Written by Huseyin Ali KUDRET
Imagine a world order where, until 1990, the very existence of LGBTQI+ individuals was recognised as a mental disorder even by the World Health Organization. Or imagine a world where your gender is assigned without your consent, and from a young age, you face many forms of discrimination including bullying, blackmail, violence, being ignored, punished, ostracised, shamed, and even more gravely, being killed. The year is 2024; it has been 76 years since the adoption of the Universal Declaration of Human Rights, which clearly states that everyone is born free and equal. Are we?
In this short blog post, today, on the International Day Against Homophobia, Biphobia, and Transphobia (IDAHOBIT), I will try to be the voice of LGBTQI+s who still face criminalization simply for being themselves. Through this article, I aim to highlight why it is crucial for you, the readers, to take action.
Background of the IDAHOBIT
On May 17th each year, the world celebrates the International Day Against Homophobia, Transphobia, and Biphobia (IDAHOBIT). This day, established in 2004, shines a spotlight on the violence and discrimination that lesbian, gay, bisexual, transgender, and intersex people, along with all those of diverse sexual orientations, gender identities, or expressions, continue to face globally. IDAHOBIT not only raises awareness but also champions human rights and equality, marking a pivotal moment in history: the World Health Organization’s 1990 decision to remove ‘homosexuality’ from its list of mental disorders. This decision was a turning point, significantly advancing LGBTQI+ rights worldwide.
IDAHOBIT's influence stretches across various sectors, garnering support from international bodies like the European Parliament to local governments, showcasing its broad reach and inclusive spirit. Over the years, IDAHOBIT has expanded its focus; initially known as IDAHO, it incorporated transphobia in 2009 and biphobia in 2015, thereby addressing a wider array of issues affecting the community. IDAHOBIT serves as a powerful reminder that everyone, regardless of their gender identity or sexual orientation, is entitled to a life free from fear and discrimination. This day not only reflects on past achievements but also ignites a call to action, inspiring continued efforts toward a more equitable world.
The Widespread Criminalization of LGBTQI+
Current data reveals that 64 jurisdictions worldwide still criminalize private, consensual same-sex activities, primarily targeting men through laws against ‘sodomy’ and other related offences, with nearly half being Commonwealth jurisdictions. Additionally, 40 states criminalize consensual sexual activities between women under various statutes. There are 12 countries where the death penalty could be imposed for such activities, with at least six actively implementing this punishment. Furthermore, 14 countries have laws against transgender individuals’ gender expression, often citing ‘cross-dressing’ or ‘impersonation’ as offences, and many other nations indirectly target transgender people through broad criminal statutes. I repeat, the year is 2024.
New Threat Alarms in 2024
Even though there have been advancements in LGBTQI+ rights worldwide, in 2024, new threats continue to emerge and persist. By briefly touching on more recent laws targeting LGBTQI+s, we can see through three examples how serious threats to their rights still exist.
Ghana:
In Ghana, a deeply concerning anti-LGBTQI+ law termed the ‘Human Sexual Rights and Family Values Bill’, unanimously passed by the parliament in February 2024, awaits the President’s decision to sign the bill into law. This law would further criminalize LGBTQI+ people and penalize anyone supporting them, including human rights defenders and healthcare professionals, with potential prison terms. It represents one of the harshest measures in Africa against LGBTQI+ rights, leading to increased discrimination, job losses, and violence against LGBT individuals. Amnesty International has urged Ghana’s President not to sign this discriminatory bill into law. (For more details of the situation in Ghana see Amnesty’s Report)
Uganda:
The Anti-Homosexuality Act of 2023, approved by Uganda’s President Yoweri Museveni on May 30, 2023, is one of the most stringent anti-LGBTI laws globally. In December 2023, equality advocates challenged its constitutionality in the Constitutional Court, citing violations of freedoms protected by Uganda's constitution. The Human Rights Awareness and Promotion Forum reported 55 arrests, death penalty cases, and numerous human rights violations under this law, reflecting persistent efforts to criminalize ‘homosexuality.’ In April 2024, the Constitutional Court of Uganda only partially revoked the Anti-Homosexuality Act of 2023, leaving many oppressive provisions intact. Amnesty International criticized the court for failing to protect the constitutional rights of equality, liberty, and privacy for all Ugandans, urging the repeal of the entire law. (For more details, see. Amnesty’s Report)
Iraq:
In Iraq, a progression of increasingly restrictive laws has targeted the LGBTQI+ community. In August 2023, the Iraqi Communications and Media Commission banned the terms ‘homosexuality’ and ‘gender’ from media, labelling them as ‘sexual deviance.’ This was part of broader crackdowns, including potentially restrictive draft laws on freedom of expression and assembly reintroduced in July.
On April 27, 2024, Iraq passed amendments to a law significantly increasing penalties for LGBTQI+ related activities. The legislation imposes up to 15 years in prison for promoting same-sex relations, and for men who intentionally act ‘effeminate.’ It also criminalizes ‘adultery with more than one person,’ marking a harsh escalation in the legal penalties faced by the LGBTQI+ community in Iraq.
(For more information on this topic, please see additional resources at Amnesty International’s dedicated section on LGBTI rights here.)
What is Being Done at the UN level?
International human rights law prohibits discrimination of any kind. Most of the UN treaties and Conventions do, however, not explicitly list gender identity or sexual orientation as one of the grounds of discrimination which are prohibited. Nonetheless, in the face of the persistent discrimination against LGBTQI+ individuals, the UN bodies responded by addressing the issue in different ways.
Human Rights Committee and Its Impact
In the realm of international human rights law, significant strides have been made to address the criminalization of LGBTQI+ rights. The Human Rights Committee (HRCtee), a pivotal UN treaty body, has the mandate of monitoring compliance with the International Covenant on Civil and Political Rights (ICCPR) whose Article 26 explicitly prohibits discrimination. This Committee has increasingly focused on the elimination of discrimination based on sexual orientation through Concluding Observations – assessments and recommendations issued after reviewing a state’s human rights performance which are important in terms of putting pressure on a state and directing it to promote and respect human rights – and General Comments which are authoritative guidance on thematic issues of the Covenant.
Initially, the HRCtee’s reports on states where being LGBTQI+ is punishable lacked specific recommendations, (e.g. Zambia, para.24) often failing to address criminal codes directly (e.g. Namibia, para.22) or not discussing the issue at all (e.g. Syria and Morocco). Over time, the Committee’s approach became more detailed and proactive. For instance, in their observations on Iran (para.10), the HRCtee not only highlighted the discrimination faced by LGBTQI+s in terms of punishments but also addressed broader state obligations concerning access to employment, housing, education, and healthcare for the LGBTQI+ community. Despite these improvements, the HRCtee has not consistently specified actions for states to effectively prevent discrimination against the LGBT+ community, often limiting its guidance to general suggestions like ‘take measures.’ (e.g. Iraq, para.13; Egypt, para. 10) This lack of concrete guidance remains a critical gap in their recommendations that were criticized by Amnesty International in 2011.
On the other hand, the Committee uses General Comments to guide the interpretation of the ICCPR, impacting how domestic courts apply the Covenant. However, it was not until 2014 that these comments explicitly addressed sexual orientation, acknowledging the rights to liberty, security, and non-discrimination for LGBTQI+ individuals. Subsequent comments have expanded these rights to include protection from arbitrary detention, violence, and the death penalty specifically related to sexual orientation. (GC No.35, paras. 3, 9; GC No.36, paras. 23, 36, 61; GC No. 37, paras. 25, 46).
UN Charter-Based Institutions
In addition to Treaty-based UN mechanisms, UN Charter-Based Institutions, such as the Human Rights Council (HRC), address discrimination against the LGBTQI+ community through specialized mechanisms known as ‘special procedures.’ Notably, the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity (IE SOGI), established in 2016 and renewed through 2022, plays a crucial role. This mandate focuses on enhancing protections for LGBTQI+ individuals by assessing human rights standards, identifying best practices and gaps, and engaging in dialogue with states and stakeholders to address the root causes of discrimination. The IE SOGI’s work includes thematic reports to the HRC and UN General Assembly, (see. 2017 report, para.52 et seq.) with a significant focus on the decriminalization of same-sex relations, urging strong national and international actions to eliminate these discriminatory laws.
Building on previous initiatives, the IE SOGI has committed to issuing a third global call to eliminate laws criminalizing same-sex activities, highlighting this commitment in its updated work program. (paras. 16, 18, 38) Additionally, the IE SOGI has dedicated a specific section (paras. 31-33) in its latest report to deeply analyze the root causes of such criminalization, continuing to push for global change.
Another mechanism is the Universal Periodic Review (UPR) which is a unique process by the Human Rights Council that reviews the human rights practices of all UN Member States every 4.5 years. It encourages states to discuss human rights improvements and compliance, offering a platform for recommendations and stakeholder engagement to enhance global human rights conditions. (See more about UPR here.) This mechanism is important because it allows other member states to exert pressure and make recommendations to the state under review. For example, during Ghana’s 2023 UPR, many states recommended the decriminalization of LGBTQI+ actions. However, not surprisingly, Ghana did not support these recommendations. Consequently, Amnesty International urged the Human Rights Council to encourage Ghana to implement the accepted recommendations swiftly, report progress in the medium term, and discuss this during the UN debates.
Time to Break the Silence and Shatter the Phobias: A Call to Action
As I reflect on the strides and setbacks in LGBTQI+ rights worldwide, it’s clear that much work remains. Despite advancements, harsh laws and societal biases persist, demanding our continued vigilance and action. This article has highlighted not only the areas where progress has been made but also where it is critically needed. Let us harness this momentum to advocate for change, support LGBTQI+ advocacy groups, participate in awareness campaigns, and pressure governments to repeal discriminatory laws. Let’s channel our collective efforts to create a world where everyone, regardless of their sexual orientation or gender identity, can live without fear of persecution or discrimination. Together, we can push for change and ensure that human rights are truly universal. For inspiration, see how advocacy has led to positive changes, like in Dominica where discriminatory laws were overturned here.
With hopes for a world where everyone can access human rights, happy IDAHOBIT!
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