Supported under Multi-country South Asia Global Fund HIV Programme (MSA), this article is part of “Defending the Rights of LGBT Individuals in South Asia: Stories of Survival and Justice” series – a documentation of relevant international and national human rights instruments, principles and legal obligations of the South Asian countries, as well as their good practice, in addressing the rights violation faced by South Asian LGBT persons.
The international commitments mentioned in Part 2 are further cemented at a national level through Constitutions, considered the paramount law in each nation, many of which frame international rights standards encapsulated in the ICCPR and ICESCR through actionable fundamental rights.
For instance, although Bhutan is not signatory to the ICCPR or the ICESCR, its Constitution contains judicially enforceable fundamental rights such as those of life, liberty and security of person, information, equality, privacy, legal representation, and the freedoms of speech, opinion and expression, of movement and residence, of association and assembly, and protection from arbitrary arrest or detention. These fundamental rights find mention in every other Constitution in the region, and form the firm basis on which people can claim their human rights and counter violations through judicial and legal processes. In 2015, the finalization of Nepal’s Constitution took LGBTQ people’s rights one step further – the right to equality was qualified to explicitly include gender and sexual minorities as one of the marginalized groups for whom special provisions may be made.
Seeking redress for human rights violations, or making human rights claims from the perspectives of gender identity and sexual orientation are particularly important in the South Asia context since it is a region where rights claims have been historically denied to LGBTQ people and violations have not been checked. These violations take various forms. Social taboos, religion and patriarchy influence a hostile environment, and the law often exacerbates it by placing LGBTQ people in a criminal stranglehold – colonial legacies in the form of ‘anti-sodomy’ laws criminalise same sex sexual conduct. Other than Nepal, all South Asian countries have such laws, and although India experienced decriminalization from 2009-13, the Supreme Court upheld the validity of the law thereafter.
Criminalization impedes many aspects of life – accessing health services becomes a challenge since healthcare workers may be obliged to inform police of STDs acquired through such conduct; and violence (by the police, family members, healthcare providers, the general public) directed at LGBTQ people goes unchallenged in an environment where the victim is afraid to seek redress due to his/ her / their criminalization. Indeed, these are sites from which physical and emotional violence, neglect, prejudice, blackmail and extortion emanate. Some of this translates into opprobrium and denial of opportunities and services in various spheres – education, employment, housing and health. In other cases it can lead to serious bodily injury and mental trauma. LGBTQ people and SOGI-related organizations have been threatened with or faced shutdowns, violence and arrest.Vulnerability to HIV has been greatly exacerbated due to the unavailability of health information and prophylactic commodities. For transgender people who are marginalized in these manners, begging often becomes the limited option; there too they face violence from the police. Despite the legal recognition of a third gender in much of South Asia, transgender people are denied fundamental identity rights due to poor implementation of the law or court directives. Where the law fails to recognise non-binary genders or gender reassignment, it exacerbates inequality. Criminalisation and lack of gender recognition feed the extant prejudice and stigma that transgender people endure, and fundamentally marginalize them legally, economically and socially. Lack of legal protection creates a vicious cycle that exposes transgender people to violence and discrimination, with cumulative impacts – in some cases a severe HIV epidemic among transgender communities, and in other situations phobia from their families, in educational, healthcare, and employment settings.
Vulnerability to HIV has been greatly exacerbated due to the unavailability of health information and prophylactic commodities. For transgender people who are marginalized in these manners, begging often becomes the limited option; there too they face violence from the police. Despite the legal recognition of a third gender in much of South Asia, transgender people are denied fundamental identity rights due to poor implementation of the law or court directives. Where the law fails to recognise non-binary genders or gender reassignment, it exacerbates inequality. Criminalisation and lack of gender recognition feed the extant prejudice and stigma that transgender people endure, and fundamentally marginalize them legally, economically and socially Lack of legal protection creates a vicious cycle that exposes transgender people to violence and discrimination, with cumulative impacts – in some cases a severe HIV epidemic among transgender communities, and in other situations phobia from their families, in educational, healthcare, and employment settings.
Lack of legal protection creates a vicious cycle that exposes transgender people to violence and discrimination, with cumulative impacts – in some cases a severe HIV epidemic among transgender communities, and in other situations phobia from their families, in educational, healthcare, and employment settings.
The UN Office of the High Commissioner for Human Rights prepared a report on these very issues, ‘Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity’ and presented the same at the 19th session of the UN Human Rights Council. The report of the Global Commission on HIV and the Law, “Risks, Rights & Health” spoke to the harm caused by criminal laws and discrimination directed at those in consensual same-sex sexual relations, and highlights the violation of internationally recognized human rights in the process of supporting such criminalization and discrimination. It recommended the repeal of such criminal laws and the introduction of anti-discrimination laws that disallow discrimination based on SOGI.
Human rights violations on the basis of SOGI have been documented, particularly in the context of Asia, through publications such as:
- The Asia Pacific Forum of National Human Rights Institutions (APF) and UNDP’s “Promoting and Protecting Human Rights in relation to Sexual Orientation, Gender Identity and Sex Characteristics: A Manual for National Human Rights Institutions” (2016)
- UNDP, APF and APCOM’s workshop report on “The Role of National Human Rights Institutions in Promoting and Protecting the Rights, including Health, of LGBTI People in Asia and the Pacific” (2015)
- UNDP and the International Development Law Organization’s “Regional Report: The Capacity of National Human Rights Institutions to Address Human Rights in Relation to Sexual Orientation, Gender Identity and HIV” (2013)
- IGLHRC’s “Briefing Paper: Human Rights Abuses in Asia On The Basis of Sexual Orientation, Gender Identity and Gender Expression (2000-2009)”
Click below to read the other parts of the series.
+ Part 1: Introduction
+ Part 2: Examining International Commitment of South Asian Countries in Defending LGBT Rights
+ Part 4: Actualising Human Rights in South Asia
+ Part 5: Mandates and Functions of NHRIs in South Asia
