8

The rise of SOGI: human rights for LGBT people at the United Nations

Kim Vance, Nick J. Mulé, Maryam Khan and Cameron McKenzie

Three major factors of the Envisioning Global LGBT Human Rights study (Envisioning) are addressed in this chapter: the continuing criminalisation of lesbian, gay, bisexual, transsexual, transgender (LGBT) individuals internationally, including many in the Commonwealth; the extent to which criminalisation and persecution of people based on their sexual orientation and/or gender identity (SOGI) is being taken up and addressed in policy and law in international human rights arenas, in particular the United Nations (UN); and the courage and resolve of LGBT human rights defenders.

Seventy-one countries criminalise consensual same-sex acts. The death penalty can be imposed in eight UN states, with four implementing it (Iran, Saudi Arabia, Sudan and Yemen). It is also enacted in 12 states of Nigeria¹ and Southern parts of Somalia² and is implemented without codification in Iraq and Daesh (Carroll and Mendos, 2017, p. 40). The persecution faced by LGBT people includes such human rights violations as extrajudicial killings, torture and ill-treatment, sexual assault and rape, invasions of privacy, arbitrary detention, and denial of employment and education opportunities (Amnesty International Canada, 2015).

Because criminalisation of LGBT people has been instigated by colonial laws, the theoretical premise of this chapter is postcolonial and pro-LGBT, in that we urge a modernised, more nuanced understanding of human rights that broadens and creates a more inclusive scope, namely that of SOGI. Universalist notions of human rights are deconstructed by Lau (2004), pointing to the challenge presented by the cultural relativist stance of non-Western countries and how sexual orientation is implicated in international human rights law debates. This increasing presence in the international arena, has usually been via a universalist approach to human rights law, which argues that all internationally recognised documents and covenants cover it. Yet numerous nation states will reject sexual orientation on the basis of cultural relativist positions that uphold their cultural sovereignty (p. 1689). This approach has since played out in gender identity/expression and intersex issues, with states contesting notions of gender and sex and attempting to limit and narrow interpretations of them. The pursuit of human rights strictly from a legal rights framework risks reconstituting the status quo, rather than transforming it, thereby failing to achieve social justice (LaViolette and Whitworth, 1994). Legal rights are important for protecting LGBT persons from persecution, but constitute just one component of the larger goal of social construction recognising gender and sexual diversity. Such diversity is made up of the intersection of social locations such as gender, sexuality, culture, class, age, (dis)ability, religion, health and wellbeing and self-determination (Human Rights Watch, 2009; Saiz, 2004; Sauer and Podhora, 2013; Tiefer, 2002). The recognition of such conjunctions represents the core of intersectionality theory.

Puar (2007) has extended intersectionality theory with the notion of ‘assemblage’, ‘a series of dispersed but mutually implicated and messy networks, draw[ing] together enunciation and dissolution, causality and effect, organic and nonorganic forces’ (p. 211). Puar proposes looking at the intersections of race, gender, sexuality, nation and class as assemblages – as concepts that are linked, are constantly evolving and ‘always in the state of becoming’ (p. 194). She urges us to think prior to and beyond the positionality and its intersectional coordinates to account for their fluid movement. Although the concept of assemblages is recognised increasingly in the academic arena and in the literature (Mepschen et al., 2010; Shannahan, 2010), in the work of international human rights circles, including our study, concepts of intersectionality are far more common, and thus this chapter will focus solely on intersectionality.

Envisioning’s work was carefully carried out so as not to replicate colonialist actions. For instance, this requires being cognitive of and sensitive to the voices of LGBT human rights defenders in the countries which were cooperating with us. Working in such a manner kept us in check in terms of avoiding falling into Westernised notions of homonormativity (see Duggan, 1995; 2003) or homonationalism and queer liberalism (Puar, 2007). More broadly, imperial and colonial expansion projects have had powerful influences on worldviews with detrimental effects on the marginalised, such as LGBT people (Said, 1994; Wane, 2008). Yet the LGBT movement has evolved in the public arena and internally to take a decidedly postcolonial perspective, one example being increased recognition of gender expression,³ in addition to gender identity and sexual orientation (SOGIE) (Saiz, 2004; Swiebel, 2009).

This chapter examines how SOGI matters came to be taken up as human rights issues at the UN. While acknowledging the role HIV movements played in this process (see, for example, Joint UN Programme on HIV/AIDS (UNAIDS), 2008; 2011), our study focused on decriminalisation. This summary begins with the role that civil society played in introducing and advocating attention to SOGI concerns, what the UN response has been over time and the role the Yogyakarta Principles⁴ continue to play in guiding the issues. The study’s methodology is described and findings are shared from interviews with UN representatives and LGBT human rights defenders. A critical analysis is then provided of the decolonising process, the implications of SOGI being addressed in the international human rights arena, and the courage and resiliency of the LGBT human rights defenders.

Figure 13. Dialogue 2012: Focus on Strengthening Caribbean Response and Linking Regional and International Advocacy around the World, Saint Lucia, 6 February 2012. Photo credit: ARC International and Envisioning Global LGBT Human Rights.

Civil society engagement in UN fora

One of the first opportunities for global engagement on sexuality was the 1975 UN Conference in Mexico to mark International Women’s Year. This pivotal moment brought together lesbians from the North and South, who engaged with the feminist movement on sexuality and fostered development of networks that were to play a key role throughout the UN International Women’s Decade to follow. Around the same time (1978), the European-based International Gay Association (now known as the International Lesbian, Gay, Bisexual, Trans and Intersex Association, or ILGA) was founded. One of its aims was to maximise the effectiveness of gay organisations by coordinating political action on an international level, in particular applying concerted pressure on governments and international institutions.

As in Mexico in 1975, the UN Women’s Conference in Nairobi in 1985 provided a forum for the first public discussion of lesbianism in Kenya. Self-identified lesbians from all regions spoke at a press conference and issued a ‘Third World lesbian statement’ that challenged the notion that this was a ‘white, western’ matter (ARC International, 2009, p. 1). By the time of the UN World Conference on Human Rights in Vienna in 1993, global women’s networks and activism had developed into coordinated movements to bring women’s and lesbian perspectives into mainstream UN activities. Three non-governmental organisations (NGOs) working on lesbian and gay issues (ILGA, the Australian Council for Lesbian and Gay Rights, and EGALE-Canada) were accredited to the World Conference, marking the first time that NGOs working on these issues had been recognised at a UN event. In addition, ILGA was to secure formal UN Economic and Social Council (ECOSOC) accreditation in 1993, but this was revoked in 1994 and not reinstated again until 17 years later in 2011 (ILGA, 2013).

All of these developments set the stage for the Fourth World Conference on Women in Beijing in September 1995 – widely considered a watershed moment in international lesbian visibility. Eleven explicitly lesbian or lesbian and gay organisations were accredited to that conference, and two Canadian lesbian activists unfurled a banner in the main plenary saying ‘Lesbian rights are human rights’.

While the world conferences have served as an invaluable forum for sexual and gender minorities, activists working on these issues have increasingly engaged with other UN human rights mechanisms. A turning point came in 2003 when Brazil introduced a resolution on sexual orientation and human rights at the UN Commission on Human Rights in Geneva. Prior to this point, there was little consistent LGBT organising around this particular UN body. Brazil’s initiative, although not initially motivated by strong civil society engagement, served as a focal point and mobilising tool for NGOs around the world. An NGO strategy meeting was held in Brazil in December 2003, which was attended by a diverse cross-regional group of activists who engaged with and lent support to Brazilian government representatives responsible for crafting and guiding the resolution (ARC International, 2003).

As a result of that meeting, and similar coordinated organising efforts, the commission’s 2004 session saw more than 50 LGBT activists from all regions of the world gather to support the resolution. A global listserv (the ‘SOGI list’) was initiated by ARC International, a newly launched Canadian-based NGO, to facilitate this worldwide momentum. That listserv now has more than 1500 subscribers who regularly engage in strategic discussions about advocacy in spaces of regional and global politics. Indeed, those debates and the strategic North-South organising that has flowed out of them, have been largely responsible for securing state support for three successful resolutions on SOGI (discussed later) at the UN Human Rights Council (UNHRC) in Geneva (formerly the UN Commission on Human Rights).

Movements of trans and intersex persons have recently started to mobilise in global politics spaces. Like lesbian women who have always been part of the women’s/feminist movement, trans people in particular have been part of LBGT movements since their inception. Despite the fact that they often face the most severe human rights abuses and form the basis of some of the earliest documentation from UN experts, it has not been until this decade (from 2010) that they have begun to mobilise more visibly at the regional and international levels, and sometimes from their own separate platforms. Global Action for Trans*⁵ Equality (GATE), the first independent trans organisation focused on political engagement at worldwide level, was founded in 2010.

The Organization Intersex International (OII) was founded in Québec in 2004 and has branches on six continents. However, although the consistent engagement of intersex activists in UN spaces has been very recent, it is quite successful in terms of significant victories within the UN treaty body system, for instance.

The international trade union movement has also been an important site for global politics and organising. Two such unions, Public Services International (PSI) and Education International (EI), representing over 50 million workers in 950 trade unions around the world, organised a historic joint LGBT forum in 2004 (see Education International, 2015),⁶ which generated important recommendations for the International Labour Organization (ILO), the UN Educational Scientific and Cultural Organisation (UNESCO), UNAIDS and other groups.

As mentioned above, beginning in 1993, LGBT-identified groups (such as ILGA) began seeking official consultative status with the UN. That status is granted by the ECOSOC, after reviewing recommendations from its subsidiary body – the Committee on NGOs. This committee has rejected more than ten applications submitted by NGOs working on SOGI. In 2006, 2007, 2008, 2009 and 2010, the ECOSOC has had to overturn these recommendations in order to uphold the principle of non-discrimination underpinning the UN Charter. While some recent success has been achieved in this area, civil society groups have resiliently and persistently engaged with international fora.

Sexual and gender minorities have increasingly sought to organise in important regional politics sites as well. A coalition of LGBT organisations began work in 2006 on the inclusion of SOGIE in the draft Inter-American Convention against Racism and All Forms of Discrimination and Intolerance. Its membership has since expanded and it now works more generally on ensuring these issues are included when the Organization of American States (OAS) meets (OutRight Action International, 2015). This coalition has advocated successfully for SOGI resolutions at the OAS every year since 2009.

In addition, since 2004, sexual and gender minorities in Africa have worked in coalition to engage with the African Commission on Human and Peoples’ Rights (ACHPR). In 2009, they secured a SOGI resolution from the NGO forum, solidifying strong support from allied civil society groups. Despite groups like the Coalition of African Lesbians (CAL) having their applications for accreditation to this body rejected and then accepted, the coalition work has endured, and in 2014 the ACHPR adopted a resolution on violence and other human rights violations on the basis of real or imputed SOGI.

The UN response

All of this international advocacy, beginning with the efforts of lesbian women in the 1970s and 1980s, led to UN bodies and experts starting to devote attention to these issues in the 1990s and early 2000s. In 1994, the UN Human Rights Committee became the first UN body to acknowledge that human rights encompass sexual orientation (Gerber and Gory, 2014). The human rights complaint that precipitated this acknowledgment was known as the Toonen v. Australia case.⁷ The UN Human Rights Committee emphasised that discrimination based on sexual orientation was being employed for discrimination on the foundation of sex (Sanders, 1996). The UN recognised in section 6.2 that Toonen was a ‘victim of arbitrary interferences with his privacy’ and should have had ‘a right to freedom from arbitrary or unlawful interference with privacy’.

A review of the reporting indicates that it grew from two Special Procedures addressing these issues specifically in 1998, to five in 2002, building to more than a dozen in 2006. This reporting reflects the commitment of the experts, but also increasing documentation and reporting from the civil society groups who engage with the experts. The special rapporteur on violence against women, its causes and consequences has been critical in documenting and highlighting violence against women based on their SOGI within the UN system. Radhika Coomaraswamy’s report (1997) first opened the door for women’s sexuality to be regulated by state and non-state actors.⁸ Although it did not mention lesbians or trans women specifically, it did highlight family and community violence, including killings, and spoke of the risks facing women who live their lives outside of heterosexuality.

Furthermore, around this time the special rapporteur on extrajudicial, summary or arbitrary executions drew attention to killings of transgender women. Ironically, the Executions resolution⁹ adopted by the UN General Assembly (UNGA) in 2003, was the first UN resolution to specifically name these kinds of violations, but it referred only to sexual orientation (gender identity was not added until 2012).

The UN Secretary-General’s Study on Violence against Women was also extremely important in documenting violations based on SOGI. Section IV.B.5 in the report, entitled ‘Violence against women and multiple discrimination’, includes references to SOGI (2006). The US-based International Gay and Lesbian Human Rights Commission (IGLHRC) contributed a powerful input memo to the study (2006), which no doubt shaped some of the references, along with the work of the special rapporteur.

The current and former UN High Commissioners for Human Rights (Zeid Ra’ad Al Hussein and Navi Pillay, respectively) and former UN Secretary-General Ban Ki-moon, have arguably been more vocal on violations based on SOGI than any of their predecessors. In January 2011, a special sitting of the UNHRC was convened to hear remarks from Ban Ki-moon. In a strong statement, he called for an end to human rights violations based on SOGI:

We must reject persecution of people because of their sexual orientation or gender identity, who may be arrested, detained or executed for being lesbian, gay, bisexual or transgender. They may not have popular or political support, but they deserve our support in safeguarding their fundamental human rights. I understand that sexual orientation and gender identity raise sensitive cultural issues. But cultural practice cannot justify any violation of human rights. Women’s treatment as second-class citizens has been justified, at times, as a ‘cultural practice’. So has institutional racism and other forms of inhuman punishment. But that is merely an excuse. When our fellow humans are persecuted because of their sexual orientation or gender identity, we must speak out.

In September 2016, history was made at the UNHRC in Geneva when it appointed the first ever independent expert on protection against violence and discrimination based on SOGI. Despite a process of amendments to the resolution creating the mandate, a close vote on the resolution itself, and an attempt to undermine the entire appointment during the UNGA meeting in New York, the first appointed independent expert, Vitit Muntarbhorn began work on his mandate in November 2016 and delivered his first reports to the UNHRC in June 2017 and UNGA in October 2017.

Table 8.1 is a timeline of UN resolutions, joint statements and reports. Even though advocacy efforts and evidence from reports began with articulating violations against groups and individuals (that is, lesbians, trans women, gay men and so on), once the UN response began to take shape, the emergence of the concepts of sexual orientation and, later, gender identity in the language of these resolutions and statements could be observed. This has remained the consistent default language, despite some efforts to advocate for specificity in certain resolutions. The next section uses the development and terminology of the Yogyakarta Principles as a case study to further elaborate on the context of SOGI language within the UN.

Table 1. Timeline of UN resolutions, joint statements and reports

2002 Resolution 2002/77 on the question of the death penalty calls on governments to ensure that the death penalty is not imposed for non-violent acts such as sexual relations between consenting adults – adopted (25 in favour, 20 against, 8 abstentions) by the Commission on Human Rights, Geneva.
Resolution A/RES/57/214 on extrajudicial, summary and arbitrary executions calls on governments to investigate promptly and thoroughly all killings because of sexual orientation – adopted (130 in favour, 0 against, 49 abstentions) by the General Assembly, New York

2003 Resolution on sexual orientation and human rights, introduced, deferred and then withdrawn in 2004, at the Commission on Human Rights, Geneva (often referred to as the ‘Brazilian Resolution’)

2005 Joint statement on sexual orientation and human rights, delivered by New Zealand on behalf of 32 states at the Commission on Human Rights, Geneva

2006 Joint statement on SOGI and human rights, delivered by Norway on behalf of 54 states at the Human Rights Council, Geneva

2008 Joint statement on SOGI and human rights, delivered by Argentina on behalf of 67 states at the General Assembly, New York

2011 Joint statement on SOGI and human rights, delivered by Colombia on behalf of 85 states at the Human Rights Council, Geneva

2011 Resolution A/HRC/17/L.9/Rev.1 on human rights and SOGI – adopted (23 in favour, 19 against, 3 abstentions) by the Human Rights Council, Geneva (often referred to as the ‘South African Resolution’). As a result of this resolution, a high-level panel on SOGI was held during the Human Rights Council’s 19th session

2011 Report of the UN High Commissioner for Human Rights on violence and discrimination based on SOGI (A/HRC/19/41)

2012 Resolution A/RES/67/168 on extrajudicial, summary and arbitrary executions calls on governments to investigate promptly and thoroughly all killings because of SOGI – adopted without a vote by the General Assembly, New York

2014 Resolution A/HRC/27/32 on human rights and SOGI – adopted (25 in favour, 14 against, 7 abstentions) by the Human Rights Council, Geneva (often referred to as the ‘LAC4 Resolution’)

2015 Report of the UN High Commissioner for Human Rights on discrimination and violence against individuals based on their SOGI A/HRC/29/23

2016 Resolution A/HRC/32/2 on protection against violence and discrimination based on SOGI – adopted (23 in favour, 18 against, 6 abstentions) by the Human Rights Council, Geneva (often referred to as the ‘LAC7 Resolution’)

The UN and SOGI language: case study on the Yogyakarta Principles

In 2006, the then UN high commissioner for human rights, Louise Arbour, expressed concern about the inconsistency of approach in law and practice on sexual orientation and gender identity. In an address to an LGBT conference held in Montréal, she suggested that although the principles of universality and non-discrimination apply to the grounds of SOGI, a more comprehensive articulation of these rights in international law is needed, ‘It is precisely in this meeting between the normative work of States and the interpretive functions of international expert bodies that a common ground can begin to emerge’ (Arbour, 2006).

Furthermore, international practice was demonstrating a wide variety of approaches to addressing the human rights situation of lesbian, gay, bisexual, transgender, intersex (LGBTI) people. Although some UN Special Procedures, treaty bodies, and states preferred to speak of ‘sexual orientation’ or ‘gender identity’, others spoke of ‘lesbians’, ‘gays’, ‘transgender’, or ‘transsexual’ people and still others spoke of ‘sexual preference’ or used the language of ‘sexual minorities’. In addition, gender identity was little understood, with some mechanisms and states referencing transsexuality as a ‘sexual orientation’ and others frankly acknowledging that they do not understand the term at all.

It is in this context of such diverse approaches, inconsistency, gaps and opportunities that the Yogyakarta Principles on the application of international human rights law in relation to SOGI were conceived. The proposal to develop the Principles originated in 2005, led by a coalition of mainstream human rights and LGBT-specific NGOs subsequently facilitated by the International Service for Human Rights and the International Commission of Jurists.

Twenty-nine experts were invited to draft the principles. Coming from 25 countries representing all geographic regions, they included one former UN high commissioner for human rights, 13 current or former UN human rights special mechanism office holders or treaty body members, two serving judges of domestic courts, and a number of academics and LGBTI activists.

Launched in 2007, the principles are a coherent and comprehensive identification of the obligation of states to respect, protect and fulfil the human rights of all persons, regardless of their SOGI. The experts chose this terminology to unify the language and avoid the critique that not all cultures and identities embrace the ‘LGBTI’ label, as some view it as a ‘Western’ concept.

Since their launch, the principles have attracted considerable attention from states, UN actors and civil society. They have played a significant role within advocacy efforts and, whether directly or otherwise, in normative and jurisprudential development.

In 2016, the International Service for Human Rights (ISHR) and ARC International launched the YP+10 process to review and update the Principles, taking into account significant developments in international law and gaps in the original document that had been identified. Involving an open call for submissions and a number of consultations, the process ultimately concluded with a second expert’s meeting in Geneva in September 2017. These experts produced nine Additional Principles and more than 100 Additional State Obligations with a new list of expert signatories. The new document also expands the ‘SOGI’ terminology from the original Principles, to ‘SOGIESC’ (sexual orientation, gender identity, gender expression and sex characteristics).

Methodology

Envisioning’s methodological approach included examination of SOGI as a human rights issue addressed at the UN. A critical structural framework encompassing culture, discourses, institutions, legal framework, political systems and socioeconomic infrastructures was deployed. The research partnership with ARC International allowed security clearance to the research team and granted it access to the New York UN offices, and grey literature at the UN library. The researchers analysed data on UN SOGI voting records from 2006 to 2014 via the ARC International website. The records on states involved in the votes were compiled into two categories: potential supporters or non-supporters. The team also conducted online research through UN online databases alongside archival explorations at the New York Central Library, where its members also attended the ‘Daily Beast Quorum LGBT Voices’ forum with international human rights defenders during the Human Rights Day celebration on 10 December 2014. It should be noted that the researchers contacted all five institutions through ongoing email, social media and cold-calling from September 2014 until June 2015. Snowball sampling was also used. The team went to great lengths to secure interviews with potential participants. All those agreeing to be interviewed did so on condition of anonymity and full confidentiality. Purposive research was conducted at four UN institutions: the UNHRC, the UN High Commission on Refugees (UNHCR), the United Nations Development Programme (UNDP), and UN Women. Special rapporteurs were also contacted and interviewed. Individuals were emailed and phoned to schedule interviews, having been identified as holding positions at the UN concerned with LGBT issues.

The qualitative and semi-structured interviews (Patton, 1990; Wilson, 1996) lasted between 30 and 120 minutes, allowing participants to elaborate on their responses. Non-participatory observation was employed at the Daily Beast Quorum LGBT Voices Forum, an event that provided insights into the lives and experiences of LGBT human rights defenders across the globe. Interview questions focused on four themes under investigation by the Envisioning project: criminalisation of LGBT people; flight from violence and persecution; resistance to criminalisation; and the interaction between international treaty body human rights mechanisms and LGBT rights initiatives. The questions were derived from a literature review and feedback from co-applicants and partners of Envisioning, including ARC International. The interviews, digitally recorded and transcribed for analysis, were conducted in person, over the phone and via Skype from October 2014 to June 2015. Interviewers made every attempt to clarify comments in order to enhance participants’ understanding of the research objectives (Glesne, 2011).

The macrosociological discourse analysis perspective (van Dijk 1985a; 1985b) and the qualitative data analytical instrument (Ritchie and Spencer, 1994) provided tools to address institutional influences (hegemonic norms), existing ideologies (how policy is developed and at whom it is directed), and cultural perspectives (perceived cultural clashes between LGBT and other cultural groups). By undertaking a qualitative perspective that captures participants’ linguistics (words chosen) and, more importantly, the meaning and values associated with the words they use to express thoughts, this ‘meaning-making’ could then be attached to the themes identified by our study. Such discourses provide important information on world views, decision-making and knowledge associated with the subject matter, in this case LGBT human rights.

This study received approval from the Ethics Board at York University. Consent forms were sent to participants electronically. Their consent was also obtained orally prior to interviews being recorded. To ensure their anonymity, numerical coding was deployed (P1–12). Participants disclosed only the name of, but not their position at, the UN affiliated body for which they work. This chapter’s findings were sent to them prior to publication. Only Quorum human rights defenders were identified, since the event was hosted and publicly broadcasted online and through social media.

Interview data

The following results were derived from the above-described interviews and the presentations given by human rights defenders. Transcripts revealed six broad themes and their sub-themes: 1) language and terminology; 2) reports and guidelines; 3) UN staff internal issues and dynamics; (4) member states’ strategies to achieve/put forward LGBT rights on the agenda; 5) relations with the LGBT community; and 6) LGBT issues at the UN. Additionally, UN SOGI voting records (2006–14), provided by ARC International, were reviewed to offer the context of member states’ voting on SOGI matters.

Language and terminology

The use of language and identity in the research data is the focus of this theme. All participants had unique understandings of LGBT-related terminology, from which the researchers were able to create nine sub-themes: gender identity, sexual orientation, trans, intersex, lesbian, gay, bisexual, sexual orientation and gender identity. Furthermore, the ‘SOGI’ term captures regions and countries that may not deploy LGBT categories as identity markers or use UN terminology.

The UN participants P1–P8 and P10–P12 demonstrated a keen awareness of gender and sexual identity. None of them identified a uniform language for discussion of SOGI identity categories. For example, P3, observed,

We have this imaginary LGBTQ community that, you know, only exists because we imagine it to be so. You know, and yet we are enormously different, and I don’t think that we’re always fully aware of our differences. I think that we don’t have intersectional analyses. We think because we are LGBTQ, we are therefore not responsible for having a real political analysis. I think that’s been a huge issue, actually, and I think that LGBT groups have been taken to task for that.

On a macro level, P9 and P11 expressed their concerns about oppressive member states that do not recognise LGBT persons or terminology. As P11 proffered, ‘If you are also an LGBTI individual in a country that is not open to sexual orientation, gender identity, then you . . . the problems that you already are facing as an asylum seeker or refugee will even . . . will be much larger because of your sexual orientation and or, gender identity.’

The individuals P4, P5, P8 and P10 also confirmed the premise about regressive policies whereby LGBT individuals face persecution. Finally, in some of the interviews, the terminology around sexual and gender identity were conflated, and sexual orientation was sometimes used as an umbrella term to discuss gender identities.

Reports and guidelines

This theme explored references to reports and guidelines that UN staff and other affiliates use in responding to and treating LGBT persons and communities. Furthermore, training emerged as a sub-theme, which encapsulated the LGBT sensitivity trainings of UN staff.

Issues related to SOGI have recently gained momentum on UN policy fronts, as highlighted by P4, ‘It’s only in the last two or three years I’m starting to see more attention to LGBT issues in policy and programming.’ Participant P12 from UN Women asserted that they are developing LGBT-related policy and have appointed a lead person in the department.

The importance of developing training modules when working with LGBT refugees and asylum seekers was reported by P11 from the UNHCR:

UNHCR has developed a training package with several modules for staff and their operational partners who work with [on] refugees and asylum seekers on how to engage with LGBTI individuals. Not just engage, but how to treat them, how to identify, how to make them feel comfortable, how to open up. So, a wide range of issues: how to assist their cases, how to conduct interviews, how to address them and so forth. It has been rolled out in a couple of countries already. There is training for a number of days… training will be assembled according to the profile of the training participants.

Moreover, P8 explained how the UNHRC has prioritised LGBT matters/rights at a policy level:

We support the work of the UN Special Procedures, the special rapporteurs whose job it is to investigate and report and raise concerns with governments. So we feed a lot of information through to the special rapporteurs, and a lot of those concerns have been taken up and turned into official communication that is sent to governments asking them to . . . essentially expressing our concerns about facts that they’ve been reporting to us, and asking them to respond . . . We also, of course, do a huge amount of advocacy, so a lot of that goes on behind the scenes . . . We do a lot of public education, public information work trying to kind of put the UN brand behind a message of equality for everyone, including LGBT people.

UN staff internal issues and dynamics

This theme identified UN internal politics, which play a role in how LGBT issues and rights are discussed and addressed. The UN staff interviewed had extensive experience and expertise in their various roles. As a result, all of them commented on the UN’s internal mechanisms and dynamics, which can hinder and/or promote change on LGBT issues and rights. On the subject of employee benefits for same-sex couples, P9 highlighted the progress made and the internal conflicts it has led to among staff members:

I think the Secretary General has really taken quite an important leadership role here in acknowledging the rights of LGBT staff members ... bitter staff members would say to you, ‘Well, the Secretary-General has only engaged on this initiative in order to get re-elected two years ago’ ... but nevertheless, it is a good development, and we take it for what it’s worth.

P12 asserted that existing politics guide discussions on SOGI concerns. For instance, at UN Women, some staff ‘are very keen on looking at the gender binary as a discourse between men and women because they feel that any kind of expansion of that . . . nuancing of that takes away from the focus on the women’s movement. As you know, with many movements there is this whole thing about you protecting your constituency’.

The respondents P3 and P8 discussed how at times internal mechanisms can interfere with competing ideas and can lead to departmental power struggles. For instance, when staff members have differing agendas and belief systems, they may end up working in silos, as stated by P3:

But we don’t control what our colleagues in countries do . . . They are independent of us, whereas our regional colleagues and we are part of the same team. So there are some real differences there, and hence we are not uncommonly called out by local LGBT folks for the lack of support they get in their countries. You know? And we say, ‘Yes, you know, we work with our country office colleagues as much as we can, but we can’t control what they do.’

Other challenges can arise at the regional level as stated by P1: ‘At the country level, well, you know, a lot of UN staff won’t necessarily be aware or understand some of the challenges faced by LGBT persons. They may not have the training to understand human rights violations that they’ve faced.’

Similar insights were shared by P1, P6, P8 and P10 about how internal dynamics can affect interactions and working relationships within UN departments and their affiliated agencies.

Member states’ strategies to get LGBT rights on the agenda

States’ use of strategies to get LGBT rights included on the agenda demonstrates how they employ diplomacy, political tactics, and bargaining to advocate and/or block LGBT issues and concerns. The sub-theme of voting practices emerged, which discusses references to member states and their voting strategies.

The tension and struggles of working with UN member states were highlighted by P1–P12. For instance, P4 asserted, ‘We’re now under the microscope with member states, who ultimately control the entire UN system and expect us not to meddle in their business because it’s their business.’

The challenges in countries where LGBT rights are prohibited were discussed by P1–P3, P6 and P11 while P9 commented on the power dynamics inherent in working collaboratively with member states, such as the lengths to which some of them will go in attempting to block procedures: ‘They would allow or ascertain some reference to LGBT rights in return for other favours . . . they all want something from each other . . . there’s many small elephants in the room that we don’t see.’ Similar situations with member states and the UN’s focus on LGBT issues were echoed by P1: ‘Member states have expressed that they do not believe that the Office should be dedicating attention and resources on this issue.’ Additional tension and struggles when working with member states were disclosed by P4 and P7, the latter recounting, ‘We don’t want homosexuality imposed on this country, and we don’t want the international community and the European Union to impose any strange values on our country.’ P2 stipulated that even ‘progressive member states’, such as the United States’current Obama administration (at the time of the study), had prioritised ‘reproductive health, women’s issues, gay rights’, unlike their Republican counterparts.

Further, P8 and P9 maintained that some member states’ actions on LGBT issues can be politically motivated or interfered with. As P9 illustrated, ‘The American ambassador was going to have a cup of coffee with the Iraqi ambassador at the time of the voting, so Iraq was not present when the voting was taken . . . things like this happen all the time in the UN . . . it’s become a bit of a bargaining chip.’

The special rapporteur, P6, expressed the importance of NGOs providing information on the activities in various member states. This can be a delicate matter since special rapporteurs cannot be seen to favour NGOs over governments. ‘We receive some official information from the government but very embarrassing stuff comes from the NGOs . . . But we can’t be seen as being associated with the NGOs.’ Hence, inherent biases within the UN system itself that favour special rapporteur relations between states over NGOs can in its own way contribute to blockages or slowed progress at best.

Relations with the LGBT community

The UN has taken steps to establish trust with LGBT NGOs, persons and communities. Four sub-themes emerged while conducting the analysis. ‘Treatment of LGBT persons’ looks at how they are treated across the globe, positively and negatively. ‘Disclosure’ considers when LGBT individuals have disclosed SOGI to human right defenders, UN officials and staff. ‘Negative relations with LGBTs’ underscores actions at the UN that can create barriers for LGBT NGOs, persons and communities. Lastly, ‘Relationship building and advocacy with LGBTs’ examines the efforts of UN staff members and human right defenders to support LGBT rights, persons and communities.

Many participants discussed the treatment of LGBT persons and communities in their work with UN departments and affiliated bodies. For example, P1 recollected the criminalisation of sexual and gender expression: ‘We’ve had allegations of killings, of mob attacks, of torture, of discrimination in health, housing, employment; sexual violence and rape . . . restrictions on freedom of expression, freedom of association and assembly, or attacks on human rights defenders’.

Another respondent, P2, identified the myth of LGBT identities as Western inventions that can make promoting LGBT rights highly problematic, ‘when people say, “It’s western values”, they say, “You know, we have nothing against homosexuals because there are none in our country”’.

Participants used a range of theoretical perspectives to guide their work. Many (P3–P8, P11, P12) deployed an intersectional analysis when discussing identities. For example, according to P12,

At UN Women, it has to be seen as a multiplicity of strategies around intersectionality . . . the issues of somebody working in Malawi on these issues is very different from somebody who will work on this in Turkey and who will work on this in India and who will work on this in Pakistan, where there is a recognition, for example, of a third gender. So all of those multiple strategies need to be considered and brought into place for this work to move forward.

Many of those taking part engaged in LGBT advocacy. Some were creating awareness of LGBT issues and rights (P1–P5, P8, P10). Establishing trust with the LGBT community was also deemed important (P2, P8, P11, P12). Other participants relied on internal influence and support, sometimes covertly during a less supportive time.

Overall, UN departments, member states and countries differ to a certain extent in their interpretations of SOGI. A plethora of issues still need to be addressed in Europe and North America on LGBT human right violations. In most of the interviews, participants alluded to gains that need to be made in African, Middle Eastern and Caribbean regions, which in certain ways mitigate advancements made in these contexts.

LGBT issues at the UN

This last theme captures discussions of how LGBT gains are being made, especially when the term ‘progressive’ is applied. It also captures the shifts in attitudes, beliefs and values surrounding LGBT matters.

The policy level, according to P7 and P12, can benefit immensely from advocacy for changes to protect sexual and gender expression. As stated earlier, P12 from UN Women noted that the organisation is developing an LGBTI-specific policy, which has been part of the department’s vision while P7 highlighted the need for intersectional advocacy and the development of allies: ‘I would always go for forming alliances, maybe often new alliances, maybe surprising alliances. So in order, also, to overcome single issue advocacy. I mean, sometimes, of course, we have to also have single issue advocacy. It’s legitimate’.

International coalitional organisations like ARC International, as P9 reported, have provided space and access to non-status LGBT groups at the UN while P8 noted that visibility of LGBT matters at the UN has increased in recent years: ‘The fact that you have the issues aired so regularly at such a senior level by UN leadership, . . . big high-profile UN public information campaign, Free and Equal, all of that is giving the issue much more visibility, and in the end additional legitimacy and validity’. In addition, as P6 asserted, ‘The Office of the High Commissioner for Human Rights in Geneva has worked on LGBTI issues for the past 10 years’. Furthermore, P2, P4, P5 and P10 mentioned that gains have been made, but P3–P8 and P10–P12 were of the opinion that there is need for further work.

In summary, the findings provide insight on how human rights violations experienced by LGBT populations are being addressed by the UN and its organs.

UN SOGI voting record

The researchers analysed data on UN SOGI voting records from 2006 to 2014 via the ARC International website. Votes were divided into two categories: supporters and non-supporters. Progress represents support for SOGI resolutions. Advocacy and education by LGBT human rights defenders has had an increasingly positive influence. Over the last eight years, some states have made advances towards supporting SOGI resolutions, as their voting records demonstrate. African regions (Liberia and Mozambique) and Asian regions (the Philippines, Singapore, Sri Lanka and Vietnam) also appear to be making some progress. Most notably, in the fall of 2014, Vietnam and the Philippines supported the SOGI HRC resolution on combating violence and discrimination. In Central and Eastern Europe, the Republic of Moldova has made some headway; however, it did vote against a SOGI HRC resolution in 2011. Lastly, Latin American and Caribbean countries showing some improvements are Antigua and Barbuda, Bahamas, Barbados, Belize, Grenada, Peru, Saint Kitts and Nevis, and Trinidad and Tobago. Peru also supported the 2014 SOGI HRC resolution on combating violence and discrimination. In the Western European and North American context, voting in favour of SOGI has been consistent.

Discussion

How SOGI is challenging traditional notions of human rights

The concept of human rights has developed as society has become sensitised to the experiences and realities of varying groups of people. The conceptualisation of sexual orientation and gender identity was not initially recognised as a categorical human right in the Universal Declaration of Human Rights¹⁰ at the UN’s founding in 1948, reflecting mainstream society’s general lacunae on the subject at the time. Nevertheless, and thanks to the brave and courageous work of SOGI human rights defenders, it has gained gradual recognition at the UN through its bodies including the UNHRC, UNHCR and ECOSOC. However, this acceptance remains a work in progress, partly due to the sheer size of the UN and the number of actors to be educated on these populations, and partly due to the fluidity of SOGI and people’s subjective experiences of it. Some UN bodies are more progressive than others and the level of knowledge about SOGI varies across the UN’s bureaucratic system. Additionally, for some the aspect of their SOGI identity may be closely tied to other intersecting ones such as race, ethnicity, religion, age, class, abilities, a concept some within the UN understand, others less so. How nation states assemble social locations to target particular groups is a macro form of policymaking and criminalising that can target assemblages such as SOGI (Puar, 2007).

Yet this recognition is hard fought. Although SOGI issues and legal means of addressing them have been documented in the Yogyakarta Principles of 2007, same-sex desires remain criminalised in 72 countries (Carroll and Mendos, 2017). Nation states are also arguing for narrow definitions and family values, and advocating against what they view as the promotion of homosexuality, and for protection for their sovereign right to discriminate. Shifting such penalising views of SOGI to ones in favour of human rights is further complicated by the political dynamics among UN state representatives as well as its staff. Within this large bureaucratic structure, intense discussions, some formal and others informal, involving negotiations, trade-offs and favours, are common. Also UN staff may not be familiar with SOGI matters or how they are being handled in the nation states they deal with. Moreover, sociopolitical entanglements need to be disentangled and carefully addressed, such as UN Women grappling with the issue of trans women as part of its mandate. This group traditionally has located itself socially on the basis of biomedical notions of gender in the binary of female and male, focusing on the former. Nevertheless, the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) needs to acknowledge and address diverse gender forms within itself, such as trans bodies, in which gender identity and expression intersect (ibid., p. 22) with traditional notions of gender.

Critical analysis of colonial laws criminalising LGBTs and the implications of their existence, whether or not acted upon

What underscores the findings are the lingering effects of colonial laws criminalising LGBT persons in the countries reviewed in this study. Despite their UN membership, these countries maintain British colonialist laws along with their associated sociocultural and world-view implications. Whether sanctioned through state actors, such as law enforcement or through the social prescriptions of non-state actors, LGBT people are victimised by discrimination arising from colonisation. In turn, these disparities are then demonstrated at the UN in voting trends and the degree of support for LGBT initiatives. Actors within the UN must then grapple with increased recognition of LGBTs in policies, treaties and positions, while simultaneously being confronted with far less accommodating colonial positions. This raises serious questions regarding governments that claim to be against colonialism, but which continue to retain colonial-era laws and in some cases to even strengthen them.

The agency and resilience of LGBT defenders undertaking critical human rights work in the international arena

States commonly assert their right to abuse the human rights of LGBT people. In this hostile climate, the personal safety of LGBT human rights defenders is jeopardised, especially when they come from the countries that maintain such penalties. Similarly, the very mandates and skills of UN special rapporteurs have been challenged publicly because of their work on sexuality and gender. For example, during the second session of the UNHRC in September 2006, the special rapporteur on extrajudicial, summary, or arbitrary executions expressed concern that Nigeria retains the death penalty for homosexuality. In response,

The Nigerian delegation criticised Mr Alston for exceeding his mandate by addressing the issue of the continued imposition of the death penalty on lesbians, gays, bisexuals or transgender people (LGBT people), and used the opportunity to comment that death by stoning could be considered ‘appropriate and fair’ in the circumstances (International Service for Human Rights, 2006, p. 6).

Such reactions continue to occur despite the HRC’s adoption of the UN resolutions on SOGI in Geneva in 2011 (ARC International, 2011).

Defenders (and staff/experts) must remain resilient in the face of such hostility. Despite many obstacles, the last three decades have seen an enormous increase in the visibility and influence of LGBT human rights defenders within the international arena. For instance, not having (or losing) UN accreditation has not prevented groups from engaging with UN bodies. Many ECOSOC-accredited allied groups working on sexual and reproductive rights, women’s rights, HIV/AIDS and general human rights have been extremely helpful in accrediting representatives from LGBT organisations to attend meetings and assist with sponsorship of workshops and parallel events.

As SOGI issues gather traction and state support, the ability of groups to gain access to UN spaces and speak in their own name has increased. With larger numbers and a greater diversity of LGBT engagement facilitating access for LGBT human rights defenders of the Global South and trans and intersex groups, state and agency support becomes more compelling and a positive reinforcement cycle is created. Interviewee P8 acknowledges the importance of LGBT civil society organisations: ‘There are many positive examples where we engage on the ground with civil society in countries, and it’s crucial to our work’.

LGBT human rights defenders have used global platforms (such as the SOGI listserv) to participate in enhanced reflection and analysis about best practice and successful engagement. They have built their capacity and are aware that human rights are routinely negotiated in spaces of global politics for broader interests, such as trade, conflict and aid, and that it is highly important to understand and gauge the impact of these realities.

Defenders have also engaged in routine documentation and reporting and are responsible for a growing body of evidence on human rights violations. UN Special Procedures regularly document violations based on SOGI, and states are informed how extensive these violations are. This cannot happen without strong community relations and trust.

Conclusion

This chapter has used a postcolonial, critical, structural and intersectional framework to present our work and analyses, and has outlined the growing activism of LGBT human rights defenders at the UN, and how the latter is responding. The analysis has delved into the challenges associated with language and labels for LGBT people and how relevant they are to a multitude of cultures internationally. Data were shared and assessed using qualitative semi-structured interviews as a basis, revealing progress made on LGBT issues, yet also the amount of work that still remains to be done. The increasingly favourable voting record of UN nation states must be balanced against challenges facing the aforementioned defenders at home, and by nation states that oppose such issues. Given that numerous states continue to criminalise LGBTs, the work of these defenders is relevant and warranted so that globally these populations will one day have the rights and protections they need, in line with the mandate of the UN itself.

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1 The death penalty for homosexuality is not national law in Nigeria, yet 12 of its Northern states where sharia law is followed do impose that penalty for same-sex acts between men.

2 The death penalty for homosexuality is not national law in Somalia, yet their Southern parts have imposed sharia law through their Islamic court rulings, punishing homosexuality with flogging or the death penalty.

3 ‘Gender expression’ refers to how a person presents their gender through their physical appearance – including dress, hairstyles, accessories, cosmetics – and mannerisms, speech, behavioural patterns, names and personal references. This may or may not conform to their gender identity.

4 In 2006, in response to well-documented patterns of abuse, a group of distinguished international human rights experts met in Yogyakarta, Indonesia, to outline a set of international principles on SOGI affirming binding international legal standards with which all states must comply. The result was the Yogyakarta Principles, International Commission of Jurists, 2007, see www.yogyakartaprinciples.org (accessed 5 Oct. 2017).

5 Includes all transgender, non-binary, and gender non-conforming identities.

6 Subsequent reports on the site reveal that follow-up activities have been conducted within international fora in the wake of these recommendations.

7 Toonen v. Australia, CCPR/C/50/D/488/1992, UNHRC, 4 Apr. 1994, available at: www.refworld.org/cases,HRC,48298b8d2.html.html (accessed 4 Mar. 2018).

8 ‘Report of the special rapporteur on violence against women, its causes and consequences’, no. E/CN.4/1997/47, UN ECOSOC, 1997, available at: www.ohchr.org/EN/Issues/Women/SRWomen/Pages/SRWomenIndex.aspx (accessed 18 Dec. 2017).

9 UNGA: Resolution adopted by the General Assembly 57th session, 57/214, ‘Extrajudicial, summary or arbitrary executions’, 25 Feb. 2003 (accessed 3 Aug. 2017).

10 See www.un.org/en/universal-declaration-human-rights/ (accessed 18 Dec. 2017).