A policy landscape of sexual orientation, gender identity and the internet
Two groundbreaking advances in international human rights have been made in the last half decade, with recognition by intergovernmental bodies that human rights law applies equally to all persons regardless of their sexual orientation or gender identity (SOGI), and that human rights law is equally applicable online as offline. However, these achievements have not been without significant advocacy efforts by civil society. While internet rights are being increasingly integrated and addressed across the international human rights system, developments on SOGI have been laboured, politicised and isolated, with no state consensus. This report considers the trends, shifts and convergences in international policy making, using a geopolitical analysis.
A brief history
Sexual orientation and gender identity
Activists have been advocating for international recognition of SOGI-related rights as far back as the Beijing World Conference on Women in 1995,1 with concerted efforts to develop state awareness and recognition of the issues since a failed resolution on human rights and sexual orientation in 2003. 2 Brazil’s introduction, and later withdrawal, of a draft text was a catalyst for a number of civil society groups and activists working on sexuality and gender issues to communicate and coordinate more consistently to develop strategies to engage the UN human rights system on these issues. 3 This collective organising led to states delivering a series of joint statements at the UN General Assembly and Human Rights Council (HRC) between 2005 and 2011; 4 increasing support for SOGI rights from a handful of countries to nearly half of the UN member states; and finally the adoption by the HRC of the first ever UN resolution on “human rights, sexual orientation and gender identity” in June 2011, 5 and the second in September 2014. 6
Although civil society has been involved in internet policy and governance spaces since the internet was created, the internet has only recently featured in international human rights policy development arenas. The impact of the internet on human rights was first recognised at the international level by an HRC resolution on freedom of expression in 2009. 7 Since then, the UN has adopted a number of resolutions developing international policy on this theme. In particular, the HRC adopted a resolution on “The promotion, protection and enjoyment of human rights on the Internet” 8 in June 2012 with 85 state co-sponsors, which affirmed that the same human rights apply online as offline. The following year in November 2013, the General Assembly adopted a resolution on the right to privacy in the digital age, 9 which was followed up by the HRC in March 2015 with a procedural resolution of the same title, creating a UN expert mechanism on the right to privacy. 10 Since the 2009 resolution on freedom of expression, a number of thematic UN resolutions have addressed internet rights. 11
Comparing intersectional recognition
While internet rights concerns have effectively been mainstreamed into initiatives dealing with other human rights issues, sexual orientation and gender identity remain isolated from relevant state-negotiated human rights documents. 12
Internet rights have been recognised by consensus in a number of intergovernmental policy documents, such as resolutions on freedom of opinion and expression, freedom of association and assembly, and the safety of journalists. 13 The use of the internet and other forms of technology in propagating harassment and violence against women has been acknowledged by the Commission on the Status of Women 14 – the primary UN political body tasked with women’s rights issues – and by the General Assembly in a resolution on protecting women human rights defenders. 15
Conversely, there is a huge struggle to include any language that might be associated with SOGI in any government-negotiated documents at the international level, with such language overwhelmingly negotiated out of draft texts or put to a vote. For example, even the word “gender” has become controversial because some governments insist that gender can only denote biological sex, refusing to accept the concept of gender as a social construct or to recognise identities beyond the male-female binary. 16
As a result, where SOGI language has been included in negotiated documents, it has been so virtually in isolation from intersecting fields, such as violence or discrimination against women or the protection of human rights defenders. The only UN human rights resolution to date referencing SOGI, apart from the HRC SOGI resolution itself, is the biennial General Assembly resolution on extrajudicial, summary or arbitrary executions. While the strong opposition to recognising SOGI-related rights means the discussion is reduced to violence and discrimination (the areas that have a possibility of gaining consensus), the reference in the “killings” resolution is nonetheless hotly contested each time, with attempts to vote the language out of the resolution during the final adoption process.17
Despite the fact that a broad number of thematic and country-specific UN human rights experts regularly report a vast array of infringements of the rights of LGBTI persons,18 in social and economic rights as well as civil and political rights, the political bodies have so far failed to take the intersectional approach that has been an attribute of developments on internet rights.
Politics of sexual orientation and gender identity rights
International intergovernmental debate on SOGI is a delicate matter, and unfortunately plays out in ways that are politically divisive and strategically counterproductive. Although there is a slow but steady increase in support for these issues from states from all regions, they are still perceived as primarily Western priorities despite the fact that the first UN SOGI resolution was tabled by South Africa and Brazil, and the second by Brazil, Chile, Colombia and Uruguay.
This is partly because Western states have styled themselves as international leaders on SOGI, critiquing discriminatory laws and practices outside of their regional group, and is compounded by certain Western states using aid conditionality to apply pressure on ex-colonies to repeal colonial-era criminal provisions on same-sex relations. 19
These practices have created a “West versus the rest” dynamic which contributes to the geopolitical polarisation on gender and sexuality-related rights that is reflected at the international level, and alienates potential support from those states that are open to discussing SOGI-related rights, but are opposed to Western hegemony on the international stage.
The politicisation of SOGI plays out in intergovernmental human rights policy development spaces such as the HRC in divisive and regressive ways. Firstly we have seen a division of state positions, generally along lines of regional and political blocs. 20 Traditionally this has been Western and most Latin American states supporting SOGI issues, opposed by Russia, the Vatican, most of the African Group and members of the Organisation of Islamic Cooperation (OIC). States within these groups that have dared to support SOGI issues have faced harsh censure from their peers. 21
Secondly, concepts such as cultural relativity, traditional values and protection of the family have been introduced and manipulated in these spaces, primarily by the religious right wing – the OIC, the Vatican, Russia, and conservative groups such as the UN Family Rights Caucus.22 Since 2009 the HRC has adopted various documents undermining the universality of rights, including three resolutions on “traditional values” and two on “protection of the family”. 23 In general, the support and opposition for these initiatives has been in line with positions against and for SOGI-related language respectively.
The politicisation of sexuality rights in international forums means that foreign policy is often at odds with national-level standards and developments, particularly on rights relating to gender identity. For example, some Western states, such as Belgium, France, Norway and Switzerland, present themselves as champions of LGBT rights in international debates while requiring transgender people to undergo sterilisation in order to legally change their gender, 24 a policy that the European Court of Human Rights has ruled to be a violation of the rights to privacy and family life. 25 Conversely, some states that have culturally established and documented forms of gender diversity 26 – and in the case of Pakistan leading case law recognising the rights of hijras27 – claim that such diversity is contrary to their cultural, moral or religious values when it comes to international debate. 28 This is a terrible contradiction of domestic reality and foreign policy.
State positions on SOGI in the international bodies have almost become a symbolic representation of one side versus another in the greater struggle for a new world order that replaces Western hegemony. Sadly, this positioning is to the detriment of human rights, including through the development of international legal norms and standards that exclude LGBTIQ persons.
Politics of internet rights
In comparison to the tumultuous international debates on SOGI, internet rights policy has been developing relatively smoothly, with consensus resolutions and references in the UN General Assembly, the HRC and the Commission on the Status of Women. This is not to suggest that states unanimously respect or support internet-related rights, but that opposition is more nuanced and complex than the open hostility that some governments express on SOGI.
While there does indeed appear to be international consensus on the issue of access to technology, a customary division of state positions on other issues such as freedom of expression remains unchanged in how states see their validity online or offline. During the HRC plenary panel on freedom of expression on the internet in 2012, China called on the international community to promote internet access in developing countries while also stating that freedom of expression could undermine social stability and national security.29 Cuba has both expressed concern about issues of access to information and communications technology (ICT) and lamented the United States (US) monopoly of the internet. 30
Furthermore, the geopolitical divide over internet rights is not as clear-cut as it is on SOGI issues. When Edward Snowden leaked classified information from the US National Security Agency (NSA) in 2013, the US was in the unusual position of being criticised by many of its peers in the West.31
Indeed, states from all regions have relished the opportunity to criticise the US in the wake of the Snowden revelations. Although not explicitly critical of US policy, pre-existing anti-US sentiment meant that the resolutions on the right to privacy in the digital age quickly garnered support amongst states such as North Korea, 32 Russia, Cuba and China. 33 Consequently, it could be argued that a politicisation of internet rights issues has been to the benefit of consensus-building on international human rights policy development on these issues.
SOGI versus internet rights policy
As SOGI language is a notorious key to destroying consensus in government negotiations, states have used sexual orientation references as a bargaining chip to block or undermine developments that they oppose.
For example, sexual orientation language was used by Western states to bargain against references to the “defamation of religions” in international discussions on racism, racial discrimination, xenophobia and related intolerance, both during the Durban Review Conference in 2009 and in follow-up meetings and negotiations. 34
This highly questionable tactic arose in discussions on internet rights in negotiations on a resolution on the right to privacy in the digital age at the UN General Assembly in 2013, when a key ally of the US proposed including a reference to sexual orientation. Some of the Five Eyes 35 countries readily supported the proposed language, while other states that were supportive of the resolution theme objected, knowing they would not be able to join consensus on a text that contained sexual orientation language. This was understood to be a strategy to break consensus on an issue that those states implicated in the revelations of deep breaches of privacy rights could not otherwise break without admitting that they did not support the key message of the resolution.
As the Five Eyes countries were openly attempting to water down the text of the privacy resolution, 36 it seemed likely that sexual orientation language was actually being introduced in order to polarise state positions on the text as a whole, and potentially lead to a vote. In effect, the US and its allies pitted sexual orientation against the right to privacy in a failed attempt to undermine international condemnation of and action on the infringement of rights that is mass surveillance.
Moving towards an intersectional approach
Although SOGI and internet rights have developed independently from one another at the international level, the slow increase in state support for SOGI-related rights in international human rights bodies, and the increasing attention being given to internet rights in a number of different thematic resolutions, means that the UN could constructively address their intersection in the near future.
The prevailing geopolitical divide is likely to continue to obstruct the inclusion of SOGI in UN resolutions. However, with internet rights being addressed in a number of negotiated thematic texts, it is not unreasonable to suggest that relevant issues could be included in a future substantive resolution on SOGI.
Furthermore, the HRC resolution on the right to privacy in the digital age mandated the appointment of a UN Special Rapporteur on the right to privacy. The Special Procedures mechanisms 37 have been key allies in raising violations of the rights of LGBTIQ persons across a broad section of thematic and country-specific mandates. A recent report of the Special Rapporteur on the right to freedom of opinion and expression to the HRC highlighted how encryption and anonymity in digital communications enable persons persecuted because of sexual orientation or gender identity to exercise the right to freedom of opinion and expression, as well as providing, for some, the only way to securely explore basic aspects of identity such as one’s gender or sexuality. 38
The new Special Procedures mandate has been tasked to look at the right to privacy, “including in connection with” (i.e. but not limited to) the challenges arising from new technologies. Many SOGI rights issues clearly fall under the mandate focus on privacy. It will remain to be seen whether the Rapporteur chooses to address human rights concerns relating to LGBTIQ persons in the execution of the mandate.
With a number of consensus resolutions and documents addressing internet rights, and the creation of an expert mandate on the right to privacy, it is safe to conclude that these issues are now firmly on the UN agenda, and will continue to be mainstreamed into the work of the HRC. Meanwhile, SOGI rights remain segregated with no regular or institutionalised attention to ongoing violations. It will likely remain extremely difficult to get states to consider the human rights of LGBTIQ persons on their substantial merit as long as SOGI continues to be politicised and manipulated by both supportive states and the opposition. The new expert mechanism on the right to privacy could see these two issues being addressed concurrently and with an intersectional analysis for the first time. It remains to be seen whether intergovernmental debate will mature beyond political strife to welcome such an analysis.
1 See, for example, Ditsie, P. B. (1995). Statement delivered by Palesa Beverley Ditsie of South Africa, International Gay and Lesbian Human Rights Commission, at the United Nations Fourth World Conference on Women, Beijing, China, 13 September. www.un.org/esa/gopher-data/conf/fwcw/conf/ngo/13123944.txt and Wilson, A. (1996). Lesbian Visibility and Sexual Rights at Beijing. Signs, 22(1). fds.duke.edu/db/attachment/409
2 In 2003 Brazil unexpectedly introduced a draft text on sexual orientation to the former UN Commission on Human Rights. The resolution faced strong opposition, which led to it being deferred by a year and later withdrawn from consideration.
3 ARC International. (2004). International Dialogue on Gender, Sexuality & Human Rights: Final report. Geneva: ARC International. arc-international.net/wp-content/uploads/2011/08/International-Dialogue-Report-Geneva-2004.doc
4 ARC International. (2011). LGBT Rights at the UN: A brief overview. Geneva: ARC International. arc-international.net/wp-content/uploads/2011/08/LGBT-Rights-at-the-UN.pdf
5 A/HRC/RES/17/19. (2011). ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/RES/17/19
6 A/HRC/RES/27/32. (2014). ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/RES/27/32
7 A/HRC/RES/12/16. (2009). ap.ohchr.org/documents/sdpage_e.aspx?b=10&se=100&t=11
8 A/HRC/RES/20/8. (2012). ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/RES/20/8
9 A/RES/68/167. (2013). www.un.org/ga/search/view_doc.asp?symbol=A/RES/68/167
10 A/HRC/RES/28/16. (2015). ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/RES/28/16
11 See, for example, A/HRC/RES/21/16, The rights to freedom of peaceful assembly and of association (2012). ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/RES/21/16; A/HRC/RES/23/2, The role of freedom of opinion and expression in women’s empowerment. (2013). ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/RES/23/2; A/HRC/RES/24/5, The rights to freedom of peaceful assembly and of association. (2013). ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/RES/24/5; A/RES/68/163, The safety of journalists and the issue of impunity. (2013). www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/68/163; A/RES/68/181, Promotion of the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms: protecting women human rights defenders. (2013). www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/68/181; and A/RES/69/166, The right to privacy in the digital age. (2014). www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/69/166
12 While this paper examines how these issues have progressed in intergovernmental spaces, it is important to note that infringements on the rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) persons are consistently raised by UN human rights expert mechanisms, such as the Special Procedures, treaty monitoring bodies, and the Office of the High Commissioner for Human Rights, across a broad number of thematic and country specific reports. See for example: www.icj.org/sogi-un-database
13 See footnote 10.
14 CSW agreed conclusions on the elimination and prevention of all forms of violence against women and girls. (2013). Para. 34(ww). www.un.org/womenwatch/daw/csw/csw57/CSW57_Agreed_Conclusions_%28CSW_report_excerpt%29.pdf
A/RES/68/181. (2013). www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/68/181
16 See, for example, Adolphe, J. (2012). 'Gender' Wars at the United Nations. Ave Maria Law Review, 11(1). papers.ssrn.com/sol3/papers.cfm?abstract_id=2232495
17 ISHR et al. (2012, 22 November). Governments Condemn Extrajudicial Executions in Seminal UN Vote. International Service for Human Rights. www.ishr.ch/news/governments-condemn-extrajudicial-executions-seminal-un-vote; ISHR. (2012, 20 November). UN General Assembly: Rights groups welcome condemnation of killing of LGBT persons. International Service for Human Rights. www.ishr.ch/news/un-general-assembly-rights-groups-welcome-condemnation-killing-lgbt-persons
18 This report primarily uses the language of “sexual orientation” and “gender identity”, which have been acknowledged by the intergovernmental bodies, but also refers to lesbian, gay, bisexual, transgender, intersex and queer persons using the relevant acronyms LGBT, LGBTI or LGBTIQ, depending on the particular context. For example, while activists and human rights defenders might use the language of Queer rights, this term has not been taken up by the UN, but the UN does recognise and use L,G,B,T and I. Other language yet to be referenced in UN negotiated documents includes “gender expression” and “bodily integrity”.
20 UN member states are divided into five regional groups: the African Group, Asia-Pacific Group, Eastern European Group, Latin America and the Caribbean Group, and Western European and Others Group. There are also a number of additional political blocs and affiliations of states and sub-regional blocs that form collective positions on issues, such as the Arab Group, the Association of Southeast Asian Nations (ASEAN), the Organisation of Islamic Cooperation (OIC), Mercosur, the Non-Aligned Movement (NAM), the European Union (EU), etc.
21 For example, South Africa and Mauritius were publicly denigrated by Nigeria, the then coordinator of the African Group, for their leadership on and support for the first UN resolution on human rights, sexual orientation and gender identity in 2011.
23 Resolutions on “traditional values”: A/HRC/RES/12/21 (2009); A/HRC/RES/16/3 (2011); A/HRC/RES/21/3 (2012); on “protection of the family”: A/HRC/RES/26/11 (2014); A/HRC/RES/29/22 (2015).
24 Transrespect versus Transphobia Worldwide (TvT), Legal and Social Mapping: www.transrespect-transphobia.org/en_US/mapping.htm
25 European Court of Human Rights. (2015, 10 March). Refusal to authorise transsexual to have access to gender reassignment surgery breached right to respect for private life. (Press release.) hudoc.echr.coe.int/webservices/content/pdf/003-5032376-6183620
26 See, for example, Jain, D., & Rhoten, K. (2013, 28 December). A Comparison of the Legal Rights of Gender Non-Conforming Persons in South Asia. Economic & Political Weekly. www.academia.edu/11810587/A_Comparison_of_the_Legal_Rights_of_Gender_Non-Conforming_Persons_in_South_Asia
27 Khaki v. Rawalpindi, Supreme Court of Pakistan (12 December 2009).
28 See, for example: United Nations Office at Geneva (UNOG). (2011, 17 June). Council establishes mandate on Côte d’Ivoire, adopts protocol to child rights treaty, requests study on discrimination and sexual orientation. unog.ch/unog/website/news_media_archive.nsf/%28httpNewsByYear_en%29/C125763C00590FD6C12578B2004B0A50?OpenDocument; UNOG. (2012, 7 March). Human Rights Council holds panel discussion on discrimination and violence based on sexual orientation and gender identity. unog.ch/unog/website/news_media_archive.nsf/%28httpNewsByYear_en%29/C125763C00590FD6C12579BA004DFE81?OpenDocument; UNOG. (2014, 26 September). Human Rights Council adopts resolution on sexual orientation and gender identity and concludes twenty-seventh session. unog.ch/unog/website/news_media.nsf/%28httpNewsByYear_en%29/24F74BA2FCAB79CDC1257D5F0063A227?OpenDocument; UNOG. (2015, 22 June). Human Rights Council holds general debate on the promotion and protection of all human rights. unog.ch/unog/website/news_media.nsf/%28httpNewsByYear_en%29/C85AF94F13C23F94C1257E6C0059B456?OpenDocument
29 UNOG. (2012, 29 February). Human Rights Council holds panel discussion on the promotion and protection of freedom of expression on the internet. unog.ch/unog/website/news_media_archive.nsf/%28httpNewsByYear_en%29/C125763C00590FD6C12579B300535CC6?OpenDocument
31 MacAskill, E., & Borger, J. (2013, 30 June). New NSA leaks show how US is bugging its European allies. The Guardian. www.theguardian.com/world/2013/jun/30/nsa-leaks-us-bugging-european-allies
32 United Nations. (2013, 26 November). Third Committee Approves Text Titled ‘Right to Privacy in the Digital Age’, as It Takes Action on 18 Draft Resolutions. www.un.org/press/en/2013/gashc4094.doc.htm
33 UNOG. (2015, 26 March). Human Rights Council creates mandate of Special Rapporteur on the Right to Privacy. unog.ch/unog/website/news_media.nsf/%28httpNewsByYear_en%29/4CA5769DF702C0CCC1257E14005F5F4B?OpenDocument
34 See, for example, ISHR. (2009, 4 November). Stalemate at the Ad Hoc Committee on complementary standards. International Service for Human Rights. www.ishr.ch/news/stalemate-ad-hoc-committee-complementary-standards
36 MacAskill, E., & Ball, J. (2013, 21 November). UN surveillance resolution goes ahead despite attempts to dilute language. The Guardian. www.theguardian.com/world/2013/nov/21/un-surveillance-resolution-us-uk-dilute-language
37 The UN Special Procedures are independent human rights experts with mandates to report and advise on human rights from a thematic or country-specific perspective. Special procedures are either an individual (called "Special Rapporteur" or "Independent Expert") or a working group composed of five members.
38 A/HRC/29/32. (2015). Paras 1 & 12. www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session29/Documents/A.HRC.29.32_AEV.doc