On the road to equality: the UN resolution that breaks through discrimination based on sexual orientation and gender equality

On the 28th June 2016, the Human Rights Council of the UN adopted a historic resolution on « Protection against violence and discrimination based on sexual orientation, and gender identity » and appointed an independent expert on the subject.

This resolution builds upon two previous resolutions (2011; 2014) and condemns violence and discrimination based on sexual orientation and gender identity. It was adopted by 23 countries in favour, 18 against and 6 abstentions*. The task of the independent expert is to assess the implementation of the current existing human rights protecting LGBTI people, identify the best practices and the gaps in terms of protection, raise awareness and address the roots causes of violence and discrimination based on sexual orientation and gender identity. The expert will also engage dialogue and work with States and other relevant stakeholders to implement protective measures and should help and support the work of national human rights organisations. Furthermore, this expert is appointed for three years and will report annually on the situation of LGBTI rights around the world.

The Co-President of the LGBTI Intergroup, Ulrike Lunacek reacted: “This is a truly historic resolution. The Human Rights Council has taken a fundamental step forward by reaffirming one of the United Nations’ key principles—that everyone is equal in dignity and rights. At the same time it acknowledges that LGBT people across the world continue suffer from (state-sponsored) discrimination and violence because of their sexual orientation or gender identity. I believe that the independent expert can play a key role in addressing this.”

This text was presented jointly by a core group of seven Latin America countries – Argentina, Brazil, Chile, Colombia, Costa Rica, Mexico, Uruguay – and 41 additional countries. It is the result of a major campaign of 628 NGO’s from 151 countries calling on the Council to adopt the resolution and appoint an independent expert on sexual orientation and gender identity. Latin American organisations played an important role in building a common course to address this issue.

This resolution is a boost for the work of LGBTI organisations all around the world. As Alain Kra of Espace Confiance points out “to have an Independent Expert can be a real ‘game-changer’ in counter-acting violence” and should ease the work of human rights defender.

The resolution states the universal nature of international human rights although some questionable amendments were brought to the text with reference to cultural relativism. Sadly, this reminds us of the hesitant Council conclusions on LGBTI Equality (22th June 2016). Indeed, in this document – the first of the Council to address LGBTI equality – the Commission is required to promote measures of the List of actions to advance LGBTI Equality. However, it states that in its actions it should “fully respect… Member States’ national identities and constitutional tradition”. These arguments are often set forth to prevent taking significant action to promote LGBTI equality and legitimizes homophobic and transphobic behaviours. Tradition cannot justify discrimination and violence based on one’s sexual orientation and gender identity.

The EU law on protection from violence and discrimination based on sexual orientation and gender identity

The Charter of Fundamental Rights prohibits discrimination based on sex and sexual orientation and the article 19 TFEU allows the EU to take action against discrimination based on sex and sexual orientation. However, gender identity is not explicitly recognized as a ground for discrimination and is not mentioned in any Treaty. Nonetheless, four Directives mention “gender identity”, “gender reassignment” and “gender expression” in order to protect trans and gender non-conforming people against discrimination in four areas:

Access to and Supply of Goods and Services: the Directive 2004/113/EC establishes the principle of equal treatment of men and women in the access to and supply of goods and services, trans are covered on the grounds of gender reassignment.
Employment and Social Security: the Directive 2006/54/EC established the principle of equal opportunity and treatment of men and women in matters of employment and occupation, trans are covered on the grounds of gender reassignment.
Crime Victim’s Rights: the Directive 2012/29/EU establishes minimum standards on the rights, supports and protection of victims of crime, trans are covered on ground of gender expression and gender identity.
Asylum: the Directive 2011/95/EU established standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted. The Directive 2013/32/EU establishes common procedures for granting and withdrawing international protection. For these two directives trans are covered on grounds of gender identity.

As the 2015 Eurobarometer reminds us, there is still a lot that needs to be done to achieve LGBTI equality: 60% of European citizens observe discrimination based on sexual orientation or gender identity.

Gender should not be understood as a mutually exclusive variable that is either feminine or masculine, gender equality strategies should encompass transgender and homosexual issues because sexism, homophobia and transphobia stem from the same discriminative mechanisms. Hopefully, the UN Resolution will pave the way for further political engagement and action to protect the fundamental rights of LGBTI people.

Elisa Neufkens

* Voting results

Voting in favor of the resolution :

Albania, Belgium, Bolivia, Cuba, Ecuador, El Salvador, France, Georgia, Germany, Latvia, Macedonia, Mexico, Mongolia, Netherlands, Panama, Paraguay, Portugal, Republic of Korea, Slovenia, Switzerland, UK, Venezuela, Viet Nam

Voting against the resolution :

Algeria, Bangladesh, Burundi, China, Congo, Cote d’Ivoire, Ethiopia, Indonesia, Kenya, Kyrgyzstan, Maldives, Morocco, Nigeria, Qatar, Russia, Saudi Arabia, Togo, United Arab Emirates

Abstaining on the resolution :

Botswana, Ghana, India, Namibia, Philippines, South Africa

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