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Sexual Orientation, Gender Identity and Expression, and Sex Characteristics at the Universal Periodic Review

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Sexual Orientation, Gender Identity and Expression, and Sex Characteristics at the Universal Periodic Review Sexual Orientation, Gender Identity and Expression, and Sex Characteristics at the Universal Periodic Review November 2016 Material contained in this report may be freely quoted or reprinted, provided credit is given to ARC International, the International Bar Association and the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) Partner organisations ARC International Since 2003, ARC International has been advocating for the advancement of lesbian, gay, bisexual and transgender (LBGT) people’s human rights at the international level. Registered in Canada, but also with an office in Geneva, ARC has played a key role in advancing LGBT issues within the United Nations (UN) human rights system. It was closely involved in the development of the Yogyakarta Principles in the application of international human rights law in relation to sexual orientation and gender identity. ARC seeks to facilitate strategic planning around LGBT issues internationally through a key focus on strengthening global networks, producing inside knowledge and critical analysis to assist with implementation of human rights norms and using its consultative status with the UN to enhance access to UN mechanisms. ARC has been successful in engaging UN mechanisms around sexual orientation and gender identity issues while also bringing international support to the work of non- governmental organisations (NGOs) in countries around the world. International Bar Association’s Human Rights Institute (IBAHRI) Established in 1947, the International Bar Association (IBA) is the world’s leading organisation of international legal practitioners, bar associations and law societies. The International Bar Association’s Human Rights Institute (IBAHRI), an autonomous and financially independent entity, works with the global legal community to promote and protect human rights and the independence of the legal profession worldwide. The IBAHRI holds that when the legal profession is not able to function independently or effectively, this gives rise to human rights violations, impunity and injustice. A leading institution in international fact-finding, the IBAHRI produces expert reports with key recommendations, delivering timely and reliable information on human rights and the legal profession. It supports lawyers and judges who are arbitrarily harassed, intimidated or arrested through advocacy and trial monitoring and provides human rights training and technical assistance for legal practitioners and institutions, building their capacity to effectively promote and protect human rights under a just rule of law. International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) The International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) is the world federation of national and local organisations dedicated to achieving equal rights for lesbian, gay, bisexual, trans and intersex (LGBTI) people. ILGA is an umbrella organisation of more than 1200 member organisations presented in six different regions: ILGA-Asia, ILGA-Europe, ILGA-LAC (Latin America and the Caribbean), ILGA North-America, ILGA-Oceania (Aotearoa/New Zealand, Australia and Pacific Islands) and Pan Africa ILGA. Established in 1978, ILGA enjoys consultative status at the UN Economic and Social Council (ECOSOC). As the only global federation of LGBTI organisations, ILGA voices its agenda in various United Nations fora. ILGA gives visibility to the struggles of its members lobbying at the Human Rights Council, helping them in questioning their government’s record on LGBTI rights in the frame of the Universal Periodic Review and provides support and guidance to member organisations in their engagement with the treaty bodies and special procedures. Acknowledgements This report was written by ARC International Research and Information Officer, Dodo Karsay; IBAHRI Senior Fellow and UN Liaison, Helene Ramos Dos Santos; and ILGA UN Programme Officer, Diana Carolina Prado Mosquera. The writing, development and publication of this report were overseen and supported by Eka Iakobishvili, IBAHRI Programme Lawyer. IBAHRI Director, Phillip Tahmindjis; ARC Executive Director, Kimberley Vance; ARC Geneva Director, Arvind Narrain; ILGA UN Programme and Advocacy Manager, André Du Plessis; and IBAHRI Senior Programme Lawyer, Muluka Miti-Drummond have collectively contributed to editing the report. The IBAHRI would also like to thank interns Abigail West and Alison Wong for their assistance in compiling research data and sections of this report. ARC International would like to thank Jack Byrne and Katalin Csik for their support in research methodology as well as Professor Fanny Gomez and students Dunia Tegegn, Tyler R Bridegan and Xirong Wang at the Sexual Orientation, Gender Identity, Bodily Diversity and International Human Rights Legal Clinic at Georgetown University for their research work. Finally, ARC International, the IBAHRI and ILGA would like to thank all individuals and stakeholders who were consulted via telephone, face-to-face interviews or questionnaires for contributing their time to the compiling of data for this report. Table of contents Tables and figures 10 Acronyms 12 Definitions 14 Executive summary 16 I. Recommendations to recommending states 18 II. Recommendations to states under review 19 III. Recommendations to civil society 19 IV. Recommendations to legal professionals and professional legal associations 20 Terms of reference, scope and structure of the report 21 I. Terms of reference 21 II. Methodology 21 III. Scope and limitations 22 A. Thematic scope 22 B. UPR sessions 22 C. Geographic scope 22 D. Limitations 22 IV. Structure of the report 23 Illustrative human rights violations faced by lesbian, gay, bisexual, trans and intersex persons 24 Chapter 1: Introduction 26 1.1. UPR: a unique human rights mechanism 27 1.2. The international legal framework protecting the rights of LGBTI persons 28 1.2.1. International legal developments for the protection of LGBTI persons 29 1.2.2. The unique role of the Yogyakarta Principles in international law 31 1.3. The UPR: an entry point for SOGIESC issues? 32 Chapter 2: State Recommendations and Responses 34 2.1. Number of recommendations received 34 2.2. Content of the recommendations 35 2.2.1. Classification of the recommendations by rights, using the Yogyakarta Principles 35 2.2.2. Quality of the SOGIESC recommendations 39 2.3. Classification of the recommendations by groups (LGBTI) and grounds (SOGIESC) 43 2.3.1. General trends by cycle 43 2.3.2. Gender identity, expression and trans issues 44 2.3.3. Sex characteristics and intersex issues 45 2.3.4. The protection of the family versus the protection of the rights of LGBT persons 47 2.4. Classification of the recommendations by level of acceptance 48 2.4.1. Ratio of accepted and noted recommendations by regional groups 49 2.5. Recommending states 51 Chapter 3: Civil Society Engagement and Impact 53 3.1. Civil society engagement 53 3.1.1. A steadily growing engagement 53 3.1.2. Challenges to a more efficient engagement 63 3.2. The impact of civil society submissions on state recommendations 65 3.2.1. States reaffirm recommendations made in civil society submissions 65 3.2.2. State recommendations fall short of addressing trans and intersex issues 66 3.2.3. States focus on a small portion of topics raised in civil society submissions 67 3.2.4. States formulate general recommendations despite specific calls in civil society submissions 68 Chapter 4: Comparison Between the UPR SOGIESC Recommendations and the International Law Protecting the Rights of LGBTI Persons 69 4.1. The value of repetition in international law 69 4.2. The legal basis of the SOGIESC recommendations at the UPR 72 4.3. Comparative analysis between recommendations made at the UPR and recommendations made by other UN human rights mechanisms 73 4.3.1. UPR recommendations consolidating the level of protection granted by other human rights mechanisms 74 4.3.2. UPR recommendations below the level of protection granted by other human rights mechanisms 80 4.3.3. UPR recommendations above the level of protection granted by other human rights mechanisms 82 Chapter 5: Implementation and Follow Up 84 5.1. Implementation overview 84 5.2. Impact and successes 86 5.3. Challenges and ways forward: preparing for UPR Cycle 3 recommendations 89 5.3.1. Law reform: paving the way to decriminalisation and an enabling legal environment 90 5.3.2. Addressing sexual orientation and/or gender identity and expression and/or sex characteristics 93 5.3.3. Stopping repressive judicial and police practices through the active engagement of the legal professions 94 5.3.4. Ending impunity for hate crimes: from reporting processes to fair-trial guarantees 96 5.3.5. Addressing the religious narrative 97 5.3.6. Addressing stigmatisation, fear and ignorance 98 Chapter 6: Conclusions and Recommendations 99 6.1. Recommendations 101 6.1.1. Recommendations to recommending states 101 6.1.2. Recommendations to states under review 104 6.1.3. Recommendations to civil society 106 6.1.4. Recommendations to legal professionals and professional legal associations 110 Annex 1: List of Calls to Action (CTAs) made at the UPR, following the Yogyakarta Principles 112 Annex 2: Demographic data of survey respondents and interviewees 128 Bibliography 131 Tables and figures Figure 1: stages of the UPR process 28 Figure 2: evolution of the SOGIESC recommendations at the UPR (Sessions 1–22) 34 Figure 3: number of CTAs/Yogyakarta Principles 36 Figure 4: reference
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