Saggy over SOGI?

By choosing to abstain from renewing the mandate of the UN Independent Expert on Sexual Orientation and Gender Identity (SOGI), India is sending a message that it still has doubts as to whether LGBTQIA citizens are full citizens, writes Arvind Narrain

On July 7, 2022, the 47-member states of the UN Human Rights Council voted to renew the mandate of the UN Independent Expert on Sexual Orientation and Gender Identity (SOGI). The mandate was first established in 2016, renewed in 2019 and renewed for a further term of three years this year. 23 member states of the Council voted to renew the mandate, 17 voted against and 7 abstained.

The vote itself was a striking example of the geo-politics surrounding the issue. The yes vote was solidly anchored in the support of the Latin American bloc as well as the Europeans and Americans. The no vote was largely based on the African bloc as well as members of the Organisation of Islamic Conference (OIC) and China. However, what accounted for the difference between defeat and victory was the support of Asian countries such as Nepal, Japan and Korea.

The voting break-up cannot be analysed as a classic global north versus south, as there were a number of countries of the global south who voted to renew the mandate including Cuba, Bolivia, Brazil and the Marshall Islands. The other point which needs to be made about the ostensible divide between the global north and the global south as well as between the OIC and the so-called secular blocs is that there was support for the mandate from civil society groups based in countries as diverse as Algeria, Saudi Arabia and Pakistan.

In a statement endorsed by over 1200 civil society groups from around the world, the representation of groups based in the Middle East, Africa as well as Asia was strong, indicating again that the support for the rights of those discriminated against on grounds of sexual orientation and gender identity was a global phenomenon and not restricted by region or religion.

Coming to the question of India, it is befuddling that India abstained from the vote. When the Resolution proposing the Independent Expert was moved in 2016, India abstained. The reason for abstention which was articulated by the External Affairs Ministry was that Section 377 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. This time around there was no excuse for India to abstain considering that the logic of the Supreme Court decisions in Navtej Johar v Union of India and NALSA v Union of India have unambiguously recognised that LGBTQIA has the fundamental right to dignity, self-expression, equality and non-discrimination.

The current government has some answering to do as to why it chose to abstain. Is it because it does not consider LGBTQIA persons full citizens entitled to all constitutional rights? Does it believe that it has more in common with autocracies which also choose to remain neutral such as Poland, Uzbekistan, and Kazakhstan than democracies such as Brazil, Japan and Nepal? Or does it simply find it impossible to reconcile LGBTQIA rights with the government’s ideological orientation? What gives a clue that there may be ideological reasons behind the vote is the Union Government’s affidavit in the same-sex marriage case in the Delhi High Court where it stated that same-sex relationships are ‘not comparable with the Indian family unit concept of husband, a wife and children’.

Leaving aside the troubling question of the abstention of the world’s largest democracy from concretely supporting the principled position that LBGTQIA rights are human rights, what can we hope the mandate will achieve in the years going ahead?

If one analyses the work of the mandate over the last six years what we see is that over this period, the mandate has shed a consistent spotlight on human rights violations on grounds of sexual orientation and gender identity. One of the important ways in which sexual orientation and gender identity have become a part of the broader human rights discourse is through the reports produced by the Independent Expert. In his reports, he has highlighted the human rights implications of the binary gender norm, 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 persons
has become a part of the mainstream conversation at the level of the UN.

The mandate also has the authority to do country visits and over the last six years, the mandate holder has visited countries as diverse as Ukraine, Georgia, Argentina and Mozambique and Tunisia. The mandate has also got states as diverse as Russia, South Korea, and Brunei to respond to individual ‘letters of allegation’ of human rights violations on grounds of SOGI.

Clearly, the work of taking the violations on grounds of sexual orientation and gender identity seriously at the international level has begun and needs to be taken forward. Therefore it is of critical importance for LGBTQIA activism around the world that the mandate be renewed so that the work can continue. However, by choosing not to support this important work, India is sending a message that it still has doubts as to whether LGBTQIA citizens are full citizens entitled to all constitutional rights.

(The author is a lawyer & writer based in Bengaluru. He is the co-editor of Law like love: Queer perspectives on law.)