6.3 Identifying and Interpreting Dominant Themes
6.3.1 Contested Universality of SOGI
As mentioned, sexual orientation and gender identity have no geographical boundaries. Whilst the terminology used to describe variances in gender identity or sexuality may have changed across time and continents, countries and even communities within states, these differences to the binary gendered and heterosexual norms exist and have existed everywhere. As evidenced in the debates above, many states in support of the successive SOGI resolutions have emphasised this global geographical spread of both sexual and gender minorities and the discrimination and violence experienced by them. Attempts to emphasise the universality of the issue have recognised the domestic concerns even within the supporter states. In 2014, the US delegate lamented the global impact of such violence and discrimination throughout many states “including my own”, while in 2016 the representative of the UK stated “[t]his affects people in this room, people in my team”
(UNHRC, 2014i; UNHRC, 2016l). Stressing the universality of the violence and discrimination in this way has perhaps been an attempt to avoid finger pointing; something that the South African delegation determined was necessary to achieve progress (UNHRC, 2019m).
Despite this a prevailing counter narrative to SOGI rights has been the rejection of the universality of sexual orientations and gender diversity. This claim has been presented in two ways, firstly that these terms have no universal definition in international legal systems and secondly that these are ideas particular to Western countries and are being imposed on countries in which sexual and gender minorities did not exist.
In 2011, Nigeria made this claim on behalf of the African Group in response to the Colombian led statement (Nigeria, 2011). South Africa’s abandoned 2011 resolution, 16/L.32, was based on the perceived necessity to define the “new concept” of sexual orientation and gender identity (South Africa, 2011b). Pakistan, on behalf of the OIC except Albania, has consistently claimed that the concept lacks definition in response to 17/32 in 2011, 32/2 in 2016 and 41/18 in 2019 (UNHRC, 2016a; 2016b; 2016j; 2019a; 2019b; 2019h; 2019i). Such claims were also supported in 2014 when Egypt warned that a “new category of persons” would be created (UNHRC, 2014h), as well as in 2016 by Egypt, the Permanent Observer Mission of the African Union and three times by Botswana on behalf of the African Group (UNHRC, 2016l; Permanent Observer Mission of the African Union, 2016;
UNGA, 2016a; 2016b). These efforts to deny the existence of sexual and gender minorities have been manifested in repeated attempts to erase all references to sexual orientation and gender identity in successive resolutions in 2014 (27/32), 2016 (32/2) and 2019 (41/18) as well as refusals to engage on the topic, for example at the 2012 panel discussion walk out and the succession of assertions of state’s disassociating from the work of the IE SOGI.
Whilst there has not been a universally approved, standard definition for SOGI enshrined within any international instruments through the UN, this claim has consistently failed to acknowledge several key legislative frameworks that have recognised the rights of sexual and gender minorities. Firstly, the 2007 Yogyakarta Principles, drafted by 29 international human right activists including Vitit Muntarbhorn who a decade later was appointed the first UN IE SOGI, had already detailed the existing global legal frameworks applicable to the protection of sexual and gender minorities (Corrêa
128 and Muntarbhorn, 2007). These principles clearly identify the obligations incumbent upon all states to ensure the protection of sexual and gender minorities under existing human rights instruments (O’Flaherty and Fisher, 2008). These have since been augmented in 2017 with a further nine principles and 111 state obligations to protect against violations against citizens of diverse sexual orientations or gender identities (Cabral Grinspan et al, 2017).
Secondly, there exists a plethora of domestic laws that have included sufficient references to sexual orientation and gender identity with the legislative frameworks of many opposition countries.
Notably, Nigeria clearly identified sexual orientation within the SSMPA of 2014, while Uganda relied on a definition of sexual orientation in the development of the AHA 2014, which predated resolution 17/19 of 2011 and it was argued in the Ugandan parliament that the earlier EOCA 2007 was required to define sex as “the natural state of being male or female” (Parliament National Assembly (Uganda), 2006:4). In addition, 68 UN member states have domestic laws that make same-sex sexual activity illegal including in 32 African legislatures (Mendos, 2019:47).
Whilst some of these laws may not be implemented, the number of states detailed in ILGA State Sponsored Homophobia report that continue to target citizens of diverse sexualities and gender identities and expressions, suggests that no international legal definition is required to target people for discrimination and violence on SOGI basis (Mendos, 2019). Indeed, a member of the Rwandan UN delegation noted in 2012:
“Mr. President, whether the concept of ‘sexual orientation’ is defined or not, whether or not we support the claims of people with a different sexual orientation, whether or not we approve of their sexual practices, we must deal with the urgency of these matters and recognise that these women and men, these human beings, continue to be the target of murder in many of our societies and are even more at risk than many of the other groups listed. … Believe me, Sir, that a human group does not need to be legally defined to be the victim of execution or massacre, since those who target their members have previously defined them” (official UN translation from French, emphasis added, UNGA, 2010:17-18).
In addition, as noted by the US delegation during the 2016 UNGA debate to reject the African Group motion to suspend the mandate of the newly appointed IE SOGI, the UPR has included over 1,300 SOGI recommendations, some of which have been accepted by the opponents of the mandate, and in the ACHPR resolution 275(LV)2014 (UNGA, 2016f).
Regardless of any universally agreed international legal definitions, sexual and gender minorities have been targeted throughout the world for discrimination and violence. Additionally, it is not unusual for the UN to adopt resolutions on issues that have no legal definition. Indeed, as noted in 2016 by New Zealand, on behalf of the EFTA+, one purpose of the IE SOGI mandate would be to find the international consensus the opponents demanded, especially since 32/2 included the necessity for the mandate holder to develop knowledge on SOGI rights (UNGA, 2016f).
129 Since this claim has no firm foundation, it is necessary to interpret the intention of this narrative. To some extent the disagreement on this issue reflects the wider international debate on the universality of human rights. Despite decades of human rights discourse at the international and domestic state level (since the 1948 UDHR) the concept of universal human rights remains contested, especially when the proposed rights appear to conflict with traditional beliefs and attitudes (Hunter, 2010:8). By claiming these rights are not universal opponents have maintained that they have no sexual and gender minorities in their societies. This was evidenced in 2003 when the unnamed African delegate, responding to the Brazilian resolution (E/CN.4/2003/L.92), observed that homosexuality didn’t exist in their country (Girard, 2007:344).
Whilst the aim of all the SOGI rights resolutions was to bring attention to marginalised communities and ensure that their suffering, through discrimination and violence, was no longer ignored, opponents to the resolutions have wanted to deny their existence within their own populations. The repeatedly tabled amendments of the African Group and the OIC (excluding Albania) sought to remove all references to SOGI and any references to previous resolutions on the matter; this was a literal and symbolic act of erasure of sexual and gender minorities. In their claims that these rights were not universal, often stating that they are a Western issue only, opponents have demonstrated a strong desire to silence or erase the subject and to erase the existence of sexual and gender minorities.
Indeed, these repeated claims to a lack of definition despite years of debate have highlighted the unwillingness of those states opposing these rights to engage in any efforts to define the contested terms. The disingenuity of this argument was apparent in the lack of African support for South Africa’s aborted 2011 resolution (16/L.27), the walk out of African Group and OIC states from the 2012 debate and the lack of state level engagement in the African regional conference hosted by South Africa in 2016. The mandate holder of the IE SOGI has consistently mentioned the importance of open and constructive dialogue to the successful implementation of his mandate, such as in 2019 when he stated “it is fundamental for my mandate to actually ensure, to be available for, dialogue and this is what I intend to do as long as I have a mandate to do so” (UNHRC, 2019b), something for which the South African Ambassador to the UNHRC praised Madrigal-Borloz (UNHRC, 2019m). Yet hardly any members of the African Group have ever acknowledged or engaged with the IE SOGI during his interactive dialogues.
To counter the claim that these are Western rights, successive resolutions have been led by states of the global South. Initially by South Africa in 2011 and subsequently by various groups of Latin American countries, which have often stressed the cross-regional co-sponsorship of their resolutions. A prominent support narrative has been that SOGI rights are demanded not just for the global South, but for all regions. Within this argument, South Africa has been an important ally to ensure state representation from the African continent, although coalitions of African NGOs and activists have also been employed. However, this claim has been used to deny the existence of sexual and gender minorities and has served to silence any domestic claims of violence or discrimination.
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