This module is a resource for lecturers
Topic three - Discrimination and violence against individuals that identify as, or are perceived to be, LGBTI
Globally, individuals who identify as LGBTI endure avast array of discriminatory laws and practices. These include: entrenched forms of heteronormative bias in community, school and work settings; legal prohibitions on certain sex practices; legal prohibitions on freedom of expression, including freedom of speech and freedom of association; homophobic hate speech; and homophobic hate crime, including physical violence and killings. Very few countries have taken a comprehensive approach to repealing discriminatory law and enacting legal protections against discrimination on the grounds of sex, gender, sexual orientation, or sex characteristics. The more common situation is that LGBTI persons face pervasive forms of everyday discrimination, and pervasive risks to their physical safety and well-being, for which they find little redress, if any, in law. This part provides an overview of (i) legal frameworks discriminating against LGBTI persons, (ii) challenges encountered by LGBTI persons in the criminal justice system, and (iii) the development of international standards for effectively protecting human rights of LGBTI persons.
Discriminatory laws and legal practices targeting LGBTI persons
Globally, there are 73 countries that criminalize consensual same sex relationships (Gerber, 2018). These laws bring individuals into direct conflict with the law by expressly discriminating on the grounds of sexual orientation. Because the putative 'crime' relates to the individual's perceived or actual sexual orientation, individuals accused, suspected, or proven to have breached these laws lose their ability to safeguard the private aspects of their lives, including the specific details of their sexual activity. Each interaction with criminal justice authorities is, by definition, an instance in which the individual is stigmatized, and subjected to intolerance, expressions of disgust, moral opprobrium, or violence.
In countries where homosexuality is seen to be outside socially accepted bounds, LGBTI individuals often endure profound stigmatization which may prevent their full and equal participation in all aspects of personal and public life. Where homosexuality is proscribed, the criminal justice system has the potential to impose a lifelong stigma (and punishment) via the mechanisms of: legal prohibition; conviction; record of conviction; and, in some cases, sex offender registration and public notification schemes. The case of Toonen v. Australia (No. 488/1992) is one of the first cases where the United Nations Human Rights Committee addressed the decriminalization of same-sex relationships. In 1994, upon the application of Mr. Toonen, the General Manager of Tasmanian AIDS Council, the Committee adopted a decision stating that criminalization of homosexual sex violates the right to privacy (under Article 17 of International Covenant on Civil and Political Rights (ICCPR) (GA Resolution 2200A(XXI)), and the right to non-discrimination (under Article 2 of ICCPR (GA Resolution 2200A(XXI)), and called Tasmanian authorities to repeal the law. Following the Committee's view, the Commonwealth Government passed a law overriding Tasmania's criminalization of homosexual sex (Australian Human Rights Commission, n.d.)
Since its landmark decision in Toonen v. Australia in 1994, the United Nations Human Rights Committee and has repeatedly expressed concern about "discriminatory laws and practices and acts of violence against individuals on the basis of their sexual orientation or gender identity", resolving to remain "seized of this priority issue" (Human Rights Council Resolution 17/19, 2011; Human Rights Council Resolution 27/32, 2014). The criminalization of same-sex conduct is among the most overt manifestations of discriminatory law against individuals on the basis of their sexual orientation. Yet, even when countries have repealed laws that criminalize homosexuality, individuals may still bear a criminal record for historical convictions. It is promising, however, that in recent years some jurisdictions have made concerted efforts to ensure that these criminal records of this kind are expunged.
Discriminatory laws and legal practices are not confined to the criminalization of same-sex relationships. For instance, some countries explicitly ban the distribution of material on LGBTI rights for the purposes of 'protecting traditional family values. Many other countries that do not criminalize same-sex relationships, nonetheless curtail civic freedoms on the basis of sexual orientation. An example is the banning of Pride marches and other LGBTI-related assemblies and events for 'safety reasons' with the pretext of anticipated anti-LGBTI or counter protests. Such practices of arbitrarily banning or not authorizing peaceful assemblies organized by LGBTI persons interferes with the right to freedom of association and assembly. It is the unequivocal obligation of State authorities and law enforcement agencies to protect those who are exercising their right to freedom of association and assembly, regardless of their sexual orientation and gender identity. As the Human Rights Committee noted, "State parties may limit enjoyment of these rights only insofar as restrictions are provided for by law and necessary to protect rights of others, national security, or public safety, order, health or morals. Any such restrictions should be compatible with the provisions, aims and objectives of the Covenant and should not be discriminatory" (2011, para. 26). The anticipation of counter-protests; or risks to public safety cannot be a justified ground to restrict this right. Indeed, the European Court of Human Rights, in its landmark judgement in the case of Alekseyev vs. Russia (No. 4916/07, 25924/08 and 14599/09) ruled that banning LGBTI marches on the basis of a mere risk of violent counter-demonstrations, and a risk to public order and safety violates the right to freedom of peaceful assembly and to freedom of association (para. 75-77). For further information on the right to peaceful assembly, and the obligations on States in policing public assemblies, see Module 4 on the Use of Force and Firearms.
LGBTI persons in contact with the criminal justice system - particular risks and challenges
Contact with the criminal justice system imposes a range of additional risks to individuals that are perceived to be, or who identify as, LGBTI. This is irrespective of whether they are brought into contact with the law as victims, witnesses, or individuals accused or proven as having committed a crime.
Studies show that LGBTI persons are at increased risk of physical and sexual violence, and that in most cases sexual orientation and gender identity is a key factor in the perpetration of the abuse (Blondeel et al., 2018). According to Trans Murder Monitoring, an initiative which systematically monitors homicide of trans and gender-diverse people worldwide, from 2008 to 2018, 2982 murders of trans and gender-diverse people were registered, amounting to a murder every other day on average (Trans Murder Monitoring, 2018). Despite such high rates of victimization, violence against LGBTI individuals is often severely underreported. By way of example, a survey conducted in the United Kingdom in 2012 found that one sixth of all LGBTI respondents had experienced a hate crime or incident in the previous three years; and of those, 75 per cent had not reported the experience to law enforcement authorities (Stonewall, 2013, p. 116-117). An array of factors contributes to the underreporting of such crimes, including a fear of reprisals, a lack of effective mechanisms to protect victims and witnesses, and a lack of trust in criminal justice systems.
In cases where homophobic or transphobic acts of violence and discrimination are reported to law enforcement officials, LGBTI victims encounter a number of violations, ranging from negligence by police officers, failure to register crime reports, inappropriate classification of acts such as not registering hate crimes as such or registering physical attacks as minor offences, and secondary victimization due to the prejudiced and discriminatory attitudes of officials at the investigation, prosecution and trial stages (Human Rights Council, 2015, para. 24).
Individuals that identify as LGBTI are at disproportionate risk of ill-treatment and sexual violence in criminal justice settings, including in police custody and prisons, in part because the power imbalances in criminal justice systems are informed by those that persist in society more generally. Indeed, the United Nations Special Rapporteur on Torture and other cruel, inhuman or degrading treatment or punishment stated that "in detention facilities, there is usually a strict hierarchy, and that those at the bottom of the hierarchy, such as gays, lesbians, bisexuals and transgender persons, suffer double or triple discrimination" (Human Rights Council, 2010, para. 231) The Special Rapporteur has also said "members of sexual minorities are disproportionately subjected to torture and other forms of ill-treatment because they fail to conform to socially constructed gender expectations. Indeed, discrimination on grounds of sexual orientation or gender identity may often contribute to the process of the dehumanization of the victim, which is often a necessary condition for torture and ill-treatment to take place" (United Nations, 2001, para. 19.).
Scholars also identify that "prison-based sexual violence is informed by wider social norms and inequalities and the corporeal aspects of incarceration that intersect to create a realm of sexualized power relationships. Social norms and inequalities relate to a heteronormative masculinity that positions women, trans and gender diverse people, queers and non-heterosexuals as marginal, unequal others" (Simpson et al., 2016, p. 207). Studies on male prison populations in several countries indicate that men who do not identify as heterosexual are significantly more likely to report having experienced sexual coercion (Beck et al., 2013; Steels & Goulding, 2009). An Australian study found that non-heterosexual men were seven times more likely to report having been subjected to sexual coercion in prison, than men who identified as heterosexual (Simpson et al., 2016, p. 213).
The risks faced by transgender prisoners are particularly acute. Compounding the risks already identified, relating to the marginalized status of individuals that do not conform to cisgender expectations, transgender persons are often incarcerated in facilities that align with their birth sex, rather than the sex/gender with which they identify. This relates, in part, to a broader problem of legal recognition for transgender and intersex individuals (for more on this, see the case studies on birth registration in Module 13 on Justice for Children). Where a transgender woman is incarcerated in a male prison, for example, because her birth certificate and legal registration records her sex as male - she is particularly vulnerable to sexual violence from prison staff and prisoners. "[E]specially when male to female transgender prisoners are placed with men, due to their birth gender being male, this paves the way to sexual abuse and rape" (UNODC, p. 108). This is a documented problem in the context of immigration detention (New York Times Editorial Board, 2015) as well as in criminal justice detention, as illustrated by a case in which a transgender woman, arrested during a domestic dispute, was strip searched by police, mocked, and imprisoned in cell with men. She described the treatment she received as making her feel "Like I wasn't even human. Like my safety didn't even matter" (Diamond, cited in Remnick, 2015). Some jurisdictions have guidelines requiring that transgender prisoners be consulted about where they would feel safest, rather than assigning cells based on birth anatomy. Yet, even where these guidelines exist, there are concerns that transgender prisoners continue to be assigned to cells on the basis of their birth anatomy (Remnick, 2015; La Ganga, 2016).
It is important to note that LGBTI individuals may also have special needs, in prison, that relate to prior trauma that they have experienced due to discrimination or violence on the basis of their LGBTI status. The following guidance from UNODC identifies the importance of specialized services to address pre-existing trauma and the effects of discrimination or trauma that occurs within prison:
LGBT prisoners are likely to be in need of psychological support and mental health care, particularly if they have been sexually abused, whether prior to imprisonment or in prison. Even if not sexually abused, the discriminatory attitudes and humiliation they are likely to be subjected to in prisons, will require particular psychological support and programmes to treat the mental distress suffered as a result. LGBT prisoners who have been victims of rape may be at risk of self-harm or suicide, for which they will require special supervision and care. (UNODC, 2009, p. 108)
It should also be recognized that LGBTI prisoners are likely to face discrimination that impedes their equal access to fundamental services while in prison, including health services, contact with family, and access to complaint mechanisms without fear of reprisal (UNODC, 2009). Gender-sensitive approaches are required to remove discriminatory barriers that have the potential to compromise the health and well-being of LGBTI prisoners. Relevant UNODC recommendations include:
- "As with all prisoners, LGBT prisoners should undergo a full health screening on entry to prison and they should receive medical care equivalent to that in the community and to that which other prisoners receive. The special health care needs of LGBT prisoners may include treatment for STDs, including HIV, drug abuse therapy, counselling for mental disabilities associated with victimization by sexual violence and rape, among others. In addition, programmes on HIV/AIDS prevention with information booklets on modes of transmission and methods of prevention should be made available to all prisoners, including LGBT prisoners." (UNODC, 2009, pp.116-117)
- "Prison authorities should ensure that LGBT prisoners have access to all prison activities without discrimination and that they are protected during activities from violence and abuse." (UNODC, 2009, p. 117)
- "Special counselling programmes for LGBT prisoners should be established. Such counselling should address the full range of integration, safety, health and related concerns, and in particular ensure appropriate support to those who have been victims of humiliation, sexual abuse and rape in prison or prior to imprisonment." (UNODC, 2009, p. 117)
- "LGBT prisoners should be able to make complaints about abuse or fear of abuse, without risking retaliation by staff or other prisoners. Their complaints should receive rapid and effective response. Victims or potential victims of abuse should immediately be placed in a position where their safety can be protected and if the abuse has already taken place, the prisoner should receive whatever medical care may be needed." (UNODC, 2009, p. 118)
The risks of discriminatory and violent behaviour toward LGBTI individuals are evident in Case study 7: 'Tasty Nightclub Raid'. This case also engages issues explored in greater detail in several modules, including Module 5 on Police Accountability, Integrity and Oversight; Module 4 on Use of Force and Firearms; and Module 11 on Access to Justice for Victims.
The UNODC Handbook on Prisoners with Special Needs highlights areas of good practice in gender-sensitive responses to prisoners. These include:
- Legal protection against discrimination based on sexual orientation (South Africa): "South Africa in 1996 became the first country to enshrine protections against discrimination based on sexual orientation in its constitution; this provision has led to sweeping legal decisions affirming gay and lesbian equality and advancing same-sex partners' rights. In 1998, the Constitutional Court of South Africa, acting on the Equality Clause of South Africa's 1996 constitution unanimously overturned "sodomy laws" in the country. In a sweeping decision, it held that laws criminalizing consensual homosexual conduct violated not only privacy protections but the principles of equality and dignity." (UNODC, 2009, p. 113)
- Ending discrimination based on sexual orientation for conjugal visits of prisoners (Mexico): "In July 2007 the National Human Rights Commission of Mexico announced that the city's prison system had allowed the first conjugal visit to a prisoner with a sexual orientation other than heterosexual, in line with the Commission's recommendations. In Mexican prisons prisoners are allowed to receive conjugal visits and most do not require the visitor to be married to the inmate." (UNODC, 2009, p. 116)
- Alternative sentencing and advocacy (The United States): "Recognizing that transgender and intersex (TGI) people experience extreme physical, sexual and emotional abuse and brutality while imprisoned … [the Transgender, Gender Variant, and Intersex Justice Project (TGIJP)] seeks to reduce the overall number of such people going into jail or prison by diverting them out of the system early. Specifically, TGIJP assists TGI people in the San Francisco Bay Area awaiting sentencing to petition their judges to divert them into plans that would connect them to needed health, social and economic services, rather than sentencing them to jail or prison. These alternative plans can connect clients to services and opportunities that address the underlying conditions that lead to arrest in the first place. TGIJP also advocates for the human rights and dignity of TGI people currently in prison." (UNODC, 2009, p. 113)
Development of international standards for enhanced protection of human rights of LGBTI
Under international human rights law, States have well established obligations to respect, protect, and fulfil the rights of all persons within their jurisdiction, irrespective of their sexual orientation and gender identity. Along with the fundamental right to non-discrimination, the rights to life, security of person and privacy, to freedom from torture and ill-treatment, discrimination and arbitrary arrest detention, and to freedom of expression, association and peaceful assembly, and all other civil, political, economic, social and cultural rights are clearly stipulated in ICCPR (GA Resolution 2200A(XXI)), International Covenant on Elimination of All Forms of Racial Discrimination (ICERD) (GA Resolution 2106(XX)), Convention Against Torture (GA Resolution 39/46), CRC (GA Resolution 44/25) and other core international binding legal instruments (Human Rights Council, 2015, para. 11-16):
However, as briefly outlined in the previous sections, individuals who identify as or perceived to be LGBTI continue to encounter grave forms of violence, including hate crimes and most brutal forms of SGBV; as well as discrimination and various human rights abuses when in contact with criminal justice system. The pervasive abuse of human rights of LGBTI individuals globally has prompted international community to pay particular attention to the issue. Indeed, in recent decades, there have been significant developments at the international level to recognize the particular risks for and vulnerabilities of LGBTI persons, as well as to establish measures that should be taken by States and in particular by criminal justice institutions to respect, protect and fulfil the rights of LGBTI.
In 2006, a distinguished group of international human rights experts from diverse regions and backgrounds, including judges, academics, a former United Nations High Commissioner for Human Rights, United Nations Special Procedures, members of treaty bodies, NGOs met in Yogyakarta, Indonesia to develop a set of international principles concerning sexual orientation and gender identity. The outcome was the Yogyakarta Principles (2017), which affirm binding international legal standards and provide guidance to States for the application of those standards to issues of sexual orientation and gender identity. The Principles cover a range of rights and standards, including prohibition of extrajudicial executions, freedom from violence, torture and other forms of ill-treatment, access to justice, privacy, non-discrimination, rights to freedom of expression and assembly. In 2017 these Principles were updated, to include, inter alia, a more specific articulation of the rights of individuals with diverse bodily characteristics. These revised Principles are published as The Yogyakarta Principles plus 10.
Throughout late 1990s and early 2000s, various United Nations treaty mechanisms, special rapporteurs and experts expressed concern about violence and discrimination against LGBTI individuals. However, a key turning point came in 2010 when the United Nations Secretary-General gave a major policy speech on LGBTI equality, calling for worldwide decriminalization of homosexuality and for other mechanisms to prevent and combat violence and discrimination against LGBT people (OHCHR, n.d.(b)). The Secretary-General's speech gave impetus to United Nations initiatives to protect and promote human rights of LGBTI individuals.
In 2011, the United Nations Human Rights Council adopted the ' Resolution on Human Rights, Sexual Orientation and Gender Identity' (2011). The landmark Resolution is the first one to focus exclusively on these issues, expressed grave concern at acts of violence and discrimination against LGBTI; and requested OHCHR to commission a comprehensive study documenting discriminatory laws, practices and acts of violence; and proposing how international law can be used to effectively protect the rights of LGBTI (para. 1).
United Nations Free and Equal Campaign
Following the resolution, the United Nations launched in 2013 an unprecedented global public information campaign entitled ' UN Free and Equal' with the objective to promote equal rights and fair treatment of LGBTI persons. Collaborating with national and local actors, the United Nations Free and Equal campaign organized awareness raising events in more than 30 countries and reached 2.4 billion social media feeds globally and produced a stream of broadly shared informative materials. As part of this initiative, OHCHR published the booklet 'Born Free and Equal', which identifies the core obligations of States under existing international law towards LGBTI individuals, which includes (i) protecting individuals from homophobic and transphobic violence (ii) preventing torture and cruel, inhuman and degrading treatment (iii) repealing laws criminalizing homosexuality and transgender people ; (iv) prohibiting discrimination based on sexual orientation and gender identity (v) safeguarding freedom of expression, association and peaceful assembly for all LGBT persons (OHCHR, 2012, p. 13). These obligations set a general framework for criminal justice systems around the world to safeguard the rights of LGBTI persons and protect them from all forms of violence and discrimination. Later, the OHCHR published a follow-up report entitled 'Living Free and Equal', putting forth more concrete recommendations for States and criminal justice institutions to effectively fulfil the aforementioned core obligations, such as:
- Adopting specific laws strictly prohibiting hate crime and hate speech towards LGBTI.
- Decriminalizing same-sex relationships, transgender gender expressions and other acts targeting LGBTI persons.
- Expunging criminal records of individuals who have been convicted of offences on the basis of their actual or perceived sexual orientation or gender identity.
- Effectively investigating violent acts and incitement to hatred and violence against LGBTI individuals; prosecuting perpetrators, and following a due process sentencing offenders accordingly. In doing so, establishing dedicated units within police and judiciary assigned to investigate and/ or prosecute such crimes.
- Providing LGBTI victims safety and protection mechanisms, including safe and welcoming shelters free from discrimination.
- Training judicial and law enforcement officials on particular vulnerabilities of LGBTI persons, and standards for protecting human rights of LGBTI throughout different stages of criminal justice procedures.
- Collecting data on violence and hate crimes against LGBTI persons, disaggregation by sexual orientation, gender identity. Analysing the data with a view to identify impunity and underreporting
- Developing clear and comprehensive guidelines for protecting LGBTI persons in detention settings, with particular regard to interrogation, allocation, boy searches, isolation, access to health and other services (OHCHR, 2016, p. 121-129).
With the adoption of Resolution 32/2 in 2016, the United Nations Human Rights Council appointed an Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity. The independent expert is mandated to, inter alia, "to work in cooperation with States to foster the implementation of measures that contribute to the protection of all persons against violence and discrimination based on sexual orientation and gender identity" (Human Rights Council, 2016), which directly relates to the work of national criminal justice institutions. The appointment of the United Nations Independent Expert indicates that the protection of the rights of LGBTI persons is a high priority on the United Nations human rights agenda.
Taking into consideration the significant developments in international human rights laws, standards and jurisprudence; the Yogyakarta Principles were updated in 2017 with the inclusion of ten additional principles and respective state obligations. The updated principles, also known as 'Yogyakarta Plus 10' introduces new standards with respect to, inter alia, the "right to bodily and mental integrity" (2017, Principle 33), and the "right to be free from criminalisation and any form of sanction arising directly or indirectly from that person's actual or perceived sexual orientation, gender identity, gender expression or sex characteristics" (2017, Principle 35), as well as stipulates additional State obligations with respect to existing Yogyakarta Principles such as Principle 9 on the right to treatment with humanity while in detention. Another key update to the Yogyakarta Principles was the inclusion of human rights standards for intersex people, which were not addressed in the original version in 2006. In sum, Yogyakarta Plus 10, provides guidance to criminal justice institutions for implementing international human rights law with a view to respect, protect and fulfil the rights of all persons with diverse sexual orientation, gender identity, gender expression and sex characteristics.
The aforementioned developments over the past two decades are an indicator of increasing international recognition of violence and discrimination faced by LGBTI persons around the world, and concerted efforts for clear and comprehensive standards for enhanced protection of human rights of LGBTI individuals.