United Nations: CEDAW Debates Equality

The International Gay and Lesbian Human Rights Commission (IGLHRC) takes seriously the opportunity to engage with various United Nations processes such as the Universal Periodic Review where we bring our perspectives on the need to decrimininalize sexual orientation, gender identity and expression and the need to establish free speech, assembly, association and expression for LGBT peoples and organizations. IGHLRC is particularly committed to making visible the rights and struggles of the more marginalized groups in the LGBT community, namely lesbians and transgender people. We have followed closely the work of Committee for the Elimination of All Forms of Discrimination Against Women (CEDAW) to make sure that issues relating to sexual orientation and gender identity are included in discussions about equality for women.

On July 16, 2008, the CEDAW Committee called for a meeting with NGOS to hear recommendations relating to Article 2 of the CEDAW Convention. Article 2 deals with equality and is considered central to the Convention. The Committee is in the process of developing its recommendations on how to use, interpret, administer and implement Article 2 for governments that have ratified CEDAW.

Adrian Coman, Program Director, and Grace Poore, Regional Coordinator for Asia and the Pacific Islands, participated in the July 16 meeting at the United Nations. They presented a statement to CEDAW on behalf of IGLHRC and ILGA-Europe. The following report by Grace Poore captures their experience.

On July 16, 2008, the Committee for the Elimination of All Forms of Discrimination Against Women (CEDAW) organized an informal meeting in New York with non-governmental organizations (NGOs) to receive comments on the scope of a General Recommendation that the Committee is preparing on Article 2 of the CEDAW Convention which addresses the issue of equality. The International Gay and Lesbian Human Rights Commission (IGLHRC) presented a joint statement with ILGA-Europe, highlighting the critical need to explicitly list sexual orientation and gender identity among the categories for non-discrimination in order to ensure that sexually marginalized women, particularly female-born sexual minorities are not left without the protection of the CEDAW Convention in states that are hostile to the sexual autonomy of women.

Highlights

All of the five NGOs at the meeting (CLADEM, Center for Reproductive Rights, Human Rights Watch/LGBT Program, ARC-International and IGLHRC) made statements to the CEDAW Committee with an inclusive view of equality for women. Several members of the Committee appreciated the difficult struggles facing lesbians, bisexuals and transgender (LBT) people. Glenda Sims from Jamaica noted that member states that ratified the Convention "were doing it for all women not just some women." Silvia Pimentel from Brazil acknowledged that sexual orientation and gender identity are sensitive issues for the Committee but nevertheless must be addressed since they involve people's suffering, even death.

On the other hand, members who rejected the call to include sexual orientation and gender identity expressed their reservations by dismissing the relevance of these categories to the world of women's human rights, the scope of the CEDAW Convention, and therefore the work of the CEDAW Committee. One member, Meriem B. Zerdani from Algeria, was overtly homophobic and cautioned the Committee from diverting its attention to lesbians. She said that lesbian desire was "unnatural." She further reasoned that since sexual relationships between men were also not permitted, lesbians were not entitled to protection under the women's Convention. She accused the NGOS at the meeting of "diverting attention away" and trying to "destabilize the Committee by mobilizing for a small minority's issues," promising to oppose these issues until her "dying breath."

Another member, Naela M. Gabr from Egypt stressed that NGOS "are supposed to be the conscience of the world." She said that the CEDAW Committee expected NGOS to be "balanced" in their work and not focused on sexual orientation, which was "detrimental" to other issues such as racism, housing, food and basic sustenance.

Following these vitriolic outbursts, another member of the Committee, Cornelis Flinterman from the Netherlands, stated that although cultural specificity and particularity were key, these would not discourage the Committee from being balanced. Ruth H. Kaddari from Israel asked for information on how sexual orientation and gender identity have been addressed by other treaty bodies within the UN System. Violeta Neubauer from Slovenia stressed that the CEDAW Committee has a "developing and progressive understanding" of women's situations and that Committee members are "supposed to serve individually and collectively" for the defense of women's fundamental rights and freedoms. Heisoo Shin from the Republic of South Korea asked for information to confirm that the Yogyakarta Principles were not only directed towards member states but also toward treaty bodies.

Concluding Observations

It was remarkable that so few NGOS were present at the meeting with the CEDAW Committee. With more publicity efforts by the Committee, attendance could have been higher. Equally remarkable is that most of the NGOs took an extremely strong position on the need for explicit reference to sexual orientation and gender identity in Article 2 of the Convention.

The most disturbing aspect of the meeting was the explicit and aggressive homophobia of some CEDAW members. Can these members be considered independent experts on the CEDAW Committee, expected to hold states accountable for failing to fulfill their obligations of respecting, protecting and promoting equality for all women according to the Convention? Furthermore, under these circumstances, who will hold the Committee accountable for failing in their due diligence to marginalized women?

The arguments offered by CEDAW Committee members against protecting LBT women are also questionable. In particular, if discrimination against gay men is used as the rationale for excluding protections for lesbians and other female-born sexual minorities, then how does CEDAW account for taking up discrimination on the basis of race, class and religion when men are also marginalized and discriminated against on the basis of these categories?

Most importantly, the CEDAW Convention is meant to eliminate all forms of discrimination against women, and to realize equality for women and the freedom to enjoy their rights. Wouldn't this include the right to sexual autonomy? If the Committee recognizes the right to sexual autonomy, then why limit it only to heterosexual, gender conforming women? Why do sexual orientation, gender identity and gender expression pose such a challenge to the aspiration and implementation of CEDAW?

While some people have noted that the "homophobic fringe" on the 23-person Committee may be confined to three people, it is worth remembering that it is often the vocal minority, rather than the silent majority, that sets or undermines trends in society and leads the backlash by religious extremists, xenophobic nationalists, and misogynists. This is no time for complacency or stepping back. As much as the CEDAW Committee sees the broad spectrum of NGOS as its constituency, for many of the marginalized and vulnerable women in society, CEDAW is the only body within the UN system that sets the bar for women's right to equality, not some women but to all women.

Recommendations

  1. In keeping with the spirit of the CEDAW Convention, which is designed to eliminate all forms of discrimination against women, the CEDAW Committee must adopt the broadest definition of equality, meaning it should make explicit reference to sexual orientation and gender identity as categories for non-discrimination.
  2. It is vital that future configurations of the CEDAW Committee honor the spirit of inclusion and protection for all women so that the CEDAW Convention, as a living document, moves forward not backwards, extends more protections not less, and so that there is no hierarchy of discrimination where some vulnerable groups are protected and others are overlooked.
  3. The strength of Article 2 is its interconnection to other Articles in the Convention and its usefulness as a mechanism for interpreting other rights protected by the Convention. Article 2 is also invaluable for looking at the multiple discrimination faced by women—such as family violence, community violence, rape, homelessness, workplace discrimination, discrimination by healthcare providers, etc., all of which are experienced by women whose (non-hetero)sexual orientation and gender identities are rejected, demonized and used as justification for discrimination and violence. The Committee must address this schism within its own collective decision-making. In order to effectively push states to modify social and cultural practices that promote discrimination against women, the Committee must apply this standard within. It has done so in the past with other difficult issues like female genital mutilation and reproductive rights.

Appendix

The following references and case examples relate specifically to discrimination and violence on the basis of sexual orientation and/or gender identity as they affect LBT people.

1- Targeted for Threats And Violence

Report of the Special Representative of the Secretary-General on the situation of human rights defenders, mission to Brazil, A/HRC/4/37/Add.2, December 19, 2006.

Example: Directors of Coturno de Venus, a lesbian feminist association in Brasilia, reported receiving death threats from a neo-fascist organization in September 2005 because of their activities on the occasion of the celebration of the day for lesbians in August 2005.

2- Murders

Report of the High Commissioner for Human Rights on the situation of human rights in Sierra Leone, E/CN.4/2005/113, February 2, 2005

Example: Recent months have witnessed a spate of unresolved killings in Freetown and in the regions, especially of women. In September 2004, a well-known lesbian activist, Fanny Ann Eddy, was murdered in Freetown allegedly for her sexual orientation and outspokenness in support of gay and lesbian rights. Prior to her death, she made a submission to the Sub-Commission for the Protection and Promotion of Human Rights in Geneva, advocating [for] lesbian and gay rights in Sierra Leone.

Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Mission to Guatemala, A/HRC/4/20/Add.2, February 19, 2007

Example: On 16 December 2005, around 11.30 p.m., Paulina and Sulma—both transgender persons were approached in a central area of the capital by four persons riding motorbikes and wearing police uniforms. Without saying a word, the four persons opened fire on them. Paulina died of her injuries in the hospital three hours later. Sulma was severely injured but survived. She was granted police protection. However, the policemen guarding her at the hospital repeatedly told her that she should stop making statements on the incident to investigators and others, as she was putting her life at risk by doing so. Uncertain whether this was well-meant advice or [a series of] veiled death threats, she moved to a secret location. At the same time, she successfully applied for interim measures of protection from the Inter-American Commission of Human Rights. While there is a case file concerning the lethal attack on Paulina and Sulma opened at the Prosecutor's Office, the proceedings had not made any progress at the time of my visit to Guatemala. Even before my visit, on 10 February 2006, I had already sent a communication to the Government of Guatemala, seeking information on the investigations into this crime and the measures taken to protect Sulma. To date, I have not received a reply.

Report of the Special Rapporteur on violence against women, its causes and consequences, Communications to and from Governments, A/HRC/4/34/Add.1, March 19, 2007

Example: By letter dated on 28 February 2006, the Special Rapporteur on violence Against Women has sent a letter of allegation concerning the murder of Z.N., a 19 year old lesbian woman, outside her house in Khayelitsha, Cape Town. According to information received, on 4 February 2006, Z.N. and a lesbian friend, age 17, were approached by a woman who taunted them about their sexual orientation, saying that they "wanted to get raped." The woman gathered a group of about 20 young men and boys who then attacked the two women. Z.N. was beaten, stoned and stabbed to death. Her friend managed to escape. Fearing for her life, she is currently under the protection of a non-governmental organization. The police have since identified and arrested six of the alleged perpetrators, aged 17-19 years. Reportedly, however, no official has publicly condemned the incident as a hate crime. The Special Rapporteur was informed that this case does not constitute an isolated incident and that lesbian women face an increased risk of becoming victims of violence, especially rape, because of widely held prejudices and myths. Some parts of the population believe, for instance, that lesbian women would change their sexual orientation if they are raped by a man.

3- Torture And Rape

Report of the Special Rapporteur on the question of torture and other cruel, inhuman or degrading treatment or punishment, E/CN.4/2000/9, February 2, 2000, Brazil

Example: Rosana Lage Ligero and Marilu Josu Silva Barbosa, two women who had been living openly as a lesbian couple, were reportedly arrested in June 1996, after an alleged partial investigation, by the local police in Jaboatão dos Guararapes, Pernambuco. Although the police claimed to have a judicial order for the women's arrest, such an order was only issued two days after the women had entered police custody. While in custody, the two women were allegedly beaten with a rubber whip and threatened with rape. They were also verbally abused for their lesbianism. The two police officers conducting the interrogation forced each woman to perform oral sex on them with the intention of showing them "what they were missing by not having sex with men". They were transferred to several detention centres and eventually moved to a prison where they remained incarcerated for 11 months. The women agreed to being examined by the state's Legal Medical Office, which corroborated the physical injuries they had sustained as a result of the police beatings. Following a public hearing in 1997, a judge ordered their release on a temporary basis. Despite the evidence of police misconduct, they have reportedly been awaiting a review of their case by the Supreme Court of Brazil for two years. They have insistently and unsuccessfully petitioned the Ministry of Justice for a full and impartial investigation into the wrongful charges, as well as into the police brutality and torture.

Report of the Special Rapporteur on violence against women, its causes and consequences, "Integration of the human rights of women and the gender perspective: violence against women; Intersections of violence against women and HIV/AIDS", E/CN.4/2005/72, January 17, 2005

Sexual assault and coercion "exists along a continuum, from forcible rape to non-physical forms of pressure that compel girls and women to engage in sex against their will. The touchstone of coercion is that a woman lacks choice and faces severe physical or social consequences if she resists sexual advances". Sexual assault and coercion can occur at all stages of a woman's life, whether in the context of marriage, between close family or extended family members, between acquaintances or total strangers. Cases of lesbian women being targeted for rape specifically because of their sexual orientation in order for the aggressor to "prove [the victim's] womanhood" have also been documented.

Report of the Special Rapporteur on violence against women, its causes and consequences: "Cultural practices in the family that are violent towards women", E/CN.4/2002/83, January 31, 2002

Women who transgress the boundaries of appropriate sexual behaviour, even in countries where honor killings do not take place, are often subject to violence. The notion of crimes of passion or provocation has often been used to justify murder of women who engage in sexual activity outside marriage. In addition, non-heterosexual
orientations are also punished severely. Recently, in Zimbabwe, a young lesbian woman was locked up by her family and forced to submit to rape by an older man to "correct" her orientation. She was raped until she became pregnant.

4- Legal Discrimination

Report of the Special Rapporteur on violence against women, its causes and consequences, E/CN.4/2000/68/Add.5, February 24, 2000

In countries such as Nigeria, women have the legal status of a minor. Women who choose to live alone, who are widowed, divorced or lesbians, and women with children outside marriage are at a severe disadvantage, as they do not share the same rights as men. (…)

5- Suicides

Report of the Special Rapporteur on violence against women, its causes and consequences, E/CN.4/2003/75/Add.1, February 27, 2003

Information provided by the European Union about a 200-point questionnaire published on the Internet offered young people the opportunity to give their own personal testimonies. The responses showed that 38 per cent of the gay adolescents who replied had suffered from discrimination, and 27 per cent from violence. Lesbians in particular were targeted both by families and peer groups. And while only half the victims had disclosed their experiences – sometimes years later – 42 per cent had considered suicide, and 14 per cent had attempted it.

Cases compiled by Alternative Law Forum in Bangalore, India

Between June 1995 and November 2002, 13 lesbian couples in different Indian cities committed suicide to escape family violence, forced confinement, separation from each other, and forced marriage to men.

6- Imprisonment

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, E/CN.4/2001/64, February 13, 2001, Kuwait

On 26 January 2000, the Special Rapporteur transmitted an urgent appeal to the Government regarding the sentencing on 22 January 2000 of Dr. Alya Shu'ayb, Laila Al-Othman and Yahia Al-Rubay'an to two months in jail and a fine for writings that were said to cause harm to religion and to morality since they mentioned lesbian relationships.

7- Workplace Discrimination

Interview by International Gay and Lesbian Human Rights Commission, October 2007

Example: Former Corporal Bhakti Shah, a trainer in the Nepal army with outstanding performance and who surpassed her male peers in all categories, was put into 60 days solitary confinement and subsequently discharged from the army. Her partner, a recently joined trainee, was sentenced to 45 days house arrest and subsequently discharged as well. Grounds for dismissal and punishment was lesbianism and code violation—corporal socializing with a cadet in living quarters. Although Bhakti's roommates were always present when the girlfriend visited, and the two were never caught in sexual activity, the army has imposed double penalty – confinement and discharge. After postponing the hearing multiple times, the army decided in July 2008 that the 60 days confinement was unnecessary. However, Bhakti has not been reinstated and has already served the time. The army now says they were not punished for lesbianism but for breaking the army code of conduct. It is widely known that male officers frequented the rooms of junior female cadets but have not been penalized.

8- Housing discrimination

Study by the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, "Women and adequate housing", E/CN.4/2005/43, February 25, 2005

Critical factors affecting women's right to adequate housing and land are lack of secure tenure, lack of information about women's human rights, lack of access to affordable social services as a result of privatization, lack of access to credit and housing subsidies, bureaucratic barriers preventing access to housing programs, rising poverty and unemployment and iscriminatory cultural and traditional practices. The Special Rapporteur notes that a State's obligation to eliminate gender discrimination is one of immediate effect and failure to do so constitutes a human rights violation. There is an urgent need to address multiple forms of discrimination that women face on grounds including race, class, ethnicity, caste, health, disability, sexual orientation, and other factors. An intersectional approach to gender discrimination is essential to address such multiple forms of discrimination faced by women....

The regional consultations also revealed new areas of research, such as gaining a deeper understanding of: the principle of on-discrimination as reflected in the International Covenant on Economic, Social and Cultural Rights, in addition to expanding on the housing and land rights dimensions of non-discrimination as traditionally understood in CEDAW; the precise meaning and application of substantive equality and the intersectionality approach, which can illustrate how adequate housing manifests differently for each person according to his or her age, economic status, gender, race, ethnicity, caste, citizenship, health, sexual orientation or other factors, and which can guide policy formulation on women and adequate housing, particularly for specific groups of women....

It has been widely recognized that many women face multiple forms of discrimination, including on grounds of race, class, ethnicity, caste, health, disability, and other factors. In addition to the groups mentioned below, migrant women workers, women from descent- and work-based communities, domestic women workers, women in prison, sex workers, and lesbian and transgender women may face violations of their right to adequate housing because of their marginalized status.[…]