Sexual rights, gender, health and rights of defenders at the United Nations HRC 2016

By Namita and Jan Moolman

Every year under the beautifully painted roof [1] of the United Nations Human Rights Council (HRC) in Geneva, country ambassadors, UN officials and civil society pack in to debate and dissect the purpose and minutiae of different resolutions and reports that are presented before the HRC.

Gabriel Hoosain Khan, an LGBT activist from South Africa muses about the distance of UN bodies in Geneva from the realities of the world that we (or at least some of us) live in or know about. He says – “In Geneva it might be possible to celebrate a human rights gain – but that gain seems far removed from the room in Khayelitsha where I met three LGBTI youth groups last week. The beautiful paneled ceiling in Geneva (which I have seen in pictures) is unimaginable from the crèche where we meet – a zinc structure with no electricity, little furniture or flushing toilets.” [2]

This cautious note struck by Gabriel Hoosain Khan and other African LGBTQIA activists bookends this listing of the gains made on grounds of gender based violence, sexual rights, protection for people and rights defenders that took place at the HRC this year in its 32nd session.

Elimination of discrimination against women

In a lengthy preamble to the resolution on ‘Elimination of discrimination against women’ passed by the Human Rights Council, there is specific reference to the fact that women and girls face “multiple and intersecting” forms of discrimination. While disability is mentioned in the resolution, other forms such as race, caste, creed, ethnicity are not. Still in its totality and when read with the resolution that looks at how racism and xenophobia effect women and girls the HRC is making welcome moves to look at the complicated, graded and hierarchical ways in which discrimination and exclusion take place in the world. Several other issues that got emphasised were sexual rights, control over sexual reproductive health, access to health care services. Heath is defined as.. “a state of complete physical, mental and social well-being, and not merely the absence of disease or infirmity”.

The latest version of the Feminist Principles of the Internet, a working document that is a product of collaboration between feminists across the world, states that: We support and protect unrestricted access to information relevant to women and queer persons’, particularly information on SRHR, pleasure, safe abortion, access to justice, and LGBTIQ issues, in multiple languages, that are relevant to women is essential, and must be supported and protected. This includes diversity in languages, abilities, interests and contexts.

Sexuality and gender rights activists also have realised that there is a particular concern for them with regard to the use of disaggregated data by governments and companies. In relation to sexuality and gender, it is troubling when data collected from companies and agencies is used for instance to target women who have chosen to have abortions, or could be used to expose sexual orientation, the identity of people with HIV and so on.

Business and Human Rights: Improving Accountability and Access to Remedy

The role of international bodies is already under question because of its growing irrelevance as nation-states such as the United States of America, China and others grow stronger and outside of the reach of international law. Several inter-nation disputes are far from resolved. At the same time multinational corporations and global business can influence law and policy and often display a brutal disregard for human rights standards. The issue of how to make business abide by human rights is something the HRC has been attempting to tackle since 2005.

At this point the wording of the current resolution tabled at the 32nd session will not convince any Marxist of the value of neoliberalism, but then again nothing should. The concern for us looking specifically at freedom of information and expression in a post-Snowden-world, is how this resolution deals with the flow of information vis-a-vis multinational corporations. The resolution “encourages business enterprises to publically(sic) share information regarding their human rights policies and procedures to enhance stakeholder engagement with respect to business operations and preventative measures businesses can take”. But specifically with regard to enterprises that are online and multinational such as Google, Facebook etc., the resolution so far has not much, in fact nothing, to say. Such companies are an integral part of the global information economy, and this becomes especially critical in relation to conflict zones and disturbed areas such as Kashmir or Palestine, where the role of global online companies and how they deal with sensitive information about activists or ordinary people and their communications is of grave importance. The HRC will again meet later this year on this resolution and hopefully then there will be some change in their take on online global business.

With regard to technology related violence against women (TRVAW), APC–WRP has done a study on legal and corporate remedies that show that some companies do have policies and procedures to deal with TRVAW but there is no transparency. This HRC resolution is specifically about transparency and remedy, but it makes no specific reference to accountability of businesses in relation to TRVAW or in fact any kind of online harassment or violence that targets individuals, nor does it establish just standards for remedies and how can they be accessed. [3]

The broader role of business with relation to human rights, free speech and information flows is also examined by David Sullivan on the APC blog, along with a report on the ways in which this resolution on the role of companies can be made to play a more effective role in relation to offences, violence and right to privacy online. Sullivan states in the preamble to his report that, “When weighing how to work with governments to hold companies accountable while also collaborating with companies to press against government overreach, civil society organisations must consider whether a global treaty process will contribute to or detract from other efforts to protect and respect the rights of users who face more threats from more governments and companies than ever around the world.” [4]

The promotion, protection and enjoyment of human rights on the Internet

This resolution was definitely the most detailed one that dealt with issues of human rights, free speech and access to the internet. It however doesn’t add much to what existing international laws already state.

The specific reference to human rights on the internet is however helpful and will highlight the varied ways in which old and newer forms of violence and exclusion take place online. A report must be prepared as per this resolution to be presented by the 35th session of the HRC that looks specifically at the digital divide along the axis of gender. The resolution acknowledges that people are incarcerated and punished for exercising their free speech online and this must be condemned. It mentions that the internet can be a tool to foster civil society participation and thus should be global, open and inter-operable, while also ensuring that everyone has the right to privacy and free expression.

Feminist Principles of the Internet: The internet is a space where social norms are negotiated, performed, and imposed, often in an extension of other spaces shaped by patriarchy and heteronormativity. Our struggle for a feminist internet is one that is a continuum of our resistance in other spaces, public and private.

Deborah Brown reports for APC on the HRC resolution on human rights on the internet: What really happened?. Deborah Brown explains what happened with the alleged hostile amendments and why they were considered hostile, especially when proposed amendments to the HRC on the language of access and human rights on the internet actually tones down on what is already available through other international laws and resolutions.

Addressing the impact of multiple and intersecting forms of discrimination and violence in the context of racism, racial discrimination, xenophobia and related intolerance on the full enjoyment of all human rights by women and girls

In furtherance of the intention of the HRC to address multiple and intersecting forms of discrimination, this resolution looks particularly at racism, xenophobia and other kinds of related intolerance and the impact it has on women and girls. A report will be prepared for the UN’s 36th session on the topic. The resolution takes into account differential access to justice, health, social services, education and child protection services, and also human rights of women and girls. The term “related intolerance” could be expanded to include caste and ethnicity, but it is not explicitly mentioned here. Neither is the fact that many forms of oppression and violence extend to online spaces as well.

The 2014 Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related intolerances cites the Association for Progressive Communications (APC) and Bytes for All (B4A), Pakistan as leaders in working to protect freedom of expression online, strengthen the digital security of human rights defenders and end gender-based violence online. The report highlights the proliferation of technology, especially the internet, as a vehicle for propagating hatred and intolerance but also points to opportunities provided by the internet to build a culture of understanding and respect for diversity.

Accelerating efforts to eliminate violence against women: preventing and responding to violence against women and girls, including indigenous women and girls.

In December 2015, the popular and liberal Prime Minister of Canada announced that there would be a study into the epidemic of missing and murdered aboriginal women in Canada. One of the startling findings is that aboriginal women are three times more likely to be murdered by a stranger than other Canadian women [5]. The HRC passed a resolution that deals with the vulnerability of indigenous women and girls.

There is particular mention of the discrimination and violence faced particularly by indigenous women and girl human rights defenders, including online violence. But in relation to indigenous women and girls there is no mention of the role of technology or internet in gender based violence.

Still this reference to online violence in the HRC resolution does bode well for a specific resolution on TRVAW in the future that is applicable to all women. Increasingly there are more references to the role of internet and technology as platform and tool where violence, discrimination and exclusion continue to persist. This resolution also directly follows up on previous resolution in 2013 by United Nations General Assembly UNGA Promotion of the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms: protecting women human rights Defenders, that calls upon states to exercise due diligence in preventing violations and abuses against WHRDs which occur both online and offline.

“Feminist Principles of the Internet: We call on all internet stakeholders, including internet users, policy makers and the private sector to address the issue of online harassment and technology-related violence. The misogynistic attacks, threats, intimidation, and policing experienced by women and queers is real, harmful, and alarming, and are part of the broader issue of gender-based violence. It is our collective responsibility to address and end this.”

The Report of the Special Rapporteur on violence against women, its causes and consequences does take into account online violence, and also points towards the root causes of such violence and discrimination. The report by Dubravka Šimonović notes the importance of capacity-building for legal professionals and law enforcement officials, including members of the police, the prosecution and the judiciary, and social workers, on regional and international human rights instruments and institutions, in particular with regard to women’s human rights and violence against women. Flavia Fascendini reports for APC on the possible impact of the Special Rapporteur’s report⁶.

Reports before the HRC

The UN Working Group on Discrimination against Women also submitted to the Human Rights Council their report on discrimination with regard to health and safety that looks at various facets of access to health through the life cycle of a woman. The resolution doesn’t make any specific reference to online or technology related violence against women, but is broad in its ambit and covers many necessary aspects of gender and access to health care. The other related report that connects to gender and human rights, is that on fundamentalism and its impact on the rights of freedom of peaceful assembly and association. The report makes the argument that under existing rights in the ICCPR (civil and political rights) fundamentalism(s), whether political, religious, market, cultural or nationalist, do impact on the right to peaceful assembly and association. This in turn has implications for all political and social movements for human rights in different countries, and especially for women who might be facing the brunt of cultural and religious nationalism. However there is the question of interference via a framework that is determined by the global North’s understanding of human rights and development, and how to intervene in countries in the global South [7]. On this note perhaps it is now important to look at the one resolution on sexuality and gender that caused division and debate at the HRC, with 18 countries voting against and 6 abstaining [8].

Protection against violence and discrimination based on sexual orientation, and gender identity

In the wake of the Orlando massacre at a gay bar in the United States of America in which mostly Latino and people of colour were killed, the Human Rights Council passed a historic resolution on sexual orientation and gender identity (SOGI). One major aspect of the resolution is the setting up of the International Expert on sexual orientation and gender identity who would report in relation to these issues to the HRC. Seemingly this move is welcome and would bring offences related to sexual orientation and gender identity at least on par with gendered crimes faced by women, within the framework of international laws. Latin American countries particularly played a huge role in pushing for this resolution, while many countries where homosexuality and being transgender is still a crime voted against or abstained from voting on this resolution. A lot has been made of the potential of the BRICS emerging superpowers (namely Brazil, Russia, India, China, South Africa) but even as their economic power is growing, neither India, China nor Russia seem particularly interested in establishing credibility via their human rights records. [9]

All African countries in the HRC either voted against or abstained from the vote, including South Africa which abstained. The delegate from South Africa, Nozipho Mxakato-Diseko stated that while SA stood by its constitutional safeguard against discrimination, this resolution was divisive and an “arrogant approach”¹⁰. The most profound and thoughtful voice on the SOGI resolution was that of the Coalition of African Lesbians – We must remember: we are more than that stated that often LGBTQIA people are granted rights at the expense of other hard won rights and freedom. CAL stresses that this resolution actually presents a dilemma to sexuality movements, if the interests of LGBTQIA people can be tabled at a global level at the HRC, while the continued militarization of Africa goes unaddressed or political, social, economic unrest gives birth to fundamentalisms everywhere.

“The SOGI expert is a one-UN-size-fits-all solution to a grave problem, suggesting that people abide by a fairly standardized idea of what sexuality and gender rights should be and what they should look like.”

This articulation reveals a learning from the history of colonial exploitation and everyday violence, discrimination and exclusion faced by sexuality based movements and those outside of mainstream and cis-gendered understandings. The Coalition of African Lesbians should be heard at supersonic volumes even in their simply stated aspirations – “We are asking to be seen as people, as a movement, as a collection of movements, that care about other movements, as people who are invested in the well being of all people. Not a thematic area.” In Asia where in spite of a long and dire history of hierarchy and discrimination, the sexuality movement is mired in its own variant of casteism, bigotry and especially exclusion of their own trans siblings. India abstained despite having a prominent voice on the 47-nation human rights council that was voting on the issue. Dhrubo Jyoti’s analysis of India’s abstention emphasises that the SOGI abstention was indicative of more than just India’s stand on sexuality and gender. The abstention came right after a failed bid to join the Nuclear Suppliers Group, and India under the prime ministership of Narendra Modi is not overly concerned about their human rights record per se, not just in relation to LGBTQIA people but other minorities and communities in the country.While a HRC resolution on sexual orientation and gender identity is welcome, what remains to be seen is whether it will have any impact or connection to the ground realities of people who face sexuality and gender related discrimination. As such the term ‘gender identity’ is not as wide as gender expression and leaves out a range of trans people whose daily life and language for gender expression does not sit easily with the framework of identity that is familiar in relation to sexuality in countries in the global North. It also remains to be seen whether this will further an agenda of interventionist and even military occupation of places in Middle East and North Africa.

There are fundamental problems of violence, discrimination, even poverty, exclusion, health issues that are faced by LGBTQIA people all over the world that do need to be addressed but these cannot be easily separated from the societies in which they live and the multiple, intersecting forms of discrimination, violence and exclusion they may be facing. The SOGI expert is a one-UN-size-fits-all solution to a grave problem, suggesting that people abide by a fairly standardized idea of what sexuality and gender rights should be and what they should look like.