Bringing the Yogyakarta principles to life: The role of NHRIs Prof. Vitit Muntarbhorn and Nick Booth 24 February 2015

Yogyakarta Principles and NHRIs in Asia-Pacific Yogyakarta Additional Recommendation ‘I’ provides: “NHRIs promote respect for the Yogyakarta Principles by State and non-state actors, and integrate into their work the promotion and protection of the human rights of persons of diverse sexual orientations or gender identities” May 2009: APF workshop on promoting implementation of Yogyakarta Principles recommended reference to APF’s Advisory Council on Jurists (ACJ); In 2010, the ACJ provided comprehensive advice together with a set of recommendations for NHRIs.

ACJ 2010 recommendations 60 detailed recommendations covering Capacity-building and research Education, promotion and dialogue Monitoring Advocacy Role of APF

Implementation of ACJ recommendations No specific mechanism for monitoring and evaluation of implementation (but APF tasked with regular progress reviews) In 2013 UNDP/APF/IDLO conducted a review of the capacity of NHRIs to address human rights in the context of SOGIE and HIV Covering Bangladesh, Nepal, Indonesia, Philippines, Timor-Leste, India, Sri Lanka and Pakistan Conducted in partnership with APF, NHRIs, NGOs and community institutions in those countries Report highlights many positive advances: Appointment of SOGI focal-points, engagement with community groups, capacity-building initiatives (Nepal, Indonesia, Philippines) Articulating SOGI-related HR issues in UPR reporting (Bangladesh) Generally high-level of awareness of NHRIs among LGBTI But considerable scope for more: Very few rights violations were reported to NHRIs, often because of lack of accessibility or low understanding of ability to complain Comparatively little advocacy on law reform, education of duty-bearers etc. Other key points: Cambodia: Commendable job done by our UNV Mana despite the lack of UNDP CO support. Mongolia: 15 senior government bureaucrats attended. Exceptional support from UNDP senior management, especially RC Sezin Sinanoglu. Nepal: Member Secretary of Same Sex Marriage Committee also attended. Commendable job done by our UNV Bharat who made dialogue happen despite an unfortunate postponement. Great support from regional/Thailand UNV Rashima!

Capacity-building and research – Summary of recommendations Build institutional capacity to understand issues relating to HR and SOGI and react appropriately Build relationships, consult and work with persons of diverse SOGI including CSOs Develop communication strategies for engagement with persons of diverse SOGI Undertake research on HR violations and discrimination based on SOGIE; Facilitate studies on rights protection in the context of local socio- cultural traditions and religious beliefs Document domestic impact: Socio-economic impact of HR violations and discrimination HR violations to transgender and intersex arising from legal status Laws criminalizing same-sex conduct Selective enforcement of public order/sex work laws Impact of stigma and discrimination on access to health and social services

Capacity-building and research – findings • Nepal: - SOGI focal point - relationship with BDS - Priority in Strategic Plan - BDS internships • Indonesia: - Subcommittee with SOGI mandate - Capacity-building of staff on SOGI Philippines: - HIV and LGBTI-related rights a priority - Capacity-building of staff on HIV and SOGI .

Education, promotion and dialogue – summary of recommendations Convene and facilitate dialogues: between people of diverse SOGI and key stakeholders (including law and justice sector actors, social service providers, religious leaders) and the wider community; with community and religious leaders on SOGI and faith; with government on impact of discrimination Raise awareness: within LGBTI community; within judiciary and law enforcement; within education system within professional organisations and support services

Education, promotion and dialogue – findings Timor Leste: Human rights training for people of diverse SOGI at community’s request Nepal: Commitment to engage police when community member is arrested or charged, upon request Indonesia: Organising human rights training for community groups Developing training for government and law- enforcement personnel Philippines: • Dialogue with schools on prejudices faced by LGBTI students

Monitoring – summary of recommendations Monitor HR situation (including social, economic and cultural rights) of people of diverse SOGI, including through national inquiries Ensure inclusion of people of diverse SOGI in all NHRI activities Document and respond to issues of discrimination brought by people of diverse SOGI, ensuring that complaints mechanisms are accessible and/or advocating for complaints to be investigated and actioned by competent bodies Monitor rights of persons of diverse SOGI in detention and respond urgently to instances of torture, cruel, degrading and inhuman treatment

Monitoring – findings Nepal – 8 investigations both following complaints and suo moto • Indonesia – 24 complaints between 2010 and 2012 • Philippines – 1 complaint

Reporting HR violations to NHRIs 489 LGBTI community representatives surveyed as part of 2013 APF/UNDP/IDLO report Reasons – lack of knowledge of complaint procedure, concerns about confidentiality/sensitivity/safety, alternative means of resolution (community organization) Country % experiencing human rights violations % reporting to NHRI Bangladesh 87 10 India 66 22 Nepal 76 4 Sri Lanka 48 21 Indonesia 72 23 Philippines 97 7 Timor Leste 60

Advocacy – summary of recommendations Law reform: Review and repeal of discriminatory laws and laws violating HR of persons of diverse SOGI, including prohibition/penalization/criminalization of same-sex sexual conduct and diverse gender expression Protection against hate speech Criminalisation of sexual assault against males Comprehensive anti-discrimination law including employment, access to services including health care, education, accommodation, provision of identity documents, and access to welfare services Law enforcement: End selective/disproportionate law enforcement Support public interest litigation including as amicus curiae International law: Ratification/accession to international human rights instruments; Include HR issues related to SOGI in treaty-body reporting, UPR etc Interpretation of religious/traditional law and practices aligned with Yogyakarta principles Provision of services transparent and independent police complaint mechanisms elimination of stigma and discrimination by social and health service providers. Recognition of gender identity (passport, ID, marriage) irrespective of gender reassignment surgery Protection from medical interventions without informed consent

Advocacy – findings Bangladesh – Universal Periodic Review (UPR) report specifically addressed SOGI issues Nepal: Advocacy for legalizing same-sex marriage (through membership on SSM Committee) Letter to Election Commission re security of transgender when voting Letter to Ministry of Finance re adequate budget for skills development Indonesia and Philippines – acting as amicus curiae in court cases about trans man arrested for marrying a woman and refusal of registration of LGBTI political party

Role of APF Organise mutual exchanges between NHRIs Encourage mutual sharing of best practice Organise subregional meetings to share information about participatory processes and shared cultural issues Encourage the development of toolkits on the various issues that can be used throughout the region Review the progress towards the implementation of these recommendations at regular intervals Engage with the UN, ICC etc. about the work NHRIs in the region are doing with regard to the human rights of persons of diverse sexual orientation or gender identity

THANK YOU!