‘A voice for sexual orientation and gender identity in the Universal Periodic Review’

We are delighted to welcome this guest post from Aengus Carroll, who recently completed the LLM in International Human Rights Law and Public Policy at UCC.  Aengus’s LLM dissertation examined sexual orientation and gender identity rights claims and advocacy through the Universal Periodic Review mechanism.

 ‘A vBannerHRCoice for sexual orientation and gender identity in the Universal Periodic Review’ (edited extract from 2013 UCC LL.M dissertation  by aenguscarroll@gmail.com)

 Perhaps one of the central problems at the UN Human Rights Council (HRC) in regards to establishing a cognisable norm around sexual orientation and gender identity (SOGI), a subject that resonates so many deeply-held cultural and personal values, is the modus operandi through which these considerations are happening. Regional groups (cross cut by organisation membership, such as the 57-State Organisation of Islamic Cooperation) make politicised and recalcitrant statements regarding human rights in dialogues and Resolutions that are then voted on, rather than having the space for expansive or explorative dialogue for what are genuine concerns to be aired in anything other than polarised terms.

The Universal Periodic Review process, completed its first four and a half year cycle in 2012. Its dialogic structure seems to facilitate an expansive understanding of the multiple perspectives existing in any one State on human rights issues, and how they intersect or relate to each other. Although the UPR is a State-centric process, engagement in the process by civil society organisations, brings to the fore uniquely situated perspectives on how cultural values interact with diversity, including diversity in gender identity and sexual orientation.  The preparation for, and follow on from, the act of articulating such perspectives in the UPR reporting cycle, builds capacity for civil society organisations (CSOs), including NGOs. The process can, and frequently does, open human rights defenders and particular minorities to considerable risk, often State-sponsored and citizen-led.

The UPR enhances a potential already long realized by SOGI advocates with UN mechanisms: use the international space as an amplifier to get their issues heard at their own national levels. The UPR process acts as a ‘loudspeaker’ for CSOs’ reports and data that expose how, in the case of SOGI, the over-arching issues of discrimination and criminalisation lead to violations of positive and negative obligations under IHRL in domestic settings regarding LGBT people.

Through the UPR process, ‘action level’ categories have been designed that are indicated by the type of primary action verb used by the Recommending State (hereafter RS). These can be divided into five types, ranked on a scale from 1 (minimal action), 2 (continue doing), 3 ((to consider), 4 (general action) to 5 (specific action).[1] The verb used defines whether the SuR is requested only to ‘consider’ the action or to complete it. In his recent analysis of the HRC, Rathberger notes that amongst all the recommendations issued through the first cycle of the UPR (sessions 1-12), the more specific or action-oriented the recommendations the lower the acceptance rate.Further, he notes that explicit or outright rejections of recommendations tended not to be articulated, reluctance being coded in such terms as “taking note of recommendations” or other general responses.

However, this conciliatory or diplomatic approach appears to apply to SOGI much less often, the subject of which has frequently elicited strong and unambiguous rejection from African (AF) and Asian & Pacific (AS-PAC) bloc States particularly, in all action categories. Their responses to recommendations reflect issues of sovereignty and tradition, most often in terms of protecting public morality. The overall acceptance rate for all recommendations in the first cycle of the UPR was 73% according to Schlanbusch, however acceptance of the recommendations related to recognition of SOGI-related human rights was only 36%.

From a total of 21,353 recommendations to all States in the first cycle, only 493 (2.3%) referred to sexual orientation and gender identity (across the five action types). The UPR-info database shows that of these 179 (36%) were ‘accepted’ – 18 by the African group, 29 by the Asian & Pacific group, 60 by the Eastern European Group; (EEG) group, 36 (by the Latin American and Caribbean Group (GRULAC) and 36 by the Western European and Others Group (WEOG) group. These 493 recommendations were issued by only 39 States in total. Schlanbusch points out that 76% of these came from 22 (of 28) WEOG States, 16% from two EEG States (Slovenia and the Czech Republic), 8% from six GRULAC States, and none from the African bloc. The only one that came from the AS+PAC bloc (Bangladesh), demonstrated a particularly novel (and ominous) use of the UPR by recommending denial of human rights by recommending that Tonga’s criminal laws regarding “consensual same sex” remain as it is “outside the purvue of human rights norms”!

The UPR-info database shows 314 (63.5%) of those recommendations that elicited negative response regarding SOGI (where no meaningful action might be expected) were either ‘rejected’, given a ‘general response’ or received ‘no response’ at all. Of these, Africa outright rejected 107 recommendations (34% of all those rejected) with negligible responses to a further 23 (8%).[2] While at the other extreme, the Western European and Others Group (WEOG) only rejected 15, with negligible response to a further 5.  African countries account for around half of the world’s criminalising States, and as described here, account for almost half (42%) of the world’s total UPR rejections of recommendations regarding SOGI. Of those 314 responses that can be read as negative, 223 are outright rejections and 91 responses comprise general responses or no comment at all. Each one of these negative responses can be seen as a statement of how a State’s understanding of how traditional and cultural values on what they consider to be ‘sensitive’ issues “trump” (to reverse Dworkin’s thesis) human rights obligations as interpreted in the body of IHRL. Regarding the question of what evidence is there of the actual effect of the UPR on national legislations, 7% of States (five countries; Seychelles; Nauru, Palau, Solomon Islands, Sao Tomé & Principe) accepted Action level 5 recommendations (take specific action) to decriminalise sexual orientation in the first cycle of the UPR. However, the actual implementation of such commitments remains to be seen. The issue of follow-up is currently a central weakness of the mechanism – although encouraged, States are not obliged to deliver mid-term assessments or develop other tracking mechanisms with indigenous CSOs between UPR cycles (such as that recently developed in India). However, the process is proving to provide an essential opportunity for CSOs to bring some scrutiny on how their intersectional priorities are addressed by their States. The process is also helping to clarify deeper questions around the limits of the reach of human rights that are perceived to clash with cultural or traditional values, in places such as Russia, Cameroon or Uganda.

 

[1] An extensive and interesting list of verb under each level are supplied in the link above.

[2] Of the outright rejections, 70 (65%) were in action level 5, (22%) at action level 4, 13 (12%) at level 3, and none at either action levels 2 or 1.

Gender Recognition Advisory Group: One Year On and No Report

Dr Tanya ni Mhuirthile

This piece was originially published as an Analysis piece in the Examiner on 6 May 2011.

This Friday marks the anniversary of the first meeting of the Gender Recognition Advisory Group (GRAG), established by the FF/Green Government ‘to advise the Minister for Social Protection on the legislation required to provide for legal recognition of the acquired gender of transsexuals’. The absence of such recognition results in discrimination and infringement of the basic human rights of transgender people (those whose gender identity/expression differs from the sex recorded at birth). The formation of the GRAG signified an important step towards protecting the human rights of transgender people. The GRAG first met on 6 May 2010; a report was expected within six months. Still we wait.

The necessity of introducing such recognition was first brought to public attention by Dr Lydia Foy, a male-to-female transwoman, when she brought a case to have a birth certificate issued reflecting her preferred name and gender. Her thirteen-year battle reached a quasi-conclusion in 2007 when Justice McKechnie in the High Court ruled that the inability of Irish law to provide a means by which Dr Foy’s preferred gender identity could be legally recognised amounted to a breach of her right to respect for her private and family life, contrary to Article 8 of the European Convention of Human Rights.

Concluding that Ireland was ‘disconnected from mainstream thinking’ on this issue, Justice McKechnie called on the Oireachtas to review these matters as a matter of urgency. In response, the State appealed the decision to the Supreme Court. The matter remained frozen until 21 June 2010, when the State withdrew its appeal in the Foy case; an unsurprising outcome, considering the establishment of the GRAG six weeks earlier.

Last summer the GRAG began a public consultation, and published the principles that would underpin the proposed legislative scheme. Many were welcome: the rights, dignity and privacy of the applicant would be respected; the process would be consistent, objective, and completed in a timely manner; it would possess integrity and fairness, and would not deter applicants. Such principles reflect a recent movement within international human rights discourse to acknowledge gender identity issues within the normative framework of human rights.

Yet simultaneously, these core principles are undermined in four ways: use of language, emphasis on diagnosis, and restrictions of age and marriage.

The GRAG’s language confines itself to recognition of ‘the changed gender of transsexual persons’. ‘Transsexual’ is a narrow term, often associated with a person who has undergone some form of medical (e.g. hormones) and/or surgical intervention – many transgender people would choose neither. Thus at its outset, the GRAG’s thinking as to who would be protected by gender recognition legislation is restrictive.

The GRAG’s terms of reference emphasise medical diagnosis, which is worrying. In his most recent Comment on gender recognition, the European Commissioner for Human Rights, Thomas Hammarberg, reiterated the importance of severing the link between a medical diagnosis and access to recognition. He highlighted the work of the GRAG as an opportunity for Ireland to ‘become a good model for other states which are currently considering improving their legal framework for transgender persons’.

The UK’s Gender Recognition Act of 2004 offers a timely warning in this respect. In relying on a diagnosis of gender identity disorder (GID) to ground a claim for recognition, the Act excludes anyone who does not want to go down the psychiatric route. Critically, it also excludes intersex people from its protection (intersex is an umbrella term for a variety of medical conditions where a person’s body simultaneously combines both male and female biological traits). Although no definition of GID is offered in the legislation, the definition in the Diagnostic and Statistical Manual of Mental Disorders that GID is ‘not concurrent with a physical intersex condition’ ensures the continued exclusion of intersex people from the rights contained in the UK Act.

Thirdly, the proposed scheme would accord recognition only to applicants aged 18 or over. The recent Irish study ‘Supporting LGBT Lives’ demonstrates that many young transgender people become aware of their gender identity while still under this threshold; many begin a transition process before turning 18. The minimum age criterion is particularly harsh in the context of intersex children, whose condition might become apparent after the birth has been registered. At present there is no certain method of ensuring that birth certificates can be amended to take account of the fresh information. Given that the gender recorded at birth was the best information available at that time, technically the gender change is not necessarily a ‘correction of an error’ as understood by the Civil Registration Act 2004.

Finally, the proposal to exclude married people from the protection of this legislation will surely cause a Constitutional quandary. Under Article 41 of the Constitution, families based on marriage enjoy special protection. Some trans people marry in their original gender. Some of these marriages survive the transition process. To refuse to recognise married applicants would (as is the case in the UK) result in legislation that effectively demands divorce. The idea of forcing a couple to divorce, of breaking up a family in order to accord one member their human rights, is deeply offensive. Such a provision forces a person to choose between two human rights, the right to marry and the right to recognition. This is especially insensitive for the supportive spouse, who simply wants to remain married. The legality of such interference with the constitutionally protected family is questionable – particularly where Irish divorce law requires couples to live apart for 4 of the previous 5 years.

One year on and there is no sign of the report. Its absence has not gone unnoticed, with TDs posing questions of the Minister for Social Protection in January (here), March (here and here) and April (here and here). It’s due, we’re told, in a matter of weeks.

We wait, and hope that the time taken to compile this report results in proposed legislation which is thoughtful, enlightened and carefully considered. If it does, the landmark legislation could position Ireland as a world leader on this sensitive and deeply personal issue.

Equality Tribunal Decision on Transgender: A Good Beginning Towards the Protection of the Rights of Transgender People

 

CCJHR blog is pleased to be able to repost this blog by Dr Tanya ni Mhuirthile from Human Rights in Ireland

The recent decision of the Equality Tribunal that discrimination on the basis of gender identity amounts to a breach of rights under the Employment Equality Acts is to be welcomed. It represents a huge step forward in terms of protection for those who have questioned their gender at birth.

As has been well reported (here and here), the case before the Equality Tribunal concerned a male-to-female transgender woman, Louise Hannon, who was constructively dismissed from her workplace when she revealed her preferred gender identity to her employer. A large part of the treatment for gender identity disorder requires ‘real life experience’ where the person lives in the preferred gender role without the need to revert to the gender role of birth. In this case, her employer informed Ms Hannon that she could only dress in her female identity while in the office and would need to change to her previous male identity when meeting clients. She was not permitted to use the female toilet at her workplace, even though it was not unusual for her male colleagues to use it if the male toilet was occupied. Despite a number of requests to do so, her employer failed to provide her with an email address in her new legal name. Finally, her employers requested that she relocate to new offices and, as these were not yet ready, that she work from home for a short while. When, having on a number of occasions over the ensuing months informed her employer that she was finding it impossible to work from home, Ms Hannon requested that she be permitted to return to the office she was informed that a new person had started working in the office and that there was no room for her. The Equality Tribunal found that there is a legal obligation on employers to enable people with gender identity disorder work in their preferred gender. In this case, it found that the employer’s request that the complainant switch between male and female identity was ‘clearly ludicrous’. Thus the tribunal held that the approach of her employer to the issue of Ms Hannon’s gender identity amounted to discriminatory dismissal on gender and disability grounds.

This is a historic decision as it represents the first time where the Employment Equality Acts have been successfully used to provide protection from discrimination for transgender people. This is an important step towards securing the long term wellbeing of a small but marginalised group within Irish society.

Transphobia is the fear of, or aversion to, or discrimination against transgender people or people who transgress (or are perceived to transgress) norms of gender identity or gender expression. Consequently, it has a negative impact on a person’s ability to fully participate in society. Transgender people face daily discrimination, as the facts of this case clearly illustrate. The report ‘Transphobia in Ireland’ produced by Transgender Equality Network Ireland (TENI) in 2009 identifies the wide ranging nature of transphobia experienced in Ireland. Of particular concern in this regard is the lack of express protection under equality or hate crime legislation for transgender people. Under Irish equality legislation, one of the grounds for discrimination the ‘gender ground’ is currently defined as ‘that one is male and the other is female’. Although this decision of the Equality Tribunal is to be welcomed for interpreting the gender ground as including trans identity, such protection could be considerably strengthened by a simple amendment of equality legislation to include expressly the phrase ‘ or on the grounds of gender identity and/or gender expression’ within the gender ground.

The social disenfranchisement experienced by trans people is heightened by the lack of legislative framework to enable the recognition of trans people’s preferred gender identity. Famously, in the Foy case, the High Court ruled that this absence is incompatible with the State’s obligations under the European Convention on Human Rights. (I’ve previously blogged about the introduction of such legislation here.) The Gender Recognition Advisory Group is due to report to Joan Burton, Minister for Social Protection shortly with proposals for the introduction of gender recognition legislation. Such legislation will ensure that a person is legally treated as being of the preferred gender identity from the moment of recognition onward. However, it will not guarantee protection for those people who are not yet recognised. Therefore, people who are at the most vulnerable and early stages of the transition process will not be explicitly protected by legislation. To ensure that their dignity is fully respected, the Equality Acts must be amended to account for issues of gender identity and gender expression.

The recent census represents a golden opportunity missed in terms of assessing the multiplicity of gender identities in Ireland. In response to the question on gender only two options were available on the census form: male or female. Had a third box ‘other’ with space for inclusion of one’s own identity been available, this would have been a simple and inexpensive way to research the issue of gender identity in Ireland. The failure to do so reflects the institutionalised invisibility of transgender identities. Ireland’s civil and public service is sorely lacking in policies on gender identity issues. With the notable exception of the passports legislation which will grant a passport reflecting a person’s preferred gender identity in certain circumstances, interaction with officials of the State is heavily dependent on the goodwill and understanding of the individual public servant. This situation needs to be rectified by the introduction of trans friendly policies which ensure parity of treatment with all other people irrespective of gender identity.

The decision of the Equality Tribunal is a first step towards safeguarding the rights of transgender people. However, significant gaps in protection persist. The Equality Acts should be amended to account for trans experience. Similarly, policies on gender identities should be introduced throughout the civil and public service. Finally, broad and inclusive gender recognition legislation should be enacted. Taken together, these measures will help to ensure equality and respect for transgender people.