Born Free and Equal: Sexual Orientation, Gender Identity and Sex Characteristics in International Human Rights Law (Second Edition)

The report notes that States are obligated to respect and protect the rights of LGBTI persons under both: signed international treaties as well as customary international law.

Many of the rights of LGBTI people are already established under general provisions in various documents like the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the Convention against Torture, the Convention relating to the Status of Refugees, and the Declaration on the Elimination of Violence against Women.

The United Nations Human Rights Committee maintains that States must enforce measures to prevent and respond to violence against LGBTI individuals. The violence may be physical or psychological and may take the form of beatings, kidnappings, rape and sexual assault, threats, coercion, and arbitrary deprivations of liberty.

States are obligated under international law to protect life, including in cases where people have been targeted due to their sexual orientation, gender identity or expression, and sex characteristics. States must also prevent extrajudicial executions, investigate targeted killings, and ensure justice, the report adds.

The report notes that laws regarding sexual violence often only consider female victims or define sexual violence as limited to ‘penile penetration’. This means many cases of sexual violence are never investigated or tried in court. Victims or survivors who are not female are also thus deprived of judicial recourse.

The UN Committee against Torture, the UN Special Rapporteur on torture, and other human rights bodies have recorded considerable evidence of abuse and mistreatment of LGBTI individuals in hospitals, prisons, police stations, military installations and detention facilities across the world. The report emphasises that prohibition of torture is a peremptory norm of international law and all States are bound by it.

Citing a report by the Association for the Prevention of Torture, Switzerland, and Penal Reform International, the Netherlands, the report lists eight areas vulnerable to human rights abuses in detention facilities. These are: targeted arrest and violence in police custody, abusive interrogations, allocation of transgender detainees, humiliating and abusive body searches, violence from fellow inmates, abuse by prison personnel, isolation and solitary confinement, and discrimination in accessing services and benefits.

The UN Committee against Torture and the UN Special Rapporteur on torture have also voiced concerns about ‘conversion therapy’ – forced procedures aimed at ‘changing’ a person’s sexual orientation or gender identity. The institutions have stated that States need to take the needed steps to guarantee LGBT people their bodily autonomy and ban such practices.

Human rights experts have noted that pathologizing LGBTI people by calling them “ill, disordered, malformed or abnormal” contributes to the discrimination and violence against them.

Discrimination against LGBT, intersex, and gender non-confirming people impacts their ability to enjoy their right to education. This discrimination may be implicit in the education policy, regulations, curricula, teaching material, and teaching practices or explicit like bullying, violence, and harassment from school authorities and classmates.

United Nations treaty bodies reject laws across the world that prohibit or restrict public discussion of sexual orientation and gender identity, and impose restrictions on civil society organisations that work on the rights of LGBTI people. These restrictions are stated to lack credibility and are termed as discriminatory, amounting to violations of human rights.

Focus and Factoids by Kanak Rajadhyaksha.