Victory against anti-rights backlash at the UN
The mandate of the United Nations Independent Expert on sexual orientation and gender identity was renewed on 30 June 2022 after years of civil society advocacy and campaigning. Since it was established in 2016, the office has played a key role in collecting evidence, raising awareness and reporting on states’ compliance with human rights standards. Deniers of LGBTQI+ people’s rights continue to try to hinder its work. In resisting the anti-rights backlash, civil society is making sure LGBTQI+ rights stay on the UN agenda, sustaining a key international ally and critical space for advocacy.
The screen lit up and LGBTQI+ rights activists from around the world erupted in celebration: the mandate of the United Nations’ (UN) Independent Expert on sexual orientation and gender identity (SOGI) had just been renewed.
The result couldn’t be taken for granted – not on 30 June, when the mandate was renewed for the second time, not when it was first renewed in 2019, and certainly not when it was created in 2016.
Ever since it was established, the mandate of the Independent Expert has been undermined by regressive states and anti-rights groups. Every step has been an uphill battle against those who don’t believe the international human rights framework should apply to discrimination on grounds of sexual orientation or gender identity – because they don’t believe LGBTQI+ rights to be human rights.
Longstanding battle lines
The mandate of the Independent Expert was established through resolution 32/2 of the UN Human Rights Council (UNHRC) in June 2016, for an initial period of three years.
The need was evident: in 2016 over 70 of 193 UN member states criminalised LGBTQI+ people. So it came as no surprise that the new role aroused much opposition.
Most states that still criminalise LGBTQI+ people belong to either the African Group – one of the UN’s five official regional groups – or the Organisation of Islamic Cooperation (OIC), a political bloc with members in four regional groups. These countries worked together for years to block the creation of the SOGI mandate and, once it was established, to undermine its work and prevent its renewal.
UN special procedures and thematic mandates
One of the ways the UNHRC works to protect and promote human rights is through the appointment of ‘special procedures’. Special procedures mandate holders include special rapporteurs, independent experts and working groups. There are two types of mandates: thematic – focused on issues as varied as the right to water and sanitation, the rights of migrants and violence against women – and country-specific, covering countries such as Afghanistan, Belarus and Syria.
The SOGI Expert has a thematic mandate to assess the implementation of human rights standards and protections of LGBTQI+ people against discrimination and violence, identify best practices, raise awareness, identify and address the root causes of violence and discrimination, engage in dialogue and consult with states and other stakeholders to foster the protection of LGBTQI+ people, and facilitate and support the provision of advisory services, technical assistance, capacity-building and international cooperation.
The SOGI Expert carries out their mandate by making urgent appeals and sending letters of allegation to states relating to cases of violence and discrimination on the basis of people´s sexual orientation or gender identity, undertakes fact-finding country visits and submits thematic reports to the UNHRC and the UN General Assembly (UNGA).
The SOGI mandate is a civil society success story: it materialised following a campaign that brought together 628 civil society organisations (CSOs) from 151 countries, five years after the UNHRC adopted its very first SOGI resolution. This resolution requested the Office of the High Commissioner on Human Rights (OHCHR) to conduct a study on violence and discrimination based on sexual orientation and gender identity and recommend ways in which international human rights law could help curb these. The OHCHR published its report in 2011, and an updated report in 2015.
Attempts at establishing the mandate date back to at least 2011, but it took nearly five years of negotiations for the resolution to be tabled. Drafted by a core group of seven Latin American countries – Argentina, Brazil, Chile, Colombia, Costa Rica, Mexico and Uruguay – and co-sponsored by 41 other states, the resolution was eventually debated for more than three hours and subjected to no less than 17 votes.
Several states did all they could to block the creation of the mandate. Saudi Arabia first tried to have the resolution removed from the agenda, then joined its allies in arguing against it on grounds of cultural values. When a vote became likely, several states proposed amendments to remove all references to sexual orientation and gender identity, which were rejected, and tried to add provisions on respect for national sovereignty and traditional values, which were eventually adopted.
Resolution 32/2 passed with 23 votes for, 18 against and six abstentions, much tighter numbers than the usual voting patterns at the UNHRC, signalling noticeably higher opposition, even compared to other contentious mandates.
The first SOGI Expert, Vitit Muntarbhorn, was appointed at a UNHRC session on 30 September 2016, at which some opposing states continued to question the legitimacy of the mandate. On behalf of the OIC, Saudi Arabia argued that the issue was controversial, representing a set of values and lifestyles rejected in most societies and affecting their cultural and religious sensitivities. They made clear they would not interact with the mandate and would boycott it if they could. Russia also indicated it would not cooperate.
Their next move was bolder than anticipated: opposed states tried to have UNGA repeal the UNHRC’s decision. UNGA endorsement of UNHRC decisions is normally a formality. But a month after Muntarbhorn’s appointment, Botswana – acting on behalf of the African Group – tabled a draft resolution seeking to block consideration of resolution 32/2.
The African Group asserted that the mandate unjustifiably encroached upon national sovereignty, and that the focus on discrimination against LGBTQI+ people drew attention away from discrimination on the basis of other protected characteristics, including race and religion, and matters of concern to the group, such as the right to development. In the session that followed, Botswana’s representative argued that the concepts of SOGI were not enshrined in international law.
This attempt was resisted with arguments on both the substance of the newly created mandate and the importance of respecting the UNHRC’s decisions. The battle lasted several months and resulted in six separate votes on resolutions and amendments, across two UNGA Committees and plenary sessions. The resolution was finally approved with 84 votes in favour, 77 against and 17 abstentions – a narrow but decisive victory.
Voices from the frontline
Tamara Adrián is founder and director of DIVERLEX-Diversity and Equality Through Law, a Venezuelan CSO dedicated to research, training, advocacy and strategic litigation on issues of sexual diversity.
The SOGI Expert is an extremely important figure. The weapon of choice of all bigots is to make certain groups invisible and violate their rights. This has been a constant in relation to women, Indigenous peoples, racial minorities and religious minorities. As long as the intolerant can say a problem does not exist, their power system remains active and nothing changes. In the universal human rights system, what bigots want to keep invisible is made visible through the work of independent experts and rapporteurs.
The organisations that lobbied for the renewal of the mandate have worked together ever since the campaign for the appointment of the first Independent Expert. In this case, we started working about three years ago: practically the year after the mandate was renewed we were already working to create the core group to work for a new renewal.
It was a very difficult process, and while the vote eventually turned out to be favourable, over several months the outcomes of the sessions did not make us feel confident. We saw growing resistance from countries with fundamentalist positions that were increasingly embracing the idea of rolling back rights.
The power of anti-rights groups is growing, which is possibly linked to the regression that is taking place in the USA. Indeed, in the vote to renew the mandate we saw two groups of states putting up resistance: countries that have never made progress in recognising rights and where there is a lot of resistance to change, and countries that are moving backwards, such as the USA.
The USA has played a key role in the international funding of the anti-rights movement and the development of neo-Pentecostal churches around the world, particularly in Africa and Latin America. It has also influenced the establishment of a phenomenon that has not been given enough attention: the movement of biology-fixated feminists, who deny the concept of gender with the same arguments used by the most conservative churches.
This unity of argumentation is highly suspicious, and all the more so when one looks at the funding streams coming from the USA feeding biology-focused feminist groups in places including Brazil, Central America, the Dominican Republic, Spain and the UK. The target of these groups is not LGBTQI+ people generally, but trans people specifically. By upholding the biological and natural character of differences they seek to destroy the whole structure of gender-based protections.
I believe we should not relax. Difficult times lie ahead. Many rights we thought had already been secured are likely to be reversed in the USA, including those linked to racial equality. This will have a strong impact at the global level.
As next steps, I would emphasise organising. In many places people tell me, ‘don’t worry, that would never happen here’, but I insist we cannot relax. We must focus on forming coalitions and organising stronger alliances to stop advances by neoconservative groups and challenge them to take back the spaces of power they have occupied.
This is an edited extract of our conversation with Tamara. Read the full interview here.
Why the SOGI mandate matters
The work of the SOGI Expert is aimed at giving visibility to and raising awareness of a phenomenon its opponents deny exists: the discrimination and violence people suffer daily due to their sexual orientation or gender identity.
The SOGI Expert is tasked with identifying the root causes of this violence and discrimination and assessing the suitability of international human rights instruments to overcome them. In dialogue with governments, civil society and others, they identify best practices and produce recommendations to protect and improve the situation of LGBTQI+ people. The role contributes to the development and implementation of human rights standards and provides advice and technical assistance.
Although he only held the position for a year, the first SOGI Expert, Vitit Muntarbhorn, submitted an inaugural report to UNGA and a report to the UNHRC focused on decriminalisation and anti-discrimination legislation, conducted a country visit to Argentina, held consultations with governments, civil society and business, and responded to situations of concern in Chechnya and Honduras.
Victor Madrigal-Borloz, the current mandate holder, has focused on the legal recognition of diverse gender identities and their depathologisation – shifting perceptions of transsexual and transgender status as mental illnesses – as well as the dynamics of inclusion and exclusion and the impacts of COVID-19 on women and LGBTQI+ people.
Against the wave: campaigns for renewal
The question of the legitimacy of the SOGI mandate was never settled and is revisited every three years when the role must be renewed. Each time the same tactics and arguments have been advanced, and each renewal has taken as much effort as it took to establish the role.
In the run-up to the July 2019 UNHRC renewal vote, 1,316 CSOs from 174 countries and territories endorsed a letter of support, but this was just the tip of the iceberg: advocacy with the UNHRC had been ongoing for years, with the battle for renewal starting soon after the mandate was established. The first renewal was carried with 27 votes for, 12 against and seven abstentions.
In June 2021, 27 states launched the Group of Friends of the Mandate, an informal partnership of countries working together in the UNHRC to support the work of the SOGI Expert. In the run-up to its 50th session in June 2022, 1,117 CSOs from 134 states and territories urged the UNHRC to renew the mandate. An awareness-raising campaign was run on social media to keep the issue on the agenda.
During the two-hour debate on renewal, more than a dozen hostile amendments were proposed that sought to undermine core elements of the resolution, including by deleting the words ‘sexual orientation and gender identity’ altogether or adding ‘religious and cultural particularities’ as grounds for the denial of rights and recognition to LGBTQI+ people. All proposed amendments bar one were rejected.
The renewal of the mandate is a big win for civil society. It not only kept in place a role that activists value immensely – it gave it greater substance and scope for action. Adopted with 23 votes for, 17 against and seven abstentions, resolution A/HRC/50/L.2 is the first that explicitly condemns laws that criminalise same-sex acts between consenting adults and diverse gender identities, and calls on states to amend discriminatory legislation and combat violence on grounds of sexual orientation or gender identity.
As a result, core issues of the LGBTQI+ movement stay on the UNHRC’s agenda. Civil society will continue to have a key international ally, and a global space to keep advocating for full equality and the right of all people to live free of discrimination and violence.
OUR CALLS FOR ACTION
Civil society must not drop its guard and should continue working in the knowledge that in three years’ time the case for the mandate will need to be made again.
Civil society should continue engaging with the SOGI Expert, including by responding to calls for input for thematic reports.
Supportive states should provide the SOGI Expert with as much assistance as possible to counter regressive states’ efforts to undermine the mandate.
Cover photo by We Are/Getty Images