Nov 21, 2019 | News
The Upper House of Parliament must revise the Transgender Persons (Protection of Rights) Bill, 2019, which was passed by the Lower House of Parliament on 5 August 2019.
The Bill does not adequately protect the rights of transgender people, and fails to comply with India’s constitutional and international human rights obligations, the ICJ said today.
The Government introduced the Transgender Persons (Protection of Rights) Bill, 2019, before the Parliament on 19 July 2019. It was passed by the Lok Sabha (the Lower House of Parliament) on 5 August, 2019, despite a lack of consultation with the transgender community and serious weaknesses in the Bill, which would be in violation of the Supreme Court’s NALSA judgment.
“If the Upper House of Parliament adopts the Bill in its current form, without any amendments, it will miss an important opportunity to introduce a law that respects, protects and fulfills the human rights of transgender people as required by the Supreme Court’s decision in NALSA v. UOI and India’s international obligations,” said Frederick Rawski, ICJ Asia Pacific Director.
The current draft, fails to address key concerns that have been repeatedly raised by the transgender community and human rights organizations.
Critically, the Bill appears to continue to mandate sex reassignment surgery for transgender people. This requirement would contravene the Supreme Court’s judgment in NALSA v. UOI, which guarantees the right to self-identification without the need for medical intervention. Further, the Bill does not make provision for affirmative action in employment or education despite the Supreme Court’s mandate in NALSA v. UOI.
Moreover, the Bill sets out lighter sentences for several criminal offences, such as “sexual abuse” and “physical abuse”, when they are committed against transgender people. In addition, the Bill does not adequately define these offences and retains provisions that could be used in a discriminatory manner to target transgender people for criminal prosecution. It also fails to address the lack of an effective mechanism to enforce the legal prohibition against discrimination on the ground of gender identity.
The ICJ has recommended the deletion of provisions that mandate sex reassignment surgery and that set out lighter sentences for criminal offences against transgender people. In addition, the ICJ recommends the inclusion of provisions addressing affirmative action for transgender persons in education and employment.
“We urge the Upper House of Parliament to address these deficiencies before passing the Bill into law, in accordance with India’s constitutional and international law obligations, and to ensure meaningful consultation with the transgender community” Rawski said.
Contact
Maitreyi Gupta (Delhi), ICJ International Legal Adviser for India, e: maitreyi.gupta(a)icj.org, t: +91 7756028369
Read also
ICJ 2019 Report on India Living with Dignity: Sexual Orientation and Gender Identity-Based Human Rights Violations in Housing, Work, and Public Spaces in India. The Report details human rights violations suffered by LGBTQ persons in their family homes, workplaces, and public spaces including streets, public toilets, public transport and shopping centres.
ICJ Briefing Paper on India: Legal and Jurisprudential Developments on Transgender Rights, SAATHII Vistaara Coalition. The paper analyses in detail the domestic judicial developments on transgender rights as well as the legislative process undertaken until the Transgender Persons (Protection of Rights) Bill, 2018 was passed on 17 December 2018.
ICJ Briefing Paper on The Transgender Persons (Protection of Rights) Bill, 2016, analyzes the 2016 Bill, its shortcomings, and India’s international obligations, as it is the basis of the 2018 Bill.
ICJ Briefing Paper on Implementation of NALSA Judgment discusses the 2014 April NALSA decision that affirmed that transgender people have the right to decide their self-identified gender. The paper analyses the responsibilities placed on Indian authorities, gaps in implementation, and India’s relevant international law obligations.
Nov 8, 2019 | Advocacy
Myanmar’s criminal laws are outdated and fail to respect and protect human rights, especially the rights of LGBTQ people and rights enshrined in binding international human rights treaties. This is the key finding of the new report ‘In the Shadows: Systemic Injustice Based on Sexual Orientation and Identity/Expression in Myanmar’.
The Denmark-Myanmar Programme on Rule of Law and Human Rights, implemented by the ICJ in partnership with Danish Institute for Human Rights commissioned this report. The report team was made up of ICJ staff who are part of the Denmark Myanmar Programme. Legal review was also provided by advisers from the ICJ team. The report is endorsed by three leading local LGBTQ and human rights organizations and one network : LGBT Rights Network, Colors Rainbow, Kings N Queens, and Equality Myanmar.
The report highlights emblematic cases and recurring human rights violations against LGBTQ people in Myanmar. Research for the report included interviews with 70 respondents from across several states to ascertain their experiences and impressions of the criminal justice system. All testimonies are anonymous and all identities are pseudonyms.
The report highlights the outdated laws that continue to affect the lives of LGBTQ people, including Section 377 of the Penal Code which criminalizes consensual same-sex conduct. Even though not commonly enforced, the fact that this law remains in place since the colonial era legitimizes prejudice, discrimination and extortion against LGBTQ people. India’s Supreme Court decided only last year that criminalization of consensual same-sex relationships under Section 377 is a violation of the Indian Constitution and is in breach of India’s obligation under international law. That is the reason why Myanmar should follow this trend and repeal Section 377 as soon as possible or at least insofar it criminalizes same-sex relationships.
Other criminal provisions that play a large part in justifying abuse against LGBTQ people are the “Shadow Laws” or “Darkness Laws” – the colloquial name of colonial era legislation that can restrict citizens’ ability to be in public after dark without an accepted justification. These provisions – from which the report’s title is drawn – are primary examples of criminal laws that are misused against LGBTQ people and result in ongoing stigmatization, human rights violations and overall injustice. Some of their provisions are vague and overbroad and are therefore open to serious abuse. Law enforcement officials too easily invoke these provisions to harass, threaten, detain and even bring spurious charges against LGBTQ people. Research from the report documents how these criminal laws have been used to enter LGBTQ people’s homes, accuse them of ‘committing unnatural sex’, take them into police custody, and to subject them to abuse.
This report further details the discriminatory attitudes of law enforcement officers, which contribute to LGBTQ people being targeted and subjected to unjust and unfair treatment within the criminal justice system. The mistreatment takes many forms, from arbitrary accusations and ensuing detentions, physical, sexual and verbal assaults, and coerced concealment of sexual orientation and gender identity/expression. Given the biased, discriminatory and at times violent behavior towards them, LGBTQ people have come to mistrust law enforcement agencies and avoid the justice system wherever possible.
‘In the Shadows’ identifies the problematic attitudes of certain key players in Myanmar’s criminal justice system with respect to Sexual Orientation, Gender Identity/Expression issues. Core concerns include the discriminatory treatment and the barriers to justice LGBTQ people face, from their role in public life, or as a detainee, witness or suspect in court.
The report concludes with a set of recommendations that seek to make existing law and policy more protective of LGBTQ peoples’ rights. This includes the repeal of Section 377 of the Penal Code, at least insofar as it criminalizes consensual same-sex sexual conduct, the reform of the ‘Shadow Laws’, and cessation of all discriminatory arrests and detentions.
Human rights and LGBTQ rights activist and contributor to the report, U Aung Myo Min, sums up the importance of ‘In the Shadows’: “The stories in this report highlight the suffering, intimidation, and threats faced by LGBTIQ in Myanmar today. These injustices must be stopped, and we all have a moral imperative to be part of the solution.”
We are committed to working with main stakeholders in the country, such as the Parliament, the Police, GAD, actors of the legal system and the Myanmar National Human Rights Commission. We are willing and prepared to provide full support, expertise and advice to the Myanmar Parliament in pursuit of the repeal of Section 377 of the Penal Code, the provision for ‘unnatural at least insofar as it criminalizes consensual same-sex sexual conduct, to enact anti-discrimination legislation in Myanmar, to become a party to nine core international human rights treaties, to establish legal gender recognition for transgender persons, to reform vague and discriminatory laws.
This statement is endorsed by: LGBT Rights Network, Colors Rainbow, Kings N Queens and Equality Myanmar.
Report
Download In the Shadows: Systemic Injustice Based on Sexual Orientation and Identity/Expression in Myanmar in English.
Oct 15, 2019
Today the ICJ, together with ILGA-Europe, the AIRE Centre and Human Rights Watch, submitted a joint third-party intervention to the European Court of Human Rights in the case of Oganezova v. Armenia (Application nos. 71367/12 and 72961/12).
In their written submissions to the Court, the interveners addressed the following issues:
(a)
under European and international human rights jurisprudence, the victim’s identity as an lesbian, gay, bisexual or transgender (LGBT) person is relevant to the assessment of whether the threshold for torture and other ill-treatment under Article 3 of the European Convention of Human Rights (ECHR) has been met. Specifically, the discrimination directed towards LGBT persons may indicate a particular motive and intent that may meet the threshold of Article 3 ECHR;
(b)
the Contracting States have a positive obligation to protect persons in their jurisdiction from violence and harassment based on their real or imputed sexual orientation and/or gender identity or expression, including the obligation to prevent, investigate, prosecute, punish and remedy such acts. In particular, Contracting States have the additional procedural obligation to take all reasonable steps to establish whether any hatred or prejudice connected to a protected characteristic may have played a role in the violent attack, where acts of violence are motivated in whole or in part by prejudice against an individual’s real or imputed sexual orientation and/or gender identity or expression; and
(c)
That the attitudes and practices in responding to violence and harassment against LGBT people in Armenia provide important contextual information in analyzing the case.”
Europe-Oganezova v. Armenia-Advocacy-Legal Submission-2019-ENG (full text of submission, in PDF)
Jul 21, 2019
On 19 July, the ICJ, jointly with ILGA Europe, FIDH, KPH and NELFA submitted a third-party intervention in the case of X. v. Poland before the European Court of Human Rights.
The case concerns the refusal of the Polish authorities to grant a lesbian mother custody of her children.
It raises issues concerning whether such a refusal is the result of discrimination on the grounds of her sexual orientation, and therefore, as such, would constitute prohibited discrimination in the enjoyment of Convention rights, contrary to Article 14 of the Convention, read in conjunction with Article 8.
In the brief, the ICJ, together with its partners, set forth the current status of play of the case-law related but not limited to child custody decisions where one or both of the parents are lesbian, gay, bisexual, transgender or intersex (LGBTI) individuals.
The third-party interveners have urged the Court to build upon its recent jurisprudence asserting and protecting the rights of LGBTI persons by drawing on its approach to consider the European Convention on Human Rights as a living instrument that needs to be interpreted in the light of present-day conditions.
Europe-X v Poland_TPI-Advocacy-Legal submissions-2019-ENG (full intervention, in PDF)
Jul 17, 2019 | News
On 16 July 2019, the European Court of Human Rights found Russia’s refusal to register associations set up to promote and protect the rights of lesbian, gay, bisexual and transgender (LGBT) people to violate the rights to freedom of association and to be discriminatory on the grounds of sexual orientation.
The Court’s judgment was informed by a third party intervention submitted jointly by the ICJ, the European Human Rights Advocacy Centre (EHRAC) and ILGA-Europe on 29 July 2016.
The cases were brought by Russian individuals and non-profit organizations (Rainbow House, Movement for Marriage Equality and Sochi Pride House) (Zhadanov and others v. Russia).
The organizations’ registration requests were refused by the authorities and the domestic courts because of formal irregularities in their applications and because their aim was to promote LGBT rights.
In a unanimous judgment, the Court reiterated the importance for individuals to be able to join together to act collectively and establish legal entities. Rejecting as “unconvincing” the Government’s assertion that the applications were refused on procedural grounds, the Court found that in order to obtain registration the organizations would have had to renounce their aims of promoting LGBT rights: “Those grounds touched upon the very core of the applicant organisations and affected the essence of the right to freedom of association”.
Referring to Russia’s submission that the organisations were refused registration to prevent social or religious hatred and disorder, the Court reminded States that they have a positive duty to guarantee the proper functioning of associations, even when they annoy or give offence.
In the present case, rather than taking steps to enable the organizations to carry out their activities without fear of violence, the authorities instead “decided to remove the cause of the tension and avert a risk of disorder by restricting the applicants’ freedom of association”.
The Court therefore found the refusal to register the organizations was not necessary in a democratic society (in breach of Article 11 ECHR).
Having found that the decisive ground for refusing the organizations’ applications for registration was their aim of promoting LGBT rights, the Court held that the applicants had suffered a difference in treatment based on their sexual orientation which could not be reasonably or objectively justified (in breach of Article 14 ECHR in conjunction with Article 11).
EHRAC, ILGA-Europe and ICJ’s joint intervention, drafted by Jeremy McBride QC of Monckton Chambers (UK), focused on the extent of legitimate restrictions on the right to freedom of association for the protection of morals, arguing that it was impossible to protect individual rights if citizens were unable to create associations to defend common interests and needs.
It submitted that any restrictions on this right should be strongly justified and legitimate aims which permitted interference should be interpreted narrowly.
“This judgment reaffirms the vital importance for individuals to be able to group together and organize themselves around shared causes. States must act positively to ensure that this right is meaningful, particularly when people belong to vulnerable or marginalised minority groups or hold unpopular views,” said Joanne Sawyer, Lawyer, EHRAC.
“We are very pleased with European Court’s pioneering judgment confirming the vital right to freedom of association for those promoting rights of LGBTI people. This judgment sends a key message to LGBTI activists in Russia and other countries across Europe who are facing similar discriminatory restrictions – refusal to register associations cannot be justified on the ground of protection of morals,” said Arpi Avetisyan, Senior Litigation Officer, ILGA-Europe.
“The ICJ welcomes the Court’s conclusion that Russia’s refusal to register associations established to promote and protect the human rights of LGBT people cannot be justified on the grounds of protecting moral values or the institutions of the family and marriage,” added Livio Zilli, ICJ Senior Legal Adviser.
