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Human rights council urged to recognise role of free expression in protecting rights of LGBT persons

(ARTICLE 19/IFEX) - Geneva, 7 March 2012 - On the day of the first expert panel on sexual orientation and gender identity at the UN Human Rights Council (HRC), ARTICLE 19 calls on member states to insist on the full enjoyment of the right to freedom of expression by lesbian, gay, bisexual and transgender (LGBT) persons, including the right to receive and impart information and ideas concerning sexual orientation and gender identity.

In June 2011, the HRC adopted a landmark resolution on human rights, sexual orientation and gender identity in which it expressed “grave concern at acts of violence and discrimination, in all regions of the world, committed against individuals because of their sexual orientation and gender identity.”

In the same resolution, the HRC requested the UN High Commissioner for Human Rights (High Commissioner) prepare a report on how international human rights law can be used to end violence and related human rights violations based on sexual orientation and gender identity and to convene a panel discussion during its 19th session. The panel, taking place today (7 March 2012) shall explore practical measures to strengthen protection of the human rights of individuals at risk of violence and discrimination on the basis of their sexual orientation or gender identity.

The report of the High Commissioner highlights attacks on freedom of expression based on sexual orientation and gender identity alongside cases of extra-judicial killings, torture and ill-treatment, sexual assault and rape, invasions of privacy, arbitrary detention, denial of employment and education opportunities and serious discrimination in relation to the enjoyment of other human rights.

ARTICLE 19 welcomes the findings of the report and calls on the panel to pay specific attention to the numerous violations of the right to freedom of expression of LGBT persons, and their implications for the full enjoyment of other rights.

ARTICLE 19 recalls that the recent General Comment No. 34, on state obligations under Article 19 of the International Covenant on Civil and Political Rights (ICCPR), stated that protection of the right to freedom of expression is encompassing “the right to seek, receive and impart information and ideas of all kinds” and “includes the expression and receipt of communications of every form of idea and opinion capable of transmission to others.” The expression of gender identity and sexual orientation therefore falls within the scope of Article 19 of the ICCPR.

ARTICLE 19 is concerned that many states and societies impose customary and legal restrictions on the expression of gender and sexual identity. Such restrictions are discriminatory and fail to meet the three-part test which, under international law, should determine the legitimacy of any restrictions to freedom of expression. We note that under the three part test, the ground of “public morals” is often cited in defence of laws that discriminate on the basis of sexual orientation or gender identity. However, General Comment No. 34 reiterates that “'the concept of morals derives from many social, philosophical and religious traditions; consequently, limitations... for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition'. Any such limitations must be understood in the light of universality of human rights and the principle of non-discrimination.” Appeals to the preservation of “tradition” are also frequently made in a similar vein even though “tradition” in itself is not recognised in international human rights law as a legitimate basis for restricting expression. As such, limitations on expression of gender and sexual identity on the basis of protection of public morals and tradition violate Article 19 of the ICCPR.

Further, these restrictions are often backed up by the threat or actual use of violence by state agents or non-state actors. Self-censorship, including of one's sexual or gender identity, is often the only mechanism of protection available.

ARTICLE 19 contends that the curtailment of individuals' free expression of identity results in the violations of a number of other rights such as the right to family, the right to health, the right to privacy, and the right to be free from inhuman and degrading treatment.

Further, every member of society is deprived of the right to receive information and ideas on sexual orientations and gender identities, in violation of article 19 of the ICCPR.

ARTICLE 19 calls on the HRC to reaffirm its commitment to protect freedom of expression of all, irrespective of sexual orientation or gender identity, and to insist that the manifestation of sexual orientation and gender identity involves various forms of expression and association, which are protected under international law.

The recommendations adopted as a result of the panel discussion should reiterate and outline states' obligation to respect, protect and fulfill the right to freedom of opinion and expression, without discrimination, including the right to receive and impart information and ideas concerning sexual orientation and gender identity.

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