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Sexual Orientation, Gender Identity and Intersex Related Issues

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Sexual Orientation, Gender Identity and Intersex Related Issues Joint thematic dialogue on sexual orientation, gender identity and intersex related issues between the Inter-American Commission on Human Rights, the African Commission on Human and Peoples’ Rights and United Nations human rights mechanisms. Final report and annexes 26-28 March 2018 Washington DC 1 / 97 Table of contents Context and introduction 3 Progress since 2015 5 Challenges – old and new 11 Approaches and opportunities to advance efforts 13 to combat human rights violations based on sexual orientation, gender identity and sex characteristics Reinforcing collaboration and continuing dialogue 15 ANNEX 1: 19 Statement issued at the end of the 2018 joint dialogue ANNEX 2: 23 List of participants - 2018 joint dialogue ANNEX 3: 26 Agenda - 2018 joint dialogue ANNEX 4: 28 Sexual orientation, gender identity and sex characteristics in the african human rights system ANNEX 5: 58 Sexual orientation, gender identity and expression and intersex in the inter-american human rights system ANNEX 6: 87 Sexual orientation, gender identity and sex characteristics in the united nations human rights system ANNEX 7: 114 HIV, human rights and sexual orientation and gender identity ANNEX 8: 127 Key concepts and terms 22 / /112 132 Final report on 2018 joint thematic dialogue on sexual orientation, gender identity and intersex related issues between the Inter- American Commission on Human Rights, the African Commission on Human and Peoples’ Rights and United Nations human rights mechanisms Context and introduction On 26-28 March 2018, a second thematic dialogue on sexual orientation, gender identity and intersex related issues was held between the African Commission on Human and Peoples’ Rights (African Commission or ACHPR), the Inter-American Commission on Human Rights (Inter- American Commission or IACHR) and United Nations (UN) human rights mechanisms.1 The dialogue was hosted by the Inter-American Commission and was supported and organized by the Office of the High Commissioner for Human Rights (OHCHR) in collaboration with the Joint United Nations Programme on HIV/AIDS (UNAIDS), the United Nations Development Programme (UNDP) and the Secretariats of the ACHPR, IACHR and UN mechanisms. This second dialogue was a follow up to the first joint dialogue, hosted by the African Commission, which took place on 3 November 2015 in Banjul, The Gambia.2 It aimed to build upon the reflections, conclusions and recommendations of the 2015 dialogue; reflect on progress and challenges, and exchange experiences and strategic approaches on addressing violence and discrimination based on sexual orientation, gender identity and expression and sex characteristics across the three human rights systems; reflect on engagement between mechanisms and other stakeholders and collaboration between mechanisms; engage with new mandate holders in each system; reflect on current developments and political and social challenges, and share practical approaches for addressing them; and identify synergies that build on the practice of the three mechanisms. 3 / 132 The second joint dialogue, like the first, took place within existing frameworks, including the 1993 Vienna Declaration and Programme of Action, the regular dialogue between UN and regional human rights mechanisms mandated by the Human Rights Council, the 2009 Memorandum of Understanding between the Organization of American States and the African Union, the 2012 Addis Ababa Roadmap between the ACHPR and UN Special Rapporteurs, and the collaboration between OHCHR and the IACHR. Ahead of the meeting, a number of background papers on human rights, sexual orientation, gender identity and expression and sex characteristics were prepared and shared with participants, including key concepts, developments in each system, and the intersection with HIV/AIDS (see annexes). 4 / 132 Progress since 2015 Participants highlighted that since the first dialogue in 2015, theAfrican Commission, the Inter-American Commission and a large number of UN human rights mechanisms and mandate holders have provided further guidance on the application of international human rights norms and standards to the protection of individuals from violence and discrimination on the basis of sexual orientation, gender identity and expression, and sex characteristics through cases and petitions, advisory opinions, general comments, concluding observations, views, statements, declarations, resolutions, letters of allegations and urgent appeals, country visits and technical cooperation, among others. Experts from the African Commission shared further steps taken since the adoption of its landmark 2014 resolution 275 on protection against violence and other human rights violations against persons on the basis of their real or imputed sexual orientation or gender identity. These steps include the elaboration of soft law and hard law instruments that address human rights violations based on sexual orientation and gender identity such as Resolution 376 on the Situation of Human Rights Defenders in Africa,3 General Comment 4 on the Right to Participants at the Joint thematic dialogue on sexual orientation, gender identity and intersex related issues between the Inter-American Commission on Human Rights, the African Commission on Human and Peoples’ Rights and United Nations human rights mechanisms. 26-28 March 2018. Washington DC. 5 / 132 Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,4 the Guidelines for Policing Assemblies by Law Enforcement Officials in Africa,5 the Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa,6 the Guidelines on Combating Sexual Violence and its Consequences in Africa,7 and the report on HIV, the Law and Human Rights.8 In relation to intersex people, the African Commission issued a joint statement, together with UN mechanisms and the Inter-American Commission, in commemoration of Intersex Awareness Day in 2016 that called for an end to harmful practices against intersex children9 and members of the Commission also participated in a side event at the 61st Ordinary Session on the rights of intersex persons in Africa.10 The African Commission has also increasingly used the State review process under Article 62 of the African Charter to pose questions relating to sexual orientation and gender identity to Member States. To this end, Concluding Observations to Cameroon, Liberia, Mauritius, Namibia and the Federal Republic of Nigeria have included recommendations on protecting individuals from violations of human rights based on their sexual orientation. The African Commission has also used its urgent appeals procedure, including a recent letter to the United Republic of Tanzania following raids on meetings and arrests of LGBTI human rights defenders. Experts from the Inter-American Commission drew attention to the 2015 report on violence against lesbian, gay, bisexual, trans and intersex (LGBTI) persons11 in the Americas which concluded that violence against LGBTI persons is contextualised social violence and is pervasive throughout the Americas; that violence driven by prejudice towards those with a non-normative sexual orientation or gender identity is particularly cruel and generally involves high levels of brutality; and that there is general underreporting and lack of collection of data on these acts of violence in the vast majority of countries in the region. In this report, IACHR also highlighted the invisibility of violence against specific segments of the LGBTI community, including trans men, bisexual persons and intersex persons. 6 / 132 The Inter-American Court on Human Rights has also made important recent pronouncements on this topic. In Advisory Opinion 24/17,12 the Court concluded that State recognition of one’s gender identity is a vital component of guaranteeing trans individuals access to the full enjoyment of their human rights and dignity. The Court also ruled that there is a right to identity comprises several rights and includes an individual’s sexual orientation and gender identity. The Court further found that providing procedures to change one’s name, identifying photograph, and gender or sex on official State registration documents according to self-perceived gender identity is an extension of the right to non-discrimination, a violation which could lead to the infringement of other rights. Moreover, the Court declared that the American Convention protects the family ties that may derive from a relationship between persons of the same sex, recognizing that States should guarantee them the same rights that arise from the family ties of heterosexual couples. The Inter-American Commission through the Rapporteur on the Rights of LGBTI Persons has to date received more than 120 petitions on individual cases; granted 11 precautionary measures for the protection of rights; held six regional expert meetings; prepared two sections on the rights of LGBTI people for country and thematic reports; issued more than 30 press releases condemning violence against LGBTI individuals and expressing concern about the lack of action on the part of States; held more than 50 public hearings, with the participation of officials of 22 countries and more than 70 civil society organizations; and monitored more than 1500 news reports about violence against LGBTI people.13 The LGBTI Rapporteur is currently working on two thematic reports on guarantees of the rights of LGBTI people, and on the economic, social and cultural rights of trans people. Experts from the
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