Mar 31, 2021
For International Transgender Day of Visibility, the ICJ launched a report setting out an overview of States’ legal obligations under the international human rights framework in relation to issues of sexual orientation, gender expression and gender identity, and an analysis of the human rights situation of LGBT persons in Colombia, Malaysia and South Africa.
The 60-page report, Invisible, Isolated, and Ignored: Human Rights Abuses Based on Sexual Orientation and Gender Identity/Expression in Colombia, South Africa and Malaysia, was launched through a discussion facilitated by The Cheeky Natives, a literary podcast, with four activists from the three countries on which the report focussed. The activists discussed the content of the report through the lens of their own experience of working with LGBT persons in the respective countries
“As a country, South Africa has possibly one of the most progressive constitutions in the world. It explicitly names sexual orientation. We recognise civil unions; we have a legal gender recognition law. On paper, we are beautiful. In practice, I think we have continuously failed to actualise these rights: access to education, access to healthcare, access to anything that is a general need for every other human being has not been the same for LGBTI people and as marginalised as LGBTI people are in the country, Trans people sit on the margins of that marginalisation,” said Akani Shimange, Director of Matimba, a South African organisation which advocates for kids and teenagers that are transgender or/and gender variant to have happy and healthy lives.
The report aims to offer an overview of different contexts and issues relevant to the respect, protection and promotion of the human rights of LGBT people through a human rights-based analysis and, in so doing, it aims to support lawyers working to enhance protection for the human rights of LGBT persons within their challenging domestic legal frameworks.
“To this day, discrimination and abuse on the basis of sexual orientation and gender identity remain rampant around the world. It is important to listen to accounts of LGBT persons who constantly face criminalization, lack of acceptance and continued violence in a climate of impunity exacerbated by the COVID-19 outbreak. This report considers these obstacles, and also makes recommendations to overcome them,” said Sam Zarifi, Secretary General of the ICJ.
The report provides support to the work of LGBT human rights defenders working on human rights issues, as well as assisting policymakers to better understand the impact of law and policy on the human rights of LGBT persons globally.
In addition, the report makes country-specific recommendations to enhance respect, protection and promotion of the human rights of LGBT persons with a view to ameliorating their lives. In Malaysia, where the laws are considerably different from the more progressive Colombian and South African legal frameworks, the recommendations mostly focused around the decriminalization of same-sex consensual conduct and abolition of all laws that criminalize sexual orientation and gender diverse identities as these laws threaten the safety and security of LGBT people and also detrimentally affect the ability of LGBT persons to exercise and enjoy their human rights without discrimination.
As for the Colombian and South African recommendations, the emphasis was on ensuring LGBT persons’ effective access to and enjoyment of existing rights, as well as conducting training programmes on the human rights of LGBT persons based on national and international human rights standards. Additionally, the report calls for programmes to raise awareness about harmful stereotypes, including the use of pejorative language, directed at LGBT persons. In particular, with respect to South Africa, the report documented the limitation on the enjoyment of human rights that have arisen as a consequence of making medical interventions and medical reports mandatory for gender marker change.
Contact
Nokukhanya (Khanyo) Farisè, Legal Adviser (Africa Regional Programme), e: nokukhanya.farise(a)icj.org
Tanveer Jeewa, Legal and Communications Officer (Africa Regional Programme), e: tanveer.jeewa(a)icj.org
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Colombia-SouthAfrica-Malaysia-SOGIE-Publications-Reports-Thematic reports-2021-ENG
Nov 19, 2020 | News
On 18 November 2020, the ICJ hosted a Facebook Live with four transgender human rights activists from Asia and Africa. It highlighted the stark reality between progressive laws and violent lived realities of transgender people.
The 20th November 2020 marks the Transgender Day of Remembrance (TDOR), the day when transgender and gender diverse people who have lost their lives to hate crime, transphobia and targeted violence are remembered, commemorated and memorialized.
The discussions focused on their individual experiences of Transgender Day of Remembrance in their local contexts, the impact of COVID-19 on transgender communities and whether laws are enough to protect and enforce the human rights of transgender and gender diverse people.
The renowned panelists were from four different countries, Amar Alfikar from Indonesia, Liberty Matthyse from South Africa, Tshepo Ricki Kgositau-Kanza from Botswana and Vyjayanti Vasanta Mogli from India. The panel was moderated by the ICJ Africa Regional Director, Kaajal Ramjathan-Keogh.
The panel aimed to provide quick glimpses into different regional contexts and a platform for transgender human rights activists’ voices on the meaning of Transgender Day of Remembrance and the varied and devastating impacts of COVID-19 on transgender people.
The speakers discussed the meaning that they individually ascribe to Transgender Day of Remembrance. A common theme running across the conversations was that it is not enough to highlight issues and concerns of the transgender community only on this day. Instead, these discussions should be part of daily conversations about the human rights of transgender people at the local and international level.
Liberty Matthyse discussed the importance of remembering the transgender persons who have lost their lives over the past years, and added:
“South Africa generally is known as a country which has become quite friendly to LGBTI people more broadly and this, of course, stands in stark contradiction to the lived realities of people on the ground as we navigate a society that is excessively violent towards transgender persons and gay people more broadly.”
Amar Alfikar describes his work as “Queering Faiths in Indonesia”. This informs his understanding of what Transgender Day of Remembrance means in his country and he believes that:
“Religion should be a source of humanity and justice. It should be a space where people are safe, not the opposite. When the community and society do not accept queer people, religion should start giving the message, shifting the way of thinking and the way of narrating, to be more accepting, to be more embracing.”
It was clear from the discussions that a lot of the issues that have become prominent during the COVID-19 pandemic, have not arisen due to the pandemic. In fact, the COVID-19 pandemic has had the effect of a magnifying glass, amplifying existing challenges in the way that transgender communities are treated and driven to margins of society. Speaking about the intersectionality of transgender human rights, Vyjayanti Vasanta Mogli said:
“I don’t think LGBT rights or transgender rights exist in isolation, they are part of a larger gamut of climate change, racial equality, gender equality, the elimination of plastics, and all of that.”
The panelists had different opinions on whether it is enough to rely on the law for the recognition and protection of the human rights of transgender individuals.
The common denominator, however, was that the laws as they stand have a long way to go before fully giving effect to the right of equality before the law and equal protection of the law without discrimination of transgender people.
Tshepo Ricki Kgositau-Kanza, who was a litigant in a landmark case in Botswana in which the judiciary upheld the right of transgender persons to have their gender marker changed on national identity documents, explained the challenges with policies which, on their face, seem uniform:
“Uniform policies… are very violent experiences for transgender persons in a Botswana context where the uniform application of laws and policies is binary and arbitrarily assigned based on one’s sex marker on one’s identity document which reflects them either as male or female. Anybody in between or outside of that kind of dichotomy is often rendered invisible and vulnerable to a system that can easily abuse them.”
This conversation can be viewed here.
Contact
Tanveer Jeewa, Communications Officer, African Regional Programme, e: tanveer.jeewa(a)icj.org
Jul 15, 2020 | Advocacy, Multimedia items, News, Video clips
The ICJ today condemned the order issued by Zulkifli Mohamad Al-Bakri, Malaysia’s Minister in charge of religious affairs, to the Federal Territories Islamic Religious Department (Jawi) to take action against the transgender community.
The ICJ called on the Minister to rescind the order immediately and take steps to ensure non-discrimination and equal protection of all persons in Malaysia, including LGBTI persons.
On 10 July 2020, Zulkifli Mohamad Al-Bakri announced in a social media post that he had given the Jawi authorities “full licence to carry out its enforcement actions” against transgender persons in Malaysia. He elaborated that his order would beyond arresting transgender persons but would also extend to providing them “religious education” so that they would “return to the right path”.
“This unacceptable transphobic and homophobic attack from a government official highlights the societal prejudices and the lack of legal protections against discrimination faced by transgender persons in Malaysia,” said Ambiga Sreenavasan, a prominent Malaysian lawyer and Commissioner of the ICJ.
“Instead of ensuring that the human rights and dignity of all persons are respected and protected, the Minister, through his statement, is going in the complete opposite direction by advocating state action against persons belonging to sexual orientation and gender identity minorities,” added Ambiga Sreenavasan. “The Minister is legitimizing harassment, discrimination and violence against transgender people, and increasing violations of their human rights.”
Across the country in 13 states and the federal territories, a “male” who “poses” as a woman or wears the clothing of a “woman” may be subjected to criminal liability under state-level religious enactments. Consensual same-sex sexual relations are criminalized as “unnatural offences” in both secular civil law and religious state-level laws. These “offences” carry heavy penalties in the form of fines, imprisonment and corporal punishment in the form of caning, which constitutes impermissible cruel, inhuman or degrading punishment under international law and standards.
The ICJ stressed that these laws served to institutionalize systemic discrimination on the basis of sexual orientation and gender identity and expression, while also creating barriers for LGBT people when seeking justice. They provide state authorities with expansive power to police gender identities, expressions and sexual orientations of people.
The ICJ notes that experiences of severe stigma, marginalization, and violence committed by families, communities, and State actors lead to immense health risks and mental health disparities of transgender individuals.
The ICJ is also deeply concerned about the Minister’s plan to require members of the transgender community to undergo religious conversion therapy. Numerous studies have shown how religious conversion therapy and related practices are causing real harm not only to transgender people, but also to lesbian, gay, and bisexual individuals.
The ICJ calls on the Government of Malaysia to abide by its obligations under international law and follow through with its commitment to human rights, by ensuring that transgender people and all persons are legally protected against discrimination, and that they are able to live free from prejudice, harassment, and violations of their human rights.
Contact
Emerlynne Gil, ICJ Senior International Legal Adviser, e: emerlynne.gil(a)icj.org
Background
In 2019, the Human Rights Commission of Malaysia (SUHAKAM) released a report on Transgender Persons in Kuala Lumpur and Selangor. Many of the transgender people interviewed for this report said that they constantly face arbitrary arrests, discrimination in obtaining employment, and even discrimination in obtaining housing because of their gender identity. A large majority of those interviewed experienced violence because of their gender identity.
Jul 5, 2020 | News
The ICJ hosted live interviews with human rights defenders from Asia, Africa and Latin America to mark Pride Month, which is celebrated during the month of June in various parts of the world. The interviews took place from 22 June to 3 July 2020.
In total, 13 human rights defenders from 11 countries spanning three continents, who are working to uphold the human rights of of lesbians, gay, bisexual, transgender (LGBT) individuals, were interviewed.
The interviews discussed existing legal systems that discriminate on the basis of sexual orientation, gender identity and expression (SOGIE) and the impacts of COVID-19 on existing activism, .
The interviews aimed to provide quick snapshots of different country and regional contexts and a platform for LGBT activist voices on the varied and devastating impacts of COVID-19 on LGBT people.
Debunking cultural myths
In many countries around the world where people are criminalized or stigmatized as a result of harmful steretypes and prejudice on the grounds of their real or imputed SOGIE, public discourse tend to cast LGBT relationships and identities as threats to culture, religion or beliefs and the future of the nation. These interviews endeavoured to interrogate and debunk cultural and regional myths surrounding SOGIE identities as ‘Western’ constructs.
In a response to homosexuality being said to be ‘unAfrican’, Kutlwano Pearl Magashula, executive officer for program functions at the Other Foundation from Botswana, said:
“Utterances that suggest that homosexuality is unAfrican enforce stigma and violence and serve to carve deep roots in the consciousness of people around the world that breed discrimination and treating people differently.”
Devastating impacts of COVID-19 on LGBT people
Important impacts of COVID-19 on LGBT people were highlighted by different speakers, ranging from a loss of livelihood, vulnerability to violence at home and in public spaces, as well as challenges in accessing healthcare.
“There is violence against transgender women sex workers. The police arrest them, yell at them and shoot at them with rubber bullets. This is a recent episode here in Colombia and it is terrible. If they don’t work, they don’t have money to buy food and pay the rent. It is a difficult scenario,” Dejusticia researcher Santiago Carvajal Casas from Columbia said.
Pre-existing inequalities and landmark wins
Personal experiences of ‘life after’ important wins from around the world were shared. Some important gains from the decriminalization of consensual same-sex sexual relationships in Botswana and India, as well as the recent legalization of same-sex marriage in Taiwan must be celebrated. However, many of these wins may remain illusory for people who have been discriminated against on the basis of class, caste and other status inequality, or are without social support, especially in the face of COVID-19.
“What we really need is social protection, we need a safety-net for all those who are close to the poverty line and who are likely to go below the poverty line because of disasters like the COVID-19 epidemic or catastrophic out of pocket healthcare expenditures. We definitely need accessible healthcare for everyone and livelihood.” – Dr. L Ramakrishnan, public health professional and Vice-President of SAATHII, India
Watch the Facebook lives below:
Kutlwano Pearl Magashula, Executive Officer for Program Functions at the Other Foundation, on the board of LEGABIBO as the vice-chairperson and co-founder of the autonomous feminist collective Black Queer DocX (Botswana)
Busisiwe Deyi, Commissioner of CGE/ Lecturer of Jurisprudence (South Africa)
Letlhogonolo Mokgoroane, lawyer activist and podcaster (South Africa)
Lini Zurlia, advocacy officer at ASEAN SOGIE Caucus (ASEAN/Indonesia)
Yee Shan, member of Diversity Malaysia (Malaysia)
Sirasak Chaited, human rights campaigner, LGBT+ and sex worker rights activist (Thailand)
Santiago Carvajal Casas, Dejusticia researcher (Colombia)
Sih-Cheng (Sean) Du, Director of Policy Advocacy at Taiwan Tongzhi (LGBTQ+) Hotline Association (Taiwan)
Neeli Rana, transgender activist (Pakistan)
Riska Carolina, The Indonesian Plan Parenthood Association (IPPA) member (Indonesia)
Hla Myat Tun, Deputy Director from Colors Rainbow and Co-Director at &PROUD (Myanmar)
Dr. L Ramakrishnan, Vice President Saathii, activist, public health professional (India)
Nigel Mpemba Patel, Associate editor at the South African Journal on Human Rights and research consultant at ILGA World (Malawi)
***
Cover photo by Violaine Biex-Colors Rainbow, Myanmar.
Mar 31, 2020
Today, on the International Transgender Day of Visibility (TDOV), the ICJ has released a briefing paper on Pakistan’s Transgender Persons (Protection of Rights) Act, 2018.
The briefing paper analyzes some of the more salient provisions of the Act in light of Pakistan’s obligations under international human rights law.
The paper specifically addresses: the definition of transgender people provided in the act; the procedures for legal gender recognition stipulated by the law; the provisions on anti-discrimination and harassment; the new criminal offence related to begging; and the adequacy and effectiveness of enforcement mechanisms, among other issues.
“The passage of the law is a testament to the hard work and struggle of the Pakistani transgender and queer communities, as well as the support and solidarity offered at different points by other social and civil society groups,” said Frederick Rawski, ICJ’s Asia Director.
“However, for the promise of the law to be realized in a manner that fully respects the human rights of transgender people, it is essential that this process does not end with the enactment of the legislation, and that authorities take an inclusive and proactive approach towards its enforcement.”
Under the law, transgender people have the right to have all their official documents changed and reissued in line with their self-identified gender, and the Act provides for legal recognition of gender identity as a matter of right without any medical or diagnostic requirements.
“This a crucial improvement in the legal status of transgender people in Pakistan, making the Act one of the most far-reaching in the region, if not world over,” added Rawski.
“Other countries that are grappling with similar legislation have much to learn from how the Pakistan’s Transgender Persons (Protection of Rights) Act, 2018 has responded to the question of legal gender recognition.”
However, there remain a number of limitations and omissions in the law, which could hamper the full protection of the human rights of transgender people in the country.
Some of them include: the conflation of transgender and intersex identities; the criminalization of “employing” or “using” transgender people for begging, despite evidence that such laws are used to harass and blackmail transgender people; the delay in formulating rules under the law to ensure its effective implementation; and the lack of adequate enforcement mechanisms.
In addition, it is of concern that other discriminatory legal provisions that violate the rights of transgender people, such as section 375 of the Pakistan Penal Code (PPC), which defines rape in an exclusionary and gendered manner, namely, by making it a crime that can only be committed by a man against a woman, and section 377 of the PPC, which criminalizes “carnal intercourse against the order of nature” are still in force.
The analysis in this paper provides some guidance to policy makers and members of parliament on how the law can be further strengthened.
The recommendations should be implemented, both at national and provincial levels, to make the Transgender Persons (Protection of Rights) Act the more consistent with Pakistan’s obligations under international law.
Contact:
Frederick Rawski (Bangkok), ICJ Asia Pacific Regional Director, e: frederick.rawski(a)icj.org
Reema Omer, ICJ Legal Advisor (South Asia) t: +447889565691; e: reema.omer(a)icj.org
Download
Briefing Paper Pakistan-Transgender-Advocacy-Analysis brief-2020-ENG (PDF)
Executive Summary Pakistan-Transgender-Summary-Advocacy-Analysis-brief-2020-ENG-URD (in English and Urdu, PDF)
