UN Issues Straight Talk on Gay Rights: Next Steps Forward

In mid-December, the UN Office of the High Commissioner for Human Rights (OHCHR) released a little noticed report (PDF) discussing the issue of discrimination and violence based on sexual orientation and gender identity. Requested by the UN Human Rights Council (UNHRC) in June 2011 when the council passed the first ever UN resolution supporting gay rights, the OHCHR report symbolizes a critical milestone regarding the protection of fundamental lesbian, gay, bisexual, and transgender (LGBT) human rights globally.

In particular, the report notes concern over different types of discrimination and violence targeting LGBT people including “killings, rape and physical attacks, torture, arbitrary detention, the denial of rights to assembly, expression and information, and discrimination in employment, health and education.” The report also mentions the issue of “forced marriages,” where certain members of the LGBT community are forced to endure outrageous attempts to change their sexual orientation.

The report also takes special care to highlight the international legal basis for protecting rights based on sexual orientation and gender identity. This includes references to blanket nondiscrimination clauses within the UN Charter, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights—all accords that enjoy nearly universal support within the international community.

Furthermore, the report dovetails incredibly bold words delivered by Secretary of State Clinton on the same topic this month in Geneva, Switzerland. Declaring, “Gay rights are human rights, and human rights are gay rights,” Clinton asked that countries merely accept the right for LGBT individuals to exist and that they be afforded a dignified space in society. During her speech, she also announced the establishment of an innovative Global Equality Fund, including $3 million in seed money, to help civil society organizations promote LGBT nondiscrimination as well as a new policy linking U.S. foreign aid to countries’ LGBT rights records.

Nevertheless, the OHCHR report concludes, “Governments and intergovernmental bodies have often overlooked violence and discrimination based on sexual orientation and gender identity.” Worse, being gay remains illegal in seventy-six countries, including some nations on the UN Human Rights Council. In five states, gays also face capital punishment.

Understanding the plight that millions of LGBT people, as well as those individuals perceived to fall within that category, face on a daily basis UN member states should take care to implement the recommendations of the OHCHR’s report.  Among many important steps, these include investigating killings and violence against gays and lesbians, passing national antidiscrimination legislation, and implementing sensitivity and training programs for public sector actors liked police, prison officials, and border guards.

But more can be done. Overall, human rights in regard to sexual orientation and gender identity should be advanced through three mutually-reinforcing channels:

• First, within the UN system, the UNHRC should prioritize drafting and ultimately passing a follow-up resolution to its groundbreaking document in support of LGBT rights passed in June 2011. Other than taking the recommendations of the OHCHR into account, the next resolution should regularize the practice of investigating states’ LGBT rights records; condemn brutality and killings related to sexual orientation; and explicitly call for an end to state-sponsored discrimination, which prevents LGBT people from playing constructive roles in civil society. To reemphasize, the United Nations will not be asking member states to legalize same-sex marriage nor will it be constructing a hypothetical Convention for the Elimination of All Forms of Discrimination against Sexual Minorities anytime soon.  Instead, the United Nations can be used as forum to exchange best practices regarding antidiscrimination and awareness programs orientated towards ending violence and discrimination based on sexual orientation and gender identity. The OHCHR report, for instance, mentions numerous successful awareness initiatives such as Brazil’s “Brazil without Homophobia” campaign, Australia’s Safe Schools Coalition program, and the four thousand gay-straight alliance groups currently operating in the United States.
• Second, regional organizations should expand their efforts to promote basic LGBT rights and counterbalance national level legislation or executive action which—either implicitly or explicitly—presents an existential threat to the livelihood of the LGBT community. A colleague at the Council on Foreign relations, John Campbell, recently noted that the African continent has witnessed a startling wave of homophobia, as numerous countries have proposed or passed legislation that either encourages discrimination against the LGBT community or imposes harsh penalties on gay people just for being gay.  Regional organizations, like the African Union, may be in a unique position to pressure governments to better challenge social or cultural norms commonly hijacked to support extreme forms of intolerance. Regional organizations can also act proactively by appointing special LGBT rights rapporteurs or granting observer status to pro-LGBT nongovernmental organizations that seek to dispel stereotypes or engage in rights monitoring within states.
• Third, individual countries, especially the United States, South Africa, and Brazil, should continue to support gay rights within the United Nations through lobbying for resolutions expressly recognizing LGBT rights, working behind the scenes to secure accreditation for deserving international LGBT rights organizations, and funding initiatives that support ground-level efforts to counteract antigay violence and discrimination.  According once again to the OHCHR report, numerous UN agencies have already integrated issues regarding sexual orientation and gender identity into their work including the United Nations Development Program, the United Nations Children’s Fund, the United Nations Educational, Scientific and Cultural Organization, the Office of the United Nations High Commissioner for Refugees, the International Labor Organization, the World Health Organization, the United Nations Population Fund, and the Joint United Nations Program on HIV/AIDS.  In tandem, nationally sanctioned human rights organs, like Kenya’s Human Rights Commission, can supplement such work through producing studies concerning the rights of LGBT individuals. Finally, more developed states should examine the possibility of linking foreign aid to developing states’ attempts to improve or protect the lives of those associated with or perceived to be members of the LGBT community. Positive change certainly and understandably isn’t expected overnight, but foreign aid recipients should no longer get a pass to play “don’t ask don’t tell” on fundamental LGBT rights.

As a whole, the OHCHR report is an incredibly far cry from the embarrassing November 2010 incident when UN member states—primarily from Africa, the Middle East, and Caribbea region—voted to remove a clause from a nonbinding resolution, which asked countries to protect sexual minorities against extrajudicial killings and impunity. (The clause was luckily reinserted into the resolution a month later following heavy pressure from the U.S. delegation to the United Nations.)

On the other hand, the recent advance of legislation in Nigeria instituting harsh penalties on those convicted of being LGBT or those that “abet” same-sex unions—despite threats from the United Kingdom and United States to cut off the country’s foreign aid—acts as an important reminder regarding the need for sustained, crosscutting, and comprehensive efforts to protect the most basic rights of LGBT people around the world.