Apr 15, 2016
The Indian government must ensure protection of rights of transgender people in line with its international obligations and the seminal ruling of the Supreme Court in National Legal Services Authority (NALSA) v. Union of India, the ICJ said in a briefing paper released today.
“While there has been some progress over the past two years since the NALSA judgment, it is not enough,” Sam Zarifi, ICJ’s Asia Pacific Director said. “India must take steps to immediately implement all directions of the Supreme Court, and ensure that transgender persons in India can enjoy the full range of their human rights, free from discrimination and violence”.
“The directions in the NALSA judgment provide an important charter for transgender rights in the country,” Zarifi added. “It is time for the government to uphold the equality and dignity of transgender persons in India, and enable them to fully enjoy their human rights, free from discrimination and violence”.
The ICJ’s briefing paper addresses questions regarding the scope of the NALSA decision; the government’s role and responsibility in implementing it; what implementation steps have been taken so far and other related developments since the judgment; what the significant gaps in implementation have been; and India’s relevant international human rights law obligations.
Background
On 15 April 2014, the Indian Supreme Court released its judgment in the NALSA case.
Grounding its reasoning in the rights to equality, non-discrimination, freedom of expression and dignity, the Court affirmed transgender persons’ right to their self-identified gender, such as male, female or as third gender, and directed the government to grant legal recognition of the same and to take specific steps to ensure equality and non-discrimination for transgender persons.
It has now been two years since the NALSA decision.
But the Indian Central and state governments have still not implemented some of the core directions set out in the judgment.
For example the basic process of accessing legal gender recognition remains unclear, with individuals being forced to navigate a dizzying array of bureaucratic hurdles.
India has ratified several international human rights instruments that require the government to respect, protect and fulfill the right to equality and non-discrimination for transgender people.
Contact:
Danish Sheikh: t +91 8197979171
Sanhita Ambast: t +91 9810962193
India-Q&A NALSA-Advocacy-Analysis brief-2016-ENG (full brief, in PDF)
Mar 24, 2016
The Indian Supreme Court should decriminalize consensual same-sex relations when it reviews its December 2013 decision in the Suresh Kumar Koushal case, said the ICJ in a briefing paper released today.
The judgement of this case is upholding the constitutionality of the criminalization of consensual same-sex relations under section 377 of the Indian Penal Code (IPC),
The briefing paper answers some key questions arising from the Supreme Court’s referral earlier this year of its Suresh Kumar Koushal decision to a five-judge bench of the Court, based on the Court’s acknowledgment that the case involved issues with “constitutional dimensions”.
“The referral has opened up a significant new chapter in this critically important litigation, which has been ongoing since 2001”, said Sam Zarifi, ICJ’s Asia-Pacific Director. “The Supreme Court has the opportunity to ensure that this archaic and discriminatory law is taken off the statute book for good”.
The ICJ’s briefing paper answers questions regarding the nature of the Supreme Court’s referral in this case through a curative petition. It also sets out the issues in the case that are currently before the Court; the history of this particular litigation; and India’s international obligations around these issues.
“It is time to move beyond the injustice of the Suresh Koushal Case,” Zarifi said. “Holding section 377 unconstitutional would have enormous transformative value for LGBT rights in the country and beyond.”
“It would set the stage for the full recognition of LGBTI rights as human rights, as required by international human rights law, by which India is bound,” he added “in particular, the principles of non-discrimination, equality before the law and equal protection of the law.”
Background
Section 377 of the IPC makes it a criminal offence for “[w]hoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal”.
It has been interpreted to apply to consensual same-sex sexual relations. It has also been used as a tool of harassment and intimidation against sexual and gender minorities in India.
By allowing the criminalization of consensual same-sex conduct, section 377 has facilitated numerous human rights violations, including non-discrimination, equality before the law, equal protection of the law, liberty and security of person, free expression, health, and privacy.
Under international human rights law, India is bound to respect, protect and fulfill all these rights.
India-Q&A art 377-Advocacy-Analysis brief-2016-ENG (full briefing paper, in PDF)
Feb 23, 2016
In January 2016, ICJ provided an expert legal opinion to the applicant’s legal counsel in the case of “X” before the Swedish Migration Agency with a view to assisting them in assessing “X”’s asylum claim.
The case in the context of which this expert legal opinion was submitted concerns a sur place application for refugee status under the Refugee Convention based on a well-founded fear of persecution for reasons of the applicant’s membership of a particular social group, namely one defined by his sexual orientation.
Sweden-Expert legal opinion sur place asylum claims-Advocacy-Legal submissions-2016-ENG
Feb 19, 2016
Today, the ICJ publishes Refugee Status Claims Based on Sexual Orientation and Gender Identity – A Practitioners’ Guide.
The organization has decided to publish this guide for two main reasons.
First, persecution of individuals motivated in whole or in part by ignorance of, prejudice and hatred against their real or imputed sexual orientation and/or gender identity (SOGI) is rife in all regions of the world, with serious and widespread human rights abuses being perpetrated too often with complete impunity.
Therefore, claims to refugee status under the Refugee Convention for reasons of real or imputed SOGI are unfortunately likely to increase in all regions, given that around the world, lesbian, gay, bisexual, transgender and intersex individuals continue to be targeted for egregious human rights abuses, paradoxically, in part, because they have become more visible by asserting their existence, rights and agency outside the relative safety of “the closet”.
Secondly, while persecution for reasons of real or imputed SOGI is not a new phenomenon, in many asylum countries there is a greater awareness that people fleeing persecution for those reasons are entitled to be recognized as refugees under the Refugee Convention.
Nonetheless, this is an area of the law of refugee status where the application of the refugee definition remains inconsistent, as it is complex and fraught with both substantive and procedural challenges.
The ICJ’s latest practitioners’ guide describes both in general and specific terms each element of the refugee definition under the Refugee Convention that is critical to understanding and doing justice to claims based on SOGI.
After discussing how to establish refugee claimants’ credibility with respect to SOGI, the structure of the practitioners’ guide follows the relevant elements of the refugee definition in Article 1A(2) of the Refugee Convention, namely: well-founded fear; persecution; for reasons of; membership of a particular social group; and failure of State protection.
The guide also addresses the concepts of internal flight/relocation alternative and sur place refugee claims, which, while not expressly mentioned in the Refugee Convention, are increasingly critical to refugee claims for reasons of SOGI.
The practitioners’ guide is intended to provide both legal and practical interpretative guidance on those types of refugee claims to:
- legal practitioners representing individuals;
- others who assist refugee claimants, whether in a professional or voluntary capacity, including members of non-governmental organizations;
- decision-makers within refugee status determination authorities and members of the judiciary presiding over claims to refugee status;
- officials within government departments issuing asylum policy guidance and instructions;
- UNHCR officials both within the Division of International Protection and those who carry out refugee status determination under the agency’s Statute; and
- refugee claimants themselves.
The ICJ’s aspiration and ultimate aim in producing this practitioners’ guide is to provide enduring legal and practical advice on the interpretation of the refugee definition under the Refugee Convention in respect of claims to refugee status based on SOGI notwithstanding the fact that this is an area where the law of refugee status is particularly fast-moving and is constantly evolving.
Finally, the ICJ hopes that this practitioners’ guide will assist in ensuring that people entitled to international protection for reasons of real or imputed SOGI be recognized as refugees under the Convention.
universal-pg-11-asylum-claims-sogi-publications-practitioners-guide-series-2016-eng (full book in PDF)
Feb 16, 2016
In mid-February 2016, the ICJ made a submission to the Committee on Economic, Social and Cultural Rights in advance of Committee’s examination of Namibia’s combined Initial, First and Second Periodic Reports under the International Covenant on Economic, Social and Cultural Rights.
In its submission, the organization drew the Committee’s attention to the detrimental impact of the extant criminalization of consensual anal intercourse between males and of other various forms of sexual activities between consenting men through the crime of “unnatural sexual offences” on the enjoyment of Covenant rights, including, in particular, the principle of non-discrimination and the right to the highest attainable standard of physical and mental health by gay and bisexual men and, more generally, by the gay, bisexual, lesbian and transgender community in the country.
The ICJ’s submission contains a number of recommendations that the organization considers the Committee should address to the Namibian’s authorities to address its concerns.
(Full text in PDF)
