protected. None Violence against LGBTI people is widespread and of these recommendations were accepted by often based on non-conforming gender identity or Mozambique at the time. sexuality. Lesbian women with a masculine gender expression and transgender people of all genders Sexual and Reproductive Health and Rights, are at risk of being raped, while other people with HIV/AIDS and Gender-based Violence non-conforming gender expressions risk violence Numerous healthcare challenges persist in Mozam- due to their gender presentation. Due to laws and bique, especially in relation to sexual and reproduc- policies that do not adequately protect LGBTI com- tive rights. Lack of involvement of LGBTI people in munities from the potential gender-based violence decision-making with regard to their sexual and re- that they are exposed to, many individuals risk com- productive rights, sexual and gender-based violence, ing under further scrutiny from healthcare workers generally poor healthcare provision and services, who are both ignorant of, and biased against, sexual- and limited human resources for sexual health all ity or gender identity. contribute to the on-going challenges. Discussing In early December 2013, the INS, the research divi- sexual and reproductive health is still taboo. Strong sion of the Mozambican Ministry of Health released social and cultural influences contribute in many cas- their Biological and Behavioral Survey among Men es to unprotected sexual behaviours. Who Have Sex with Men. The study cited that 2.6 Mozambique is ranked as having the tenth highest percent of MSM in Maputo have suffered physical HIV prevalence in the world at 11.5% (with significant abuse in the past year due to their sexual orientation, geographic variation). It is safe to assume that directly contradicting the Mozambican government's Mozambique does not differ from other countries in statements to the UN Human Rights Council only two the region regarding HIV prevalence among men months previously. who have sex with men (MSM), that it is generally higher in this group than the general population. HIV Civil society organisations and institutions prevalence is estimated to be 28 times higher among active in LGBTI work people who inject drugs, 12 times higher among sex LAMBDA, the Mozambican Association for the De- workers, 19 times higher among gay men and other fence of Sexual Minorities, was formed at the first na- men who have sex with men and up to 49 times tional conference on LGBTI rights in Mozambique in

2006, and was organised by the Mozambican Human Pathfinder, work with sexual and reproductive health Rights League (LDH). LAMBDA’s mission is to pro- and rights (SRHR), but not specifically with LGBTI mote the civic, human, and legal rights of LGBTI citi- rights zens, through public awareness and education, ad- Forum Mulher, and RENSIDA (Rede nacional de As- vocacy, and social dialogue. Target groups are all sociações de pessoas vivendo com HIV/SIDA em LGBTI citizens, civil society organisations, political Moçambique) and governmental institutions, professionals, such as teachers and medical doctors, and the general public There is currently no specific transgender or intersex http://www.lambdamoz.org/; activism or advocacy in Mozambique. Among the main challenges for LAMBDA is that it Regionally there are ILGA Africa http://africa.ilga.org, has not been allowed to register as a non- and the Coalition of African Lesbians, CAL, governmental organisation, which is a violation of the http://www.cal.org.za/new/ . right to freedom of association protected in the Con- stitution. The formal request to register was submit- What Sweden can do? – 8 questions to ted in January 2008 but no official reply (neither ac- discuss ceptance nor rejection) has been received. LAMBDA has appealed to the Ombudsman and the Human Within the broader context of support to human rights Rights Commission (in 2013) without reply and to the enhancement, economic empowerment, entrepre- Minister of Justice (without action). LAMBDA has neurship and rural livelihoods, SRHR and gender now launched a campaign and protested publicly equality in Mozambique, Sweden has a great oppor- against the illegal refusal by the Justice Ministry to tunity to include issues related to the rights of LGBTI register it as a bona fide association. In November people and their access to justice. When addressing 2014, Lambda took out a full page advertisement in LGBTI perspectives in a non-supportive government the Maputo daily paper “Noticias” protesting at the context like Mozambique, it is very important to con- discrimination it has suffered. sult local LGBTI organisations to make sure not to conflict with their work. Questions to discuss: Other organisations, such as Monaso http://www.monaso.org.mz/; (an umbrella body for • Could Sweden do more to stay updated on the HIV/AIDS organisations) and Amodefa (the national legal and security situation and the needs and family planning organisation) priorities of the LGBTI movement? To offer sup- http://www.amodefa.org.mz/; include LGBTI perspec- port and protection to activists and organisations tives in their work on HIV, gender and sexuality. In at risk? particular, Monaso works with all kinds of perspec- • Could Sweden do more to seek effective strate- tives of sexuality and includes LGBTI perspectives in gic alliances and continue to raise LGBTI rights their workshops. in the dialogue with the government? Other local partners and allies are organisations • Could Sweden do more to encourage and sup- working in sexual health, HIV/AIDS and Women’s port cooperation and synergies between LGBTI Rights, such as: organisations and mainstream Human Rights or- Women and Law in Southern Africa (WLSA), ganisations, both nationally and regionally? http://www.wlsa.org.mz, • Could Sweden do more to include LGBTI organi- Mozambique Human Rights League/Liga Mocam- sations in social and professional bicana dos Direitos Humanos (LDH), events/networks and in programmes focussing on civil society capacity development and/or hu- NAIMA (a network of NGOs working in health and man rights enhancement? HIV/AIDS in Mozambique), http://www.naima.org.mz

• Could Sweden do more to encourage inclusion of • Could Sweden do more to include gay, lesbian, LGBTI rights in support to accountability mecha- bisexual, trans and intersex people and the MSM nisms (e.g. law reforms, national human rights group in supported SRHR and GBV initiatives? institutions and law enforcement staff capacity For further advice on dialogue regarding LGBTI is- development)? sues, download Sida’s Human Rights of Lesbian, • In dialogues concerning private sector develop- Gay, Bisexual and Transgender Persons - Conduct- ment, could Sweden raise anti-discrimination, ing a Dialogue and the Ministry of Foreign Affairs codes of conduct, and employment legislation, Dialogue brief. Also refer to the EU tools and guide- with the aim of reducing discrimination against lines in the reference list. people based on sexual orientation or gender More specific advice and support measures, as well identity? as contact information, can also be provided through • Could Sweden do more to raise issues of dis- ILGA or RFSL, should the Embassy wish for a dia- crimination in rural development, economic em- logue. powerment, education and skills training in order to ensure that LGBTI persons are not excluded or denied access to programmes?

General References ILGA, 2014, State-sponsored Homophobia: A world survey of laws prohibiting same-sex activity between consenting adults (See updated version at www.ILGA.org) RFSL, LGBT in Development, An introduction in how to include LGBT in programming in development http://www.rfsl.se/public/LGBT_in_development.pdf EU news, tools and guidelines: http://eeas.europa.eu/human_rights/lgbt/index_en.htm EU Guidelines (2013): Guidelines for supporting LGBTI persons' human rights Specific references AmfAr, 2012, ‘Achieving an AIDS-free generation for gay men and other MSM’: http://www.amfar.org/uploadedFiles/_amfar.org/In_The_Community/Publications/MSM-GlobalRept2012.pdf Ketz Adam, 2013, “From kill the Gays to kill the Gay rights movement: the future of homosexuality legislation in Africa”, http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1162&context=njihr Reducing vulnerability and risk among men who have sex with men in Maputo, MSM Global Forum: http://www.msmgf.org/index.cfm/id/11/aid/1500 UNGASS progress report (Declaration of Commitment on HIV/AIDS) for Mozambique, 2014 United Nations General Assembly Special Session on HIV and AIDS Progress Report, 2008 - 2009 MOZAMBIQUE, 2010 UNESCO- Claiming Human Rights - in Mozambique, http://www.claiminghumanrights.org/mozambique.html

www.sida.se The Rights of LGBTI People in Rwanda

December 2014

General situation of LGBTI people religious leaders, which is particularly distressing as Lesbian, gay, bisexual, transgender, and intersex religion plays a significant role in Rwandan society (LGBTI) people in Rwanda are marginalised and and leaders may have an important influence on fam- stigmatised. To avoid physical and verbal abuse and ily and social life. harassment, they must often keep their sexuality and gender identity secret. While neither homosexuality Legal and human rights instruments nor same-sex acts are illegal, sexual orientation is considered a taboo topic, and there are no significant Constitutional provisions and legal public discussions of the issue. LGBTI people report framework being blackmailed, harassed, physically assaulted, The Constitution of Rwanda, adopted in 2003, has and even jailed as the prevailing religious and cultur- several provisions that may impact the legal rights of al beliefs tend to look down upon diverse sexual and LGBT citizens. For example: gender identities as signs of immorality or a foreign sickness imported into the country. • Article 11: All Rwandans are born and remain free and equal in rights and duties. Discrimina- There are reports that arbitrary arrests of LGBTI tion of whatever kind based on, inter alia, ethnic people and activists have been increasing with the origin, tribe, clan, colour, sex, region, social Police arresting people because of their perceived origin, religion or faith, opinion, economic status, sexual orientation or gender identity, despite the fact culture, language, social status, physical or that homosexuality is not criminalised in Rwanda. mental disability or any other form of discrimina- Police can justify these arrests under laws that pro- tion is prohibited and punishable by law. tect public order and morals in the Penal Code and many of those arrested have been detained without • Article 15: Every person has the right to physical access to lawyers or the Courts. The personal details and mental integrity. No person shall be sub- and photos of individuals have also been shown in jected to torture, physical abuse or cruel, inhu- the media with some radio presenters calling for lis- man or degrading treatment. teners to hunt down LGBTI activists. The media in • Article 16: All human beings are equal before general has been used to incite violence and discrim- the law. They shall enjoy, without any discrimi- ination against LGBTI people and several activists nation, equal protection of the law. have decided to leave the country (even for Uganda where laws are worse). Trans and intersex persons • Article 22: The private life, family, home or cor- are more often harassed due to their higher visibility. respondence of a person shall not be subjected to arbitrary interference; his or her honour and The threats have resulted in the few LGBTI organisa- good reputation shall be respected. tions that do exist carrying out their activities in fear of abuse and harassment. In 2009, several organisa- • Article 43: In the exercise of rights and enjoy- tions published a shadow report to the UN Human ment of freedoms, every person shall only be Rights Committee evaluating Rwanda’s compliance subjected to the limitations set by the law in or- with the International Covenant on Civil and Political der to ensure the recognition and respect of Rights (ICCPR), particularly regarding the protection others’ rights and freedoms, good morals, public of LGBTI people. The report stated that Rwanda order and social welfare which characterise a generally is not accepting of LGBTI people and that democratic society. social stigmatisation and hostility is encouraged by

Rwanda’s law currently has no provision regarding In May 2014, the African Commission on Human and homosexuality – neither the Constitution nor the Pe- Peoples’ Rights adopted a resolution condemning nal Code mentions any crime of homosexuality. violence based on sexual orientation and gender However, Article 26 of the Constitution limits the right identity. The resolution calls on “State parties to en- of marriage to straight couples. In spite of this, some sure that human rights defenders are able to work in lawmakers have interpreted Article 43 to suggest that an environment free from stigma, reprisals or criminal it is within their power to restrict or criminalise homo- prosecution as a result of their human rights protec- sexuality under their constitutional power to uphold tion activities.” It further urges States to recognise the ‘good morals’ of society” acts of violence and abuse by individuals and groups by enforcing appropriate laws prohibiting and punish- In November 2009, a draft revision on the Penal ing all forms of violence including those targeting Code Act of Rwanda was tabled in the Parliament. people on the basis of their sexual identities. They Article 217 of the draft Act proposed the criminalisa- must also ensure the proper investigation and dili- tion of consensual same-sex acts and relationships, gent prosecution of perpetrators and have the nec- as well as criminalising the work of LGBTI human essary judicial procedures to respond to the needs of rights defenders. The civil society submitted a joint victims. This resolution is a milestone, but it has yet position paper on the draft Act in solidarity with the to be followed up at the national level. LGBTI movement. Article 217 was later shelved after the Minister of Justice, refuted international reports While the Government is still influenced by conserva- that the Government intended to criminalise same- tive religious groups, experiences from the genocide sex acts, saying that sexual orientation is a private and the process to abolish the death penalty have matter, not state business. led to more favourable action towards vulnerable groups. In 2010, Rwanda made a significant positive There is no anti-discrimination or hate crime legisla- statement in the UN General Assembly, as it voted to tion that protects LGBTI people from harassment and re-introduce ‘sexual orientation’ as a category in the abuse on the basis of their sexual orientation and/or resolution on ‘extrajudicial, summary or arbitrary ex- gender identity. There is also no legislation on gen- ecutions’ after it had been removed a year earlier. der recognition or other rights for transgender or in- Rwanda’s representative said in his speech that even tersex persons who may wish to change their legal though sexual orientation is a concept that has documents. “sparked animated debate, the authors of the resolu- Regional or international human rights instru- tion have clearly wished to draw attention to high-risk ments groups that were vulnerable to killing and other Rwanda is a member of the UN and has ratified crimes.” He stated that it was necessary to deal with many of the main international human rights instru- the urgency of those matters, whether the lifestyles ments. As such, it is bound to fulfil, protect, and re- of LGBTI people were approved of or not, and clari- spect the rights enshrined in these instruments. All fied that this position was not because of ‘lobbying or Rwandans may turn to the UN Human Rights Com- threats’, but because of experiences from the geno- mittee through procedure 1503, to the Special Rap- cide. porteurs for violations of specific human rights, to The Government made another step in the right di- ECOSOC for women's rights violations, and use the rection in 2011, when it was one of only five African UNESCO procedure for human rights violations in countries to sign the UN Joint Statement, Ending UNESCO's fields of mandate. Rwanda is also a Acts of Violence and Related Human Rights Viola- member of the African Union and its citizens and tions Based On Sexual Orientation and Gender Iden- NGOs may file complaints to the African Commission tity. on Human and Peoples’ Rights. All of these instruments could be used to hold Rwanda accountable to better ensure LGBTI rights.

Sexual and Reproductive Health and because they are female or male. Such act results in Rights, HIV/AIDS and Gender-based Vio- the deprivation of freedom and negative consequences. This violence may be exercised within or lence outside households.” Although this definition recog- Social stigma and widespread discrimination against nises physical, psychological, sexual and economic LGBTI people greatly reduces their access to sexual harm and includes LGBT, but not intersex people, and reproductive health and rights (SRHR). Although there is still widespread fear, stigma, and reluctance individuals are not officially denied access, there is to report gender-based violence to hostile medical still a lack of services specifically geared to LGBTI staff and the Police. people and their sexual health needs, including HIV/AIDS counselling and treatment, and more gen- Civil society organisations and institu- eral safer sex information and resources. tions active in LGBTI work Rwandan HIV policy has been poor in terms of implementation of HIV prevention among men who Since 2003, the Horizon Community Association of have sex with men (MSM), largely due to lack of data Rwanda (HOCA) has been doing some public advo- and a practice of denying the existence of sex be- cacy on behalf of LGBTI rights, although its members tween men in Rwanda. However, the State has have often been harassed. HOCA works to stop dis- shown interest in highlighting the specific needs of crimination and violence against LGBTI people, pro- MSM, and supported the study, Exploring HIV risk moting social services for these communities and is among MSM in Kigali, in 2008. The study confirms the most well-known LGBTI organisation in Rwanda. that MSM are at an elevated risk of HIV infection, It has been actively working together with Human compared to the general population, and that con- Rights Watch, International Gay and Lesbian Human dom use among MSMs in Kigali is low. The findings Rights Commission (IGLHRC), Lawyers Without also showed that MSM have widespread sexual net- Borders, Coalition of African Lesbians (CAL), Interna- works, and it is common that MSM also have sex tional Lesbian, Gay, Bisexual, Trans and Intersex with female partners. It recommended that specific Association (ILGA), Front line Defenders, East and HIV and sexually transmitted infection (STI) preven- Horn of Africa Independent, and International Asso- tion services and support are carried out within a ciation of Independent Journalists. HOCA also works ‘sensitive human rights framework’, accompanied by with other actors in the region, such as Coalition of awareness-raising campaigns and targeted distribu- NGO Forum, Coalition of Human Rights Defenders, tion of safer sex services. It also highlights that as well as European Union diplomats in Rwanda. health services need to be refocused towards MSM- Although the situation for HOCA became very difficult inclusive practice. As a result of the 2008 study, in recent years due to threats, lack of funding, and Rwanda, unlike most countries in the region, includ- one of the founders of HOCA was granted political ed MSM indicators in the 2010 UNGASS report. asylum in Sweden in 2012 on the basis of persecu- MSM were introduced as a Most at Risk Population tion for LGBTI and political activism, it appears that (MARP) in the Rwanda National Strategic Plan HOCA is again actively working for LGBTI rights in (NSP) on HIV and AIDS 2009-2012. The NSP rec- Rwanda. ommendations correspond to the study from 2008, Another LGBTI organisation is My Right, working in and emphasise the need to carry out further research coalition with other Human Rights organisations. among MSM. There is currently no organised transgender or inter- The Rwandan Law on Prevention and Punishment of sex activism or advocacy in Rwanda. Gender-based Violence (2008) defines gender-based The US Embassy is rather active on LGBT rights in violence as “…an act that results in a bodily, psycho- Kigali. In June 2013, a joint event was organised for logical, sexual and economic harm to somebody just government officials and human rights organisations,

including LGBTI activists who were able to meet the on civil society capacity development and/or hu- cabinet officials. In June 2014, the US Embassy in- man rights enhancement? vited artists and human rights activities to celebrate • Could Sweden do more to encourage inclusion of Pride Month in Rwanda by turning the U.S. Embas- LGBTI rights in support to accountability mecha- sy’s wall into a canvas, which was decorated on. nisms and rule of law programmes (e.g. law re- Messages on LBTI rights were included. forms, national human rights institutions and law enforcement staff capacity development)? What Sweden can do – 9 questions for • In dialogues concerning private sector develop- discussion ment, could Sweden raise anti-discrimination, Within the broader context of support to democracy, codes of conduct, and employment legislation, human rights and gender equality in Rwanda, Swe- with the aim of reducing discrimination against den has a great opportunity to include issues related people based on sexual orientation or gender to the rights of LGBTI people and their access to jus- identity? tice. When addressing LGBTI perspectives in a non- • Could Sweden do more to raise issues of dis- supportive government context like Rwanda, it is very crimination in economic empowerment, educa- important to consult local LGBTI organisations to tion and skills training in order to ensure that make sure not to conflict with their work. LGBTI persons are not excluded or denied ac- Questions to discuss: cess to programmes? • Could Sweden do more to stay updated on the • Could Sweden do more to include gay, lesbian, legal and security situation and the needs and bisexual, trans and intersex people and the MSM priorities of the LGBTI movement? group in supported SRHR and GBV initiatives? • Could Sweden do more to offer protection to activists and attend court cases? To contribute to For further advice on dialogue regarding LGBTI is- the protection of organisations at risk? sues, download Sida’s Human Rights of Lesbian, • Could Sweden do more to seek effective strate- Gay, Bisexual and Transgender Persons - Conduct- gic alliances and continue to raise LGBTI rights ing a Dialogue and the Ministry of Foreign Affairs in the dialogue with the government? Dialogue brief. Also refer to the EU tools and guidelines in the reference list. • Could Sweden do more to encourage and support cooperation and synergies between LGBTI More specific advice and support measures, as well organisations and mainstream Human Rights or- as contact information, can also be provided through ganisations, both nationally and regionally? ILGA or RFSL, should the Embassy wish for a dialogue. • Could Sweden do more to include LGBTI organisations in social and professional events/networks and in programmes focussing

LGBTI organisations in Rwanda Front line Defenders: http://www.frontlinedefenders.org/ Horizon Community Association (HOCA): https://www.facebook.com/hocarwanda International Association of Independent Journalists: http://iaij.org/read.htm My Right Lawyers Without Borders: Other relevant organisations http://www.lawyerswithoutborders.org Coalition of Human Rights Defenders Human Rights Watch: http://www.hrw.org Coalition of NGO Forum Hivos https://www.hivos.org/activity/lgbt-capacity- development-programme-east-africa-kenya-uganda- Coalitions of African Lesbians (CAL): www.cal.org.za tanzania-burundi-and-rwanda East and Horn of Africa Independent

References EU news, tools and guidelines: http://eeas.europa.eu/human_rights/lgbt/index_en.htm The EU Guidelines (2013): Guidelines for supporting LGBTI persons' human rights ILGA, State-sponsored Homophobia: A world survey of laws prohibiting same-sex activity between consenting adults (See updated version at www.ILGA.org) RFSL, LGBT in Development, An introduction in how to include LGBT in programming in development http://www.rfsl.se/public/LGBT_in_development.pdf Sida’s Human Rights of Lesbian, Gay, Bisexual and Transgender Persons - Conducting a Dialogue and the Ministry of Foreign Affairs Dialogue brief. Binagwaho, Agnes, et al, 2008, Exploring HIV risk among MSM in Kigali, Rwanda: http://www.msmgf.org/files/msmgf//SubSaharanAfrica/ART_EN_000000_EXP.pdf National Commissions for UNESCO of France and Germany Claiming Human Rights, 2010, http://www.claiminghumanrights.org/rwanda.html?&L=0 UNGASS, Rwanda Country Progress Report 2008-2009 Shadow report on The Violations of the Rights of Lesbian, Gay, Bisexual and Transgender Persons in Rwan- da (2009) "The Great Lakes of Africa: Rwanda, Uganda, Burundi and their Position Towards LGBTI Rights", Naome Ruzindana. Paper presented at the 17th session of the Human Rights Council 7 June 2011

www.sida.se The Rights of LGBTI People in Somalia

November 2014

General situation of LGBTI people Legal and human rights instruments Lesbian, gay, bisexual, transgender and intersex Constitutional provisions and legal framework (LGBTI) issues are considered taboo and LGBTI Somalia has not had a functioning government since people live under constant threat of violence and 1991 and this has affected the enforcement of the harassment. As in many African countries, religion Penal Code, with laws and punishments differing be- plays a key role in Somali life and family structures, tween regions. Somaliland in the north has declared and homosexuality is considered by many to be a itself independent, but the region still, generally, ap- moral sin. Homosexuality is illegal and is punishable plies the Somali Penal Code. The southern part of by up to three years imprisonment. However, individ- Somalia is ruled by Islamic courts that impose Sharia uals are often punished with flogging and in southern law and punish same-sex sexual acts with the death Somalia, same-sex acts can result in the death pen- penalty or flogging. The north-eastern region of Punt- alty. land seeks autonomy, and has its own courts and judiciary enforcing what could be described as a com- LGBTI people in Somalia are silent and invisible, of- bination of Islamic Sharia law and the Somali Penal ten facing violence and rejection from their families Code. and communities that results in honour killings and suicides. There have been reports of gangs of armed As a country engulfed in corruption, division, and men searching the streets for people suspected of was, the legal structure in Somalia is divided be- being LGBTI, and many people have had to leave tween civil, religious, and customary laws. The judi- their homes because of their sexual orientation cial system is derived from civil law, which asserts and/or gender identity. Some have fled to neighbour- the primacy of Sharia Law or religious law. Even ing countries to escape torture or honour killings, but though, Sharia is mainly focused on domestic mat- neither Ethiopia nor Kenya look favourably on LGBTI ters involving marriage, divorce, inheritance, and issues – although there are some improvements in other civil issues. Kenya. Article 409 of the Penal Code criminalises same-sex The political developments in Somalia since 2012 sexual acts stating, “Whoever has carnal intercourse have been in a positive direction, with a new Gov- with a person of the same sex shall be punished, ernment and a new President, however, there are where the act does not constitute a more serious on-going security problems in the country with con- crime, with imprisonment from three months to three tinuing military and clan-related conflicts, subjecting years.” Carnal intercourse is defined as “penetration large parts of the population to a greater risk of vio- by the male sexual organ” (Article 398, para. 4). lence. However, Article 409 also states that “Where the act committed is an act of lust different from carnal inter- There are very few organisations working on human course, the punishment imposed shall be reduced by rights and democracy, and respect for human rights one-third”, allowing for the penalising of sexual acts is often neglected. LGBTI people are discriminated between women. There are also provisions for in- against and marginalised in all aspects of Somali so- creased punishments in article 400. Article 410 in- ciety and have little opportunity to exercise their cludes an additional security measure that may ac- rights. company sentences for same-sex acts, usually in the form of police surveillance to prevent “re-offending”. Having been ignored for so long, some human rights are now included and guaranteed in the Federal Constitution, adopted in August 2012, with a new

Ministry of Human Rights established in August identity. The resolution calls on “State parties to en- 2013. However, there is no specific mention of sex- sure that human rights defenders are able to work in ual orientation or even "other status" through which an environment free from stigma, reprisals or criminal LGBTI rights could be protected. Therefore constitu- prosecution as a result of their human rights protec- tional protection of these rights is very weak if not tion activities.” It further urges States to recognize absent. However, these rights are guaranteed under acts of violence and abuse by individuals and groups the ICCPR and other conventions to which Somalia by enforcing appropriate laws prohibiting and punish- is party. ing all forms of violence including those targeting people on the basis of their sexual identities. They A Human Rights Task Force was also established in must also ensure the proper investigation and dili- February 2013 to strengthen the protection of indi- gent prosecution of perpetrators and have the nec- vidual rights. According to the UN's Independent essary judicial procedures to respond to the needs of Human Rights Expert on Somalia, local human rights victims. This resolution is a milestone, but it has yet protection has gradually improved as government in- to be followed up at the national level. stitutionalisation and legislative reform have taken root. In November 2010, Somalia voted on an amendment to remove sexual orientation (later reinstated) from a Despite this, the rights of LGBTI people are not rec- UN document calling on governments to prevent ex- ognised anywhere in the national or regional penal trajudicial, summary or arbitrary executions. The codes. There is no anti-discrimination or hate crime amendment was adopted despite objections that legislation that protects LGBTI people from harass- homophobia and transphobia are often motives for ment and abuse on the basis of their sexual orienta- extrajudicial killings, and that the removal of the defi- tion and/or gender identity. There is also no legisla- nition would make it even more difficult to ensure that tion on gender recognition or other rights for states live up to their legal obligations. transgender or intersex people who may wish to change their legal documents. Somalia was also one of the countries that voted directly against the UN Declaration on Sexual Orienta-

tion and Gender Identity in 2008. Regional or international human rights instruments Somalia is a member of the UN and has ratified Sexual and Reproductive Health and Rights, many of the main international human rights instru- HIV/AIDS and Gender-based Violence ments. As such it is bound to fulfil, protect and re- Due to years of war, conflict and lack of effective spect the rights enshrined in these instruments. All government, the health system is fragmented and Somalis may turn to the UN Human Rights Commit- underperforming with major deficiencies in basic tee through procedure 1503, to the Special Rappor- funding and resources. Medical treatment for victims teurs for violations of specific human rights, to of sexual and gender-based violence and STIs are CEDAW for women's rights violations, and use the not universally available, so the sexual and reproduc- UNESCO procedure for human rights violations in tive health and rights of LGBTI people in Somalia are UNESCO's fields of mandate. Somalia is also a practically non-existent. There are enormous barriers member of the African Union and its citizens and to accessing healthcare and fact-based information, NGOs may file complaints to the African Commission including poverty, lack of knowledge and awareness on Human and Peoples’ Rights. All of these instru- of the benefits of sexual health, poor quality services, ments could be used to hold Somalia accountable to unskilled and hostile staff, and fears of discrimination better ensure LGBTI rights. or arrest. In May 2014, the African Commission on Human and Somalia has one of the lowest HIV prevalence rates Peoples’ Rights adopted a resolution condemning in Sub-Saharan Africa, but the discrimination against violence based on sexual orientation and gender

individuals living with the infection is widespread. website called Somali Gay Community was estab- UNICEF has reported that individuals with HIV/AIDS lished by a small group of Somalis living in the UK in are subject to physical abuse and rejection by their an effort to build a supportive community. This families, as well as workplace discrimination and launch led to a flood of threatening messages di- dismissal. rected at the group, with attempts made to hack the new site. When local media in Somalia picked up the Somalia has failed to report to UNGASS on any indi- news, they received death threats with their tele- cator concerning HIV prevalence and risky behaviour phone numbers and addresses published on a news among men having sex with men (MSM). According website. The Somali Gay Community website is no to a UNAIDS report from 2010, the country has not longer available. made any substantial efforts to map out potential Most at Risk Populations (MARP), such as MSM. In There are currently no specific transgender or inter- all Somali regions, sexual orientation is a serious cul- sex activists or advocacy groups in Somalia. tural taboo, which could impact on any MSM programming initiatives. UNAIDS reports that ‘hot spot What Sweden can do – 8 questions to mapping studies’ have shown that MSM is a common practice along the Djibouti-Somaliland border and is discuss further associated with cross-border trafficking. Within the broader context of support to democracy, Much of the HIV/AIDS education and care is provid- human rights and gender equality in Somalia, Swe- ed by international organisations where efforts at in- den has a great opportunity to include issues related creasing MSM access to health and social services to the rights of LGBTI people and their access to jus- have largely been driven by community-based organ- tice. When addressing LGBTI perspectives in a non- isations, rather than nationally funded HIV/AIDS pro- supportive government context like Somalia, it is very grammes. Criminalisation of same-sex acts increas- important to consult local HIV/AIDS or Human Rights es the stigmatisation of LGBTI groups and severely organisations to make sure not to conflict with their hampers their access to healthcare and safer sex in- work. Questions to discuss: formation. • Could Sweden do more to stay updated on the Poverty, lack of safety and stability, and a little re- legal and security situation and the needs and spect for LGBTI people means rape and other forms priorities of the LGBTI movement? E.g. via re- of sexual violence are common. Due to the stigma of gional networks and local human rights defend- rape among LGBTI people, rape survivors are often ers. left with no support and perpetrators/rapists are rare- • Could Sweden do more to offer protection to ac- ly brought to justice. Rape and other forms of sexual tivists and attend court cases? To organisations and gender-based violence is widespread, as LGBTI at risk? E.g. through the framework of Human people can not rely on the usual means of protection, Rights Defenders. such as family and community structures, and social and economic support networks. • Could Sweden do more to seek alliances to develop appropriate strategies for engagement in LGBTI issues? E.g. how to engage in law reform Civil society organisations and institu- programmes and how to encouraging main- tions active in LGBTI work stream programmes to become LGBTI inclusive (SRHR, human rights defenders). Somalia’s lack of a functioning central government has created great difficulties in LGBTI advocacy work • Could Sweden do more to promote and support and there are no known LGBTI organisations active human rights organisations and institutions to in- within Somalia. However, there are groups working clude human rights of LGBTI people as part of to make a difference from the outside. In 2007, a their agenda?

• Could Sweden do more to encourage and sup- The Swedish Strategy for Somalia also aims to work port cooperation and synergies between LGBTI with health and gender equality. This could be a win- organisations and mainstream Human Rights or- dow of opportunity to start introducing the issues of ganisations, both nationally and regionally? LGBTI people’s human rights and consequences of stigmatisation and discrimination in terms of access • Could Sweden do more to identify and support to health care and information, but also in other are- emerging LGBTI groups? Could the diaspora in as and aspects of poverty and marginalisation. Sweden be of help in this regard? It is important that any action taken is strongly connected with • Could Sweden do more to promote inclusion of local organisations to avoid accusations of "for- gay, lesbian, bisexual, trans and intersex people eign ideas". and the MSM group in the supported health initiatives? In gender based violence initiatives? Currently, discrimination in the labour market is a factor that greatly contributes to the marginalisation of For further advice on dialogue regarding LGBTI is- LGBTI people, putting them at risk of poverty. sues, download Sida’s Human Rights of Lesbian, Gay, Bisexual and Transgender Persons - Conduct- • In dialogues concerning private sector developing a Dialogue and the Ministry of Foreign Affairs ment, could Sweden do more to raise anti- Dialogue brief. Also refer to the EU tools and guide- discrimination, codes of conduct, and employ- lines in the reference list. ment legislation, with the aim of reducing discrimination against people based on sexual orienta- More specific advice and support measures, as well tion or gender identity? as contact information, can also be provided through ILGA or RFSL, should the Embassy wish for a dia-

logue.

References EU news, tools and guidelines: http://eeas.europa.eu/human_rights/lgbt/index_en.htm The EU Guidelines (2013): Guidelines for supporting LGBTI persons' human rights ILGA Africa: http://africa.ilga.org RFSL, LGBT in Development, An introduction in how to include LGBT in programming in development http://www.rfsl.se/public/LGBT_in_development.pdf ILGA, 2014, State-sponsored Homophobia: A world survey of laws prohibiting same-sex activity between consenting adults (See updated version at www.ILGA.org) Sida’s Human Rights of Lesbian, Gay, Bisexual and Transgender Persons - Conducting a Dialogue and the Ministry of Foreign Affairs Dialogue brief UD Resultstrategy for Somalia 2013-2017, http://www.regeringen.se/content/1/c6/22/13/44/0fbcd4ba.pdf

www.sida.se The Rights of LGBTI People in Sudan and South Sudan

November 2014

General situation of LGBTI people Legal and human rights instruments Same-sex acts are illegal in Sudan and South Sudan Constitutional provisions and legal framework and societal discrimination is widespread against South Sudan became independent from Sudan in 9 lesbian, gay, bisexual, transgender, and intersex July 2011, but is still subject to its interpretation of (LGBTI) people. In Sudan, the overwhelming majority Sharia law, under which same-sex acts were illegal, of the population considers non-conforming sexuality with punishments ranging from lashes to the death and gender expression socially unacceptable. Few penalty. In 2008, the autonomous Government of people dare talk about sexual orientation or gender Southern Sudan adopted its own Penal Code, which identity publicly, for fear of personal attacks and prohibits “carnal intercourse against the order of na- threats to their safety. There are reports of vigilantes ture” punishable by a fine and sentence of up to ten targeting suspected LGBTI people for violent abuse years' imprisonment. The 2011 Passports and Immi- and public demonstrations against homosexuality. gration Act, Section 15 on Refusal or Cancellation of Criminalisation, discrimination and stigmatisation Visa states: “Without prejudice to the provisions of have made LGBTI people invisible; they often lack Section (14) above, a visa shall not be granted to an access to basic rights such as personal security, le- alien who - (6) is reasonably suspected to be enter- gal protection, and healthcare, and basic information ing South Sudan for the purposes of prostitution, about sexuality and sexual health. Regardless of the homosexuality, lesbianism or human trafficking.” frequency of the implementation of so-called sodomy Sudan applies a judicial system based on Sharia laws, their mere existence usually results in a more law. Article 148 of the Sudanese Penal Code crimi- hostile social climate for LGBTI people. nalises the act of ‘sodomy’ (anal sex by men with In 2010, the President of South Sudan, Salva Kiir men and women) with punishment of 100 lashes and Mayardit, spoke of a nation of equal rights, democra- liable to five years’ imprisonment. If convicted for the cy and justice. However, he asserted that no gay third time, the offender is liable to life imprisonment people existed in South Sudan and if homosexuality or the death penalty. Article 151, ‘Indecent Acts’, was brought into the country it would be “condemned criminalises anyone who “commits an act of gross by everybody”. Homosexuality, he stated, was not in indecency upon the person of another person”, the character of the people of South Sudan and was where the punishment is 40 lashes and imprisonment not a topic the public could speak about. of maximum one year, or a fine. Article 152, ‘Ob- scene and Indecent Acts in Public Space’, criminalis- Religious influence plays an important role in the re- es anyone whose conduct or clothing is in violation of jection and prohibition of homosexuality and same- public decency and can be punished with 40 lashes, sex sexual relations have created heated divisions a fine or both. Article 153, ‘Material and Expositions within some religious communities. contrary to Public Morals’ and Article 156, ‘Seduction’ In 2012, the Swedish Embassy met with LGBTI are used sometimes against LGBTI people. groups in Sudan to research the situation and needs There is no anti-discrimination or hate crime legisla- of LGBTI people, concluding that sexual orientation tion that protects LGBTI people from harassment and and gender identity is a very sensitive issue to work abuse on the basis of their sexual orientation and/or on and requires high levels of discretion from activ- gender identity in Sudan or South Sudan. There is ists. The preferred form of support is capacity- also no legislation on gender recognition or other building activities, networking and exchange of in- rights for transgender or intersex people who may formation; and that security issues need to be con- wish to change their legal documents. stantly taken into account.

Regional or international human rights instru- the UN Declaration on Sexual Orientation and Gen- ments der Identity in 2008. Sudan is a member of the UN and has ratified many of the main international human rights instruments. Sexual and Reproductive Health and As such it is bound to fulfil, protect and respect the rights enshrined in these instruments. All Sudanese Rights, HIV/AIDS and Gender-based Vio- people may turn to the UN Human Rights Committee lence through procedure 1503, to the Special Rapporteurs Promoting sexual and reproductive health and rights for violations of specific human rights, to CEDAW for (SRHR) is inextricably linked to the promotion and women's rights violations, and use the UNESCO pro- protection of many other human rights. SRHR derive cedure for human rights violations in UNESCO's from the basic right of individuals to make decisions fields of mandate. Sudan is also a member of the Af- about their sexual lives free from any form of discrim- rican Union and its citizens and NGOs may file com- ination, coercion, or violence. There are serious plaints to the African Commission on Human and shortcomings in both countries with regard to respect Peoples’ Rights. All of these instruments could be for human rights and there are no systems, frame- used to hold Sudan accountable to better ensure works or programmes to respond directly to the spe- LGBTI rights. cific SRHR needs of LGBTI people in Sudan or South Sudan is also a member of the United Nations South Sudan. and the African Union. In 2014, the Sudanese Government reported to In May 2014, the African Commission on Human and UNGASS that the HIV prevalence among men who Peoples’ Rights adopted a resolution condemning have sex with men (MSM) is 2.38%, with only 20% of violence based on sexual orientation and gender men using a condom the last time they had anal sex identity. The resolution calls on “State parties to en- with a male partner, and 4.58% of MSM who re- sure that human rights defenders are able to work in ceived an HIV test in the previous 12 months and an environment free from stigma, reprisals or criminal knew their results. Studies on HIV prevalence and prosecution as a result of their human rights protec- related risk behaviour among MSM in Khartoum tion activities.” Additionally, States are urged to no State were published by the International AIDS Soci- longer tolerate acts of violence and abuse by execut- ety in 2005 (receptive MSM) and 2007 (insertive ing laws to prohibit and punish these forms of vio- MSM), with prevalence found to be 9.3% among the lence directed toward people on the basis of their first group and 7.8% among the latter. Both are high sexual identity. States are advised to investigate and numbers compared to other at risk populations, with prosecute perpetrators of violence and have the nec- only 27.6% of respondents having used condoms essary judicial means to support victims. This resolu- consistently. The study concluded that the lack of tion is a milestone, but it has yet to be followed up at preventive interventions directed towards the MSM national level. group is “fuelling the HIV epidemic in Sudan”. In November 2010, Sudan voted on an amendment In 2010, an estimated 128,000 people in South Su- to remove sexual orientation (later reinstated) from a dan were living with HIV, accounting for around 3% UN document calling on governments to prevent ex- of the population. Rates in Western Equatorial and in trajudicial, summary or arbitrary executions. The other southern regions of the country reached as amendment was adopted despite objections that high as 10%. Despite these statistics, activities relat- homophobia and transphobia are often motives for ing to HIV/AIDS in South Sudan do not account for extrajudicial killings, and that the removal of the defi- the needs of vulnerable groups, such as LGBTI peo- nition would make it even more difficult to ensure that ple and MSM, and prevention continues to be chal- states live up to their legal obligations. Sudan was lenging with existent criminalising laws and associat- also one of the countries that voted directly against ed stigma.

Since its independence in 2011, extensive security • Could Sweden do more to stay updated on the problems in South Sudan remain. Armed conflicts legal and security situation and the needs and and tribal clashes expose large parts of the popula- priorities of the LGBTI movement? tion to great risk of violence. In recent years, hun- • Could Sweden do more to offer protection to ac- dreds of thousands of people have been forced to tivists and attend court cases? To organisations flee from fighting within the country and from conflicts at risk? in Sudan. Poverty, lack of safety and stability, and a low regard for LGBTI people means rape and other • Could Sweden do more to seek strategic allianc- forms of sexual violence are common, as LGBTI es and to raise LGBTI rights in the dialogue with people can no longer rely on the usual means of pro- the government? For example, discrimination tection, such as family and community structures, and violations against LGBTI people could be and social and economic support networks. raised as significant obstacles to democratic reform and human rights. According to a study from 2013, 70% of lesbian and gay people in Khartoum, Sudan, faced violence from • Could Sweden do more to promote and support families, society and the authorities, because of their human rights organisations and institutions to in- sexual orientation and gender identity. clude human rights of LGBTI people as part of their agenda? Civil society organisations and institu- • Could Sweden do more to encourage and sup- tions active in LGBTI work port cooperation and synergies between LGBTI organisations and mainstream Human Rights or- In both Sudan and South Sudan, civil society organi- ganisations, both nationally and regionally? sations are harassed, repressed, and freedom of ex- • Could Sweden do more to identify and support pression is limited. In Sudan there are a few active emerging LGBTI groups? Could the diaspora in but unregistered organisations and an online maga- Sweden be of help in this regard? zine. As of 2014, there are no LGBTI organisations in South Sudan and no specific trans or intersex activ- SRHR or HIV/AIDS could be a window of opportunity ism in either country. to start introducing the issues of LGBTI people’s human rights and consequences of stigmatisation and discrimination in terms of HIV vulnerability, poverty What Sweden can do – 7 questions to and marginalisation. discuss • Could Sweden do more to promote inclusion of Within the broader context of the Swedish coopera- gay, lesbian, bisexual, trans and intersex people tion with Sudan and South Sudan with focus on in- and the MSM group in the supported health, creasing the knowledge of human rights, gender SRHR and HIV/AIDS initiatives? In gender based equality, SRHR and increasing the capability of civil violence initiatives? society to work for human rights, Sweden has a great opportunity to include issues related to the rights of For further advice on dialogue regarding LGBTI is- LGBTI people and their access to justice. When ad- sues, download Sida’s Human Rights of Lesbian, dressing LGBTI perspectives in non-supportive gov- Gay, Bisexual and Transgender Persons - Conduct- ernment contexts like Sudan and South Sudan, it is ing a Dialogue and the Ministry of Foreign Affairs very important to consult local LGBTI organisations Dialogue brief. Also refer to the EU tools and guide- to make sure not to conflict with their work. lines in the reference list. More specific advice and support measures, as well as contact information, Questions to discuss: can also be provided through ILGA or RFSL, should the Embassy wish for a dialogue.

References RFSL, LGBT in Development, An introduction in how to include LGBT in programming in development http://www.rfsl.se/public/LGBT_in_development.pdf Sida’s Human Rights of Lesbian, Gay, Bisexual and Transgender Persons - Conducting a Dialogue and the Ministry of Foreign Affairs Dialogue brief International Gay and Lesbian Human Rights Commission (IGLHRC): http://www.iglhrc.org/cgi-bin/iowa/home/index.html ILGA, 2014,State-sponsored Homophobia: A world survey of laws prohibiting same-sex activity between consenting adults (See updated version at www.ILGA.org) International AIDS Conference, 2008 – XVII Abstract No MOPE0393 and no. WEPE0750 Stemple, Lara, Male Rape and Human Rights, Hastings Law Journal, Vol. 60:605 Feb 2009 UNESCO National Commissions for UNESCO of France and Germany, 2010,Claiming Human Rights, http://www.claiminghumanrights.org/sudan.html?&L=0 www.claiminghumanrights.org/south_sudan.html?&L=0 Results strategy for Sudan 2014-16 http://www.regeringen.se/sb/d/1390/a/232788 Results strategy for South Sudan 2014-16 http://www.regeringen.se/sb/d/1390/a/229958 EU news, tools and guidelines: http://eeas.europa.eu/human_rights/lgbt/index_en.htm The EU Guidelines (2013): Guidelines for supporting LGBTI persons' human rights.

The human rights of LGBTI persons have been a Swedish government priority since 2009. As a service to staff, guidance notes have been prepared to provide basic information about the situation of this (often forgotten) group and inspire discussions on what Sweden could do to better include LGBTI rights in diplomacy and programming.

www.sida.se The Rights of LGBTI People in Tanzania

December 2014

General situation of LGBTI people In Tanzania, social and political attitudes are very Us Like Human Beings: Discrimination against Sex hostile towards lesbian, gay, bisexual, transgender Workers, Sexual and Gender Minorities, and People and intersex (LGBTI) people, who face widespread Who Use Drugs in Tanzania”, documents abuses in- discrimination that restricts their access to cluding torture, rape, assault, arbitrary arrest, and ex- healthcare, housing, employment and justice. Same- tortion. The organisations found that the fear of sex sexual acts between men are criminalised and abuse is driving sex workers, people who use drugs, following that, the state cannot offer protection, but and lesbian, gay, bisexual, transgender, and intersex rather restricts LGBTI-persons human rights. The (LGBTI) people away from prevention and treatment State does not recognise the rights of transgender or services. The two organisations also documented a intersex people regarding change of legal gender or wide range of abuses against at-risk groups in the access to gender affirming treatments. Homophobia health sector, including denial of services, verbal takes many forms in Tanzania, such as verbal, sexu- harassment and abuse, and violations of confidential- al, psychological, and physical abuse, intimidation; ity. expulsion from school; discrimination at work; rejec- The Tanzanian Commission for Human Rights and tion and isolation from families, friends and communi- Good Government's prison visits in 2011 revealed ties and denial of healthcare services. In July 2012, that “unnatural offenses” were among the most one of the leading LGBTI activists and sexual health common reasons for pretrial detention of minors. In advocates, Maurice Mjomba, was murdered. His the past courts have mostly charged individuals sus- case was covered internationally, putting focus on pected of same-sex sexual conduct with loitering or the hate crimes against LGBTI persons. The case prostitution (Country report on Human Rights Prac- was never resolved. tices, 2013, US State Department). In recent years, many LGBTI activists have been singled out and arrested on charges of debauchery, Legal and human rights instruments branded ‘prostitutes’ and ‘vagrants’ and charged with being commercial sex workers under Section 176(a) Constitutional provisions and legal framework of the Penal Code. The activists have been detained Since 1988, the Tanzania Constitutions contains a for lengthy periods of time in local jails and denied “bill of rights”, including the right to equality. Article bail as their offences were ‘spreading’ and should be 12 states that all men are born free and are equal dealt with without mercy. Following the statement by while Article 13 stipulated that all persons are equal the UK in 2011 that it may withhold or reduce aid to before the law and are entitled without any discrimi- governments that do not reform statutes criminalising nation, to protection and equality before the law. The homosexuality, there was a spike in violence against constitution also protects against torture and degrad- LGBTI people in Tanzania, as in several other Afri- ing treatment, arbitrary arrests and guarantees the can countries. The Minister of Foreign Affairs, and right to life and freedom of expression. It is likely that the President of Zanzibar reacted strongly, defending these basic human rights would remain in the pro- the legislation. posed new constitution that is planned go to referen- In 2013, Human Rights Watch and the Wake Up and dum in 2015. However, the Parliament seems to be Step Forward Coalition released a report including able to adopt laws that violate the constitution. several detailed allegations of torture and abuse of Therefore it does not have the intended weight. lesbian, gay, bisexual, and transgender individuals while in police custody. The 98-page report, “‘Treat

In Tanzania, same-sex sexual acts between men are In 2009, The Centre for Human Rights Promotion criminalised under the Penal Code, Sections 154 and with support from IGLHRC prepared a Shadow Re- 157, and are punishable with up to 30 years in pris- port on human rights for LGBTI persons, in connec- on. Although sexual relationships between women tion with the submission of Tanzania’s fourth periodic are not specifically mentioned, the legal situation is report to the United Nations Human Rights Commit- repressive for women, like for transgender and inter- tee (UNHRC). The Committee urged Tanzania to de- sex people. The autonomous region of Zanzibar re- criminalise same-sex sexual relations between con- vised its criminal law in 2004; making same-sex sex- senting adults and implement laws that protect sexu- ual acts illegal between men (up to 25 years in pris- al and gender minorities. When the Tanzania Human on) and women (up to 5 years in prison and a fine). Rights Commission publicised and media picked it, a LGBTI activists have reported the law being used considerable backlash was taken against LGBTI and people have been sentenced to lengthy prison people, especially those who had reported human terms. The law forces the entire LGBTI movement to rights violations for the shadow report. Several activ- work underground and to take precautions in engag- ists were arrested and harassed. During the Univer- ing with people outside of their networks, at the risk sal Periodic Review (UPR) of Tanzania in 2011, Slo- of being betrayed and convicted. venia, Sweden, and the United Nations Country Team (UNCT) urged Tanzania to decriminalise In March 2014, a Tanzanian Member of Parliament same-sex sexual activities and adopt legislation proposed a Bill to strengthen the criminalisation laws, against discrimination, with the response that the claiming that existing laws are not strong enough and Government would not accept that recommendation. wanting a new law to punish people who “induce others” to become gay or “promote” homosexuality. In May 2014, the African Commission on Human and So far it has not been passed. Peoples’ Rights adopted a resolution condemning violence based on sexual orientation and gender There are no laws against discrimination based on identity. The resolution calls on “State parties to en- sexual orientation or gender identity, nor protection sure that human rights defenders are able to work in against hate crimes based on sexual or gender iden- an environment free from stigma, reprisals or criminal tity. There is also no legislation on gender recognition prosecution as a result of their human rights protec- or other rights for transgender or intersex people who tion activities.” It further urges States to recognise may wish to change their legal documents. acts of violence and abuse by individuals and groups Regional or international human rights instru- by enforcing appropriate laws prohibiting and punishments ing all forms of violence including those targeting Tanzania is a member of the UN and has ratified people on the basis of their sexual identities. They several of the main international human rights in- must also ensure the proper investigation and dili- struments. As such it is bound to fulfil, protect and gent prosecution of perpetrators and have the nec- respect the rights enshrined in these instruments. All essary judicial procedures to respond to the needs of Tanzanians may turn to the UN Human Rights victims. This resolution is a milestone, but it has yet Committee through procedure 1503, to the Special to be followed up at (the) national level. Rapporteurs for violations of specific human rights, to ECOSOC for women's rights violations, and use the Sexual and Reproductive Health and Rights, UNESCO procedure for human rights violations in UNESCO's fields of mandate. Tanzania is also a HIV/AIDS and Gender-based Violence member of the African Union and its citizens and There is a marked silence and much work to be done NGOs may file complaints to the African Commission to address the situation of LGBTI people regarding on Human and Peoples’ Rights. All of these instru- their sexual and reproductive health and rights. En- ments could be used to hold Tanzania accountable trenched discrimination and stigma, lack of infor- to better ensure LGBTI rights. mation and resources, and restrictive attitudes to-

wards diverse sexualities and gender identities have In general the organisations face problems in operat- ensured that many people are unable to access ap- ing openly and cannot be registered properly. The en- propriate services. try point for most of the LGBTI related actors is to work with health rights, which has proved to be the most Tanzanian men engage in same-sex sexual rela- assessable way to operate, grow and take the issues tions, despite criminalisation, even on Zanzibar, with of concern forward. When the Ugandan anti-gay legis- stricter legislation. Without proper prevention strate- lation was discussed in international media also some gies men who have sex with men (MSM) risk further issues were raised in Tanzania, even though limited. spreading the HIV virus. Since 2007, the country’s In connection to this event a CSO was banned by the strategic framework on HIV/AIDS includes MSM as a authorities and had to go underground. vulnerable group. The framework has included efforts to develop services, interventions and studies, but it seems that little or no action has actually been taken What Sweden can do? – 10 questions to dis- regarding MSM. Tanzania has not reported on MSM cuss indicators to UNGASS. HIV in relation to MSM is an Within the broader context of the Swedish results under-researched field in Tanzania, as in most other strategy for Tanzania, with particular focus on countries in Africa. One of the few accessible studies strengthening civil society and public sector capacity, on rates of HIV amongst MSM in Tanzania, “the Tan- enhancing understanding of human rights and in- zania HIV and Malaria Indicator Survey” (THMIS, creasing access to education, work and sustainable 2008) suggests a prevalence rate of 12.4%. This cor- livelihoods, Sweden could include issues related to responds with other figures from the region that point the rights of LGBTI people. When addressing LGBTI to disproportionately high rates amongst MSM, com- perspectives in a non-supportive government context pared to the population at large. This has also been like Tanzania, it is very important to consult local confirmed by more recent data. LGBTI organisations to make sure not to conflict with Gender-based violence targeting LGBTI people is their work and causing backlashes. Such consulta- frequently extreme and condoned or even carried out tions are already ongoing within the framework of EU by the Police and other State institutions. Following and Nordic engagement. attacks or forced sexual encounters, LGBTI people Questions to discuss: often choose not to engage with health services or the Police for fear that they may be arrested or de- • Given the high sensitivity of the topic, risks in- nied treatment. For some LGBTI people, they report volved and the overriding potential backlash – the attacks as other crimes instead of sexuality or could Sweden do more to assist in coordinated gender-related violence to get the necessary medical and responsible approaches within the interna- treatment. tional community? • Considering the widespread homophobia in Tan- Civil society organisations and institutions zania, which could (intentional or unintentional) active in LGBTI work spark heated feelings and widespread violence towards LGBTI persons and organisations, could There are a number of organisations or groups work- Sweden do more to curb this negative potential in ing for the enhancement of LGBTI rights in Tanzania. cooperation with Tanzania? The movement is still weak and fragmented, but positive signs of empowerment are noted. Most of • Could Sweden do more to stay updated on the the LGBT organisations identified are situated in Dar legal and security situation and the needs and es Salaam and the majority of the donor funding is priorities of the LGBTI movement? directed at these LGBT organisations.

• Could Sweden do more to offer protection to ac- discrimination against people based on sexual tivists and attend court cases? To contribute to orientation or gender identity? the protection of organisations at risk? • In education reform programmes, could Sweden • Could Sweden do more to encourage and sup- do more to include measures against discrimina- port cooperation and synergies between LGBTI tion of LGBTI persons and practices of expelling organisations and mainstream Human Rights or- students on various discriminatory grounds, in- ganisations, both nationally and regionally? cluding sexual orientation or gender identity? • Could Sweden do more to include LGBTI organi- • Could Sweden do more to encourage SRHR, sations in social and professional HIV/AIDS and gender based violence initiatives events/networks and in programmes focussing to include gay, lesbian, bisexual, trans and inter- on civil society capacity development and/or hu- sex people and the MSM group? man rights enhancement? For further advice on dialogue regarding LGBTI is- • Could Sweden do more to encourage inclusion of sues, download Sida’s Human Rights of Lesbian, LGBTI rights in accountability mechanisms (e.g. Gay, Bisexual and Transgender Persons - Conduct- law reforms and national human rights institu- ing a Dialogue and the Ministry of Foreign Affairs tions mandate and monitoring)? Dialogue brief. Also refer to the EU tools and guidelines in the reference list. More specific advice and • In dialogues concerning private sector develop- support measures, as well as contact information, ment and job creation, could Sweden do more to can also be provided through ILGA or RFSL, should raise anti-discrimination, codes of conduct and the Embassy wish for a dialogue. employment legislation, with the aim of reducing

Tanzania specific references Centre for Human Rights Promotion, 2009, Shadow Report on human rights for LGBTI persons in Tanzania, http://iglhrc.org/sites/iglhrc.org/files/290-1.pdf Human Rights Watch and Wake Up and Step Forward Coalition, 2013, “‘Treat Us Like Human Beings: Dis- crimination against Sex Workers, Sexual and Gender Minorities, and People Who Use Drugs in Tanzania”, http://www.hrw.org/reports/2013/06/18/treat-us-human-beings-0 Immigration and Refugee Board of Canada (IRB) Report on LGBTI rights in Tanzania http://www.refworld.org/cgi- bin/texis/vtx/rwmain?page=topic&docid=540421f24&skip=0&tocid=50ffbce40&toid=50ffbce454&querysi=Tanz ania&searchin=title&sort=date Office of the High Commissioner of Human Rights, 2012, Born Free and Equal, Sexual Orientation and Gen- der Identity in International Human Rights Law, http://www.ohchr.org/Documents/Publications/BornFreeAndEqualLowRes.pdf Web-page of IGLHRC http://iglhrc.org/content/tanzania-arbitrary-arrests-and-detentions-gay-and-lesbian- activists

The human rights of LGBTI persons have been a Swedish government priority since 2009. As a service to staff, briefs have been prepared to provide basic information about the situation of this (often forgotten) group and inspire discussions on what Sweden could do to better include LGBTI rights in diplomacy and programming.

www.sida.se The Rights of LGBTI people

in Uganda

December 2014

General situation of LGBTI people Homophobia and transphobia is widespread in creased attention on the international human rights Uganda. It is sanctioned by state laws that criminal- agenda, in the UN, and in the donor community. ise same-sex sexual acts and fuelled by some religious and political leaders. Leaders have engaged in Legal and human rights instruments public rallies, using strong ‘hate speech’ language against same-sex sexual acts and against lesbian, Constitutional provisions and legal framework gay, bisexual, transgender and intersex (LGBTI) per- The Constitution has several provisions that guaran- sons. The president and several ministers have spo- tee equality, the right of all persons to respect and ken out in public, strongly condemning homosexuali- human dignity. It also prohibits discrimination against ty. An Anti-Homosexuality Act was passed (and later all persons (article 21). It further stipulates that the annulled by the constitutional court), which was State shall take affirmative action in favour of mar- meant to sharpen the penalty for same-sex sexual ginalised groups and shall make laws for the fulfil- acts, restrict the freedom of association, and the right ment of this clause, including laws to establish an to privacy. The religious networks have strong inter- Equal Opportunities Commission (article 32). There national connections, particularly with the Christian are also provisions for freedom of expression and as- conservative movement in the USA, that support and sociation. However, the general human rights situa- encourage the homophobia morally and financially. tion in Uganda is complex. Many laws have been The anti-homosexual voices and cultural prejudices passed or being proposed in conflict with the Consti- often associate LGBTI with paedophilia, accusing tutional provisions, for example the Public Order them to “recruit” minors. This makes it hard to sup- Management Act (requiring permission to meet), the port LGBTI youth or work with comprehensive sexual Anti- Pornography Act, the proposed NGO Amend- education. ment Bill and the Anti-Homosexuality Act (later annulled by the constitutional court). In order to pro- LGBTI persons face high risks of being discriminat- mote and monitor human rights, Uganda Human ed, harassed and arrested on arbitrary grounds, es- Rights Commission was established in 1996 and an pecially non-gender conforming or trans-persons. Equal Opportunities Commission in 2012. Despite Blackmailing of LGBTI persons are common and these frameworks democracy and human rights are many are disowned by their families, expelled from far from reality. schools or discriminated in the health system. There are several sections within the Ugandan penal Media generally does not support LGBTI rights and code that can be applied against LGBTI persons. In has been reluctant to communicate voices from the December 2013, the “Anti-Homosexuality Act” was LGBTI community. There have been ”outings” of ac- passed and, in February 2014, signed into law. In tivists in one local tabloid, causing severe problems August 2014 it was on technical grounds declared for those persons; some of them had to flee the unconstitutionally passed and therefore non-valid. country. The government is appealing that decision. The an- There are several active LGBTI organisations in nulled Anti-Homosexuality Act meant a sharpening of Uganda and the LGBTI movement has chosen a vis- the previous penal code, that already criminalised ible and proactive path. It has gone to court in cases same-sex sexual acts, by criminalising and defining of human rights violations, in several cases success- “homosexuality” in itself. Even worse, “promotion of fully. Ugandan LGBTI activists have worked strategi- homosexuality” was made a criminal offense, which cally to gain visibility, which has sometimes turned included counselling or reaching out to LGBTI per- activists into targets for public assaults. Simultane- sons and spreading information. Further, it criminal- ously, LGBTI rights in Uganda have gained in ises any organisation or business “involved in promoting homosexuality”. Whether the appeal is ap-

proved or not, or the new bill focusing on the “promo- ments. As such it is bound to fulfil, protect and re- tion” part will pass - the bill has created a lot of dam- spect the rights enshrined in these instruments. age during the promotion and existence of it, increas- Ugandans may turn to the UN Human Rights Com- ing homophobia and transphobia across the country. mittee through procedure 1503, to the Special Rap- porteurs for violations of specific human rights, to Currently, section 145 (belonging to “offenses CEDAW for women's rights violations and use the against the morality) under chapter 120 of the Ugan- UNESCO procedure for human rights violations in dan penal code, criminalises “carnal knowledge UNESCO's fields of mandate. Also, Uganda is a against the order of nature”, which is liable to impris- member of African Union and its citizens and NGOs onment for seven years. The same section states may file complaints to the African Commission on that letting “a male person to have carnal knowledge Human and Peoples’ Rights. All these instruments of him or her against the order of nature” is liable to could be used to hold Uganda accountable to LGBTI imprisonment for life. There are other sections that rights. There is a pending case challenging the en- can be used against LGBTI persons, like section 148 actment of the AHA at the East African Court of Jus- of “indecent practices” (liable to imprisonment of tice. The activists opted not to withdraw this case af- seven years). The criminalisation of the act of selling ter the AHA was annulled locally because they this sex (“prohibition of prostitution”) section 139, which is regional court would add clout to the voices of the lo- also liable of seven years of imprisonment also affect cal courts. persons of the LGBTI community. While the penal code is commonly interpreted as criminalising anal In May 2014, the African Commission on Human and sex, the connotation that homosexuality is illegal also Peoples’ Rights adopted a resolution condemning affects lesbians and transgender persons. In 2005, violence based on sexual orientation and gender the Ugandan parliament approved a proposed consti- identity. The resolution calls on “State parties to en- tutional amendment stating that ‘marriage is lawful sure that human rights defenders are able to work in only if entered into between a man and a woman’ an environment free from stigma, reprisals or criminal and that ‘it is unlawful for same-sex couples to mar- prosecution as a result of their human rights protec- ry’. However, the government has urged that no one tion activities.” It further urges States to recognise has ever been convicted of these offences as stipu- acts of violence and abuse by individuals and groups lated in the penal code since 1950. by enforcing appropriate laws prohibiting and punishing all forms of violence including those targeting Freedom of association and assembly are officially people on the basis of their sexual identities. They recognised by the constitution, Already in 2010, the must also ensure the proper investigation and dili- “Public Order Management Bill” was passed, requir- gent prosecution of perpetrators and have the nec- ing that groups of three or more people receive prior essary judicial procedures to respond to the needs of police approval before gathering to discuss any gov- victims. This resolution is a milestone, but it has yet ernment actions, failures, or policies. A case in point to be followed up at the national level. is the closure of a LGBTI workshop in 2012 on grounds of illegal assembly and engaging in illegal activities. The “Anti-homosexuality Act” would violate Sexual and Reproductive Health and Rights, the right to organise for LGBTI persons and allies, HIV/AIDS and Gender Based Violence and during the short period of time it was in place it In May 2014, the government passed the “HIV/AIDS affected the security of those organisations to work Prevention and Control Act”, first presented in 2010. with LGBTI rights by creating fear of arrests. The HIV/AIDS Prevention and Control Act incorpo-

rates provisions which criminalise ‘attempted’ and Regional or international human rights instru- ‘wilful’ transmission of HIV with a five year imprison- ments ment term. The Human Rights Awareness and Pro- Uganda is a member of the UN, and has ratified al- motion Forum (HRAPF) call this a violation against most all the main international human rights instru- the rights to equality, autonomy, bodily integrity and

privacy, guaranteed in the Constitution. Further, Civil society organisations and institutions HRAPF argues that this act goes against evidence active in the LGBTI field based effective rights-based approaches to HIV prevention, as embodied in the East African Community At the emergence of the Anti-Homosexuality Bill, the HIV and AIDS Prevention and Management Act of Uganda Civil Society Coalition on Human Rights and 2012. A Human Rights Watch statement on homo- Constitutional Law was formed out of LGBTI organi- phobia in Uganda (2007) say that ‘state homophobia sations and other National Human Rights nongov- and well-funded fanaticism are undermining Ugan- ernmental organisations with the purpose of using da’s efforts to combat the spread of HIV/AIDS’. legal advocacy to prevent the Bill from passing. The coalition now consists of over fifty Ugandan civil so- A study in Kampala in 2012 contracted out by the ciety organisations, including human rights, feminist, MARPs Network found HIV prevalence at 9.1 percent HIV focused, LGBTI, media and refugee organisa- in MSM. MSM, MTF and sex workers of all genders tions and groups. These alliances are important also are most at risk populations at higher risk, not at for future actions. It is however of utmost importance least while criminalised, which lead to less access to that it is the LGBTI movement that guides donors information and protection. The study is cited in the and supporters in terms of most appropriate actions Government report to UNGASS, which also states and risk taking. that these groups are prioritised in the 2011-2015 NSP. However, the discrimination within the general There are a number of activist LGBTI organisations health care is high and those groups suffer from not in Uganda. Several have emerged under the umbrel- accessing enough prevalent information and ser- la organisation Sexual Minorities Uganda (SMUG). vices. Given the criminal status of same-sex sexual acts in Uganda, LGBTI organising is challenging. Most of A Respondent Driven Sampling Survey done in 2012 the LGBTI organisations are not legally registered concluded: “MSM in Kampala are at substantially under the NGO act or the Companies act due the na- higher risk for HIV than the general adult male popu- ture of their activities and restrictions under the penal lation. MSM reporting a lifetime history of homophobic abuse are at increased risk of being HIV infected. code act. In essence, they are operating illegally. It Legal challenges and stigma must be overcome to has been hard for LGBTI people to ‘come out’ and to provide access to tailored HIV prevention and care participate actively in the LGBTI movement, due to services.” the continued public stigma and hostile messages Lesbians and women who have sex with women from both the state and the general public. However, (WSW) often have intimate sexual relationships with since 2011, three pride events have been successful- men alongside their same sex relations because of ly organised the last two years but this was due the the social stigma and the hostility towards their sexu- fact that some LGBTI activists have created strategic ality and gender identity; lesbian, WSW and FTM are contacts and rapport with higher police authorities. also a vulnerable group when it comes to HIV/AIDS Under normal circumstances, this would be rather prevention. difficult. During the presence of Anti-Homosexuality Act in 2014, the space for activism was enormously Violence against LGBTI persons is often based on narrowed. LGBT activists relied on regional and non-conforming gender identity or sexuality. Not at mainstream human rights organisations for support. least lesbians with masculine expression, transgender persons, and others that have non- On a positive note, the success of the Pride celebra- conforming gender expressions risk stigma, violence, tions, earned the director of FARUG, Kasha Jacquel- and sexual violence due to their gender expression. ine Nabagesera, the Nuremberg International Human LGBTI persons’ decision to have children is either Rights Award 2013. Also, the director of SMUG, frowned upon or used as an argument for the person Frank Mugisha was awarded the 2011 Robert F. to enter a heterosexual relationship. In Uganda this is Kennedy Human Rights Award. not at least a problem for Muslim LGBTI persons exposed to arranged marriages.

Organisations supporting LGBTI rights in • Could Sweden do more to support organisations Uganda at risk and in need of safety measures (e.g. provision of flexible funding for capacity develop- Freedom and Roam Uganda (FARUG) ment and outreach in the country)? The strong http://www.faruganda.org movement and its bonds to Swedish organisa- Ice Breakers Uganda tions could be a basis for increased the coopera- http://www.icebreakersuganda.org tion. Sexual Minorities Uganda (SMUG) • Could Sweden do more to attend court cases http://www.sexualminoritiesuganda.org and offer protection and support to activists and organisations at risk? Attending court cases to Civil Society Coalition on Human Rights and Consti- show support is morally and symbolically im- tutional Law http://www.ugandans4rights.org/ portant. Spectrum Uganda http://www.spectrumuganda.org • Could Sweden do more to seek strategic allianc- Ugandans 4 Rights http://www.ugandans4rights.org es and address LGBTI rights in the dialogue with Reproductive Health Uganda http://www.rhu.or.ug/ , government institutions and representatives, with member of IPP and supported by RFSU to main- reference to international law that Uganda has stream LGBTI issues signed? Pan-African ILGA (regional) http://africa.ilga.org • Could Sweden do more to support development of accountability mechanisms in the area of Coalition of African Lesbians, CAL (regional) LGBTI (e.g. reform of laws, access to legal aid, http://www.cal.org.za capacitating of HR institutions such as Commis- Uhai-Grant making mechanism for activist organisa- sions for equal opportunities and Commission for tions (regional) http://www.uhai-eashri.org/ENG Human Rights, development of monitoring and reporting methods)? • Could Sweden do more to encourage Swedish faith based organisations operating in Uganda to engage with LGBTI rights? What Sweden can do? – 11 questions to discuss • Could Sweden do more to include LGBTI activists and organisations in cultural and professional Within the broader context of support to democracy, events and networks and in organisational de- human rights, and gender equality in Uganda, Swe- velopment support programmes? This could be den has a great opportunity to include issues related one way to enlarge the network and to get more to the rights of LGBTI persons and their access to support from other organisations in the civil soci- justice. When addressing LGBTI in a non-supportive ety. government context as Uganda, it is very important to consult LGBTI organisations in the country to • Could Sweden do more to encourage and sup- make sure not to overrule their agenda and to under- port cooperation and synergies between LGBTI stand the level and criteria for engagement. organisations and mainstream Human Rights organisations nationally and regionally? • While recognising that engagement is already ongoing, could Sweden do more to stay updated • Could Sweden do more to encourage and sup- on the legal and security situation and the port cooperation and synergies between LGBTI judgements and priorities of the LGBTI move- organisations and general SRHR-organisations ment? on a national as well as regional level?

Presently, discrimination within the labour market is a • Could Sweden do more to use SRHR or gender factor that strongly contributes to the marginalisation based violence programmes as entry points in of LGBTI persons, and puts them at risk of poverty. the work towards acceptance of LGBTI persons? The Swedish strategy for Uganda aims at improving For further advice on dialogue regarding LGBTI is- opportunities for the poor to contribute to and access sues, download Sida’s Human Rights of Lesbian, economic growth. Gay, Bisexual and Transgender Persons - Conduct- • In the dialogue concerning private sector devel- ing a Dialogue and the Ministry of Foreign Affairs opment, could Sweden do more to address anti- Dialogue brief or the EU tools referred to in the refer- discrimination, codes of conduct and labour leg- ence list. islation, with the aim of reducing discrimination More specific advice and support measures, as well against people based on sexual orientation or as contact information to mentioned groups, can also gender identity? be provided through ILGA or RFSL, should the Em- The Swedish Strategy for Uganda also aims at im- bassy wish for a dialogue. proving sexual and reproductive health and rights and to prevent gender based violence.

References

Amnesty International report on Discriminatory Legislation in Uganda, 2014 http://www.amnesty.org/en/library/asset/AFR59/006/2014/en/aa50ac80-a17e-4534-8979- 3ba8ed114172/afr590062014en.pdf IGLHRC statement in UN on Uganda LGBTI rights, 2014, http://iglhrc.org/content/iglhrc-reminds-new- ugandan-leader-un-general-assemply-human-rights-means-everyone Danish Refugee Council and Danish Immigration Office, 2014, The Situation of LGBT persons in Uganda, https://www.nyidanmark.dk/NR/rdonlyres/C0BC7D6B-C3E0-46DA-B151- EA7A28E4362F/0/SituationofLGBTpersonsinUgandaFinal.pdf EU news, tools and guidelines: http://eeas.europa.eu/human_rights/lgbt/index_en.htm The EU Guidelines (2013): Guidelines for supporting LGBTI persons' human rights. Hadik W, Barker J, Ssenkusu JM, Opio A, Tappero JW, et al. (2012) HIV Infection among Men Who Have Sex with Men in Kampala, Uganda–A Respondent Driven Sampling Survey. PLoS ONE 7(5): e38143. doi:10.1371/journal.pone.0038143m, http://www.ncbi.nlm.nih.gov/pubmed/22693590 ILGA, 2014, State-sponsored Homophobia: A world survey of laws prohibiting same sex activity between consenting adults. (see updated version at www.ILGA.org) Mugisha, F. 2012, Sexual Minorities Uganda [SMUG] Outraged by the Closure of LGBTI Capacity Develop- ment Workshop by the State Minister of Ethics and Integrity http://www.msmgf.org/index.cfm/id/11/aid/6026 RFSL, the Swedish Federation for the rights of LGBTQ persons http://www.rfsl.se RFSL, LGBT in Development, An introduction in how to include LGBT in programming in development http://www.rfsl.se/public/LGBT_in_development.pdf Sekaggya, Margaret 2009, Report submitted by the Special Rapporteur on the situation of human rights defenders, , A/HRC/10/12/Add.1, 4 March 2009: http://www2.ohchr.org/english/issues/defenders/docs/A.HRC.10.12.Add.1.pdf Uganda Aids Commission, 2014, 2013 Uganda HIV and AIDS Country Progress report http://www.unaids.org/sites/default/files/en/dataanalysis/knowyourresponse/countryprogressreports/2014coun tries/UGA_narrative_report_2014.pdf UN Claiming Human Rights http://www.claiminghumanrights.org/uganda.html UNAIDS, 2011: ‘UNAIDS expresses concern over proposed ‘Anti-Homosexuality Bill’ in Uganda’, http://www.unaids.org/en/media/unaids/contentassets/documents/pressstatement/2011/20110510_PS_Ugand a_en.pdf

www.sida.se The Rights of LGBTI People in Zambia

December 2014

General situation of LGBTI people Lesbian, Gay, Bisexual, Transgender and Intersex Issues concerning LGBTI people, stating that they (LGBTI) people in Zambia live in constant fear of ar- will not promote lifestyles that are outlawed by the bitrary arrests and discrimination in the education country’s Constitution, and that sexual orientation system, job and housing markets, and access to ser- and gender identity are not human rights issues. vices, as well as social attitudes toward LGBTI peo- In June 2014, Zambia reiterated its position of not ple are mostly negative. Further, due to discrimina- recognising LGBTI rights that allegedly run counter to tion within the Health Service Delivery the health the country’s culture and are an affront to the Consti- needs of the LGBTI community have not been ad- tution, which acknowledges Zambia as a Christian dressed as well, something that also takes on toll on nation. The Deputy Minister of Foreign Affairs, Ga- psychological health The Penal Code reinforces briel Namulambe, also urged foreign missions ac- stigma and homophobia, leading to other forms of credited to Zambia to respect its Christian values and human rights abuses, such as violence and hate the views of the country on LGBTI rights. crimes. In addition, extortion and blackmail of gay men is a problem, and it is not uncommon that it oc- Legal and human rights instruments curs with police participation. Constitutional provisions and legal framework According to activists, the situation for sexually di- The Zambian Penal Code explicitly criminalises verse and gender-variant Zambians continues to de- same-sex sexual relations between both men and teriorate. Those accused of ‘practicing’ sodomy are women. In 2005 the Zambian penal code was arrested and outed in online media blogs with vicious amended to, clearly outline the penal code for males, carelessness, beaten, and kicked out of their homes females and children separately who engage in ho- and schools. LGBTI Zambians, their defenders and mosexual acts i.e. “act of gross indecency with a fe- allies continue to live in constant danger and fear of male child or person” (section 158). Also, section arrests owing to their real or perceived sexual orien- 155a states that it is criminalised for “any person who tation and gender identities and the work they are in- has carnal knowledge of any person against the or- volved in – allies of this community are not spared der of nature” and this could be interpreted to include but also continue to face intimidation, arrests and women, transgender and intersex people as well. harassment at the hands of the State. Gay and bisexual men have been arrested and Since early 2014, the social, cultural, legal and politi- charged under the code, however, most cases do not cal landscape has worsened for LGBTI individuals. reach conviction but rather require financial settle- For the first time since Independence, sodomy laws ments outside of court. targeting consenting same-sex adults have been in- While there is no legislation protecting LGBTI people voked, precedence has been set in the Zambian from discrimination, there is implicit protection Courts through litigation and convictions of various against discrimination in the anti-discrimination ‘sodomy-related cases’ and the judiciary continues to clause in Article 23 of the 1996 Zambian Constitu- use the sodomy laws to mete out stiffer convictions. tion. According to Article 23(1), “no law shall make Government politicians have repeatedly made ho- any provision that is discriminatory either of itself or mophobic and transphobic statements. Increasingly in its effect”. Article 23(2) further prohibits discrimina- hostile statements made by political leaders have tion “by any person acting by virtue of any written law threatened Zambian LGBTI activists and influential or in the performance of the functions of any public clergy who refuse to address health-related office or any public authority”, and Article 23(3) de-

fines discrimination as extending to differential treat- it is impossible to respect LGBTI rights as long as the ment of people on the basis of “race, tribe, sex, place current legislation criminalises same-sex acts, and of origin, marital status, political opinions, color or that people who engage in protecting LGBTI rights creed”. face penal sanctions. Zambia’s laws concerning homosexuality not only violate international conventions For transgender people trying to access gender- that Zambia has committed to, but reinforce negative affirming treatment, formally there is no possibility to social stigma and homophobia against sexual and change legal documentation to reflect their identity. gender non normative behaviour Neither have intersex people no legal recognition in

Zambian law. Regional or international human rights instru- Since 2011, there has been a process of revising the ments Constitution. A final draft was released in October Zambia is a member of the UN and has ratified many 2014 but is still not adopted – and reports indicate of the main international human rights instruments. that it may still be debated. In the draft it is stated As such it is bound to fulfil, protect and respect the that the constitutional rights do not apply to those rights enshrined in these instruments. All Zambians “that are repugnant to the morals and values of the may turn to the UN Human Rights Committee people of Zambia” and also states that everybody through procedure 1503, to the Special Rapporteurs above 19 years has the right to “choose a spouse of for violations of specific human rights, to CEDAW for the opposite sex and marry”. women's rights violations, and use the UNESCO procedure for human rights violations in UNESCO's In 2012, UN Secretary General, Ban Ki-Moon, visited fields of mandate. Zambia is also a member of the Zambia and spoke about the Constitutional drafting African Union and its citizens and NGOs may file process, including sexual orientation as something to complaints to the African Commission on Human and be addressed in the new “people-driven Constitu- Peoples’ Rights. All of these instruments could be tion”. The Government reacted by stating that it had used to hold Zambia accountable to better ensure no plans to change the legislation, nor did it concur LGBTI rights. Of special relevance is that Zambia that LGBTI rights are enshrined in international law. has committed to uphold the International Covenant Even human rights institutions like the Human Rights on Civil and Political Rights (ICCPR), where Commission of Zambia (HRC) opposed the draft In May 2014, the African Commission on Human and Constitutional provisions, such as Article 27 that pro- Peoples’ Rights adopted a resolution condemning vided protection from discrimination for marginalised violence based on sexual orientation and gender groups, arguing “as this Constitution is supposed to identity. The resolution calls on “State parties to en- be a reflection of the will of the Zambian People, the sure that human rights defenders are able to work in Human Rights Commission acting in the interests of an environment free from stigma, reprisals or criminal the Zambian people is bound to raise certain con- prosecution as a result of their human rights protec- cerns. It must be noted that human rights are univer- tion activities.” It further urges States to recognise sal but their enjoyment is not absolute. It is subject to acts of violence and abuse by individuals and groups the cultural, moral, religious, legal, economic and so- by enforcing appropriate laws prohibiting and punish- cial context of the community/country in which they ing all forms of violence including those targeting apply. Limitation of the enjoyment of individual hu- people on the basis of their sexual identities. They man rights is permissible for the protection of the must also ensure the proper investigation and dili- greater good of society.” gent prosecution of perpetrators and have the nec- Since Ban Ki-Moon’s visit, debates in the media have essary judicial procedures to respond to the needs of been frequent and hostile, and have resulted in con- victims. This resolution is a milestone, but it has yet tinuing violence and harassment of LGBTI people. to be followed up at the national level. The Law Association of Zambia (LAZ) has stated that

The UN Human Rights Committee has urged Zambia The LGBTI group, Friends of Rainka, has previously to repeal the relevant provisions in the Penal Code, attempted to carry out an MSM research/prevalence and the Human Rights Council has also recom- study but the National AIDS Council refused to en- mended that the Penal Code be amended to decrim- dorse such a study. As a result, most at risk popula- inalise same-sex activities between consenting tions and hard to reach vulnerable groups, such as adults. MSM and transgender people, will not be included in the National Prevention/Intervention programmes. Some LGBTI health services are provided through a Sexual and Reproductive Health and partnership between Friends of Rainka and the Rights, HIV/AIDS and Gender-based Vio- Planned Parenthood Association of Zambia, lence Gender-based violence continues to be a problem in The barriers affecting access to Sexual and Repro- Zambia with the number of reported cases increas- ductive Health and Rights (SRHR) for LGBTI people ing. Even with the Anti-Gender-based Violence Act are multiple and complex, linked to a combination of (2011), violence against LGBTI people is widespread lack of resources and information, cultural norms, or and often based on non-conforming gender identity gender inequality. There is a great need for in- or sexuality. The definition of rape in the Zambian creased awareness of, and access to, sexual and re- Penal Code is limited to “unlawful carnal knowledge productive health services and rights as there is a re- of a woman or girl”, excluding transgender and male luctance to provide information due to cultural and rape victims. Due to the on-going criminalisation of religious expectations. There is inadequate SRH in- homosexuality, laws and policies do not adequately formation, support and resources available in schools protect LGBTI communities from the potential gen- and in the community and young women, in particu- der-based violence that they are exposed to. Many lar, are not empowered to make informed decisions individuals risk coming under further scrutiny from about their SRH. ignorant, hostile or prejudiced healthcare workers as Men who have sex with men (MSM) are twice as like- a result of gender-based violence experienced be- ly to be HIV-positive than the general population in cause of their sexuality and/or gender identity. Zambia. There are few if any HIV prevention programmes aimed at MSM, who lack accurate preven- Civil society organisations and institution strategies and information, engage in unsafe sex tions active in LGBTI work practices, and risk further spreading the epidemic through the common misconception that HIV cannot LGBTI organisations cannot legally register as be transmitted through anal intercourse. The National NGOs. The government has repeatedly warned Health and HIV/AIDS Plans for 2011-2015 do not against anyone supporting or attempting to register address these risks explicitly. In the report to an LGBTI rights organisation. Due to this persecu- UNGASS in 2014, the government report stated, tion, the LGBTI movement was forced to go under- “There is limited information and data available due ground but has reformed in recent years. to the legal status” but admits that MSM, together with other groups most at risk are “disproportionately affected”. Interestingly, it states that MSM behaviours are currently not a main contributor to annual HIV incidence”. Panos Institute Southern Africa (PSAf), in 2014 un- dertook a study on the existence of sexual minorities in Zambia, investigating characteristics of LGBTI persons and HIV prevention.

What Sweden can do – 9 questions for on civil society capacity development and/or hu- discussion man rights enhancement? • Within the broader context of support to democracy, Could Sweden do more to encourage inclusion of human rights, health, economic empowerment and LGBTI rights in support to accountability mecha- gender equality in Zambia, Sweden has a great op- nisms and rule of law programmes (e.g. law re- portunity to include issues related to the rights of forms, national human rights institutions and law LGBTI people and their access to justice. When ad- enforcement staff capacity development)? dressing LGBTI perspectives in a non-supportive • In dialogues concerning private sector develop- government context like Zambia, it is very important ment, could Sweden raise anti-discrimination, to consult local LGBTI organisations to make sure codes of conduct, and employment legislation, not to conflict with their work. with the aim of reducing discrimination against Questions to consider: people based on sexual orientation or gender identity? • Could Sweden do more to stay updated on the • legal and security situation and the needs and Could Sweden do more to raise issues of dis- priorities of the LGBTI movement? crimination in economic empowerment, education and skills training in order to ensure that • Could Sweden do more to offer protection to ac- LGBTI persons are not excluded or denied activists and attend court cases? To contribute to cess to programmes? the protection of organisations at risk? • Could Sweden do more to include gay, lesbian, • Could Sweden do more to seek effective strate- bisexual, trans and intersex people and the MSM gic alliances and continue to raise LGBTI rights group in supported SRHR and GBV initiatives? in the dialogue with the government? For further advice on dialogue regarding LGBTI is- • Could Sweden do more to encourage and sup- sues, download Sida’s Human Rights of Lesbian, port cooperation and synergies between LGBTI Gay, Bisexual and Transgender Persons - Conduct- organisations and mainstream Human Rights or- ing a Dialogue and the Ministry of Foreign Affairs ganisations, both nationally and regionally? Dialogue brief. More specific advice and support • Could Sweden do more to include LGBTI organi- measures, as well as contact information, can also sations in social and professional be provided through ILGA or RFSL, should the Em- events/networks and in programmes focussing bassy wish for a dialogue. Also refer to the EU tools and guidelines in the reference list.

References ILGA, 2014, State-sponsored Homophobia: A world survey of laws prohibiting same-sex activity between consenting adults (See updated version at www.ILGA.org) ILGA: http://africa.ilga.org International Gay and Lesbian Human Rights Commission (IGLHRC): http://www.iglhrc.org/cgi-bin/iowa/home/index.html International HIV Alliance, 2012, What´s preventing prevention? Campaign briefing: http://www.whatspreventingprevention.org/wp-content/uploads/2011/06/UNreportskeypopulations.pdf MSM Global Fund: http://www.msmgf.org National AIDS Council, 2014, ZAMBIA COUNTRY REPORT, Monitoring the Declaration of Commitment on HIV and AIDS and the Universal Access. http://www.unaids.org/sites/default/files/en/dataanalysis/knowyourresponse/countryprogressreports/2014coun tries/ZMB_narrative_report_2014.pdf RFSL, LGBT in Development, An introduction in how to include LGBT in programming in development http://www.rfsl.se/public/LGBT_in_development.pdf Sida’s Human Rights of Lesbian, Gay, Bisexual and Transgender Persons - Conducting a Dialogue and the Ministry of Foreign Affairs Dialogue brief. The Communication Initiative Network, 2014, summary PSAf Study to Characterise Sexual Minorities in Zam- bia http://www.comminit.com/global/content/psaf-study-characterize-sexual-minorities-zambia EU news, tools and guidelines: http://eeas.europa.eu/human_rights/lgbt/index_en.htm The EU Guidelines (2013): Guidelines for supporting LGBTI persons' human rights

TheThe human rights of LGBTI persons have been a Swedish government priority since 2009. As a service to staff, briefs have been prepared to provide basic information about the situation of this (often forgotten) group and inspire discussions on what Sweden cocoulduld do to better include LGBTI rights in diplomacy and programming.

www.sida.se The Rights of LGBT people in Zimbabwe

November 2014

General situation of LGBTI people liable to fine or one year in prison: “Any male person, In Zimbabwe, the society’s attitudes towards lesbian, who with the consent of another male person, know- gay, bisexual, transgender and intersex (LGBTI) per- ingly performs with that other person anal sexual in- sons are characterised by ignorance and homopho- tercourse, or any act involving physical contact other bia. Homosexuality is often believed not to be a part than anal sexual intercourse that would be regarded of African culture and against the teachings of by a reasonable person to be an indecent act, shall churches; a number of religious leaders have spoken be guilty of sodomy and liable to a fine up to or not out against LGBT persons’ rights in Zimbabwe over exceeding level fourteen or imprisonment for a period the years. Since both religion and culture are funda- not exceeding one year or both.’ It is unclear what mental to the values and attitudes of Zimbabwean exactly would be regarded criminal in court, as ‘inde- society, LGBTI persons find themselves excluded cent act’ and ‘reasonable person’ is rather unde- socially, culturally, religiously, economically and polit- fined.” For now there is no reference to women in the ically. For lesbian, bisexual, transgender and intersex law, while lesbian women and transgender persons (LBTI) women the situation is exacerbated further by also are affected by the criminalisation in form of dis- the social structures within Zimbabwean society, crimination with reference to the law. where family and marriage are central and often the Following this, discrimination on the grounds of on site of discrimination, inequality and unequal power. sexual orientation and gender identity is not prohibit- Members of the LGBT community have been denied ed, but on the contrary encouraged and sponsored employment on the basis of their sexual orientation, by the state through hate speeches and vilification in both women and men have been denied custody, state media. The government has a long history of guardianship or access to their children on the basis speaking against the inclusion of LGBTI rights. The of their sexual orientation and transgender persons President, a number of political leaders, ministers, have experienced public exposure and discrimination army generals, police chiefs and members of parlia- in the press. ment, including the first lady, have spoken out Harassment is common in public places such as against the rights of LGBTI persons. nightclubs, bars and churches alike. However, the Hate speech was increasing during the Constitution attitude of the authorities and the police towards ho- making process in 2012. The government had pro- mosexuality makes the perpetrators get away with it. posed amendments in the draft to the constitution, So members of the LGBTI community are often re- explicitly prohibiting ‘homosexuality’ and same sex luctant to make complaints against the police or to marriages, which would be a step back regarding pursue cases of harassment. LGBT rights. President Mugabe urged voters in his Although negative articles have been published in birthday speech ‘to reject gay rights in a new consti- the public media, more balanced articles continue to tution’. During the Constitution making process, the be publicised in the private media as well as on In- LGBT community were subjected to discriminatory ternet platforms, such as blogs and online news and derogatory attacks, undermining the ‘people- sites. These articles highlight the plight of LGBTI centred’ process supported and urged by interna- persons and the challenges they face. tional donors and other countries. Eventually the Constitution in Zimbabwe turned out silent on sexual Legal and human rights instruments relations but criminalises gay/lesbian marriage. Sec- tion 4.78 of the draft constitution reads: ‘Persons of Constitutional provisions and legal framework the same sex are prohibited from marrying each oth- Same sex sexual acts between men are restricted er”. Activist are however rather satisfied with the under Criminal Law, Codification and Reform Act and

provisions on freedom of speech, freedom of expres- activities, including the rights of sexual minorities; sion and freedom of thought as guaranteed in the and new Constitution of Zimbabwe, Articles 18, 19 and 20 • Strongly urges States to end all acts of violence respectively. and abuse, whether committed by State or non- Despite these constitutional provisions, the discrimi- state actors, including by enacting and effectively nation against the LGBT community continues on the applying appropriate laws prohibiting and punish- basis of the Criminal law, Codification and Reform ing all forms of violence including those targeting Act. Furthermore, laws, such as the Access to Infor- persons on the basis of their imputed or real sex- mation Act, Censorship Act, Protection of Privacy ual orientation or gender identities, ensuring Act, and the Public Order and Security Act, have proper investigation and diligent prosecution of been used to harass LGBTI persons or preventing perpetrators, and establishing judicial procedures organisations to hold member meetings. The laws responsive to the needs of victims. are still seen to be overriding the constitution. In the UN, Zimbabwe has actively voted against the amendment to reinsert sexual orientation into the Regional or International Human Rights instru- convention of ‘extrajudicial summary or arbitrary exe- ments cutions’ in 2008 and the declaration in the UN Gen- Zimbabwe has ratified several UN Human Rights eral Assembly of December 2008 which confirmed Conventions, including CCPR, CEDAW, ECOSOC that international human rights protections include that are of relevance for LGBTI rights. Organisations sexual orientation and gender identity and can report violations in the UPR processes, UN Spe- cial Rapporteurs for violations of specific human In February 2012 shadow reports were submitted to rights or to ECOSOC or CEDAW. So far Zimbabwe the Committee for the 51th session of Committee on has not accepted any UPR recommendations on the Elimination Discrimination against Women sexual orientation and identity. (CEDAW). The LGBTI organisation GALZ’s submitted a broader shadow report, describing how gov- Zimbabwe is also member of the African union and ernmental attitudes create extreme forms of poverty citizens and NGOs of Zimbabwe may file complaints and denial of access to government services such as to the African Commission on Human and Peoples’ health and safety for LGBTI persons. Rights. This Commission has adopted a resolution (in May 2014) that can be used in dialogue and advocacy. The resolution Sexual and Reproductive Health and Rights, HIV/AIDS and Gender Based Violence • Condemns the increasing incidence of violence and other human rights violations, including mur- Violence against LGBTI persons is often targeting der, rape, assault, arbitrary imprisonment and persons of non-conforming gender identity or sexuali- other forms of persecution of persons on the basis ty. Lesbians with masculine expression and of their imputed or real sexual orientation or gen- transgender persons are at risk of being raped and der identity; others that have non-conforming gender expressions risk violence due to their gender expression. LGBTI • Specifically condemns the situation of sys- persons are at risk to come under scrutiny by health tematic attacks by State and non-state actors care workers who are both ignorant about and biased against persons on the basis of their imputed or against sexuality or gender identity. Conservative real sexual orientation or gender identity; forces also use the threat of homosexuality as an ex- • Calls on State Parties to ensure that human cuse to reverse many of the gains made by the rights defenders work in an enabling environment women’s movement in Zimbabwe. This has resulted that is free of stigma, reprisals or criminal prose- in a backlash, not only on sexual minorities and sex cution as a result of their human rights protection workers, but also on abortion and sexual reproductive health rights in general.

The criminalisation affects the LGBTI community’s out success, but rather resulting in repression access to healthcare services, information and re- against the organisation. sources. The problems of disclosing sexual orienta- Another organisation in Zimbabwe that openly works tion results in a major barrier to getting accurate, ap- with the LGBT community is the Sexual Rights Cen- propriate and relevant treatment for HIV/AIDS. Also, tre. The Sexual Rights Centre uses a rights-based there is a lack of research targeting women who approach that seeks to strengthen the capacity and have sex with women (WSW) and LBTI women when leadership within the LGBT movement. It is lobbying it comes to HIV/AIDS. Research available indicates under the broader framework of sexual rights and that Men Who have Sex with Men, MSM, are the has created numerous opportunities for cooperation sources for 7% of new infections and are targeted as with civil society and particularly the media. a key population to be prioritised. More profound studies, done in Botswana and Malawi, estimate that In the recent years, organisations like GALZ and HIV prevalence among MSM is between 20 and 33 Sexual Rights Centre have been exposed to raids per cent and it can be estimated that the numbers and their staff have been arrested and violated. are similar in Zimbabwe. There are a number of HIV/AIDS organisations ad- Thanks to advocacy efforts, the existence of MSM dressing HIV amongst the MSM community. For ex- was acknowledged in the Zimbabwe National AIDS ample the Zimbabwe National Network of PLHIV Strategic Plan (ZNASP) 2006-2010, by making refer- (ZNNP+), groupings of religious leaders affected by ence to MSM, although no national programmes HIV who have supported positive LGBT persons with were recommended. In the second Plan, ZNASP II income generating projects (ZINERELA and Anere- 2011-2015, MSM is targeted as one of priority popula), and Zimbabwe AIDS Network, which focuses lations for condom distribution. The reference was mainly on influencing policy change in the Health important firstly because admitting that MSM exist in sector. Zimbabwe was a significant change in the pattern of A number of other organisations have become in- Government thinking. Secondly, it recognised that volved with LGBT rights during the recent years: the criminalising of sex between men prejudices efforts to reduce HIV in Zimbabwe. It also suggested • Gays and Lesbians of Zimbabwe (GALZ): that there was a need to conduct research into MSM http://www.galz.co.zw/ and develop public health interventions based on the • Katswe Sis- findings. tahood:http://www.katswesistahood.org/ Civil society organisations and institutions • SafAids: http://www.safaids.net/category/safaids- active in LGBTI field resource-centres-network/country- focus/zimbabwe Gays and Lesbians of Zimbabwe (GALZ) is the largest LGBT organisation in Zimbabwe It was formed in • Sexual Rights Centre (SRC): 1990. In recent years the organisation has been net- http://www.sexualrightscentre.com/ working broadly with other human rights organisa- • Zimbabwe Lawyers for Human Rights (ZLHR) tions, such as the Women’s Movement AIDS initia- provides free legal support to LGBT persons; tives, SafAids, Sexual Rights Centre, Say What and other regional associates. The objective is to inte- • National Association of Non-Governmental Or- grate LGBT rights with the other basic human rights ganisations (NANGO) has been monitoring cas- issues and by increasing awareness in as many fo- es of rights violations aimed at organisations in- rums as possible. In the process of redrafting the cluding GALZ; Constitution, GALZ has tried to get attention to the current discrimination of those identified to be homosexual and their need for protective legislation, with-

• Crisis in Zimbabwe Coalition, Students Solidarity mainstream Human Rights organisations nation- Trust and Young women leadership initiative all ally and regionally? participate in documenting violations of rights; • Could Sweden do more to encourage other do- • Pakasipiti and VOVL (main focus on LBT only) nors and Swedish NGO’s to increase the work on LGBTI rights? E.g. could Swedish faith based or- • Katzwe Sisterhood is a youth feminist organisa- ganisations be supported to engage with LGBTI tion in Harare including LGBT women in their or- rights in Zimbabwe? ganisation. • Could Sweden do more to include gay, lesbian, What Sweden can do? – 6 questions for bisexual, trans and intersex persons in the sup- discussion ported SRHR initiatives? In gender equality and gender based violence initiatives? In HIV/AIDS Within the broader context of support to democracy efforts? and human rights in Zimbabwe, Sweden has a great • opportunity to include issues related to the rights of In the dialogue concerning private sector devel- LGBTI persons and their access to justice. When ad- opment and entrepreneurship, could Sweden do dressing LGBTI in a non-supportive government con- more to bring up anti-discrimination, codes of text as Zimbabwe, it is very important to consult conduct and labour legislation, with the aim of LGBTI organisations in the country to make sure not reducing discrimination against people based on to overrule their agenda. Questions to consider: sexual orientation or gender identity?

• Could Sweden do more to stay updated on the More specific advice and support measures, as well legal and security situation and the judgements as contact information to mentioned groups, can also and priorities of the LGBTI movement? Could be provided through ILGA or RFSL, should the Em- Sweden do more in terms offering protection to bassy wish for a dialogue. For further advice on dia- activists and attend court cases? logue regarding LGBT issues, download the Sida ‘Human Rights of Lesbian, Gay, Bisexual and • Could Sweden do more to offer protection and to Transgender persons - Conducting a Dialogue and support capacity development LGBTI organisa- the Ministry of Foreign Affairs Dialogue brief. tions? To include LGBTI organisations in profes- Also refer to the EU tools and guidelines. sional and cultural networks?

• Could Sweden do more to encourage cooperation and synergies between LGBTI organisations

General references An introduction in how to include LGBT in programming in development, by RFSL: http://www.rfsl.se/public/LGBT_in_development.pdf Sida ‘Human Rights of Lesbian, Gay, Bisexual and Transgender persons - Conducting a Dialogue and the Ministry of Foreign Affairs Dialogue brief. EU news, tools and guidelines: http://eeas.europa.eu/human_rights/lgbt/index_en.htm The EU Guidelines (2013): Guidelines for supporting LGBTI persons' human rights. These Guidelines: • are for use by EU staff around the world and by EU countries' national embassies in connection with human rights country strategies and reports, demarches and public statements, individual cases, court hearings and prison visits, political dialogues, international mechanisms and efforts by civil society • provide a checklist for assessing LGBTI human rights issues

• explicitly cover the rights of transgender and intersex persons

References specifically related to Zimbabwe GALZ, 2012, Report on Discrimination against Women in Zimbabwe based on Sexual Orientation and Gender Identity, CEDAW Shadow Report: http://sodraafrikaidag.se/wp-content/uploads/2012/02/CEDAW-Shadow- report-GALZ.pdf ILGA, 2014, State-sponsored Homophobia: A world survey of laws prohibiting same sex activity between consenting adults, (see updated version at www.ilga.org ) ILGA Africa: http://africa.ilga.org Zimbabwe National Strategy on HIV and AIDS (2011-2015): http://www.nac.org.zw/sites/default/files/Zimbabwe-National-HIV-AIDS-Strategic-2011-2015-Plan.pdf UNHCR Ref World Ethiopia: Declines to accept UN member states' recommendations on free expression, 8 July 2014, http://www.refworld.org/docid/53d0e86f4.html

The human rights of LGBTI persons have been a Swedish government priority since 2009. As a service to staff, guidance notes have been prepared to provide basic information about the situation of this (often forgotten) group and inspire discussions on what Sweden could do to better include LGBTI rights in diplomacy and programming.

www.sida.se The Rights of LGBTI people in the MENA region

December 2014

General situation of LGBTI people In a few places, like Lebanon and Morocco, sexual The situation for LGBTI persons in the MENA-region orientation and gender identity issues have begun to (Middle East and North Africa) differs depending on enter the agenda in some mainstream human rights where in the region they live, as different countries movements and there are studies that depict a grow- have different legal situations, languages, religions ing awareness and support by media. This develop- and cultures. Same-sex sexual acts are however ment was also seen in Egypt, but the recent devel- criminalised in most of the countries in the region, opment in Egypt with narrowed space for civil society and few countries recognise the rights of transgender organisations that receive foreign funding is going to persons. Further, gender non-conforming persons make it harder for them to act. are often arrested or prosecuted, either for cross- In hostile societies, LGBTI persons are at higher risk dressing or “indecent behaviour”, which a number of of violence (due to their non-conforming sexuality countries criminalise, or accused for same-sex sexu- and gender expressions) from families, society and al activity. government. Violence against lesbians and transmen The Swedish Development Cooperation in MENA re- is connected to the oppression of women and vio- gion mainly concerns regional and sub-regional ef- lence against women while violence against men and forts, but subsequent to the democratic changes transwomen also have a connection to violence and support has also been channelled directly to initia- stigmatisation of sex workers, as noted in the case of tives in Egypt, Libya, Tunisia, Yemen and Syria. Pal- the legal situation in Egypt. In some specific coun- estine and Iraq are also specifically targeted, but tries in the region, the violence is extraordinary high. have separate country strategies. This brief will dis- In Iraq, the documented violence against LGBTI cuss the situation and strategies regionally, with a people is enormous. There were over 600 estimated few examples to contextualise the differences be- murders of LGBTI people in Iraq between 2005 and tween the countries. 2009. Also, in Kurdish territory of Iraq violence and discrimination against lesbian women and trans- LGBTI people across the MENA region face discrim- persons is documented. Countries like Iran, Saudi- ination and violence because of their sexual orienta- Arabia and Yemen have documented cases of per- tion and gender identity, and are unable to access formed death sentences of LGBTI persons. the same rights and services as other citizens of their countries. The general acceptance of non- conforming sexuality or gender identity is low. LGBTI people face “a complex cultural system that controls people’s bodies and sexualities” (Human Rights Watch). Women in many countries have far more limited freedom to move, meet, live out sexuality and organise compared to men. LGBTI persons of all genders have in common that they challenge gender norms, and this challenge is a threat both to social norms and to governmental laws. Human Rights Watch notes in a report 2009 ”Women who defy those norms and men who escape them are equally at risk. It is worth remembering that the law under which Egyptian men are tried for same-sex conduct was originally a law targeting women in prostitution.”

Legal and human rights instruments countries that criminalise homosexual sex, like Egypt, Same-sex sexual acts are criminalised in most of the Morocco, Algeria, do that under secular laws with fines countries in the region and only a few countries rec- and prison terms; laws that mostly have colonial ori- ognise the rights of transgender persons, while gins. Human Rights Watch notes that “secular, authori- transgender and other gender-non conforming per- tarian regimes, facing down demands to democratise sons often are arrested accused for engaging in from leftist movements as well as Islamic dissidents, same-sex acts. Also, a number of countries have leg- seem as likely to carry out crackdowns on sexuality as islation that criminalises cross-dressing or “indecent religiously-based ones, if not more so.” behaviour”. For example, Lebanon and Tunisia and Egypt are Legislation is often justified by references to Islam, but three countries with different legal and social con- notably, there are other Muslim countries in the world texts, which thus need different entry points for ad- where homosexuality is not criminalised (Countries in dressing the situation for LGBTI persons. the Balkans, Africa, and Asia) as well as countries in the MENA region, like Turkey and Jordan. Some of the

Same-sex sex- Same-sex sexual Ille- Legal Status Death penalty ”Indecent behav- Provides or ual acts Legal gal unclear for same-sex iour” or cross recognise sexual acts dressing crimi- sex re- nalised assignment

Bahrain (1976)* Algeria, Gaza (Pales- Egypt, Iraq †, Iran, Saudi Algeria, Bahrain, Iran‡, Isra- Israel (1988), tine), Iran, Kuwait Lebanon Arabia, United Iran, Iraq, Ku- el, Kuwait. Jordan (1951) (male), Libya, Moroc- Arab Emirate, wait, Lebanon, West Bank co, Oman, Qatar Yemen Libya, Saudi- (Palestine) (male), Saudi Arabia, Arabia, United (1951) Syria, Tunisia, United Arab Emirate, Arab Emirates, Yemen Yemen

Reference: ILGA, 2014

* The legal status of homosexual acts is according to some resources unclear in Bahrain.” Activities deemed to be immoral” (Article 345 of Bahrain Penal Code). Convictions and persecution of LGBTI persons (also targeting trans-gender persons) are registered in Bahrain, like in other Gulf States.

† Comment of Iraq in ILGA:s report : “In the case of Iraq, /---/ it appears the State is unwilling or unable to intervene in areas of the country where militias (non-State actors) target LGBTI people for persecution, including enacting a death penalty.

‡ Several organisations report that many persons undergo sex reassignment in order to avoid prosecution for being homosexual and Iran has been criticised for state-imposed medical interventions as an example of torture. For example, see Justice 4 Iran´s report (2012) “Denying Identities, Maiming Bodies: Human Rights Violations against Individuals of Diverse Sexual Orientations and Gender Identities in the Islamic Republic of Iran”

In Tunisia - the starting point of the ”Arabic spring” in terms of interpretation of the law on “crimes against December 2010 – the revolution opened up hope for nature”. The presence of the penal code still threat- change also for LGBTI persons. There has since ens the Lebanese LGBTI community, and can be been a democratisation process, with elections in used against individuals and organisations. Decrimi- 2011 and 2014, adoption of a constitution that guar- nalisation is a very important step in enhancing the antees rights for women. Despite this, the develop- rights of LGBTI persons. ment in favour of rights for LGBTI persons has not In Egypt – the situation has for a long time been hard been as progressive. Same-sex sexual acts are still for LGBTI persons. Despite some relief during the criminalised in the penal code, though reported not to Arabic Spring, the situation has again worsened. Ac- be in practice. In 2012, the Minister for Human cording to the Pew Global Attitudes Report from Rights rejected the recommendation of the UN Hu- 2007, 95% of Egyptians see homosexuality as objec- man Rights Committee for Tunisia to decriminalise tionable. In the early 2000s, Egyptian authorities same-sex sexual acts, stating that the concept of were arresting many LGBTI persons, and Human "sexual orientation is specific to the west" and is Rights Watch estimated in early 2004 that at least overridden by Tunisian law, which "clearly describes 179 gay and bisexual men had been on trial since Tunisia as an Arab Muslim country” (ignoring the fact 2001. The LGBTI organisation Bedaaya reports that that the criminalisation laws are colonial from 1913). during Muslim brotherhood regime, the gender based There is not yet legislation against discrimination or violence was remarkable high. According to Be- in support of medical or legal sex reassignment for dayaa's survey in 2012, 80% of persons of the LGBTI transgender persons. The political party with the community who participated in the survey experi- most seats in the Constituent Assembly, the En- enced violence because of their sexual orientation nahda Movement, has stated that it would decrimi- and gender identity. After the military regime took nalise homosexuality if it were elected to lead the over the country in June 2013, Bedayaa has docu- country. mented systematic mass arrests of homosexual per- In Lebanon – there have been some successful rul- sons. Since October 2013, at least 118 individuals ings and changes in the media climate towards a mainly gay men and transgender women have been somewhat positive attitude to LGBTI rights. While arrested and been charged with imprisonment be- LGBTI persons in Lebanon still face many challeng- tween 2-12 years. The arrests followed illegal raids es, the legal situation as well as social acceptance is by police in privet apartments, and resulted in several better than in most countries in the region. Sexuality cases of physical, verbal and sexual abuse. in Lebanon is regulated through a complex system of Transgender women have been sent to male prisons. laws inherited from the French colonial time and reli- Conflict areas - like Syria and Iraq might exclude ac- gious laws dealing with family matters (there are 15 tive work of LGBTI organisations, but studies from religious codes recognised by the state). However, other conflict or catastrophe areas show that LGBTI the most publicly debated regulation is Article 534 of persons suffer from discrimination and are exposed the Lebanese Penal Code, which criminalises “un- to double vulnerability in e.g. refugee camps. LGBTI natural sex”. This vague term could imply every sex- awareness from donors and help organisations can ual practice that does not involve “procreative sex” reduce discrimination against LGBTI persons during within heterosexual marriage. and post conflict. In 2014, as well as in 2009, a judge ruled that homo- Sexual and reproductive health and rights, sexuality is not against nature, invalidating the Article 534 that previously had been used to prosecute HIV/AIDS and Gender Based Violence same-sex sexual acts. That followed the decision by In the MENA region, the HIV epidemic has been on Lebanese Psychiatric Society (LPS) in 2013 to de- the rise since 2001. Although the overall HIV preva- classify homosexuality as a mental disorder. Despite lence in the region is still low, according to UNDP in the successful rulings, there is still uncertainty in 2012, the rise in new infections has put MENA

among the top regions in the world with the fastest In a country like Tunisia, with a quite progressive cli- growing HIV epidemic. Due to stigma and discrimina- mate for civil rights organisations, there are still not tion as well as criminalisation of sex between men, any larger LGBTI organisations, though the web men who have sex with men, MSM, are a high at risk magazine “Gayday” was launched in 2011, ”dedicat- group. Criminal laws can severely impact the ability ed to the LGBTI community in the Maghreb, MENA of MSM to access services, the ability of clinics to of- region” but published by Tunisians. There are a few fer services tailored to the needs of MSM, and the open LGBTI organisations in Palestine, Algeria, Tu- ability of MSM to participate openly in national plan- nisia and Nile Valley, but mostly organisations in the ning processes that dictate funding and programs. region work for LGBTI rights secretly. Human Right Watch notes that civil society is under Available epidemiological data from UNAIDS and severe attack in most of the countries in the region. UNDP shows that MSM in Arab countries bear a dis- “Human rights organisations suffer especially from proportionate burden of HIV infection and are 50 to harassment, bureaucratic restrictions, surveillance, 130 times more likely to be exposed to HIV than the and arrests. Governments are quick to use any pre- general population. It is also observed that there is text to discredit them before the broader public— not enough reliable data on HIV epidemics in the re- making it doubly risky to take up divisive or difficult gion. In Egypt, it is estimated that 6% of men who issues.” At the same time, one of the most important have sex with men are living with HIV, in Morocco tools when it comes to LGBTI rights is the support by 5.6% (in Agadir), Libya 3.8%, Lebanon 3.6% and Tu- inclusive Human Rights Organisations. There is a nisia 13%. higher chance of progress, when LGBTI rights are As mentioned above, the violence against LGBTI included and addressed as human rights issues in persons is extraordinary high in some countries, es- various areas. pecially against persons with female gender expres- To promote meaningful participation and empower- sions. ment of LGBTI persons, the LGBTI community gen- Civil society organisations and institutions erally needs: active in LGBTI work  Representative and democratic organisations with sufficient strategic and management capacity LGBTI activists organise themselves in various forms  Legitimacy, e.g. by participation in public dia- in the region, depending on the level of hostility from logues, lobbying and sensitisation advocacy work the government. In more repressive states and dis- with states and religious groups without fear of tricts, informal or underground groups may avert pub- persecution, ability to articulate and address im- lic attention. In more progressive settings, such as mediate rights violations of LGBTI people, Lebanon, openly LGBTI organisations are operation-  Ability to monitor government in terms of devel- al. However, this activism in favour of LGBTI rights opment and implementation of legislation and pol- co-exists with very conservative movements. Sudden icy (like UPR processes and through other legal changes in court rules and media coverage reflect frameworks), this ambivalent situation and underline the need of a continuous effort by “activists”.  Systems to speedily and efficiently mount defence, protection and emergency responses for The newly launched online resource centre, The human rights defenders who defend the human Gender and Sexuality Resource Center (GSRC) rights of LGBTI people. aims at becoming an information hub that brings together activists and academics, and addresses the However, the needs and strategies of the LGBTI knowledge gaps and creates an alternative site of movement differ from country to country. All support production in Arabic. Few other resources on SRHR should be provided in full cooperation and agreement and LGBTI are published in Arabic. with local activists. To avoid accusations of “western

agenda” as well as for the safety of LGBTI persons,  Could Sweden do more to enhance the capacity this is of utmost importance. of regional LGBTI actors and activists by supporting regional networking and capacity develop-

ment of Human Rights and LGBT organisations What Sweden can do at the regional level – to encourage synergies and experience ex- eight questions to discuss change? E.g. through ITP courses or similar net- In line with the Swedish priorities for the MENA re- working opportunities. gion with focus on democracy and human rights,  Could Sweden do more to support embassies there are opportunities to include LGBTI rights. There and consulates in the region to develop their ca- are enormous obstacles for LGBTI people to take pacity and interest to address LGBTI rights within part in the democratic processes, through which hu- country level strategies and portfolios? E.g. invit- man rights and individual freedoms can be realised. ing RFSL and regional LGBTI organisations to Regional level programmes have great potential to dialogue meetings (LGBTI-certification). This has support movements that are oppressed in their re- been tried at the Swedish Embassy in Uganda. spective countries, to raise issues that are difficult at the national level and to encourage regional action  Could Sweden do more to include SOGI issues on Human Rights and in the UN system. Initiatives and LGBTI rights in on-going regional level pro- focusing on gender equality and gender based vio- grammes and in negotiations of new pro- lence could also serve as entry points. The following grammes? E.g. legal reforms, capacity building of could be discussed: the judiciary, anti-corruption, police training/correctional services, gender based violence,  Could Sweden do more to keep updated on the human rights and cultural programmes? situation of LGBTI persons in the region? Every year ILGA produces a global report “State Spon-  Could Sweden do more to raise issues related to sored Homophobia”, which provides updates LGBTI rights in humanitarian and conflict situa- from each country which can be useful. Contacts tions? E.g. asking for information on specific vio- with the local LGBTI movement give first-hand in- lations and protection measures. formation.  Could Sweden do more to include LGBTI organi-  Could Sweden do more to support LGBTI activ- sations in social, cultural and professional events ists and persons through monitoring of and par- and encourage embassies and consulates to do ticipation in trials and offering safe meeting plac- the same? The Swedish Embassy in Vietnam is a es to organisations at risk? Safe meeting places good example, where cultural events were used have been offered by for example Swedish Em- to open up an arena for the LGBTI organisations. bassies in the Western Balkans.

 Could Sweden do more to systematically influ- For further advice on dialogue regarding LGBT is- ence regional mechanisms that have the poten- sues, download the Sida ‘Human Rights of Lesbian, tial to engage with sexual orientation and gender Gay, Bisexual and Transgender persons - Conduct- identity issues (SOGI)? E.g. by raising LGBTI ing a Dialogue and the Ministry of Foreign Affairs rights in dialogue with regional human rights or- Dialogue brief. More specific advice and support ganisations and institutions and supporting the measures, as well as contact information to men- capacity development of the National Human tioned groups, can also be provided through ILGA or Rights Institutions (NRHI) to enhance their un- RFSL. Also refer to the EU tools and guidelines in derstanding and work to protect and promote the the reference list. human rights of LGBTI people. This could for example entail a specific regional monitoring assignment.

Tool kits “Speaking out” toolkit, designed to train HIV workers catering for LGBTI clients. Available in English, French and Arabic version available from the Arab Foundation of Freedom and Equality (AFE), The Toolkit for training police officers on tackling LGBTI-phobic crime by ILGA Europe is the result of a consultation process organised by ILGA-Europe together with member organisations and police forces that have already worked in partnership with LGBTI associations EU news, tools and guidelines: http://eeas.europa.eu/human_rights/lgbt/index_en.htm

The EU Guidelines (2013): Guidelines for supporting LGBTI persons' human rights.

References Balzer, Carsten, 2009, Every 3rd day the murder of a trans person is reported, Liminalis 2009_03, http://www.transrespect-transphobia.org/uploads/downloads/TMM/LIM2009-TMM- reportJan2008June2009-en.pdf EU news, tools and guidelines: http://eeas.europa.eu/human_rights/lgbt/index_en.htm The EU Guidelines (2013): Guidelines for supporting LGBTI persons' human rights Human Rights Watch, 2009, Together, Apart Organising around Sexual Orientation and Gender Identity Worldwide, http://www.hrw.org/sites/default/files/reports/lgbt0509web.pdf IGLHRC 2007, Violations of the Rights to Freedom of Expression, Assembly, and Association Related to Sexual Orientation, Gender Identity, and Gender Expression, http://www.iglhrc.org/binary- data/ATTACHMENT/file/000/000/155-1.pdf ILGA, 2014, State-sponsored Homophobia: A world survey of laws prohibiting same sex activity between consenting adults, http://old.ilga.org/Statehomophobia/ILGA_SSHR_2014_Eng.pdf Mandour, Sahar, 2013, Potential Change in Media Discourse on Sexuality in Lebanon, Reuters Institute Fel- lowship Paper University of Oxford), https://reutersinstitute.politics.ox.ac.uk/sites/default/files/Potential Change in Media Discourse on Sexuality in Lebanon.pdf RFSL, 2008, LGBT in development - a handbook on LGBT perspectives in development cooperation, http://www.rfsl.se/?p=4357 Transgender-Europe (TGEU), 2012, Trans respect versus Transphobia Worldwide -a comparative review of the human-rights situation of Gender-variant/Trans people, http://www.transrespect- transphobia.org/uploads/downloads/Publications/TvT_research-report.pdf UD, 2010, Strategy for development cooperation with the Middle East and North Africa 2010-2015, http://www.regeringen.se/sb/d/108/a/156028 UNAIDS, 2012, HIV and outreach programmes with men who have sex with men in the Middle East and North Africa - From a process of raising awareness to a process of commitment, http://www.unaids.org/en/media/unaids/contentassets/documents/unaidspublication/2012/20120920_MSM_M ENA_en.pdf UNAIDS, 2013 Middle East and North Africa regional report on AIDS, http://www.unaidsmena.org/index_htm_files/UNAIDS_MENA_layout_30_nov.pdf UNDP, Martin, 2011, Mobility, Migration and HIV Vulnerability of Populations along the Ports of the Red Sea and Gulf of Aden - Situation and Response Analysis, http://arabstates.undp.org/content/dam/undp/library/hivaids/Mobility Migration and HIV Vulnerability Report 2012.pdf

The human rights of LGBTI persons have been a Swedish government priority since 2009. As a service to staff, guidance notes have been prepared to provide basic information about the situation of this (often forgotten) group and inspire discussions on what Sweden could do to better include LGBTI rights in diplomacy and programming.

www.sida.se The Rights of LGBTI people in Palestine

December 2014

General situation of LGBTI people Because of societal discrimination based on cultural major problems transgender persons report on is and religious traditions and norms, Palestinian LGBTI their gender visibility, the direct violence they face persons face a social non-friendly and violent reality and how to live with and get support from their fami- living in the West Bank, East Jerusalem and Gaza, lies. as well as in Israel. The occupation leading to separation and restrictions on physical mobility has a di- Legal and human rights instruments rect impact on the ability of LGBTI persons to come Constitutional provisions and legal framework together, organise and build formal and informal networks. The occupation and the reoccurring emergen- The legal situation for LGBTI persons differs between cy situations also make the work to develop anti- the West Bank including East Jerusalem and the Ga- discrimination or other legislation that could support za strip. The rule of law is absent in both territories LGBTI persons more difficult. due to the Israeli occupation. There is no legislation that protects LGBTI individuals from discrimination or A main challenge that prevents Palestinian LGBTI harassment, and no progress has been possible as persons to express their sexual orientation or gender the Palestinian legislative council in reality has not identity is a general taboo about sexuality in Palestin- functioned since 2006. Proposals of sharpened crime ian society. The absence of discussions about sexu- code regarding same sex sexual relations were de- ality in general leaves a narrow window to raise veloped already in 2010 in both the West Bank in- LGBTI topics as part of social conversations. LGBTI cluding East Jerusalem (prison sentences) and Gaza issues are often considered to be either of less im- (death penalty), but these have not yet been adopt- portance or an illegitimate social issue. This leads to ed. These proposals have not been commented or an inability to raise issues about LGBTI rights, sexual opposed by Human Rights organisations and institu- minorities or sexual and gender diversity in Palestine tions, mirroring the difficulties of human rights organ- and it often will be regarded as a "controversial" top- isations to acknowledge and address LGBTI rights. ic. The Palestinian societal refusal to deal with LGBTI issues and to accept LGBTI persons has a wide so- In the West Bank including East Jerusalem, the Jor- cial legitimacy among different groups, civil society danian Penal Code of 1951 is in force, largely modi- organisations, and families. An interconnected chal- fied in 1960. It has no prohibition on sexual acts be- lenge is the perception, within the Palestinian socie- tween persons of the same sex. In the West Bank, ty, that LGBTI rights, is something western and including East Jerusalem, there is no official persecu- linked to Israel. The campaigns for LGBTI rights by tion from the Palestinian authority and its different the Israeli Government are experienced by Palestini- segments. However, there are some cases reported an LGBTI organisations to enforce a "homophobic" of harassment of LGBTI persons by the police force, image of the Palestinian society. The connection of operating outside any legal legitimacy to do so in the LGBTI rights to Israeli values creates divisions in- West Bank including East Jerusalem. stead of unity among LGBTI activists and diverts the In Gaza, same-sex sexual relations between men are international attention from the reality of LGBTI per- prohibited with a penalty of up to 10 years following sons under occupation. the British Mandate Criminal Code of 1936, Section The situation for transgender persons have not been 152(2) of the Code. The Criminal Code still continues widely recognised, but the organisation Al-Qaws has to outlaw same-sex acts between men in Gaza. Les- in the past few years reached out to this group. The bian women are not subjects of the code, which means that sexual relationship with the same sex is not illegal for them. Section 152 (2) of the criminal

Code Ordinance covers the following; “Anyone who: bility, however at the moment there are not much (a) commits sexual intercourse with another person mentioning of LGBTI rights in these instruments. against the order of nature, or (b) commits sexual in- 1. The European Neighbourhood Policy, accepted tercourse with an animal, or (c) permits or allows the by the Palestine authorities by the adoption of above mentioned acts is considered to have commit- an Action Plan to implement it. Some of its prior- ted a felony punishable by imprisonment for a term of ities, other than the establishment of a Palestini- ten years.” In Gaza, some Human Rights organisa- an state, that could be relevant for securing tions have reported that Hamas has harassed and LGBTI rights are: detained LGBTI individuals due to their sexual orientation. - Deepened bilateral relations in preparation for establishing a fully-fledged Association There are no official documentations of violations be- Agreement between the EU and the future side some personal cases that make it to the media. State of Palestine. There is an Independent Commission for Human - A Palestinian state based on the rule of law Rights (ICHR) in Palestine, which is supported by and respect for human rights within a func- Sweden and other international donors, and it pro- tioning deep democracy and with accounta- duces both monthly and annual human rights reports. ble institutions It has so far never monitored or reported on LGBTI - Step up efforts to significantly reduce poverty rights violations, nor reacted against the proposed and social exclusion, in particular among the Criminal Codes prohibiting homosexuality. most vulnerable groups LGBTI organisations regard the social and family - Enhanced quality of education, research and homophobia as a bigger problem for LGBTI persons innovation, information society in Palestine in Palestine than the government and the judiciary - Support the rights of the Palestinian people system. There are even examples of official agencies in East Jerusalem (including the police) playing a mediator role between 2. Palestine has an Observer State to the UN since LGBTI individuals and their families. November 2012. It has not yet been the subject So far no one from the Palestinian LGBTI community of Universal Periodic Review. On 1 April 2014, has ever been granted asylum in Israel. UN agencies Palestine submitted letters of accession to 15 based in Israel cannot handle LGBTI Palestinian multilateral treaties. They include the following cases because of the political status of Palestinians human rights core conventions: ICCPR, in Israel and Palestinian LGBTI persons are prohibit- ICESCR, CAT, CERD, CEDAW, CPD, CRC and ed from filling asylum applications, because of their CRC Optional Protocol on the Involvement of nationality. This is backed by legislation preventing Children in Armed Conflict. Palestine became a any Palestinians from living, getting married or work State party to these conventions by May 2, in Israel. The majority of Palestinian LGBTI persons 2014. It has yet to accede to CMW, CPED and that have eluded the Palestinian territories are mostly the other Optional Protocols to these conven- from the West Bank and fled to Israel before the clo- tions. In regards to LGBTI rights, generally the sure on the West Bank by the separation wall, mainly ICCPR, CEDAW, and ICESCR are of special in- during the Oslo Accords (1993-2002). In recent terest when addressing LGBTI rights. years, illegal flees to Israel are happening in small 3. In 2011, The Human Rights Council adopted a numbers due to the closure of West Bank. Very few resolution (A/HRC/27/L.27/Rev.1), on sexual manage to flee from Gaza because of the blockade. orientation and gender identity and has since addressed LGBTI rights in different forums. The Regional or international human rights instru- Special Rapporteur of the Human Rights Council ments on the situation of human rights in the occupied Palestinian territories reports annually, but has There are a number of international instruments that so far not included LGBTI rights. could pose opportunities for advocacy and accounta-

4. The High Commissioner for Human Rights ing visibility of both individuals and LGBTI organisa- (OHCHR): Since 2008, under a High Commis- tions in Palestine. Until now the violence was limited sioner mandate, four reports have been submit- to closed circles and took place inside (extended) ted by the High Commissioner on the situation in families. Local groups suspect that the more they the occupied Palestinian territories. None of bring LGBTI issues to the public spaces, the more these have touched on LGBTI rights - despite violence LGBTI persons will face. This dialectic be- the commitment and mandate of the OHCHR to tween visibility and violence is going to affect the tex- work with States, national human rights institu- ture of Palestinian society and the strategies applied tions and civil society to achieve progress to- by local LGBTI groups. wards the worldwide decriminalisation of homosexuality and further measures to protect people Civil society organisations and institutions from violence and discrimination on grounds of active in LGBTI field their sexual orientation or gender identity. There are a few organisations working with LGBTI Sexual and Reproductive Health and Rights, rights in Palestine, doing outreach activities towards HIV/AIDS and gender based violence organisations and individuals. They recognise the importance to develop an awareness connected to Even though there is no official data from Palestine, the local culture and context, with communities and available epidemiological data from UNAIDS and allies inside Palestine. Despite the challenges, this is UNDP shows that MSM (Men who have Sex with crucial in order to challenge the notion of LGBTI Men) in Arab countries bear a disproportionate bur- rights as something western or Israeli. den of HIV infection and are 50 to 130 times more likely to be exposed to HIV than the general popula- Al-Qaws for Sexual and Gender Diversity in Palestin- tion. In its 2013 report, UNAIDS notes that there are ian Society is a national LGBTQ Palestinian organi- no programmes that address MSM in Palestine, but sation working since 2001 with individuals and com- the National Strategic Plan does include MSM. In munities in both sides of the green line. Al-Qaws 2003 UNFPA (United Nation Population Fund) rec- work is taking place in four main cities: East Jerusa- ommended the establishment of a UN HIV/AIDS lem, Ramallah, Haifa and Yaffa – working directly Theme Group in Palestine, which led to the founding with local leadership groups in these different loca- the National AIDS Council (NAC). In 2008 UNFPA tions. Al-Qaws has built a support network for trans- were in process of introducing a five-year plan to fur- persons in the West Bank and included trans issues ther educate Palestinians about AIDS. The five-year in the strategic plan for 2015-2017. They provide in- plan involved more research of high risk groups such formation, counselling, mediate between trans- as Men who have Sex with Men, MSM. persons and health agencies and advocates among Palestinian NGOs in both sides of the green line by In 2011 the Palestinian authority Ministry of Health providing networking opportunities and training for reported a cumulative total of 19 cases of asympto- HR, Youth and Women organisations. matic HIV and 47 cases of AIDS since 1986, which www.alqaws.org/about-us seems rather unrealistic. Diagnosis methods for HIV in Palestine, is impeded by stigma towards groups at Aswat is a group of LBTI, questioning and queer Pal- high risk, which may lead to the underestimation of estinian women in Israel. The group established a their prevalence. Furthermore, the lack of trained home in 2002 for Palestinian LBTQI women to allow medical staff and social workers for counselling and safe, supportive and empowering spaces to express psychological support in the field of HIV/AIDS also and address personal, social and political struggles stands as a grave constraint. as a national indigenous minority living inside Israel. http://www.aswatgroup.org/en/content/who-we-are Violence against LGBTI persons is often based on non-conforming gender identity or sexuality. Violence Muntada Al Jinsanieh - The Arab Forum for Sexuali- toward LGBTI persons is directly linked to the grow- ty, Education and Health, is addressing sexuality and

reproductive health in Palestine and building connec- much space as they are ready and willing to tions with Arab and international networks in this take? field, working closely also with Al-Qaws. It is a good • Could Sweden do more to include LGBTI organi- basis for further regional work in SRHR (sexual and sations in civil society capacity development pro- reproductive human rights). grammes so that they can improve their effec- http://www.jensaneya.org/en tiveness, networking and outreach in the West The newly launched online resource centre, The Bank and East Jerusalem (as a start)? To inves- Gender and Sexuality Resource Center (GSRC) tigate how to support and strengthen LGBTI or- aims at becoming an information hub that brings to- ganisations under safe circumstances? gether activists and academics, and addresses the • Could Sweden do more to encourage and sup- knowledge gaps and creates an alternative site of port cooperation and synergies between LGBTI production in Arabic. Few other resources on SRHR organisations and mainstream Human Rights or- and LGBTI are published in Arabic. ganisations, HR institutions and HR reporting processes supported? Identify allies or potential What Sweden can do – questions for discus- partners in the HR network? sion • Could Sweden do more to seek strategic allianc- The Swedish strategy 2015-19, that recognises the es with likeminded donors and bringing up LGBTI Palestinian State, includes support to democracy, in- rights in the dialogue with the government, e.g. in creased respect human rights and gender equality in connection with support to basic health care, Palestine. Recognised as a reliable partner with long SRHR, legal reform programmes, human rights time engagement, Sweden has an opportunity to in- implementation mechanisms or with reference to clude issues related to the rights of LGBTI persons the HIV/AIDS national plan. and their access to justice. • Could Sweden do more to encourage OHCHR, When addressing LGBTI rights in non-supportive to include LGBTI rights in its annual reports and contexts, it is important to consult LGBTI organisa- address LGBTI rights within other frameworks, tions in how to address issues to make sure not to e.g. the work with the European Neighbouring overrule their agenda. In addition to consulting with Policy? local LGBTI organisations and other LGBTI friendly • Could Sweden do more to promote inclusion of human and/or women’s rights organisations, regional the LGBTI population in gender equality and organisations and or organisations in neighbouring gender based violence initiatives? countries can be approached. Questions to discuss: • Could Sweden do more to encourage the discus- • Could Sweden do more to establish contacts with sions about LGBTI rights within the Swedish the LGBTI organisations to keep updated on the team, to raise and secure the knowledge and legal and security situation of LGBTI persons and how Sweden can support and carry out a dia- when needed contribute to protection of organi- logue in a safe and progressive way? sations and activists at risk?

• Could Sweden do more to monitor development of the future Criminal Code, and identify allies For further advice on dialogue regarding LGBT is- that could support Swedish standpoints in case sues, download the Sida ‘Human Rights of Lesbian, of new proposals of sharpened legislation? Gay, Bisexual and Transgender persons - Conduct- ing a Dialogue and the Ministry of Foreign Affairs • Could Sweden do more to include LGBTI organi- Dialogue brief. Also refer to the EU tools and guide- sations in social, cultural and professional events lines in the reference list. and networks, when possible to offer them as

References General references ILGA, 2014, State-sponsored Homophobia: A world survey of laws prohibiting same sex activity between consenting adults. (see updated version at www.ILGA.org) RFSL, LGBT in Development, An introduction in how to include LGBT in programming in development: http://www.rfsl.se/public/LGBT_in_development.pdf Sida ‘Human Rights of Lesbian, Gay, Bisexual and Transgender persons - Conducting a Dialogue and the Ministry of Foreign Affairs Dialogue brief EU news, tools and guidelines: http://eeas.europa.eu/human_rights/lgbt/index_en.htm EU Guidelines (2013): Guidelines for supporting LGBTI persons' human rights

Specific references Al-Qaws for Sexual & Gender Diversity in Palestinian Society, http://www.alqaws.org EU -Palestinian Authority Action Plan, http://eeas.europa.eu/enp/pdf/pdf/action_plans/pa_enp_ap_final_en.pdf Kagan, Michael & Ben-Dor, Anat 2008, ”Nowhere to run- Gay Palestinian Asylum-Seekers in Israel”, Tel Aviv University, The Buchmann Faculty of Law, 2008, http://www.law.tau.ac.il/Heb/_Uploads/dbsAttachedFiles/NowheretoRun.pdf UD, 2014, Strategy for the Swedish development cooperation with Palestine, (Swedish) http://www.regeringen.se/content/1/c6/24/28/99/5718b7f6.pdf UNAIDS, 2011, Middle East and North Africa regional report on AIDS 2011, http://www.unaids.org/sites/default/files/media_asset/JC2257_UNAIDS-MENA-report-2011_en_1.pdf UNFPA, 2012, Country Programme Evaluation - Occupied Palestinian Territory UN Women, 2011, ”Exploring the Dynamics and Vulnerabilities of HIV Transmission Amongst Sex Workers in the Palestinian Context”, A operational research in occupied Palestinian territory, United States Department of State, 2013, “2013 Country Reports on Human Rights Practices – The Occupied Territories (including areas subject to the jurisdiction of the Palestinian Authority)”

The human rights of LGBTI persons have been a Swedish government priority since 2009. As a service to staff, guidance notes have been prepared to provide basic information about the situation of this (often forgotten) group and inspire discussions on what Sweden could do to better include LGBTI rights in diplomacy and programming.

www.sida.se The Rights of LGBTI people in the ASEAN countries

December 2014

General situation of LGBTI people Southeast Asia is a region with major differences in In Laos, it is very difficult to assess the current development and income levels between countries, situation of LGBTI citizens, as the government does between rural and urban areas and between different not allow those who are not associated with the population groups. That is the case also for lesbian, government to conduct surveys on human rights. gay, bisexual, transgender and intersex (LGBTI) Thailand is one of only seven Asian signatories of the persons, where legislation and climate for civil UN’s declaration of LGBTI rights. It could also society organisations and for same sex relationships become the first Asian country to introduce a same- vary a lot. sex-partnership law. Yet it wasn’t until 2002 that the Several countries in the region still criminalise same- Thai government declassified homosexuality as an sex relations, but it is every day discrimination and illness. It took four more years before openly LGBTI violence that might be the most urgent problems for persons were not excluded from military service. LGBTI persons. Discrimination and harassment in Since 2012, the landscape has shifted to the better workplaces, being denied stable employment or for the LGBTI community in Viet Nam. There has housing, not obtaining identity cards that indicate been an increase in positive media exposure, as well their chosen gender are some of the issues facing as support from the public and government. Activism the LGBTI community. The cultural pressures and and community organising has been growing. There importance of family life in Asian society is however is still widespread stigma and discrimination that is the greatest obstacle. “The family unit is arguably the not protected by anti-discrimination legislation. greatest influence on the lives of LGBTI people, yet acceptance by families is limited by strong cultural Indonesia, with the 4th largest population in the world pressures.”(Dédé Oetomo, Chair of the Asia Pacific could be considered as one of the emerging Coalition on Male Sexual Health). ILGA reports that progressive LGBTI states in South East Asia. The those who challenge sexual or gender norms often LGBT movement, which has been active since 1969, confront violence in the “private” sphere of the family. is growing and vibrant with around 120 groups in the The threat of family or community rejection or country. The largest threat is the growing religious recrimination often prompts people to lead double and conservative anti-LGBT movement that uses lives, making them vulnerable to police blackmail and religion as a political tool. There is anti-discrimination extortion. Queer and transgender persons and other legislation, but not specifically mentioning LGBT gender non-conforming people and communities face people. hostility, discrimination and abuse in most places. Regional integration and cooperation has traditionally It is difficult to evaluate the degree of oppression that been weak in Southeast Asia, but there has been a LGBTI persons face in various countries in the region trend towards greater integration within ASEAN as there is a lack of reliable data. In Cambodia, (Association of Southeast Asian Nations) in the past homophobic attacks and abuse are reported in public few years. This has also been seen in the area of places such as markets and clubs and in community LGBTI, where regional cooperation and networking is settings. This contrasts with some reports of increasing. Local and national LGBTI movements are acceptance of same-sex couples at the village level. however rather weak and in need of substantial support and capacity development.

Legislation and policy

Same-sex sexual acts Legal Same-sex sexual acts Illegal Cambodia, East Timor (1975), Indonesia (most Brunei, Indonesia (in some areas), Malaysia, areas), Laos, Philippines, Thailand (1957), Viet Myanmar/Burma, Singapore Nam

There are several countries in the region that still At the time of the drafting, the online campaign ‘We criminalise same-sex relations. The similarity of the Are #ASEANtoo’ encouraged LGBTI persons and penal codes of Brunei, Malaysia, Myanmar and allies to post photographs of themselves stating their Singapore (section 377) are remnants from their inclusion in ASEAN. The campaign received support history as British colonies. from high levels, including the deputy head of the Office of the High Commissioner for Human Rights In the spring of 2014 there was a lot of coverage in (OHCHR)’s Southeast Asian office and the international media when the Sultan of Brunei was Indonesian representatives to the ASEAN said to plan to impose a Sharia law that would mean Intergovernmental Commission on Human Rights possible stoning for those convicted of having same and the ASEAN Commission on the Promotion and sex sexual relations. This was later changed to Protection of the Rights of Women and Children. prison sentence and/or fine. The ASEAN Intergovernmental Commission on East Timor is the only country in the region that, Human Rights (AICHR) was formed in 2009 as a since 2009, has a hate crime legislation, where hate consultative body. Its mandate is to promote and crime because of sexual orientation is considered an protect human rights in the member states and to aggravating circumstance. In several of the countries facilitate regional co-operation on human rights. The where same-sex activities are not a criminal offence, commission has been criticised for being weak and there is no anti-discrimination legislation or sanctions to avoid consultations with civil society. It has yet to for those who violate the rights of LGBTI people, or engage in protection of LGBTI persons human rights. reference to inheritance, tax or family rights issues for LGBTI people. Sexual and Reproductive Health and Rights, In some countries, like Indonesia, there is general HIV/AIDS and Gender Based Violence anti-discrimination legislation (that does not The countries of the Asia Pacific region have the specifically mention LGBTI persons), but could be second highest number of AIDS-related deaths in the used for the protection and inclusion of LGBTI world, as well as the second highest HIV prevalence persons. and the second highest number of new infections. Regional or international human rights Transmissions are concentrated to most at risk instruments groups, including MSM and transgender sex workers There was an attempt to include writings of LGBTI engaging in unsafe behaviour, resulting in high rights in the ASEAN Human Right´s declaration prevalence in these groups, whereas the general (2012), a joint declaration by the Governments of the population usually has a prevalence of less than 1 Member States of the Association of Southeast Asian percent. Nations ("ASEAN"). The text passed the draft stage, but was removed in the final version. The ASEAN Criminal laws, stigma and discrimination severely principles of cooperation are marked by non- impact the ability of MSM to access services and to interference and consensus decision-making. participate openly in processes that govern support Reluctant states can thus have great influence of the to HIV-prevention. final result.

Overall, HIV prevalence in countries such as Mechanisms in order to promote and protect the Malaysia, Myanmar, Cambodia, and Thailand, has human rights of people regardless of SOGI in the declined or remained steady over the last ten years, Southeast Asian region. while the Philippines have seen growing prevalence, http://aseansogie.wordpress.com/ but across the region the prevalence among MSM The Asia-Pacific Transgender Network and transgender persons has seen steady increase, http://www.transgenderasia.org/aptn info.htm especially in urban settings. ILGA Asia http://ilga.org/network/ilga-asia/ Violence against LGBTI persons is often based on non-conforming gender identity or sexuality. CARAM Asia, Coordination of Action Research on Lesbians with masculine expression and transgender AIDS and Mobility http://www.caramasia.org/ persons are at risk of being raped. Health care Working with empowering migrants’ health rights workers and police who are supposed to help are including sexual and reproductive health rights both ignorant about and biased against non- Asia Pacific Rainbow (APRainbow) is a network of conforming sexuality or gender identity, often lesbian, gay, bisexual, transgender and queer subjecting victims to additional harassment. individuals and organisations from the Asia Pacific Region. http://aprainbow.wordpress.com/ Civil society organisations and institutions Asia Pacific Coalition on Male Sexual Health To promote meaningful participation and (APCOM) founded in 2007, is a coalition of members empowerment of LGBTI persons, the LGBTI – governments, UN partners, non-profits and community generally needs community based organisations – from Asia and the • legitimacy, e.g. by participation in public Pacific working together to advocate on, highlight dialogues, lobbying and sensitisation advocacy and prioritise HIV issues that affect the lives of men work with states and religious groups without fear who have sex with men (MSM) and transgender of persecution, ability to articulate and address people, including rights, health and well-being immediate rights violations of LGBTI people, www.apcom.org

• ability to monitor government in terms of What Sweden can do at the regional level – development and implementation of legislation questions to discuss and policy, Within the framework of the Swedish regional • capacity development of organisations, and strategy, with focus on democracy, human rights and • systems to speedily and efficiently mount gender equality, there are great opportunities to defence, protection and emergency responses include LGBTI issues. It is highlighted in the strategy for human rights defenders who defend the that “given Swedish comparative advantages, human rights of LGBTI people. women and discriminated groups (such as people affected by HIV/AIDS, LGBTI persons, people with However, the needs and strategies of the LGBTI disabilities and ethnic minorities) shall be given movement differ from country to country. All support special priority”. should be provided in full cooperation and agreement with local activists. When addressing LGBTI in a non-supportive government context, such as some of the countries Some of the organisations that work with LGBTI - in the region, it is very important to consult LGBTI issues regionally are: organisations in the country to make sure not to The ASEAN SOGI Caucus is a network of diverse overrule their agenda. Questions to discuss: human rights activists in Southeast Asia that aims for • Could Sweden do more to keep updated on the the inclusion of SOGI (sexual orientation, gender legal and security situation and the judgements identity and expression) in the ASEAN Human Rights

and priorities of the LGBTI movements in the programmes and in negotiations of new region? Offer protection to activists and programmes (e.g. in cultural, legal/judiciary organisations at risk? capacity building, anti-corruption, police training/correctional services and human rights • Could Sweden do more to systematically programmes)? influence regional mechanisms that have the potential to engage with sexual orientation and • Could Sweden do more to bring up anti- gender identity issues (SOGI)? E.g. by raising discrimination, codes of conduct and labour LGBTI rights in dialogue with regional human legislation, with the aim of reducing rights organisations and institutions and discrimination against people based on sexual supporting the capacity development of the orientation or gender identity in the private National Human Rights Institutions (NRHI) to sector? enhance their understanding and work to protect • Could Sweden do more to promote inclusion of and promote the human rights of LGBTI people. LGBTI persons in SRHR, HIV/AIDS and GBV • Could Sweden do more to enhance the capacity initiatives? Especially gender non-conforming of regional LGBTI actors and activists by transgender and intersex persons? supporting regional networking and capacity Some countries in the region are more progressive development of Human Rights and LGBT and have taken steps globally to work for the human organisations and to encourage synergies and rights of LGBTI persons. experience exchange? • Could Sweden do more to facilitate regional • Could Sweden do more to support embassies networking, and support LGBTI reporting in and consulates in the region to develop their Universal Periodic Reviews (UPR), shadow capacity and interest to address LGBTI rights reports and other UN instruments? within country level strategies and portfolios?

• Could Sweden do more to include LGBTI organisations in social, cultural and professional For further advice on dialogue regarding LGBTI events and encourage embassies and issues, download the Sida ‘Human Rights of Lesbian, consulates to do the same? Gay, Bisexual and Transgender persons - Conducting a Dialogue and the Ministry of Foreign • Could Sweden do more to include SOGI issues Affairs Dialogue brief. Also refer to the EU tools and and LGBTI rights in on-going regional level guidelines in the reference list.

Tool kits EU news, tools and guidelines: http://eeas.europa.eu/human_rights/lgbt/index_en.htm The EU Guidelines (2013): Guidelines for supporting LGBTI persons' human rights. ILGA-Europe’s Toolkit for training police officers on tackling LGBTI-phobic crime is the result of a consultation process organised by ILGA-Europe together with member organisations and police forces that have already worked in partnership with LGBTI associations: http://www.ilga-europe.org/home/publications/reports_and_other_materials/training_toolkit_police_2011 Together for HIV and AIDS prevention, UNAIDS: http://www.olympic.org/Documents/Reports/EN/en_report_1039.pdf

References #We are ASEAN too, http://aseantoo.tumblr.com UNAIDS: HIV in Asia and the Pacific: UNAIDS report 2013 http://www.unaids.org/en/media/unaids/contentassets/documents/unaidspublication/2013/2013_HIV-Asia- Pacific_en.pdf UNDP: Being LGBTI in Asia: Country Reports http://asia-pacific.undp.org/content/rbap/en/home/operations/projects/overview/being-lgbt-in-asia/ UNDP: In depth: Challenges in Asia Pacific http://www.asia-pacific.undp.org/content/rbap/en/home/ourwork/hiv_aids/in_depth.html APCOM The state of investment in HIV prevention for MSM in Asia and the Pacific http://www.apcom.org/printpdf/28982 RFSL, 2008, LGBTI in development - a handbook on LGBTI perspectives in development cooperation: http://www.rfsl.se/?p=4357 Sida ‘Human Rights of Lesbian, Gay, Bisexual and Transgender persons - Conducting a Dialogue and the Ministry of Foreign Affairs Dialogue brief

The human rights of LGBTI persons have been a Swedish government priority since 2009. As a service to

staff, guidance notes have been prepared to provide basic information about the situation of this (often forgotten) group and inspire discussions on what Sweden could do to better include LGBTI rights in diplomacy and programming.

www.sida.se The Rights of LGBTI persons in Afghanistan

November 2014

General situation of LGBTI persons in Legal and human rights instruments Afghanistan Constitutional provisions and legal framework LGBTI persons in Afghanistan have a very narrow The Constitution stipulates that Afghanistan is an Is- space to live their lives freely. Common law and sha- lamic republic, so it is possible for LGBT people in ria law criminalise same-sex sexual relations, and the Afghanistan to be charged with violating Sharia law. acceptance of non-conforming sexual orientation and This could happen in lieu of, or in additional to gender identity is low. The situation of gender divi- charges being brought under the penal code. Sharia sion and the oppression of women are obstacles for law based punishment is more likely to occur in iso- all genders, but especially lesbian women, to find lated, rural communities. In the cities, persons con- spaces to live freely. Homosexuality is often associ- victed of homosexuality are generally sentenced to ated with sexual abuse, paedophilia and prostitution. prison. The inability to differentiate between consensual sex At the same time, the Afghanistan Constitution pro- between adults and sexual abuse is common and hibits any kind of discrimination against Afghan citi- trickles down into the nation's legal system. Con- zens (though not explicitly mentioning LGBTI), which servative values and a high rate of violence by family does not correspond to the legislation which criminal- members towards LGBTI persons who break gender- ises same-sex sexual acts between consenting roles are obstacles for those who have non- adults. The Afghanistan Constitution also states that conforming sexuality or gender expressions, as well “every Afghan has the right to treatment”. However, as women and men who oppose arranged marriages in practice the LGBT community does not access or domestic violence. health services or HIV prevention measures. Although little is known about the extent of MSM be- Same-sex sexual activity is prohibited for both male haviour or the size of the MSM population in the and female, according to the Penal Code of 1976 country, UNAIDS refer to a “tradition”, of sexual rela- which was reinstated after the American invasion, tionships, including sexual exploitation, by powerful and it has several provisions that could apply LGBT adult men of younger men or boys. The practice is people. called “Bacha bazi”, dancing boys. Despite the negative social attitudes and legal prohibitions, this is an • Article 398 – Offers lesser punishment for vigi- institutionalised form of bisexuality within Afghan cul- lante honour killings, which may involve a family ture. This occurs typically in the militia, police and member discovering their spouse or kin engag- armed forces when powerful adult men buy sexual ing in adultery, fornication (consensual sex be- favours from young boys with money or gifts or even tween unmarried persons) or homosexuality keep them in slave like conditions. These activities • Article 427 – Prescribes long prison terms for are tolerated within Afghan culture because they are adultery and “pederasty”. The latter may be in- not perceived as being an expression of an LGBT- terpreted as sexual intercourse between men identity, but rather an expression of male power and and anal intercourse, in light of the fact that dominance. Also, there is general impunity for gen- there are still legal punishments proscribed even der based violence and there is not yet child protec- if the people involved are legal adults. The max- tion legislation in Afghanistan. Together with high imum punishment increases if victim is under stigma and discrimination these practices lead to lack eighteen years of age, if the defendant is in a of effective HIV and STI prevention as well as lack of position of authority over the victim, if the de- addressing the human rights of these groups. fendant has repeatedly committed the crime or if

the crime results in the spread of a disease. The Sexual and Reproductive Health and law also increases the available punishment if a Rights and HIV/AIDS "violation of honour" takes place. The UNGASS country report from 2014 refers to a • Article 512 states that a person who is engag- study, the 2012 Integrated Biological Behavioural ing in public "watching" in a repugnant manner Survey (IBBS), that showed that HIV prevalence shall be imprisoned or fined. among MSM was low, around 0.4%. Other sources however suggest that male-to-male sexual contact Regional or international human rights in- may play a larger role in HIV transmission than pre- struments viously assumed. The UNGASS 2014 country report Afghanistan is a member of UN and was part of the revealed that there was a lack of use of condoms by Universal Periodic Review 18th session in 2014. MSM. A previous mapping in 2007 revealed a close During the UPR-process, Norway urged Afghanistan interaction of MSM with female partners (spouses) to ensure non-discrimination on the basis of sexual and young males, and indicated that many MSM en- orientation and gender identity and repeal the provi- gage in sex for money and goods, largely unprotect- sions of the penal code, which Afghanistan did not ed. A study by Naz Foundation International in 2009 accept. Several countries also expressed concern found similar results. over legislation and lack of measurements to combat According to UNAIDS, Afghanistan has policies and violence against women. Some of these recommen- strategies regulations that specify protection for peo- dations were accepted by Afghanistan, e.g. to ”com- ple living with HIV as a vulnerable group, including plete the exercises in strengthening national legal Men who have Sex with Men (MSM) and sex work- and administrative frameworks in order for them to ers. The Afghan strategic framework (NSF-II) includ- be in line with human rights principles” and ”continue ed writings of the provision of preventive services for with actions aimed at eliminating all forms of violence key affected population (people who inject drugs and against women and girls”. Efforts in these areas their partners, FSW, MSM, and prisoners). could open up for work with rights for LGBTI persons The Multi Country South Asia Global Fund HIV Pro- as an integral part. gramme, a regional HIV programme operating Afghanistan is a member of The United Nations Eco- in eight countries (Afghanistan, Bangladesh, Bhutan, nomic and Social Commission for Asia and the Pacif- India, the Maldives, Nepal, Pakistan and Sri Lanka), ic (ESCAP). In 2010 and 2011, Afghanistan agreed was initiated in 2011. Through Community Systems to declarations to achieve universal access to HIV Strengthening, the goal is to reduce the impact of prevention, including working with key populations HIV in MSM, intersex, and transgender people. In affected by HIV/AIDS. This is another area where Afghanistan, the programme will work through LGBTI issues could be raised. the Youth Health and Development organisation. According to UNDP, in the Afghanistan NCPI Report Despite the statements on access to treatment for all by the Ministry of Public Health, the government said in the Afghan Constitution, service provision to peo- there are no obstacles to effective HIV prevention, ple living with HIV/AIDS is limited to few provinces. while the civil society disagreed noting that ”Sharia Civil society organisations are still the main provider law and the Afghan constitution contained either of services to this group. laws, regulations or policies that present obstacles for MSM, people who inject drugs, sex workers and transgender people”.

Civil society organisations and institu- rights´ organisation to be advised on the matter. tions active in LGBTI field Questions to discuss: • There are not many organistions within Afghanistan Could Sweden do more to keep updated on the working with LGBTI rights in any form. Pakistani or- legal and security situation of LGBTI persons and ganisation, Naz Male Health Alliance works in re- when needed contribute to protection of organi- gional cooperation with health clinics in Afghanistan sations and activists at risk? and organisations that support MSM. Other organisa- • Could Sweden do more to seek strategic allianc- tions might include LGBTI persons in their work, but es (with likeminded donors, UN and EU agen- due to the security risks there are few that are open cies) and bringing up LGBTI rights in the dia- with their work. logue with the government, e.g. with reference to The Afghanistan Independent Human Rights Com- the HIV/AIDS national plan or the SRHR and mission has an 'A-status' accredited at the Office of gender based violence programmes? the United Nations High Commissioner for Human • Could Sweden do more to encourage and sup- Rights, OHCHR secured through a peer review pro- port mainstream Human Rights organisations, cess of the International Coordinating Committee of HR institutions (e.g. the Afghanistan Independent NHRIs (ICC). The OHCHR is committed to working Human Rights Commission) and HR reporting with States, national human rights institutions and processes to include LGBTI rights? civil society to achieve progress towards the worldwide decriminalisation of homosexuality and further • Could Sweden do more to promote inclusion of measures to protect people from violence and dis- the LGBTI population in Swedish supported gen- crimination on grounds of their sexual orientation or der equality and gender based violence initia- gender identity and could be an entry point to discuss tives, in SRHR initiatives and in HIV/AIDS initia- LGBTI rights in Afghanistan. tives? To facilitate networking with regional efforts in these areas? • Could Sweden do more to support the judiciary What Sweden can do – questions to dis- to consider LGBTI rights in law reform and in le- cuss gal aid to LGBTI persons and activists, with reference to the non-discriminatory clauses in the Within the broader context of support to democracy, constitution? increased respect human rights and gender equality • Could Sweden do more to encourage and sup- in Afghanistan, Sweden has an opportunity to include port emerging LGBTI organisations and facilitat- issues related to the rights of LGBTI persons and ing their networking with mainstream human their access to justice. When addressing LGBTI in rights organisations in Afghanistan and with non-supportive government contexts, it is generally LGBTI organisations in the region. important to consult LGBTI organisations in how to address issues to make sure not to overrule their For further advice on dialogue regarding LGBT is- agenda. In a country in Afghanistan where LGBTI or- sues, download the Sida ‘Human Rights of Lesbian, ganisations don´t exist in the traditional sense, there Gay, Bisexual and Transgender persons - Conduct- is a need to consult other LGBTI organisations or ing a Dialogue and the Ministry of Foreign Affairs human rights organisations working with LGBTI in Dialogue brief the region for example ILGA Asia, organisations in neighbouring countries or LGBTI friendly human

References General references MSM Global Fund http://www.msmgf.org ILGA, State-sponsored Homophobia: A world survey of laws prohibiting same sex activity between consenting adults. (See updated version at www.ILGA.org) RFSL, LGBT in Development, An introduction in how to include LGBT in programming in development: http://www.rfsl.se/public/LGBT_in_development.pdf Sida: ‘Human Rights of Lesbian, Gay, Bisexual and Transgender persons - Conducting a Dialogue: http://www.sida.se/contentassets/21013d2a0a3048ed8d3debd5de0a13d0/human-rights-of-lesbian-gay- bisexual-and-transgender-persons-conducting-a-dialogue_3327.pdf

Specific references

Human rights Council, 26th session, Report of the Working Group on the Universal Periodic Review http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G14/129/52/PDF/G1412952.pdf?OpenElement

OHCHR; International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights. (ICC), http://nhri.ohchr.org/EN/Documents/Chart%20of%20the%20Status%20of%20NHRIs%20%28DIC%202011% 29.pdf UD, 2014, Results Strategy for cooperation with Afghanistan 2014-19 (Swedish) UNDP (2014). South Asia Regional Advocacy Framework and Resource Guide: HIV, Human Rights and Sex- ual Orientation and Gender Identity. Bangkok, UNDP UNDP, 2014, Fast Facts Multi-country South Asia Global Fund HIV Programme, http://www.asia- pacific.undp.org/content/dam/rbap/docs/Research%20&%20Publications/hiv_aids/rbap-hhd-2014-fast-facts- msagfhivprgm.pdf UNGASS Country Progress Report 2014, Ministry of Public Health, Islamic State of Afghanistan, http://www.unaids.org/en/dataanalysis/knowyourresponse/countryprogressreports/2014countries/AFG_narrati ve_report_2014.pdf

The human rights of LGBTI persons have been a Swedish government priority since 2009. As a service to staff, guidance notes have been prepared to provide basic information about the situation of this (often forgotten) group and inspire discussions on what Sweden could do to better include LGBTI rights in diplomacy and programming.

www.sida.se The Rights of LGBTI people in Bangladesh

December 2014

General situation of LGBTI people The first LGBTI magazine in Bangladesh, Roopbaan, was launched in 2014, with the aim to create a more There is widespread social stigma and discrimination widespread visibility of the LGBTI issues in the media against lesbian, gay, bisexual, transgender and inter- and to promote greater acceptance and understand- sex (LGBTI) persons in Bangladesh, who often face ing of the community in Bangladesh. both verbal and physical abuse in their everyday life. LGBTI rights are seldom respected and recognised Legal and human rights instruments among the civil society and governmental institutions. Those who chose to be open with their non- Constitutional provisions and legal framework conforming sexual orientation face many challenges Bangladesh inherited the penal code from British co- and severe consequences that prevent them from lonial administration. The Penal Code is titled “Of living a dignified life. LGBTI persons face social re- Unnatural Offences” and states “Whoever voluntarily jection, unemployment, violent intimidation from the has carnal intercourse against the order of nature police, and exclusion from their families. Men who with any man, woman or animal, shall be punished have sex with men (MSM) are often ostracised by with imprisonment for life, or with imprisonment of ei- their family and the community and are denied ac- ther description for a term which may extend to ten cess to fundamental rights such as housing, educa- years, and shall also be liable to fine”. Although this tion, employment, and health care. Violent abuse by Section is gender neutral it is usually assumed to ap- the police against MSM is well known in Bangladesh. ply only to men. Section 377 attempts to cover a There is a great social and economic pressure in the wide range of sexual acts, including homosexual be- country for people to marry a person of the opposite haviour. Even though there have been no known sex. Public opinions about sexual orientation and cases of deportation, fines or imprisonment, under gender identity tend to be heavily influenced by tradi- Section 377, this law is mostly invoked by law en- tional Islamic and Hindu sexual morals. Furthermore, forcers to harass, extort, and blackmail LGBTI per- the LGBTI community faces widespread hostile atti- sons. tudes from civil society, primarily because of religious The Penal Code is most often used in conjunction traditions in the country. with Section 54, which is the Code of Criminal Pro- Same sex sexualities and non-conforming gender cedure. This code allows Bangladeshi police officers identities are not recognised under the current legal to arrest people without warrant, to intimidate, and to framework. Bangladesh is still using a penal code blackmail. Section 54 states that “any person who (Section 377) that was introduced by colonial authori- has been concerned in any cognizable offence or ties from British India in 1860 criminalising same-sex against whom a reasonable complaint has been sexual acts. Social stigma and pressure make it ex- made or credible information has been received, or a tremely difficult for all LGBTI persons, but lesbian reasonable suspicion exists of his having been so women remain a neglected entity in Bangladesh. Be- concerned”. This provision, combined with Section ing both women in a conservative society where 377 of the Penal Code, is the main tool of intimida- women in general cannot enjoy the same freedoms tion used by police against LGBTI persons in Bang- as men, and being a sexual minority whose sexuality ladesh. is socially, legally, and preciously proscribed make it Contradictory to the sections above, article 28 from hard for lesbian and bisexual women to find social Bangladesh Constitution states: “The State shall not space where their sexual identity is accepted. discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth”. Further- more, article 11 in the constitution stipulates the im-

portance of enjoyment of everyone’s fundamental the sphere of the domestic laws. Moreover the state rights and freedoms. However, there is no law in also failed to submit its periodic reports on measures Bangladesh, which prohibits discrimination based on taken to materialise human rights. The initial report to a person’s sexual orientation and gender identity. the UN Committee on Torture was due in 1999 and The Government of Bangladesh has accepted rec- to the Committees on ICESR and ICCPR in 2000 ommendations made during the Universal periodic and 2001. Thus far, Bangladesh has only managed Review in 2013, with regard to the human rights to report systematically to CEDAW and CRC and the training of law enforcement and judicial officers, but implementation of their recommendations has been refuses to abolish Section 377. poor.

The Government in Bangladesh has approved a pro- The Asian Pacific Forum has worked with National posal of the social welfare ministry to identify “Hijra” Human Rights Institutions (NHRI) in Bangladesh to as a third gender identity. Hijra, which is often a sub- promote the rights of people of diverse sexual orien- sumed under the trans umbrella in the West, is a tations and gender identity. In 2002, the National South Asian feminine gender identity. Furthermore, Human Rights Commission (NHRC) of Bangladesh the government, announced in 2013, agreed upon to submitted a report as part of its State’s participation secure Hijras the right to identify themselves as a in the Universal Periodic Review. The NHRC of separate and distinct gender from binary norm on all Bangladesh argued that it is now time to ensure that official documents, including passports. all groups including transgender, intersex, and sexual Regional and international human rights instru- minorities should be protected from discrimination. ments While many other countries in December 2008, Sexual and Reproductive Health and Rights, signed a United Nations (UN) declaration affirming that international human rights to include sexual ori- HIV/AIDS and Gender Based Violence entation and gender identity, Bangladesh was one of The first case of HIV/AIDS in Bangladesh was de- 57 to sign a counter-statement. The counter- tected in 1989. Today UNAIDS estimates that there statement expresses serious concerns about grant- could be over 12,000 people living with HIV in the ing rights to “certain persons on the grounds of their country. The overall prevalence is less than 1% in sexual interests and behaviours”, and suggested that the country. Due to limited access to voluntary coun- the protection of sexual orientation could lead to the selling and testing services, there are many Bangla- normalisation of paedophilia. deshi’s who are unaware of their HIV status. Even Bangladesh still continues to oppose recommenda- though Bangladesh is considered to be a low preva- tions of a number of International institutions regard- lence country, it remains extremely vulnerable to an ing LGBTI rights. One example is in the sixth Asian HIV epidemic. Due to the high level of poverty, over- and Pacific Population Conference by International population, gender inequality, and high levels of Conference on Population and Development (ICPD) transactional sex, Bangladesh would have multiple held in Bangkok, 2013, Bangladesh expressed its struggles to cope with an epidemic. reservations on the promotion of rights of LGBTI per- Sexual and gender minorities have minimal access to sons. However, Bangladesh is a signatory to ICCPR medical services and treatment. This is mainly due to (International Convention on Civil and Political the widespread social stigma and discrimination by rights), ICESCR (International Convention on Eco- medical service providers. The UN General Assem- nomic, Social and Cultural Rights) and CEDAW bly Special Session on HIV/AIDS (UNGASS) 2012 (Committee on the Elimination of Discrimination report noted that in 2010-2011, 9,3 per cent of all against Women), which are valuable tools to advo- MSM had received tests in the past twelve months. cate LGBTI rights. However, very few strides have Non-governmental organisations are working to pro- been adopted to inject the spirit of these treaties into vide sexual health services to the LGBTI community

and to campaign for greater openness and legitimacy assment not only from law enforcement, but also for the community. However, many HIV/AIDS aware- from those in positions of trust, such as relatives and ness programs have been threatened or closed down teachers. These violations and marginalisation leads because of intimidation and violence by law en- to social isolation, degradation of mental health, forcement authorities. homelessness and poverty. The South Asia Regional HIV/AIDS Program man- Civil society organisations and institutions aged by the United Nations Development Pro- gramme Asia-Pacific Regional Centre (UNDP APRC) active in the LGBTI field is a five-year regional initiative, from 2010 to 2015, to Although the realisation of the importance of a right- reduce impact of HIV and AIDS on men who have based approach exists among the NGO community sex with men and transgender (TG) persons in South in Bangladesh, it is not easy to adopt in practice. One Asia. The program has been implemented in seven of the major challenges that remains are to fight the South Asian countries – Bangladesh is one of them. commonly held attitude in the government and other The main objective is to improve the delivery of HIV institutions, that homosexuality is illegal and cultural- prevention, policy environment and knowledge rely/religiously unacceptable. Because of the attitudes garding MSM (men who have sex with men) and among stakeholders and policymakers, it has taken Transgender persons in South Asia. The program many years for LGBTI activists to organise in social stresses that the prevalence of HIV positive among communities. Due to the difficult environment in MSM could increase rapidly if prevention efforts are which organisation have to operate, the few organi- not being continuously operated. The Global Fund to sations that exist restrict their activities mostly to the Fight AIDS, Tuberculosis and Malaria has also been promotion of safe sex knowledge and the distribution one of the big donors to fight HIV/AIDS in Bangla- of condoms. desh and to support targeted interventions for key Boys of Bangladesh (BoB started as an online group populations. in 2002. Boys of Bangladesh have become a non- The government in Bangladesh has not ratified the founded platform for self-identified gay men in the recommendations of the International Conference on country. They act as a meeting place for LGBTI per- Population and Development (ICPD) to protect and sons and advocates for their rights and equality and fulfil the rights of persons of diverse sexual orienta- for Section 377 to be repealed. tion or gender identity (SOGI) and has failed to pro- http://www.boysofbangladesh.org/ vide comprehensive sexuality education to young Bandhu Social Welfare Society (BSWS) provides people. The government claims that sexual educa- health care and support to Bengali MSM and hijras. It tion could encourage sexual activity that goes is one of the pioneer organisations in Bangladesh against the values of the country. Because of the that started working on sexual minority issues in lack of support and rejection from the government to 1996. It is comprehensively working on the promo- work on sexual and reproductive health and rights tion of SRHR and human rights amongst sexual mi- (SRHR), organisations find it more challenging to nority populations. They receive core support from work with these issues in a safe environment. RFSU. http://www.bandhu-bd.org Surveys and qualitative studies have indicated that CARE-Bangladesh works with HIV/AIDS issues in violence experienced by MSM and transgender per- Bangladesh and currently run the major needle ex- sons is most commonly perpetrated by the police. change programs available in Bangladesh. These MSM also risk violence and sexual violence from programs also provide a range of life-saving services other men in public. Violence by family members to- such as access to clean needles, access to condoms wards transgender persons is also not uncommon, and health care for STDs, and other ailments. likewise forcing marriage. Organisations who work http://www.carebangladesh.org with transgender persons report that they face har-

Furthermore, a group of transgender women from nisms (e.g. law reforms, national human rights South Asian countries, including Bangladesh, creat- institutions, UPR processes etc.)? ed the Asia Pacific Transgender Network in 2009. • Could Sweden do more to support LGBTI organ- Their objective is to champion transgender women’s isations in their work with shadow-reports to in- health, legal, and social rights stances like the UPR –processes, an important The organisation Badhan Hijra Sangha works with tool for addressing violations of LGBTI persons? hijra women to establish human rights of hijras. Their • Could Sweden do more to raise issues of dis- mission is to organise improvement of the sexual crimination in economic empowerment, educa- health of hijras, prevent HIV/AIDS; establish recognition and skills training in order to ensure that tion of hijras as third gender population; provide eco- LGBTI persons are not excluded or denied ac- nomic support and influence policy decisions related cess to programmes? to the hijra population. Presently, discrimination within the labour market is a What Sweden could do – 9 questions to dis- factor that strongly contributes to the marginalisation cuss of LGBTI persons, and puts them at risk of poverty. The Swedish strategy for Bangladesh aims at im- Within the broader context of support to democracy, proved opportunities for the poor to contribute to and human rights and gender equality in Bangladesh, access economic growth, through improved dialogue Sweden has a great opportunity to include issues re- between social partners on the labour market. lated to the rights of LGBTI persons and their access to justice. When addressing LGBTI in a non- • In dialogues concerning private sector develop- supportive government context as Bangladesh, it is ment, could Sweden raise anti-discrimination, very important to consult LGBTI organisations in the codes of conduct, and employment legislation, country to make sure not to overrule their agenda. with the aim of reducing discrimination against Questions to discuss: people based on sexual orientation or gender identity? • Could Sweden do more to stay updated on the legal and security situation and the needs and The Swedish Strategy for Bangladesh also aims at priorities of the LGBTI movement? To offer sup- improving gender equality and to prevent gender port and protection to activists and organisations based violence, as well as increasing the number of at risk? persons who have access to sexual and reproductive health and rights. These programmes could be used • Could Sweden do more to seek strategic allianc- as entry points in the work towards decriminalisation es and continue to raise LGBTI rights in the dia- and acceptance of LGBTI. logue with the government? • Could Sweden do more to include gay, lesbian, • Could Sweden do more to encourage and sup- bisexual, trans and intersex people and the MSM port cooperation and synergies between LGBTI group in supported SRHR and GBV initiatives? organisations and mainstream Human Rights organisations, both nationally and regionally? For further advice on dialogue regarding LGBTI issues, download Sida’s Human Rights of Lesbian, • Could Sweden do more to include LGBTI organi- Gay, Bisexual and Transgender Persons - Conduct- sations in social and professional ing a Dialogue and the Ministry of Foreign Affairs events/networks and in programmes focussing Dialogue brief or the EU tools referred to in the refer- on civil society capacity development and/or hu- ence list. More specific advice and support man rights enhancement? measures, as well as contact information, can also • Could Sweden do more to encourage inclusion of be provided through ILGA or RFSL, should the Em- LGBTI rights in support to accountability mecha- bassy wish for a dialogue.

References RFSL, LGBTI in Development, An introduction in how to include LGBTI in programming in development: http://www.rfsl.se/public/LGBT_in_development.pdf ILGA, 2014, State-sponsored Homophobia: A world survey of laws prohibiting same sex activity between consenting adults. (See updated version at www.ILGA.org) UD, 2013, Result strategy Bangladesh 2014-2020, http://www.regeringen.se/content/1/c6/24/33/79/c5295df4.pdf University of Toronto, Faculty of Law, 2011, Bangladesh - Country Report for use in refugee claims based on persecution relating to sexual orientation and gender identity, http://ihrp.law.utoronto.ca/utfl_file/count/documents/SOGI/Bangladesh_SOGI_2011.pdf Sexual Rights Initiative, 2009, Report on Bangladesh – 4th round of the Universal Periodic Review, http://sexualrightsinitiative.com/wp-content/uploads/Bangladesh-UPR-4.pdf Sida’s Human Rights of Lesbian, Gay, Bisexual and Transgender Persons - Conducting a Dialogue and the Ministry of Foreign Affairs Dialogue brief EU news, tools and guidelines: http://eeas.europa.eu/human_rights/lgbt/index_en.htm The EU Guidelines (2013): Guidelines for supporting LGBTI persons' human rights.

www.sida.se The Rights of LGBTI people in Cambodia

December 2014

General situation of LGBTI people Issues related to LGBTI persons’ living conditions As one of the poorest countries in the world, and still and rights are overall absent from political and media struggling to reconcile after decades of internal con- discourse in Cambodia. There are a few cases where flict, Cambodia has many obstacles to overcome to LGBTI matters have made it to the public agenda, achieve democratic governance and human rights. with officials both speaking in favour and against The human rights situation is still not great, but there LGBTI rights. have been improvements over time. The situation of In recent years, an LGBTI movement has started to LGBTI persons is generally better in Cambodia than form. The first celebration of Pride in Cambodia took in many other countries in the region. Cambodia place in 2004 and has since become an annual does not experience the same type of state- event, attracting visitors from other parts of Cambo- sponsored aggressiveness towards LGBTI persons dia as well as neighbouring countries. In 2012 the as in some other countries in the region and the reli- Pride functioned as a regional forum for LGBTI gious leaders in the country do not condemn homo- movements in ASEAN countries, in connection with sexuality. Cambodia chairing Association of Southeast Asian However, Cambodian culture places great value on Nations (ASEAN) that year. LGBTI activists have traditional family values and the social pressure to continued to work through media advocacy, resulting marry and have children is a heavy burden for LGBTI in regular radio and TV program run by university persons. Reports show that LGBTI persons are ex- students. Other programs have taken place within posed to violence, where the abuse range from the university and academic spheres. In regular me- forced marriages, attempted “cures” for being LGBTI, dia, LGBTI people are often portrayed in a negative cure by traditional Khmer doctors/psychologists way, particularly transgender women, while some at- (Krou Khmer), family rejection and controlling behav- tempts have been seen by some TV channels to ad- iour, resulting in many LGBTI individuals a suffering dress LGBTI-issues in a somewhat better way. from mental health issues like depression, suicide Young LGBTI Cambodians use social media and and self-destructive behaviour. other technology to communicate with each other and share information. With widespread corruption, LGBTI persons face the same type of difficulties as other citizens. In addition, In a report by UNDP on the LGBTI climate in Cam- they are also targets of extortion related to their bodia it is described how gender and sexuality could LGBTI identities. The most common situation is that be understood in terms less rigid than Western cate- LGBTI persons are targeted by the police for finan- gories of “male” and “female”, and that Cambodian cial gain. There are two legal provisions: ‘Human traf- LGBTI people define themselves according to their ficking law’ and ‘Commune and village safety policy’ gender norm rather than sexual orientation. Similarly, that have been used to arrest people (mostly society may show disapproval of individuals accord- transgender and gay men) under false charges and ing to their gender norm rather than an LGBTI identi- claim a payment (between USD 10 and 30) not to ty. In the report it is described how transgender per- keep them overnight. The police frequently abuse sons frequently are harassed rather because of their transgender sex workers. UNDP reports that local appearance and their livelihood as entertainment or authorities and police sometimes use various laws to sex workers. NGOs and CBOs working with men limit the rights of LGBTI people; for example through who have sex with men (MSM) and transgender forced separation of same-sex couples, as per pa- people do not typically hire LGBTI people as staff. rental request, or linking of LGBTI people with drug use or sex work.

Legal and human rights instruments and gender identity and has since addressed LGBTI rights in different forums. This could be used as an Constitutional provisions and legal framework advocacy tool. Same-sex sexual acts are not a criminal offence in Cambodia. However, there is no anti-discrimination The Office of the high commissioner for human rights legislation or other sanctions for those who violate (OHCHR), as a UN body can be useful when bilateral the rights of LGBTI people. Further, marriage is lim- dialogue is difficult or insufficient. OHCHR has a ited strictly to opposite-sex couples. This definition is mandate to work with States, national human rights also used in the Law on Marriage and Family, where institutions, and civil society. In this way, it is possible article 3 reads: “marriage is a solemn contract be- to achieve progress towards the worldwide decrimi- tween a man and a woman”, and in article 6: “mar- nalisation of homosexuality and further measures to riages are prohibited between persons of the same protect people from violence and discrimination on sex”. grounds of their sexual orientation or gender identity. The Constitution extends its rights and freedoms to There was an attempt to include writings of LGBTI in every citizen, regardless of “race, colour, sex… or the ASEAN Human Right´s declaration, a joint decla- other status” – a phrasing that can be used in favour ration by the Governments of the Member States of of LGBTI persons’ rights, given its intent to provide the Association of Southeast Asian Nations equality regardless of personal characteristics. ("ASEAN"). The text passed the draft but was removed in the final version. The ASEAN principles are An important accountability mechanism that could be marked by of non-interference and consensus deci- used to forward LGBTI rights is The Cambodian sion-making and reluctant states can thus have great human rights committee (functional in its present influence of the final result. form from 2014) - The committee receives complaints and reports on UN conventions. It is also re- Sexual and Reproductive Health and Rights, sponsible to respond to the UPR recommendations. HIV/AIDS and gender based violence So far it has not dealt with LGBTI issues. HIV is a key health issue for MSM and transgender UNDP has facilitated the First National Dialogue, to women in Cambodia with higher reported rates of in- make a dialogue among LGBTI people with some fection and risk. UNDP’s report notes that MSM and stakeholders to inform each other needs and desires transgender persons are often treated as a homoge- of LGBTI people in Cambodia and the Ministry of nous group, ignoring their specific needs, but that Council of Ministers initiated a survey about social there has been some progress in policy and among exclusion, performed by independent researchers, health workers to distinguish between these popula- which mentioned that government system discrimi- tions. There is a stigma and discrimination in the nates LGBTI persons, e.g. by not issuing so called health sector towards MSM and transgender per- Poverty card to LGBTI persons. The UN initiative can sons. There is a need for attention to health issues serve as a door opener for engagement of other do- other than HIV such as gender-affirmation surgery, nors. hormone therapy and the use of medications for Regional and international human rights instru- gender transition. Transgender persons are particu- ments larly vulnerable; due to poor opportunities in the In regards to LGBTI rights, generally the ICCPR; regular labour market, many transgender persons CEDAW and ICESCR are of special interest when engage in sex work, which contributes to ill health addressing LGBTI rights. Cambodia has ratified all and exposure to HIV. There is a group that works these and submitted a report on the ICESCR in with HIV positive MSM, called CPN+ that receive 2014. It did not raise LGBTI issues. technical support from Rainbow Community of Kam- In 2011, The Human Rights Council adopted a reso- puchea (RoCK). lution (A/HRC/27/L.27/Rev.1), on sexual orientation

CamASEAN Youth’s Future (CamASEAN) is provid- meeting with friends also sharing about sexual orien- ing human rights and legal right documentation for tation, gender identity and gender expression at Uni- MSM and HIV activists. versities and High Schools regularly. The Reproductive Health Association of Cambodia Cambodia Centre for Human Rights (CCHR) is (RHAC) has a project funded by RFSU that works to one of Cambodia’s leading Human Rights organisa- support as well to provide sexual reproductive health tion with capacity to organise consultations, monitor service for transgender persons. There are 6 MSM and report on various human rights issues as well as NGOs (Men’s Health Cambodia, Men’s Health Social being a strong advocate for human rights, including Service, CSSD, KHEMARA, KDFO, and Bandahn LGBTI rights. The Centre has engaged in monitoring Chaktomok) that work with HIV/Aids prevention and of LGBTI rights and has published two reports on services for the MSM community. LGBTI rights in Cambodia. It is a very useful ally. CCHR is supported by RFSU. Civil society organisations and institutions active in LGBTI field What Sweden could do – questions to discuss Rainbow Community of Kampuchea (RoCK) is the first registered and largest LGBTI group in Cambo- According to the Swedish results strategy for the de- dia. They organise regular meetings with the LGBTI velopment cooperation with Cambodia (2014-2018), community and also provide legal assistance. They one of the goals is strengthened democracy and also organise the annual Pride festival in Phnom gender equality, with increased respect for human Penh. RoCK points out some of the more pressing rights and freedom from oppression. Within this ar- concerns for LGBTI Cambodians: lack of socie- ea, there are many entry points to work with LGBTI tal/family understanding and acceptance of LGBTI rights. Also under the Swedish objective on access to individuals; lack of legal assistance, and lack of prior- economic growth, education and livelihoods for the ity given to LGBTI cases. Further, they see a lack of poor, there are opportunities to raise LGBTI issues. understanding and acceptance of LGBTI by service Presently, discrimination within the labour market is a providers in civil society/health sector/education factor that strongly contributes to the marginalisation fields. Sweden has already regular contact with of LGBTI persons, and puts them at risk of poverty. RoCK and has also supported the Pride events. In all Swedish such efforts, it is very important to RoCK is supported by RFSU. consult LGBTI organisations in the country to make CamASEAN Youth’s Future (CamASEAN) is a sure not to overrule their agenda. Questions to dis- youth led, non-registered, network that helps out with cuss: legal counselling and documents human rights viola- • Could Sweden do more to stay updated on the tion of LGBTI persons. The network also does advo- situation and the judgements and priorities of the cacy work towards the government and trains LGBTI LGBTI movement? Could the UNDP report be activists about human rights and legal rights. used as a source of inspiration for dialogue and CamASEAN is a member of ASEAN SOGIE Caucus programming? (ASC) to promote LGBTI and SOGIE inclusion in ASEAN Human Rights Mechanisms and is one of the • Could Sweden do more to invite LGBTI organisa- founders of ASEAN People Forum Cambodia, which tions to social, cultural and professional events is working with other Cambodian CSOs to strengthen and networks, in order to offer them as much inclusion of LGBTI persons and their human rights. space as they are ready and willing to take (as was done in Vietnam)? Parent & Friends of Lesbian and Gay, FLAG, is established by a group of university students to ad- • Could Sweden do more to seek strategic allianc- vocate for LGBTI friends. They are having monthly es and continue to bring up LGBTI rights in the

dialogue with the government and work with oth- • Could Sweden do more to include LGBTI organi- ers to support participation of LGBTI people in sations in human rights and/or civil society ca- spaces such as the ASEAN forums? pacity development programmes so that they can improve their effectiveness, networking and out- • Could Sweden do more to support anti- reach? discrimination legislation to protect LGBTI persons and other marginalised groups and to re- • Could Sweden do more to include LGBTI per- form the family and marriage law? Could LGBTI sons and the MSM group in supported SRHR ini- issues be included as an important part in anti- tiatives, HIV/AIDS efforts and work with gender- corruption and police training programs? based violence? • Could Sweden do more to encourage and sup- • In the dialogue concerning private sector and port cooperation and synergies between LGBTI labour market development, could Sweden do organisations and mainstream Human Rights or- more to bring up anti-discrimination, codes of ganisations? To encourage mainstream HR or- conduct and labour legislation, with the aim of ganisations, HR institutions and HR reporting reducing discrimination against people based on processes nationally and regionally to become sexual orientation or gender identity? inclusive of LGBTI rights? For further advice on dialogue regarding LGBTI is- • Could Sweden do more to encourage and sup- sues, download the Sida ‘Human Rights of Lesbian, port cooperation and synergies between LGBTI Gay, Bisexual and Transgender persons - Conduct- organisations and mainstream SRHR organisa- ing a Dialogue and the Ministry of Foreign Affairs tions? Dialogue brief or the EU tools referred to in the reference list.

References

General references ILGA, 2014, State-sponsored Homophobia: A world survey of laws prohibiting same sex activity between consenting adults (see updated version at www.ILGA.org) RFSL, An introduction in how to include LGBTI in programming in development, http://www.rfsl.se/public/LGBT_in_development.pdf Sida ‘Human Rights of Lesbian, Gay, Bisexual and Transgender persons - Conducting a Dialogue and the Ministry of Foreign Affairs Dialogue brief EU news, tools and guidelines: http://eeas.europa.eu/human_rights/lgbt/index_en.htm The EU Guidelines (2013): Guidelines for supporting LGBTI persons' human rights.

References specifically related to Cambodia Asia Pacific Coalition on male sexual health, MSM and Transgender engagement in Global Fund New Fund- ing Model Country Dialogue Cambodian Centre for human rights, SOGIE programme http://www.cchrcambodia.org/index_old.php?url=project_page/project_page.php&p=project_profile.php&id=3 &pro=SOGI&lang=eng Cambodian Centre for Human Rights, 2010, Coming Out in the Kingdom Cambodian Centre for Human Rights, 2012, Rainbow Khmer, from Prejudice to Pride. Reports can be retrieved at www.cchrcambodia.org RoCK: http://rockhmerlgbt.wordpress.com/ UNAIDS, 2014, Cambodia country progress report monitoring progress towards the targets of the 2011 UN political declaration on HIV and AIDS, http://www.unaids.org/en/dataanalysis/knowyourresponse/countryprogressreports/2014countries/KHM_narrati ve_report_2014.pdf UNDP, 2014, being LGBTI in Asia, Cambodia Country Report, http://asia- pacific.undp.org/content/dam/rbap/docs/Research%20&%20Publications/hiv_aids/rbap-hhd-2014-blia- cambodia-country-report.pdf

www.sida.se The Rights of LGBTI people in Myanmar

December 2014

General situation of LGBTI people Legal and human rights instruments In Myanmar, lesbian, gay, bisexual, transgender and Constitutional provisions and legal framework intersex (LGBTI) persons face discrimination from Contrary to its neighbouring countries on the Indo- the society, where the notions of gender identity and Chinese peninsula, same-sex sexual acts are illegal sexual orientation follow traditional norms, as well as in Myanmar, as stated in the Penal Code, Act the state. During the dictatorship LGBTI organisa- 45/1860 and there are other sections of the penal tions have, like other democratic movements, been code that can be used against LGBT people as well. affected by the censorship. In the light of recent polit- Furthermore, there is no hate crime or anti- ical development, the LGBTI movement has experi- discrimination legislation, nor recognition of sex enced some improvement regarding the right to as- change. In the chapter (8) of the 2008 Constitution, semble and the right to spread information on sexual- the article 348 that relates with the non-discrimination ity and gender variety. An important step was taken fails to include “sexual orientation and gender identi- when the International Day Against Homophobia and ties”. Transphobia (IDAHO) were celebrated openly for the first time inside Myanmar on May 17, 2012. The cel- Regarding the Myanmar Human Rights Commission, ebrations that took place in both Rangoon and Man- there is still work to do to make it LGBTI-inclusive. dalay were described by the organisation HREIB as The commission is supported by Swedish Raoul Wal- “a momentous occasion for those involved and a sig- lenberg Institute, but so far no attention has been nificant indicator of the change that has happened in given to LGBTI issues. the past year.” Regional or international human rights instru- In 2013, Aung San Suu Kyi, leader of LND, spoke ments about the situation of LGBTI persons in Myanmar at UN Special Rapporteur on the situation of human the International Congress on AIDS in Asia and the rights in Myanmar in 2014 urged the government of Pacific, saying that criminalisation of homosexuality Myanmar to ensure that new legislation combats and was hampering efforts to treat HIV. The fact that does not increase discrimination against LGBTI Aung San Suu Kyi finally spoke on LGBTI matters community, to be in full compliance with the obliga- was of value and recognition for the movement. tions of Myanmar under the CEDAW and the Con- vention on the Rights of the Child. Needs of LGBTI persons in Myanmar are identified by the LGBTI organisations as: to be reached by re- Myanmar has still not ratified a number of interna- source materials on human rights and health issues tional conventions, such as the Convention Against in their own languages, Enabling laws that protect Torture, the International Covenant on Economic, LGBTI persons from discrimination and violence and Social and Cultural Rights (ECOSOC) and the Inter- that promote equality and the need of access to national Covenant on Civic and Political Rights, Health and Human Rights Education information. (CCPR) which would help protect the human rights of the LGBTI community as well as all people of Myan- The Asian Human Rights Commission has ex- mar. pressed concerns over the police violence against transgender persons that commonly taken place In 2011, The Human Rights Council adopted a reso- across the country. Especially transgender persons lution (A/HRC/27/L.27/Rev.1), on sexual orientation are affected by violence and arbitrary arrests of po- and gender identity and has since addressed LGBTI lice. rights in different forums. This could be used as an advocacy tool.

There was an attempt to include writings of LGBTI in Violence against LGBTI persons is often based on the ASEAN Human Right´s declaration, a joint decla- non-conforming gender identity or sexuality. Lesbi- ration by the Governments of the Member States of ans with masculine expression, transgender persons, the Association of Southeast Asian Nations FTM, are at risk of being raped and others that have ("ASEAN"). The text passed the draft but was re- non-conforming gender expressions risk violence. moved in the final version. The ASEAN principles are LGBTI persons are at risk of coming under scrutiny marked by of non-interference and consensus deci- by health care workers who are both ignorant about sion-making and reluctant states can thus have great and biased against sexuality or gender identity. influence of the final result. LGBTI organisations and activists throughout the country report that abuse and violence is regularly perpetrated against LGBTI people on the basis of Sexual and Reproductive Health and their sexual orientation and gender identity. Rights and HIV/AIDS The LGBTI movement sees a problem that HIV/AIDS work over a long time has highlighted the situation of The National Strategic Plan on HIV and AIDS, My- MSM (men who have sex with men), which has con- anmar 2010–2015 addresses the work of MSM as a nected LGBTI persons with disease in a negative target group, which is an important statement by the way. The LGBT community in Myanmar is focusing government and opens up for support to work with on a more rights based approach, promoting LGBTI HIV-prevention as well as to other measurements of gender identities to be socially and politically recog- rights of MSM and LGBTI-persons. Intervention pro- nised, empowering non-LGBTI stakeholders to ad- grams reach mainly those who are open with their dress the issue with confidence and collaboratively sexual practices. There is a need to know more hold dialogue with the government to guarantee about the hidden population, like men who have sex equality and rule of law in the country. Interventions with men that are married and conceal it from their to reduce stigma and discrimination and create a wives. more enabling environment for the HIV prevention Migrants are generally vulnerable to exploitation and among key affected populations are on-going but harassment by both employers and authorities, but need significant political support. the LGBTI group has not been visible and thus neglected by social outreach. Their situation has not been widely acknowledged and few programs have Civil society organisations and institu- been carried out. As a result, LGBTI migrants are tions active in LGBTI field very vulnerable to social discrimination and health problems, particular sexually transmitted diseases Equality Myanmar (EQMM), formerly known as the and HIV/AIDS, and exposed to harassment in their Human Rights Education Institute of Myanmar daily life. (HREIB), is a non-governmental organisation that facilitates a broad range of human rights education ac- The UNAIDS’ report ‘Global AIDS Response Pro- tivities, advocacy programs, and research projects gress’ states that targeted interventions for men who which target civil society organisations and grass- have sex with men (MSM) have grown considerably roots communities. The organisations has for many during the last five years. According to UNAIDS years worked with LGBTI rights in Myanmar with its country report 2014, the last published statistics from program ‘Colours Rainbow’, at first in exile, but in re- 2013 indicated prevalence in the sentinel group of cent years through outreach projects inside Myan- MSM as 10.4% which was an increase from 7.8% in mar. There is also a magazine, TV programs and a 2011 and the number of MSM reached by prevention website that are produced within the program ‘Col- decreased in the reporting period. ours Rainbow’. Rainbow TV and Rainbow Magazine: http://tvnews.colorsrainbow.com/O. Over 400 partici-

pants from LGBT communities in Myanmar and My- • Could Sweden do more to seek strategic alliances anmar border areas have attended CR’s LGBT rights and synergies with other donors and international trainings and follow-up discussions. In 2012 and ear- organisations that have LGBTI as a key interest? ly 2013, Colours Rainbow transitioned inside Myan- E. g. UN, EU, US Netherlands. mar as the secretariat of Myanmar’s LGBT Rights • Could Sweden do more to include LGBTI persons Network, established in November 2012. The net- and their organisations in local democracy, peace work is comprised of representatives from 16 areas building and human rights efforts? Support could throughout Myanmar and over 25 Burmese LGBT for example be directed towards participation of CBOs. Colours Rainbow oversees the four working LGBTI persons/organisations in mainstream HR groups’ and 23 focal points’ implementation of advo- and CSO Forums and ASEAN People Forums. cacy projects, capacity building, trainings, and other network activities. The Swedish Foundation for Hu- • Could Sweden do more to include LGBTI organi- man Rights (MR Fonden) has a long-time engage- sations in CSO capacity development pro- ment with the movement in Myanmar. grammes so that they can improve their effectiveness, networking, advocacy and service provi- Human Rights Education Institute of Myanmar (HREIB): http://www.hreib.com/ sion? • Could Sweden do more to promote inclusion of ILGA Asia, organising a number of LGBTI organisa- LGBTI rights monitoring and reporting in the sup- tions in the region: port to human rights institutions and organisa- www.ilga.org/en/organisations/ILGA ASIA tions? Especially in relation to the work of the Human Rights Commission? What Sweden can do – 9 questions to • Could Sweden do more to include LGBTI issues discuss in the support to SRHR and GBV initiatives? Within the broader context of support to the work for • Could Sweden do more to promote inclusion of increased respect for human rights, freedom of ex- LGBTI rights in joint donor programmes for exam- pression and accountability Sweden has a great op- ple the EU initiative focussing on training of the portunity to include issues related to the rights of police force? LGBTI persons. When addressing LGBTI in a non- supportive government context as Myanmar, it is • Could Sweden facilitate other networking oppor- very important to consult LGBTI organisations in the tunities for activists, such as participation in ILGA country to make sure not to overrule their agenda. Asia meetings, ASEAN SOGIE Caucus LGBTI organisations and non-LGBTI groups can (http://aseansogie.wordpress.com/) or reach to bring the issue to the government and have effective core members of the ASEAN countries to stay dialogue, but need empowerment and support from updated and provide support to LGBTI organisa- lawyers, parliamentarians, local authorities etc. tions or the caucus? Questions to consider: For further advice on dialogue regarding LGBTI is- • Could Sweden do more to stay updated on the sues, download the Sida ‘Human Rights of Lesbian, legal and security situation and the judgements Gay, Bisexual and Transgender persons - Conduct- and priorities of the LGBTI movement? ing a Dialogue and the Ministry of Foreign Affairs Dialogue brief. Also refer to the EU tools and guide- • Could Sweden do more to include LGBTI rights in lines in the reference list.More specific advice and the dialogue with government on human rights? support measures, as well as contact information to Invite them to cultural, social and professional mentioned groups, can also be provided through events and networks (as was done in Vietnam)? ILGA or RFSL, should the Embassy wish for a dialogue.

References General references ILGA, State-sponsored Homophobia: A world survey of laws prohibiting same sex activity between consenting adults. (See updated version at www.ILGA.org) MSM Global Fund http://www.msmgf.org RFSL, LGBT in Development, An introduction in how to include LGBT in programming in development: http://www.rfsl.se/public/LGBT_in_development.pdf Sida ‘Human Rights of Lesbian, Gay, Bisexual and Transgender persons - Conducting a Dialogue and the Ministry of Foreign Affairs Dialogue brief. EU news, tools and guidelines: http://eeas.europa.eu/human_rights/lgbt/index_en.htm The EU Guidelines (2013): Guidelines for supporting LGBTI persons' human rights

Specific references Asian Human Rights Commission, 2013, Burma Police torture of gay and transgendered people http://www.humanrights.asia/news/ahrc-news/AHRC-STM-137-2013 Equality Myanmar, 2014, Annual report 2013, http://books.equalitymyanmar.org/images/download/reports/EQMM%202013%20Annual%20Report.pdf UNAIDS 2014, Country report, http://www.unaids.org/en/dataanalysis/knowyourresponse/countryprogressreports/2014countries/MMR_narrat ive_report_2014.pdf

www.sida.se The Rights of LGBTI people in Western Balkans

December 2014

General situation of LGBTI people due to insufficient trust in the justice system. Hate speech against LGBTI persons is also widespread Lesbian, Gay, Bisexual, Transgender and Intersex across the Western Balkans countries, and it is not (LGBTI) persons in Western Balkans (Serbia, Mon- uncommon that politicians and other state represent- tenegro, Macedonia, Bosnia and Herzegovina, Alba- atives despite existing anti-discrimination legislation nia, Kosovo) are living in an environment, character- often use discriminatory speech against LGBTI per- ised by strong homo and transphobia, discrimination sons. The European Parliament in a report 2013 not- and violence. In such circumstances, the everyday ed “with concern” that LGBT-rights activists and hu- life experiences of LGBTI people are marked by fear man rights activists who stress the importance of and invisibility, within private as well as public dealing with the past are regular targets of hate spheres, exposed to pressure of secrecy, job dis- speech, threats and physical attacks. crimination, and social isolation. Surveys have shown that acceptance in society is low and prejudice high Freedom of assembly by the LGBTI community is towards LGBTI persons continuously being contested in Western Balkans countries. The Pride Parade turned violent in Bel- Violence and discrimination against LGBTI persons grade in 2010 and was subsequently banned three are widespread in the region and it is connected to years in a row, only to take place in September 2014, the violence still affecting women, ethnic minorities after the Constitutional Court in 2013 ruled that the and political opponents since the West Balkan 2011 Pride ban was unconstitutional. The Pride Pa- war/conflicts. Recent hate crime research done in rade in Montenegro in 2013 was subjected by severe countries in the region have disclosed that 70 - 80% threats and incidents but could be held, while the of LGBTI persons have been victims of physical Pride Parade in Macedonia in 2014 had to be can- and/or psychological violence but only 10 - 15% of celled due to threats. There were also attacks on the victims have decided to report attacks. Levels of public LGBTI events in Sarajevo, Bosnia- unreported violence and discrimination remain high, Herzegovina, in 2013, and attacks on an LGBTI centre in Skopje, Macedonia, in 2013 and 2014. Legal and human rights instruments Constitutional provisions and legal framework

Same-sex sexual acts Legal Prohibition of all forms of Prohibition of dis- Hate crime legislation - discrimination based on crimination in em- sexual orientation sexual orientation or ployment based on /gender identity aggra- gender identity sexual orientation vating circumstance

Albania (1995), Bosnia and Albania (2010), Bosnia FYR Macedonia Albania (2013), Bosnia- Herzegovina (1998-2001)1, Kosovo and Herzegovina (2009), (2005) Herzegovina (2013)**, (1994), FYR Macedonia (1996), Kosovo (2008), Montenegro (2013), Serbia Montenegro (1977), Serbia (1994). Montenegro (2010), Serbia (2013) (2009)

Reference: ILGA, 2014, OSCE/ODIHR 2014

1 The three parts decriminalised homosexuality in three different years, by enacting a new Criminal Code that introduced an equal age of consent: Federation of B&H (1998), Republika Srpska (2000), Brcko District (2001) ** Only regarding bias-motivated violence and not hate speech

Western Balkans countries have decriminalised Gender Identity Laws do not exist in Western Balkan same-sex sexual acts since the independence decla- countries. Even though gender reassignment proce- rations. The work towards harmonisation with EU dures are allowed, it is completely unregulated by standards and the negotiations of becoming EU- law, making legal recognition of the sex change high- members have encouraged the development. Most ly variable, uncertain, depending on arbitrary deci- countries now have adequate national legal frame- sions and variable procedures by relevant officials, works for the protection against discrimination of which often take a great deal of time and involve dif- LGBTI persons, only with Macedonia still far behind ferent kinds of humiliation and abuse. in this respect. However, these laws are not adequately implemented. Although circumstances vary Regional/international human rights instruments by country, generally governmental institutions re- Western Balkans countries have ratified most of the main uncommitted to improving the institutional and international human rights conventions. The process legal mechanisms that protect minority rights in gen- of EU accession has proven positive for the legisla- eral and LGBTI persons’ human rights in particular. tion on sexual orientation and gender identity or ex- Politics are still influenced by religious and national- pression, and for the LGBTI communities in Western istic tendencies. According to women´s, LGBTI and Balkans countries. The European Parliament is in- other human rights advocates, the nationalistic cluding observations and recommendations regard- movements are one of the obstacles that prevent a ing LGBTI rights in its annual country reports. Both more progressive development. EU and the Council of Europe are monitoring the sit- Positive steps have however been made in Albania uation of LGBTI rights in Western Balkan. Further- and Montenegro where Criminal Code was amended more the Universal Periodic reviews (UPRs) is an in- to punish hate speech. Albania´s elected government strument to engage governments in dialogue on in 2014 has taken considerate steps towards a num- LGBTI rights. ber of legislative reforms regarding LGBTI rights. In The Organisation for Security and Co-operation in Montenegro, the government in 2014 adopted a “five- Europe, OSCE, has a potential for raising issues on year Strategy for improving the quality of life of LGBT LGBTI rights. The International Lesbian and Gay As- persons”, in line with negotiations to join the Europe- sociation (ILGA) Europe notes that “the OSCE’s rele- an Union. vance to LGBT rights has increased in the past year In contrast, hate speech still remains unregulated in as the OSCE has taken on an expanded mandate in Bosnia and Herzegovina, Macedonia and Kosovo. the area of tolerance and non-discrimination”. In Hate crime still remains to be introduced as an ag- 2009, The 17th Ministerial Council of OSCE adopted gravating circumstance in Bosnia and Herzegovina a decision on combating hate crime which included and Macedonia, while in other countries implementa- sexual orientation and gender identity in the definition tion of hate crime provisions in the laws remains lim- of hate crimes, acknowledging that hate crimes are ited or non-existent. criminal offences committed with a bias motive. Fol- lowing that, OSCE includes reports on crimes moti- Same-sex couples are completely invisible in West- vated by bias against LGBT people in its annual re- ern Balkans countries legislation and other ports on hate crimes. Serbia is the only country of the measures. Problems faced by same-sex couples are western Balkan countries to report on LGBTI biased ignored by the states as though same-sex couples motivated hate crimes to the OSCE Office for Demo- do not exist, leaving such couples in a discriminatory cratic Institutions and Human Rights (ODIHR). position compared to different-sex couples (both married and unmarried) in respect to social security, With a strong position in European countries and in health insurance, pension, inheritance, parenting, EU, ILGA Europe is an important regional actor. It etc. has a number of member organisations from West- ern Balkan countries. ILGA Europe produces annual monitoring reports on LGBT rights in all European

countries, and has also supported a regional cooper- Civil society organisations and institutions ation project with a number of organisations on active in the LGBTI field Western Balkans. However, the role and capacities of national LGBTI organisations in the Western Bal- Throughout the Western Balkan countries, freedom kans are still in need of development, particularly in of association is enforced, and LGBTI organisations monitoring the implementation of legislation and poli- are able to operate legally. However, these organisa- cies, and advocacy efforts towards national and EU tions, the events organised and the individual activ- institutions. ists in the organisations are often faced with threats and violent attacks. In many cases, there have been Sexual and Reproductive Health and Rights a lack of protection from the state and in the past and HIV/AIDS years the attacks have been very violent or included extremely violent threats. This makes the work of the LGBTI people in Western Balkans countries do not LGBTI organisations risky and difficult. have access to adequate health protection. There are either none or very little training for health pro- Challenges and opportunities in securing LGBTI fessionals and there is lack of relevant information in rights in the region of Western Balkans are similar, medical text books about sexual orientation and gen- and although experience and successes in different der identity. countries of the Western Balkan might differ, regional cooperation among national LGBTI organisations has In all Western Balkan countries, there is still forced been strong and has provided significant opportuni- sterilisation when going through gender reassign- ties and positive results in terms of advocacy, ment processes which constitutes abuse, as well as knowledge and best practice sharing and joint cam- abusive and humiliating procedures when trying to paigning. prove one’s gender, including forensic examinations, observations and measurements of genitalia. With further development of regional cooperation among national LGBTI organisations in Western Bal- When it comes to HIV/AIDS, the situation in the dif- kan, a stable and continuous platform for networking ferent countries varies to some degree. Generally and leveraging (inter) regional cooperation could be knowledge of HIV/AIDS and STI is low. Apart from secured. Building and implementing strategic ap- lack of knowledge, factors influencing MSM's risk for proach towards a unified, streamlined approach to infection include low risk perception, inconsistent engaging with the instruments of EU accession could condom use, and reluctance to access services, and be one approach to take. not at least, discrimination. UNAIDS reports indicate that Men who have sex With Men are a group at high Well-established Western Balkans LGBTI organisa- risk of contracting HIV, and that there is an increas- tions that work both regionally and nationally are: ing trend of newly diagnosed HIV infections in this Labris, Belgrade, Serbia, http://labris.org.rs group. There is a fear that without external support, discriminated groups will fall behind in prevention Qesh, Prishtina, Kosovo, http://www.qeshkosova.org/ programmes. Outreach efforts and adequate access LGBT Forum Progress, Podgorica, Montenegro to health care services continue to be of great importance in HIV/AIDS treatment and prevention. Pink Embassy, Tirana, Albania, http://www.pinkembassy.al/ Across Western Balkan countries persons with HIV/AIDS face high levels of stigmatisation by health Aleanca LGBT, Tirana, Albania, care professionals, as well as by the general society. http://www.aleancalgbt.org Further sensitisation of health care professionals is Sarajevo Open Centre, Sarajevo, Bosnia and needed, as well as increasing capacities of CSOs Herzegovina, http://www.soc.ba and other organisations that offer free counselling and testing.

Other LGBTI organisations that are focused on na- ralistic civil society. The strategy specifically men- tional work are: tions LGBTI rights as a focus area. Gayten LGBT, Belgrade, Serbia When addressing LGBTI in non-supportive government context such is the situation in some parts of Queeria, Belgrade, Serbia Western Balkans, it is important to consult LGBTI or- GLIC, Belgrade, Serbia ganisations in the region to make sure not to over- Gay Straight Alliance, Belgrade, Serbia rule their agenda. Questions to discuss: • IDAHO, Belgrade, Serbia Could Sweden do more to stay updated on the legal and security situation and the judgements Belgrade Pride, Belgrade, Serbia and priorities of the LGBTI movement? GOOSI, Belgrade, Serbia • Could Sweden do more to offer protection to ac- Rainbow, Šabac, Serbia tivists, attend court cases and contribute to protection of organisations under threat? Come Out, Novi Sad, Serbia • Could Sweden do more to support the efforts to Novi Sad Lesbian Organisation, Novi Sad, Serbia promote legal reform processes that would regu- Okvir, Sarajevo, Bosnia and Herzegovina late e.g. same-sex unions and sex reassignment procedures, or adoptions of hate-crime legisla- BUKA, Banjaluka, Bosnia and Herzegovina tions? Queer Montenegro, Podgorica, Montenegro • Could Sweden do more to support the govern- OMSA, Tirana, Albania ments to adhere to an effective implementation Subversive Front, Skopje, Macedonia of existing legislation regarding anti- discrimination and hate-crimes? LGBT United, Skopje, Macedonia • Could Sweden do more to support the judiciary Coalition for Sexual and Health Rights of Marginal- to better defend human rights of LGBTI persons ised Communities, Skopje, Macedonia and activists and the police force to work non- CEL, Pristina, Kosovo discriminatory? • Could Sweden do more to support LGBTI report- What Sweden can do? – 10 questions to dis- ing in Universal Periodic Reviews (UPR), or re- cuss porting to OSCE and Council of Europe, e.g. regarding the government´s collection of data of Within the broader context of support to democracy, hate crimes? human rights and gender equality in Western Balkan, Sweden has a great opportunity to include issues re- • Could Sweden do more to support establishment lated to the rights of LGBTI persons and their access and functioning of regional cooperation platforms to justice. The Swedish strategy for Western Bal- for LGBTI organisations? For example facilitation kans, among other things, aims at the delivery of of communication and contacts between LGBTI higher quality public services, based on principles of organisations at national, regional and interna- non- discrimination and equal rights and with less tional levels? corruption; More efficient judicial systems that guar- • Could Sweden do more to support development antee the right to a fair trial and include a developed of the organisational capacities of LGBTI organi- sentencing system in accordance with European sations so that their effectiveness and networking standards; a reduction in gender-based violence, can be improved? hate crimes and human trafficking; a more democratic and effective police and a stronger and more plu-

The Swedish Strategy for Western Balkans aims at tries. Building regional networks between the Balkan working with a reduction in gender-based violence, LGBTI organisations could strengthen the voice of hate crimes and human trafficking. LGBTI persons civil society and be an effective tool to holding the are a group that is highly affected by this but not al- governments accountable to their commitments. ways included in efforts by national plans or CSOs • Could Sweden do more to use the processes of working on gender based violence. EU accession processes to monitor commit- • Could Sweden do more to promote inclusion of ments made regarding non-discrimination and LGBTI persons in the supported initiatives com- LGBTI rights? batting gender-based violence and human traf- For further advice on dialogue regarding LGBT is- ficking? sues, download the Sida ‘Human Rights of Lesbian, Presently, discrimination within several sectors, la- Gay, Bisexual and Transgender persons - Conduct- bour market included, is a factor that strongly con- ing a Dialogue and the Ministry of Foreign Affairs tributes to the marginalisation of LGBTI persons, and Dialogue brief More specific advice and support puts them at risk of poverty and exclusion of demo- measures, as well as contact information to men- cratic processes. They often have obstacles in ac- tioned groups, can also be provide through ILGA or cessing civil/ political as well as social/economic RFSL, should the Embassy wish for a dialogue. Also rights. The process of EU accession has proven refer to the EU tools and guidelines in the reference positive for enhancing some rights and strengthening list. the LGBTI communities in Western Balkans coun-

References Kvinna till Kvinna, 2014, Folk, familj och fosterland –Nationalismens konsekvenser för jämställdhet. http://kvinnatillkvinna.se/wp-content/uploads/qbank/7f2cba89a7116c7c6b0a769572d5fad9.pdf European Parliament resolution of 23 May 2013 on the 2012 Progress Report on Bosnia and Herzegovina (2012/2865 RSP) The European Parliament´s intergroup of LGBTI rights: http://www.lgbt-ep.eu EU news, tools and guidelines: http://eeas.europa.eu/human_rights/lgbt/index_en.htm The EU Guidelines (2013): Guidelines for supporting LGBTI persons' human rights. ILGA-Europe, 2014, Annual Review ILGA, State-sponsored Homophobia: A world survey of laws prohibiting same sex activity between consenting adults. (See updated version at www.ILGA.org) OSCE, 2009, DECISION No. 9/09 COMBATING HATE CRIMES OSCE/ODIHR, 2014, Overview of Anti-Discrimination Legislation in the Western Balkans, http://www.osce.org/odihr/115605?download=true RFSL, LGBT in Development, An introduction in how to include LGBT in programming in development: http://www.rfsl.se/public/LGBT_in_development.pdf Sida ‘Human Rights of Lesbian, Gay, Bisexual and Transgender persons - Conducting a Dialogue and the Ministry of Foreign Affairs Dialogue brief UNAIDS; 2014, Country reports Serbia, Montenegro, Macedonia, Bosnia and Herzegovina, Albania, Kosovo

The human rights of LGBTI persons have been a Swedish government priority since 2009. As a service to staff, guidance notes have been prepared to provide basic information about the situation of this (often forgotten) group and inspire discussions on what Sweden could do to better include LGBTI rights in diplomacy and programming.

www.sida.se The Rights of LGBTI people in Eastern Europe Partnerships

December 2014

General situation of LGBTI people LGBTI people in the EU Partnership countries, Ar- propaganda’ laws was considered and even adopted menia, Azerbaijan, Belarus, Georgia, Moldova, and by regional and national authorities in Moldova (2012 Ukraine, continue to face discrimination and violence – 2013), by national parliaments in Ukraine (2012 – based on their sexual orientation or/and gender iden- 2013) and Armenia (2013); however, the attempts tity and are deprived of the access to the fundamen- have failed so far owing to the international pressure. tal human, civil and political rights, as well as to basic Common perceptions in these countries are that any services in comparison with other non-LGBTI citizens expression of non-heterosexual orientations and of their countries. gender non-conforming behaviour is harmful to children under 18, a perception that these laws enforce After the collapse of the Soviet Union in 1991, 15 re- at the same time build upon. publics that comprised that geopolitical union declared independence. Six of them – Armenia, Azer- In all six countries LGBTI rights activists, individuals baijan, Belarus, Georgia, Moldova, and Ukraine – and gay-friendly organisations are subjected to ver- became members of the EU Eastern Partnership ini- bal and physical assaults for their human rights activ- tiative inaugurated by the European Union in 2009. ity or even existence. To mention, in Armenia, a gay- Despite the decriminalisation of same-sex sexual friendly bar in Yerevan was attacked with a fire bomb acts in all of them between 1991 and 2003, societies in 2012; recently, one activist in Azerbaijan has in respective states maintain the Soviet-influenced committed suicide and two other fled the country due perception that homosexuality is a psychological dis- to homophobic persecution; in Ukraine, KyivPride or- order and crime. This mentality is enforced by the re- ganisers were physically attacked by the far-right ex- ligious dogma, both Christian Orthodox and Islamic, tremists in 2012; in Georgia, IDAHO rally, its organ- that opposes LGBTI equality with the concept of ‘tra- isers and participants were attacked by several thou- ditional values’ based on the understanding of ‘tradi- sands of aggressive Christian Orthodox clergymen tional family’ as a union between a cis-gender man and extremists in May 2013; in Moldova, LGBTI ac- and cis-gender woman. tivists have received threats and the country’s only LGBTI organisation’s office has been attacked with Russia has an important geopolitical influence in the eggs by far-right extremists in 2014. region, with the Russian political, economic and cultural presence. Generally, in all of the six countries, In Belarus the situation is of LGBTI persons is even mass media outlets cover or report on LGBTI issues worse, because verbal, psychological and physical predominantly from the sensational or scandalous violence and persecution of LGBTI activists are per- perspective and not from the perspective of a funda- petrated both by extremists and state authorities, in- mental human rights issue. The situation has wors- cluding police who detain and torture LGBTI activists ened after the adoption of discriminatory so-called or force them to flee the country. The high level of ‘anti-homosexual propaganda’ laws in Russia on the homophobia and transphobia perpetuated in Arme- regional and federal levels, beginning from 2011. The nia, Azerbaijan, Belarus, Georgia, Moldova, and effects of this legislation has crossed Russia’s bor- Ukraine due to persisting stereotypes and lack of re- ders and thus, adoption of so-called ‘anti- liable information, as well as human rights and sexual education, force LGBTI individuals to remain in the

closet and lead double life.

Legal and human rights instruments Constitutional provisions and legal framework Same-sex sexual acts were decriminalised in all aforementioned countries between 1991 and 2003, and in all countries age of consent is equal for same-sex and opposite-sex sexual acts.

Same-sex sexual acts Prohibition of all Prohibition of Provides hate crime leg- Provides or Legal forms of discrimina- discrimination in islation where sexual ori- recognise sex tion based on sexual employment entation /gender identity re-assignment orientation, gender based on sexual are considered an aggra- identity and expres- orientation, vating circumstance sion

Armenia (2003), Azer- Georgia (2014) Moldova (2012) Georgia (2012) Azerbaijan, Bel- baijan (2000), Belarus arus, Georgia, (1995), Georgia and Ukraine. (2000), Moldova Moldova* (1995), and Ukraine (1991)

* trans individuals seeking name and gender marker change in their identification documents can do so through a supreme Court of Justice’s Recommendation, in Moldova

None of the states provides legal recognition and sexual orientation is explicitly prohibited only in em- regulation of same-sex relations and adoptions de- ployment through the Law on Ensuring Equality spite the de facto existence of same-sex families who adopted in 2012. In Ukraine, the anti-discrimination bring up children in hostile environments. In cases of law adopted in 2013 does not include either sexual discrimination or other human rights violations, most orientation or gender identity. LGBTI persons prefer not to report them to the po- All of the six EU Eastern Partnership countries enjoy lice, other law-enforcement authorities or, some- fairly liberal legislation with regard to freedom of as- times, even to local LGBTI organisations out of fear sembly and freedom of association. In countries like that their sexual orientation or/and gender identity Georgia, Moldova and Ukraine it even complies with might be disclosed. the European legal standards. However, when it None of the Constitutions of the six states provide comes to exercising these freedoms by LGBTI explicit prohibition of discrimination on grounds of groups or individuals, authorities in the respective sexual orientation or/and gender identity, neither do state tend to obstruct or even prohibit public demon- their respective authorities apply the constitutional strations, rallies, gatherings or other forms assem- principle of equal treatment towards LGBTI citizens. blies and associations organised by LGBTI groups or However, in Georgia only, prohibition of all forms of individuals. discrimination based on sexual orientation, gender Between 2005 and 2012 Moldovan authorities identity and expression (in employment, goods and banned or demanded relocation of demonstration or- services, education, healthcare) was adopted in ganised by local LGBTI organisation, GENDERDOC- 2014. Georgia also, since 2012, provides hate crime M, during the annual Pride Festival. Only in 2013 and or bias-motivated legislation where sexual orientation 2014 did activists manage to hold Marches for Equal- and gender identity are considered an aggravating ity that were protected by the police - although op- circumstance. posed by religious fundamentalists and far-right ex- None of the six states include LGBTI issues in their tremists. In Ukraine, KyivPride march was cancelled national human rights policies or action plans. Also, in 2012 just 30 minutes prior to its beginning due to in Moldova, prohibition of discrimination based on the high risk of violence against participants by far-

right extremists; in 2013 KyivPride march took place and prevent discrimination of LGBT persons and briefly and was well protected by the special police other minorities. In 2012, during the second UPR cy- forces from counterdemonstrators; in 2014 march cle, Ukraine received four recommendations on was cancelled again after authorities said they would SOGI issues, accepting to ensure that legislation, is not be able to guarantee protection to participants. In compliant with Ukraine's international commitments Belarus, where any unauthorised public activity by under the European Convention on Human Rights human rights defenders is roughly ceased and pros- and to adopt a comprehensive anti-discrimination ecuted by state authorities, local activists attempted law, and noting the recommendation to apply the to hold several demonstrations either on the outskirts Yogyakarta principles in policy development. of Minsk or by using public transportation. In Geor- Armenia, Belarus, Georgia, and Moldova are sched- gia, the first and so far last attempt to hold a Pride uled to undergo the second UPR cycle in 2015 and rally on the 17th of May 2013 ended with casualties 2016. This provides an opportunity to engage these when thousands of Orthodox Christian activists broke countries in dialogue on LGBTI rights. through police cordon and pursued LGBTI rights activists in Tbilisi injuring at least 28 people in the process. Sexual and Reproductive Health and Rights Official registration of non-governmental associations and HIV/AIDS who work with LGBTI and/or MSM communities is According to the statistics from the UNAIDS for 2013, allowed in all EU Eastern Partnership countries ex- HIV prevalence among MSM is 2.9% in Armenia, 2% cept Belarus, where human rights defenders are per- in Azerbaijan, 6.2% in Belarus, 13% in Georgia, 5.4% secuted by state authorities. in the Republic of Moldova, 5.9% in Ukraine. In all six countries MSM are included in the National Pro- Regional/international human rights instruments gramme on Prevention and Control of HIV/AIDS and STI. All EU Eastern Partnership countries have signed the European Convention on Human Rights (ECHR) and Transgender people (including sex-workers) are in- are, except Belarus, members of the Council of Eu- cluded in HIV/AIDS prevention programs by MSM- rope and its related bodies, including the European services organisations in Armenia, Azerbaijan and Court of Human Rights (ECtHR). Thus they ought to Georgia. comply with the Council of Europe standards and re- Medically assisted insemination for single women is quirements in the field of human rights. So far, EC- legal and available in Armenia, Belarus, Georgia, tHR has released two judgements concerning viola- Moldova and Ukraine. tion of fundamental rights based on sexual orienta- Legal gender recognition procedure of trans-persons’ tion in cases ‘GENDERDOC-M vs Moldova’ and gender identity exists in Azerbaijan, Belarus, Geor- ‘Aghdgomelashvili and Japaridze vs Georgia’. gia, and Ukraine; however, it can be firmly stated that Armenia, Azerbaijan, Belarus, Georgia, Moldova, and this procedure is inadequate to the contemporary Ukraine are signatories to the Universal Declaration human rights standards and even abusive. In Arme- of Human Rights and members of the United Nations nia and Moldova there is no legal gender recognition and its related bodies and structures, including Hu- procedure in place; however, trans-individuals seek- man Rights Council and its Universal Periodic Re- ing name and gender marker change in their identifi- view mechanism. All six countries have gone through cation documents can do so through a court judge- the first UPR cycle that finished in 2011. In 2011, ment in Moldova. At the same time, in all six coun- Moldova received and accepted 11 explicit recom- tries trans-persons are required to be psychiatrically mendation concerning LGBTI issues, including rec- diagnosed with ‘transsexualism’ also known as ‘gen- ommendations to take concrete measures to raise der identity disorder’ in order to proceed with the public awareness about LGBT rights and to address name and ID gender marker change.

One of the most abusive legal gender recognition Gender and Development (Azerbaijan), Nefes LGBTI procedures exists in Ukraine. The Ukrainian Ministry Azerbaijan (Azerbaijan), http://en.lgbtaz.org, of Health Protection requires transgender people to GayBelarus (Belarus) http://gaybelarus.org, first undergo 30 to 45 days of confinement in a psychiatric institution to be diagnosed with ‘transsexual- Vstrecha (Belarus), http://www.vstrecha.by , ism’. People under the age of 18, being married, or Women’s Initiatives Supporting Group (Georgia) disagreeing with the volume of surgeries required by http://women.ge/en , law all are obstacles for legal change of gender. Identoba (Georgia) http://identoba.com , which has Sterilisation, medical (e.g. hormone replacement received a long term support from RFSU therapy), and surgical intervention (e.g. mastectomy) is compulsory for all trans-persons seeking official Tanadgoma (Georgia) http://tanadgomaweb.ge , gender reassignment in documents in Azerbaijan, which is receiving core support from RFSU Georgia, and Ukraine. In Belarus, only medical inter- GENDERDOC-M (Moldova) http://www.gdm.md vention is compulsory out of these three criteria. Insight (Ukraine) http://insight-ukraine.com.ua, Legal gender recognition, whether with or without a special procedure in place, is not available for people Gay Alliance (Ukraine) http://upogau.org/eng/ , under 18. In all six states trans-persons are allowed Nash Mir (Ukraine) http://www.gay.org.ua , to marry the person of the other gender. However, trans-persons seeking their gender identity to be le- GayForum (Ukraine) http://lgbtua.com , gally recognised may be forced to divorce their International HIV/AIDS Alliance in Ukraine (Ukraine) spouses as, for instance, it is required by law in http://www.aidsalliance.org.ua Ukraine. Mykolayiv Association for Gays, Lesbians and Bisex- Trans-persons is a most vulnerable group in the uals ‘LiGA’ (Ukraine) http://www.lgbt.mk.ua , LGBTI community in all EU Eastern Partnership Fulcrum http://www.t-o.org.ua (Ukraine) counties. They face multiple forms of discrimination on grounds of gender identity and gender expression South Caucasus Network of MSM/Trans Organisa- and other criteria such as social status, being de- tions (Armenia, Azerbaijan and Georgia) prived of family, education, employment, right to vote and freedom of movement. In general, there is huge What Sweden can do? – 8 questions to dis- societal ignorance of the sexual orientation and gen- cuss der identity matters as both are often confused. For Within the broader context of the support to strength- instance, in Azerbaijan and Armenia trans-women ened democracy, greater respect for human rights often see no other possibility than to do sex work as and a more fully developed state under the rule of they are unable to secure employment and basic liv- law in the Eastern Partnership region, Sweden has a ing conditions. great opportunity to include issues related to the rights of LGBTI persons and their access to justice. Civil society organisations active in the When addressing LGBTI in non-supportive govern- LGBTI field ment context as many of the countries operating in The biggest and most well-known organisations, op- this region, it is very important to consult LGBTI or- erating openly with web-pages are: ganisations in the country to make sure not to overrule their agenda. We for Civil Equality (Armenia), http://www.wfce.am The Swedish strategy for Eastern Europe, among PINK Armenia (Armenia), other things, aims at the delivery of higher quality http://www.pinkarmenia.org public services, based on principles of non- discrimi-

nation and equal rights and with less corruption; with LGBTI organisations? To support and moni- More efficient judicial systems that guarantee the tor upcoming UPR processes to engage with right to a fair trial and include a developed sentenc- LGBTI rights? ing system in accordance with European standards; • Could Sweden do more to support organisational a reduction in gender-based violence, hate crimes capacity building of LGBTI organisations so that and human trafficking; a more democratic and effec- they can improve their effectiveness and net- tive police and a stronger and more pluralistic civil working? society. The strategy specifically mentions LGBTI rights as a focus area. Presently, discrimination within the health sector and public sectors is a factor that strongly contributes to Taking this into consideration embassies in the re- the marginalisation of LGBTI persons, and puts them gion could discuss the following: at risk of poverty. The Swedish strategy aims at • Could Sweden do more to stay updated on the strengthening the “Delivery of higher quality public legal and security situation and the judgements services, based on principles of non- discrimination and priorities of the LGBTI movements? and equal rights and with less corruption.” • Could Sweden do more to support the judiciary • Could Sweden do more to promote inclusion of to stay firm in defending human rights of LGBTI LGBTI persons and MSM group in supported persons and activists and include LGBTI aware- SRHR initiatives, work with HIV/AIDS or other ini- ness in e.g. police cooperation? tiatives regarding e.g. health or legal recognition • Could Sweden do more to offer protection to ac- of LGBTI persons e.g. sex reassignment? tivists and attend court cases as well as contrib- • Could Sweden do more to encourage gender ute to protection of organisations at risk? based violence and trafficking initiatives to in- • Could Sweden do more to support exchange vis- clude the LGBTI population? its and programmes for organisations and activ-

ists? For further advice on dialogue regarding LGBTI is- • Could Sweden do more to encourage and sup- sues, download the Sida ‘Human Rights of Lesbian, port cooperation and synergies between LGBTI Gay, Bisexual and Transgender persons - Conduct- organisations and mainstream Human Rights or- ing a Dialogue and the Ministry of Foreign Affairs ganisations nationally and regionally? Dialogue brief. More specific advice and support measures, as well as contact information to men- • Could Sweden do more to open doors for LGBTI tioned groups, can also be provide through ILGA or organisations by inviting them to social and cul- RFSL, should the Embassy wish for a dialogue. Also tural events and include them in professional refer to the EU tools and guidelines in the reference human rights and civil society networks? list. • Could Sweden do more to seek strategic alliances and continue to bring up LGBTI rights in the dialogue with the governments, after consultation

References ILGA, 2014, State-sponsored Homophobia: A world survey of laws prohibiting same sex activity between consenting adults. (see updated version at www.ILGA.org) ILGA Europe www.ilga-europe.org ILGA-Europe Annual Review and Rainbow Map 2014 http://www.ilga- europe.org/home/publications/reports_and_other_materials/rainbow_europe European Parliament’s Intergroup on LBGT http://www.lgbt-ep.eu/ EU news, tools and guidelines: http://eeas.europa.eu/human_rights/lgbt/index_en.htm The EU Guidelines (2013): Guidelines for supporting LGBTI persons' human rights. RFSL, LGBTI in Development, An introduction in how to include LGBTI in programming in development: http://www.rfsl.se/public/LGBTI_in_development.pdf Sida ‘Human Rights of Lesbian, Gay, Bisexual and Transgender persons - Conducting a Dialogue and the Ministry of Foreign Affairs Dialogue brief. Trans Rights Europe Map 2014 http://www.tgeu.org/sites/default/files/Trans_Map_Index_2014.pdf UNAIDS Country reports http://www.unaids.org/en/regionscountries/countries/

The human rights of LGBTI persons have been a Swedish government priority since 2009. As a service to staff, guidance notes have been prepared to provide basic information about the situation of this (often forgotten) group and inspire discussions on what Sweden could do to better include LGBTI rights in diplomacy and programming.

www.sida.se The Rights of LGBTI people in Russia

January 2015

General situation of LGBTI people Over the last few years the intense concerted efforts police and journalists. An online campaign was to limit the human rights of LGBTI people have dra- launched by a group called “Parents of Russia” to matically increased. The executive, legislative and identify, disclose and force LGBTI teacher to resign. judiciary branches of government including the politi- Strong homophobic attitudes have increased in me- cians of all levels; religious leaders; traditional and dia. Almost all media are under heavy state control, online media; various civil society actors including except a very few outlets. However, even these are the so-called “parent groups” and “orthodox activ- falling under the increasing pressure from the author- ists”; nationalists and other radical groups attacked ities. Broadcast television remains the main source of the rights of LGBTI people and their supporters (par- news for the majority of people in Russia. All national ticularly their rights to freedom of assembly, expres- TV channels have been predominately exposing offi- sion and association), and contributed to an image of cial position and news. The Internet is no longer a LGBTI individuals as outcasts. This took place in the free space where one can openly express critical environment of an already existing widespread views. A new law has recently been implemented to crackdown on human rights and the rule of law, no- impose government control on the Internet, restrict- tably with the implementation of the ‘foreign agent’ ing and prohibiting access to the opposition’s web- law in 2012 that harshly limited the capacities of sites, blogs, etc. The state has been making continu- NGOs and weakened Russian civil society. The ous efforts to restrict information available on the In- adoption of a federal law prohibiting “propaganda of ternet, and control or prevent the organisation of non-traditional sexual relations among minors” (“the mass events and activities through social media. propaganda law”) in June 2013 contributed to an additional pressure on Russian civil society and led to The “propaganda law” law has not only denied an increase in violence – including inhumane and LGBTI people equal social standing but also implied degrading treatment, illegal prosecution and murder the opinion that their identities and relationships are – against LGBTI individuals and the supporters of unnatural and perverse, openly discriminates the their rights. Altogether, in such severe climate of im- LGBTI community and legitimises hate-based vio- punity human rights violations against LGBTI individ- lence against LGBTI persons. Although the discrimi- uals go unpunished. natory approach was present even before the law was adopted, the authorities now use it as a legal Politicians at the highest levels including Children's reference point for banning any LGBTI event or activ- Rights Commissioner for the President publically op- ity. LGBTI people in Russia are denied the rights to posed LGBTI persons’ human rights referring to “tra- equality and protection from discrimination, freedom ditional values”, “the family”’ and loyalty to Russian of expression and peaceful assembly. Authorities of- nation and culture. The government also gradually ten fail to prosecute perpetrators of hate crimes moved to restriction of adoptions of Russian children against LGBTI people. The “propaganda law” polar- by same-sex couples or unmarried persons in the ises Russian society and leads to inhumane and de- countries allowing same-sex marriages and partner- grading treatment against LGBTI people. It has be- ships and threatened to cancel previous adoptions by come a tool for discrimination and harassment such couples. A bill that would deprive same-sex against the LGBTI community in the country. couples of their parental rights was presented but withdrawn. A large number of LGBTI persons who are open about their sexual orientation lost their jobs, especially teachers but notably also persons in the

Legal and human rights instruments cooperation and dialogue with authorities and media. Through 2013 and 2014, the Russian government Constitutional provisions and legal framework launched an unprecedented, nationwide campaign of Although the constitution stands for equal rights for inspection of thousands of NGOs to identify the “for- all citizens, there is almost no legal protection of eign agents” and force them to register as such. In LGBTI persons in Russia. On the contrary, laws ex- June 2013, the Ministry of Justice was granted the plicitly discriminate against LGBTI persons, especial- power to register organisations as foreign agents ly the federal law banning “propaganda of non- without their consent or initial recourse through the traditional sexual relationships among minors”. This Court system. The inspections have led to fines, law provides the authorities with a simple legal refer- warnings, and prosecution of dozens of NGOs ac- ence point for banning any LGBTI event, harassing cused of failure to abide by the new regulations. LGBTI persons, limiting their possibilities to have Several Russian LGBTI organisations are already jobs, become families and parents. However, so far listed as “foreign agents” or accused of carrying out the law is mostly used as a preventative measure to such role. ban public assemblies of LGBTI activists and to prevent individuals and organisations to advocate for In January 2015 a new law on “undesirable foreign LGBTI rights or even be open about the existence of and international organisations” was proposed and LGBTI persons. Warning notes and fines have so far adopted in the first reading. According to a new bill been issued in a few cases that were brought to any foreign or international organisation “who poses court. Due to Russia’s influence in the region, the law a threat to the defence capacity and security of the has unfortunately also impacted on attitudes and pol- state or to public order, public moral or to public icies in the whole region. The similar law passed the health” can be designated as undesirable. Any indi- first reading in parliament, in Kyrgyzstan. There are vidual working for such organisation can be subject also attempts in other countries on the post-Soviet to an administrative fine. This law harshly narrows space to adopt similar legislation as both political and the capacity of civil society to work with human rights religious leaders are playing an important part in issues and prevents international organisations from these negative developments. its support and work in Russia. Another legislation which is negatively impacting the Regional and international human rights instru- work for LGBTI rights is the “Russian foreign agent ments law” adopted in 2012, imposing an obligation for non- In 2013, the Russian Federation was reviewed during governmental organisations (NGOs) receiving exter- the UN Universal Periodic Review process. Russia nal funding and involved in “political” activities to reg- rejected all recommendation from UPR that were re- ister as “foreign agents”. The law does not clearly de- lated to the abolition of the “propaganda law” and to fine what exactly the “political” activities constitute, the prevention of arbitrary limitations to freedom of and is widely interpreted by law enforcement officials expression and peaceful assembly. However, the as including human rights advocacy, raising aware- Russian authorities agreed to “prevent discrimination ness or any other activity that hypothetically opposes based on sexual orientation and gender identity”, but the official political standpoint. The law demands it remains unclear how the state will act to implement those foreign-funded NGOs for more detailed inform- this. In February 2014, UN Special Rapporteurs on ing of the purpose of their expenditures, tightening Freedom of Opinion and Expression, on Human the reporting responsibilities of their activities. NGOs Rights Defenders, on Cultural Rights, and on Right to are forced to redirect physical and financial re- Health, issued a joint statement expressing concerns sources to manage increasing bureaucratic obliga- about the “propaganda law” in their respective fields. tions, and being prevented from performing their hu- Furthermore, in 2012, the UN Human Rights Com- man rights work. The law also obligates NGOs to mittee found that the “propaganda law” in Russia vio- display the label “foreign agents” on their websites lates Article 19 (2) on the right to freedom of expres- and all publications, bringing even more obstacles to sion and the Article 26 “prohibition on discrimination

in the International Convention on Civil and Political services, which increases the risk of further HIV Rights”. In 2010, the European Court of Human spreading. There is little reliable data on HIV preva- Rights fined Russia for banning Pride parades in lence amongst Men who have Sex with Men (MSM), Moscow on grounds of public safety. The European but numbers around 4-10% are indicated. The cov- Court of Human Rights has also stated that Russia erage of MSM by HIV prevention programmes is low. has violated the rights to freedom of expression (arti- These programmes reach around 16 % of MSM pop- cle 10) and non-discrimination (article 14) guaran- ulation. teed under the European Convention on Human Rights” for administrative prosecution and fining per- Civil society organisations and institutions sons for showing posters “Homosexuality is normal” active in LGBTI field and “I am proud of my homosexuality” outside of a There are only a few officially registered NGOs in school. Russia that are focusing on LGBTI rights. One of the During the Winter Olympics in Sochi, Russia, the biggest organisations is Russian LGBT Network, with United Nations secretary-general, Ban Ki-moon, its HQ located in St. Petersburg. It has member or- made a speech condemning the attacks on the ganisations from over 20 other regions across Rus- LGBTI community as a consequence of the “propa- sia. Russian LGBT Network runs a 24/7 toll-free hot- ganda law”. He did not specifically refer to Russia’s line that provides support to the Russian LGBTI new laws, but his speech carried symbolic refer- community. The volunteers working there are trained ences. as crisis centre and hotline operators to provide legal help and counselling. Other organisations are not Sexual and Reproductive Health and Rights mentioned here to protect their security. and HIV/AIDS Due to the “foreign agents law” it is now very difficult People living with HIV/AIDS often encounter discrim- for the LGBTI organisations to attract funding and re- ination in Russia. A federal AIDS law includes non- ceive foreign donations. Many organisations fear vio- discrimination provisions, however it is rarely en- lent attacks and hate crimes on the grounds of sexu- forced. Those who live with HIV/AIDS are often al- al orientation and gender identity against their mem- ienated from their families, employers and people bers. LGBTI activists are often attacked in their offic- within the public health sector. es, at demonstrations, in courts, police stations and in the public places. Homophobic groups have or- Due to the recent enforced “propaganda laws” in ganised themselves via social media to harass and Russia it has become much more difficult to provide assault LGBTI people. Law enforcement authorities HIV services to LGBTI persons. This can lead to seldom prosecute those perpetrators who commit worsening the situation of the HIV epidemic in the brutal attacks LGBTI activists have been routinely country. The discrimination and stigma towards the prevented from holding public meetings in Russia for LGBTI community bring harm to their access to pub- years. Authorities always decline their applications to lic health services. LGBTI people seldom seek HIV- hold public peaceful events on the grounds of the in- prevention or treatment because they fear they might ability to ensure participants safety. Law enforcement be exposed to ridicule, violence or arrest. In Moscow, authorities and homophobic groups use the “propa- an HIV clinic had to close down because the clients ganda law” to justify harassment against LGBTI ac- and staff felt unsafe. The World Health Organisation tivists, disrupt their public events and prevent them (WHO) argues that the repressive “propaganda law” from doing their human rights work. disturbs the fight against HIV. WHO also reports that stigma and discrimination have probably led to significant under-reporting of contamination incidents among the LGBTI community. It also hinders the availability, access and uptake of health and social

What Sweden can do? – 9 questions to dis- • Could Sweden do more to strengthen the organ- cuss isational capacities of the LGBTI organisations so that they can improve their effectiveness and Within the broader context of support to democracy, networking – despite the present difficulties? human rights, gender equality and increased freedom of expression in Russia, Sweden has a great • Although the anti-propaganda-law makes it diffi- opportunity to include issues related to the rights of cult to write about LGBTI issues, could Sweden LGBTI persons and their access to justice. When ad- do more to support initiatives that aim at giving dressing LGBTI in a non-supportive government con- accurate information about LGBTI-issues to the text as Russia, it is very important to consult LGBTI community and others? E.g. making use of so- organisations in the country to make sure not to over- cial events, cultural events, sports events, ex- rule their agenda. Questions to consider and dis- change programmes etc. cuss: • Could Sweden do more to promote inclusion of • Could Sweden do more to stay updated on the gay, lesbian, trans and intersex persons and legal and security situation and the judgements MSM group in the supported initiatives of gender and priorities of the LGBTI movement? equality? • Could Sweden do more to offer protection to ac- • Could Sweden do more to encourage gender tivists and attend court cases and keep contrib- based violence initiatives to include the LGBTI uting to protection of organisations at risk? population? Trafficking initiatives? • Could Sweden do more to seek effective strate- For further advice on dialogue regarding LGBTI is- gic alliances (e.g. within EU) and continue to sues, download Sida’s Human Rights of Lesbian, bring up LGBTI rights in the dialogue with the Gay, Bisexual and Transgender Persons - Conduct- Russian government? ing a Dialogue and the Ministry of Foreign Affairs Dialogue brief. Also refer to the EU tools and guide- • Could Sweden do more to support the judiciary lines in the reference list. to stay firm in defending human rights of LGBTI persons and activists? More specific advice and support measures, as well as contact information, can also be provided through • Could Sweden do more to encourage and sup- ILGA or RFSL, should the Embassy wish for a dia- port cooperation and synergies between LGBTI logue. Also refer to EU toolkits mentioned in the ref- organisations mainstream Human Rights organ- erence list. isations nationally and regionally? With SRHR organisations nationally and regionally?

References 2014 edition of the Annual Review of the Human Rights Situation of Lesbian, Gay, Bisexual, Trans and Intersex People in Europe, ILGA-Europe http://www.ilga-europe.org/home/publications/reports_and_other_materials/rainbow_europe GLOBAL COMMISSION ON HIV AND THE LAW UNDP, HIV/AIDS, 2011, Regional Brief-Practice For the Eastern Europe and Central Asia Regional Dialogue of the Global Commission on HIV and the Law, http://www.hivlawcommission.org/index.php/regional-dialogues-main/eastern-europe-and-central- asia?task=document.viewdoc&id=19 MSM Global Fund http://www.msmgf.org ILGA, State-sponsored Homophobia: A world survey of laws prohibiting same sex activity between consenting adults. (See updated version at www.ILGA.org) RFSL, LGBT in Development, An introduction in how to include LGBT in programming in development: http://www.rfsl.se/public/LGBT_in_development.pdf Sida’s Human Rights of Lesbian, Gay, Bisexual and Transgender Persons - Conducting a Dialogue and the Ministry of Foreign Affairs Dialogue brief. The Toolkit for training police officers on tackling LGBTI-phobic crime by ILGA Europe is the result of a consultation process organised by ILGA-Europe together with member organisations and police forces that have already worked in partnership with LGBTI associations EU news, tools and guidelines: http://eeas.europa.eu/human_rights/lgbt/index_en.htm The EU Guidelines (2013): Guidelines for supporting LGBTI persons' human rights.

The human rights of LGBTI persons have been a Swedish government priority since 2009. As a service to staff, guidance notes have been prepared to provide basic information about the situation of this (often forgotten) group and inspire discussions on what Sweden could do to better include LGBTI rights in diplomacy and programming.

www.sida.se The Rights of LGBTI people in Colombia

November 2014

During the years of 2006-2012, the LGBTI – organisation Colombia Diversa registered 629 homi- General situation of LGBTI people cides of LGBT people all over the country, and be- While the constitutional rights for lesbian, gay, bisex- tween 2010 and 2012 at least 91 cases of police ual, transgender and intersex (LGBTI) persons in Co- abuse against LGBT people were reported, in both lombia have been celebrated. However, in everyday cases most of them against transgender people and life there is a lack of rule of law and poor implemen- gay men. LGBTI persons are affected by a complex tation of constitutionally granted rights. As the system of structures which expose them to violence, awareness amongst LGBTI-persons of their rights is discrimination and poverty. Human rights organisa- low, likewise the lack of service provision and infor- tions and LGBTI groups allege that on many occa- mation for this group is low. LGBTI persons belong to sions, it is the local police and members of the armed a highly discriminated group. LGBTI organisations forces that are responsible for threats, attacks, and face a difficult situation, like other human rights de- the stigmatisation of members of the LGBTI commu- fenders in Colombia. There is no public information nity and their proponents. The effect is increased about crimes against LGBT people. vulnerability, as police cannot guarantee protection. In the past, human rights organisations have noted Transgender persons are exposed to hate crimes, many cases of LGBTI persons being targets of “so- police brutality and discrimination. According to a re- cial cleansing” by para-military groups. port from the Sexual Diversity Division of the Plan- ning District Secretary of Bogotá, 98 percent of transgender persons in Bogotá have been discrimi- Legal and human rights instruments nated against or had their rights violated when it Constitutional provisions and legal framework comes to denied health services, problems with rent- ing, and discrimination regarding the access of edu- Same-sex sexual activity between consenting adults cation. In Prisons, where violence and discrimination was decriminalised in 1980. In the Colombian Consti- are high, LGBTI persons are vulnerable because of tution of 1991, article 13 states that "the State will their gender expression and sexual orientation. Also, provide conditions for the equality to be real and ef- there is a problem of not addressing discrimination in fective, and will adopt measures in favour of margin- the education systems, which places LGBTI youth at alised or discriminated groups." Following this article, a high level of vulnerability and risk to discrimination. most advances of LGBTI-persons have since been granted due to judicial processes (mainly in the Con- One of the major problems for LGBTI persons in Co- stitutional Court) rather than legislative reforms. lombia is the high level of violence towards LGBTI Since 2011, same-sex marriage is somehow allowed, persons, not at least in conflict areas. LGBTI persons following a ruling by the Constitutional Court that es- are not a high priority in work with armed conflict. tablished the family status of same-sex couples. The Historically, LGBTI persons were victimised as part court remarked the need for a "solemn contract" that of the “social cleansings” from 1988, and at that time would grant the same advantages (pension, social were tolerated by the government. Reports during security and property rights) as for registered hetero- the years have concluded that the practices have sexual couples. The National Congress did not cor- continued, with hundreds of documented murders of rect the discrepancy. Since 2013, judges can use LGBTI persons. Apart from the killings, there are their discretion on the matter, with many of them per- numerous narratives of disappearances and dis- forming same sex marriages, despite opposition from placements of LGBTI persons. conservative groups and governmental inspectors.

Following jurisprudence by the Constitutional Court Regional or international human rights instru- there is an Anti-discrimination law in employment and ments legislation that criminalises hate speech. There is the Colombia is a member of the UN and has ratified a right for transgender persons to change legal gender. number of conventions relevant for upholding LGBTI Intersexual persons have the legal right to free persons Human Rights, including CCPR - Interna- treatment, although the access is rather limited. tional Covenant on Civil and Political Rights, CEDAW In 2014, the Colombian constitutional court deter- - Convention on the Elimination of All Forms of Dis- mined that a health insurance company and a crimination against Women, and CESCR - Interna- healthcare provider violated the rights of an intersex tional Covenant on Economic, Social and Cultural teenager by refusing his petition for gender reas- Rights. signment surgery. Further, it also called upon the na- Colombian LGBTI organisations have submitted tional health ministry to develop protocols that health shadow reports the last three years to different UPR providers should follow in the case of intersex chil- sessions, e.g. The United Nations High Commission- dren (including guidelines on decision making). er for Human Rights, UNHCHR, and CEDAW. In In 2011, Colombia passed Law 1448, “Ley de Vic- 2010, the LGBTI organisation Colombia Diversa timas y de Restitución de Tierra”, a Victims Law. This submitted a Shadow Report to the United Nations law acknowledge and offer reparation to various Human Rights Committee on the Human Rights Sit- groups including LGBTI-persons, who have faced uation of the LGBT Population. In it was concluded abuse and violence in the armed conflict. LGBTI or- that the Colombian Constitution and other laws pro- ganisations welcome the inclusion of LGBTI persons vide a series of judicial and administrative provisions in this law, but the results are still to be seen in prac- that can be accessed by any Colombian citizen, but tice. The government is also discussing a legislation in practice the effectiveness of those provisions for regulating commercial sex, where the action of buy- LGBT persons is limited due to the historical discrim- ing sexual service will be criminalised but not the ination they have been subjected to. UPR processes person who sells sex. LGBTI-organisations see this are a good example of how the voice of LGBTI per- as a risk of increased stigmatising of sex workers, as sons can be raised and formally exposed to interna- the record of police and state violence is already tional forums. high. The Inter-American Commission on Human Rights Despite these legal provisions, there is a lack of rule and its Unit on the Rights of Lesbian, Gay, Trans, Bi- of law in the everyday life of LGBTI persons, espe- sexual, and Intersex Persons was created in 2011. cially in the countryside and in smaller cities. Accord- According to the IACHR’s Strategic Plan (Plan of Ac- ing to LGBTI organisations, there are not enough re- tion 4.6.i), the Unit has commenced its activities on: sources or efforts put in by the state to combat the petition and case system; providing specialised tech- discrimination of LGBTI persons. nical advice to OAS Member States and OAS political The Ombudsman for Human Rights, "La Defensoria organs; and the preparation of a regional report on del Pueblo", is an important institution to protect hu- the human rights of these persons. On November 8, man rights, with offices all over the country. Since 2013, the Inter-American Commission on Human 2014, they work specifically with LGBT rights under Rights (IACHR) created a Rapporteurship on the the delegate of women and gender issues, but the Rights of LGBTI Persons to give specialised attention delegate of constitutional issues is also an important to the work of the Inter-American Commission on the office cooperating with the LGBTI movement. The promotion and protection of the rights of LGBTI per- support for LGBTI rights can vary between local of- sons in the Americas. It has hosted a high-level pan- fices in the country, but the Bogota office is reported el of publicly elected officials who are openly gay, to be a consistent supporter of LGBT rights. lesbian, and trans-persons in Colombia.

Since 1997, OHCHR has had an office in Colombia Civil society organisations and institu- promoting Human Rights and monitoring the human tions active in the LGBTI field rights situation in order to promote and protect fundamental human rights. These are also protected in While there is a need of a safe arena for LGBTI per- the context of violence and internal armed conflict. sons, the capacity and resources of many of these The office also gives technical assistance and advice organisations are very limited. They do not have the to the Government to promote respect and ob- capacity to provide all the necessary support to the servance of human rights and international humani- LGBTI-community, as the state does not provide ad- tarian law in Colombia. Technical assistance is also equate assistance. There is a need for more infor- provided to civil society, non-governmental human mation of rights, of health services, and of education, rights organisations, and individuals to promote among other issues. There is also a need for the di- greater human rights to the general public verse cultural production of narrative stories of http://www.ohchr.org/en/countries/lacregion/pages/co LGBTI-persons lives and various situations. index.aspx. Thus far, LGBTI rights have not been in- There is a need for decentralised support that better cluded in the reporting. reach groups outside the larger cities, like smaller cities and rural areas. There is also the need for better Sexual and Reproductive Health Rights, access to health care and education on rights for HIV/AIDS, and gender based violence LGBTI communities. Some of the organisations working in Colombia are: According to UNAIDS annual report 2014 performed by the Colombian Government, the population most Colombia Diversa, based in Bogotá, is the largest vulnerable to HIV infection are transgender women LGBTI-organisation, working since 2004 with LGBTI with median crude prevalence of HIV infection in four rights. www.colombiadiversa.org cities in the study of 15%, with higher number in Bo- Other organisations are Caribe Afirmativo, based in gotá. Other studies have indicated that the preva- Barranquilla y Cartagena, with focuses in the Colom- lence amongst MSM is 20% and that this is the one bian Caribbean Region. http://caribeafirmativo.org, group contracting the most new cases of HIV infec- Santamaría Fundación based in Santiago de Cali, is tions. Due to stigma and lack of access to infor- an organisation that works locally and regionally with mation and health care, those groups are regionally, transgender persons www.sfcolombia.org as well as globally, one of the most vulnerable groups in regards to contracting HIV. Researchers ILGA-LAC is the Latin American and Caribbean Re- indicate that migration, sexual violence, sex work, gion of the International Lesbian and Gay Associa- and low rates of HIV testing are risk factors that in- tion (ILGA). http://latin_america_caribbean.ilga.org crease vulnerability for HIV in the MSM population. Another problem is the general lack of access to What Sweden can do – 7 questions to health care and SRHR education. There is a great discuss need for addressing issues such as: right to health care and information for LGBTI persons and sex Within the broader context of support to democracy, workers, psychological support to victims of gender human rights, and gender equality in Colombia, based violence, victimised persons in conflict areas, Sweden has a great opportunity to include issues re- and mechanisms to identify LGBTI-persons that are lated to the rights of LGBTI persons. LGBTI rights victims of violence. are of high relevance in the two areas of priority: 1) peace and security and 2) human rights and democratic governance. Even so within the strategic issues for dialogue of a) negotiated peace process with a broad civil participation, b) respect of human

rights, end the impunity and gender equality and c) with government, e.g. in connection with legal re- decreased discrimination and social exclusion for form programmes, human rights implementation marginalised citizens of Colombia. mechanisms, gender equality/gender based violence programmes and SRHR and HIV/AIDS LGBTI organisations represent a group that have plans? been extremely exposed amongst other human rights defenders. There is a need for strong LGBTI organi- • Could Sweden do more to encourage and sup- sations that can speak for themselves in order to port cooperation and synergies between LGBTI have the control of formulating their own agenda. organisations and mainstream Human Rights or- When addressing LGBTI issues in a country such as ganisations, HR institutions (e.g. Ombudsman) Colombia where the government still fails to protect and HR reporting processes supported? the interests of LGBTI persons, it is important to con- • Could Sweden do more to include the LGBTI sult LGBTI organisations in the country to make sure population in gender equality and gender based their agenda is not overruled. Examples of things that violence initiatives? could be discussed: • Could Sweden do more to include LGBTI organi- • Could Sweden do more to establish contacts with sations in civil society capacity development pro- the LGBT organisations to keep updated on the grammes, so that they can improve their effec- legal and security situation of LGBTI persons and tiveness, networking and outreach, (trying to al- when needed contribute to the protection of or- locate means to grass-root organisations and a ganisations and activists at risk (also reaching diverse pool of organisations working under very LGBTI persons outside Bogotá and the larger cit- different circumstances, while at the same time ies in marginalised areas like those in conflict, ru- supporting their cooperation/networking in order ral areas and areas of indigenous people and of to decrease the risk of competition and disunity). afro-Caribbean origin). For further advice on dialogue regarding LGBT is- • Could Sweden do more to include LGBT organi- sues, download the Sida ‘Human Rights of Lesbian, sations in social, cultural, professional events, Gay, Bisexual and Transgender persons - Conduct- and networks to give them as much space as ing a Dialogue and the Ministry of Foreign Affairs they are ready and willing to take? Dialogue brief. Also refer to the EU tools and guide- • Could Sweden do more in terms of supporting lines in the reference list. the cultural production of LGBTI people’s stories, More specific advice and support measures, as well through film, literature, and documentaries? as contact information to mentioned groups, can also • Could Sweden do more to seek strategic allianc- be provided through ILGA or RFSL, should the Em- es (with likeminded donors, UN and EU agen- bassy wish for a dialogue. cies) and bring up LGBTI rights in the dialogue

References

General references RFSL, LGBT in Development, An introduction in how to include LGBT in programming in development: http://www.rfsl.se/public/LGBT_in_development.pdf Sida ‘Human Rights of Lesbian, Gay, Bisexual and Transgender persons - Conducting a Dialogue and the Ministry of Foreign Affairs Dialogue brief. EU news, tools and guidelines: http://eeas.europa.eu/human_rights/lgbt/index_en.htm The EU Guidelines (2013): Guidelines for supporting LGBTI persons' human rights Specific references Asdown Colombia, et.al. 2013, From Forced Sterilization to Forced Psychiatry: a report on Violations of the Human Rights of Women with disabilities and Transgender Persons in Colombia, to the 7th/8th periodic reports of Colombia to CEDAW 56th Session. http://iglhrc.org/content/forced-sterilization-forced-psychiatry- violations-human-rights-women-disabilities-and ABColombia et.al, 2011, Women human rights defenders and the struggle for justice in Colombia http://www.abcolombia.org.uk/downloads/1202Ammended_WHRD_report2011_ENGLISH.pdf Canada: Immigration and Refugee Board of Canada 2013, Colombia: Instances of "social cleansing" in Bogo- tá and Santiago de Cali, including of sexual minorities, drug addicts and the homeless " (2011-May 2013), 7 June 2013, http://www.refworld.org/docid/52147bd04.html Colombia Diversa. 2013. Impunidad sin fin: Informe de derechos humanos de lesbianas, gay, bisexuales y personas trans en Colombia 2010 – 2011, http://colombiadiversa.org/colombiadiversa/images/stories/PUBLICACIONES_FINAL/DOCUMENTOS/INFOR MES_DH/documentos/InfDDHH%202010_2011.pdf Colombia Diversa 2010, Human Rights Situation of the LGBT Population- Shadow Report submitted to the United Nations Human Rights Committee, http://iglhrc.org/sites/iglhrc.org/files/421-1.pdf HRW, 1994, Generation under Fire- Children and violence in Colombia http://www.hrw.org/reports/1994/colombia/gener1.htm Intersex association North America, 2014, http://www.isna.org/node/21 Ministerio de Salud y Protección Social República Colombia, 2014 Seguimiento de la Declaración de com- promiso sobre el VIH/Sida http://www.unaids.org/en/dataanalysis/knowyourresponse/countryprogressreports/2014countries/COL_narrati ve_report_2014.pdf Zea Maria Cecilia, et al, 2013, Armed conflict, homonegativity, and forced internal displacement: Implications for HIV among Colombian gay, bisexual, and transgender individuals, Cult Health Sex. Aug 2013; 15(7): 788– 803, http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3732551/

www.sida.se The Rights of LGBTI people in Guatemala

November 2014

General situation of LGBTI people The predominately conservative view by religious Homo- and transphobia and human rights violations, groups and the dominant political parties on LGBTI including violence, against lesbian, gay, bisexual and rights is also reflected in the public opinion; in a sur- transgender persons are widespread and systematic vey in 2010 (Cid-Gallup) 85% of the country's popu- in Guatemala. Human Rights Defenders advocating lation opposed same-sex marriage. When the Organ- for LGBTI rights are subject to threats, harassment isation of American States (OAS) discussed same- and physical violence. The organisation OASIS has sex marriage in 2013 the Guatemala president also registered numerous attacks and murders against strongly opposed this right. members of LGBTI communities. These attacks are under-reported in the formal system because victims Mainstream media generally does not take a stand know they will face institutional discrimination, impu- for LGBTI rights and the tabloid magazines report on nity and social rejection. At least 70 LGBT persons the human rights abuses against the LGBTI persons were murdered in Guatemala between 1996 and from a sensational perspective. 2011 on the basis of their sexual orientation or gen- Against this background it is a great achievement der identity. Transgender women are particularly ex- that in 2014, the Defensoría de la Diversidad Sexual posed to this violence. Only in September 2014 three (part of the Human Rights Ombudsman) together fatal hate crimes against transgender women were with the Presidential Commission is developing a na- reported. The case of Guatemala is typical in the re- tional Public Law on LGBTI. The same office of the gion, Latin America actually accounts for almost 80% Human Rights Ombudsman has managed to influ- of the world’s reported murders of transgender peo- ence the format of the records from the Office for Vic- ple (UNDP). The Guatemalan state fails to adequate- tims of the National Civil Police. At present they also ly prevent, to investigate and/or to prosecute inci- specify acts of violence against LGBTI persons and dents against LGBTI individuals despite an equality SOGI hate crimes. clause in the Guatemalan constitution. Particularly serious is how the police have either directly perpetrated the violence or failed to investigate allegations Legal and human rights instruments of homophobic violence and discrimination. Constitutional provisions and legal framework Since 1871, it has been legal to have same-sex sex- The Shadow report to the UN Human Rights Com- ual activity in Guatemala, but the rights of LGBTI mittee (2012) states, that LGBTI persons lack access persons are neither recognised nor defended by the to healthcare and education services. They are denied the right to a fair trial and judges may refuse to legal system. Neither same-sex unions nor marriages hear controversial cases concerning rights violations are recognised; adoptions are not allowed. based on sexual orientation and gender identity be- The constitution recognises the rights and freedoms cause they fear public reprisal. Transgender women of all persons. Article 1 obligates the State to protect are denied their gender identity by the state and ex- all persons and the family. The Constitution estab- perience discrimination in access to housing, educa- lishes the right to life (article 3), the right to equality tion and the job market. Lesbian women are treated and freedom (article 4), health to all persons (articles with hostility by health staff at clinics, something that 93, 94, 95 and 100), as well as the obligation of the creates unwillingness to seek medical assistance State to guard for the health and social assistance, and increase the risks for not detecting breast, uterus social security of all inhabitants; the Health Code cervix cancer soon enough. (Decree 90-97) reaffirms the right to health (articles 1, 4, 6, 7, 18, 55 and 62) and that all habitants have

the right to respect for their person, human dignity Decree 9-2009, the Law against Sexual Violence, and intimacy. Article 46 in the constitution states the Exploitation or Trafficking (2009), aims to prevent, pre-eminence of international law over national law. repress, sanction and eradicate sexual violence, exploitation and trafficking, to attend to and protect the There are also anti-discrimination laws in the Guate- victims and to compensate the damages inflicted up- mala, but these do not explicitly mention sexual ori- 1 on them (Artícle 1). entation or gender identity . This means that there is no protection against discrimination on the basis of Regional and international human rights instru- sexual orientation or gender identity in areas such as ments employment, education, housing, health, care or ac- • Inter-American Convention against All Forms of cess to restaurants, nightclubs or similar. Discrimination and Intolerance (2013) has yet not In terms of national laws and policies, the following been signed by Guatemala. have the most direct bearing on the rights of LGBTI • Inter-American Resolution on Human Rights persons: Sexual Orientation and Gender Identity and Ex- The National Plan of Human Rights: 2007-2017 pression, (AG/RES. 2807, XLIII-O/13, June 6, (Presidential Commission of Human Rights Guate- 2013). Guatemala supported the resolution with mala) recognises the “importance of developing a the comment that “Guatemala considers that not social culture of tolerance, of respect of differ- granting legal recognition to marriage between ence…to create and promote public policies that al- persons of the same sex does not constitute a low the integration and acceptance of people of di- discriminatory practice.” verse sexual orientation in society.” • The UN Human Rights Council resolution 17/19 Decree 27-2000, General Law on Aids, guarantee Human rights, sexual orientation and gender the respect, promotion, protection and defence of the identity (July 2011) was backed by Guatemala, human rights of persons living with HIV. Of particular then member of the Council. The General As- importance are the articles 2 (protection of human sembly Declaration on sexual orientation and rights of PLWHA); 14 (ethics and confidentiality); 35 gender identity 2008 was initially not supported (attention), 36 (human rights in general); 37 (non- by Guatemala but has now been signed. discrimination) and 48 (right to health care). Gov- • ernmental agreement 317-2002 regulates the law. Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Decree 81-2002, the Law of promotion of education Women (1994), particularly relevant to human against discrimination gives the Ministries of Educa- rights abuses against lesbian women. tion and of Culture and Sports the responsibility to • promote programmes that aim to eliminate all forms As a member of UN Guatemala has ratified all of discrimination. the main international human rights instruments. Guatemalan citizens may also turn to the UN Decree 330, Labour legislation (Código de Trabajo) Human Rights Committee through procedure prohibits (Artícle 137) employers to discriminate in 1503, to the Special Rapporteurs for violations of any form due to sex, race, religion, religion, political specific human rights, to ECOSOC for women's conviction, economic situation, educational back- rights violations and use the UNESCO procedure ground or any other reason. for human rights violations in UNESCO's fields of mandate.

1 El Decreto 57-2002, que reforma el Código Penal, en el There are two Accountability mechanisms that LGBTI artículo 202 bis, establece sanciones a cualquier forma de organisation could use for the protection of human discriminación basada en motivos de género, raza, etnia, idioma, edad, religión, situación económica, enfermedad, rights for LGBTI people: discapacidad, estado civil, o en cualesquiera otro motivo, razón o circunstancia.

La Comisión Interamericana de Derechos Humanos under Guatemalan law).The lack of accurate national (CIDH), the Inter-American Human Rights Commis- statistics makes it difficult to fully call attention to the sion. Since 2012 Guatemalan LGBTI organisations problems faced by the transgender community in are granted hearing at the IACHR. Both the govern- Guatemala. The inaccessibility to health services for ment and the LGBTI movement report to the com- transgender women and high rates of violence mission on the situation of LGBTI rights and situa- against them increase their vulnerability to HIV and tion. The CIDH has special thematic sessions on the STI. situation of LGBTI rights (by country or by different The most recent report on the status of HIV preva- groups within the LGBTI community). It also has a lence in the country (Informe Nacional sobre los Pro- special LGBTI unit that receives reports on human gresos Realizados en la Lucha Contra el VIH y sida, rights abuses against LGBTI persons, facilitates March 2014) is a step forward however and has a space for dialogue and technical assistance to the special section on transgender women. It refers to member states. three smaller studies in Guatemala City (2003, 2010 Since April 2014, Defensoría de la Diversidad Sexu- and 2013) in which the latter showed a HIV preva- al, is part of the Ombudsman for Human Rights in lence of 23.8%. The study raises that one of the main Guatemala, Procuraduría de los Derechos Humanos achievements since 2011 has been the increased de Guatemala, and is responsible for the protection participation of LGBTI organisations and that the and the follow-up of the rights of LGBTI community population of transgender women has become visible and shall promote the equality, inclusion, the partici- in the work. This is a great achievement on behalf of pation and non-discrimination of the LGBTI persons. the LGBTI community. The report states that there is It is also responsible for capacity building of other no special attention to transgender women, they are governmental entities, to carry out advocacy efforts attended as MSM. Likewise there are no special in relation to LGBTI rights and to conduct research measures to increase the accessibility of health ser- on specific themes of interest in the defence of sexu- vice to transgender women or MSM. al diversity. According to this entity the LGBTI community is increasingly using the Defensoría to report Civil society organisations active in discrimination against LGBTI persons or to seek ad- LGBTI field vice. The Defensoría has also served as an interme- diary between the LGBTI movement and other gov- The LGBTI community is quite well organised in ernmental bodies in some advocacy processes. Guatemala. The 5th National Congress on LGBTI Human Rights, a joint initiative by the LGBTI organi- Sexual and Reproductive Health and Rights sations and the Ombudsman for Human Rights, was and HIV/AIDS held last August 2014 in which a national campaign against homophobia was launched. Annual Pride Guatemala has a national STI, HIV and Aids pro- marches are realised both at national and local levels gramme under the Ministry of Public Health (2011- (in 2014 the 14th Pride was organised). There are a 2015) including men who have sex with men (MSM) number of different national and local activist LGBTI and transgender women among the specific target organisations in Guatemala such as: groups. Policy planning and implementation is coor- • dinated with LGBTI organisations, including OASIS. Organización de Apoyo a una Sexuali- transgender women’s organisations. The prevalence dad Integral frente al Sida, www.oasis.org.gt was 0.6% in 2013 (UNAIDS) and 93.6% of the cases (www.facebook.com/OasisGuatemala/info) are transmitted through sexual relations. HIV preva- • REDNADS, Red Nacional de la Diversidad Sex- lence among MSM (8.9%) and for female sex work- ual de Guatemala, ers (1.1%) is recorded, but may or may not accurate- (www.facebook.com/red.nacional.9) ly reflect numbers among the population of transgender women sex workers (regarded as men

• Asociación LAMBDA, www.lambda.org.gt or ría de la Diversidad Sexual in coordination with [email protected] the LGBTI movement)? • Colectivo Amigos Contra el SIDA, CAS, • Could Sweden do more to encourage and sup- www.casgt.org port capacity building, cooperation and synergies between LGBTI organisations? How can their or- • Asociación Gente Positiva ganisational capacities be built so that they can (www.facebook.com/gente.positiva.9) improve their effectiveness and networking? • OTRANS, Organización Trans Reinas de la No- • Could Sweden do more to reach organisations che, www.reinasdelanoche.org.gt/web/ outside the larger cities, in order to reach LGBTI • ODISCEA Guatemala. Asociación lésbica persons in marginalised areas? (www.facebook.com/ODISCEA) • Could Sweden do more to encourage and support partners working for democracy and human What Sweden can do – 9 questions rights in Guatemala to engage with LGBTI Within the broader context of support to democracy, rights? Could Sweden do more to encourage and human rights, human rights defenders, gender equal- support cooperation and synergies between ity and the fight against gender based violence Swe- LGBTI organisations and mainstream Human den has a great opportunity to include issues related Rights organisations? to the rights of LGBTI persons and their access to • Could Sweden do more to promote inclusion of justice. When addressing LGBTI in a country as Gua- LGBTI persons, particularly transgender women, temala, where the government still fail to protect the as a more visual part of the work against gender rights of LGBTI persons, it is important to consult based violence in Guatemala? LGBTI organisations in the country to make sure not to overrule their agenda. Questions to consider: • Could Sweden do more to systematically include LGBTI persons in initiatives related to health, • Could Sweden do more to stay updated on the HIV/AIDS, SRHR and social exclusion? legal and security situation and the judgements and priorities of the LGBTI movement? Can • Could Sweden do more to open up doors for Sweden offer protection to activists and attend LGBTI organisations to participate in cultural, so- court cases? Can Sweden contribute to protec- cial and professional networks and events? tion of organisations at risk? For further advice on dialogue regarding LGBT is- • Could Sweden do more to seek effective strate- sues, download the Sida ‘Human Rights of Lesbian, gic alliances with other agencies and continue to Gay, Bisexual and Transgender persons - Conduct- bring up LGBTI rights in the dialogue with the ing a Dialogue and the Ministry of Foreign Affairs government? Especially in relation to follow up of Dialogue brief. Also refer to the EU tools and guide- the progress and contents of the Public Law on lines in the reference list. LGBTI being drafted. More specific advice and support measures, as well • Could Sweden do more to follow up and develop as contact information to mentioned groups, can also its support to human rights institutions that are be provided through ILGA or RFSL, should the Em- defending human rights of LGBTI persons and bassy wish for a dialogue. activists (e.g. the support in 2014 to the Defenso-

References General references RFSL, LGBT in Development, An introduction in how to include LGBT in programming in development: http://www.rfsl.se/public/LGBT_in_development.pdf EU news, tools and guidelines: http://eeas.europa.eu/human_rights/lgbt/index_en.htm The EU Guidelines (2013): Guidelines for supporting LGBTI persons' human rights Sida ‘Human Rights of Lesbian, Gay, Bisexual and Transgender persons - Conducting a Dialogue and the Ministry of Foreign Affairs Dialogue brief. ILGA: http://africa.ilga.org ILGA, State-sponsored Homophobia: A world survey of laws prohibiting same sex activity between consenting adults. (see updated version at www.ILGA.org) MSM Global Fund http://www.msmgf.org/

Specific references Organización Trans Reinas de la Noche Organizacion (OTRANS), et.al, 2012, Human Rights Violations of Lesbian, Gay, Bisexual, and Transgender (LGBT) People in Guatemala: A Shadow Report, Submitted for consideration at the 104th Session of the Human Rights Committee, New York, Real Embajad de Noruega, Organización Panamericana de Salud, Oficina Sanitaria Panamericana, Oficina Regional de la Organización Mundial de la Salud, 2010, Planeación Estratégica desde la Sociedad Civil, Les- bianas, gays, comunidad trans, biseuales, intersexuales y HSH, Salud y derechos humanos 2010-2014, Ministerio de Salud Pública y Asistencia Social Programa Nacional de Prevención y Control de ITS/VIH/SIDA, 2014, Informe Nacional sobre los Progresos Realizados en la Lucha Contra el VIH y sida United Nations of Human Rights Office of the High Commissioner, 2012, Born free and equal, Sexual Orienta- tion and Gender Identity in International Human Rights Law, , New York and Geneva, More specific advice and support measures, as well as contact information to mentioned groups, can also be provided through ILGA or RFSL, should the Embassy wish for a dialogue.