Jul 1, 2019 | Advocacy, Non-legal submissions
The ICJ today highlighted the negative impacts of criminalisation of HIV non-disclosure, exposure and transmission, on human rights, as well as an ongoing initiative to develop a set of relevant principles, at the UN Human Rights Council.
The oral statement, delivered during the General Debate under Agenda Item 3, was titled “Developing principles to address the detrimental impact on health, equality and human rights of criminalization with a focus on select conduct in the areas of sexuality, reproduction, drug use and HIV” and read as follows:
“The ICJ welcomes the High Commissioner’s report (A/HRC/41/27) on human rights in the response to HIV.
Unjust criminalization of HIV non-disclosure, exposure and transmission is a barrier to the realization of human rights – fostering stigma, discrimination, violence and abuse.
Last year, the ICJ – supported by UNAIDS, OHCHR and UNDP – convened a meeting of jurists to address the harmful effects of misuse of criminal law in relation to HIV and other issues.
The meeting endorsed civil society’s call for jurists to elaborate a set of principles to assist legislatures, the courts, administrative and prosecutorial authorities, and advocates address the deleterious impact on health, equality, and human rights of criminalization in a range of areas. In addition to HIV, jurists concluded the principles should address criminalization of sexual and reproductive healthcare services, including abortion; criminalization of consensual sexual conduct, including sex work, sex outside marriage, same-sex relations, and adolescent sexual activity; and criminalization of drug use and of possession of drugs for personal use.
To ensure the jurists’ principles are effective and protect the most at-risk individuals, the process for developing them is as important as the content of the principles themselves. Thus, broad consultation with a wide range of stakeholders, including national and international civil society organizations, UN human rights mandate holders and UN agencies, is ongoing.”
Jun 13, 2019 | News
The ICJ today applauded the 11 June judgment of the Botswana High Court striking down criminal law provisions criminalizing same-sex relations.
Rightly, the Court considered that, notwithstanding the fact that the provisions at issues on their face criminalized consensual anal penetration, irrespective of the gender of those involved, the law did in fact target and disproportionately affect same-sex relations.
The judgment follows shortly after the Kenyan High Court refused to invalidate an almost identical criminal provision in judgment handed down on 24 May.
“The Botswana High Court’s judgment reaffirms the universality of the rights to be free from discrimination, dignity, privacy and equality, and directly rebuts the often-made false claim that homosexuality is ‘un-African’,” said ICJ Africa Director Arnold Tsunga.
“The ICJ commends the Court, and encourages all African states to repeal archaic criminal provisions criminalizing same-sex sexual intercourse often introduced into their legal systems by colonial powers,” he added.
In a decision referencing international human rights law and standards, and citing a growing wave of global jurisprudence on the unconstitutionality of the criminalization of consensual same-sex relations, identity and expression, the Court concluded that sections 164(a); 164(c), 165 and 167 of the Botswana Penal Code violated the rights to dignity, liberty and equality of homosexual men.
Letsweletse Motshidiemang, a 24 year-old university student who identifies as homosexual, and is currently in a relationship with a man, brought the case before the Court. Advocacy organization “Lesbians, Gays and Bisexuals Of Botswana” (LEGABIBO) was admitted as amicus curiae, and supported Motshidiemang’s case.
Despite partial legislative recognition of the need to protect people’s rights, regardless of sexual orientation, and comments made by Botswana President Mokgweetsi Masisi late last year that, “there are also many people of same sex relationships in this country, who have been violated and have also suffered in silence for fear of being discriminated. Just like other citizens, they deserve to have their rights protected”, the Attorney General (AG) had opposed Motshidiemang’s challenge, describing the case as “cry babies”.
In a fitting rebuke of this position, the Court indicated that the AG had not produced a “scintilla or iota of justification” for its defense of the offending provisions and, instead relied on “bare assertion and/or speculations” about public morality.
Given the substantial evidence presented to the Court by the applicant and amicus curiae about the harmful effects of continued criminalization of same-sex relations, the Court observed that it “perpetuates stigma and shame against homosexuals and renders them recluse and outcasts”, finding that “there is no victim in consensual same sex intercourse inter se adults”.
Concluding that such discrimination against lesbian, gay, bisexual and transgender (LGBT) persons violates sexual autonomy and their “right to choose a sexual partner” the Court found that the provisions go “to the core of [homosexual persons’] worth as a human being[s] and “pollutes compassion” in Botswanan society.
“The judgment is a victory for LGBT persons in Botswana whose consistent advocacy ground firmly in human rights should be applauded. This judgment should catalyze further action from the Botswana authorities to ensure the full enjoyment of all human rights by LGBT persons in Botswana,” said Tsunga.
Contact:
Arnold Tsunga, ICJ Africa Director, t: +63 77 728 3249 ; e: arnold.tsunga(a)icj.org
Timothy Fish Hodgson, ICJ Legal Adviser, t: +27828719905 ; e: timothy.hodgson(a)icj.org
May 20, 2019 | Advocacy, News
The ICJ has made a submission to Ms. Karima Bennoune, the United Nations Special Rapporteur in the field of cultural rights (“Special Rapporteur”) in response to a call for submission, in advance of her forthcoming report to the General Assembly on how actors from across the cultural ecosystem access and use public spaces and the impact this has on their cultural rights.
ICJ’s submission draws on its ongoing work on the human rights of LGBTQ persons in India and includes findings from the ICJ’s forthcoming report on the rights of LGBTQ persons in the home, at work and in public spaces. The ICJ, concludes that LGBTQ persons’ rights to adequate housing, decent work, and equal access to public spaces are frequently violated throughout India.
The interviews conducted by the ICJ reveals that LGBTQ persons have challenges in accessing a variety of public spaces including streets, public transport, sanitation facilities, cultural and religious events, parks and shopping malls, challenges which are not faced by, or not faced in the same way by, non-LGBTQ persons. The ICJ submits that these findings are in contravention of Indian constitutional law and international human rights law.
Read the full submission here.
Feb 28, 2019 | Advocacy, News
The ICJ made a submission to Mr. Léo Heller, the United Nations Special Rapporteur (Special Rapporteur) on the human rights to water and sanitation, in response to a call for submission in advance of the Special Rapporteur’s 2019 Human Rights Council Report on the human rights to water and sanitation in spheres of life beyond the households, in particular in public spaces.
The ICJ’s submission focuses on the status and the impact of inadequate access to water and sanitation on lesbian, gay, bisexual, transgender and queer individuals (LGBTQ), and more specifically on transgender persons and non-binary persons, in India.
ICJ’s submission draws on its ongoing work on the human rights of LGBTQ persons in India, where from 2017 to date, the ICJ has studied LGBTQ persons’ access to and enjoyment of economic, social, and cultural rights, focusing on access to adequate housing, decent work, and public spaces and services including water and sanitation. The goal is to reveal, address, and reduce discriminatory treatment against LBGTQ persons in accessing economic, social and cultural rights as a result of discriminatory laws and practice through advocacy with the Indian State and with the United Nations.
Read the full submission here.
Dec 19, 2018 | News
The Transgender Persons (Protection of Rights) Bill, 2018 fails to protect the human rights of transgender people as guaranteed under the Indian constitution and international law and standards and must not be passed in its present form by the Rajya Sabha.
The Bill was passed by the Lok Sabha (Lower House of Indian Parliament) on 17 December, 2018. The next step in order for the Bill to progress is for the Rajya Sabha (Upper House of Indian Parliament) to pass it.
The ICJ considers this Bill to be a missed opportunity to address the serious problem of discrimination against transgender people in India. The ICJ calls for the rejection of its problematic parts by the Rajya Sabha and for the elaboration of a revised Bill in line with rights upheld by the Indian Supreme Court and India’s obligations under international law.
The 2018 Bill, if adopted, would effectively deny to most transgender people their right to self-identification, by providing an overly complex bureaucratic procedure requiring an individual’s application for a transgender certificate to be approved by two different sets of authorities, despite earlier widespread condemnation of this process by the transgender community.
“As the ICJ reported in 2017, the transgender community is continually harassed, stigmatized, and abused by the police, judges, their family and society. This Bill, if it becomes law would further serve to facilitate and compound human rights violations against people from a marginalized community”, said Ian Seiderman, Legal and Policy Director at the ICJ.
The Bill has also introduced mandatory sex reassignment surgery for those transgender people who seek to identify their gender within the binary (male/female) framework. This requirement would be in contravention of 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 would collapse all offences against transgender people into one provision which includes offences ranging from “sexual abuse” and “physical abuse”, to “compel[ing] or entice[ing] a transgender person to indulge in the act of begging” among others. These crimes have not been defined in the Bill.
It also would provide for the same six-month to two-year sentence for all offences against transgender people. In some cases, this could be a significantly lighter sentence than when the same crime is committed against others, including discriminated groups such as cis-gendered women, under the general criminal law. In addition, the identification of “beggary” as an offence under the Bill is problematic since for many transgender people in the country, it remains one of the limited livelihood opportunities.
Further, the Bill does not address the question of reservations in employment and education despite specific directions by the Supreme Court in NALSA v. UOI.
Lastly, while the proposed law guarantees the right to non-discrimination to transgender people against persons, state and private sector bodies, it does not provide a definition of discrimination, nor does it provide an enforcement mechanism for ensuring transgender people’s right to non-discrimination.
The ICJ calls on the Rajya Sabha to substantially revise the problematic provisions of the Bill before resubmitting it for parliamentary consideration.
Background
The provisions identified above do not accord with protection of the rights of transgender people to equality, non-discrimination, equal protection of the law, enshrined in the Constitution and international law, including the International Covenant on Civil and Political Rights, which India ratified in 1979. Further, they are incompatible with international standards such as the Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity.
The ICJ, as part of SAATHII Vistaara Coalition, earlier this year drafted a 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.
Additional Reading Material
- 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.
Contact
Maitreyi Gupta (Delhi), ICJ International Legal Advisor for India
e: maitreyi.gupta(a)icj.org, t: +91 7756028369
