INTRODUCTION
Introduction
In April 2013, Ban Ki-moon, the Secretary-General of the
United Nations, delivered a memorable speech during the
Oslo Conference on Human Rights, Sexual Orientation
and Gender Identity. He strongly condemned all attacks
against sexual minorities and called for a paradigm shift in
States’ and peoples’ attitude towards this specific group:
‘We should all be outraged when people suffer
discrimination, assault and even murder –
simply because they are lesbian, gay, bisexual
or transgender. We should all speak out when
someone is arrested and imprisoned because of
who they love or how they look. This is one of
the great, neglected human rights challenges
of our time. We must right these wrongs. […]
Some will oppose change. They may invoke
culture, tradition or religion to defend the status
quo. Such arguments have been used to try to
justify slavery, child marriage, rape in marriage
and female genital mutilation. I respect culture,
tradition and religion – but they can never justify
the denial of basic rights.’1
Although powerful and supportive of sexual minorities
worldwide, the Secretary-General’s words demonstrate
that LGBTI22 persons have historically faced and keep
facing discrimination and violence in many aspects of
their existence. Culture, tradition and religion continue to
be used to justify the denial of basic rights in a significant
number of countries. Some national laws provide
for a specific protection to LGBTI persons against
discrimination and violence as well as the entitlement to
the same rights as other citizens, but others do not grant
any specific protection or even criminalise behaviours that
do not correspond to hetero-normativity.3
At the international level, conventions have so far failed
to explicitly provide protection to persons from sexual
minorities, and there is no universal consensus regarding
the status of LGBTI persons. However, several United
Nations human rights mechanisms, including key Treaty
Bodies and Special Procedures, have affirmed states’
obligation to ensure protection from discrimination on
the basis of sexual orientation and gender identity. The
High Commissioner for Human Rights has also published
a report dedicated to the issue of discriminatory laws,
practices and acts of violence against persons from
sexual minorities.4
In a joint statement to the Human Rights Council on 10
June 2013, 29 national human rights institutions (NHRIs)
with ‘A-status’ from around the world called for action
to address violations against LGBTI persons and for the
establishment of an ‘appropriate mechanism to study,
document and report to the Human Rights Council
human rights violations, barriers and challenges on
the basis of sexual orientation, gender identity and for
intersex persons’.5
Human rights principles protecting sexual minorities
were established in November 2006 by a group of
human rights experts:6 the Yogyakarta Principles on
the Application of International Human Rights Law in
relation to Sexual Orientation and Gender Identity7 (the
‘Yogyakarta Principles’).
LGBTI persons in detention – or persons perceived as
belonging to this group – are in a situation of particular
vulnerability, at risk of human rights violations and abuses
– including by fellow detainee – throughout the entire
1. ‘Culture, Religion, Tradition Can Never Justify Denial of Rights, Secretary-General Stresses in Message to Conference on Sexual Orientation, Gender
Identity’, UN Department of Public Information, 15 April 2013. Available at: www.un.org/News/Press/docs/2013/sgsm14944.doc.htm <accessed 7
October 2013>.
2. LGBTI is an acronym standing for Lesbian, Gay, Bisexual, Transgender and Intersex persons. Sexual minorities are understood in this document as a
synonym of LGBTI.
3. Hetero-normativity presumes that heterosexuality is the norm, and states that sexual and marital relations are only appropriate between a man and a
woman. See Warner, Michael, Fear of a Queer Planet: Queer Politics and Social Theory, University of Minnesota Press, 1993.
4. UN Human Rights Council, Report of the United Nations High Commissioner for Human Rights: Discriminatory laws and practices and acts of violence
against individuals based on their sexual orientation and gender identity, 17 November 2011, A/HRC/19/41.
5. Joint NHRI statement to the UN Human Rights Council on discriminatory laws and practices and acts of violence against individuals based on their
sexual orientation and gender identity, 10 June 2013. Available at: https://www.humanrights.gov.au/joint-nhri-statement-human-rights-council-sexualorientation-and- gender-identity <accessed 7 October 2013>.
6. Signatories include: Manfred Nowak (Austria), former UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment; Mary Robinson (Ireland), former United Nations High Commissioner for Human Rights; Martin Scheinin (Finland), UN Special Rapporteur
on human rights and counter-terrorism and other eminent experts from all regions. For a complete list see: www.yogyakartaprinciples.org/principles_
en.htm
7. www.yogyakartaprinciples.org
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Penal Reform International | LGBTI persons deprived of their liberty: a framework for preventive monitoring