A new UN report provides a window into the aspirations of LGBT rights advocates and sympathizers within the UN human rights machinery, aspirations that go well beyond mere tolerance.
The report, issued by the UN High Commission for Human Rights, addresses “practices and acts of violence against individuals based on their sexual orientation and gender identity” and was commissioned by a Human Rights Council (HRC) resolution in June that passed by only four votes.
The 25-page report details a range of situations where individuals are targeted because of their sexual orientation or gender identity. But it goes further than calling for a stop to violence against LGBT individuals, a call that is entirely commendable. The report calls for the recognition of entirely new LGBT rights, claiming that to do otherwise would be discrimination.
The report states that “[t]he criminalization of private consensual homosexual acts violates an individual’s rights to privacy and to non-discrimination and constitutes a breach of international human rights law.” It maintains that international law requires “ensuring that unmarried same-sex couples are treated in the same way and entitled to the same benefits as unmarried opposite-sex couples.” The report also calls on states to “[f]acilitate legal recognition of the preferred gender of transgender persons.”
Gay activists tout the report as groundbreaking. However, it does not make any real headway for LGBT rights.
These new assertions have no basis in international law. They merely parrot other elements of the UN human rights machinery that want to create obligations on UN member states without the authority to do so. The report cannot actually advance LGBT rights because it is not a binding document. What’s more, no UN treaty mentions LGBT rights.
It is unlikely that this will change any time soon. Any direct mention of LGBT issues within UN organs, let alone rights, meets firm opposition by upwards of half of the 192 member states. During the most recent session of the General Assembly, UN member states of the Organization of Islamic Cooperation (OIC), claiming to represent two billion Muslims worldwide, issued a statement condemning the Office of the High Commissioner for mentioning sexual orientation and gender identity. When the issue arose earlier this year at the Human Rights Council, the African Group objected also.
The report is, however, significant, at least historically. There has never been a systematic exposition of the LGBT rights agenda within the UN system. In this regard, the report is a compendium of soft law for LGBT rights advocates.
The Office of the Human Rights Commission, which authored the report, is spearheading the promotion of LGBT rights within the UN and dedicates a page of its website to the topic. It claims that mentions of discrimination in international law should be interpreted expansively to include an LGBT class.
While anti-discrimination provisions in international law should be easily interpreted to protect all individuals (including LGBT persons) from violence, they cannot be fairly interpreted to eliminate all legal distinctions traditionally based on sex, such as gender and marriage. Nor can these be interpreted to abolish the power of sovereign states to legislate on public morals and health matters.
The Human Rights Council will follow-up on the report in March, and may decide to launch new initiatives to raise the profile of LGBT rights within the UN human rights machinery.