South Africa tables historic resolution on sexual orientation and gender identity

12.06.2011

On 9 June 2011, South Africa tabled an historic resolution for consideration by the Human Rights Council (the Council) entitled 'Human Rights, Sexual Orientation, and Gender Identity'. If adopted at the end of this session, it will be the first Council resolution to focus on sexual orientation and gender identity.

 

On 9 June 2011, South Africa tabled an historic resolution for consideration by the Human Rights Council (the Council) entitled 'Human Rights, Sexual Orientation, and Gender Identity'. If adopted at the end of this session, it will be the first Council resolution to focus on sexual orientation and gender identity.

The resolution was originally tabled by South Africa at the 16th session of the Council, in March 2011, in what at that stage was a worrying initiative that would have blocked the Council and other UN bodies, including special procedures and treaty bodies, from discussing issues of sexual orientation and gender identity. Just a few months later, the resolution as tabled marks a vast improvement on the original text, and is something that civil society groups and States friendly to issues of sexual orientation and gender identity feel able to engage with as negotiations continue on the tabled text. 

The tabling of this resolution comes eight years after Brazil introduced a resolution to the 59th session of the Commission on Human Rights (the Commission), in 2003, entitled 'Human Rights and Sexual Orientation'. This resolution faced intense opposition, in particular from the OIC and the Holy See. In addition, the US at the time positioned themselves as likely to abstain on any vote on the resolution. Brazil eventually chose to withdraw its initiative, seeing that it would be impossible to gather the necessary support. The strength of the opposition and the divisions exposed were extremely damaging to the cause of sexual orientation and gender identity at the international level, and were followed by many years, both in the Commission and the Council, in which States were reluctant to push too hard on the issue for fear of inviting another such backlash. Instead, States attempted to advance the issue through a series of joint statements,1 perceiving this to be a less divisive format than a resolution.

The tabling of the South African resolution therefore marks a significant moment for the issue of sexual orientation and gender identity. It follows several months of developments.

At the General Assembly, in December 2010, in an explanation of its vote in favour of an amendment that would reinsert the reference to sexual orientation and gender identity in the resolution on extrajudicial executions and other unlawful killings, South Africa lamented the fact that the issue in general continues to be divisive and highly contested. Blaming the manner in which some delegations raised sexual orientation and gender identity in numerous contexts without consideration being given to the sensitivities around the issue, South Africa called for the creation of an intergovernmental working group to define the concept of sexual orientation and gender identity, so that it could be incorporated into international human rights law.

At the 16th session of the Council, in March 2011, Colombia read out a joint statement on sexual orientation and gender identity, supported by 85 States. The high level of support for the statement was a landmark in affirmation of the principle that no one should suffer violence or discrimination on any ground, including sexual orientation and gender identity.

In response to the statement, however, South Africa acted on its call to the General Assembly the previous December, introducing a resolution entitled, 'The imperative need to respect the new established procedures and practises of the United Nations General Assembly in the operation of new norms and standards and their subsequent integrations into existing international human rights law'. As the title makes evident, the resolution focused on the need to define the concepts of sexual orientation and gender identity before those concepts could be more broadly discussed within the UN system. The negative import of this resolution, combined with indications from the US that they would respond by tabling their own counter-resolution, were troubling shadows of the re-emergence of the same divisive and damaging debates that had taken place in the Commission eight years earlier.

Despite tabling its resolution, South Africa did eventually sign onto the joint statement. In addition, for lack of support within the African Group, both from States who wanted a more progressive resolution and from those who were opposed to any discussion of the issue of sexual orientation and gender identity at all, South Africa finally chose to defer their resolution. This gave civil society the opportunity to engage more vigorously with South Africa on some of the key concerns they had with the resolution as it stood.

The positioning of sexual orientation and gender identity as a new concept in need of elaboration was one troubling, and inaccurate, aspect of the resolution. Civil society emphasised that there is nothing new about the violations being suffered on the basis of sexual orientation and gender identity. All that is needed is the application of existing international law and standards to all human beings, regardless of sexual orientation or gender identity. Civil society therefore argued that it would be more useful if the resolution focused on violence and discrimination on the basis of sexual orientation and gender identity.

The original resolution also had a worrying provision that the proposed inter-governmental working group would be the exclusive modality for discussing issues of sexual orientation and gender identity, until such time as those terms had been defined and integrated into international law. This would mean that no other body, including special procedures, treaty bodies, and the Council itself, could discuss sexual orientation and gender identity, and the violations that individuals suffer on those grounds, until such time as the proposed inter-governmental working group had concluded its work.

The inter-governmental working group itself was criticised as a proposed modality for discussion, with fears expressed that rather than promoting open dialogue of the sort that South Africa ostensibly wishes to support, it would only increase politicisation and polarisation around the issue.

South Africa engaged in several consultations with civil society on these issues, both in Cape Town and in Geneva. Professing itself ultimately committed to creating sustained and focused dialogue on the issue of sexual orientation and gender identity, the delegation positioned itself as receptive to hearing from civil society as to how that goal could best be achieved.

South Africa has held two open informal consultations on the resolution at the 17th session of the Council, and plans to hold two further consultations during the week of the 13 June. By the time of the second of these consultations, and in response to the concerns that civil society had consistently raised, echoed by several States, including Brazil, Colombia, Norway, Sweden, Switzerland, the EU, Canada, and the US, during the first informal, South Africa produced a revised text that demonstrated willingness to take those concerns into account. As tabled, it is a vast improvement on the resolution tabled at the 16th session.

One key area of discussion that remains is that of the modality that the resolution will propose as means to achieve the dialogue that South Africa continues to reiterate as its main goal in bringing this resolution forwards. The inter-governmental working group remains in the text as tabled, but South Africa has professed itself willing to take on board other suggestions, the most prominent of which are a multi-stakeholder forum (which has precedents in the Forum on Minority Issues and the Social Forum, but which need not follow them precisely in format), an experts' seminar, (along the lines of the seminar on traditional values that OHCHR organised to implement resolution 12/21 sponsored by the Russian Federation), and a half or full day panel discussion in the Council (similar to the current annual panels on women and on children). The hope is that agreement can be reached on the modality by 14 June, allowing States to announce their intention to cosponsor the resolution. To date, Brazil, Mexico, Argentina, and Colombia have expressed a preference for a forum, with the US and the EU speaking out in favour of a panel discussion in the Council.

Until now, States that are traditionally opposed to discussion of sexual orientation and gender identity (including OIC States, the Holy See, and members of the African Group) have not engaged in the informal consultations. It is likely, however, that these States will make their presence felt at upcoming consultations, significantly changing the dynamics of what have been, up until now, constructive and open discussions. Although that opposition is likely to be strong, if South Africa is able to weather it, and if the Council adopts a strong resolution at the end of this week, the 17th session promises to mark the moment at which the issue of sexual orientation and gender identity moves beyond the damage done in the past and, despite the inevitability of continuing opposition, into an era where momentum lies on the side of universality of human rights.

1These joint statements were presented by New Zealand (32 States, 2005), Norway (54 States, 2006), and Colombia (85 States, 2011).