Human Right Commission (HRC)

ABMUN 2013

Study Guide: UNHRCUNITED NATIONS HUMAN RIGHTS COUNCILDear Delegates,Sooraj MehtaSecretary GeneralMadhavWarawdekarDeputy Sec. GenIt is my great pleasure to welcome you to the United Nations Human Rights Commission andan honour to be chairing the same. Currently in the 12 th grade, I, Khrish Shahani, haveattended HMUN and won at MUNs like CMUN (twice), BDMUN and several more, beginningat the age of 14. That being said, I vouch to direct all my experience into ensuring that youhave an enjoyable experience at the HRC by helping you to create a sophisticated, realisticbut exciting MUN.The Human Rights Council is an inter-governmental body within the United Nations,responsible for the promotion and protection of all human rights around the globe. It acts asa forum and springboard of action against all violations against any human rights.KhrishShahaniDirectorNaviyaKothariAssistant DirectorI have chosen a topic of immense interest in the current times.The LGBT Community (Lesbian, Gay, Bisexual and Transgender) has always been underpressure through acts of hate crimes, violence, discrimination and partiality. Most countriesin the world do not have laws protecting the rights of this vast community. Some countrieshave laws and policies that suppress the freedom of the LGBT community, even consistingof punishments for people that are part of the community. The LGBT community is present inalmost each and every country worldwide. While many developed and democratic countrieshave taken a stand and protected the rights of the LGBT community there are several othersthat denounce this minority.We will be looking into matters such as equal rights, marriage, adoption, surrogacy,workplace discrimination, protection against hate crime and abolishment of punishment. It isour duty in the HRC to reach a decisive conclusion about the fortification and future of thiscommunity with regards to their rights, taking into account the sentiments of all the countriesas well as the well-being of the LGBT community.I sincerely urge each one of you to research to the best of your abilities, as this topic requiresa vast amount of knowledge. Don’t hesitate to contact any member the chair with a doubt orquery. I look forward to a stimulating conference and wish you all the best.Your Chair,Khrish Shahani.For any questions or committee procedure; you may contact us at hrc@abmun.org1

Topic Area 1: Lesbian Gay Bisexual Transgender (LGBT) Rights“Some say that sexual orientation and gender identity are sensitive issues. I understand. Like many ofmy generation, I did not grow up talking about these issues. But I learned to speak out because livesare at stake, and because it is our duty under the United Nations Charter and the Universal Declarationof Human Rights to protect the rights of everyone, everywhere.” — UN Secretary-General Ban Ki-moonto the Human Rights CouncilHISTORY:In the 1990’s, the term LGB – a term that replaced the phrase ‘gay community’, changed to LGBT,which collectively referred to Lesbian, Gay, Bisexual and Transgender communities. The intention of the termis to underline the diverse cultures that are based on sexuality and gender-identity. Often, the term is used todescribe or categorize anyone who is cisgender or even non-heterosexual. The condition of the LGBT‘minority’ today has made progress, however it’s still in a terrible state. Homosexuality has been a part of casestudies in Europe since the 1790s, and the field of psychology provided a way to directly address the matterapart from making a reference to Biblical condemnation. Academics and scientists believed homosexualitywas congenitally based, and several others believed that it was a manifestation of psychopathic behavior,which was viewed as inherited nature of degeneration or deterioration.As early as 1791, Revolutionary France adopted a new penal code that did not criminalize sodomy. Thismade France a plinth for homosexuality. In Germany, when the Third Reich came into power, Berlin’s liberalstatus came crashing down.Prior to Hitler’s decry of prostitution, cultural degeneration and syphilis in Mein Kampf, Berlinpromoted gay and “drag” bars. It had the strongest, most active LGBT movements that petitioned against theGerman Penal Code that made sex between men illegal. However the conservative nature of the Third Reichin the 1930s caused the public to grow intolerant of LGBT communities and sub-cultures. During theHolocaust, over 50,000 people were sentenced because of sexual orientation and gender identity; several ofthem were put in concentration camps. The conditions for gay men in the camps were especially rough – theydidn’t face persecution only from the soldiers, but from fellow prisoners as well. Reports state that most diedfrom gang beatings. LGBT people were diagnosed with a ‘disease’ that was given treatments that ranged fromcastration and lobotomies to electroshock treatments and pubic nerve surgery.Nineteenth and twentieth century literature highlighted homosexual subcultures. Society started tobecome aware of homosexuals and support spread like wildfire. The YMCA (Young Men’s Christian2

Association), ironically, became the site for gay conduct. However the strong opposition arose after a scandalhit Oregon, where over 50 prominent men of the community were arrested for homoerotic activities. Thisthen changed the outlook of the YMCA leadership.New York City’s Wagner Administration, in 1959, started toshut down the gay and drag bars in Manhattan and other islands.However after several petitions and protests, the law was alteredand there was an increased visibility of LGBT life in the city of NewYork. Nevertheless, fire and police departments did not accepthomosexuals and did not co-operate. In 1969, the Stonewall Riotsbroke out – this marked the turning point for the modern gayrights movement through the world.THE FOCUS:LGBT rights at the United NationsSupport: Countries which have signed an LGBT rights Declaration in the General Assembly, sponsored the 2011 LGBT rights resolution in the UNHRC, or both (94 memberstates)Oppose: Countries which had signed a statement opposing LGBT rights in 2008; initially 57, but 3 countries switched to supporting LGBT rights (54 member-states)Neither: Countries which have not officially opposed or supported LGBT rights in the UN (46 member-states)The first UN report on the Human Rights of Lesbian, Gay, Bisexual and Transgender people details howpeople are killed or endure hate-motivated violence, torture, detention, criminalization and discrimination injobs, health-care and education because of their real or perceived sexual orientation or gender identity.3

According to the International Lesbian, Gay, Bisexual, Transgender and Intersex Association (ILGA), 76countries prosecute people on the grounds of sexual orientation, and only 53 countries have antidiscriminationlaws applicable to the LGBT community. What worsens the situation is political discourse andlegislation on the rights of same-sex couples.A report released by the UNONCHR (United Nations Office for the High Commissioner for HumanRights) in Geneva outlines, “a pattern of human rights violations… that demands a response.” The report alsostates that governments themselves have overlooked violence and discrimination based on gender identityand sexual orientation.The report was prepared as a response to an appeal from the UN Human Rights Council. In the report,Navi Pillay, the UN High Commissioner for Human Rights, calls upon countries to revoke laws that criminalizehomosexuality, and harmonize the age of consent for heterosexual as well as homosexual conduct, and alsoact on anti-discrimination laws. However, in a minimum of 5 countries: Iran, Mauritiana, Saudi Arabia, Sudanand Yemen, the death penalty for this offence prevails.Transphobic violence, as well as homophobic violence has been recorded in almost all countries and aplethora of reports find that the violence ranges from murder, kidnappings, rape incidents, and assaults topsychological threats as well as arbitrary deprivations of liberty. Governments themselves violate civilians’fundamental rights when it comes to the LGBT community. Often LGBTs are the focus of structured abusefrom religious fundamentalists, several Para-military groups, and extreme nationalists among others. Therehave been cases of family and community violence, with transgender and lesbian women at the mouth ofdanger. In several cases of violence, the incidents frequently go unreported. This is because the LGBTindividuals don’t trust the police, are afraid of retaliation or simply fear to identify themselves as LGBT. NaviPillay, after viewing a surfeit of these statistics, recommended that Member States establish their governmentsystems to investigate all forms of discrimination, which includes violence. He also recommended that theStates establish well functioning systems to record such data.Decriminalization of homosexuality, and LGBT rights as a whole, have proved to be a difficult subjectfor the United Nations. An LGBT rights session in March saw a 47-member panel gather for its first-eversession on sexual orientation-based discrimination and violence. However the session was marred whenseveral African and Islamic nations promptly walked out of the meeting. In June 2011, the UN closelyapproved a resolution that expressed “grave concern at acts of violence and discrimination in all regions of theworld, committed against individuals because of their sexual orientation and gender identity,” but the staunchopposition presented itself through Pakistan, Russia, Saudi Arabia and many other nations.4

AROUND THE WORLDA report released by the council last year found that “76 countries among theUN’s 192 members had laws criminalizing homosexual behavior” and “at leastfive – in particular Iran – implement the death penalty, while efforts are underway in Uganda to introduce the same punishment.” At the start of yesterday’shearing, UN Secretary General Ban-Ki Moon issued a special message to thecouncil, decrying violence against the LGBT community as a “monumentaltragedy” that is a “stain on our collective conscience” and a “violation ofinternational law.”In 2009, Uganda proposed an Anti-Homosexuality Bill that advocated thedeath penalty for being gay and the Bill also stated the prison sentences for family members, friends and coworkerswho believe the individual is gay, and don’t report it to authorities. Homosexuality is illegal inUganda, however discussing LGBT issues is not, while the Ant-Homosexuality Bill still remains pending beforethe parliament. Government officials themselves vilify and demonize homosexuality, the public ismisinformed. One minister even used the promotion of homosexuality as a justification for his own campaign.Under Article 347, of the Cameroon Penal Code, those who engage in sexual contact with members ofthe same sex face a penalty ranging from 6 months to 5 years in prison in addition to a fine of 20,000 to200,000 CFA francs.In Jamaica, the media reported two sexual incidents that involved homosexuals, in June 2012. Violencewas used to threaten innocent civilians, based on the suspicion that they were gay). “Homophobia is so badthat human rights defenders advocating the rights of LGBT people are not safe in Jamaica,” said Boris Dittrich,advocacy director in the Lesbian, Gay, Bisexual, and Transgender (LGBT) Rights Program at Human RightsWatch. “Jamaica needs to act now on its international obligations to prevent discrimination on the basis ofsexual orientation and gender identity. Politically speaking, Portia Simpson-Miller [Prime Minister] also took abig risk. Jamaica has a very violent history of homophobia and transphobia and her predecessor favoredongoing criminalization of homosexual conduct.”The rampant discrimination of homosexuals and lesbians is one of the most serious social problems inthe EU, and that radical legislative measures are necessary to address it. We may safely assume that thereport is already in the course of being drafted. What is still missing, however, are the “facts” on which thereport will be based. These still need to be fabricated.To this end, the Agency has commissioned a “European LGBT Survey” that is carried out by the marketresearch institute Gallup jointly with the controversial LGBT pressure group “ILGA-Europe”. ILGA Europe iscontroversial because it claims to be an independent “non-governmental organization”, while actual fact itreceives roughly 70% of its funding from the European Commission, and additional funding from the Dutchgovernment.5

Transgender, in India, has several connotations. Sometimes they are akin to ‘holy’, as they appear tohave surpassed the basic human roles. On the other hand, several people look down upon Hijras (transgenderindividuals) – this leaves them with low opportunities for employment – and so they are forced to beg,perform or prostitute themselves. Hijras are targeted as outcasts, and untouchables. They are given a subhumanstatus for the same reason that they are regarded as ‘holy’: they do not fit into confines in which theaverage person is comfortable with. Another nation where transgender men/women have been discriminatedagainst is Kuwait. Based on interviews with 40 transgender men, as well as lawyers, doctors, members of theKuwaiti civil society and Ministry of Interior officials, the investigation found that the ill-defined, arbitraryprovisions of law have allowed numerous abuses to take place based on gender identity.However there are several sparks of progression in this field and for the first time since 1994, anAfrican country, Malawi, has repealed anti-LGBT legislation. The repeal of these repressive laws would begood news for Malawi and for Africa. It would not only spare members of the LGBT community the fear ofprosecution, but would also negate the legitimization of violence, abuse, and discrimination based on sexualorientation. Although sanctions may be useful in seeking to secure and protect human rights, any attempts tosingle out LGBT rights in this process has backfired. Politicians have used this to divert the people’s attentionfrom their own corrupt practices. The government sought to blame the LGBT community for the cuts in donoraid, provoking increased homophobia and threats against known supporters of LGBT rights.Seven of ten countries that have legalized same-sex marriageare situation in Europe and 14 more countries have legalized orrecognized several rights for homosexual couples. The EUMembership requires a repeal of anti-homosexual legislation as wellas the Treaty of Amsterdam requirement suggests that antidiscriminationlegislation need to be enacted by all member states.The Oireachtas of Ireland (parliament) approved the CivilPartnership and Certain Rights and Obligations of Cohabitants Bill2009 in July 2010. This later came into effect in January 2011. Liechtenstein also legalized registeredpartnership. Belarus, Cyprus, Latvia, Turkey and Greece ban gays from military service, however all other EUcountries allow them to serve in the forces. A statistic dated April 2011 states that Greece is the only countryin Europe that has a high unequal age of consent for gay men. All other jurisdictions in Europe have an equalage of consent for all individuals.For a span of a few years in the modern history of the Republic of China and the Peoples’ Republic ofChina in the 20 th century, the LGBT subculture was at the receiving end of several stringent legal regulationsand restrictions that only slowly eased by the start of the 21 st century. However there is a lack of activism forLGBT rights due to societal sentiment and inaction of the government.6

In communist China, laws prohibiting homosexuality were passed, however in 1997 homosexuality wasdecriminalized. China has no specific anti-homosexual laws.There is a mélange in the status of LGBT rights inUSA. At a federal level same sex unions are notrecognized and there are no laws prohibiting employmentdiscrimination against the LGBT community, howeversome states have enacted such laws. The condition ofLGBT rights in USA has evolved over time, state by state.Family, marriage, and anti-discrimination laws vary bystate. Six states and one district currently offer marriageto same-sex couples. Other states do not offer same-sexmarriages but do recognize same-sex marriagesperformed elsewhere. Additionally, some states offer civilunions or other types of recognition, which offer some of the legal benefits and protections of marriage.Twenty states plus one district outlaw discrimination based on sexual orientation, and twelve states plus onedistrict outlaw discrimination based on gender identity or expression. Hate crimes based on sexual orientationor gender identity are also punishable by federal law. Adoption policies in regards to gay and lesbian parentsalso vary greatly from state to state. Some allow adoption by same-sex couples, while others ban all"unmarried couples" from adoption.PREVIOUS UN CONFERENCESJune 2011: the UN Human Rights Council (UNHRC) passed its first ever resolution, focused exclusively on thehuman rights of LGBT individuals. Aimed at spotlighting violence and discrimination on the basis of sexualorientation and gender identity, this measure, passed by a vote of 23-19 and received support from countriesin all of the Council’s regional groups.November 2011: The Office of the United Nations High Commissioner for Human Rights (OHCHR), asmandated by the Human Rights Council, released a report (A/HRC/19/41) addressing “Discriminatory laws andpractices and acts of violence against individuals based on their sexual orientation and gender identity.”Unfortunately, rather than focus on preventing violence against LGBT people, which was the intent of theHuman Rights Council’s mandate, the report builds on the Commissioner’s 2010-2011 strategic plan to havethe world “embrace sexual minorities.”December 2011: Then U.S. Secretary of State Hillary Clinton gave a historic speech at the UN in Genevadeclaring that LGBT rights are human rights and human rights are LGBT rights. "It should never be a crime to7

e gay," Secretary Clinton said, adding that a country's cultural or religious traditions were not an excuse forviolence and discrimination.March 2012: The UNHRC held the UN’s first-ever formal panel discussion on the rights of LGBT people inGeneva. While getting this issue onto the agenda was an important step for the LGBT rights movement, anumber of countries (primarily in the Middle East and Africa) rejected outright a discussion of LGBT rights atthe UNHRC and staged a walk-outSeptember 2012: Russia passed a resolution at the United Nations that highlighted traditional values. Expertssay the Human Rights Council vote will be used against gay, trans and women's rights as it was titled‘promoting human rights and fundamental freedoms through a better understanding of traditional values ofhumankind’ and stated that ‘traditional values can be practically applied in the promotion and protection ofhuman rights and upholding human dignity, in particular in the process of human rights education.’October 2012: UNHCR issued new guidelines concerning claims to refugee status based on sexual orientationand gender identity. The guidelines state:A proper analysis as to whether a LGBTI applicant is a refugee under the 1951 Convention needs to start fromthe premise that applicants are entitled to live in society as who they are and need not hide that. As affirmedby the position adopted in a number of jurisdictions, sexual orientation and/or gender identity arefundamental aspects of human identity that are either innate or immutable, or that a person should not berequired to give up or conceal.The guidelines recognize persecution by governments, society, and family members, and also note that lawscriminalizing homosexuality can rise to the level of persecution.November 2012: The UN General Assembly (UNGA) passed a resolution condemning extrajudicial, summary,and arbitrary executions on the basis of "gender identity" for the first time. In a vote of 108 to 1, the UNGAamended the resolution to include language-urging states around the world "to investigate...all killingscommitted for any discriminatory reason, including sexual orientation or gender identity." The UNGA'sapproval of the amendment effectively capsized a 2010 resolution that removed references to protectionfrom extrajudicial execution on the basis of "sexual orientation."June 2013: Nigerian House of Representatives passed a draconian bill, another example of discrimination ongrounds of sexual orientation and gender identity that is widespread and invidious throughout the world. Ifenacted, the bill will criminalize same-sex relationships and the ‘aiding or abetting’ of same-sex relationships.It would also forbid the formation of Lesbian, Gay, Bisexual and Transgender (LGBT) groups, and even criticismagainst the bill itself.The core legal obligations of countries with respect to protecting the human rights of LGBT people includeobligations to:Protect individuals from homophobic and transphobic violence.8

Prevent torture and cruel, inhuman and degrading treatment.Repeal laws criminalizing homosexuality.Prohibit discrimination based on sexual orientation and gender identity.Safeguard freedom of expression, association and peaceful assembly for all LGBT people.DUTIES OF THE HUMAN RIGHTS COUNCILIt is the duty of the Human Rights Council to work towards discontinuing these contraventions of basic humanrights and offer protective solutions for this maltreated community.Privately raising concerns and putting forward recommendations for reform in the context of dialoguewith Governments.Monitoring and bringing to light patterns of human rights violations affecting LGBT persons.Engaging in public advocacy of decriminalization and other measures necessary to strengthen humanrights protection for LGBT persons, including through social media and various other methods.Working with UN partners to implement various public information and related educational activitiesintended to counter homophobia and violence motivated by animosity towards LGBT persons.Providing support for the special procedures in the context of their fact-finding activities andconfidential communications with Government.Supporting the human rights treaty bodies, which have addressed the issue of discrimination linked tosexual orientation in previous general comments and concluding observations and continue tohighlight steps that individual States should take in order to comply with their international treatyobligations in this respect.Providing support for the Universal Periodic Review, which provides a forum for concerns regarding therights of LGBT persons to be aired and for recommendations to be developed.PROPOSED SOLUTIONSFirstly, nations should amend or repeal laws that criminalize homosexuality or same-sex relations. Suchlaws violate both the international law prohibition against discrimination and the rights to freedom ofexpression and association. (While homosexuality was decriminalized in Australia largely during the1980s it is of note that gay men today remain haunted by the shame and stigma of past criminalconvictions for gay sex offences.)Secondly, they should enact and strengthen laws to prohibit and redress discrimination on the groundsof sexual orientation or gender identity. Such discrimination is as reprehensible as that based on race,religion or nationality and is deserving of at least the same level of legal recognition and protection.Thirdly, States must take positive action to prevent, investigate and prosecute all forms ofdiscrimination and violence based on sexual orientation or gender identity.9

Enhance the protection available to LGBTI refugees in countries of asylum by actively monitoringtheir inclusion in State Department-funded assistance and protection programs by UNHCR and NGOs.QUESTIONS RESOLUTIONS MUST ANSWER:1. What are the main problems faced by the LGBT Community around the world?2. What should be done in order to protect the human rights of this minority?3. Should there be punishment against the LGBT community?4. What must the UN do in order to protect and safeguard the community?5. What must be done in order to rehabilitate people of the community that havealready been affected by discrimination and punishment?6. What should be done to countries that violate the human rights and discriminateagainst the LGBT community?7. Should the LGBT community be given the right to get married?8. Issues pertaining to surrogacy, adoption and family planning must be reflected inthe resolution too.PS- Other branching issues regarding the LGBT community must be brought about withcreativity by all delegates.Thank you,Khrish Shahani and Naviya Kothari.Chair, Co-chair.10

BibliographyNowhere to Run – Michael Kagan & Anat Ben-Dorhttp://www.law.tau.ac.il/Heb/_Uploads/dbsAttachedFiles/Nowhere.pdfCBC Newshttp://www.cbc.ca/news/interactives/map-samesex-marriage/World Law Directhttp://www.worldlawdirect.com/forum/law-wiki/54676-homosexuality-laws-country-territory.htmlReutershttp://in.reuters.com/Amnestywww.amnesty.org/http://www.amnestyusa.org/our-work/issues/lgbt-rightsHuman Rights Watchhttp://www.hrw.org/topic/lgbt-rightsEuropean Parliament Intergrouphttp://www.lgbt-ep.eu/Foreign & Commonwealth Officehttp://www.fco.gov.uk/en/global-issues/human-rights/equality/lgbt-rights/IGLHRChttp://www.iglhrc.org/cgi-bin/iowa/content/globalissues/index.htmlGay star newshttp://www.gaystarnews.com/World newshttp://www.worldlawdirect.com/forum/law-wiki/54676-homosexuality-laws-country-territory.html11