Worldwide, two-thirds of people belonging to the LGBTQIA+ community have suffered violence or abuse, and hate crimes targeting this group of individuals have escalated for the past four years. Additionally, Latin America and the Caribbean continue to be the regions with the highest number of recorded murders. Eleven countries condemn homosexual behavior with death penalty, and 64 United Nations Member States criminalise consensual same-sex acts still criminalize consensual sexual acts between adults of the same sex. Among them, six countries, including Saudi Arabia and Iran, legally punish such acts with the death penalty, while five others, such as Afghanistan and Pakistan, have varying legal and religious codes that could lead to the same outcome.
This dire situation raises the question: What is causing these conditions on an international scale, and what measures are being taken to address them?
Resolution 1325 by the United Nations Security Council, advocating for the inclusion of a gender perspective that addresses the unique needs of women and girls, was not passed until October 31, 2000. However, gender identity and sexual orientation are topics that still remain in the dark. To shed light on this matter, an insightful interview was conducted with Francisco Urrutia. His profound commitment to peacebuilding, sustainability, and Truth and Reconciliation initiatives is evident. With a Masters in International Relations from De Montfort University and another in Peace and Conflict Studies from Uppsala University, Mr. Urrutia’s extensive knowledge and expertise played a pivotal role in providing invaluable insights into the present circumstances.
Are LGBTQIA+ people and their rights recognized by the United Nations and International Organizations? Why? How?
No, but it’s a response with various nuances; it depends on how this recognition is understood. There are some efforts from the United Nations to give a voice to the LGBTQIA+ community, such as their platform Free and Equal, which speaks very clearly about the rights they have. However, after a systematic review, there is no resolution that specifically focuses on recognizing the rights of the LGBTQIA+ community. The only references we have are a resolution from the General Assembly and a resolution from the Human Rights Council that mention sexual orientation and gender identity. These are the Human Rights Council Resolution 17/19, which requests an inquiry on discrimination based on sexual orientation and gender identity, and the General Assembly Resolution 69/182 on extrajudicial, summary or arbitrary executions, which also discusses the need for provisions to protect people with a sexual orientation or gender identity outside the norm. So, there are only two resolutions in a huge amount of resolutions within an immense bureaucratic apparatus that has existed since 1945.
Thus far, there is no international legal instrument specifically designed to protect or even recognize the rights of these individuals. However, it’s not as simple as that, because when we talk about the international system, we can also be referring to regional bodies. For example, the Organization of American States General Assembly has different resolutions regarding sexual orientation and gender identity; it is the only regional international organization with binding frameworks to protect LGBTQIA+ rights: the Inter-American Convention Against All Forms of Discrimination and Intolerance and the Inter-American Convention on the Rights of Older Persons, include LGBTQIA+ individuals. However, speaking of binding matters, the United Nations also has General Comment No. 20: Article 7 Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment, which addresses non-discrimination by economic, social, and cultural matters and stipulates that sexual orientation and gender identity should be included and protected when prohibiting discrimination and torture. All of this is to say that there are highly specific legal frameworks addressing when a person belonging to the LGBTQIA+ community should have their rights protected. Thus, broad frameworks, like the United Nations Declaration on the Rights of Indigenous Peoples or the Convention on the Rights of the Child, do not exist for the LGBTQIA+ community. Moreover, even if they did exist, the United Nations is an organization with limited tools, so making these frameworks binding would make it even more challenging.
Why do you think there is nothing legally binding when it comes to LGBTQIA+ rights within the United Nations and International Organizations?
The United Nations encompasses a diverse range of nations, spanning from countries like Norway, which enacted anti-discrimination laws based on sexual orientation more than forty years ago, to nations like Uganda, which recently intensified penalties for LGBTQIA+ individuals. In the latter case, there are even instances of the death penalty being imposed for repeated engagement in same-sex relations. Likewise countries with important setbacks to protect gender diverse people like the United States. This stark contrast within the United Nations underscores the global spectrum of LGBTQIA+ rights and the challenges they face. Achieving a resolution with widespread acceptance in the General Assembly becomes a daunting task, given the inherent polarization on this issue rooted in diverse cultural values across nations. Moreover, it becomes imperative to scrutinize the overall United Nations framework since mechanisms for offering recommendations and establishing legally binding resolutions remain notably limited. Even General Assembly Resolutions, while influential, lack inherent legal binding force. In essence, real authoritative power lies primarily with Security Council Resolutions, shedding light on the complexities of the United Nations system. And if we look at the international legal framework, neither the International Criminal Court nor the International Court of Justice have the jurisdiction to address these issues. We do not have a mechanism like the European Court of Human Rights or the Inter-American Court of Human Rights that regulates these matters at the international level, so it becomes practically impossible to ensure compliance, even if binding recommendations were issued. In third place, even if such a mechanism existed, participation in these processes is entirely voluntary. So, if you have large countries like the United States of America, which are not signatories to the Rome Statute, how could you guarantee it?
Which would you say could be a viable way to achieve formal recognition of LGBTQIA+ people and their rights by the United Nations and most International Organizations?
I believe that civil society participation is very important. Supporting these organizations from the international framework becomes important because, in the end, they are the ones doing crucial activism work to change laws. Ultimately, the only way to guarantee people’s rights is to have them embedded in a country’s legal codes, along with protocols for implementing these matters. So, the power of civil associations to exercise pressure for legal changes is important. Resolutions from the highest chambers of the judiciary in each country are also crucial because this has been one of the major mechanisms that have paved the way for legal reforms. We have seen it in the United States, we see it in Mexico, and we have seen it in many countries in Latin America. Onwards to the regional mechanisms we discussed earlier, such as the Inter-American Court of Human Rights and the European Court of Human Rights, also have a key role.
So, I believe that for LGBTQIA+ rights to be recognized, it is key to have local advocacy processes that begin to shift the balance. It starts with civil society organizations and national regulatory frameworks. This can involve lobbying governments, working with international organizations, and building coalitions of support for LGBTQIA+ rights. Strategic litigation can also be used to challenge discriminatory laws and policies, and to establish new legal precedents for LGBTQIA+ rights. Additionally, when we are in an international system based on consensus, what you need is to change the numbers to achieve that consensus. Unfortunately, those numbers change from the grassroots level. Therefore, I think this makes the work of activists much more crucial because it’s through their efforts that we can see significant changes at the local level, that then become significant changes at the regional level, which in turn become significant changes at the international level.
Is it easier for organizations to guarantee LGBTQIA+ rights at a local or international level? Why?
It’s complicated, yes and no, because, for example, in Mexico, if something happens to you, you can file a complaint, but the chances of the law being in your favor are very slim. So, you can keep escalating until you reach the Inter-American Court of Human Rights. To that end, in theory, it should be easier at the local level. I think these international mechanisms are in place to ensure that the laws that should be enforced are actually followed. But what happens when you talk about countries where it is illegal? That’s when funding for local organizations becomes critical. You enter a strange duality where the action remains local, but the support from the international community becomes vital to allow those on the ground to keep fighting and exercising pressure towards government officials. There’s also lobbying by other countries. When we think about granting asylum to people based on their sexual orientation and gender identity, there’s a peculiar interplay between local and international factors. For example, Canada recognizes the right of LGBTQIA+ individuals to a life free from violence and makes modifications within their refugee schemes to process such requests. It would be interesting to know the legal basis, whether it is Canadian law or if it draws from international bodies. I would like to think it is the former. So, I definitely believe that local actors have a crucial role because they are the first responders. But in the end, the international community continues to play a key role in ensuring there are resources for these organizations and the social sector, and that law enforcement in places where there are already laws are effective. It’s worth adding the significant task the international community has as a somewhat kind of watchdog for enforcement. Can be seen through the High Commissioner for Human Rights, who played a crucial role in issuing recommendations for the United Nations and their reports that documented human rights violations for many years. Organizations like Human Rights Watch and Amnesty International also engage in a different form of activism from the international perspective to push for legislative changes in different countries. It is slow, and their effectiveness can be questioned, but their existence still influence the landscape.
Do you think in the future it will be possible to include LGBTQIA+ people into consideration for all United Nations resolutions and International Organizations strategies? How long do you think it will take? Why?
I am an eternal optimist. I believe the answer is yes. I think we will reach that point. When we analyze trends, like the international recognition of human rights over time, we can see that the situation, even if it’s slow, is improving; despite the recent setback for the trans community in countries like the U.S.A. and Canada. I want to emphasize that we’re talking about recognizing rights, not the implementation of programs and resources. I think that is a much broader conversation that touches on public policy issues. But at least in terms of legislation, there is a clear trend towards recognizing LGBTQIA+ rights, or certain rights like non-discrimination. All the same, I don’t think we will see this in the next decade. I believe there are significant legislations that need to be enacted in this area. There are important actors like Russia, China, and other Asian powers that need to take these steps for the wall to break, along with Sub-Saharan Africa and start making these changes so that we can reach a certain consensus in the international community. I believe this might materialize, perhaps in a couple of decades, in a General Assembly Resolution or a Convention, similar to those for migrants, children, or indigenous peoples.Be that as it may, I don’t think we’ll see it in the near future. Another concerning trend is that levels of violence against LGBTQIA+ individuals are increasing. So, legislative recognition of rights means little if conditions don’t change.
In conclusion, what is needed is for LGBTQIA+ individuals to access not only a life free from violence but a life that is just and dignified, with access to education, employment, and health. There’s a massive battle to change these systems and develop mechanisms that would provide much more direct protection to these populations at the international level, but the international framework which currently exists is still in diapers regarding the subject. This conversation can be amplified depending on which part of the world you’re in, and it’s an even slower process; even though it’s difficult, we must push for better lives for everyone.
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