Discrimination and violence against individuals based on their sexual orientation and gender identity. Report of the Office of the United Nations High Commissioner for Human Rights (HRC 04-05-2015)
The present report is submitted to the Human Rights Council pursuant to its resolution 27/32, in which the Council requested the United Nations High Commissioner for Human Rights to update the report of the Office of the High Commission on violence and discrimination against individuals based on their sexual orientation and gender identity (A/HRC/19/41).
A. To protect individuals from violence
- States have an obligation to exercise due diligence to prevent, investigate, punish and redress deprivation of life and other acts of violence. United Nations mechanisms have called upon States to fulfil this obligation by taking legislative and other measures to prohibit, investigate and prosecute all acts of targeted, hate-motivated violence and incitement to violence directed at LGBT and intersex persons, and to provide remedy to victims and protection against reprisals.5 They have called for State officials to publically condemn such acts, and to record statistics on such crimes and the outcomes of investigations, prosecutions and remedial measures.6 The application of the death penalty on the basis of sexual orientation and gender identity violates fundamental State obligations to protect the rights to life, privacy, equality before the law and freedom from discrimination.7
B. To prevent torture and ill-treatment
- States have an obligation to protect all persons, including LGBT and intersex persons, from torture and other cruel, inhuman or degrading treatment or punishment in custodial, medical and other settings. This obligation extends to prohibiting, preventing, investigating and providing redress for torture and ill-treatment in all contexts of State control, including by ensuring that such acts are offences under domestic criminal law.9 State responsibility is engaged if public officials, including prison and police officers, directly commit, instigate, incite, encourage, acquiesce in or otherwise participate or are complicit in such acts, as well as if officials fail to prevent, investigate, prosecute and punish such acts by public or private actors.10
- The medical practices condemned by United Nations mechanisms in this context include so-called “conversion” therapy, forced genital and anal examinations, forced and otherwise involuntary sterilization and medically unnecessary surgery and treatment performed on intersex children.11
D. To protect individuals from discrimination on grounds of sexual orientation and gender identity
- The protection of rights to equality before the law, equal protection of the law and freedom from discrimination is a fundamental obligation of States under international law, and requires States to prohibit and prevent discrimination in private and public spheres, and to diminish conditions and attitudes that cause or perpetuate such discrimination.14 To this end, States should enact comprehensive anti-discrimination legislation that includes sexual orientation and gender identity among protected grounds.15 States should review and repeal discriminatory laws and address discrimination against LGBT and intersex persons, including in the enjoyment of the rights to health, education, work, water, adequate housing and social security.16
- States also have obligations to address discrimination against children and young persons who identify or are perceived as LGBT or intersex. This includes harassment, bullying in schools, lack of access to health information and services, and coercive medical treatment.17 United Nations mechanisms have called upon States to legally recognize transgender persons’ preferred gender, without abusive requirements, including sterilization, forced medical treatment or divorce.18 They have called upon States to develop education campaigns and train public officials to combat stigma and discriminatory attitudes, to provide victims of discrimination with effective and appropriate remedies, and to ensure that perpetrators face administrative, civil or criminal responsibility, as appropriate.19 States should also provide legal recognition and protection to same-sex couples20 and protect the rights of their children, without discrimination.21
E. To protect rights to freedom of expression, association and assembly and to take part in the conduct of public affairs
- States must protect the right to take part in the conduct of public affairs, without discrimination, and ensure that LGBT and intersex persons and organizations defending their rights are consulted with regard to legislation and policies that affect their rights.23 States should take measures to empower LGBT and intersex persons, and to facilitate their participation in economic, social and political life.24
- Other medical procedures that can, when forced or otherwise involuntary, breach the prohibition on torture and ill-treatment include “conversion” therapy, sterilization, gender reassignment, and unnecessary medical interventions involving intersex children (see paras. 14 above and 52, 53 and 70 below).
- The Human Rights Committee and the Committee on Economic, Social and Cultural Rights have repeatedly urged States to tackle both direct and indirect discrimination against all persons, including LGBT and intersex persons.64 States have an obligation to ensure that laws, policies and programmes executed by State authorities do not discriminate against individuals. They also have an obligation to address discriminatory practices, including by private actors, and to take action to prevent, diminish and eliminate the conditions and attitudes that contribute to substantive or de facto discrimination.
B. Discriminatory Practices
- Laws criminalizing homosexuality and the discriminatory policies, practices and attitudes of health-care institutions and personnel adversely affect the quality of health services,83 deter individuals from seeking services,84 and may lead to the denial of care or to an absence of services that respond to the specific health needs of LGBT and intersex persons. 85
- Many intersex children, born with atypical sex characteristics, are subjected to medically unnecessary surgery and treatment in an attempt to force their physical appearance to align with binary sex stereotypes. Such procedures are typically irreversible and can cause severe, long-term physical and psychological suffering. Those to have called for an end to the practice include the Committee on the Rights of the Child, the Committee against Torture, the special procedures mandate holders on the right to health and on torture.90
7. Family and community
- States’ responsibility to protect individuals from discrimination extends to the family sphere, where rejection and discriminatory treatment of and violence against LGBT and intersex family members can have serious, negative consequences for the enjoyment of human rights. Examples include individuals being physically assaulted, raped, excluded from family homes, disinherited, prevented from going to school, sent to psychiatric institutions, forced to marry, forced to give up custody of their children, punished for activist work and subjected to attacks on personal reputation. In States where homosexuality is criminalized, victims may be reluctant to report violence perpetrated by a family member for fear of the criminal ramifications of revealing their sexual orientation. Lesbians, bisexual women and transgender persons are often especially at risk owing to gender inequalities and restrictions on autonomy in decision-making about sexuality, reproduction and family life.117
VI. Conclusions and recommendations
- The present study is the second on violence and discrimination based on sexual orientation and gender identity requested by the Human Rights Council. While some progress has been made since the first study in 2011, the overall picture remains one of continuing, pervasive, violent abuse, harassment and discrimination affecting LGBT and intersex persons in all regions. These constitute serious human rights violations, often perpetrated with impunity, indicating that current arrangements to protect the human rights of LGBT and intersex persons are inadequate. There is as yet no dedicated human rights mechanism at the international level that has a systematic and comprehensive approach to the human rights situation of LGBT and intersex persons.
- The recommendations below describe measures to protect individuals from the kinds of human rights violations documented above. They draw from good practices observed in the course of compiling the report and recommendations of United Nations human rights mechanisms.
- The High Commissioner recommends that States address violence by:
- Prohibiting medically unnecessary procedures on intersex children;
- States should address discrimination by:
- Ensuring that anti-discrimination legislation includes sexual orientation and gender identity among prohibited grounds, and also protects intersex persons from discrimination;
- Sensitizing health-care workers to the health needs of LGBT and intersex persons, including in the areas of sexual and reproductive health and rights, suicide prevention, HIV/AIDS and trauma counselling;
- Ensuring that LGBT and intersex persons and organizations are are consulted with regard to legislation and policies that have an impact on their rights.
B. National human rights institutions
- The High Commissioner recommends that national human rights institutions address violence and discrimination against LGBT and intersex persons in the context of their respective mandates to promote and monitor effective implementation of international human rights standards at the national level.
5 See CCPR/C/KGZ/CO/2, para. 9, A/HRC/20/22/Add.2, paras. 5, 55, 76, CCPR/C/MWI/CO/1/Add.1, para. 10.
6 See CCPR/C/MWI/CO/1, para. 7, A/HRC/26/30/Add.3, para. 88.
7 See CCPR/C/MRT/CO/1, para. 8, A/67/275, paras. 36-38.
9 See CAT/C/GC/3, para. 39.
10 See CAT/C/GC/2, paras. 15-19.
11 See A/HRC/22/53, paras. 76-79, 88, CRC/C/CHE/CO/2-4, paras. 42-43, CAT/C/DEU/CO/5, para. 20
14 See CCPR/C/PER/CO/5, para. 8, E/C.12/GC/20, paras. 7-11, CEDAW/C/GC/28, para. 18.
15 See E/C.12/GC/20, para. 32 and, 39, CEDAW/C/CRI/CO/5-6, para. 40, CRC/C/AUS/CO/4, paras. 29-30, CRC/C/CHE/CO/2-4, para. 25.
16 See E/C.12/GC/20, para. 11, 27 and 32, E/C.12/IDN/CO/1, para. 6, CRC/C/IRQ/CO/2-4, paras. 19- 20.
17 See CRC/C/RUS/CO/4-5, paras. 24-25, 55-56, 59-60, CRC/C/GC/15, paras. 8, 31, 60.
18 See CCPR/C/IRL/CO/3, para. 8, CCPR/C/IRL/CO/4, para. 7, CCPR/C/UKR/CO/7, para. 10, CEDAW/C/NLD/CO/5, paras. 46-47.
19 See CCPR/C/ALB/CO/2, para. 8, CRC/C/TZA/CO/3-5, paras. 55-56, CAT/C/RUS/CO/5, para. 15, CEDAW/C/CRI/CO/5-6, para. 41, CCPR/C/UKR/CO/7, para. 8, CCPR/C/21/Rev.1/Add.13.
20 See E/C.12/BGR/CO/4-5, para. 17, E/C.12/SVK/CO/2, para. 10, CCPR/C/JPN/CO/5, para. 29.
21 See CRC/C/GC/15, para. 8.
23 See A/HRC/23/36/Add.2, para. 97, CEDAW/C/DEU/CO/6, para. 61, CCPR/C/IRL/CO/4, para. 7.
24 See A/69/365, paras. 24, 76, 87-91, A/HRC/26/39/Add.2, para. 110(a).
63 See also A/HRC/19/41, paras. 40-47.
64 See E/C.12/GC/20, paras. 7-11, CCPR/C/PER/CO/5, para. 8.
83 See CCPR/C/TUR/CO/1, para. 10, CEDAW/C/NOR/CO/8, paras. 33-34.
84 See CCPR/C/JAM/CO/3, paras. 8- 9, A/HRC/14/20, paras. 20-23. See also UN Free & Equal factsheet, “Criminalization” (available at www.unfe.org/en/fact-sheets).
85 See A/64/272, para. 46.
90 See CRC/C/CHE/CO/2-4, para. 42, CAT/C/DEU/CO/5, para, 20, A/HRC/22/53, para. 88, A/64/272, para. 49.
117 See A/68/290, para. 38, A/HRC/20/16/Add.4, para. 20, A/HRC/22/56, para. 70, A/HRC/26/38/Add.1, para. 19.