On July 7, at the end of the 50th session of the Human Rights Council, member countries will vote on whether to renew the mandate of the Independent Expert on Sexual Orientation and Gender Identity.
This mandate was first established through a hard fought vote in 2016 and again narrowly renewed in 2019. The support for the mandate has come from the Latin American region, the European countries as well as Asian countries such as Japan, South Korea, Vietnam, and South Africa from the African group. The opposition was spearheaded by the African Group as well as the Organisation of Islamic Conference. India has generally abstained from the vote.
Over the last six years, the mandate has shed a consistent spotlight on human rights violations on the grounds of sexual orientation and gender identity. One of the important ways in which sexual orientation and gender identity has become a part of the broader human rights discourse is through the reports produced by the Independent Expert.
In a path-breaking report, Independent Expert Victor Madrigal-Borloz challenged one of the fundamental tenets of socio-cultural life in the modern world: the link between the sex one is born into and the gender assigned at birth.
Referencing a range of sources, Madrigal makes the case that to persist with the binary of dividing the world into male and female and assigning gender based on the sex into which one is born into, is to commit violence on all those who fall outside the norm, such as intersex people.
In other reports, the Independent Expert has highlighted the gross human rights violation of existing anti-sodomy laws, the necessity of anti-discrimination laws as well as the need to recognise gender identity. Through these reports, the rights of LGBTQIA individuals has become a part of the mainstream conversation at the level of the United Nations.
The mandate also has the authority to undertake country visits, and over the last six years the mandate holder has visited countries as diverse as Ukraine, Georgia, Argentina, Mozambique and Tunisia. The mandate has also got countries such as Russia, South Korea and Brunei to respond to individual “letters of allegation” of human rights violations on grounds of sexual orientation and gender identity.
To take just one example, an Indonesian group filed a letter of allegation regarding the alleged arbitrary arrests, detention and ill-treatment of twelve transgender women, in Aceh province. The Indonesian government responded to the allegation sent by the Independent Expert stating that “there should be no discrimination against minorities in Indonesia” and stressed on the responsibility of the Indonesian police to “protect anyone who feels threatened due to his or her sexuality”.
At the international level, violations on the grounds of sexual orientation and gender identity are being taken up seriously and should move forward. It is imperative that the mandate be renewed at the upcoming vote at the Human Rights Council. As a member of the Human Rights Council, India can vote to renew the mandate, vote against the mandate or simply abstain.
When the resolution proposing the independent expert was moved in 2016, India abstained. The reason for abstention, articulated by the External Affairs Ministry, was that Section 377 of the Indian Penal Code outlawing “unnatural sex” was on the statute books and the matter was sub-judice. In 2019, when the mandate came up for renewal in the Council, India again abstained, without providing any reason. On July 7, what will India do?
If one goes by the logic that a constitutional orientation should structure foreign policy, then the way India should vote is clear. The Supreme Court decisions in Navtej Johar vs Union of India and NALSA vs Union of India have unambiguously recognised that the LGBTQIA community has the fundamental right to dignity, self expression, equality and non-discrimination.
NALSA refers to the National Legal Services Authority. In the 2014 judgement, the Supreme Court recognised the right of transgender individuals to determine their gender identity. Any measures at the international level that takes forward this constitutional vision should be wholeheartedly embraced by the Indian government.
When the vote takes place on July 7, we will know whether the Indian government accepts the logic of Navtej and NALSA and votes in favour, or rejects the logic of Navtej and NALSA and abstains.
Arvind Narrain is a lawyer and writer based in Bengaluru.