Overcoming the Challenges of Marginalized Gender Identities in Asia & the Pacific Islands

1. Overcoming the Challenges of Marginalized Gender Identities in Asia & the Pacific Islands LGBT Rights: challenges & ways forward for the international human rights instruments (and advocates) Vivek Divan 27 July 2012 AIDS 2012, Washington DC

2. Regional human rights instruments • Do Asia or the Pacific Islands have regional human rights instruments? • No regional human rights instruments of fora such as ASEAN or SAARC (unlike other regions of the world e.g. Organization of American States, African Union and Europe) • ASEAN does have an Intergovernmental Commission on Human Rights, but it is merely a consultative body with no decision-making power

3. International legal instruments 2. Are international instruments ‘justiciable’ in Asia and the Pacific Islands? 2.1Largely not – most countries have not signed Optional Protocols to key international conventions such as the International Covenant on Civil & Political Rights 2.2 Australia did, which resulted in the decision of the Human Rights Committee in Toonen v Australia - that Tasmanian anti-sodomy law violated rights guaranteed in the ICCPR - In deciding this the Committee interpreted the right to non-discrimination on the ground of “sex” to include sexual orientation 2.3Sri Lanka has, & Nepal, New Zealand, Philippines, South Korea 2.4 The International Covenant on Economic, Social and Cultural Rights contains the right to health – therefore important in the HIV context But its Optional Protocol has not been signed by countries in Asia & the Pacific, with the exception of Mongolia

4. Monism • Monism – where the act of ratifying an international treaty incorporates it into national law 3.1Nepal’s Treaty Act of 1991 enables such incorporation 3.2Used to great effect by petitioners and the Supreme Court to protect human rights of the disempowered – e.g. Sunil Babu Pant v. Government of Nepal: “Transgendered people have been compelled to appear in public life with the identity as determined according to their genitals instead of their own characteristics and it is very important to rethink the state of affairs in the context of human rights and fundamental rights...We also should internalize the international practices in regards to the enjoyment of the right of an individual, changing world society & practices of respecting the rights of minorities gradually. Otherwise, our commitment towards the human rights will be questioned internationally, if we ignore the rights of such people only on the ground that it might be a social stigma.”

5. National jurisprudence • Creating a jurisprudencewhich relies on and builds in international treaty commitments 4.1 In India, the courts are increasingly doing so – starting with Vishaka & others v. State of Rajasthan (sexual harassment in the workplace): “Any International Convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into [Indian constitutional] provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee.” 4.2 In Naz Foundation (India) Trust v. Union of India, the Delhi High Court echoed the Human Rights Committee in Toonen,holding that sexual orientation is: “…a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15 [of India’s Constitution].”