SOGI UN Database

The SOGI UN Database contains material from the ICJ UN compilations on sexual orientation and gender identity in international human rights law. The ICJ began the project of documenting UN references to violations experienced by LGBT individuals in 2003 and issued its first UN compilation in 2005. We are very pleased now to be able to present this enormous amount of material in a searchable electronic database and we are very grateful to HURIDOCS for making it happen.

Although the ICJ UN compilations also contain speeches, statements, and reports from other UN agencies, the SOGI UN Database consists primarily of documents from the treaty bodies and special procedures of the Human Rights Council and its predecessor, the Commission on Human Rights.

• Treaty bodies are committees of independent human rights experts, serving in their individual capacity, that meet periodically to review the compliance of State parties with their treaty obligations. There are ten treaty bodies, one for each international human rights treaty, and they each have mandates to consider State reports.^[1] They issue their “concluding observations” on State implementation of their treaty obligations. Treaty bodies also adopt “general comments” or “general recommendations” offering authoritative guidance on the interpretation of specific treaty provisions. In addition, most treaty bodies are empowered to receive communications from individuals alleging violations by States, provided the State party has formally accepted the competency of the treaty body to do so. These treaty bodies publish their findings on individual complaints in the form of views or decisions (known collectively as jurisprudence).

• More information about the treaty bodies can be found here: http://www.ohchr.org/EN/HRBodies/Pages/TreatyBodies.aspx.

• Special procedures are independent human rights experts, serving in their individual capacity, appointed by the UN Human Rights Council to advise and report on human rights situations. They have either a thematic or country-specific mandate. Special procedures is a generic term encompassing individual special rapporteurs, special representatives, and working groups. Although the tasks of special procedures are defined in the specific resolutions creating their mandates, in general they make country visits, raise issues of concern and alleged violations with governments, and undertake thematic studies or expert consultations. They report annually to the Human Rights Council and some also report to the General Assembly. In addition, the Working Group on Arbitrary Detention is empowered to investigate cases and determine whether any deprivation of liberty is arbitrary, in violation of international standards.

• More information on special procedures, including links to the specific mandates, can be found here: http://www.ohchr.org/EN/HRBodies/SP/Pages/Welcomepage.aspx.

The documents are organized and searchable by source. We have listed all of the treaty bodies individually as well as those special procedures with the greatest number of documents. The remaining special procedures and other sources are grouped under the heading Other. In addition, it is possible to browse the SOGI UN Database by region, country, or keyword.

The UN human rights system has contributed significantly to drawing attention to the extreme violations experienced by people on the basis of their sexual orientation or gender identity. Abuses range from torture, sexual assault and murder to denial of access to basic services, including education, housing and employment. They are committed at the hands of both state and non-state actors. In more than 70 countries, laws that criminalize same-sex sexual activity are used to arrest and detain individuals and to justify other forms of discrimination. Public vagrancy or loitering laws are used to target trans people and many countries refuse to legally recognize a change of gender.

At the same time, the UN human rights mechanisms have contributed to advancing the state of international human rights law, beginning with the landmark decision of the Human Rights Committee in Toonen v. Australia in 1994. Treaty body jurisprudence and general comments are authoritative interpretations of State legal obligations by independent expert bodies. Treaty body jurisprudence is frequently cited by national courts. For example, Toonen produced a change in the legal regime in Australia, at both the state and federal level. It has also been relied upon by courts in Colombia, Fiji, Hong Kong, India, Nepal, the Philippines, and South Africa, among others, in cases involving discrimination on the basis of sexual orientation.^[2] General comments and general recommendations are included because they are based on treaty body jurisprudence and concluding observations and thus represent a summary of treaty body interpretations of the law.

The treaty bodies have repeatedly affirmed that all human rights are universal and that sexual orientation and gender identity are grounds protected from discrimination under international law

There have been recent advances in the protection of LGBT human rights at the international level. In 2011 the Human Rights Council adopted an historic resolution on human rights, sexual orientation and gender identity.^[3] This was the first resolution by the Human Rights Council on this topic, although resolutions by the General Assembly on extra-judicial executions had included sexual orientation and more recently gender identity in a list of vulnerable grounds. As mandated by the Human Rights Council resolution, the Office of the High Commissioner for Human Rights (OHCHR) produced a comprehensive survey titled “Discriminatory Laws and Practices and Acts of Violence against Individuals Based on their Sexual Orientation and Gender Identity.” In September 2012 the OHCHR published a booklet titled “Born Free and Equal: Sexual Orientation and Gender Identity in International Human Rights Law,” which sets forth the core legal obligations of states on the basis of the work of the treaty bodies and special procedures. Also in 2012 the United Nations High Commissioner for Refugees, which had previously issued a Guidance Note, published “Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity.” Under the heading Additional Resources (below) we have provided links to these documents and much more.

In the Fifth Edition, we highlighted some important developments:

• Beginning in December 2010, CEDAW began to regularly include sexual orientation and gender identity as vulnerable grounds in its General Recommendations, particularly in comments on intersectionality and multiple forms of discrimination.
• Throughout the treaty bodies, transgender-specific issues, such as surgery, access to identity documents, and sterilization, have become more integrated.
• Treaty bodies are also raising concerns about partnership benefits for same-sex couples.
• In a new sexual orientation case, Irina Fedotova v. Russian Federation, the Human Rights Committee held that the ban on homosexual propaganda in the Ryazan Region violated Irina Fedotova’s rights to freedom of expression and non-discrimination. In doing so, the Human Rights Committee reversed its 1982 decision in the case of Hertzberg v. Finland.
• The Working Group on Arbitrary Detention has clearly identified forced anal examinations as medically worthless and in violation of the prohibition on torture and other forms of cruel, inhuman or degrading treatment.

Serious problems persist. Lesbian, gay, bisexual and transgender people face discrimination and unlawful violence at the hands of both State and non-state actors. Transgender people, particularly trans women who are or are perceived as sex workers, are especially vulnerable to hate crimes including murder.^[4] LGBT human rights defenders are under attack, as the 2010 report of the Special Rapporteur on the Situation of Human Rights Defenders highlights. There has been a proliferation of laws and draft laws that would restrict public mention of homosexuality and also, although less frequently, “lesbianism” and “transgenderism.” The Anti-Homosexuality Bill in Uganda would not only impose the death penalty for “aggravated homosexuality,” it would also criminalize basic human rights advocacy through restrictions on expression, association and assembly. In Nigeria, the parliament adopted a “Same-Sex Marriage (Prohibition) Bill” that, if signed into law, would not only impose a sentence of 14 years’ imprisonment for the public display of affection but would also prohibit all advocacy on behalf of LGBT human rights.

The limitations of the UN human rights system are also readily apparent in this compilation. Treaty bodies cannot review the human rights records of States that are not parties to the respective treaties. Even where States are party to a particular treaty, they have often not become party to the relevant optional protocol on communications or made the necessary declaration to enable that treaty body to hear individual complaints. Treaty bodies are highly dependent on the submissions made by civil society to find out how laws and policies are applied in practice. Without reporting by civil society, treaty bodies may be unable to accurately assess State claims regarding compliance with treaty obligations. But just as civil society involvement is crucial, the work of civil society in many countries is increasingly repressed.

By contrast, special procedures are not geographically limited. They may receive allegations concerning a State regardless of whether a State is party to any particular human rights treaty. They are, however, limited in terms of their subject matter. In the case of discrimination and violence against LGBT individuals, there is often a protection gap. A man who is physically assaulted because of his sexual orientation or gender identity cannot file a complaint with the Special Rapporteur on Violence Against Women. If he is not a human rights defender, he cannot go to the Special Rapporteur on the Situation of Human Rights Defenders. If the situation did not involve expression or assembly and he is not being detained and he has not been killed, it may be difficult for him (or his family) to meaningfully access the special procedures. Such an individual could slip through the cracks in the UN human rights system. Unfortunately, these kinds of incidents are all too common. While the special procedures have performed an exemplary role at integrating the human rights concerns of LGBT people into their mandates, there are some violations of rights that are not addressed at all by the existing system. The ICJ hopes that this database will serve to both document existing abuses of human rights and encourage advocacy to remedy this problematic protection gap.

Finally, it is important to keep in mind that the UN human rights machinery could not function at all were it not for the many individuals and organizations around the world who bring their situations to the attention of the treaty bodies and special procedures. The ICJ commends their dedication to the cause of human rights.

ADDITIONAL RESOURCES

Human Rights Council Resolution 17/19 on Human Rights, Sexual Orientation and Gender Identity: http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session17/Pages/ResDecStat.aspx

“Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity: Report of the United Nations High Commissioner for Human Rights”: http://www.ohchr.org/EN/Issues/Discrimination/Pages/LGBTUNReports.aspx

“Born Free and Equal: Sexual Orientation and Gender Identity in International Human Rights Law”: http://www.ohchr.org/EN/Issues/Discrimination/Pages/BornFreeEqualBloket.aspx

General Assembly Resolution 67/168 on extrajudicial, summary or arbitrary executions: http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/67/168

“Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity: Report of the United Nations High Commissioner for Human Rights”: http://www.ohchr.org/EN/Issues/Discrimination/Pages/LGBTUNReports.aspx

“Born Free and Equal: Sexual Orientation and Gender Identity in International Human Rights Law”: http://www.ohchr.org/EN/Issues/Discrimination/Pages/BornFreeEqualBloket.aspx

General Assembly Resolution 67/168 on extrajudicial, summary or arbitrary executions: http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/67/168

Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees: http://www.refworld.org/docid/50348afc2.html

Speeches and statements of Secretary-General Ban Ki-Moon, High Commissioner Navi Pillay, and Assistant Secretary-General for Human Rights Ivan Simonovic: http://www.ohchr.org/EN/Issues/Discrimination/Pages/LGBTSpeechesandstatements.aspx

HIV and the Law: Risks, Rights, Health: Report of the Global Commission on HIV and the Law: http://www.hivlawcommission.org/index.php/report.

UPR website: http://www.ohchr.org/EN/HRBodies/UPR/Pages/UPRMain.aspx

UPR SOGI-Related references: http://arc-international.net/global-advocacy/universal-periodic-review

Universal Human Rights Index: http://uhri.ohchr.org/en