Submission to the UN Universal Periodic Review regarding the protection of the rights of LGBTI persons in the Republic of the Union of Myanmar

Executive Summary

Kaleidoscope Human Rights Foundation (Kaleidoscope) is a non-government organisation that works with local activists to protect and promote the rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) persons in the Asia-Pacific Region. In conjunction with local community members, Kaleidoscope has prepared this report for the United Nations Human Rights Council (UNHRC) in respect of the Republic of the Union of Myanmar (Myanmar). This report highlights instances where the legal framework of Myanmar is failing to adequately protect the human rights of LGBTI persons and where Myanmar may not be meeting its obligations under international human rights law. Myanmar law expressly discriminates against LGBTI persons. Consensual same-sex conduct has been a crime in Myanmar since 1860 under section 377 of the Myanmar Penal Code of 1860 (India Act XLV) (Penal Code). Although incarceration on the basis of section 377 is now rare in respect of consenting adults, Myanmar law enforcement officials continue to perpetrate discriminatory and abusive acts against LGBTI people through various other indirect laws, particularly Myanmar's Police Act 1945 (Police Act). Despite the human rights protections enshrined under the Myanmar 2008 Constitution (Constitution), there are no laws which prohibit discrimination against a person based on their sexual orientation or gender identity. Coupled with the deficiencies under its local laws to prevent discrimination, Myanmar's lack of international treaty ratification means the human rights of LGBTI persons remain vulnerable. Accordingly, we urge the UNHRC to recommend that Myanmar:

 

  • at a minimum, Myanmar amends section 377 of the Penal Code to apply only to instances of non-consensual acts;
  • ratify the key international human rights treaties including, but not limited to, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR);
  • enact comprehensive anti-discrimination laws that prohibit discrimination on the grounds of sexual orientation, gender identity and gender expression;
  • amend section 348 of the Constitution to include sexual orientation and gender identity and gender expression among the grounds upon which a person cannot be discriminated against; and
  • enact laws that expressly recognise same-sex marriage.

 

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