Identity Conference, Toronto

Address by Victor Madrigal-Borloz, United Nations Independent Expert on protection from Violence and Discrimination based on Sexual Orientation and Gender Identity  
24 May 2018

Dear friends, good morning.

*   *   *

Dear friends,

Chers amis,

“cultural criminalization stands as an end in itself, successfully dehumanizing or delegitimizing those targeted though no formal legal charges are brought against them,” or creating a perceptual context in which direct criminal charges can more easily follow.”

*   *   *

a. verification of the facts and full and public disclosure of the truth; 
b. official declaration or judicial decision restoring the dignity, the reputation and the rights of the victim; 
c. public apology, including acknowledgement of the facts and acceptance of responsibility; 
d. commemorations and tributes to the victims; and
e. inclusion of an accurate account of the violations that occurred in international human rights law and international humanitarian law training and in educational material at all levels.

“the right to know the truth about the facts, circumstances and reasons why the violation occurred. The right to truth includes effective, independent and impartial investigation to establish the facts, and includes all forms of reparation recognised by international law. The right to truth is not subject to statute of limitations and its application must bear in mind its dual nature as an individual right and the right of the society at large to know the truth about past events.”

a. the presence of the highest authorities,
b. ample coverage of the media,
c. presence of victims or family of victims,
d. acknowledgement of responsibility,
e. explicitly request forgiveness.

*   *   *

1. I was delighted by Egale’s invitation to share with you some thoughts today, and I feel privileged to be part of the conversation taking place during this exceptional conference. Events where activists come together to share their knowledge and build joint global voices are evidence of the vital role of civil society in the processes of eradication of violence and discrimination. This is ever more important in times where deliberate actions are being taken in different corners of the world to reduce the space of civil society. We must never forget that, like other human rights movements, all significant developments in this path that we are following have had the contribution of CSOs, and oftentimes have been born within its womb.
2. I am thrilled to be standing in front of you today as the custodian for one such development, that I consider to be a global patrimony: the mandate of the United Nations Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity.
3. One would hope that the creation of such a mandate would be evidence of a consensus of the international community about an indispensable need to enhance effective action to protect persons from violence on the basis of sexual orientation or gender identity. Alas, if the daily acts of violence around the world were not sufficient to dispel this hope, only last week we were treated to the spectacle of States in denial – or in frank opposition – to their essential duty to ensure a better life to the very people that they are meant to serve. Make no mistake: the vicious cycle of hatred is being fuelled every day, in every corner of the world.
4. Treaty Bodies and Special Procedures started the protection around sexual orientation with work on criminalisation that was firmly grounded on privacy and with precedent such as Toonen, the 1984 case in which the UN Human Rigths Committee ruled that sexual discrimination is a protected category under applicable anti-discrimination principles,an approach that created some struggles in the Cairo and the Beijing World Conferences. We all know of the historic plea of Beverley Ditsie Palesa, pitifully disregarded, to “remove the brackets” around sexual orientation in the draft declaration and platform for action in Beijing. Now, while Toonen is ancient in terms of precedent, I find that tension still ubiquitous today: it informs some of the most salient philosophical challenges of my mandate. As one scholar from the global south put it to me recently: “in order to fight violence, women rights groups have been historically demanding that the States come into the bedroom; to achieve the same objective, gay rights groups have historically demanded that it stay out”.
5. Ms Palesa’s powerful call was, in my view, a call for a stronger framing within the theory of discrimination and this has been the path followed in the global arena. We find an announcement of it in the ill-fated Brazilian resolution of 2003 and a very significant milestone in Human Rights Council resolution 17/19, presented by South Africa, and which expressed concern for violence and discrimination on the basis of SOGI. This resolution provided the ground for the two excellent reports from the Office of the High Commissioner for Human Rights in 2011 and 2015. This reinforcement in the work of the UN has been also framed by the plethora of statements by United Nations mandate holders and treaty bodies.
6. In my view, there are strong reasons to consider that the creation of the mandate signals a third stage in the work on sexual orientation and gender identity within the UN. Indeed, the mandate has a frame conducive to satisfying the call made by many scholars to link this mandate in a stronger, more integral and coherent manner, to other constructs and concerns. One of such scholars, your very own Melanie Bejzyk says, for example:
   
   “[t]here is a need for a robust inquiry, both generally and in specific cases, which explores the link between LGBTI criminalization and torture and other cruel, inhuman, or degrading treatment.”
7. Resolution 32/2 requests the mandate to “address the multiple, intersecting and aggravated forms of violence and discrimination faced by persons based on their sexual orientation and gender identity”. It is clear to me that analysing root causes of violence and discrimination requires a multidimensional assessment of all factors, including historical, socio-cultural, political and anthropological, having concurred to create a certain understanding of what is perceived as a norm in relation to gender, sex and sexual desire.
8. For example, a cis or trans woman feeling profound emotional, affective and sexual attraction for other women may choose to self-identify as a lesbian or as bisexual, but will also relate to other equally relevant identities that shape who she is in the context in which she lives, such as race, ethnicity, religion or belief, health, status, age, class and gender identity. As one stakeholder referred to the Independent Expert, “we hold many identities in one body”, and violent actions against a person will oftentimes result from intersecting factors that create a continuum of violence and a dynamic of disempowerment.
9. Intersectionality also describes the dynamic process in which that distinctively unique life experience occurs. It varies in relation to time: for example in our time we will be the first generations to face dilemmas associated with large numbers of ageing LGBT persons who have built free and open lives within their communities and will face care and retirement systems that are unprepared or insensitive to their needs; we will also be the first to address the medical questions derived from long-term use of hormones or antiretrovirals, both statistically significant factors within the gay and trans communities. It varies in relation to space: the experience of violence and discrimination is absolutely different if one lives in the city or in the rural space, and persons are oftentimes forced to leave their families, their communities and their countries as a result of violence and discrimination based on sexual orientation and gender identity.
10. The mandate exists at a point of intersection of many of these perspectives and I recognise the complexity of these existential and political points of departure and the connected dynamics. I am however persuaded that within the compressions and tensions of this landscape resides extraordinary energy and potential to bring about constructive change.
11. The other approach that the mandate is guided to use is dialogue with States and other relevant stakeholders, and to “work in cooperation with States”. The resolution provides clear guidance on a model of active outreach for collaboration, conducive to heightened awareness and support to effective State measures. This dialogue must be built upon the cornerstone provided by basic principles and findings, among them:
    
    a.  every person is entitled to the human rights and freedoms enshrined in international human rights law without distinction based on sexual orientation or gender identity;
    b.  legislation, public policy and jurisprudence that criminalise same-sex relationships and particular gender identities are per se contrary to international human rights law, fuel stigma, legitimize prejudice and expose people to family and institutional violence and further human rights abuses such as hate crimes, death threats and torture.
12. It then follows that the execution of any sanction based on such measures is a violation of international human rights law: deprivation of liberty, akin to unlawful detention; and the imposition of the death penalty an arbitrary killing and a breach of article 6 of the International Covenant on Civil and Political Rights.
13. In other words, I take it as sufficiently explored, and proven beyond any reasonable doubt, that no historical, social, cultural or religious sensitivities can justify criminalisation of sexual orientation and/or gender identity.
14. For the discharge of the mandate, I rely on activities common to all special procedures mandate holders: a) thematic reports, b) transmission of urgent appeals, letters of allegation and other letters to States, c) fact-finding country visits, d) academic and promotional activities, and e) cooperation with other actors.
15. To provide content to those methodologies, resolution 32/2 creates an operative framework with two overarching objectives.
16. On one hand, I have the mandate to raise awareness of violence and discrimination against persons because of their real or perceived sexual orientation and gender identity and to identify their root causes. I am convinced that heightened awareness is in itself a significant step to eliminate stigma, correct misconceptions and dispel myths. I aim to cover every region and as many aspects of life experience as possible – from particularly acute forms of violence and criminalisation based on sexual orientation and gender identity, to discrimination in the daily life experience, including inter alia employment, health care, education, political participation and family settings.
17. On the other hand, I am required to “assess the implementation of existing international human rights instruments with regard to ways to overcome violence and discrimination”, and identify potential gaps and good practices with a view to assisting States to implement their core obligations. These actions must aim to decrease violent and discriminatory actions based on sexual orientation and gender identity, and ultimately to eradicate them.
18. My remarks today will revolve around damage and redress. I understand damage as the nefarious outcome of the cycle of violence and discrimination, and redress as the virtuous processes that must be put in place if one is to attempt to restore the balances upset by this cycle.
19. Mes commentaires d'aujourd'hui porteront sur le dommage et le dédommagement, le dommage conçu comme le résultat néfaste du cycle de la violence et de la discrimination, et le dédommagement comme le processus vertueux qui doit être mis en pratique si nous voulons restaurer les déséquilibres créés par ce cycle.
20. Je suis appelé à analyser ces phénomènes avec un point de départ dans le corpus du droit international des droits de l'homme: conventions internationales, coutumes internationales et principes généraux du droit reconnus par la communauté des nations, complétés par des décisions judiciaires et les enseignements des publicistes les plus qualifiés, la jurisprudence et la doctrine des organes conventionnels et des procédures spéciales des Nations Unies, et des tribunaux et commissions régionaux sur les droits de l'homme.
21. Cet ancrage est d'une grande importance pour mon mandat en raison de l'argument erroné, mais souvent utilisé, selon lequel la lutte contre les violations des droits de la personne en raison de l'orientation sexuelle et l'identité de genre exige la reconnaissance de droits spéciaux. Nous savons que grâce au solide cadre de protection internationale ce n'est pas le cas. La résolution 32/2 - qui a créé mon mandat - a une seule base : le principe selon lequel le but ultime de la communauté des nations est la reconnaissance de la dignité inhérente et des droits égaux et inaliénables de tous les membres de la famille humaine et que c'est le fondement de la liberté, de la justice et de la paix.
22. In my view, at the root of all violence and discrimination lies the intent to enforce conformity, and punish non- conformity, with a pre-determined order. Violence and discrimination should be analysed in the light of broader power structures, deeply entrenched gender inequalities and rigid sexual and gender norms. Violence based on sexual orientation or gender identity can be understood as a means to regain control.
23. This process relies on social regulatory systems, key among them the family, the school, the church and health care settings. For example, pathologisation and medicalisation have historically played – and continue to play - a fundamental role in the notion that LGBT persons suffer from some kind of abnormality. Strong pathologisation traits remain very much alive today in all regions of the world, from the decades-long Khomeini fatwa compelling sex reassignment in Iran to the continued existence of so-called “conversion therapies” in a vast majority of the world’s countries.
24. In particular, I am convinced that the cruelty and viciousness of the violence and discrimination against trans women and men derives from the fact that respecting their identity represents the most radical rupture of the systems in place, that rely so strongly on binary notions and on preconceptions of the masculine and the feminine. The lack of legal recognition of gender identity in vast regions of the world must make us think about the connections with the concept of citizenry. As one scholar from the global north recently put it, “when [States] deny legal access to trans identities, what they are actually doing is messaging a sense of what is a proper citizen.” As we speak of proper citizenship we must also make reference to the cultural and juridical significance of criminalisation.  
25. Ferrell (2008) describes what he calls the process of “cultural criminalisation,” the mediated reconstruction of meaning and perception around culture and crime through the presentation and representation in the realm of sound bites, shock images, news conferences, and newspaper headlines.
    
    “This mediated spiral […] generates not only images, but images of images – that is, attempts by lawyers, police officials, religious leaders, media workers, and others to craft criminalized images.”
26. “Stay away from my children!” scream the letters on the side of an orange bus rolling in the streets of Latin America with its not-so-subtle implications of paedophilia. So, Ferrell continues,
27. Legal action may be used as basis for State-sponsored discrimination in the 72 countries criminalizing same-sex activities; violent and discriminatory acts remain a reality everywhere in the world.
28. Violence can be physical: while a significant critical mass of the violence expresses itself through murder, sexual assault, stabbings, beatings, kidnapping, there are also settings – such as health care settings where unspeakable violence and pain are inflicted on victims. Widely condemned medical practices include, for example, so-called “conversion therapies”, forced genital and anal examinations, forced or otherwise involuntary sterilization and all medically unnecessary surgery and treatment, including particularly that performed on intersex children.
29. Violence can also be psychological: for example, coercion and arbitrary deprivation of liberty, including forced psychiatric incarceration, or bullying, and constant threats of violence and exclusion.
30. Violence can be perpetrated by private individuals, or it can be perpetrated with the tacit or express acquiescence of the State, or by State agents themselves. In the last case, there is no branch or realm of action of the State that is immune from possible involvement: police, judiciary or penitentiary action or inaction and executive policies and plans may all be utilized in one way or another to inflict violence and discrimination. 
31. The law is also utilized to criminalise and, within instances in which it is, particular condemnation should be reserved to the instances in which the law prescribes prison sentences, inhumane punishments such as flogging, or the death penalty.
32. What does this sort of violence do to a person?
33. I am of the view that eradication of violence and discrimination depends, to a significant degree, on our capacity to understand the pain and suffering that are created by them. In his seminal work on torture and democracy, Darius Regale concludes that, when it comes to pain and suffering:
    
    “[t]he inexpressibility that matters politically is not the gap between the brain and the tongue, but between victims and their communities, a gap that is cynically calculated, a gap that shelter’s a state legitimacy.”
34. The limitation, naturally, is that pain – like pleasure – is fundamentally an intimate experience.  Pain and suffering, and in particular extreme pain and suffering, are infinitely more complex than commonly supposed.  In the words of Melzack and Wall, “the word ‘pain’ represents a category of experiences, signifying a multitude of different unique experiences having different causes and characterized by different qualities varying along a number of sensory and affective dimensions.”
35.  “Unspeakable pain” and “unspeakable suffering” are common expressions for a reason, and our processing of descriptions of pain is fundamentally an intellectual process (when it is not, vicarious traumatisation will inevitably ensue). Hence, the real question is not if we are capable of understanding pain and suffering. It is whether we are able to place them into a legal and political conversation in a way that does justice to it.
36. Certain forms of violence will leave crushed skulls and jaws, broken limbs and multiple scars, or wounds not visible to the eye but evident upon close examination. Homophobic rape, so-called “corrective” for example may not only leave evident scars but produce serious physical trauma.
37. Physical violence will be combined with powerful psychosocial violence, sometimes under the guise of legality. This is the description of coercive anal examinations by the International Forensic Expert Group:
    
    “forcibly conducting anal examinations on individuals is humiliating, demeaning and, not surprisingly, almost invariably causes significant psychological suffering. The combined effects of feeling powerlessness and intense humiliation may generate profound feelings of shame, guilt, self-disgust and worthlessness, and result in a damaged self-concept and enduring personality changes. […] In addition, the element of forced nudity, and physical restraint, when used, amplifies the sense of helplessness, fear, humiliation and degradation that individuals experience. […]”
38. Others will leave no physical trace but nonetheless impact the victim and create long lasting damage. In their recent study on Humiliation and Shame, Hardi and others (2009) conclude that patterns of humiliation – such as the ones pervasive in bullying – hit the entire psychosocial self of a person, and result in two permanent wounds on the human self: “Self-destructiveness – in their words -  is one, and inability to take charge of one’s own life and destiny, the other.”  During therapeutic processes, victims of violence often describe themselves as feeling socially “unacceptable, filthy and stinky.” They are also often unable to separate themselves from their perpetrators or to turn against them.  Discrimination, stigmatization and social rejection can lead to depression, anxiety disorders, substance abuse, suicidal thoughts and attempts, and may also contribute to the symptoms of post-traumatic stress disorder.
39. We must also have clarity on the fact that damage is not limited to the direct victim. Families and communities are affected by violence and discrimination. Community destructuring, loss of leaderships, exile and displacement are only a few of the consequences, and gay brain drain is a well-documented phenomenon. Further than that, however, as they create deep divisiveness and distrust, violence and discrimination corrode the social fabric.
40. The work of eradication of violence and discrimination can be addressed from various points of entry, all equally valid and equally necessary: prevention, prosecution and reparation. Prevention has a strong connection with public policy; prosecution and reparation tend to be judicially driven and are deeply intertwined with access to justice.
41. These processes have made their way into numerous international human rights treaties and are in many cases pillars of the strategy put in place to eradicate violence and discrimination.
42. Notions of prevention and redress are, of course, deeply connected and feed each other.  For example, a fundamental element arising from the determination of State responsibility for human rights violations is the requirement of cessation of the wrongful conduct, and the necessary assurances that the violations will not reoccur. 
43. Cessation is linked to continuing violations, and I place under this heading the absolute obligation, pursuant to international human rights law, for States to decriminalise sexual orientation and gender identity.
44. Guarantees of non-repetition, in their turn, constitute the measures – particularly of a legislative nature – to be adopted in order to provide due assurance that violations in a particular case will not reoccur.  Perhaps the most meaningful and lasting assurances of non- repetition are those that tend to impact on the development of society as a whole. These types of administrative action, which undoubtedly are more diffuse in nature, include actions in the sectors of education, health, employment, political participation, family settings and the immigration services. This is where my mandate seeks to identify good and best practices to comply with its objective of advising States on the adoption of effective measures.
45. In this sense, we know that non-repetition and prevention are by definition forward-looking. Reparation will address the created damage. It includes restoration, compensation and satisfaction.
46. According to the UN Basic Principles and Guidelines on the right to a remedy and reparation, restitution should, “whenever possible, restore the victim to the original situation.” Restoration may adopt many forms, some of which may consist of administrative measures. They may refer to the care and professional assistance that victims require to re-establish their physical, moral and legal integrity after the violations to their detriment, the pardon extended to Alan Turing and the subsequent legislation that bears his name, for example, or the expungement of records in Germany and Tasmania in Australia. Measures of rehabilitation may impact the legal, occupational and medical spheres, along with the measures conducive to the restoration of the dignity and reputation of the victims.
47. At best, restoration can redress violations in a partial manner. At worst, such as when the violation of the right to life has occurred, it can even be irrelevant as means of redress. In such cases, compensation is deemed to be a substitutive means. 
48. I am also interested in a third form of reparation: satisfaction. The form or nature of satisfaction measures is not rigid, and depends on the circumstances of each case.  Measures of satisfaction can be described as conducive to restoring the social, communal, family and individual fabric. They are usually measures of a symbolic or emblematic nature that, while providing redress to the victim, also impact on the community or social surroundings. In effect, the diverse measures of satisfaction may also constitute important elements to reinforce the State commitment to non-repetition of similar actions in the future. Measures of satisfaction may include one or a combination of the following:
49. The right to truth has been subject to extensive developments under international human rights law. Yogyakarta Principle 37 defines it as
50. Acknowledgement of responsibility of the States and official declarations are common in judicial proceedings.
51. The scholar Robert Brooks (2001) noted the emergence, since World War II, of apologies stemming from the willingness of perpetrating governments to provide redress for past violations committed under the weight of their authority. For his analysis, he studied them under six historical processes: Nazi persecution; Japanese "comfort women;" the internment of Japanese-Americans; Native Americans; Slavery; Jim Crow; and South Africa, and concluded that an apology serves
    
    “[t]he function of lifting from its victims the feeling that they were personally responsible for their fate. It tells them that others were responsible for that fate, and that those others are finally willing to accept their responsibility. It restores moral equivalence between victims and perpetrators, if not actually giving the victims a deserved moral edge.”
52. Over the last decade, there are many examples of case-specific apologies within regional human rights systems.  For example, in December of 2017, following a recommendation of the Inter-American Commission, Colombia apologized to Marta Alvarez, a lesbian woman to whom it had consistently denied the right to visit in the penitentiary system. The impact of these and many other acts of contrition have been analysed, with the conclusion that certain traits will ensure that the apology serve as a true act of reparation:
53. There are two additional elements that I consider of paramount importance. First, the participation of the victims is key, and second, the apology needs to be result of a process through which it can become a true State commitment, rather than the project of a particular institution, government or political party.
54. I am extremely interested, in this context, to better understand the impact of the very recent group of apologies issued since July 2017 by New Zealand, Scotland, and the UK, and also very much the apology presented by your own Prime Minister in November 2017. I thought the tone and content of that apology to be rather extraordinary, and a significant building block in the reparation process.
55. “I don’t have words to describe the pain” said a gay victim of torture to me once. He had been arrested one night without cause and taken to a police station where three policemen slapped him in the face and beat him in the stomach. For two hours, they raped him with a police baton. That was “since he loved cock so much,” they yelled at him before throwing him into a bare cell where he had to spend the night laying naked in the concrete floor. Like many of you, when hearing this testimony, I experienced a physical reaction. I thought about it later, when reading the observations of Veena Das (1997):
    
    “we begin to think of pain as asking for acknowledgement and recognition; denial of the other’s pain is not about the failings of the intellect, but the failings of spirit. In the register of the imaginary, the pain of the other not only asks for a home in language, but also seeks a home in the body.”
56. In this sense, eradicating violence and discrimination depends also on a sense of empathy: the home that pain is asking for may be acknowledgement, acceptance and respect. I believe that my mandate as Independent Expert should be strongly inspired by this objective, to respond to the call of the pain of the other. I hope that I am able to maintain the voice of the victim as a sort of compass to ensure that the work will continue in the right direction. I believe, in doing so, that following the voice of the victims there is very little chance to fail.

Thank you.