The Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity (IE SOGI), Mr. Victor Madrigal-Borloz, will dedicate his report to the 78th session of the United Nations General Assembly to the issue of the historic and ongoing impacts of colonialism on the enjoyment of human rights by lesbian, gay, bisexual, trans and gender diverse (LGBT) persons.

The report will examine the past and present colonial regulation of sexual orientation and gender identity through laws, policies and practices, and how such regulation continues to impact the lives of LGBT persons, including through layers of cultural influence and social mores on concepts of gender and sexuality. This report will also explore the legal grounds and means available to reckon with the legacies of colonialism in the enjoyment of human rights by all people, including LGBT persons and communities. Finally, the report will account for the different legal or policy measures that have been adopted to recognize and provide reparation and redress for the impacts of colonialism on regulation of sexual orientation and gender identity at the regional or national levels.

Background

On 14 December 1960, the United Nations General Assembly adopted resolution 1514 (XV), on the Granting of Independence to Colonial Countries and Peoples, in which it recognized that “[t]he subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation.” In the Durban Declaration and Programme of Action the United Nations further recognized that “colonialism has led to racism, racial discrimination, xenophobia and related intolerance, and that Africans and people of African descent, and people of Asian descent and indigenous peoples were victims of colonialism and continue to be victims of its consequences” and “called upon all concerned States “to take appropriate and effective measures to halt and reverse the lasting consequences” of colonial practices.

The mandate has gathered information that strongly suggests that, to varying degrees, colonial projects included the regulation of sexuality and gender. Around the globe laws, policies and practices were created, applied or enforced with the aim to extend colonial social control to the realms of sexuality, affect, family, gender, and gender identity. These have had a lasting influence over the legal systems and social fabric of colonized territories until this day. Colonialism has produced a complex web of connections between past laws, present colonial legal and cultural legacies, and contemporary violence and discrimination based on sexual orientation and gender identity. Colonial laws, policies and practices have also shaped social acceptance (and rejection) of diverse sexual orientations and gender identities.

Diverse sexual orientations and gender identities exist, and have existed, in all parts of the world and at all times of recorded history. Processes of colonization have long been associated with the suppression of conceptions or expressions of sexual orientation and gender identity that were fundamentally different from those of the colonizing power. Such practices were often considered “deviant” or “barbaric” and condemned in terms strongly influenced by the institutionalized religions of the colonizing powers. Legacies of the subjugation of colonized peoples through sexual violence have also mapped onto the suppression of pre-colonial cultural and sexual expression through legislation and law enforcement.

Laws have played a central role in these processes. During the years of colonization, new systems of law were introduced and often maintained after the formal end of colonial rule. Legal codes expressly banned forms of sexual orientation and gender identity, sexual practices, and also cultural practices and expressions which accompanied these forms of expression. Many contemporary legal codes which fail to protect against violence and discrimination based on sexual orientation and gender identity replicate, or have been highly influenced by, colonial antecedents. While in some cases such codes have been repealed or reformed, in other cases they themselves have become claimed as part of the national heritage of former colonies. Laws have enabled colonial practices deeply inimical to the rights of LGBT persons; yet legal frameworks may also provide for the respect, protection, and fulfilment of the human rights of LGBT persons.

Call for Inputs

The Independent Expert invites all interested States, civil society organizations, academics, international organizations, national human rights institutions, activists, corporations, and others, to provide written inputs to the following questions for his thematic report. Inputs are welcome in relation to particular practices in States or territories, as well more general inputs concerning regions or the international community as a whole. 

The following questions are meant to guide the formulation of inputs. It is only necessary to address those in relation to which evidence is available.

1. Did the imposition and/or enforcement of colonial laws or policies on sex, gender and sexuality change pre-colonial treatment of sexual orientation and gender identity? What historical or anecdotal evidence is there available about the treatment of gender and sexual diversity before past or present experiences of colonization?
2. What laws, policies, and practices regulated or influenced the shaping of or the socio-normative perception of sexual orientation and gender identity in colonial times? How were they introduced, promoted, administered or enforced? Examples could include prohibition of certain sexual acts, but also regulation of sexual or gender identities and expressions (such as bans on cross-dressing).
3. What colonial laws regulating sexual orientation and gender identity are still in place today? How are they enforced? How are they being interpreted by national jurisprudence and customary law? What legal, moral, or socio-cultural explanations have been provided, if any, for their continued existence?
4. How, if at all, has the protection against violence and discrimination based on sexual orientation and gender identity been transformed and positively or negatively impacted by processes of decolonization?
5. If no longer in place, when were colonial laws regulating sexual orientation and gender identity repealed? In what pretext were they abolished and what was the rational/explanation for their abolishment?
6. How has the legal and social regulation of gender, sexual orientation and gender identity been relevant for imposing and maintaining colonial power?
7. What is the ongoing impact of gender- and sex-regulating colonial laws on the enjoyment of human rights by LGBT persons? How did the imposition of colonial laws on sex and gender shape social and moral ideas about sexual orientation and gender diversity?
8. Was there a relationship between colonial laws and policies that created unequal treatment and power relations affecting LGBT persons, paving the way to intersecting forms of discrimination, exclusion, racism, xenophobia and related intolerance, patriarchy, and other forms of discrimination and oppression? How did these laws and policies impact persons with multiple and intersecting identities such as LGBT persons with disabilities, older LGBT persons, LGBT children, LGBT persons of African descent, among others.
9. Have any laws, policies, or psycho-social support or legal remedies been put in place to recognize and provide reparations and redress for the legacy of colonialism in relation to the enjoyment of human rights? Do these take into account violence and discrimination based on sexual orientation and gender identity?
10. How, if at all, should reparatory justice for the lasting consequences of colonialism include measures to address discrimination and violence based on gender, gender identity and sexual orientation?