“Today, in France, we still cannot live and love freely just as we are,” said Joël Deumier, president of the association SOS Homophobie. In its annual report published May 10, 2017, the organization stated it received 1,575 testimonies of anti-LGBT acts in 2016, an increase of nearly 20% compared with the previous year. It’s possible that the increase in reported incidents reflects a greater willingness of victims to speak out. Still, SOS Homophobie believes that many victims of anti-LGBT acts do not dare come forward.

Demonstration in support of same-sex marriage in Paris, 16 December 2012.

© 2012 Olivier Hoffschir

In 2016, SOS Homophobie received 26 reports from people who said they had a homophobic, biphobic, or transphobic encounter with justice or law enforcement officials. By this is meant that an officer refused to characterize an assault as homophobic in a complaint or to even file a complaint, or that a law enforcement officer himself discriminated against LGBT people.

While these incidents remain thankfully limited, they are no less unacceptable. France should take measures to determine how widespread these attitudes are among public officials, and to prevent subversion of their duties because of this attitude.

SOS Homophobie’s report also shows a correlation between debates over equal rights and the increase of anti-LGBT acts. The organization recorded a spike in reported incidents in 2013, the year France legalized same-sex marriage. In 2016, France adopted a law waiving the requirement for transgender people to provide proof of medical treatment to amend their legal gender. That same year saw a 76% spike in reported transphobic incidents.

While a majority of the French population is in favor of allowing same-sex couples to get married and adopt children, opponents of LGBT rights are a “vocal minority,” and are especially active on social media, where prosecution for homophobic statements remains difficult to carry out.

Several candidates for the 2017 presidential election expressed their intention to “rewrite the Taubira law” on same-sex marriage and adoption. One candidate even received the support of Sens commun, an organization openly opposed to the rights of LGBT people. When political figures take stands that are hostile to equal rights, they may “rekindle hate.”

It is high time to end discrimination against LGBT people and the French authorities have a key responsibility and role to turn this into reality.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

This week Poland’s parliament has the chance to improve the lives of transgender people by passing a law that simplifies the legal gender recognition procedure.

Recognition before the law in your preferred gender is a vital aspect of ensuring respect for the human rights of transgender people. For example, it allows transgender people to access services on an equal footing with their peers.

Transgender activists march in the 2015 Warsaw Pride holding a banner that reads "YES to Gender Accordance Act.”

© 2015 Trans-Fuzja

Momentum on this matter is building. Earlier this year, the Parliamentary Assembly of the Council of Europe issued a resolution noting “the emergence of a right to gender identity”, while raising concerns that “transgender people face widespread discrimination in Europe.”

Members of Poland’s parliament will consider the country’s Act on Gender Recognition this Friday. Parliament already passed the draft legislation over the summer, although the president vetoed it last week.

The act proposes some important advances.

First, it defines gender identity as a “settled and intense experience of one’s own gender,” which may or may not correspond with one's sex assigned at birth.

Second, it eliminates the requirement for physical interventions before gender can be legally recognized, and instead makes the process a court procedure.

Third, it spells out the various documents on which applicants are legally entitled to change their gender – including education certificates, work qualifications, and health records – and allows the possibility for young transgender people, once they reach age 16, to change their name.

Access to documents in your preferred gender and name is a key element in ensuring respect for an individual’s right to personal and private life, and also allows transgender people better access to healthcare, education, and employment.

In a recent survey, 78 percent of Polish transgender people said quicker and easier legal gender recognition procedures would allow them to live more comfortably.

There’s no doubt President Andrzej Duda’s recent veto of the act was a setback. But if parliament does vote in majority support of the legislation, Poland will take a huge step forward and transform the lives of many.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Graeme Reid is an expert on LGBT rights. He has conducted research, taught and published extensively on gender, sexuality, LGBT issues, and HIV/AIDS. He is author of How to be a Real Gay: Gay Identities in Small-Town South Africa (University of KwaZulu-Natal Press, 2013). Before joining Human Rights Watch in 2011, Reid was the founding director of the Gay and Lesbian Archives of South Africa, a researcher at the Wits Institute for Social and Economic Research and a lecturer in Lesbian, Gay, Bisexual, and Transgender Studies at Yale University, where he continues to teach as a visiting lecturer. An anthropologist by training, Reid received a master’s from the University of the Witwatersrand, Johannesburg, and a PhD from the University of Amsterdam.

Posted: January 1, 1970, 12:00 am

A Tunisian woman walks past a graffiti that reads "Freedom is a daily practice" in Tunis April 26, 2011.

© 2011 Reuters / Anis Mili

(Tunis) – Tunisia still faces numerous hurdles to protecting its human rights gains nine years after Tunisians ousted the authoritarian President Zine el-Abidine Ben Ali, Human Rights Watch said today in its World Report 2020 
 
The authorities failed to scrap laws that are still being applied to punish Tunisians for peaceful criticism or for pursuing their private lives as they wish. The absence of a constitutional court, which the 2014 Constitution envisioned, deprives Tunisian citizens of the opportunity to challenge such laws.  
 
Tunisia’s progress on human rights will remain under threat until the authorities dismantle repressive laws and put in place key safeguards against abuses,” said Amna Guellali, Tunisia director at Human Rights Watch.  
 
In the 652-page World Report 2020, its 30th edition, Human Rights Watch reviews human rights practices in nearly 100 countries. In his introductory essay, Executive Director Kenneth Roth says that the Chinese government, which depends on repression to stay in power, is carrying out the most intense attack on the global human rights system in decades. He finds that Beijing’s actions both encourage and gain support from autocratic populists around the globe, while Chinese authorities use their economic clout to deter criticism from other governments. It is urgent to resist this assault, which threatens decades of progress on human rights and our future. 
 
The Constitutional Court, as conceived by the constitution, could strike down existing and draft laws deemed unconstitutional, including those that would violate human rightsBut parliament has failed in its duty to kick off the process of selecting its share of judges, and until the court is staffed, it cannot begin operations.   
 
Tunisia made progress on transitional justice as the Truth and Dignity Commission (TDC), created under a 2013 transitional law to investigate human rights abuses from 1956 to 2013completed its mandate and delivered its final report on March 26, 2019The commission recommended judiciary and security force reforms to bar a return to systematic abuses, but the government has yet to act on its recommendations.  
 
The 13 specialized court chambers created by the transitional justice law to try those responsible for past human rights abuses face numerous obstacles. The obstacles include an inability to compel the accused and witnesses to appear, as the police refuse to fulfill their duty to enforce summonses against uncooperative defendants.  
 
Prosecutors in Tunisia have also charged bloggers, journalists, and social media activists under a number of penal code provisions. At least 14 were prosecuted under speech offenses in 2019, with six spending time in jail for criticizing state officials or revealing corruption by civil servants 
 
The authorities also prosecuted and imprisoned men suspected of being gay under Article 230 of the penal codewhich provides for up to three years in prison for “sodomy.” The government also subjected suspects to anal tests to prove homosexuality, despite making a commitment during its Universal Periodic Review at the UN Human Rights Council in May 2017 to end the discredited practice.   
 
Since the declaration of a state of emergency in November 2015, which remains in effect, hundreds of Tunisians have faced arbitrary limitations on their movement when traveling inside and out of the country. 
 
Parliament did not act on a draft law granting women equal rights in inheritance, which then-President Beji Caid Essebsi approved in 2018.

Posted: January 1, 1970, 12:00 am

Women walk past a poster of Saudi Arabia's King Salman bin Abdulaziz Al Saud during Janadriyah Cultural Festival on the outskirts of Riyadh, Saudi Arabia February 12, 2018. 

© 2018 REUTERS/Faisal Al Nasser

(Beirut) – Saudi authorities carried out sweeping campaign of repression against independent dissidents and activists, including two waves of mass arrestsin 2019, Human Rights Watch said today in its World Report 2020 
 
The arrests and harassment coincided with the most significant advancements for Saudi women in recent years, including removing travel restrictions for women 21 and over and granting women more control over civil status issues. 
 
Reforms for Saudi women do not whitewash the rampant harassment and detention of Saudi activists and intellectuals, including women’s rights activists, who simply expressed their views publicly or privately,” said Michael Page, deputy Middle East director at Human Rights Watch. “If Saudi Arabia has any hope of rehabilitating its tattered image, the authorities should immediately release everyone they’ve locked away merely for their peaceful criticism.” 
 
In the 652-page World Report 2020, its 30th edition, Human Rights Watch reviews human rights practices in nearly 100 countries. In his introductory essay, Executive Director Kenneth Roth says that the Chinese government, which depends on repression to stay in power, is carrying out the most intense attack on the global human rights system in decades. He finds that Beijing’s actions both encourage and gain support from autocratic populists around the globe, while Chinese authorities use their economic clout to deter criticism from other governments. It is urgent to resist this assault, which threatens decades of progress on human rights and our future. 
 
Saudi leaders, including Crown Prince Mohammad bin Salman, faced no meaningful justice during 2019 for abuses by state security agents over the past few years, including the murder of the journalist Jamal Khashoggi in October 2018 and the alleged torture of women’s rights advocates. 
 
Dozens of Saudi dissidents and activists, including four prominent women’s rights defenders, remain in detention while they and others face unfair trials on charges tied solely to their public criticism of the government or peaceful human rights work. Mass arrests in April and November targeted over 20 Saudi intellectuals and writers. 
 
As the leader of the coalition that began military operations against Houthi forces in Yemen on March 26, 2015, Saudi Arabia has committed numerous violations of international humanitarian law. On June 20, 2019, a United Kingdom appeals court ruled that the UK government’s refusal to consider Saudi Arabia’s laws-of-war violations in Yemen before licensing arms sales was unlawful, a ruling that resulted in the suspension of new UK arms sales to Saudi Arabia until the government makes a new lawful decision on arms licenses or obtains a new court order. 
 
In late July, Saudi Arabia’s Council of Ministers promulgated landmark amendments to three laws that will begin to dismantle the country’s discriminatory male guardianship system, including allowing women 21 and over to travel abroad and to obtain a passport without the approval of a male guardian. The reforms also included important advances for women on civil status issues, allowing wometo register their children’s births with the civil status office, which was previously restricted to fathers or paternal relatives. Changes to the Labor Law introduced a new protection against discrimination in employment on the basis of sex, disability, or age. 
 
“It’s a cruel irony that Saudi women are enjoying new freedoms while some of those who fought hardest for them remain behind bars or facing blatantly unfair trials,” Page said. 

Posted: January 1, 1970, 12:00 am

Migrants seeking asylum wait in line with their case paperwork on October 5, 2019, during a weekly trip by volunteers, lawyers, paralegals and interpreters to the migrant campsite outside El Puente Nuevo in Matamoros, Mexico.

 

 

© 2019 Denise Cathey/The Brownsville Herald via AP

(Washington, DC, January 15, 2020) – The Trump administration is cruelly punishing migrants and eviscerating the right to seek asylum in the United States, Human Rights Watch said today in releasing its World Report 2020. Many state and local governments have stepped up policing in impoverished communities rather than address problems of homelessness, mental health, and gangs with services, support, and economic development.

“The Trump administration’s punitive approach to asylum seekers and poor people of color has pushed people so far from rights protections that even their lives may be at risk,” said Nicole Austin-Hillery, US Program director at Human Rights Watch. “For certain marginalized groups in the US, the government appears to be committing a total assault on their fundamental human rights.”

In the 652-page World Report 2020, its 30th edition, Human Rights Watch reviews human rights practices in nearly 100 countries. In his introductory essay, Executive Director Kenneth Roth says that the Chinese government, which depends on repression to stay in power, is carrying out the most intense attack on the global human rights system in decades. He finds that Beijing’s actions both encourage and gain support from autocratic populists around the globe, while Chinese authorities use their economic clout to deter criticism from other governments. It is urgent to resist this assault, which threatens decades of progress on human rights and our future.

The government has detained migrants, including children, in inhumane, traumatizing, jail-like detention facilities, forcibly separated families, and chilled access to public assistance for immigrants and their US citizen family members. It has returned asylum seekers to Mexico to await hearings in dangerous and unhealthy conditions and moved to block asylum claims from people who pass through other countries before reaching the US border.  

Local policing has effectively “criminalized” communities of color most affected by poverty. Using criminal processes to address social problems fuels incarceration, and the US maintains the world’s highest reported rate of incarceration, despite slight decreases of people locked up in recent years.

Uneven healthcare coverage across US states creates an environment in which women in the US die at much higher rates than they do in comparably wealthy countries from preventable causes of maternal deaths and cervical cancer. The Trump administration’s “gag” rule, which went into effect in August, bars doctors receiving federal family planning (Title X) funds from giving women information on the full range of pregnancy options available.

In its foreign policy, the Trump administration flouted international human rights and humanitarian law, undermined multilateral institutions, and made little use of its leverage to promote human rights abroad. Although the administration sanctioned some abusive individuals and governments, it also partnered with – and publicly praised – governments and leaders with horrific rights records. The administration approved sales of advanced military equipment to Saudi Arabia despite the country’s responsibility for numerous war crimes in Yemen and failed to properly investigate military operations killing civilians in Syria, Afghanistan, and Somalia.

The Trump administration should end abusive policies that punish asylum seekers and subject them and migrant children and families to unnecessary or inhumane detention and instead adopt fair asylum and migrant procedures. Federal, state, and local authorities should invest in the health and well-being of communities to end overpolicing of communities of color and should reverse policies that erode the health and reproductive rights of women.

“The US government needs to act at all levels to tip the scales in favor of human rights over human suffering for everyone in the US,” Austin-Hillery said.

 

Posted: January 1, 1970, 12:00 am

Protesters hold placards during a protest in Kuala Lumpur, Malaysia, Saturday, April 14, 2018. 

© 2018 AP Photo/Sadiq Asyraf
(Bangkok) – Malaysia’s promised human rights reforms stalled in 2019 as the government either backed away from or delayed action on its campaign commitments, Human Rights Watch said today in its World Report 2020.

“Malaysia’s reform process is failing because the ruling coalition’s leaders have lacked the political will to stand up for principles in the face of political opposition,” said Phil Robertson, deputy Asia director. “The government needs to make a renewed effort to follow through on its promises for human rights reforms.”

In the 652-page World Report 2020, its 30th edition, Human Rights Watch reviews human rights practices in nearly 100 countries. In his introductory essay, Executive Director Kenneth Roth says that the Chinese government, which depends on repression to stay in power, is carrying out the most intense attack on the global human rights system in decades. He finds that Beijing’s actions both encourage and gain support from autocratic populists around the globe, while Chinese authorities use their economic clout to deter criticism from other governments. It is urgent to resist this assault, which threatens decades of progress on human rights and our future.

The government has undertaken some positive reform steps, such as repealing the Anti-Fake News law, advancing a draft law to establish an Independent Police Complaints of Misconduct Commission, and strengthening parliamentary independence to consider rights issues. However, it has failed to achieve reforms in key areas such as freedom of expression, freedom of religion, and the rights of lesbian, gay, bisexual and transgender (LGBT) people.

Malaysia withdrew from the Rome Statute of the International Criminal Court in April, barely a month after becoming a formal party to the treaty. The government also retreated from a commitment to completely abolish the death penalty. It recently asserted that it will instead introduce legislation to end the mandatory application of capital punishment for various crimes.

The government has also failed to carry out commitments to abolish or reform a range of abusive laws, including the much-abused Sedition Act. The law continues to be used, particularly against those criticizing Malaysia’s royalty.

Despite promising to repeal “draconian provisions” of the Security Offenses (Special Measures) Act (SOSMA), the government continues to use the law, which allows 28 days of preventive detention with no judicial review for a range of “security offenses” and sets special procedures for trial of such cases, which violate the right to a fair trial. Twelve people, including two Democratic Action Party lawmakers, were detained under the act in October on allegations of supporting a defunct Sri Lankan rebel group.

Police abuse remains a serious problem in Malaysia, as does a lack of accountability for such abuses. In July, the government submitted a bill to create a long-sought independent police misconduct commission. However, some of the bill’s provisions raise concerns about the independence and authority of the proposed commission.

Discrimination against LGBT people in Malaysia is pervasive. Federal law punishes “carnal knowledge against the order of nature” with up to 20 years in prison, while numerous state Sharia laws prohibit both same-sex relations and non-normative gender expression, resulting in frequent arrests of transgender people. In November, five men were sentenced to prison terms and six strokes of the cane for “attempted intercourse against the order of nature.” Four were caned on November 19.

Prime Minister Mahathir Mohamad and other government officials have made statements expressing a lack of support for the LGBT community. In June, Mahathir said that the discussion of LGBT rights was being promoted by “Western countries” and was “unsuitable” for Malaysia.

“The Malaysian government’s human rights record will be judged on its accomplishments, not its promises,” Robertson said. “The government can still turn its record around by standing up and acting on behalf of the country’s marginalized communities.”

Posted: January 1, 1970, 12:00 am

Protesters march on a street during a rally against the extradition law proposal on June 9, 2019 in Hong Kong. 

© 2019 Anthony Kwan/Getty Images
(New York) – The Chinese government’s heightened repression faced unprecedented resistance from Hong Kong people and growing criticisms from concerned governments, as the Chinese Communist Party marked the 70th anniversary of its rule, Human Rights Watch said today in its World Report 2020.

This backlash was evident in months of demonstrations opposing Beijing’s encroachment on Hong Kong’s freedoms and public statements by countries critical of the oppression of Turkic Muslims in Xinjiang. 

“President Xi Jinping’s policies have been challenged by massive protests in Hong Kong and joint statements at the United Nations,” said Sophie Richardson, China director at Human Rights Watch. “Governments and international institutions should stand with those defending human rights in China and push back against Beijing’s repressive policies.”

In the 652-page World Report 2020, its 30th edition, Human Rights Watch reviews human rights practices in nearly 100 countries. In his introductory essay, Executive Director Kenneth Roth says that the Chinese government, which depends on repression to stay in power, is carrying out the most intense attack on the global human rights system in decades. He finds that Beijing’s actions both encourage and gain support from autocratic populists around the globe, while Chinese authorities use their economic clout to deter criticism from other governments. It is urgent to resist this assault, which threatens decades of progress on human rights and our future.

The Chinese government continued to subject Uyghurs and other Turkic Muslims in the northwestern Xinjiang region to severe repression. An estimated one million Muslims are being indefinitely held in “political education” camps, where they are forced to disavow their identity and swear loyalty to the Communist Party. Authorities also forcibly separated some of the children whose parents are detained or in exile from their families, and are holding them in state-run “child welfare” institutions and boarding schools. They are also imposing mass surveillance systems – equipped with latest technologies – on the region’s residents, scrutinizing them and restricting their movement.

In Hong Kong in April, a court sentenced Benny Tai and Chan Kin-man, scholars who led the 2014 pro-democracy “Umbrella Movement,” to 16-month prison terms on public nuisance charges. In June, anger over proposed revisions to laws that would allow extradition of criminal suspects to mainland China prompted a million people to protest. The Hong Kong government’s initial refusal to withdraw the bill and the police’s excessive use of force led to escalating protests. Hong Kong authorities repeatedly rejected calls for an independent investigation of allegations of police abuse. Since June, authorities have arrested nearly 7,000 people and denied at least 17 applications for protests.

In Tibet, authorities continue to severely restrict freedoms of speech, assembly, and religion. From May to July 2019, thousands of monks and nuns were reportedly expelled from a monastery in Sichuan and their dwellings demolished. In November, Yonten, a former Buddhist monk, became the 156th Tibetan to die of self-immolation since March 2009.

In 2019, authorities continued to crack down on human rights activists, journalists, and lawyers. In July, two months after being released from prison, activist Ji Sizun died from unidentified illnesses, continuing a pattern in recent years in which prominent human rights defenders died in custody or soon after release. Courts in Hubei and Sichuan sentenced activists Liu Feiyue and Huang Qi to 5 and 12 years in prison respectively. Authorities across the country also detained activists and netizens for supporting the Hong Kong protests, including journalist Huang Xueqin.

Authorities deepened their assault on freedom of expression. Police nationwide detained or summoned hundreds of Twitter users, forcing them to delete tweets criticizing the government or to close their accounts. The government launched a disinformation campaign that framed Hong Kong’s protesters as violent and extreme, prompting Twitter and Facebook to suspend hundreds of accounts originating in China suspected of being part of the campaign.

Beijing continued to muzzle criticism abroad by monitoring Chinese students on university campuses, harassing critics’ family members based in China, censoring Chinese social media platforms which are popular among the diaspora, and leveraging China’s economic clout. In October, after a National Basketball Association (NBA) team manager tweeted his support for the Hong Kong protests, Chinese authorities canceled the broadcasts of NBA games in China and demanded the manager’s firing. The NBA did not fire him.

A number of governments increasingly called out China’s repression, particularly through interventions regarding Xinjiang at the United Nations. In response, China organized a coalition of notorious rights-violating states to rebut the allegations. The United States government sanctioned 28 Chinese entities over Xinjiang abuses. Few other governments moved beyond rhetorical condemnations of Beijing’s egregious human rights violations to take concrete actions.

Posted: January 1, 1970, 12:00 am

Screenshot from Netflix's "Porta dos Fundos's Christmas Special: Christ's First Temptation," December 26, 2019.

© 2019 Netflix Brazil / via AFP - Getty Images

In the recent Netflix comedy The First Temptation of Christ, Jesus returns home from the desert to a surprise party. But he is not alone. He is accompanied by his presumed boyfriend.

On January 8, Rio de Janeiro appellate judge Benedicto Abicair heeded the demands of a Brazilian Catholic organization and ordered Netflix to take down the special, stating it was “likely to cause more serious and irreparable damage than its suspension.” Judge Abicair also held the decision as “beneficial not only to the Christian community, but to Brazilian society which is mostly Christian.”

But the next day, the president of Brazil’s Supreme Court overturned Judge Abicair’s decision, highlighting the importance of freedom of expression in the country’s constitutional order. In his ruling, the president stated it should not be assumed “that a humorous satire has the power to undermine values of the Christian faith, whose existence goes back over 2,000 years[.]” Brazil’s Supreme Court has rejected other attempts at anti-LGBT censorship in the past.

Judge Abicair’s decision blocking the show also violated international human rights law. As the UN Special Rapporteur on freedom of religion or belief recently emphasized in a report examining the interrelated and mutually reinforcing rights of freedom of religion or belief and freedom of expression, “the international normative standard is clear: States may not impose punishment for insults, criticism or giving offence to religious ideas, icons or places, nor can laws be used to protect the feelings of religious communities.”

Judge Abicair’s censorship attempt came two weeks after attackers lobbed Molotov cocktails at the headquarters of Porta dos Fundos, the production company behind The First Temptation of Christ, in response to the special. The Civil Police identified a suspect, who has since fled to Russia and has been expelled from the far-right political party to which he belonged.

The case however is not yet closed as a full appeals court will need to hear the case, as well as an additional Supreme Court justice, who had jurisdiction over it but was unavailable for yesterday’s decision. But Brazil’s public officials should use this opportunity to express their opposition to this all-too-familiar affront to democratic and artistic liberties in Brazil.   

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

The picture shows the emblem of the United States Department of Health and Human Services.

© Tim Brakemeier/picture-alliance/dpa/AP Images

The United States Department of Health and Human Services (HHS) funds thousands of organizations that work on important health and social welfare issues including adoption and foster care, youth homelessness, and sexuality education. Currently, recipients of HHS funding cannot discriminate based on sexual orientation or gender identity. But a new Trump Administration proposal could change that.

The proposed rule would allow organizations to receive federal funds even if they discriminate in their services. While they consider enacting the rule, HHS will stop enforcing existing regulations prohibiting grantees from discriminating based on sexual orientation and gender identity.

Today, Human Rights Watch submitted a comment to HHS, detailing how the proposed rule undermines children’s rights as well as the rights of lesbian, gay, bisexual, and transgender (LGBT) people, and urging HHS to reject it.

The rule would affect a broad range of federally funded programs. HHS dispenses more than US$500 billion annually to service providers, including adoption and foster care agencies.

When agencies are not required to comply with nondiscrimination provisions, they may turn away LGBT parents. Human Rights Watch has documented how discrimination in child welfare can harm families like Chris and CJ, who almost gave up on parenting after being turned away from three agencies because they were gay. Luckily, they persisted and found a fourth agency, and were able to foster and adopt children who have thrived in their care.  

While civil rights laws often prohibit discrimination based on race, color, national origin, disability, and age, few expressly prohibit discrimination based on sexual orientation and gender identity. This year, the House of Representatives passed the Equality Act, which would protect LGBT people from discrimination in federally funded programs as well as employment, housing, education, and public services. But the measure is stalled in the US Senate.

The Trump Administration should abandon this proposal and ensure federally funded programs serve everyone, regardless of their sexual orientation or gender identity. In the meantime, the Senate should pass the Equality Act, ensuring no administration can undermine nondiscrimination protections and making clear discrimination against LGBT people is wrong no matter where it occurs.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Secretary Alex Azar
Department of Health and Human Services
Hubert H. Humphrey Building
200 Independence Avenue SW., Room 445-G
Washington, DC 20201

RE: Proposed Rule on Health and Human Services Grants Regulation

Dear Secretary Azar,

Human Rights Watch opposes the Proposed Rule on Health and Human Services Grants Regulation (RIN 0991-AC16).[1] We also oppose the decision of the Department of Health and Human Services (HHS), effective immediately, that it will not enforce certain existing nondiscrimination protections in its grantmaking. The regulatory protections enacted in 2016 were designed to ensure that federal funding is not used to discriminate on the basis of sexual orientation and gender identity, among other grounds.[2] With the proposed rule, HHS would give grantees a license to discriminate that jeopardizes the rights of lesbian, gay, bisexual, and transgender (LGBT) people and compromises the effectiveness of federally funded health and welfare programs.

In recent years, Human Rights Watch has conducted firsthand research on the discrimination that LGBT people face in health and welfare programs. In February 2018, Human Rights Watch released a report entitled “All We Want is Equality”: Religious Exemptions and Discrimination Against LGBT People in the United States, which documented how state religious exemption laws jeopardize LGBT people’s access to physical and mental health care, adoption and foster care, and other goods and services.[3] In July 2018, Human Rights Watch released “You Don’t Want Second Best”: Anti-LGBT Discrimination in US Health Care, which specifically explored the barriers that LGBT people face in healthcare settings.[4] Finally, in November 2018, Human Rights Watch released Living at Risk: Transgender Women, HIV, and Human Rights in South Florida, which detailed in part how discrimination in healthcare programs and settings prevents transgender women from obtaining effective HIV prevention, treatment, and care.[5] Our opposition to the proposed rule is informed by the extensive research that formed the basis for these reports.

The proposed rule is a step in the wrong direction. It fails to recognize the significant discrimination and daunting barriers that many LGBT people encounter when seeking health and welfare services. It exacerbates these problems by sending a signal to providers and LGBT people alike that discrimination is permissible. It jeopardizes the rights of children, including LGBT children. And it promotes a dangerous approach to religious freedom that treats religious belief not as a shield, but as a sword used to deny other people their rights. To safeguard the rights of all people, Human Rights Watch urges HHS not to proceed with the proposed rule.

I. LGBT People Face Persistent Discrimination in Health and Welfare Programs

Under Executive Order 13563, HHS may only propose a rule where it has made a reasoned determination that a rule’s benefits outweigh its costs and it is tailored to impose “the least burden on society.”[6] However, the proposed rule fails to incorporate an understanding of the barriers that LGBT people continue to face in accessing health and welfare programs.

Data consistently show that LGBT people are at heightened risk for a variety of physical and mental health issues.[7] Yet LGBT people are less likely to have the means to seek medical care, and are twice as likely to be uninsured as their heterosexual, cisgender counterparts.[8] When they do seek care, they often face discrimination. In a nationally representative survey conducted by the Center for American Progress in 2017, 8 percent of lesbian, gay, and bisexual respondents and 29 percent of transgender respondents reported that a healthcare provider had refused to see them because of their sexual orientation or gender identity in the past year.[9]

Discrimination contributes to the physical and mental health issues that LGBT people experience. In a nationally representative survey from 2017, 68.5 percent of LGBT people who experienced discrimination in the past year said it negatively affected their psychological well-being, while 43.7 percent said it negatively affected their physical well-being.[10] Researchers have found that “in US regions where LGB people have better social and legal conditions, they also have better health and lesser health disparities compared with heterosexuals.”[11] Repealing protections for LGBT people may not only make it more difficult to curb discrimination, but may actually contribute to adverse health outcomes.

While healthcare settings offer particularly vivid examples, LGBT people interviewed by Human Rights Watch have also described discrimination in adoption and foster care, antiviolence programs and shelters, homeless shelters, programs for runaway and homeless youth, sexuality education, and other domains that will be affected by the proposed rule. Removing explicit nondiscrimination protections for sexual orientation and gender identity will put LGBT people at heightened risk in federally funded programs across these areas.

The proposed rule also sows confusion for grantees. Under Executive Order 13672, federal contractors are not permitted to discriminate in hiring and employment on the basis of sexual orientation or gender identity.[12] The proposed rule is likely to burden contractors and grantees by imposing inconsistent nondiscrimination requirements in different domains. The least burdensome option for society is to consistently prohibit discrimination based on sexual orientation and gender identity in both hiring and employment and in the provision of goods and services.

II. The Proposed Rule Jeopardizes LGBT Rights

Human Rights Watch has documented how discrimination on the basis of sexual orientation or gender identity prevents LGBT people from obtaining goods and services. The administration has announced or undertaken efforts to narrowly construe prohibitions on sex discrimination under federal law,[13] making explicit protections for sexual orientation and gender identity in HHS grantmaking particularly important.

Individuals interviewed by Human Rights Watch described three distinct difficulties that LGBT people face in obtaining health and welfare services. First, in our research, Human Rights Watch has documented multiple cases where LGBT people were refused services that were provided to heterosexual, cisgender people. At times, those refusals led individuals to delay or even forego the services they sought. In the domain of adoption and foster care, for example, one couple in Tennessee described being turned away from three different agencies and nearly giving up on becoming parents before finding an agency that would place children with a same-sex couple.[14] Similarly, same-sex couples in Michigan noted that being turned away from religiously affiliated adoption and foster care agencies significantly limited their ability to form a family, requiring lengthy travel and other barriers that heterosexual couples did not confront.[15] More than a dozen interviewees were unaware of local programs for people experiencing intimate partner violence and/or homelessness that were open to transgender individuals, leaving them unable to access vital programs available to others.[16]

While service refusals are a particularly glaring form of discrimination, they are not the only kind of discrimination LGBT people experience. Interviewees have described incidents of being mocked for their gender expression or repeatedly addressed by the wrong name or pronouns,[17] being chastised and prayed over during routine testing for HIV/AIDS,[18] and other forms of discrimination and disrespect. Allowing grantees to discriminate based on sexual orientation and gender identity increases the likelihood of this kind of mistreatment and humiliation in federally funded programs.

These various factors contribute to a third barrier that is exacerbated by discrimination: LGBT people’s hesitation to seek out goods and services in environments where they feel discrimination is likely. Practitioners who work with LGBT individuals noted that many of their clients had foregone care for years because of the discrimination they had faced in the past or felt they were likely to face from providers. Kelley Blair, who runs the Diversity Center in Oklahoma City, Oklahoma, noted from her practice that:

A lot of people have never been to therapy. And they may be 30 or 40 years old. They’ve waited a very long time to come in for services. They delay transitioning until they’re 40 or 50 years old. Some haven’t gone to a primary care health provider for basic things, basic healthcare issues. Our trans males haven’t gone in for pap smears until they’re 30 or 40 years old, some haven’t had basic HIV/AIDS screenings. And that’s because of the discomfort they feel with a general practitioner.[19]

LGBT individuals interviewed by Human Rights Watch expressed hesitation about trying to adopt or foster children from agencies they perceived to be hostile to LGBT individuals or seeking commercial services where they felt they might be turned away. On the heels of efforts to roll back nondiscrimination protections for transgender people under the Affordable Care Act, moving ahead with the proposed rule will only further the impression that discrimination against LGBT people is legally permissible and deter people from seeking the goods and services they need.

III. The Proposed Rule Jeopardizes Children’s Rights

In addition to the rights of LGBT people, permitting HHS grantees to discriminate in federally funded programs will jeopardize the rights of children. When child welfare programs are allowed to discriminate against LGBT parents, for example, children may face longer waiting periods or even age out of the system as a result. For LGBT children, these restrictions may prevent placements with families who are particularly well equipped to provide a loving, affirming home.

The proposed rule would also affect children’s rights outside of the child welfare context. Allowing providers of sexuality education to discriminate on the basis of sexual orientation or gender identity can, for example, prevent LGBT children from receiving information about sex and sexuality that is crucial to their sexual health and safety. And in interviews, LGBT young people experiencing homelessness have told Human Rights Watch that they feel uncomfortable and even unsafe in shelters that do not respect their gender identity and expression.[20] In these and other domains, the proposed rule would not only endanger LGBT rights, but the rights of children as well.

IV. The Proposed Rule Is Not Needed to Protect Religious Freedom

A portion of the proposed rule suggests that it is needed to safeguard religious freedom for recipients of federal funding.[21] As discussed more fully above, this argument misunderstands the freedom of religion, turning it from a shield for an individual’s beliefs into a sword used to deprive others of their rights.

The proposed rule would replicate some of the worrying features of recent religious exemptions in the United States. Unlike true religious exemptions, it would not attempt to strike a balance between equality and religious liberty, and instead would simply eliminate nondiscrimination protections wholesale in the name of religious objectors. It shows no regard for the harm that eliminating nondiscrimination protections would inflict on those who are at particular risk of losing access to goods and services. It instead would allow grantees to discriminate whether or not they harbor a religious objection, turning narrow exceptions for religious objectors into a universal rule. The result would not only fail to recognize the state’s legitimate interest in making federally funded services open to all, but also misunderstand the role of exemptions by turning narrow and particular exceptions into a sweeping license to discriminate. 

V.        Rights at Stake

The proposed rule will function in practice to limit a variety of rights under international law. Among these are the right to nondiscrimination, the right to health, and children’s rights.

  1. The Right to Freedom from Discrimination

The right to freedom from discrimination is a central principle of international human rights law.[22] As a party to the International Covenant on Civil and Political Rights (ICCPR), the United States is obligated to guarantee effective protection against discrimination, including discrimination based on sex, sexual orientation, and gender identity.[23] 

The UN Human Rights Committee, which provides authoritative guidance on the ICCPR, has clarified that the freedom of thought, conscience, and religion does not protect religiously motivated discrimination against women, or racial and religious minorities.[24] It has urged states considering restrictions on the manifestation of religion or belief to “proceed from the need to protect all rights guaranteed under the Covenant, including the right to equality and non-discrimination.”[25]

As Human Rights Watch has documented, religious exemptions at the state level have emboldened service providers to discriminate against LGBT people. Indeed, there is substantial evidence that permitting such discrimination is the primary motivation for some of these exemptions.[26] By granting virtually unfettered discretion to providers who refuse to meet the needs of LGBT people – and declining to provide any safeguards to mitigate the harm that such refusals inflict – the proposed rule likely fails to satisfy the US’s obligations under international law.

  1. Right to Health

Exemptions that deny or deter people from seeking healthcare services jeopardize the right to health. The International Covenant on Economic, Social and Cultural Rights (ICESCR) recognizes “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health,”[27] without discrimination based on race, sex, religion, or “other status,” including sexual orientation and gender identity.[28] The United States has signed but not ratified the ICESCR, obligating it to refrain from actions that undermine the object and purpose of the treaty.[29] In addition, the ICESCR and the jurisprudence of the Committee on Economic, Social and Cultural Rights provide a useful and authoritative guide to the kind of state action necessary to advance and protect the right to health.

When states enact laws allowing healthcare providers to deny service because of an individual’s sexual orientation or gender identity, they undermine the right to health. Individuals may be denied services outright; have difficulty finding services of comparable quality, accessibility, or affordability; or avoid seeking services for fear of being turned away.

The Committee on Economic, Social and Cultural Rights has noted that the right to health is threatened both by direct discrimination and by indirect discrimination, in which laws appear neutral on their face but disproportionately harm a minority group in practice.[30] To promote the right to health, the Committee has thus urged states to “adopt measures, which should include legislation, to ensure that individuals and entities in the private sphere do not discriminate on prohibited grounds.”[31] 

  1. Children’s Rights

The United States is obligated to adopt special measures to protect children, as required by the ICCPR.[32] These protections include appropriate economic, social, and cultural measures.[33] Consistent with the right to equality before the law and to equal protection of the law,[34] measures of protection for children should be “aimed at removing all discrimination in every field.”[35]

The Convention on the Rights of the Child, signed but not ratified by the United States, provides an authoritative understanding of children’s rights globally and the measures needed to ensure they are respected and protected.[36]

The convention specifies that the best interests of the child should be a primary consideration in all actions concerning children, whether taken by public or private social welfare institutions, and should be the paramount consideration where adoption is concerned.[37] Permitting child welfare agencies to turn away qualified parents because of their sexual orientation or gender identity, however, limits the options available to children in need of placement and may delay or deny foster or adoptive placements for those children. Moreover, doing so may pose a particular threat for LGBT children who are in the care of agencies that harbor objections to LGBT people.

The convention additionally recognizes that children, including LGBT children, have the right to freedom from discrimination, the right to seek and receive information, and the right to the highest attainable standard of physical and mental health.[38]

Permitting discrimination in federally funded health and welfare programs undermines these rights and denies children the special measures of protection to which they are entitled.

VI. Conclusion

The proposed rule raises serious concerns about discrimination and access to substantive goods and services that are advanced by HHS grantmaking. It is virtually certain to limit LGBT people’s access to federally funded programs, license refusals of service and outright discrimination, and deter LGBT people from accessing the goods and services they need. It is also likely to jeopardize the rights of children, including LGBT children, who should be served by these programs. In these ways, it jeopardizes the right to nondiscrimination, the right to health, and children’s rights under international law. For all of these reasons, Human Rights Watch calls on HHS to reject the proposed rule.

Sincerely,

Ryan Thoreson
Researcher, LGBT Rights Program
Human Rights Watch

 

[1] Department of Health and Human Services, “HHS Issues Proposed Rule to Align Grants Regulation with New Legislation, Nondiscrimination Laws, and Supreme Court Decisions,” November 1, 2019, https://www.hhs.gov/about/news/2019/11/01/hhs-issues-proposed-rule-to-al... (accessed December 17, 2019).

[2] See Health and Human Services Grants Regulation, 81 FR 89393 (December 12, 2016).

[3] Human Rights Watch, “All We Want is Equality”: Religious Exemptions and Discrimination against LGBT People in the United States, February 19, 2018, https://www.hrw.org/report/2018/02/19/all-we-want-equality/religious-exe....

[4] Human Rights Watch, “You Don’t Want Second Best”: Anti-LGBT Discrimination in US Health Care, July 23, 2018, https://www.hrw.org/report/2018/07/23/you-dont-want-second-best/anti-lgb....

[5] Human Rights Watch, Living at Risk: Transgender Women, HIV, and Human Rights in South Florida, November 20, 2018, https://www.hrw.org/report/2018/11/20/living-risk/transgender-women-hiv-....

[6] Improving Regulation and Regulatory Review, Executive Order 13563 (January 18, 2011), https://obamawhitehouse.archives.gov/the-press-office/2011/01/18/executi... (accessed December 16, 2019).

[7] See Centers for Disease Control and Prevention, “About LGBT Health,” March 24, 2017, https://www.cdc.gov/lgbthealth/about.htm (accessed December 17, 2019).

[8] Kellan Baker and Laura E. Durso, “Why Repealing the Affordable Care Act is Bad Medicine for LGBT Communities,” Center for American Progress, March 22, 2017, https://www.americanprogress.org/issues/lgbt/news/2017/03/22/428970/repe... (accessed December 17, 2019).

[9] Shabab Ahmed Mirza and Caitlin Rooney, “Discrimination Prevents LGBTQ People from Accessing Health Care,” Center for American Progress, January 18, 2018, https://www.americanprogress.org/issues/lgbt/news/2018/01/18/445130/disc... (accessed December 17, 2019).

[10] Sejal Singh and Laura E. Durso, “Widespread Discrimination Continues to Shape LGBT People’s Lives in Both Subtle and Significant Ways,” Center for American Progress, May 2, 2017, https://www.americanprogress.org/issues/lgbt/news/2017/05/02/429529/wide... (accessed December 17, 2019).

[11] Brief of Ilan H. Meyer, Ph.D., and Other Social Scientists and Legal Scholars Who Study the LGB Population as Amici Curiae Supporting Respondents, Masterpiece Cakeshop v. Colorado Civil Rights Commission, No. 16-111 (U.S. 2017), p. 26.

[12] Jeremy W. Peters, “Obama’s Protections for L.G.B.T. Workers Will Remain Under Trump,” New York Times, January 30, 2017, https://www.nytimes.com/2017/01/30/us/politics/obama-trump-protections-l... (accessed December 17, 2019). The nondiscrimination protections were weakened when President Trump rescinded Executive Order 13673, which required contractors to provide documentation that they were in compliance, but the requirements themselves remain in place. See Mary Emily O’Hara, “LGBTQ Advocates Say Trump’s New Executive Order Makes them Vulnerable to Discrimination,” NBC News, March 29, 2017, https://www.nbcnews.com/feature/nbc-out/lgbtq-advocates-say-trump-s-news... (accessed December 17, 2019).

[13] See Ryan Thoreson, “Trump Administration Moves to Roll Back Health Care Rights,” Human Rights Watch dispatch, August 13, 2019, https://www.hrw.org/news/2019/08/13/trump-administration-moves-roll-back....

[14] Human Rights Watch interview with Chris and CJ P., Nashville, Tennessee, January 8, 2018.

[15] Human Rights Watch phone interview with Kristy and Dana Dumont, Dimondale, Michigan, January 29, 2018; Human Rights Watch interview with Erin Busk-Sutton, Detroit, Michigan, January 18, 2018.

[16] See, for example, Human Rights Watch interview with Judith N. (pseudonym), Johnson City, Tennessee, December 10, 2017; Human Rights Watch interview with Nadia Valdez, Howard Brown Health, Chicago, Illinois, March 26, 2018; Human Rights Watch interview with Andy Dugan, Equality Ohio, Columbus, Ohio, July 31, 2019.

[17] Human Rights Watch interview with Holly Calvasina, Choices, Memphis, Tennessee, January 10, 2018; Human Rights Watch interview with Renae T., Memphis, Tennessee, January 12, 2018.

[18] Human Rights Watch interview with Trevor L. (pseudonym), Memphis, Tennessee, January 10, 2018; Human Rights Watch interview with Kayla Gore, OutMemphis, Memphis, Tennessee, January 10, 2018.

[19] Human Rights Watch phone interview with Kelley Blair, Oklahoma City, Oklahoma, November 17, 2017.

[20] Human Rights Watch interview with Trace C. (pseudonym), New York City, New York, January 30, 2018; Human Rights Watch interview with Kyle P. (pseudonym), New York City, New York, January 30, 2018; see also Human Rights Watch interview with Elliott DeVore, Knoxville, Tennessee, December 8, 2017.

[21] Health and Human Services Grant Regulation, 84 FR 63831, 63832-63833 (November 19, 2019).

[22] International protections for the right to freedom from discrimination include the International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by the United States on June 8, 1992, arts. 2, 4, 26; International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force January 3, 1976, art. 2(2); Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted December 18, 1979, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force September 3, 1981, art. 2; International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), adopted December 21, 1965, G.A. Res. 2106 (XX), annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195, entered into force January 4, 1969, ratified by the United States on October 21, 1994, art. 5; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Migrant Workers Convention), adopted December 18, 1990, G.A. Res. 45/158, annex, 45 U.N. GAOR Supp. (No. 49A) at 262, U.N. Doc. A/45/49 (1990), entered into force July 1, 2003, art. 1(1), art. 7.

[23] ICCPR, art. 26. The Human Rights Committee has clarified that article 26 of the ICCPR prohibits discrimination based on sexual orientation. See UN Human Rights Committee, Toonen v Australia, CCPR/C/50/D/488/1992 (March 31, 1994), http://hrlibrary.umn.edu/undocs/html/vws488.htm (accessed December 17, 2019). The Human Rights Committee frequently expresses concern about discrimination based on gender identity in its concluding observations on state compliance with the ICCPR. See UN Human Rights Committee, Concluding Observations: Azerbaijan, U.N. Doc CCPR/C/AZE/CO/4 (November 16, 2016), paras. 8-9; UN Human Rights Committee, Concluding Observations: Burkina Faso, U.N. Doc CCPR/C/BFA/CO/1 (October 17, 2016), paras. 13-14; UN Human Rights Committee, Concluding Observations: Colombia, U.N. Doc CCPR/C/COL/CO/7 (November 17, 2016), paras. 16-17; UN Human Rights Committee, Concluding Observations: Costa Rica, U.N. Doc CCPR/C/CRI/CO/6 (April 21, 2016), paras. 11-12; UN Human Rights Committee, Concluding Observations: Denmark, U.N. Doc CCPR/C/DNK/CO/6 (August 15, 2016), paras. 13-14; UN Human Rights Committee, Concluding Observations: Ecuador, U.N. Doc CCPR/C/ECU/CO/6 (August 11, 2016), paras. 11-12; UN Human Rights Committee, Concluding Observations: Ghana, U.N. Doc CCPR/C/GHA/CO/1 (August 9, 2016), paras. 43-44; UN Human Rights Committee, Concluding Observations: Jamaica, U.N. Doc CCPR/C/JAM/CO/4 (November 22, 2016), paras. 15-16; UN Human Rights Committee, Concluding Observations: Kazakhstan, U.N. Doc CCPR/C/KAZ/CO/2 (August 9, 2016), paras. 9-10; UN Human Rights Committee, Concluding Observations: Kuwait, U.N. Doc CCPR/C/KWT/CO/3 (August 11, 2016), paras. 12-13; UN Human Rights Committee, Concluding Observations: Morocco, U.N. Doc CCPR/C/MAR/CO/6 (December 1, 2016), paras. 11-12; UN Human Rights Committee, Concluding Observations: Slovakia, U.N. Doc CCPR/C/SVK/CO/4 (November 22, 2016), paras. 14-15; UN Human Rights Committee, Concluding Observations: South Africa, U.N. Doc CCPR/C/ZAF/CO/1 (April 27, 2016), paras. 20-21.

[24] See Human Rights Committee, General Comment 28: Article 3 (The Equality of Rights Between Men and Women), March 29, 2000, UN Doc. CCPR/C/21/Rev.1/Add.10, para. 21 (“Article 18 may not be relied upon to justify discrimination against women by reference to freedom of thought, conscience, and religion.”); Human Rights Committee, General Comment 22: Article 18 (1993), para. 2 (“The committee therefore views with concern any tendency to discriminate against any religion or belief for any reason, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility on the part of a predominant religious community.”), in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.1, at 35 (1994); ibid. at para. 7 (noting that “no manifestation of religion or belief may amount to … advocacy of national, racial, or religious hatred that constitutes incitement to discrimination” and that “States parties are under the obligation to enact laws to prohibit such acts.”).

[25] Human Rights Committee, General Comment 22, para. 8.

[26] Human Rights Watch, “All We Want is Equality.”

[27] ICESCR, art. 12.

[28] ICESCR, art. 2(2); UN Committee on Economic, Social and Cultural Rights, General Comment No. 20: Non-Discrimination in Economic, Social and Cultural Rights, U.N. Doc. E/C.12/GC/20 (July 2, 2009), para. 32.

[29] Vienna Convention on the Law of Treaties (1980), 1155 U.N.T.S. 331, art. 18.

[30] UN Committee on Economic, Social and Cultural Rights, General Comment No. 20, para. 10.

[31] Ibid., para. 11.

[32] ICCPR, art. 24; Human Rights Committee, General Comment No. 17: Article 24 (Rights of the Child) (April 7, 1989), para. 1, in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1, at 23 (1994).

[33] Human Rights Committee, General Comment No. 17, para. 3.

[34] ICCPR, art. 26.

[35] Human Rights Committee, General Comment No. 17, para. 5. As noted in section IV.a., above, the right to freedom from discrimination includes freedom from discrimination on the basis of sex, sexual orientation, or gender identity.

[36] Convention on the Rights of the Child, adopted November 20, 1989, G.A. Res. 44/25, annex, 44 U.N. GAOR Supp.

[37] Ibid., arts. 3(1), 21.

[38] Ibid., arts. 2, 13, 24.

Posted: January 1, 1970, 12:00 am

Demonstrators in Tbilisi burn an LGBT flag before the screening of the film And Then We Danced.

© 2019 RFE/RL, Mzia Saganelidze

Conflicts around gender and sexuality are often indicators of social tension. A recent public clash over the screening of a film in Tbilisi gives insight into the fault lines of contemporary politics in Georgia.

Georgia’s democratic gains have been seriously tested by the ruling party backtracking on electoral reforms. Politics is growing increasingly polarized, and last month the gulf between the far-right and progressive values erupted in violent confrontation outside a cinema where the story of a romance between two men unfolded on screen.

The film And Then We Danced, which plunges viewers into the world of the Georgian National Ballet, is by Swedish-born filmmaker Levan Akin, (who is of Georgian descent), and is Sweden’s “Best International Feature” entry for the 2020 Oscars.

And Then We Danced opened for a limited, three-day screening on November 8, prompting fervent backlash from far right and religious groups, who reacted to the gay theme as a threat to their way of life and to Georgian tradition.

Traditional dance is fundamental to Georgia’s heritage and the National Ballet is a source of national pride. Any Georgian describing traditional dance will tell you how they’re moved by the beating drums and dancers’ movement. It hits your soul. It’s the sound of home.

Akin’s film is a commentary on masculinity and tradition in Georgian culture. As the film’s opening sequence eloquently explains, “Georgian dancing is based on masculinity. There is no room for weakness.” The plot follows a young dancer as he grapples with traditional ideals of masculinity, his passion for dance, and his growing desire for his male rival.

Akin approaches culture and tradition as dynamic, not static, and encourages the audience to rethink gender norms in light of his expansive and inclusive vision of tradition.

As the film was screened in November, protesters took to the streets. They attempted to stop moviegoers from entering the cinema and tried to storm the area but were held back by police who had the area cordoned off. They burned an LGBT flag while a priest recited a prayer, set off firecrackers, and threw smoke bombs at moviegoers. Protesters chanted “long live Georgia” and “shame,” some holding crosses and religious icons.

The Interior Ministry deployed police at the cinema to protect public safety and free expression.

Ana Subeliani was hospitalized after being struck by a stone outside the cinema, where she stood in solidarity with the rights of LGBT people. She described being suddenly hit by “a heavy object to the head.” She felt extreme pain, with blood gushing from her head, and even thought she had lost an eye. Describing it as the “most aggressive protest of this kind” that she had seen in recent years, Ana told me, “As soon as we showed up, homophobic protesters surrounded our group and insulted us. They are focused on demonizing and marginalizing LGBT people.”

Ana’s Facebook post detailing the incident soon attracted media attention.

One person is facing criminal charges for the attack on Subeliani, while 27 others were detained by police on misdemeanor disobedience charges.

The controversy surrounding Akin’s film echoes the violent disruption by thousands of protesters, including Orthodox clergy, of a gathering in Tbilisi marking the International Day Against Homophobia, Transphobia, and Biphobia in May 2013. Police evacuated LGBT activists to safety, but failed to contain the mob, who threw stones and other objects at a van carrying the activists and injured a journalist.

As the country stepped closer to the EU, Georgia adopted anti-discrimination laws in 2014. However, homosexuality remains highly stigmatized, and is at the epicenter of “culture wars” between progressives and conservatives, with antigay elements backed by the massively influential church, at times with hateful rhetoric. Georgia’s ombudsman says that LGBT people experience abuse, intolerance, and discrimination in every sphere of life.

Protecting minority rights is a cornerstone of democracy. But the government is falling short on its obligations. As Georgian authorities look for allies in this polarized political environment, they should be mindful of the high stakes and real fault lines on human rights and should not condone or encourage violence against LGBT people and their supporters. More needs to be done to deter and condemn homophobic statements by public officials. Tiptoeing around ultra-nationalists, and sometimes portraying their statements as legitimate speech encourages further homophobia and violence.

“I made this film with love and compassion,” Akin said after the violent protests against his film. “It is my love letter to Georgia and to my heritage. With this story I wanted to reclaim and redefine Georgian culture to include all, not just some.”

These are the values the Georgian government should embrace and protect.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

A poster by intersex activist Pidgeon Pagonis

© 2017 Human Rights Watch

The Massachusetts Medical Society (MMS) passed a resolution supporting the principle that intersex children should not be operated on until they are old enough to make the decision themselves.

This deferral of all medically unnecessary intervention is in line with medical evidence, bioethics, human rights standards, and every intersex-led policy organization in the US.

“Intersex” refers to the estimated 1.7 percent of people born with sex characteristics – such as chromosomes, gonads, or genitals – that differ from social expectations of female or male. Except in very rare cases when the child cannot urinate or internal organs are exposed, these natural variations are medically benign and do not require surgery.

But in the 1960s, surgeons in the United States popularized “normalizing” cosmetic operations on intersex infants, including reducing the size of the clitoris or increasing the size of the vagina. These procedures are not designed to treat a medical problem and there is no evidence such operations help children “fit in” or “function in society,” which some surgeons say is their aim. Every intersex-led policy organization in the world opposes the operations, which carry risks of scarring, loss of sexual sensation, incontinence, sterilization, and psychological trauma.

For decades, intersex advocates have asked governments and the medical community to defer these surgeries until the patient can participate in the decision about what will happen to their own bodies. but a small subset of surgeons who defend the practice have thwarted efforts to protect intersex people’s rights.

The United Nations have condemned the operations 48 times since 2011. They’re joined by the World Health Organization, three former US surgeons-general, Physicians for Human Rights, the American Academy of Family Physicians – the largest support group in the country for intersex people and their families – Lambda Legal, and the ACLU.

Massachusetts senator and presidential hopeful Elizabeth Warren tweeted in October that “Intersex people must have a say in decisions that affect their bodies.”

Kimberly Zieselman, an intersex woman and executive director of Massachusetts-based interACT: Advocates for Intersex Youth, testified in support of the MMS resolution when it was introduced in 2018. The resulting policy states that MMS: “Respects the rights of the patient to participate in decisions and, except when life-threatening circumstances require emergency intervention, defers medical or surgical intervention until the child is able to participate in decision making.”

It’s an example of how centering patient autonomy can withstand bias against bodily diversity.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

A rainbow flag is carried during a parade as a part of the Seoul Queer Culture Festival in Seoul, South Korea, Saturday, July 14, 2018.

© 2018 AP Photo/Lee Jin-man

"Youth Standing Up for Human Rights" — this year’s Human Rights Day theme — has particular resonance for lesbian, gay, bisexual and transgender youth around the world. LGBT children and young adults face social stigma and experience widespread discrimination and abuse; serious human rights violations that can have lifelong consequences, including for their health. They struggle to find inclusive education and supportive health care. And they often experience daunting pressure to suppress, conceal or change their sexual orientation or gender identity.

This September, the United Nations General Assembly heard about these endemic problems facing LGBT youth directly from the UN expert on combating violence and discrimination based on sexual orientation and gender identity, Victor Madrigal-Borloz. He highlighted systematic abuses LGBT youth face in school, with few avenues for redress. Bullying is exacerbated by the absence of protective policy, by poor policy, or by the inability or unwillingness of institutions to address it.

He described the experience of trans students in schools that insist on distinct uniforms for boys and girls, and bathrooms or changing rooms strictly segregated by gender. And he noted that while comprehensive sexuality education has been shown to promote self-esteem and better health outcomes, it is under sustained attack by ultra-conservative groups seeking to push back against LGBT people’s rights.

Studies in the United States and Netherlands show that LGBT youth experience higher levels of depression, anxiety and substance abuse than their heterosexual peers. And in the U.S., an estimated 40 percent of homeless children are LGBT. LGBT youth often end up homeless because their families and communities ostracize them at a time when they remain economically dependent, and they disproportionately face depression as a result of social stigma.

Yet,  instead of taking steps to protect LGBT youth, many countries instead justify anti-LGBT laws and policies on grounds of  "protecting children." This is nothing new. Consider the U.K.’s notorious (and since repealed) Section 28 that prevented local councils and schools from "promoting homosexuality," or the "no promo homo" laws that restrict sexuality education in six U.S. states, and the notorious "gay propaganda law" in Russia prohibiting positive communication with children about "non-traditional" sexual relations. This rhetoric of protecting children has been given renewed impetus by opponents of so-called "gender ideology," who target comprehensive sexuality education as part of a strategy to push back against reproductive rights and the rights of sexual and gender minorities.

The effect of bullying doesn’t end at graduation. Aside from leaving emotional scars, children’s exposure to violence and discrimination in educational settings significantly reduces their chances of academic success, leads to higher truancy and dropout rates, reduces their life-chances and increases vulnerability as adults. It is a vicious cycle. As Human Rights Watch research shows, socio-economic factors play a determining role in vulnerability to violence and discrimination, as evident in the relationship between poverty and exposure to violence for lesbians in South Africayoung men in Mombasa, or homeless youth in Jamaica.

We have documented some of the unique difficulties LGBT youth face around the globe. In our  first report on LGBT issues, "Hatred in the Hallways," in 2001, we documented rampant bullying in schools. Fifteen years later, "Like Walking Through a Hailstorm" revisited the topic in five U.S. states and took a contemporary look at the experiences of LGBT youth. Sadly, we found that while school administrators have taken positive steps, children continue to face bullying and discrimination in schools in many places. LGBT children also face significant barriers to obtaining accurate information about sexual health as well as about LGBT people and identities, especially in the states with “no promo homo” laws.

In 2017 Japan updated its national bullying prevention policy to include  “sexual orientation and gender identity” aligned with the recommendation of a Human Rights Watch report documenting physical and verbal abuse, harassment, and frequent insults from peers and staff in Japanese schools. Good policy does not always translate into practice, as in the Philippines, where students are frustrated by the uneven implementation of laws and policies designed to protect children from bullying.

Meanwhile Russian authorities have increasingly used the ‘gay propaganda” law in extreme ways — including to shut down information and support services for LGBT youth and even as a prelude to bringing criminal charges against social workers in a gay adoption case, and a TV show that allowed children to chat with a gay man on air. The insidious effects of the propaganda law can be felt in the school system, where the myth of protecting children is shown for what it is — a weapon that does considerable harm, even having an inhibiting effect on mental health workers.

This research is only the tip of the iceberg. This year, comprehensive sexuality education was subject to a public opinion poll in a Taiwan referendum that rejected an LGBT-inclusive school curriculum. The government rightly held firm on protecting human rights and the Education Ministry committed to retain the existing curriculum despite public pressure to censor it. In the U.K., a program for including age-appropriate LGBT components in school curricula became embroiled in controversy, including protests by parents.

Despite research showing that LGBT kids are marginalized in South Korea’s education system, the Education Ministry expressly forbids LGBT-related material in schools. In Brazil, President Jair Bolsonaro has ordered the Ministry of Education to draft a law banning what he calls “gender ideology” in schools and has tried to prevent children from accessing comprehensive sexuality education. This echoes conservative social movements around the world that use the rhetoric of "gender ideology" as a way of delegitimizing reproductive health and LGBT rights.    

Young people, at a vulnerable time in their lives, find themselves under siege by governments intent on demonizing LGBT people as a threat to family and society. LGBT kids suffer the consequences of this dangerous rhetoric, including to their mental health and economic prospects. It is apt and timely for this year’s Human Rights Day theme to pay tribute to the strength and resilience of youth, who uphold the fundamental promise of the Universal Declaration of Human Rights that everyone is born free and equal in dignity and rights.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

The transgender pride flag. 

© Wikimedia Commons

A Russian court has sentenced a 53-year-old trans woman to three years in prison, on bogus “distribution of pornography depicting minors” charges for sharing nude anime drawings on social media.

The case began in the summer of 2018, when Michelle was informed she was under criminal investigation for posts of “hentai” – sexually charged drawings featuring naked characters from Japanese cartoons – in 2013 and 2014.

Prior to the trial, which took place in November, the investigators ordered an “expert” evaluation of the images from the Center for Socio-Cultural Expertise, an organization known to provide damning conclusions in politically motivated criminal cases, including the case of Pussy Riot, the child pornography case against human rights defender Yury Dmitriev, and dozens of extremism cases against Russia’s Jehova’s Witnesses. Their evaluation of the drawings concluded that they included characters younger than 14 years of age. Authorities took Michelle into custody from the courtroom, immediately after the judge handed down the verdict. She remains in a solitary cell in jail pending an appeal hearing in her case.

Michelle, a survivor of bladder cancer who worked as an epidemiologist at a local clinic before she was fired because of the criminal case, has been on hormone therapy for transitioning for about two years. But she is legally recognized as male. She will therefore be forced to serve her sentence in a men’s penal colony. Such a blatant disregard for her gender identity leaves Michelle extremely vulnerable to abuse by both male detainees and guards.

Moreover, Maria Chaschilova, a lawyer at the Moscow LGBT Community Center, who was in contact with Michelle before her trial, says Michelle does not have access to hormone therapy in prison and will not have it in penal colony. The World Professional Association for Transgender Health warns that for trans people in detention the “consequences of abrupt withdrawal of hormones … include a high likelihood of negative outcomes such as surgical self-treatment by autocastration, depressed mood, dysphoria, and/or suicidality.”  

Michelle is appealing her conviction and sentence, but so long as this case persists Michelle’s rights to health, identity, expression, liberty, and even to life hang in the balance.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am