SOGI, colonialism and reparations

Reparations for the legacy of colonialism in relation to discrimination and violence based on sexual orientation and gender identity

Definition

The term colonialism is often used in daily and political language, yet it also holds a distinct place within the historic discourse of the United Nations in relation to the human rights of marginalized persons and peoples. It designates processes through which a State acquires or maintains full or partial political control over another sovereign nation, or subjugation of groups or entities over others, including terms such as economic, cultural, or ideological colonialism. Human history has been marked by dynamics of power and mobility; among these, movement of peoples to areas where the inhabitants were subjugated, dominated, or exterminated, syncretism and resistance, and formation and deconstruction of national and imperial States.

Gender has been recognized in international human rights law to describe socio-cultural constructs that assign roles, behaviours, forms of expression, activities, and attributes according to meanings given to biological sex characteristics. Gender theory, queer theory, gender-based approaches and intersectionality provide a framework for addressing multiple asymmetries of power connected to the meanings attributed to sex. The notion of gender has been constructed with strong points of reference in the male-female binary and the asymmetries of power associated with it, and persons often self-identify or suffer violence and discrimination based on sexual orientation and gender identity in ways that cannot be placed within that axis.

Similarly, the widely used acronym LGBTI (lesbian, gay, bisexual, trans, and intersex), is a form of shorthand, and the terms gender-diverse, queer, questioning, and asexual, refer to social, political, and legal identities, the meanings of which vary in relation to context. However, evidence suggests that categorizations such as LGBTI cannot fully capture the diversity of sexualities and genders in the life experiences of all persons, including persons subjected to colonialism, since sexual diversity has historically been the norm and not the exception around the world.

Diversity in sexual orientation and gender identity

Diversity in sexual orientations and gender identities has existed everywhere throughout recorded history. Individuals embodying gender-variant roles and identities have been cherished and respected in many societies, both for ceremonial and advisory roles in North America, Europe, India and Bangladesh, Aotearoa/New Zealand, and the First Nation Cultures in Australia. Communities and peoples in East Asia, Southeast Asia and the Pacific are known to have a rich history of gender diversity and gender pluralism rooted in traditional rituals and practice. Further, evidence strongly suggests that before colonization many peoples in the African continent did not have a binary approach to gender or correlate anatomy to gender identity, and certain historical accounts of Caribbean societies positively portrayed people with sexual orientation or gender identity that would today be qualified as diverse. Indigenous scholarship from the Americas, South Asia and the Pacific regions also records various gender-fluid identities that carry spiritual significance in their respective communities. The Special Rapporteur on freedom of religion or belief has noted that processes of sexual assimilation, criminalization and pathologization have had a profound impact on the traditional status and roles of Indigenous persons and peoples in the postcolonial period.

Mechanisms of colonial oppression

Colonial oppression, inextricably tied to colonial capitalism, imposed systems of differentiation, hierarchization and domination to exercise strict control over colonized persons. This was done through conversion to the colonizer’s religious institutions, the imposition of a rigid gender binary on colonized persons, and the criminalization of gender and sexual nonconformity. Colonial projects were particularly successful in concretizing political strategies such as political homophobia and the imposition of racialized heteronormative views around sexual orientation and gender identity, often regulated through laws that explicitly or implicitly targeted sexual conduct and expressions of gender identity. Such laws were at the base of complex systems of socialization that included policing, medicine, literature, and education.

The Special Rapporteur in the field of cultural rights has addressed the instrumentalization of anti-colonial discourse to justify the exclusion of certain groups from the enjoyment of their human rights.

Decolonialism

All Member States of the United Nations have committed themselves to eradicate colonialism, as one of the principal objectives of the Organization (see General Assembly resolution 56/74). Many States have made progress in deconstructing frameworks based on international human rights standards, notably through decriminalization; some have enshrined protections against discrimination based on sexual orientation and/or gender identity at the constitutional level; yet some have retained or entrenched colonial-era legislation. There is no justification for perpetuating exclusions of persons, communities, or peoples from the full enjoyment of their human rights based on their sexual orientation or gender identity. As such, the review and remedying of harmful colonial legacies are an integral part of realizing the global objective of decolonization that is one of the key objectives of the United Nations.

Practices of reparations and redress

Debates have emerged in the fields of international law – and particularly international human rights law – concerning the legality and viability of reparations for gross human rights violations, including colonialism and slavery. The duty to provide reparation is the consequence of State’s breach of its international obligations and has both backward- and forward-looking dimensions: cessation of those violations and guarantees of non-repetition.

States must end continued human rights violations such as those created by legislation criminalizing same-sex intimacy or gender identity under the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. Public apologies form part of the “satisfaction” element of reparations and are meant to contribute to establishing the truth. For example, on 17 April 2018, the Prime Minister of the United Kingdom expressed deep regret for the fact that discriminatory legislation had been introduced across the Commonwealth, and the resulting “legacy of discrimination, violence and even death that persists today.” The Independent Expert valued that statement highly (see A/HRC/38/43, at para. 76), in that it included both acknowledgment of the facts and acceptance of responsibility; he is persuaded that it has been a valuable building block in the process of eradication of violence and discrimination on the basis of sexual orientation and gender identity, including where connected to colonial histories.

Recommendations

The Independent Expert encourages all States to:

• Repeal or reform all laws, policies, and practices that criminalize consensual same-sex intimacy and gender identity and expression;
• Remove structural barriers that are obstacles to access justice in relation to human rights violations;
• Adopt effective legislation and policy frameworks for the legal recognition of gender identity based on the best practice of self-identification and self-determination;
• Adopt affirmative anti-discrimination measures – including laws, policies and other relevant actions established through a human rights-based approach – in the health, education, employment, and housing sectors, as well as in relation to political participation;
• Adopt effective measures to provide universal, free, and affordable healthcare for trans and other gender-diverse persons, including gender-affirming care, as well as sexual and reproductive healthcare for LGBTI and other gender-diverse persons;
• Adopt affirmative protections and anti-discrimination legislation to end practices of conversion for LGBT and other gender-diverse persons;
• Undertake legal reform to provide for full public participation of LGBTI and other gender-diverse persons in all aspects of social life, including through the legal recognition and equal protection of the human rights of persons belonging to non-heteronormative family formations;
• Recognize and act upon international State responsibility to protect all persons from laws criminalizing diversity in sexual orientation and gender identity;
• Adopt intersectional and non-binary approaches to public policy that address the needs of LGBTI and other gender-diverse persons in their full diversity, and involve them in the development of relevant policies;
• Review and revise existing categorizations, terminology, and legal definitions of gender and sexuality, with a view to remedying historic human rights violations against Indigenous and colonized peoples – including by creating space for the emergence of geographically, culturally specific linguistic terms that possess strong cultural contexts and which are considered more connected to the lived experience of sexually and gender-diverse persons;
• Conduct sensitization and awareness campaigns for the public – and particularly for journalists, public officials, members of the judiciary, law enforcement personnel, and medical professionals – that promote respect for diversity in gender identity and sexual orientation;
• Engage in international cooperation and partnerships to exchange good practices, expertise, and resources in addressing discrimination and violence based on sexual orientation and gender identity.