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10 Oct 2011

Asian experts endorse sexual orientation, gender identity rights

Prof Douglas Sanders reports on the recently held 1st Biennial Conference of the Asia Pacific Forum of National Human Rights Institutions attended by representatives of the national human rights institutions (NHRIs) established by the governments of Afghanistan, Australia, India, Indonesia, Jordan, Malaysia, Mongolia, Nepal, New Zealand, Palestine, Philippines, Qatar, South Korea, Thailand and Timor Leste.

September 7, 2011. We were in the immense ballroom of the five-star Shangri-la Hotel in Bangkok. Crystal chandeliers sparkled above. Two hundred people were there. Professor Vitit Muntarbhorn, perhaps the best known expert on international human rights law in Asia, gave a report on issues of sexual orientation and gender identity.

Professor Vitit Muntarbhorn

In the inner circle of the audience were representatives of the national human rights institutions (NHRIs) established by the governments of Afghanistan, Australia, India, Indonesia, Jordan, Malaysia, Mongolia, Nepal, New Zealand, Palestine, Philippines, Qatar, South Korea, Thailand and Timor Leste. Associate members are the commissions in Bangladesh, Maldives and Sri Lanka. A bit behind were seats for representatives of the governments themselves. Further back were “civil society” people from a variety of non-governmental organisations. Professor Vitit Muntarbhorn presented the conclusions of a report by the Advisory Council of Jurists, a body composed of academics and judges.

Some in the audience knew that public discussion of sex and gender diversity was impossible back home. Yet no one suggested that the issues involved were not legitimate human rights issues. Some NHRIs, notably those from Korea and Thailand, could look back on a history of positive advocacy on the issues and established links with LGBT NGOs.

The organisation holding the meeting was the Asia Pacific Forum of National Human Rights Institutions, or APF for short. It is a member of the International Coordinating Committee for National Human Rights Institutions (the ICC), which has an office and one full-time staff person in Geneva, where most UN human rights meetings take place.

To be a member of the APF (and in turn the ICC) a NHRI must comply with the Paris Principles established by the UN. The NHRI must be independent, have a broad mandate, and be advisory (not adjudicative). As an expert advisory body, its role is distinctly different from the judicial, legislative and executive branches of government.

NHRIs can consider national, regional and international human rights law in deciding whether a law or practice complies with human rights standards. NHRIs are a ‘bridge’ between the international human rights system and the domestic legal order. In similar ways international trade law and international environmental standards now reach into domestic legal systems, though through different mechanisms.

NHRIs have grown up over the last 30 or 40 years. International standards for them were formulated in the Paris Principles of 1993. Now the UN recognizes (a) the governments of states (like Thailand or Singapore), (b) intergovernmental agencies (like the International Labor Organization), (c) NHRIs, and (d) NGOs. Each can participate in UN meetings, subject to specific rules for each category.

Are NHRIs actually independent? They are created by governments. Their members are usually selected by the executive branch of government. That is true of judges as well. Often courts behave in quite independent and expert ways. Equally, some NHRI members are independent and expert. And, like judges, some are not.

How did the APF come to take up sexual orientation and gender identity issues? The story is not complicated.

In 2006, 10 years after the APF was established, a group of experts drafted the Yogyakarta Principles on the application of human rights principles to issues of sexual orientation, gender identity and intersexuality. Some of the experts involved were individuals who had worked within the UN system as independent experts. Others were academics, judges or seasoned NGO figures.

The Yogyakarta Principles were written in the language of the UN human rights system. The document is aimed at other experts and at governments. That was exactly the right language to convince NHRIs that legitimate human rights issues were involved. No accusations. No emotional accounts of violations. No weeping and wailing. Just the legal principles. Just the facts.

Discussion on the Yogyakarta Principles began within the APF quite quickly, and the organisation held a workshop on the Principles in Java in 2009. Participants condemned discrimination and stigmatisation, and asked the APF to examine the issues more closely. Three things happened. Projects in five member countries were funded, involving consultations with LGBT organisations and groups. The Advisory Council of Jurists was asked to report. A background study on the issues in member countries was commissioned (with the Alternative Law Forum in Bangalore, India, selected to write the report).

These initiatives came before the annual APF meeting in 2010, but only with preliminary conclusions from the studies. The full reports were available at the end of 2010. The September, 2011, APF meeting in Bangkok, was the first full presentation of the issues and the reports.

Professor Vitit Muntarbhorn teaches at Chulalongkorn University and sometimes in the human rights program at Mahidol University, both in Bangkok. Over the years he has been involved with refugee issues, indigenous peoples, child rights, human rights in North Korea and sexuality issues. He was the opening plenary speaker at the 2005 Bangkok conference, “Sexualities, Genders and Rights in Asia,” which attracted over 500 academics and activists. He was co-chair of the expert group that drafted the Yogyakarta Principles. He was the lead figure for the APF Advisory Council of Jurists in their report commissioned in 2009, along with experts from Australia and New Zealand. 

When human rights commissions in Asia first dealt with sexual orientation and gender identity issues – in cases in India and the Philippines – they dismissed complaints, not taking them seriously. Those bad old days are over. The background study and the ACJ report are available on the website of the APF. Lead roles have been taken by the NHRIs in Korea, Thailand and the Philippines. That leadership should be followed, over time, by the other 15 NHRIs, spread over the largest continent in the world, stretching from the Mediterranean to the Pacific. 

For the ACJ Report and the Background Paper, go to www.asiapacificforum.net/support/issues/acj/references/sexual-orientation, and under downloads on the right side, choose ACJ Final Report 2010 and ACJ Background Paper.


1. 2011-10-10 21:07  
Good to see, but what is a SOGI right? I'm guessing it means sexual orientation, gender, and intersex.

It's good to have experts supporting us, but please avoid jargon when writing for the public!
2. 2011-10-11 12:55  

I am glad that Asia Pacific nations are looking into human rights (HR) based on SOGI (sexual orientation/gender identity) . There are a few implications for the LGBT community:

1) Gay activists should participate actively on the platforms provided by national human rights institutions (NHRIs) to lobby for more recognition of LGBT rights. Since our rights have now been recognised as a legitimate area of HR, and governments & the United Nations have supported NHRIs, using such platforms to voice out our concerns can be more effectual.

2) SOGI rights had been recognised in response to abuses, which led to the formulation of Yogyakarta Principles. This means that the LGBT community should participate actively to document and report abuses based on SOGI so that we can expect increased response to, and recognition of, our problems. LGBT media such as Fridae should play an active role in this process. For example, Fridae could report more factual cases of less-known but serious abuses.

3) We must show the benefits that may be derived from reducing discrimination, and the price that we are paying by continuing to discriminate. We should demonstrate, using recognized means of documenting empirical evidence, the links between discrimination and its social and economic costs. For example, labour economists had demonstrated the economic cost of discrimination of all forms (e.g. based on colours, sexual orientation, gender) (econ costs). Anti-HIV organizations recognize that discriminative laws such as s377a and stigma obstruct the fight against HIV (public health costs). These costs (pains) should be demonstrated to policymakers and judges (e.g. in cases of legal challenges to the constitutionality of anti-gay laws). There are many economists, educationists, public policy analysts, sociologists and public health experts in the United States who had successfully argued the case for reducing discrimination. To do likewise in Asia Pacific, beside having NHRIs, we also need a regional think tank of such experts to argue the same case here more convincingly.

4) There are two crucial obstacles in promoting human rights here: low political participation; IT and general illiteracy. Often, the latter obstacle is also the cause of the former. As such, beside active participation in NHRIs and creation of an Asia Pacific LGBT think tank as suggested, we also need impact investment to empower the LGBT community by promoting IT and general literacy amongst them. I am glad that LGBT Capital is looking into impact investment in Asia Pacific's LGBT market. I hope that it could develop a win-win investment plan that is both profitable and LGBT-empowering as described. With more members of the LGBT being IT-literate and, preferably, English-speaking and skilled, we can encourage more political participation. Anti-STD campaigns are also likely to be more successful in regions where general and IT literacy is higher. Likewise, the pink economy can grow much larger if there are more skilled, literate members of the LGBT community.
3. 2011-10-11 13:59  

You rock. :D

修改於2011-10-11 14:00:24
4. 2011-10-13 08:22  
Blah blah blah. Until Dr. Vitit comes out of the closet, he has no credibility with me.
5. 2011-10-14 11:19  
Who are they to endorse anyone's sexuality? How about we don't endorse their sexuality? Every person is what he or she is, no endorsement necessary......
6. 2011-10-18 17:43  
This certainly sounds encouraging, where is the evidence that Governments are listening to their respective NHRIs?

Comments from #2 are excellent; participation, awareness and education are all weapons against ignorance.

If LGBT people don't say/do anything then we won't have a voice and we won't be heard and we will be ignored/overlooked and our suffering will continue, despite UN sanctioned committees chaired by the great and the good.
7. 2011-10-24 00:41  
Where do you live ?On this planet ? In a country which gives no recognition to any rightts except of straight religious men ?
The 'recognition' is to bring us handicapped people (handicapped by rightist, dictatorial and religious governments (Republicans in the States) into the light of societies as equals. At the bottom ( so to speak) and at the top(drool) it all has to happen.
8. 2011-10-24 00:43  
Rui. Have you something of interest to say?. You may have credibility with your mother .?.mm.. possibly not...
9. 2011-10-24 19:27  
Thanks :)

Did you read the title carefully? They are talking about endorsing RIGHTS, not sexual orientation & gender identity. The gay community do need RIGHTS, that is, freedom guaranteed by laws.




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