The bar for human rights concerning LGBTI people at the United Nations sits so low that Australia is considered a rare ally, despite its mixed record at home. Many UN member states prefer simply not to acknowledge that LGBTI people exist, ignoring that their gender identity or sexual orientation puts them at risk of the death penalty, extrajudicial killings, torture, arbitrary detention, and even suicide. At the other end of the spectrum, only one country, Malta, has banned non-consensual intersex surgery on babies. Australia has promised to use its new seat on the UN Human Rights Council to push for human rights for LGBTI people. But while we know that Australia was far from the first (or last) country to legalise same-sex marriage, where does Australia sit in comparison to the rest of the world on other issues?
1. Judicial and extrajudicial killings
A centrepiece of Australia’s international human rights agenda is its opposition to the death penalty, yet UN member states still remain split on opposing the judicial killings because of sexual orientation and gender identity. Currently the only UN General Assembly resolution that makes any reference to sexual orientation and gender identity is the extrajudicial killings resolution, and even on this resolution many member states still oppose this reference. “There can’t be agreement with UN member states on the inclusion of sexual orientation and gender identity as part of people’s identity that make them particularly vulnerable to vigilante killings,” says Siri May from international LGBTI advocacy group Outright International. “It gives a really clear sense of how low the bar is … we’re not even talking about judicial executions, we’re talking about vigilante killings outside of the justice system.
There are at least six countries - Iran, Saudi Arabia, Sudan, Yemen, Nigeria, and Somalia – where the death penalty is currently implemented for same-sex relations, according to the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA). Vigilante killings have also taken place in the parts of Syria and Iraq that have fallen under ISIS-occupation. Although Australia is consistent in its opposition to the death penalty, it has been less consistent in its application of UN Human Rights conventions protecting refugees and asylum seekers fleeing persecution. For example, in 2016, Australia sent a two gay Iranian refugees to Nauru, even though gay sex is punishable by up to 14 years hard labour in Nauru.
2. Non-consensual surgery
Australia claimed to have “some of the most advanced laws in the world,” on LGBTI rights, “including on intersex status” during its campaign for a Human Rights Council seat. Yet, the UN Human Rights Committee in November 2017 expressed concern that intersex babies in Australia are still subjected to “irreversible and invasive medical interventions.” Indeed, as May points out, Malta is the only country in the world that protects intersex babies from medically unnecessary, non-consensual surgery. While the Organisation Intersex International Australia (OIIA) welcomed the November 2017 Family Court decision to allow transgender adolescents to make their own informed decisions about hormone treatments, they noted that “children born with intersex variations are not afforded the same right.”
As a member of the LGBTI Core Group, Australia is considered one of a small group of key allies at the UN, but this doesn’t mean that it doesn’t have areas where it can improve at home. “Even our greatest ally never has a clean human rights record,” says May. On the positive side, May says that Australia’s strong stance on LGBTI rights during its campaign is a sign of changes in the international system. “Only a couple of years ago bringing up LGBTI human rights as part of your platform for a seat on the Human Rights Council would have been kind of unthinkable, so that they decided to come out with a platform of that for us that really speaks a lot to us about not just Australia’s commitment but also progress that’s happening in the international system too.”
3. Indigenous rights
A recent UN committee on racial discrimination reported its concerns about the “high rate of suicide among Indigenous Peoples, and in particular LGBQTI individuals.” Yet despite the extremely high rates of suicide among both ATSI and LGBTI peoples, the Australian government continues to address these issues separately, failing to recognise that people who are both ATSI and LGBTI are particularly at risk, says Dameyon Bonson from Black Rainbow.
There are a number of reasons why Australia’s response to the high levels of suicide among LGBTQI ATSI people is insufficient, according to Bonson. “From a cultural standpoint in terms of service delivery, services that are not equipped to respond from a trauma-informed perspective for ATSI people can potentially exacerbate any trauma that they are going through and treat them inhumanely,” he says. Australia recently signed up to the UN’s Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). “If Commonwealth health services are not equipped with best practice in their service delivery, particularly in terms of being trauma-informed, they can inflict cruel, inhuman, or degrading treatment contravening OPCAT,” says Bonson.
4. The Olympics
Specific references to LGBTI people in UN resolutions remain extremely rare, with countries like Egypt and Russia using their influence to pressure against them. One small but significant recent exception was the wording of the Olympic truce resolution that will be in place from seven days before until seven days after the upcoming Winter Olympics. After much debate, UN member states accepted the resolution's non discrimination clause with wording that specifically referenced sexual orientation, although gender identity was not included. The vote “was a real win,” says May, “and they don’t come along that often at the moment.”
Discussions around these issues at the UN tend to use the broader term Sexual Orientation, Gender Identity and Expression which is seen as more inclusive, and less Western, than variations of the LGBTI acronym. Indeed, support for LGBTI rights is far from a Western concept, notes May, with allies coming from all corners of the world. Pressure to vote against LGBTI rights also comes from a diverse array of actors, including not only Russia and Egypt, but also the Catholic Church, which holds permanent observer status in the UN General Assembly as the Holy See.
5. Same-sex marriage
According to May, Australia is unlikely to use its position on the council to advocate for same-sex marriage. Currently less than a quarter of UN member states allow same-sex couples to marry, including an additional 16 countries in Central and South America that are now required to allow same-sex marriage due to a recent human rights court decision. But May believes that the focus at the international level will likely remain on “the most egregious human rights violations first,” with many people around the world still facing death, torture, arbitrary detention, harassment, discrimination, and “disproportionate impacts on mental health”. By comparison, same-sex marriage is considered a primarily domestic issue for governments to apply equality before the law.