Sexual Orientation and Gender Identity Still Divide UN General Assembly

Posted on | November 21, 2012 by Stefano Gennarini, J.D. |

Yesterday afternoon the United Nations General Assembly adopted its biannual resolution on Extrajudicial, Summary or Arbitrary Executions. Once again, the third committee proceedings at which the resolution was adopted, by 108 votes to 1, with 65 abstentions, were mired in controversy over “sexual orientation and gender identity” (SOGI).

An attempt by the Organization of Islamic Cooperation to delete the reference to SOGI from the draft resolution through an amendment was defeated by 44 votes to 86, with 31 abstentions. SOGI just keeps dividing the General Assembly, and it looks as though it will continue to do so for years to come.

While it might seem uncontroversial to some delegations to include SOGI among the grounds for extrajudicial, summary and arbitrary killings, condemned in the resolution, many delegations have objections to the terms. These objections arise both from well known cultural and social attitudes, as well as more technical legal objections, and ultimately the fear that granting this term a normative foothold in the General Assembly will begin a tidal wave of changes to human rights laws in order to include new special rights for LGBT persons.

The term “sexual orientation” has been included in the resolution since 2004, with similar opposition every year. But in 2010 it had to be re-inserted in the proposed draft through an amendment adopted by 93 votes to 55, with 27 abstentions. For a moment it looked at though opponents of SOGI would carry the day. In the end pressure from the United States, the European Union, and other donor countries had their way.

The term “gender identity” has never appeared in a  General Assembly resolution, and has only been used in a single Human Rights Council Resolution that requested a study on violence against persons on the basis of SOGI last year. All that is known about the new term, is that the Office of the High Commissioner for Human Rights (OHCHR) has been calling upon countries to change their laws to accommodate transex people by recognizing their gender identity since that report.

In that same report the OHCHR uses “sexual orientation” and “gender identity” as the basis for a whole range of new human rights that UN member states never negotiated or agreed to. Among these new rights the OHCHR includes special protections in criminal law and enforcement for LGBT persons, the de-criminalization of all adult consensual same-sex conduct, and the extension of the benefits of marriage to same sex couples. It is no surprise that so many delegations are completely spooked by the terms. From their perspective  inserting these terms in any resolution would be not only absurd from a cultural and social point of view, but from a legal one too.

In fact, one of the principal objections to the terms, is that they are over-broad and undefined. Delegates have repeated multiple times during this GA session, and past GA sessions, that the terms are not objective because they create a category identifiable only by the subjective preferences of individuals. In addition, they complain that identifying one category of persons for special protection from human rights abuses, dilutes the universal character of the obligations of the human rights obligations of UN member states. Moreover, they insist that, given the lack of recognition that SOGI has, the UN system should concentrate its efforts on non-controversial universally recognized rights.

Interestingly, during the present session of the General Assembly, last month the African Group, CARICOM, and the Arab Group, all reprimanded the High Commissioner for Human Rights for her efforts to push LGBT Rights on UN member states. The Arab group especially, hoped that such a wide coalition would be sufficient to defeat the term as “sexual orientation” had been in 201o. But the African Group and CARICOM were unable to agree on excluding the controversial terms from the resolution on extrajudicial killings. Delegates from the African Group scrambled to and fro before the resolution was discussed yesterday afternoon, trying to find the same agreement that led to the deletion of the term in 2010. In the end they could not, and while some African countries voted and made statements against the new terms, many abstained from voting on the amendment deleting SOGI.

The U.S. ambassador to the UN, Susan Rice, who is currently embroiled in a controversy over her possible nomination as Secretary of State and her fumbling the Benghazi affair before the elections, tweeted her satisfaction with the outcome of the voting yesterday evening. That tweet vindicates the fears of many UN member states that introducing SOGI in an apparently harmless resolution will unleash an avalanche of LGBT rights initiatives at the UN. In one she states “We will not allow the remarkable progress the #UN has made on #LGBT issues in the last four years to be rolled back.” In another: “Fitting, on National #Transgender Day of Remembrance, that #UNGA acknowledges protections on the basis of gender identity.”

It looks as though abstentions from voting on the issue have increased on both sides of the debate within the GA, not just within the group that opposes SOGI.

The African, Arab, and Carribean countries, who have opposed the terms thus far have been hounded  by the United States diplomatic apparatus at the UN and in their own countries to support LGBT rights or step aside over the past 4 years. LGBT rights are top priority of the Obama administration’s foreign policy. Several donor countries, including the UK, have threatened African countries that they would stop aid flowing to them unless they supported LGBT rights. Without a doubt these threats have had some effect within the African Group.

Nevertheless, while SOGI has made some progress in Geneva and even in the General Assembly, at least peripherally through the extrajudicial killings resolution,  the possibility of an outright resolution at the GA on LGBT rights is a much more difficult proposition. The last time UN member states declared themselves on the issue  through a non-negotiated non-binding declaration 68 nations were in favor LGBT rights, and 60 against. Neither group had a the votes necessary to pass a UN resolution.

The United States promised such a resolution in 2010 after successfully re-introducing “sexual orientation” in the extrajudicial killings resolution. Rumors have been voiced among delegates that it would come up last year, and then this year. So far it has not materialized. The re-election of Barak Obama to the US presidency means that the rumors aren’t going to stop anytime soon.

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Turtle Bay and Beyond is a blog covering international law, policy and institutions. Our experts - at the UN, European Institutions, and elsewhere - explore an authentic understanding of international law, sovereignty, and the dignity of the human person. We expose those who would seek to impose a radical social vision that is contrary to these principles.

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