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Transgender Women’s Constitutional Challenge To Sharia Law Fails in Malaysia

Grace Poore, Program Coordinator for Asia and the Pacific IslandsBy Grace Poore
Regional Program Coordinator for Asia and the Pacific Islands, IGLHRC

Many countries in the Southeast Asian region are incrementally shifting on lesbian, gay, bisexual and transgender (LGBT) people’s rights:

  • Vietnam’s Minster of Justice said publicly that rights of same-sex married couples should be recognized.
  • The Philippines Supreme Court has ruled that an LGBT party had the right to participate in national elections.
  • A Singapore Appeals Court ruled that the constitutionality of Section 377A of its Penal Code needs to be examined because it discriminates against gay men.
  • Thailand has long been known as the place to go for gender reassignment surgery.
  • Indonesia’ s Parliament will soon decide whether to appoint the first openly gay man as commissioner on its National Human Rights Commission.

The Malaysian government however continues to stubbornly reject the rights of LGBT people. This position reverberates throughout state institutions, encouraging hostility, discrimination, and abuse by state and religious authorities.

In October, Judge Siti Mariah Ahmad, of the high court of Seremban in Negeri Sembilan, one of Malaysia’s thirteen states, struck down a first-ever constitutional challenge brought by four Malay transwomen who sought the court’s protection for being unfairly targeted by Article 66 of the Negeri Sembilan sharia law.

Mohammad Juzaili Mohammad Khamis (24), Shukor Jani (25), Wan Fairol Wan Ismail (27), and Adam Shazrul Mohammad Yusoff (25) work as bridal makeup artists, and identify and dress as women. In August 2012, they applied for judicial review of Article 66, which criminalizes men “who dress in women’s clothes and behave like women in public.” They claimed that it violated their rights under Articles 5, 8, 9, 10 and 4 of the Malaysian federal constitution, which guarantees personal liberty, nondiscrimination, freedom of movement, freedom to express one’s identity, and supersedes any local state law that challenges the federal constitution.

Their lawyer argued that Article 66 was unconstitutional because it penalized individuals for “an attribute of their nature that they did not choose and cannot change.”

Judge Siti Mariah, who heard the arguments in the judicial review, disagreed. In her decision, she said, “The undisputed facts are that the applicants are born as males, they are male to female transsexuals, and the evidence of the psychiatrist is that they have jiwa wanita (soul of a woman)… Section 66 is part of the teaching of Islam and the applicants are Muslims. They cannot be exempted from it.”

PT Foundation, an HIV/AIDS organization in Malaysia, reports there are 10,000 mak nyahs (the local term for male transsexuals), in the country. Seventy to eighty percent of mak nyahs are Malay and Muslim while the remaining twenty percent are minority ethnicities. Most mak nyahs do not have gender reassignment surgery because it’s too costly and requires travel outside the country. They fear too that their families will not carry out the Muslim burial rites if they are not viewed as a man or a woman.

Malaysian rights advocate, Thilaga, working in the Justice for Sisters campaign for the rights of mak nyah, says, “Transgender people don’t report violations by police or religious officers because they don’t expect justice. Often, they don’t know their rights and lack resources to go to court to fight charges.” The four applicants in the Negeri Sembilan case attest to this. Mohammad Juzaili was detained four times in 2010, charged three times, convicted twice and fined 1700 Malaysian ringgit ($550 US); Adam Shazrul was arrested twice, convicted once, and fined 800 ringgit ($260 US); Shukor Jaini and Wan Fairol were each detained twice.

Muslim mak nyahs can face up to six months in prison from Malaysian sharia courts.  They are sometimes forced to attend Islamic religious classes where they are pressured to reform and give verbal assurances that they will stop being trans. They are particularly vulnerable to routine arrest and penalized by police and Islamic religious officers who verbally humiliate, physically and sexually abuse them while in custody.

Non-Muslim mak nyahs, while not subject to sharia laws, can be arrested and convicted for “disorderly or indecent behavior,” with penalties ranging from 25 to 100 ringgit ($10- $30 US) and two weeks to three months in prison.

During the August hearing, Judge Siti Mariah, visibly disturbed by reports of custodial abuse of the applicants, questioned the representatives of the state department and Islamic Affairs department about the way the applicants were treated. She also questioned the definition of public space, saying, “the moment they step out of their house, it’s public space,” suggesting that religious officers were using sharia law to target the mak nyah community. She questioned if Article 66 applied to the applicants “because they are not men, neither women.”

In her decision last week, Judge Siti Mariah remarked, “The Islamic Religious Department needs to be ‘lebih berhemat’ (more professional),” instructing the Department to work with PT Foundation “to give counseling to transsexuals.”

If we are to better protect the human rights of LGBT people in Malaysia, a far more explicit warning must come from the courts. The Negeri Sembilan Islamic Religious Department should be charged to investigate, prosecute and convict its own religious officers for acts of verbal, physical, mental and sexual abuse against those in their custody, for supposedly breaking morality laws.

Sharia judges across Malaysia must hold accountable Islamic religious officers (and police officers subject to sharia courts) who misuse their authority, take advantage of people’s vulnerabilities, humiliate them, and mistreat with impunity those they are hired to protect—including lesbian, gay, bisexual and transgender people.

For more on mak nyah experiences, see Nisha Ayub’s presentation (pdf) at the International Gay and Lesbian Human rights Commission panel at the 2012 Creating Change conference.

Grace Poore, the author, can be reached at gpoore@iglhrc.org

Indonesian Government Questioned About LBT Rights Violations

By Grace Poore
Regional Program Coordinator for Asia and the Pacific Islands

Women’s human rights defenders from Indonesia arrived in New York this week to report to the Committee for the Elimination of Discrimination Against Women (CEDAW) about flagrant violations experienced by women and girls in Indonesia across all sectors of society – female circumcision, unsafe abortions, forced sterilization of minority women, marital rape, polygamy, weak implementation of the domestic violence law, police abuses, abuses by domestic worker recruitment agencies, failure to grant reparations to women sexually violated during conflicts with the Indonesian military and police forces, judicial disregard for violence and discrimination against women, rampant abuses against women migrant workers, and many more.

Yet, violence and discrimination against lesbians, bisexual women and transgender (LBT) women was not on the agenda. The spread of intolerance by religious fundamentalists had driven a wedge within the Indonesian women’s movement. Except for one 145-page shadow report that mentioned sexual orientation and gender identity (SOGI) once, LBT people were invisible. Even Komnas Perempuan, the National Commission of Women was reluctant to raise LBT issues. As one Commissioner explained, “The fundamentalists are saying that when we push for women’s rights we are pushing for same sex marriage. So if we bring up LBT, it will weaken our advocacy.” Another Commissioner assured me, “We can raise the LBT issue at the next CEDAW session.” But that would be five years down the road!

Sri Agustine, director of Ardhanary Institute, a national LBT organization in Indonesia admits, “When I arrived in New York, I was pessimistic because I was the only one from my organization, and the other NGOs [non-governmental organizations] did not want to mention LBT issues because [other] women’s issues were urgent. But I’m a woman also.”

L to R: Sherlina Nageer from Guyana, Grace Poore from IGLHRC, Dorathy Benjamin from IWRAW Asia Pacific, Sri Agustine from Ardhanary Institute. (Photo courtesy of Ardhanary Institute.)

Women’s NGOs Exclude LBT Issues

Since 2000, LBT people in Indonesia have been part of the women’s movement, fighting for equality for all Indonesian women. Yet the CEDAW Convention does not apply to LBT people because LBT rights are not seen as women’s rights by the Indonesian state. This attitude is in part due to the resistance of women’s NGOs to recognize the multi-dimensional discrimination and “layered violence” that LBT people face for being women and also because of their sexual orientation and gender identity.

Agustine was pressured not to make any statements about LBTs to the CEDAW Committee. It saddened me to see how the forces of religious extremism had managed to compartmentalize advocacy and silence even those who were allies – allies who quietly supported LBT people but publicly could not afford to be associated with LBT rights.

The International Gay and Lesbian Human Rights Commission (IGLHRC) was aware that in Indonesia, fundamentalist thugs were calling up LBT groups and leaving threatening telephone messages, stalking LBT activists, violently disrupting human rights workshops and film festivals, halting conferences, using the media to incite violence against LBT people, and posting stickers on restaurant windows and banners in public spaces that said, “Destroy Gays and Lesbians.” This climate of hate and intolerance in the name of religion and morality has grown steadily since 2008 and exposed the LGBT community in general to vigilante attacks, police complicity with attackers, curbing freedom of association and assembly, stifling freedom of expression, and eroding LGBT people’s access to justice.

Decentralization

Ironically, these human rights erosions grew out of the decentralization process initiated by the Indonesian government to grant autonomy to local provinces and districts so they could govern themselves, including create their own local laws (or bylaws). Religious extremists usurped the decentralization process to create discriminatory bylaws in their provinces and enforce them with impunity in the name of morality and religion. They targeted sexual rights, reproductive rights, women’s rights and LBT rights. They regulated what women wore, the length of their hair, what public spaces they could access, and how they appeared – with penalties for butch lesbians (lesbian tomboys) for not looking “feminine enough” or transgender women (waria) for “acting like women.”

Ardhanary Institute reports that since 2008, employment discrimination and sexual bullying in schools sharply increased because of the “spread of intolerance.” By 2010, family violence against LBT people had doubled in Jakarta, the capital city, and tripled in the provinces outside Jakarta. Lesbians, particularly lesbian tomboys were increasingly being “sexually abused by fathers, uncles and brothers to change the sexual orientation of lesbians.” Those who risked going to the police faced ridicule and blame for provoking the violence and were lectured by police officers to change their sexual orientation and gender identity. Reports on the violence were quashed by police to prevent “smearing family reputation.”

According to Komnas Perempuan, the Indonesian Women’s Commission, the Ministry of Home Affairs was not properly monitoring and ensuring that the local bylaws were nondiscriminatory and in compliance with international human rights treaties that Indonesia has ratified, including the CEDAW Convention.

These realities challenged the suggestion that LBT people could wait another five years before their issues were brought to the CEDAW Committee. Agustine and I negotiated with the NGOs. Finally, they allocated eight minutes out of seventy minutes, which was fair given the number of NGOs wanting precious face time with CEDAW Committee members. Following our presentations, Komnas Perempuan and the leadership of the CEDAW Working Group of Indonesia revised their statements to include SOGI. They requested from Ardhanary Institute a regular supply of data so they could include it in their educational materials.

State Review

On the morning of July 11, Agustine walked into the room where the 52nd session of the CEDAW Committee would commence, a broad smile on her face, eyes shining. “I feel confident,” she said, having earned the support of the other activists, her sisters in struggle.

The first question on LBT rights violations was raised by Patricia Schulz, CEDAW expert from Switzerland: “The bylaws on adultery passed in Aceh, if implemented, would expose adulterers to death by stoning, and LBT persons to caning, 100 lashes. This law is pending implementation. These bylaws represent grave violations of the rights of women to life, liberty and security… there is no commitment of the government to challenge these local and provincial laws. So I ask if your government plans to systematically review the local and provincial laws and strike down all the provisions that are discriminatory to women. You have the authority and the mechanisms to do so. Let me comment that decentralisation cannot mean that the human rights of women are invalidated at the local and provincial level. Democracy and rule of law, including anti-discrimination and equality law have to walk hand in hand, at all levels of the State structure. Governments are responsible for upholding the obligations arising from ratified human rights treaties, so I hope that you will give us very good news on that respect at our next constructive dialogue.”

The second question came from Silvia Pimentel, CEDAW expert from Brazil and Chair of the Committee: “Due to different risks associated with being identified as lesbians, bisexual, or transgender, LBT people who experience violence by family are reluctant to report their cases to police. Could the State: (a) enhance operational procedures, such as victim representation and witness protection? (b) sensitize frontline staff through training to address these specific fears?”

Harkristuti Harkrisnowo, Director-General of Human Rights in Indonesia’s Ministry of Justice and Human Rights responded, “The allegation about criminalization of LBT is incorrect because Indonesia does not criminalize LBT groups.” He added, “Regarding the punishment in Aceh, the law is not in place yet.”

Harkrisnowo stonewalled. He did not shed light on what measures the state would take to ensure protections. True, Indonesia has no sodomy law like many other Muslim countries in the region. But there are laws that disproportionately affect transgender people like the vagrancy and public order laws. The Anti Pornography Law classifies homosexuality as a “deviant act” that is punishable with jail and a fine.

In addition, a total of 154 local bylaws, regulate how women dress, including lesbians and lesbian tomboys who are punished for not appearing “feminine enough” and effeminate men and transgender women are punished for “acting like women.” Other bylaws force women to cover their heads, control what public places they can socialize in, and how late they stay out – all of which directly and indirectly affect LBT people.

The most egregious of the discriminatory local bylaws is the Aceh adultery law that was passed in 2009 by religious hardliners in the Aceh government. If this law is implemented, heterosexual people will be stoned to death for adultery and LGBT people will be caned 100 times and face 8.5 years in prison for homosexuality, which the law defines as sexual activity outside marriage. Civil society groups have filed for judicial review with the Indonesia Supreme Court. To date, there has been no decision. IGLHRC has learned that the new governor of Aceh favors amending the law. LGBT groups in Aceh fear that even if stoning is removed, the penalties for homosexuality could remain unless there is greater solidarity.

As Agustine said after a long day, “SOGI needs to be included in the definition of discrimination against women in Article 1 of the CEDAW Convention. The Indonesian government needs to ensure that Indonesian LBT people have equal access to the law and justice. The Indonesian government needs to promote acceptance of sexual and gender diversity among non-state actors and destigmatize our issues.”

LGBT Report From The Peoples’ Forum In Phnom Penh, Cambodia

By Ging Cristobal

The Ninth Association of Southeast Asian Nations (ASEAN) Civil Society Conference/ASEAN Peoples’ Forum, (ACSC/APF), was held in Phnom Penh, Cambodia at the close of March. ASEANis an intergovernmental network formed to establish economic, socio-cultural, and political cooperation as well as regional peace amongst members. The ten member states include: Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand and Vietnam. The forum, which provides civil society activists a space to engage with their respective governments, included lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) issues for the second time this year. Ging Cristobal, Asia Project Coordinator for IGLHRC attended the forum for the second time around and shares about the experience.

The Struggle Continues for LGBTIQ Rights in the ASEAN Peoples’ Forum
For LGBTIQ activists the ninth convening of the Forum was an uphill climb compared to their first engagement last year. Fewer civil society organizations and individuals participated this year, as many were protesting the process of the Cambodia organizing committee. They claimed the Cambodian committee failed to be transparent in the organizing process and did not adequately consult with the regional committee. Allegedly, this affected not only how local organizers ran the convening but also hindered civil society groups and non-governmental organizations in other ASEAN countries from seeking funds to participate in the event.

Continue reading “LGBT Report From The Peoples’ Forum In Phnom Penh, Cambodia”

Thai Police Dismiss Murders of 15 Lesbians and ‘Toms’ As ‘Love Gone Sour’

grace poore

By Grace Poore

This post originally appeared in the Huffington Post »

On Feb. 24, 2012 in Loei province, Thailand, a 14-year-old girl reported to police that her 38-year-old father, who had sole custody of her since 2008, had been raping her continuously for four years because she “liked to hang out with toms” and wouldn’t listen to his instructions to stay away from them. She told police that the most recent rape had been on Feb. 11, 2012.

On Jan. 15, 2009 in Chiang Mai province, 17-year-old Orn-uma Wongprachit and her tomboy partner, 17-year-old Marisa Srisawa, were found dead. They had been stabbed over 60 times. Orn and Marisa worked at a karaoke bar to support their families. Police said they were killed by a man who was “attracted to one of the women and felt disdainful of the lesbian relationship.”
Continue reading “Thai Police Dismiss Murders of 15 Lesbians and ‘Toms’ As ‘Love Gone Sour’”

UPDATE: VICTORY! Seoul Student Rights Ordinance Passed with Sexual Orientation Gender Identity Clauses Included

The International Gay and Lesbian Human Rights Commission received  good news in the following letter  from Jihyye Kim  telling us of victory for LGBT Students in Korea.

Dear Friends and Colleagues,

 “We won the Seoul Student Rights Ordinance with all Sexual Orientation Gender Identity (SOGI) related clauses in the original draft included! 

…It happened after the 6 days of protest of LGBT young people and activists, day and night. This is a significant progress in our LGBT history, because we fought face-to-face against the homophobic individuals and groups, including many members of the Council…   The Council had serious debates on sexual orientation/ gender Identity  (SOGI) issues in their plenary session for the first time in our history. One of the Council members read out UN Secretary General Ban Ki-Moon’s recent speech…  That was the moment that the voices of LGBT people began to be heard, and LGBT people’s human rights recognized…

Continue reading “UPDATE: VICTORY! Seoul Student Rights Ordinance Passed with Sexual Orientation Gender Identity Clauses Included”

Korea: LGBT Students In Danger Of Being Left Out Of Non-Discrimination Protections

This post originally appeared in The New Civil Rights Movement.

Read the Update: Victory! Seoul Student Rights Ordinance Passed with Sexual Orientation Gender Identity Clauses Included

by Grace Poore

The Education Committee of the Seoul Metropolitan Council in Seoul, Korea has singled out sexual orientation and gender identity for exclusion from the draft bill of Seoul Students Rights Ordinance that can become law on December 19 in Korea’s capital city unless human rights activists manage to delay the bill or change the minds of the Education Committee. If passed, the Students Rights Ordinance will be the first initiative to explicitly protect students’ rights in Korea.

The International Gay and Lesbian Human Rights Commission has sent an urgent letter (below) to the Korean Education Committee of the Seoul Metropolitan Council calling for reinstatement of the removed protections for LGBT students.

Continue reading “Korea: LGBT Students In Danger Of Being Left Out Of Non-Discrimination Protections”

Trans Day of Remembrance: Advancing the Human Rights of Trans People across the Globe

From Latin America, to the Middle East, from Africa to Asia, we remember….

“The International Gay and Lesbian Human Rights Commission (IGLHRC) today honors the memory of the many trans men and women whom we have lost across the globe. From Latin America, to the Middle East, from Africa to Asia discrimination, ignorance, transphobia and violence have unduly taken the lives of innocent trans men and women who sought to live with dignity and respect. In remembering their lives and their sacrifice, we also honor the courageous work activists and allies around the world do each day to advance the human rights of all trans people.”

Cary Alan Johnson, Executive Director, IGLHRC

Trans Day of Remembrance: Africa · Indonesia · Latin America · Turkey

Trans Day of Remembrance: Focus on Indonesia

“The killings of transgender people, involving Indonesian law enforcement are poorly or never investigated. More often they are put into the freezer by the state, and left unresolved.”

Grace Poore, IGLHRC, Regional Coordinator, Asia and Pacific Islands

Indonesian waria (transgender) activist Elly Susana was killed in 2007. To date, there has been no justice for her. Elly Susana’s story is told in Courage Unfolds, a video produced by the International Gay and Lesbian Human Rights Commission to reveal the violence and discrimination experienced by LGBT people in Asia and their efforts to fight for equality, safety and decriminalization. Elly Susana’s death, which occurred during an alleged raid by public order officers (Saptol PP), was widely covered by media.

Continue reading “Trans Day of Remembrance: Focus on Indonesia”

LGBT Rights at APF Biennial Conference

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

Yogyakarta 2009

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.

apf
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.

Bali 2010

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.

Bangkok 2011


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 at apfIGLHRC’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.

Moving Forward

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

  1. 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.
  2. 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.
  3. 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 at apf
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.

NOTES

  1. 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.
  2. John Fisher, Michael O’ Flaherty, Vitit Muntabhorn and Sonia Corrrea were the other experts who presented at the 2009 APF workshop.
  3. G. Poore, Briefing paper, “Human Rights Abuses in Asia On The Basis of Sexual Orientation, Gender Identity and Gender Expression 2000 – 2009.”
  4. 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.
  5. 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.
  6. 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.

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