Defending the Rights of LGBT Individuals in South Asia (Part 4): Actualising Human Rights

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.

In the South Asian context, human rights issues related to SOGI have been contested largely in the constitutional courts. There has been significant advance in recognition of transgender people’s rights in many countries. The Supreme Court of Nepal began this trend in 2007 by directing the government to recognize a third gender in citizenship documents. In 2009, the Supreme Court of Pakistan directed the government to provide a third gender option in national identity cards in order to allow transgender people to vote. In 2014, the Indian Supreme Court directed the government to officially recognize transgender people as a third gender and to formulate special programmes to support their needs. The Bangladesh government recognized transgender people’s voting rights in 2009, and in 2013 it legislated to recognize hijras as a third gender, with concomitant entitlements to identify as such in identity documents. As mentioned earlier, the Delhi High Court in India decriminalised ‘sodomy’ in 2009, only to have its decision overturned by the Supreme Court four years later.

Another potential site for LGBTQ people to ensure the upholding of their rights are the NHRIs that exist in all the South Asian countries but one – Bhutan.

Information on the NHRIs is available on the following websites:

• For Afghanistan: http://www.aihrc.org.af/
• For Bangladesh: http://www.nhrc.org.bd/
• For India: http://nhrc.nic.in/
• For Nepal: http://www.nhrcnepal.org/
• For Pakistan: http://www.mohr.gov.pk/
• For Sri Lanka: http://hrcsl.lk/

Many of the aforementioned reports document the ways in which NHRIs in respective countries have supported SOGI-related human rights concerns. They also speak to the limits and challenges of NHRIs in addressing these human rights issues, while recommending ways and strategies to advance SOGI-related rights in these fora.

Many NHRIs are limited in their understandings of SOGI-related issues, and in their ability to build the capacity of their partners, undertake research on human rights violations, act as an agent to educate society on SOGI issues, monitor violations and advocate for LGBTQ people. An NHRI Scorecard in relation to SOGI-related human rights developed by Outright International provides a broad overview of NHRI performance on these aspects.[1]

Yet, NHRIs in South Asia have demonstrated some amount of engagement on SOGI issues. For instance, the NHRI in India has engaged somewhat on these issues through its attention to human rights in the context of HIV. Through this engagement it recommended the decriminalisation of same-sex sexual activity based on a national conference in 2000. State or provincial human rights institutions have been pro-active in engaging with transgender people on their human rights concerns: show cause notices have been served on a college who discriminated in housing towards a teacher who was transgender; abuse of and violence against hijras at a police station triggered a directive to the police commissioner to submit a report on the incident; the right to vote claimed by hijra initiated a notice to the state government to reply to this demand and explain the action to be taken to act on the same.

Bangladesh’s NHRI (JAMAKON) has recognised that the right to non-discrimination extends to transgender people too, and its complaint form recognises genders beyond the male-female binary (similar to the Nepal NHRI). In its report as part of Bangladesh’s UPR process, JAMAKON advocated for the protection of people of diverse SOGI from discrimination. Thereafter it began to receive complaints of violations related to SOGI. It has acted in multiple cases – to ensure the reinstatement of person to his job after being subject to SOGI-related discrimination, to stop police harassment, and to direct medical authorities to provide gender identity change certificates. JAMAKON drafted an anti-discrimination law with the Law Commission, which included SOGI-related non-discrimination guarantees. Its present Strategic Plan recognises LGBTQ people as a key focus. In collaboration with Bandhu Social Welfare Society, JAMAKON set up a telephonic legal aid service, and developed a manual on SOGI issues and explaining its mandate, the nature of human rights violations and its complaints mechanism.

Nepal’s NHRI has robustly engaged with SOGI issues, having created a focal point on LGBTQ issues in 2005, and reflected this commitment in its past Strategic Plans, while also instituting an internship for a person from the LGBTQ community. Nepal’s NHRI also committed to working with the police in cases of arrests of LGBTQ people and advocating for the protection of SOGI-related human rights (including representing the security concerns of transgender people who sought to vote but faced harassment at booths at the time of elections). When people of diverse SOGI were arrested and detained in 2007, the NHRI appointed a team to monitor the situation.

Sri Lanka’s NHRI (HRCSL) has proposed amendments to laws in order to recognize diverse gender identities while seeking identity documents. This arose from a complaint of a transgender person who faced hurdles and harassment in changing details on her birth certificate, national identity card and passport. The process of engagement involved discussions with civil society groups, and representations to and discussions with the government based on the concerns expressed by the groups. The HRCSL then proposed a template for a gender certificate based on expert local and international guidance and submitted the same to the government for enforcement. The importance of birth certificates in Sri Lanka has prompted the HRCSL to plan training and awareness programmes on the rights of transgender people.

The NHRIs in Pakistan and Afghanistan have not engaged on SOGI-related rights issues. In Pakistan, the NHRI focuses mainly on women’s and children’s issues, and despite invitations by SOGI-related organizations seeking engagement the same has not been forthcoming. As mentioned earlier, Bhutan does not have an NHRI.

+ Part 1: Introduction

+ Part 2: Examining International Commitment of South Asian Countries in Defending LGBT Rights

+ Part 3: Measuring National Pledge of South Asian Countries in Defending LGBT Rights

+ Part 5: Mandates and Functions of NHRIs in South Asia