LIVING FREE & EQUAL WHAT STATES ARE DOING TO TACKLE VIOLENCE AND DISCRIMINATION AGAINST LESBIAN, GAY, BISEXUAL, TRANSGENDER AND INTERSEX PEOPLE 1 LIVING FREE AND EQUAL WHAT STATES ARE DOING TO TACKLE VIOLENCE AND DISCRIMINATION AGAINST LESBIAN, GAY, BISEXUAL, TRANSGENDER AND INTERSEX PEOPLE New York and Geneva, 2016. 3 NOTE The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries. Symbols of United Nations documents are composed of capital letters combined with fgures. Mention of such a fgure indicates a reference to a United Nations document. Blank pages have been removed from the web version of this document for easier reading. HR/PUB/16/3 © 2016 United Nations All worldwide rights reserved 4 CONTENTS FOREWORD 6 EXECUTIVE SUMMARY 8 INTRODUCTION 12 DEFINITIONS 17 METHODOLOGY 20 WHAT STATES ARE DOING TO TACKLE VIOLENCE AND DISCRIMINATION AGAINST LESBIAN, GAY, BISEXUAL, TRANSGENDER AND INTERSEX PEOPLE 1. PROTECTING PEOPLE FROM VIOLENCE 23 2. PREVENTING TORTURE AND CRUEL, INHUMAN AND DEGRADING TREATMENT 39 3. REPEALING DISCRIMINATORY LAWS 53 4. PROTECTING PEOPLE FROM DISCRIMINATION 61 5. RESPECTING FREEDOM OF EXPRESSION, ASSOCIATION AND PEACEFUL ASSEMBLY 85 6. CROSS-CUTTING ISSUES AND PRACTICES 93 CONCLUSIONS AND RECOMMENDATIONS 119 UNITED NATIONS SUPPORT 133 ANNEX 1: FURTHER READING 136 ANNEX 2: REFERENCES TO COUNTRY EXAMPLES 139 5 FOREWORD 6 FOREWORD In recent years, awareness has grown of the scope and scale of violence and discrimination directed at lesbian, gay, bi, trans (LGBT) and intersex people around the world – including killings, torture, arbitrary detention and widespread discrimination in access to health care, education, employment and housing. United Nations, regional and national human rights bodies have identifed critical gaps in the implementation of international standards to address these and related violations, and have issued a plethora of recommendations, including, among them, the repeal of discriminatory legislation and measures to protect LGBT and intersex people from discrimination, violence, torture and ill treatment, and safeguard rights to freedom of expression, association and peaceful assembly. Increasingly, Governments are taking action – whether in the form of legislation and policy measures or through targeted social and education programmes. At the United Nations Human Rights Council, more than one hundred countries from all regions around the world have voluntarily committed to take measures to end violence and discrimination linked to sexual orientation and gender identity, based on recommendations generated during the frst two cycles of the Universal Periodic Review. Even so, there has been relatively little analysis at the international level of the practical steps that States have taken or are taking to implement United Nations recommendations in this feld. In my report to the Human Rights Council in June 2015, I provided a brief overview of some notable positive developments in recent years, incorporating information received from States. It is clear that there is demand, to which this publication responds, for a more in-depth analysis of existing concrete practices, and of the remaining gaps and challenges. The results of this study provide grounds for hope – showing us the myriad of ways that national and municipal authorities, courts, parliaments, and national and regional human rights institutions are meeting their responsibilities to address this critical human rights issue. However, serious challenges remain. While many countries have taken encouraging steps, in most cases, these efforts have fallen short of the concerted strategy required to tackle violence and discrimination against LGBT and intersex people. Even in countries that have arguably recorded the most progress in respect of the rights of gay men and lesbians, there has been far less attention given to protecting the rights of trans people and only incipient attention to the rights of intersex people. Our analysis also highlights the need for more data on the human rights situation of LGBT and intersex people, and for the systematic evaluation of the effectiveness of measures by States to address the abuses that they face. I am confdent that this publication will spark discussion and hope it will inspire renewed efforts and determination by States, national human rights institutions, civil society organizations, regional organizations and members of the United Nations family to join forces to end human rights violations on the basis of sexual orientation, gender identity and expression, and sex characteristics. Zeid Ra’ad Al Hussein United Nations High Commissioner for Human Rights October 2016 7 EXECUTIVE SUMMARY 8 EXECUTIVE SUMMARY In recent years, local and national authorities in countries around the world have adopted wide- ranging measures to address human rights violations against lesbian, gay, bi, trans (LGBT) and intersex people. The present study references more than 200 such initiatives introduced in 65 countries in every region of the world. While not comprehensive, the study provides an overview of policy trends, highlighting positive developments and drawing attention to areas that require further action. KEY FINDINGS • More than a hundred United Nations Member States from all regions have committed to addressing violence and discrimination on the basis of sexual orientation and gender identity. • In addition to enacting new laws, some States have adopted comprehensive cross-Government action plans to: protect the rights of LGBT and intersex people; set up consultative bodies that include LGBT and intersex people; and partnered with civil society organizations to jointly tackle these challenges. • In response to homophobic and transphobic violence, States have adopted an array of new laws to tackle hate crimes and hate speech, public leaders have spoken out, special prosecution teams have been set up, police offcials have received relevant training, reporting helplines have been established, steps have been taken to tackle bullying in schools, and policies have been adopted to respect the rights of transgender people in detention. • To protect LGBT and intersex people from unfair treatment, States have passed or amended anti- discrimination laws, and taken specifc steps to curb discrimination in education, employment and health care and recognize and protect the rights of same-sex couples and their children. • A handful of States legally recognize the gender identity of trans adults and children on the basis of self-identifcation through a simple administrative process without abusive requirements; one State guarantees the right to access gender affrming treatment, and a small number recognize non-binary gender identities. • A few States have taken steps to curb abuse of LGBT and intersex children and adults in medical settings, including so-called “conversion” therapies and forced sterilization and treatment of transgender people, and have removed medical classifcations that pathologize trans people. 9 • A few States have adopted measures to protect the rights of intersex people. Two have prohibited discrimination based on sex characteristics/intersex status, one of which has also banned medically unnecessary surgery on intersex children. • Courts have upheld the rights of LGBT and intersex organizations to offcially register and to hold public events and peaceful assemblies, and have awarded compensation to LGBT and intersex people for violations of their rights. • Local authorities have often played a pioneering role – including by adopting anti- discrimination ordinances, combating hate crimes, training local offcials and rolling out public education initiatives. MORE THAN 100 COUNTRIES FROM ALL REGIONS HAVE ACCEPTED UN RECOMMENDATIONS AIMED AT TACKLING VIOLENCE AND DISCRIMINATION AGAINST LGBT AND INTERSEX PEOPLE. 10 GAPS AND CHALLENGES • Criminalization, discriminatory attitudes, harassment by police, stigma, ill treatment in detention and medical settings, lack of protective legislation, absence of complaints mechanisms, lack of trust in law enforcement offcials and awareness by judicial operators still result in impunity for perpetrators and make it diffcult for victims of human rights violations to access effective remedies and support. • Consensual same-sex relationships remain a crime in 73 countries, which exposes individuals to the risk of arrest, blackmail and extortion, and feeds stigma, discrimination and violence. While fve States have decriminalized homosexuality since 2011, in several other States new discriminatory laws have been adopted or proposed, sanctions have been broadened and discriminatory restrictions placed on freedom of expression and association. • Despite positive developments, most countries lack comprehensive policies to address human rights violations against LGBT and intersex people. Even where these are in place, most States do not collect relevant data to measure and evaluate their effectiveness • Measures to address violence and discrimination faced by trans people lag far behind those adopted to address issues related to people who are lesbian, gay or bisexual. Critically, most States do not recognize trans people’s gender identity; the majority of those that do continue to impose abusive preconditions that violate international human rights standards, national and international medical classifcations continue to pathologize trans persons and identities. • Despite serious human rights violations, efforts to protect the human rights of intersex people are only at an incipient stage, with only a handful of States having adopted protective measures to shield intersex people from violence, ill treatment and discrimination. • Policies by and large fail to take into account the diversity and heterogeneity of LGBT and intersex people. Many of them face multiple and intersecting forms of discrimination because of their skin colour, ethnicity, gender, religion, age or migratory status or because they are living with a disability or in poverty. 11