The Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, Mr. Victor Madrigal-Borloz and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Mr. Dainius Püras
Every person, without distinction, should be able to enjoy the highest attainable standard of physical and mental health (hereafter the “right to health”). In Agenda 2030, 193 UN Member States undertook a commitment to “ensure healthy lives and promote wellbeing for all at all ages (SDG 3)”, defining specific targets that are highly relevant for LGBT persons, such as target 3.3 on HIV/AIDS, target 3.4 on mental health and well-being, target 3.5 on drug and alcohol use, target 3.7 on sexual and reproductive health and target 3.8 on universal health coverage. In the spirit of leaving no one behind, lesbian, gay, bisexual, trans and gender-diverse (LGBT) people, like other persons, groups, communities and peoples historically subjected to discrimination, must be included in national health policies and implementation of health services.
We are gravely concerned that stigma and prejudice, criminalisation of homosexuality and gender identity or gender expression, negation, and remnants of pathologisation of sexual orientation and some forms of gender identity impact negatively on national health policies and practices. As a result, millions of LGBT people around the world face barriers or exclusion when accessing health care or exercising their right to health, leading to and exacerbating serious health disparities.
In almost all countries of the world, LGBT persons encounter rejection, humiliation, derision or substandard services when seeking health care, which deters them from seeking services and may lead to the denial of care or to an absence of services that respond to their specific health needs.1
To bridge the gap: acknowledgement, decriminalisation and depathologisation
In countries where non-conforming sexual orientation and gender identities are criminalized, abuses and discriminatory attitudes in health-care institutions are encouraged by the very existence of such legislation. Such a context has a negative impact on access to health-care services and health-related information, and on the quality of the services provided. It also affects the ability of States to design adequate policy responses to global and public health concerns.2 The negative health impact of laws criminalizing non-conforming sexual orientations and gender identities has been acknowledged throughout the UN system, including by numerous United Nations human rights experts,3 as well as Regional Human Rights Systems,4 the World Health Organization (WHO)5, the United Nations Development Programme (UNDP)6 and the Joint United Nations Programme on HIV/AIDS (UNAIDS).7 This context has deterred some populations at risk of HIV infection, including gay and bisexual men, men who have sex with men, and trans women, from coming forward for testing and treatment out of fear of being deemed a criminal.8 It also affects the ability of States to design adequate policy responses to global and public health concerns.
Some States negate the existence of LGBT people, with the disastrous result that the specific needs of this population are ignored and national health policies and strategies fail to address the health disparities experienced by this population which include: poor outcomes in mental health based on minority stress; a disproportionate burden of HIV among gay and bisexual men, other men who have sex with men, and trans women; sexual and reproductive health concerns, and prevalent alcohol and substance abuse as a coping mechanism. This sort of negation seriously hampers progress made in achieving SDG target 3.3 on HIV/AIDS, target 3.4 on mental health and well-being, target 3.5 on drug and alcohol use and target 3.7 on sexual and reproductive health.
In contexts of criminalisation or negation, health professionals may feel motivated and enabled to supress or punish diversity, subjecting LGBT people to forced medical examinations, including anal examinations, involuntary treatment, so-called “conversion therapies”, coercive, inhumane and degrading practices such as forced or otherwise involuntary psychiatric evaluations, forced or coerced surgery, sterilization and other coercive medical procedures and inadequately address so called “corrective” rape or punitive sexual violence.9
In many settings, especially where same-sex consensual sexual behaviour is prohibited, lesbian, bisexual and transgender persons are deterred from seeking health services out of fear of being arrested and prosecuted. Even in countries where same-sex sexual orientation is not criminalized, lesbians, bisexual women and other gender non-conforming women are often discriminated against, and misdiagnosed by medical providers, which deters them from seeking health services or carrying through with treatment. This is particularly related to sub-standard care for their sexual and reproductive health needs including access to reproductive cancer prevention. In some settings, they are subjected to coercive, inhumane and degrading practices such as “corrective” or punitive rape and face challenges accessing post rape psycho/social and health care. Transgender persons are often subjected in law and practice to compulsory medical interventions without being given an opportunity for informed decision-making and choice. Their gender identity is pathologized in many countries and they are often subjected to mental and physical examinations and treatments and forced to undergo “conversion therapies”. Transgender persons’ biological needs, such as transition-related medical services, screening for breast, cervical and prostate cancer, reproductive healthcare including access to contraception and termination of pregnancy, are often refused by service providers.
As long as LGBT people continue to not have their health needs met and to be subjected to coerced and forced treatment and procedures in health related and other settings, their mistrust towards health institutions and personnel will remain and as a result will adversely affect their right to appropriate and quality health care. Subjecting patients to medical treatment, without their full, free and informed consent has been found to be degrading and damaging,10 and so-called “conversion therapies” have been found to be unethical, unscientific, ineffective and, in some instances, tantamount to torture.11 Transgender people should be able to change their legal gender on the basis of self-determination, without invasive prerequisites such as surgery or sterilisation.
Medical classifications of sexual or gender diversity as a pathology reduces the identities of LGBT people to diseases, which compounds stigma and discrimination and create additional barriers for LGBT people to access services that address their actual health needs.12 Such pathologization has had a deep impact on public policy, legislation and jurisprudence, thus penetrating all realms of State action in all regions of the world and permeating the collective conscience. Eradicating the conception of some forms of sexual orientation or gender as a pathology from everyday life is essential to allow individuals to access better health care.13 States should review their medical classifications in order to eradicate the conception of some forms of sexual orientation or gender identities as pathologies and to ensure better access to quality health care by trans and gender-diverse persons.
Create available, accessible, acceptable, quality and LGBT-inclusive and sensitive health institutions
Health facilities, goods and services must be accessible, without discrimination.14 However, LGBT people often experience misogynistic, homo-, bi- or transphobic attitudes in health care institutions. Such attitudes manifest in the refusal to make clinic appointments, refusal to treat, or treatment with gross disrespect, violation of confidentiality, private shaming and public disparagement, along with hurried and inferior care.15 When LGBT people feel that confidentiality and privacy cannot be assured, when they anticipate negative attitude or sub-standard treatment from health care providers, or fear disclosure of potential criminal conduct, they may withhold key information, thus jeopardizing their own, and potentially others’, health and safety.16
Even where health workers do not intend to discriminate, they often lack basic information or training about specific health concerns facing LGBT people and appropriate medical and counselling practices. They may have an inadequate understanding of specific conditions or vulnerabilities LGBT people are disproportionately affected by including poor mental health, HIV transmission, and drug and alcohol use. Health workers may also deny care, restrict the inclusion of significant individuals in family treatment or in decision-making roles, or hold inappropriate assumptions about behavioural causes of health conditions.17
LGBT-sensitive and non-discriminatory health care institutions and personnel all over the world are still scare and many LGBT people have to travel long distances to reach health care institutions that can provide appropriate, comprehensive, quality health services. 18 Existing guidelines should further be developed and disseminated and health care and service providers be trained regarding the needs of the LGBT population.
Stigma at the root of violence and discrimination corrodes the social fabric. It affects values of fundamental importance, such as empathy, social inclusion and solidarity. Positive and inclusive measures need to be taken on a legal and policy level, in full recognition and celebration of a diverse society. Human rights standards call for the availability, accessibility, acceptability and quality of health information, care and services, including for LGBT people, and require States to ensure access by adopting laws and develop health policies and services, inclusive of LGBT people’s concerns and needs. Only acknowledgement, decriminalisation and depathologisation and the development of national health policies and implementation of health services, sensitive to LGBT people’s needs can remove the existing barriers.
We stand ready to support and assist Member States and other stakeholders as they work to address the challenges outlined in this statement including through constitutional, legislative and policy changes, strengthening of national institutions, and education, training and other initiatives to respect, protect, promote and fulfil the right to health by all LGBT people.
Mr. Victor Madrigal-Borloz assumed the role of UN Independent Expert on Protection against violence and discrimination based on sexual orientation and gender identity for a three years period starting on 1 January 2018.
The present statement gives a glimpse of his forthcoming report addressed to the General Assembly, in which he examines in detail how discriminatory laws and sociocultural norms continue to marginalize and exclude lesbian, gay, bisexual, trans and gender-diverse persons from education, health care, housing, employment and occupation, and other sectors. In addition, the Independent Expert looks at the inclusion and access to these rights through the lens of intersectionality and analyses compounded discrimination, which leads to exclusion and marginalization. He then discusses the ways in which an inclusive society and effective State measures enable people to enjoy protection from violence and discrimination and highlights the unique role of leaders in different fields, all of which will allow the cycle of exclusion to be broken and have a positive impact on the misconceptions, fears and prejudices that fuel violence and discrimination.
Mr. Dainius Püras, Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, assumed his functions in August 2014. He is a medical doctor with notable expertise on mental health and child health; he took up his functions as UN Special Rapporteur on 1 August 2014. Dainius Pūras is the Director of Human rights monitoring institute in Vilnius Lithuania, a professor of child and adolescent psychiatry and public mental health at Vilnius University and teaches at the faculties of medicine and philosophy of the same university.
The Special Rapporteurs are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organisation and serve in their individual capacity.
The Special Rapporteurs are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures’ experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.
1/ See UN Free & Equal factsheet, “Criminalization” (available at www.unfe.org/en/fact-sheets) and A/64/272, para. 46, cited in the report of the United Nations High Commissioner for Human Rights report, A/HRC/29/23;
see also; CCPR/C/TUR/CO/1, para. 10, CEDAW/C/NOR/CO/8, paras. 33-34,CCPR/C/JAM/CO/3, paras. 8- 9, A/HRC/14/20, paras. 20-23.
2/ See report by the Independent Expert on sexual orientation and gender identity, A/HRC/38/43, para. 59, see also: WHO, “Prevention and treatment of HIV and other sexually transmitted infections among men who have sex with men and transgender people: Recommendations for a public health approach” 2011.
3/ See report by the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, A/HRC/38/43; report by the Special Rapporteur on the highest attainable standard of physical and mental health, A/HRC/14/20; the reports of the United Nations High Commissioner for Human Rights, A/HRC 19/41 and A/HRC/29/23.
4/ See also; “Leave no LGBT person behind”, statement by human rights experts on the International Day against Homophobia, Transphobia and Biphobia, 17 May 2018
5/ World Health Organization, “Brief sexuality-related communication: recommendations for a public health approach”, 2015.
6/ UNDP “Risks, Rights and Health, Global Commission on HIV and the Law”, 2012.
7/ See for instance; UNAIDS, “The Gap report”, or WHO, UNAIDS, GIZ, MSMGF and UNDP, “Prevention and treatment of HIV and other sexually transmitted infections among men who have sex with men and transgender people: Recommendations for a public health approach”, 2015.
8/ See for instance African Commission on Human and Peoples Rights, “HIV, the Law and Human Rights in the African Human Rights System: Key Challenges and Opportunities for Rights-Based Responses to HIV”, December 2016, para. 118.
9/ Report of the Working Group on the issue of discrimination against women in law and in practice, A/HRC/32/44, para. 58.
10/ UNDP and APF, “Promoting and Protecting Human Rights in relation to Sexual Orientation, Gender Identity and Sex Characteristics. A handbook for NHRI’s”, p. 39, June 2016; see also: Principles 17 and 18 of the Yogyakarta Principles, highlighting the importance of safeguarding informed consent of sexual minorities.
11/ Report of the United Nations High Commission for Human Rights, A/HRC/29/23, para. 52
12/ Report of the Special Rapporteur on the highest attainable standard of physical and mental health, A/HRC/35/21, para. 48.
13/ Report of the Independent expert on protection against violence and discrimination based on sexual orientation and gender identity, A/73/152.
14/ ESCR Committee, CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12), UN Doc E/C.12/2000/4, 11 May 2000, [12(b)].
15/ WHO, “Sexual health, human rights and the law”, p. 23, June 2015.
16/ PAHO, WHO, Resolution CD52.R6, “Addressing the causes of disparities in health service access and utilization for lesbian, gay, bisexual and trans (LGBT) persons”.
18/ See WHO, “Sexual health, human rights and the law”, June 2015.