CAN HMG MAKE A DIFFERENCE IN THE STRUGGLE TO END LGBT PERSECUTION ACROSS THE GLOBE?

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Annabel Owen
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1 CAN HMG MAKE A DIFFERENCE IN THE STRUGGLE TO END LGBT PERSECUTION ACROSS THE GLOBE? Jonathan Cooper OBE Chief Executive Human Dignity Trust Jonathancooper@humandignitytrust.org 13 July 2015, The River Room, House of Lords

THE SCALE OF PERSECUTION LGBT people living in persecutory environments: 175 million Sexual orientation or gender identity is perceived or known: 1.

2 THE SCALE OF PERSECUTION LGBT people living in persecutory environments: 175 million Sexual orientation or gender identity is perceived or known: 1.75 million (1% of the LGBT people living under persecutory conditions) Seriously harmed or threatened in countries of origin: 175,000 (1% of perceived or known LGBTI people)

3 NAMING & SHAMING THE 78 JURISDICTIONS WHICH CRIMINALISE Afghanistan, Algeria, Angola, Antigua and Barbuda, Bangladesh, Barbados, Belize, Bhutan, Botswana, Brunei, Burundi, Cameroon, Comoros, Cook Islands, Dominica, Egypt, Eritrea, Ethiopia, Gambia, Gaza, Ghana, Grenada, Guinea, Guyana, India, Indonesia (South Sumatra and Aceh Province), Iran, Iraq (status unclear), Jamaica, Kenya, Kiribati, Kuwait, Lebanon, Liberia, Libya, Malawi, Malaysia, Maldives, Mauritania, Mauritius, Morocco, Myanmar (Burma), Namibia, Nauru, Nigeria, Oman, Pakistan, Papua New Guinea, Qatar, St Kitts & Nevis, St Lucia, Saint Vincent & the Grenadines, Samoa, Saudi Arabia, Senegal, Seychelles, Sierra Leone, Singapore, Solomon Islands, Somalia, South Sudan, Sri Lanka, Sudan, Swaziland, Syria, Tanzania, Togo, Tonga, Trinidad & Tobago, Tunisia, Turkmenistan, Tuvalu, Uganda, United Arab Emirates, Uzbekistan, Yemen, Zambia and Zimbabwe

4 CRIMINALISATION OF LESBIANS 35 countries globally have laws that apply equally to lesbians. Those named and shamed are: Algeria, Antigua and Barbuda, Barbados, Botswana, Brunei Darussalam, Burundi, Cameroon, Comoros, Dominica, Eritrea, Ethiopia, Gambia, Guinea, Iran, Liberia, Malawi, Malaysia, Maldives, Mauritania, Morocco, Nigeria, Oman, Qatar, Saint Lucia, Saint Vincent and the Grenadines, Saudi Arabia, Senegal, Solomon Islands, Sudan, Togo, Trinidad and Tobago, UAE, Uganda, Yemen, Zambia There are an additional 20 countries where the law is unclear

10 DAYS CAN FEEL A LONG TIME WHEN YOU ARE BEING PERSECUTED 9 July 2015 - Kenya: Young male couple evicted from their home of two years in Nairobi after their landlord discovered they were gay 9 July

5 10 DAYS CAN FEEL A LONG TIME WHEN YOU ARE BEING PERSECUTED 9 July Kenya: Young male couple evicted from their home of two years in Nairobi after their landlord discovered they were gay 9 July Belize: Leading activist Caleb Orozco s neighbour sentenced for throwing missiles and using indecent words at him 8 July Lebanon: Two men assumed to be gay, tortured by police to force them to name other homosexuals 8 July Uzbekistan: Government moves to censor any indecent clothing, targets celebrity pop singers for promoting homosexuality Istanbul 7 July Turkey: Posters threatening gays with death appear in 7 July India: Two held for the murder of a transgender person 5 July Malaysia: Transgender Malaysians targeted as religious authorities influence grows -report 3 July Morocco: Two arrested after video emerges showing mob beating a gay man

6 THERE IS NO SUCH THING AS BENIGN CRIMINALISATION With criminalisation comes: killings and deaths: murder, homicides, suicides prosecutions and convictions; fear of arrest, detention, prosecution and conviction; arbitrary detention and police abuse and harassment even where charges are not brought or prosecutions are discontinued; police entrapment and surveillance; harassment, violence, blackmail and extortion by state and non-state actors; stigmatisation and marginalisation of LGBT people as unapprehended felons reinforcing the misapprehensions and general prejudice of the public; discrimination and denial of essential services in health, employment and housing; shame and humiliation; a culture of impunity for violent and/or property crimes and discrimination shattered families; hindering measures to stop the spread of HIV; and impairing development and poverty reduction generally.

7 THE COMMONWEALTH: PROBLEM OR SOLUTION? 80% of the Commonwealth criminalises, which represents 30% of the world s population and 60% of cases of HIV In the Commonwealth Caribbean a gay man will have a 1:4 chance of being infected with HIV. The figure is 1:15 for the rest of the Caribbean UN AIDS has stated that criminalisation both boosts and causes HIV infections Could the Commonwealth be doing more?

8 1990: JURISDICTIONS WHICH CRIMINALISED OR PERMITTED CRIMINALISATION

9 2015: JURISDICTIONS WHICH CRIMINALISE

10 DOES LITIGATION WORK? The reality is, in most jurisdictions reform will be litigation led. The cases will be brought by local activists. The consequences of litigation include: Already vulnerable people are exposed Who owns the litigation? Cost implications How to ensure the best legal arguments Democratic legitimacy What happens when litigation fails?

11 AN OVERVIEW OF LITIGATION TO DECRIMINALISE CONSENSUAL SAME-SEX ACTS Successful challenges Setbacks Ongoing cases United Kingdom (N.Ireland) Botswana Belize Ireland India India Australia (Tasmania) Singapore Jamaica South Africa Zimbabwe Malawi Ecuador Nepal Fiji United States Cyprus Turkish Republic of N. Cyprus* * Case filed before the ECHR. Offending provisions repealed

12 SUCCESSFUL LITIGATION ON KEY RELATED ISSUES INCLUDE: United Kingdom (age of consent, military service, trans rights) Austria (age of consent) Hong Kong (age of consent/ criminalisation of acts in public) Colombia (employment discrimination, military service) Peru (military service) Canada (excluding sexual orientation from non-discrimination laws) Trinidad and Tobago (excluding sexual orientation from nondiscrimination laws) Russia (freedom of assembly or association) Moldova (freedom of assembly or association) Philippines (registration of a political party) Chile (child custody) Malaysia (criminalisation of cross-dressing) Kenya (registration of LGBT organisation) Botswana (registration of LGBT organisation)

13 THE (VERY BRAVE) MAN IN WHOSE NAME THIS ALL HAPPENED Jeff Dudgeon

14 AND THE (EXCEPTIONAL AND OUTSTANDING) WOMAN WHO CREATED THE FRAMEWORK WHICH ALLOWED IT TO HAPPEN

15 HUMAN RIGHTS TO THE RESCUE The UDHR Preamble Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world Article 1. All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Article 2. Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind Guess What? Believe it or not, everyone includes LGBT people.

16 WHERE WOULD WE BE WITHOUT EUROPE? Dudgeon v UK Norris v Ireland Modinos v Cyprus Sutherland v UK ADT v UK Smith & Grady v UK H C v Turkey (N Cyprus) Cases on an equal age of consent (mainly against Austria) Membership of the Council of Europe requires decriminalisation Christine Goodwin eventually established the rights of trans people

17 GLOBAL BEST PRACTICE Legislation must be the preferred option: Bahamas New members of the Council of Europe Turkish Republic of Northern Cyprus New Zealand Canada São Tomé and Príncipe Palau Mozambique Angola?

18 BARRIERS TO DECRIMINALISATION: FACTORS ASSISTING PERSECUTION Lack of democracy Poor rule of law Lack of funding Lack of international input

19 THE ROLE OF DEMOCRACY There is an intrinsic link between a lack of democracy and criminalisation Economist Intelligence Unit survey of the democratic credentials of 165 states (2014): 51 Authoritarian regimes, of which 29 criminalise 37 Hybrid Regimes, of which 14 criminalise 54 Flawed Democracies, of which 13 criminalise 25 Full Democracies, of which 1 criminalises

20 THE ROLE OF DEMOCRACY 60% Propensity to criminalise consensual same-sex intimacy by regime type 50% 40% 30% 20% 10% 0% Authoritarian Regime (29/51) Hybrid Regime (14/37) Flawed Democracy (13/54) Full Democracy (1/25)

21 THE RULE OF LAW Lack of clarity and certainty of laws: carnal knowledge against the order of nature gross indecency Arbitrariness of criminalising consensual behaviour Lack of equality before the law: Uganda, LGBT people held not to enjoy freedom of association and speech to engage in advocacy Criminalisation breaches domestic constitutions and international treaty law that protect human rights: privacy, dignity, non-discrimination, degrading treatment (?)

22 FUNDING Grassroots activists starved of funds Trend to refuse LGBT groups from registering limits funding options: SMUG in Uganda But, greenshoots in Botswana and Kenya, where decisions to refuse registration challenged Funding international initiatives, NGOs and charities

23 INTERNATIONAL INPUT LGBT people exist in every population, but as a small and marginalised percentage External factors kick-start change: Northern Ireland (UK), Ireland, and Cyprus: decriminalised after judgments from European Court of Human Rights Russia, CIS and much of Eastern Europe: decriminalisation a condition of membership of the Council of Europe Australia: fully decriminalised after referral of Tasmania s laws to the UN Human Rights Committee USA: federal decriminalisation via US Supreme Court s exceptional reliance on foreign case law British Overseas Territories: mandated from Westminster

24 SIX REASONS FOR A SPECIAL ENVOY 1. Clear signal that LGBT rights are human rights 2. LGBT rights must be mainstreamed through multiple UK Government policies 3. Close coordination is required to maximise the effect of the UK Government s policies on LGBT rights 4. History shows that a helping hand from outside is needed 5. The UK, in particular, has the means and obligation to advocate for repeal of criminalising and persecutory laws 6. A Special Envoy can act independently and impartially from day-to-day diplomatic and departmental work

25 TEN POLICY RECOMMENDATIONS 1. Make ending persecution of LGBT people a stated policy of the FCO s programme 2. Mainstream the protection of LGBT rights across the FCO s targeted thematic areas 3. Support and encourage the setting up of an All Party Parliamentary Group to end the persecution of LGBT communities around the globe ( ) 4. Facilitate better inter-departmental communication within the UK government

26 TEN POLICY RECOMMENDATIONS 5. Regarding LGBT asylum seekers, acknowledge that persecution is not limited to actions by the state. The asylum process should be made less traumatic for those going through it 6. Continue to take a leading role within intergovernmental organisations to tackle LGBT persecution worldwide 7. Continue to provide support to LGBT rights organisations in the UK and overseas via the UK s missions abroad

27 TEN POLICY RECOMMENDATIONS 8. Consider appointing a Minister, unit or Special Envoy for the human rights of LGBT people 9. Establish a framework where Ministers can consider imposing visa restrictions on those who actively persecute or promote laws and policy designed to persecute LGBT people 10. Ensure the UK retains a robust domestic human rights framework

28 Our Heroes

A) List of third countries whose nationals must be in possession of visas when crossing the external borders. 1. States

Lists of third countries whose nationals must be in possession of visas when crossing the external borders and of those whose nationals are exempt from that requirement A) List of third countries whose