UN Human Rights Council Universal Periodic Review – Twelfth Session: Suggested Recommendations on Human Rights Issues Relaed to Sexual Orientation and Gender Identity

Published: September 20, 2011

All documents referred to can be found on the respective country pages at: http://www.ohchr.org/EN/HRBodies/UPR/Pages/Documentation.aspx.

Summary
(see detailed interventions below, from page 3)

Tajikistan
Key Issues/Recommendations: combat discrimination and violence based on sexual orientation and gender identity, including by law enforcement officials; ensure that marriages may be entered into only with the free and full consent of the intending spouses or partners; ensure freedom of association and assembly without discrimination based on sexual orientation or gender identity; ensure the right to recognition before the law of transgender persons; provide medical and other support to all persons experiencing gender transitioning or reassignment.

Tanzania
Key Issues/Recommendations: repeal all provisions which may be used to criminalise sexual relations between consenting adults of the same sex, and take all necessary actions to protect all persons from discrimination and harassment regardless of their sexual orientation or gender identity.

Antigua and Barbuda
Key Issues/Recommendations:
Key Issues/Recommendations: bring its legislation into conformity with its international human rights obligations by repealing provisions which may be used to criminalise same-sex activity between consenting adults.

Swaziland
Key Issues/Recommendations: bring its legislation into conformity with its international human rights obligations by repealing provisions which may be used to criminalise same-sex activity between consenting adults, and take all necessary measures to ensure enjoyment of the right to the highest attainable standard of health, without discrimination on the basis of sexual orientation or gender identity.

Trinidad and Tobago
Key Issues/Recommendations: decriminalisation of same-sex relations; include sexual orientation and gender identity as grounds for protection in non-discrimination legislation; arbitrary detention; torture; impunity; sensitisation for law enforcement officials; relationship recognition; immigration.

Thailand
Key Issues/Recommendations: : commend Thailand’s support for March joint statement on sexual orientation and gender identity and recent HRC resolution; recommend inclusion of gender identity in antidiscrimination legislation, access by transgender people to government documentation reflecting their self-defined gender identity, equal recognition of same-sex relationships, and consideration of the Yogyakarta Principles.

Ireland
Key Issues/Recommendations:
treat same-sex couples equally with opposite sex couples; ensure recognition and respect for each person’s self-defined gender identity; address school bullying on grounds of sexual orientation and gender identity.

Togo
Key Issues/Recommendations: bring its legislation into conformity with its international human rights obligations by repealing provisions which may be used to criminalise same-sex activity between consenting adults.

Syria
Key Issues/Recommendations: review the Penal Code to ensure that it is not interpreted or applied so as to criminalize sexual activity between consenting adults.

Venezuela
Key Issues/Recommendations: include sexual orientation and gender identity as grounds for protection in non-discrimination legislation; provide protection from all forms of violence and harassment; implement public education and awareness programmes; provide same sex partners with equal rights and responsibilities as opposite sex partners; consider applying the Yogyakarta Principles as a guide to assist policy making.

Iceland
Key Issues/Recommendations: take measures to respect and legally recognise each person’s self-defined gender identity; ensure that changes to identity documents are recognised in all contexts where the identification of persons by gender is required, provide social support for all persons experiencing gender transitioning or reassignment and implement the Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity as a guide to assist in policy making.

Zimbabwe
Key Issues/Recommendations: bring its legislation in line with international standards by ensuring the repeal of all provisions that may be used to criminalize consensual sexual relations between adults of the same sex.

Lithuania
Key Issues/Recommendations: include gender identity in non-discrimination legislation; ensure that notions of public morality or public health are not employed to restrict exercise of freedom of opinion and expression that affirm diverse sexual orientations and gender identities; take measures to ensure respect for each person’s self-defined gender identity, including access to sex reassignment surgery and to official documents that reflect an individual’s gender identity; ensure equal rights between same sex and opposite sex couples, and; officially recognise diverse forms of the family.

Uganda
Key Issues/Recommendations: decriminalise same-sex relations between consenting adults and permanently reject the Anti-Homosexuality Bill; take measures to ensure that no person is subjrect to arbitrary arrest or detention because of their sexual orientation or gender identity; protect the rights to liberty, life, privacy, physical integrity and health of LGBTI persons; protect the human rights of human rights defenders, journalists and media workers without discrimination.

Timor Leste
Key Issues/Recommendations: include sexual orientation and gender identity as grounds in antidiscrimination legislation; consider applying the Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity as a guide to policy development.

Moldova
Key Issues/Recommendations: ensure the right to peaceful assembly for gatherings related to sexual orientation and gender identity and ensure adequate physical protection to persons exercising these rights; implement programmes to sensitise law enforcement officials on issues of sexual orientation and gender identity; investigate harassment of LGBTI persons by police; ensure identification documentation reflect a person’s self-defined gender identity; adopt sensitizing programmes for health care personnel on issues relating to sexual orientation and gender identity.

Haiti
Key Issues/Recommendations: request information on Haiti’s anti-discrimination and violence legislation; recommend the application of the Yogyakarta Principles.

TAJIKISTAN
Date of review: Monday, 3 October AM
Key Issues/Recommendations: combat discrimination and violence based on sexual orientation and gender identity, including by law enforcement officials; ensure that marriages may be entered into only with the free and full consent of the intending spouses or partners; ensure freedom of association and assembly without discrimination based on sexual orientation or gender identity; ensure the right to recognition before the law of transgender persons; provide medical and other support to all persons experiencing gender transitioning or reassignment.
Sample Intervention: We welcome Tajikistan’s commitment to equality and non-discrimination as outlined in its national report. However, we note that the stakeholders have expressed concern that negative public attitudes, discrimination and violence based on sexual orientation and gender identity exist. We therefore recommend that Tajikistan:
a) take all necessary measures to prevent and provide protection from all forms of violence and harassment against individuals based on their sexual orientation or gender identity, including by the police and other law enforcement officials;
b) Undertake programmes of training and awareness-raising to educate police and other law enforcement personnel regarding the arbitrariness of arrest and detention based on a person’s sexual orientation or gender identity;
c) Ensure that marriages may be entered into only with the free and full consent of the intending spouses or partners;
d) Adopt appropriate legislative and other measures to prohibit and eliminate discrimination in the public and private spheres on the basis of sexual orientation and gender identity;
e) Take all necessary legislative, administrative and other measures to ensure the rights to peacefully organise, associate, assemble and advocate around issues of sexual orientation and gender identity, and to obtain legal recognition for such associations and groups, without discrimination on the basis of sexual orientation or gender identity;
f) Take all necessary legislative, administrative and other measures to ensure that procedures exist whereby all State-issued identity papers which indicate a person’s gender/sex – including birth certificates, passports, electoral records and other documents – reflect the person’s profound self-defined gender identity
g) Develop and introduce a protocol on hormonal therapy for transgender individuals, and undertake targeted programmes to provide social support for all persons experiencing gender transitioning or reassignment.
Summary of stakeholders’ information
B.Implementation of international human rights obligations
2. Right to life, liberty and security of the person
21. JS4 reported about sexual and physical violence against gay and bisexual men perpetrated by the police. Transgender persons also experienced violence. JS4 recommended that Tajikistan take all necessary measures to prevent and provide protection from all forms of violence and harassment against LGBT persons.
22. JS2 stated that LGBT persons were regular subjects of illegal detention and blackmailing by law enforcement agencies.
4. Right to privacy, marriage and family life
49. JS4 reported that the lives of lesbian and bisexual women were regulated and controlled by their families and communities and that they were often married to a man by the choice of their family. It recommended that Tajikistan comply with article 16 of CEDAW to ensure on a basis of equality, the right to freely choose a spouse and to enter into marriage only with free and full consent.
50. JS2 stated that hatred and intolerance of the society towards lesbian, gay, bisexual, and transgender (LGBT) persons forced them to leave the country or to hide their sexual orientation. Since LGBT persons were afraid that their sexual orientation could be revealed, they rarely sought for medical, legal or psychological assistance. JS2 recommended that Tajikistan prohibit discrimination based on sexual orientation and gender identification in the national legislation.
54. JS1 reported that there was no procedure for changing identification documents in cases of a change of sex. JS4 recommended that Tajikistan recognize the rights of transgender people to change gender and name in passports and in other official documents. Furthermore, JS1 recommended that Tajikistan adopt a law on the procedures to change identification documents of trans-gender persons.
5. Freedom of religion or belief, expression, association and peaceful assembly
66. JS4 reported that organizations working with LGBT communities had to keep a low profile in order to avoid social backlash. JS4 recommended that Tajikistan create an enabling environment for LGBT organizations.
6. Right to social security and to an adequate standard of living
74. JS4 stated that transgender persons did not have an access to a hormonal therapy or surgeries. JS2 recommended that Tajikistan develop and introduce a protocol on hormonal therapy for trans-gender individuals.

TANZANIA
Date of Review: Monday, 3 October PM
Key Issues/Recommendations: repeal all provisions which may be used to criminalise sexual relations between consenting adults of the same sex, and take all necessary actions to protect all persons from discrimination and harassment regardless of their sexual orientation or gender identity.
Sample Intervention: We welcome Tanzania’s commitment to equality and non-discrimination, as outlined in its national report. However, we remain concerned that section 154 and 138(a) of the Penal Code may be used to criminalise consensual sexual relations between adults of the same sex.
The UN Human Rights Committee has confirmed that such laws violate the rights to both privacy and non-discrimination, contrary to articles 17(1) and 26 of the International Covenant on Civil and Political Rights. The Committee further considered that these laws “run counter to the implementation of effective education programmes in respect of HIV/AIDS prevention” by driving marginalised communities underground. Indeed the HR Committee has recommended to Tanzania that it decriminalise sexual relations between consenting adults of the same sex.
We therefore recommend that Tanzania implement the Human Rights Committee recommendation by repealing all provisions which may be used to criminalise sexual relations between consenting adults of the same sex, and take all necessary actions to protect all persons from discrimination and harassment regardless of their sexual orientation or gender identity.
Compilation of UN information
B. Implementation of international human rights obligations, taking into account applicable international humanitarian law
4. Right to privacy, marriage and family life
45. UNCT indicated that same-sex sexual relations were criminalized and urged Tanzania to consider applying the Yogyakarta Principles as a guide to State policy-making, and to repeal any criminal provision against persons
based on their sexual orientation. HR Committee made a similar recommendation.
II.Promotion and protection of human rights on the ground
Implementation of international human rights obligations, taking into account applicable international humanitarian law
4.Right to privacy, marriage and family life
36. JS1 referred to section 154 of the Penal Code, which notably criminalised “carnal knowledge of any person against the order of nature” and section 138(A) on gross indecency. JS1 recommended that the Human Rights Council urge Tanzania to repeal all provisions which may be applied to criminalise sexual activity between consenting adults.

ANTIGUA AND BARBUDA
Date of review: Tuesday, 4 October AM
Key Issues/Recommendations: bring its legislation into conformity with its international human rights obligations by repealing provisions which may be used to criminalise same-sex activity between consenting adults.
Sample Intervention: We welcome Antigua and Barbuda’s support for the inclusion of a reference to sexual orientation in the General Assembly resolution on extrajudicial, summary and arbitrary executions, as well as it’s commitment to equality and non-discrimination as outlined in its national report.
However, UNAIDS has reported that penalties for same sex relations between consenting adults may involve imprisonment up to 15 years.
The UN Human Rights Committee has confirmed that such laws violate the rights to both privacy and non-discrimination, contrary to articles 17(1) and 26 of the International Covenant on Civil and Political Rights. The Committee further considered that these laws “run counter to the implementation of effective education programmes in respect of HIV/AIDS prevention” by driving marginalised communities underground. UN Secretary General Ban Ki-moon has also recently called for the repeal of laws criminalising consensual same-sex conduct.
We therefore recommend that Antigua and Barbuda bring its legislation into conformity with its international human rights obligations by repealing provisions which may be used to criminalise same-sex activity between consenting adults.
Compilation of UN information
B. Implementation of international human rights obligations
4. Right to privacy and family life
56. In 2010, the Joint United Nations Programme on HIV/AIDS (UNAIDS) reported that penalties for practicing homosexual acts in Antigua and Barbuda were of 15 years.
Summary of stakeholders’ information
II.Promotion and protection of human rights on the ground
Implementation of international human rights obligations, taking into account applicable international humanitarian law
4. Right to privacy, marriage and family life
24. Joint Submission 1 (JS1) referred to the Sexual Offences Act of 1995, which criminalised sexual activity between consenting adults under the offences of buggery (article 12) and serious indecency (article 15). JS1 recommended that the Human Rights Council urged Antigua and Barbuda to bring its legislation into conformity with its commitment to equality and non-discrimination, and its international human rights obligations, by repealing all provisions which may be applied to criminalise sexual activity between consenting adults.

SWAZILAND
Date of review: Tuesday, 4 October PM
Key Issues/Recommendations: bring its legislation into conformity with its international human rights obligations by repealing provisions which may be used to criminalise same-sex activity between consenting adults, and take all necessary measures to ensure enjoyment of the right to the highest attainable standard of health, without discrimination on the basis of sexual orientation or gender identity.
Sample Intervention: We welcome Swaziland’s commitment to equality and non-discrimination as outlined in the national report.
However, we remain concerned that Swaziland criminalises sexual relations between consenting adults of the same sex. Furthermore, the stakeholders note that Swaziland plans to include prohibitions of all same sex relations in its revision of the Sexual Offences laws.
The UN Human Rights Committee has confirmed that such laws violate the rights to both privacy and non-discrimination, contrary to articles 17(1) and 26 of the International Covenant on Civil and Political Rights. The Committee further considered that these laws “run counter to the implementation of effective education programmes in respect of HIV/AIDS prevention” by driving marginalised communities underground. UN Secretary General Ban Ki-moon has also recently called for the repeal of laws criminalising consensual same-sex conduct.
We therefore recommend that Swaziland bring ensure its legislation is in line with international standards by ensuring repealing all provisions, or plans for provisions, that may be used to criminalise consensual sexual relations between adults of the same sex.
Furthermore, earlier this year the UNCT noted that there was stigma and discrimination against persons based on their sexual orientation or gender identity, and that criminal laws impede access to healthcare for the most-at-risk populations.
We therefore recommend that Swaziland adopt appropriate legislative and other measures to prohibit and eliminate discrimination in the public and private spheres on the basis of sexual orientation and gender identity.
We further recommend that Swaziland take all necessary legislative, administrative and other measures to ensure enjoyment of the right to the highest attainable standard of health, without discrimination on the basis of sexual orientation or gender identity.
Compilation of UN information
B. Implementation of international human rights obligations
4. Right to privacy, marriage and family life
39. In 2011, UNCT noted that there was still some level of stigma and discrimination against lesbians, men who have sex with men, bisexuals, and transgender and sex workers. The most-at-risk population (prisoners, men who have sex with men and sex workers) still had difficulties accessing sexual reproductive health care due to the fact that the country still had legislation that prohibited their sexual acts.
Summary of stakeholders’ information
II. Promotion and protection of human rights on the ground
B. Implementation of international human rights obligations, taking into account applicable international humanitarian law
4. Right to privacy, marriage and family life
42. SCHRPA and JS5 indicated that sexual contact between male persons was still criminalized under the common law as sodomy. JS5 indicated that Swaziland planned to include prohibitions of all male homosexual acts and lesbian acts in its revision of the Sexual Offences laws. JS2 reported that there was no legislation recognising lesbian, gay, bi-sexual, transgendered and inter-sexed people (LGBTIs) or protecting the right to sexual orientation and that LGBTIs were discriminated and condemned openly. Homosexual people could not marry under the Marriage Act and homosexual partners could not adopt children. The House of our Hope (HOOP) provided examples of discrimination against LGBTIs occurring in various settings.
TRINIDAD AND TOBAGO
Date of review: Wednesday, 5 October AM
Key Issues/Recommendations: decriminalisation of same-sex relations; include sexual orientation and gender identity as grounds for protection in non-discrimination legislation; arbitrary detention; torture; impunity; sensitisation for law enforcement officials; relationship recognition; immigration.
Sample Intervention: We welcome Trinidad and Tobago’s commitment to equality and non-discrimination as outlined in its national report.
However, we note that Sections 13 and 16 the Sexual Offences Act of 1986 criminalise consensual sexual relations between adults of the same sex.
The UN Human Rights Committee has confirmed that such laws violate the rights to both privacy and non-discrimination, contrary to articles 17(1) and 26 of the International Covenant on Civil and Political Rights. The Committee further considered that these laws “run counter to the implementation of effective education programmes in respect of HIV/AIDS prevention” by driving marginalised communities underground. UN Secretary General Ban Ki-moon has also recently called for the repeal of laws criminalising consensual same-sex conduct.
We therefore recommend that, in line with its international obligations, Trinidad and Tobago
repeal Sections 13 and 16 of the Sexual Offences Act as part of its review by the Ministry of Justice.
The Committee on Economic, Social and Cultural Rights (CESCR) has expressed concern that the Equal Opportunity Act 2000 does not afford protection to individuals on the grounds of sexual orientation, age and HIV/AIDS status, amongst others. We recommend that Trinidad and Tobago include sexual orientation and gender identity as grounds for protection in all non-discrimination legislation, and that it implement the CESCR recommendation to take effective measures to eliminate discrimination on these grounds.
Stakeholders have noted that individuals have been victims of a pattern of crimes, which in the worst instances, included kidnapping, imprisonment, torture and robbery, based on their actual or perceived sexual orientation. We recommend that Trinidad and Tobago take all necessary measures to:
? ensure that sexual orientation or gender identity may under no circumstance be the basis for arrest or detention;
? prevent and provide protection from torture and cruel, inhuman or degrading treatment or punishment, perpetrated for reasons relating to the sexual orientation or gender identity of the victim, as well as the incitement of such acts;
? end impunity for attacks against individuals on grounds of sexual orientation and gender identity, and;
? provide education and awareness programmes, including on grounds of sexual orientation and gender identity, to law enforcement, judicial and other authorities.
We understand that the Government proposed in 2011 a national referendum to determine if same-sex relationships should be recognized by the State. We recommend that measures be taken to ensure that same-sex unmarried partners receive equal treatment with opposite-sex unmarried partners, in line with Trinidad and Tobago’s commitment to equality and non-discrimination.
Finally, stakeholders expressed concern that the Immigration Act prohibits entry into Trinidad and Tobago of based on a person’s sexual orientation. We thus recommend that it repeal provisions in the Immigration Act that discriminate on grounds of sexual orientation or gender identity.
National report
IV. Promotion and protection of human rights
A. International covenant on civil and political rights
3. Access to justice
42. The central tenets of ensuring due process and the equal treatment of all before the law is one of the foundations of the Government of Trinidad and Tobago’s approach to upholding citizens’ rights and freedoms. As the Government agency mandated to reform the criminal justice system through the amendment and introduction of criminal legislation, the Ministry of Justice has embarked upon consultations with key stakeholders as part of the process of legislative reform.
43. The following pieces of legislation are currently under review by the Ministry of Justice:
• The Sexual Offences Act, 1986 to expand the range and scope of sexual offences covered by the Act, and to repeal and replace the law governing the Sex Offender Registry; and
Compilation of UN information
B.Implementation of international human rights obligations, taking into account applicable international humanitarian law
1. Equality and non-discrimination
20. In 2002, CESCR was concerned about the lack of specific and comprehensive anti-discrimination legislation in Trinidad and Tobago. The Committee was particularly concerned that the Equal Opportunity Act 2000 does not afford protection to individuals on the grounds of sexual orientation, age and HIV/AIDS status, among others. CESCR recommended that Trinidad and Tobago take legislative and other effective measures to eliminate discrimination.
4. Right to privacy, marriage and family life
38.CESCR encouraged Trinidad and Tobago to undertake proactive policies to promote the rights of individuals, especially with regard to their sexual orientation and HIV/AIDS status.
Summary of stakeholders’ information
I. Background and framework
C. Policy measures
4. AI reported that the 2009 draft National Policy on Gender and Development, which had not yet been adopted, acknowledged that gender based violence was an obstacle to national development, and indicated a number of measures to be implemented including: the adoption of legislation on sexual harassment; the revision of existing legislation with a view to improve legal remedies for all forms of gender based violence; the creation of centralized system for data collection; the establishment of specialized Rape and Sexual Offences Units within police stations; and strengthening the capacities and the effectiveness of shelters for victims and their children. AI recommended that Trinidad and Tobago ensure the adoption and the co-ordinated implementation of the National Policy on Gender and Development. Joint Submission 2 (JS2) noted that the 2009 draft policy categorically excluded from its scope any treatment of sexual orientation and homosexuality.
II.Promotion and protection of human rights on the ground
Implementation of international human rights obligations, taking into account applicable international humanitarian law
1. Equality and non-discrimination
5. JS2 reported that the Equal Opportunity Act (2000) (Ch. 22:03), explicitly excluded from its application “sexual preference or orientation.
2. Right to life, liberty and security of the person
11. JS2 referred to reports that several men in same-sex-practicing networks in Trinidad, who sought sexual partners on a popular internet site had, since 2007, been victims of a pattern of crimes, which in the worst
instances, included kidnapping, imprisonment, torture and robbery. Most did not pursue police action and the two who did reported sloppy investigation. JS2 stated that because the sexual expression of same-sex desire is treated as criminal in the law men are often forced into hiding when they become the victims of opportunistic crimes.
4. Right to privacy, marriage and family life
25. AI, JS1 and JS2 indicated that homosexual activity was criminalized in Sections 13 and 16 of the Sexual Offences Act relating to buggery and serious indecency. AI recommended that Trinidad and Tobago repeal all provisions that criminalize same sex relations, including in the Sexual Offences Act. JS1 made a similar recommendation.
26. JS2 also mentioned that the Administration of Estates Act (2000) , the Cohabitational Relationships Act (1998) and the Domestic Violence Act (1997) all provided recognition and protection for non-marital cohabitational relationships, but defined these relationships as between persons of the opposite sex. JS2 reported that the Government proposed in 2011 a “national referendum” to determine if same-sex relationships should be recognized by the state.
6. Right to social security and to an adequate standard of living
28. JS2 mentioned the national HIV strategic plan 2010-2015 and indicated that national HIV spending allocated from 2002 to 2009 on all “most-at-risk populations” was less than 7 per cent. JS2 indicated that, in available sampling, HIV prevalence among men who have sex with men had been measured at 20 per cent, four to eight times higher than estimated national rates of HIV.
8. Migrants, refugees and asylum-seekers
32. AI reported that the Immigration Act prohibited entry into Trinidad and Tobago of “prostitutes, homosexuals or persons living on the earnings of prostitutes or homosexuals, or persons reasonably suspected as coming to Trinidad and Tobago for these or any other immoral purposes”. AI recommended that Trinidad and Tobago repeal provisions in the Immigration Act that were discriminatory against lesbian, gay, bisexual and transgender persons.
THAILAND
Date of review: Wednesday, 5 October, PM
Key Issues/Recommendations: commend Thailand’s support for March joint statement on sexual orientation and gender identity and recent HRC resolution; recommend inclusion of gender identity in antidiscrimination legislation, access by transgender people to government documentation reflecting their self-defined gender identity, equal recognition of same-sex relationships, and consideration of the Yogyakarta Principles.
Sample Intervention: We welcome Thailand’s commitment to equality and non-discrimination as outlined it its national report, and we commend Thailand for supporting the resolution on human rights, sexual orientation and gender identity at the 17th session of the Human Rights Council, as well as the joint statement on human rights, sexual orientation and gender identity delivered in March on behalf of 85 States.
We note that Thailand is in the process of drafting a gender equality promotion bill which will prohibit discrimination on the ground of sexual orientation. We recommend that gender identity be included in the bill as a ground for non-discrimination.
We further note that, according to stakeholders, same-sex couples do not enjoy equal rights as opposite-sex couples. We would recommend that measures be taken to ensure that same-sex registered partners receive equal treatment with opposite-sex partners in areas such as inheritance, immigration, child custody, social security benefits, health and pension schemes.
Finally, stakeholders have expressed concern that transgender people are unable to obtain identity documentation that reflects their self-defined gender identity. We thus recommend that measures be taken to ensure respect for each per

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