Sexual Orientation & Gender Identity

Photo: Kevin Wong, Flickr Creative Commons

Discrimination and violence against people of diverse sexual orientation and gender identity is a serious problem in many countries across the Asia Pacific.

People of diverse sexual orientation and gender identity, whether actual or perceived, have faced execution or extra-judicial killing, torture, rape, arbitrary detention, unfair trials and, in the case of women, forced pregnancy and forced marriage.

These human rights violations occur at the hands of State officials and authorities and at the hands of non-State actors, often with the actual or implied complicity of State actors and often with impunity.

In 2006, in response to well-documented patterns of abuse, a distinguished group of international human rights experts outlined a set of international standards relating to sexual orientation and gender identity.

The result was the Yogyakarta Principles: a universal guide to human rights which affirm binding international legal standards with which all States must comply.

In May 2009, the APF brought together member institutions to discuss the role of NHRIs in promoting implementation of the Yogyakarta Principles.

They also discussed the practical ways that NHRIs could use their functions and powers – including investigating complaints, reviewing laws and policies, holding national inquiries and public education – to better protect and promote the rights of gay, lesbian, bisexual and transgender people.

APF members concluded the meeting by strongly deploring “all forms of stereotyping, exclusion, stigmatisation, prejudice, intolerance, discrimination and violence” against gay, lesbian, bisexual and transgender people.

While recognising that “in all countries religious, cultural and moral values and sensitivities may arise in relation to sexual orientation and gender identity”, they affirmed that the expression of religious and other beliefs should not violate the rights and freedoms of others.

Key recommendations from the workshop included:

• requesting the Advisory Council of Jurists to review national laws in the countries of APF members, determine if they are consistent with international human rights standards relating to sexual orientation and gender identity and advise what amendments may be required
• facilitating the exchange of information among APF member institutions on their human rights work in relation to sexual orientation and gender diversity
• assisting APF member institutions to build their knowledge and awareness of human rights in relation to sexual orientation and gender identity, through training programs and staff exchanges, and
• including the Yogyakarta workshop as an agenda item at the APF Annual Meeting in 2010 and invite each APF member institution to provide a report on its activities in relation to human rights and sexual orientation and gender identity at that meeting.

ACJ study

In responding to the workshop’s recommendations, the APF’s Advisory Council of Jurists has conducted an in-depth study of the domestic laws and policies relating to sexual orientation and gender identity in each of the 17 countries of its member institutions.

The ACJ reference assessed the consistency of these laws and policies with international human rights standards and provided recommendations to assist national human rights institutions address identified shortcomings.

The study was conducted as part of the APF’s 15th Annual Meeting in 2010, held in Bali, Indonesia. The Final Report was published in December 2010.

NHRI initiatives

In 2010, the APF coordinated a joint funding application to secure financial support to assist five member institutions implement a range of targeted activities to raise awareness and bolster protection for the rights of lesbian, gay, bisexual and transgender people.

The projects all took place prior to April 2011.

• The Australian Human Rights Commission held consultations and prepared a report for the federal Government on developing specific legal protection against discrimination on the basis of sexual orientation or gender identity, as well as ensuring that the Government’s Human Rights Framework leads to greater equality for people of all sexual orientations and gender identities.
• The Indonesian National Commission on Human Rights coordinated a National Training Program to provide participants with skills in reporting, analysis, investigation and prosecution of human rights violations against LGBT people and assisting them to contribute more meaningfully to the ongoing debates on LGBT rights in Indonesia.
• The National Human Rights Commission of Mongolia undertook an analysis of the national legal framework for discriminatory elements, as well as helped raise awareness among the estimated 80,000 LGBT people in the country of their rights, the Yogyakarta Principles and existing mechanisms to address human rights violations.
• The New Zealand Human Rights Commission supported a major regional human rights workshop – held in March 2011 as part of the 2nd Asia Pacific OutGames – to draw attention to the role that NHRIs can play in promoting the Yogyakarta Principles.
• The Philippines Commission on Human Rights established partnerships with LGBT groups, examined and assessed existing national laws and policies, advocated on the rights of LGBT people and developed a human rights education module for local government and community groups which, following a formal evaluation, can be delivered in a broader range of settings.

International recognition

In May 2009, the UN Committee on Economic, Social and Cultural Rights adopted a General Comment on Non-Discrimination, which provided a clear affirmation that discrimination on the grounds of sexual orientation was prohibited under the International Covenant.

The General Comment also affirmed that gender identity was one of the prohibited grounds of discrimination – the first time that gender identity has been explicitly recognised by a treaty body in a General Comment as a prohibited ground of discrimination in international law.

The 2008 Annual Report of the Office of the High Commissioner for Human Rights (released May 2009) also prominently featured sexual orientation and gender identity issues.

Newsletter

The New Zealand Human Rights Commission produces a newsletter - To Be Who I Am - for the the country's network of transgender people and others interested in progressing the actions and recommendations from the Commission's Transgender Inquiry.