by Grace Poore
The Asia Pacific Forum (APF) is the first regional body in the world to lobby National Human Rights Institutions (NHRIs) to integrate the Yogyakarta Principles into their human rights work. It currently has 18 full member institutions from Afghanistan, Bangladesh, Australia, India, Indonesia, Jordan, Malaysia, Mongolia, Nepal, New Zealand, Palestine, Philippines, Qatar, South Korea, Thailand and Timor Leste. Maldives and Sri Lanka currently have associate member status for failing to comply with the Paris Principles.1
In May 5-7 2009, the APF invited IGLHRC and several other international human rights experts2 to Yogyakarta, Indonesia for a historic workshop to consider what actions might be taken by NHRIs in Asia to prevent violence and discrimination on the basis of sexual orientation and gender identity (SOGI). My presentation provided an overview on the impact of criminalization and discrimination on LGBT people’s lives in the API region. As part of this presentation, I offered the following recommendations from IGLRHC to the APF:3
- Members of the APF must recognize that sexual orientation, gender identity and gender expression (SOGIE) are integral to every person’s dignity and humanity. The freedom to claim these aspects of selfhood without fear of violence and/or discrimination enables a climate of respect and equality for all people.
- NHRIS of the APF should get and promote training on these issues, debunk myths about LGBT people, and confront homophobia wherever it occurs.
- NHRIS in the APF must recommend and advocate for the appointment of LGBT people as Commissioners of NHRIs to fulfill the plurality requirement of the Paris Principles.4
- The APF must find a way to navigate cultural relativist arguments that deny the presence of homosexuality or alternative transgender expressions—these arguments in fact neglect and erase histories of homoeroticism and third gender presence in many Asian cultures.
- All NHRIs in Asia and elsewhere must recognize the legitimacy of claims made by people who suffer violence and discrimination on the basis of their SOGIE.
- NHRIs should repeatedly, consistently and consciously raise the awareness of governments and citizens about the negative impact of state-sponsored homophobia and media stigmatization by encouraging research and awareness-raising campaigns.
- NHRIs are expected to be independent, autonomous and vigilant in their investigation of human rights abuses. Partnering or networking with LGBT and other civil society groups will improve NHRIs’ documentation of the ways in which LGBT people’s rights are violated.
- NHRIs that co-sponsor and participate in national LGBT events can help build bridges with civil society groups and increase the credibility of NHRIs as national human rights defenders.
- Many entities in the UN system have recognized and addressed the need for protections against violence and discrimination on the basis of SOGI. NHRIs must acquaint national governments and citizens with the international standards regarding SOGI, and help promote these standards at national levels.
- Violence against LGBT people takes place in both public and private spheres. It is said that in Asia, family and religion regulate sexuality, often resulting in human rights violations, with the tacit endorsement of the state. The APF and member NHRIs are uniquely positioned to expose these violations.
Left: Paisarn Likhitpreechakul and colleagues from For-SOGI mapping the Thailand National Human Rights Commission’s implementation of SOGI recommendations. Right: Julian Lee from Malaysia mapping Suhakam’s work on LGBT rights.
As a followup to the 2009 Yogyakarta workshop, the APF commissioned a body of renowned jurists in the Asia Pacific region (known as the Advisory Council of Jurists – ACJ) to undertake a study and make recommendations to the APF on how its member NHRIs could address violations on the basis of SOGI.
In April 2010, the ACJ invited the Alternative Law Forum in Bangalore, IGLHRC, ARC International and UNAIDS to help with its deliberations on SOGI before formulating guidelines for NHRIs. In December 2010, the ACJ released its report, revealing that 15 of the APF member countries had no laws explicitly prohibiting discrimination against LGBT people, seven of the countries had laws specifically criminalizing same sex, eleven of the countries did not recognize changed gender status—meaning that nearly all of the 17 countries whose NHRIs belong to the APF have national laws and practices that fail to comply with international human rights laws regarding LGBT rights. To rectify these lapses, the ACJ issued 60 recommendations, ranging from building the internal capacity and awareness of NHRIS about LGBT rights, to advocating for anti-discrimination and anti-violence measures, and advocating for decriminalization of sexual and gender variance. For all these activities, NHRIs had to consult with LGBT civil society groups—a key element for ensuring that the work was not being undertaken in a vacuum, disconnected from the realities of LGBT people’s lives, and discounting the LGBT activists in their own countries. NHRIs were given eight months to digest the report and begin a staged implementation. Written and verbal reports were expected by the 2011 APF meeting in Bangkok to indicate what actions were already being taken to further the ACJ’s recommendations.
There is a commonality between the APF and other regional human rights monitoring organizations like the Inter American Commission for Human Rights, African Commission of Peoples and Human Rights, European Union, and the Council of Europe in that members of the APF have expressed a shared political will regarding human rights, which has tremendous positive implications – NHRIs of the APF can be important partners with civil society groups that are working to change how LGBT people are treated in Asia, the APF can proactively advocate that SOGI are human rights, the APF can ensure that its member governments meet the accountability benchmark, thus leading by example to facilitate the progress of human rights for all in the region.
However, the challenge for NHRIs of the APF is advocating for LGBT human rights in the face of opposition—where national laws, cultural values and religious beliefs are in conflict with sexual rights and gender rights. Conservatism in Asia has usually been formulated in terms of cultural and religious relativism. IGLHRC felt that these trends would slow or stall the promotion and implementation of the ACJ recommendations. In addition, the APF is not an inter-governmental body and does not function like other regional human rights organizations—it has no mechanism for enforcement.
To ensure that the NHRIs did take the ACJ recommendations on SOGI seriously and did not deem LGBT rights less important than other issues, IGLHRC initiated some steps. We wanted LGBT rights to be integrated into other human rights issues and to be relevant to other aspects of NHRI work—not siloed and compartmentalized, not treated as special rights, and not disappear once the APF moves on to other issues. IGLHRC
- Publicized the ACJ report and recommendations widely to LGBT groups and activists in Asia.
- Convened regular Skype meetings with a coalition of LGBT rights activists in Asia to create a network of support and ideas exchange that would facilitate using the ACJ report as an opportunity to engage with their NHRIs on LGBT rights.
- Negotiated with the APF to provide LGBT activists access to the Bangkok meeting and space on the program so that we could engage with the NHRIs.
- Funded the travel of LGBT rights activists who are working with their NHRIs so they could be in Bangkok for the APF Meeting.
- Held an Asian LGBT Strategy Session in Bangkok prior to the APF meeting.
King Oey and Rafael da Costa from Indonesia at the LGBT Strategy session convened by IGLHRC, September 6 in Bangkok.
The series of Skype meetings convened by IGLHRC from January to July 2011 enabled participating activists to give one another moral support and practical suggestions on how to deal with slow or poorly performing NHRIs. It also helped IGLHRC plan our work for the APF meeting in Bangkok. The LGBT Strategy Session gave us the opportunity for more focused work, which brought a sense of urgency, solidarity, cohesion and regional context to the country level advocacy. During the half day session, activists from Indonesia, Malaysia, Mongolia, Philippines and Thailand assessed what their NHRIs had done and how much further they needed to go to lend credibility to the ACJ recommendations on SOGI.
In response to IGLHRC’s negotiations for LGBT access to the APF proceedings, the Secretariat set aside 20 spots for LGBT activists to attend the biennial conference, which enabled activists from the region to formally and informally share our concerns with the APF and NHRI delegates. The presence of 12 LGBT rights activists from within Asia did make an impression—particularly as they took turns at the microphone and voiced concerns. In addition, the program allocated space for NGO statements—which provided an opportunity for IGLHRC, the International Service on Human Rights and the ANNI Network to comment on LGBT rights.
IGLHRC’s Asia Program Coordinator delivering statement to NHRIs at the APF biennial conference, September 7.
IGLHRC’s recommendations included the following:
- The APF should develop concrete toolkits to aid NHRIs in their efforts to operationalize the ACJ recommendations on the basis of SOGI in a timely manner. The toolkits should be developed in consultation with LGBT organizations.
- The APF should conduct annual reviews of the progress of NHRI implementation of the ACJ recommendations on SOGI.
- The APF should facilitate the participation of LGBT organizations in the review of NHRIs by the International Coordinating Committee (ICC).
- The APF should facilitate the inclusion of references to human rights violations on the basis of SOGI by NHRIs in United Nations fora.
- NHRIs should develop accessible and expedient complaint reception mechanisms for all survivors of human rights violations, regardless of SOGI or other status such as race, gender, ethnicity, health, religion, social origin, or economic or education status.
- NHRIs should under no circumstances mandate a police report of alleged abuse as a pre-requisite for opening an investigation into a specific complaint.
- In addition to integrating LGBT rights into the work of all NHRI commissioners and staff, NHRIs should designate a specific LGBT rights liaison.
- NHRIs should recognize that the principles of universality and intersectionality mean that they should both integrate LGBT rights into their work generally and allocate resources, including time, for LGBT human rights violations specifically. NHRIs should not make the mistake of perceiving LGBT human rights violations as secondary to other human rights concerns.
- NHRIs should immediately document and research human rights, including, inter alia: the criminalization of consensual homosexual acts and its impact; the possibility of official recognition of changes to a person’s gender identity; and the lack of explicit prohibition of discrimination on the basis of SOGI.
- When NHRIs receive complaints from individuals whose rights have been violated on the basis of their SOGI, they should seek to understand how individual violations fall into larger patterns of abuse and work to prevent the repeat of similar human rights violations.
- When engaging with vulnerable groups such as LGBT individuals, NHRIs should take every precaution to ensure that interlocutors are not put at risk; they should exercise the highest standards for maintaining privacy and confidentiality.
Read the full Outcome Statement of IGLHRC delivered at the APF Biennial Conference on September 7, 2011.
You can also see it on the APF website at: http://www.asiapacificforum.net/carousel/about/annual-meetings/16th-thailand-2011
Thailand’s NHRI, as host of the APF Meeting and biennial conference also responded positively to IGLHRC’s negotiations for LGBT space on the program. They scheduled a lunchtime discussion about the regional situation and roles of governments, NHRIs and civil society groups on the rights of LGBT people. Malaysia’s Julian Lee, representing Seksualiti Merdeka and I co-facilitated the discussion, which focused on regionalizing the Yogyakarta Principles. Three key recommendations emerged from this lunchtime discussion, which Philippines activist, Jonas Bagas, read out to the APF delegates: NHRIs should popularize the Yogyakarta Principles, the APF should remind NHRIs about their role at the United Nations which includes presenting data on cases of human rights violations because of SOGI, the APF should set up a subcommittee on SOGI for NHRIs.
Front to Back: Rob Garner (Mongolia), Angie Umbac (Philippines), Jessica Stern (IGLHRC), Julian Lee (Malaysia), King Oey (Indonesia), Rafael da Costa (Indonesia), Jonas Bagas (Philippines).
Why Bangkok APF Convening Was Important
On the afternoon of September 7, Vitit Muntabhorn, who co-chaired the ACJ’s work on the SOGI recommendations, kicked off the APF’s session on SOGI. He emphasized, “We are not asking people to like or dislike anyone. We’re asking people to be humane and kind. Human rights is about respect, protect, reflect. Not about likes.” Professor Muntabhorn reminded NHRIs that despite the existence of laws criminalizing homosexuality in the APF region, there were also governments that had changed their laws or reformed anti-sodomy laws. “For instance, the Fiji Constitution recognizes the rights of LGBT people. In Indonesia, Singapore, New Zealand and Australia transgender people can change their identity cards to reflect their changed gender. In Pakistan, the Supreme Court has legalized hijras and ruled that they should receive welfare benefits. In Nepal, the Supreme Court has asked the legislature to develop legal protections and remedies for LGBT people,” he said and added, “The ACJ approach was to recognize that SOGI is a difficult issue in many countries. So our recommendations took a soft entry point—start with dialogue and education then the harder step—reform laws and practices, remove laws.”
Professor Muntabhorn’s speech was meant as a lead in to APF members discussing the outcomes of implementing the recommendations of the ACJ reference on SOGI. This was to be the highlight of the conference for many of us. It was the reason IGLHRC had invested so much in getting our Asia staff and activist colleagues to Bangkok. We all wanted to hear what NHRIs had to say—their success stories, barriers, who needed help, why there were delays, and who had done nothing. We wanted a chance to engage with the NHRIs about their reports, offer support, challenge, communicate. But when the time came for the NHRIs to report, there was confusion. Three NHRI representatives made statements but the rest stayed silent.
The Thai representative said, “We have had a dialogue with LGBT groups for some time. We have begun a study on partnership laws and the law on gender change.”
The Indonesian representative simply got up and stated, “We will focus on two issues and we agree with all the recommendations of IGLHRC and we will implement them.” The Qatar representative, speaking from a personal point of view, remarked, “It’s a sensitive issue and we can’t bring this up… Maybe APF and ACJ can meet with religious leaders.”5
Later, I found out that other NHRIs who had wanted to report on their implementation, were waiting for the chair of the session, Etta Rosales to invite them to speak, which she did not do. When asked later why she did not call on the NHRIs to deliver their reports, Ms. Rosales who is the current chair of the Philippines NHRI, admitted that she had no idea the APF was expecting her to call on individual NHRIs to deliver their reports. Kieren Fitzpatrick, executive director of the APF Secretariat was surprised by this and attributed it to lack of communication by APF staff. He was also surprised that NHRIs felt they had to be called on to speak when they could have simply raised their hand and spoken in turn.
In addition to the silent NHRIs, I also noticed the glaring absence of NHRI representatives from several countries. I even heard one representative from the Qatar express surprise that NHRIs were “expected to talk about SOGI when the conference was supposed to focus on development as a human right.” The absence of the NHRIs was all the more noticeable when the next day, the room was packed with delegates for the APF’s new thematic focus, development as a human right—which reinforced what the LGBT activists from Asia and I suspected might happen—SOGI would be shafted.
In response to the shocking lack of transparency and mis-handling of the reporting session on the ACJ-SOGI recommendations, IGLHRC and our local activist partners delivered a second statement to the delegates—this time, expressing our disappointment at the lack of accountability to the APF’s own process.
“The absence of any references to the ACJ recommendations in the written or verbal reports of some of NHRIs is frustrating. Some NHRIs were even absent during the SOGI session. A recognition of barriers to the enforcement of the recommendations would have been preferred since such acknowledgement would have at least informed the next steps that should be taken at the country level or in regional platforms. It would have been an opportunity for NHRIs who started to work on the recommendations to support others who encounter difficulties, and it would have given the civil society a chance to engage their NHRIs… It is unclear if the current silence indicates a disregard for the ACJ recommendations on sexual orientation and gender identity or if it reflects the absence of a clearer or a more concrete process to push NHRIs to act on ACJ references generally. Either way, we urge the APF to require specific annual reports on NHRIs work related to sexual orientation and gender identity. It is likewise urgent for the APF to identify and implement its own review mechanism to the ACJ recommendations. One recommendation we offer is that NHRIs submit detailed reports on steps taken to implement the ACJ recommendation on sexual orientation and gender identity by November 2011 so they can be disseminated on the APF website. We stand ready to provide technical assistance to the APF and to NHRIs to so that by the 2013 APF meeting, there can be signifiant and concrete progress on LGBT human rights.”
Read the full SOGI statement from Asian LGBT activists and IGLHRC protesting the poor reporting by NHRIs on the ACJ-SOGI recommendations.
Our statement evoked several reactions:
The New Zealand NHRI asked the chair of the session to extend the time allocated for the agenda so that they could give their report. Australia and Mongolia NHRIs also delivered their reports. All three reports are on the APF website at: http://www.asiapacificforum.net/carousel/about/annual-meetings/16th-thailand-20116
The representative of the Afghanistan NHRI said, “If some NHRIs are keeping quiet, then they have a lot of battles ahead of them. More than 80 percent of people in Afghanistan are uneducated. It does not mean we’re not working on SOGI. We live in a very difficult environment and we are trying to use religion to explore this issue. We want to see how other Muslim countries are doing it.”
The representative from the Palestine NHRI threw out a challenge. “We should not appear as hypocrites when it comes to LGBT issues. What we need is information on how to go about it. In principle, we support the rights of LGBTs especially non-discrimination on the basis of SOGI. But it’s extremely difficult. In our region, we need to break the silence. Our words are contradicting our actions on the ground.”
The NHRI from Thailand remarked, “It seems like we have prejudices against LGBT everywhere. If we are to eradicate prejudices, then we should do education at an early age with children about the rights of LGBTs. If we wait till they are grown up, it’s difficult.”
I appreciated hearing from the NHRIs that reported on actions taken, and also from those that were candid about the obstacles they faced. It surprised me that the NHRI from India was silent given the High Court’s ruling on Section 377. Indian activists I contacted said that their NHRI had not even called a meeting with LGBT civil society groups to discuss the ACJ recommendations on SOGI. I also recall a representative of the Malaysia NHRI saying that they had many other issues to contend with. No one doubts this to be the case. But to offer this as an explanation at a session reserved for a discussion on the ACJ recommendation on SOGI comes across as an excuse for ongoing neglect of LGBT people’s concerns. It is the obligation of all NHRIs to defend all human rights not some human rights.
NHRIs may not understand that LGBT people face multiple discrimination, not only because of our sexual orientation and gender identity but also because of other aspects of our identities such as ethnicity, age, religion nationality, disability, social origin. They may not be seeing the intersectional and cross-cutting aspects of violence and discrimination that LGBT people face. Not looking at the full spectrum of human rights means not thinking about LGBT people when NHRIs are working on other human rights issues – such as torture, the death penalty, disability.
Some of the NHRIs at the APF Meeting in Bangkok expressed genuine willingness to learn and increase their capacity for addressing LGBT concerns. Others made weak gestures or gave lip service to opposing discrimination against LGBT people. I strongly believe that in the absence of strong, sustained, and respectful partnerships with LGBT activists and groups, the recommendations of the ACJ may fall between the cracks of NHRI priorities, which raises the question—if hostile, reluctant or nervous NHRI Commissioners are giving LGBT issues a low priority even at the APF level wouldn’t they give even less attention to these issues at the domestic level?
IGLHRC’s Asia Program will continue to work closely with activists on the ground while liaising with the APF Secretariat on its commitments to improving conditions for LGBT people in the region. At least until the next APF meeting that is slated for 2013, we commit to
- Continue facilitating support and technical assistance for local activists, and through them monitor which NHRIs have advocated for changes to laws and practices to promote and protect the human rights of LGBT people, and what NHRIs are doing to address community attitudes that fuel discrimination and hate crimes.
- Lobby the APF to ensure that NHRIs of the APF submit substantive reports on actions they are taking to fulfill the ACJ recommendations on SOGI, and to make these reports public.
- Reach out to the APF and its NHRI members and offer training to help them understand the intersectionality of rights and the impact of multiple discrimination on LGBT people, as well as the relevance of the Yogyakarta Principles to the work of NHRIs.
Parallel Civil Society Event
Grace Poore speaking at ANNI Conference. Also on panel, Eleanor Openshaw from ISHR and Vitit Muntabhorn from ACJ. Angie Umbac moderated the panel.
In conjunction with the APF meeting and biennial conference, the ANNI network of Asian human rights defenders that monitors the performance of NHRIs in the region held a two-day civil sociey conference on September 5 and 6, focusing on the two human rights issues that the APF was covering in Bangkok—SOGI and development. ANNI allocated 90 minutes for a panel and discussion. Eleanor Openshaw from the International Service on Human Rights spoke about recent developments on LGBT rights in the United Nations , Professor Muntabhorn spoke about the ACJ reference on SOGI, and I spoke about the implementation status of the ACJ recommendations.
IGLHRC-sponsored activists were able to attend this conference, dramatically increasing the visibility of LGBT activists from the region. I used my panel presentation to lobby members of ANNI for their support in ensuring that NHRIs were incorporating LGBT rights in their work and to recognize the interconnected aspects of discrimination faced by LGBT people.
Read Grace Poore’s speech at ANNI Conference about NHRI performance on LGBT rights.
- Previous APF thematic focal points include child pornography, death penalty, disability, human rights defenders, internally displaced persons, terrorism and rule of law, torture, trafficking, and women’s rights.
- John Fisher, Michael O’ Flaherty, Vitit Muntabhorn and Sonia Corrrea were the other experts who presented at the 2009 APF workshop.
- G. Poore, Briefing paper, “Human Rights Abuses in Asia On The Basis of Sexual Orientation, Gender Identity and Gender Expression 2000 – 2009.”
- The APF’s member institutions are expected to comply with the Paris Principles, which are guidelines that set minimum standards for NHRIs to carry out their roles, including: independence guaranteed by the legislature or constitution, autonomy from government, power and resources to investigate, and pluralistic membership. Consistent non-compliance results in accreditation being suspended and membership in the APF downgraded from full member to associate member, which incurs loss of voting privileges in the APF.
- The speaker referred to Quranic text and highlighted the concept of “hanta.” However later that day, she acknowledged that she was wrong about this text.
- National Human Rights Institutions of Australia, New Zealand, Mongolia, Indonesia and the Philippines received grants from the APF to carry out the ACJ recommendations on SOGI.