Why Phils Shldnt Abstain on SOGIE

HON. PERFECTO R. YASAY, JR.

Secretary

Department of Foreign Affairs

Roxas Blvd., City of Manila

Dear Secretary Yasay:

On 30 June 2016, the United Nations Human Rights Council (UNHRC) in a historic decision, adopted a resolution (A/HRC/RES/32/2) to establish the first UN Independent Expert on Sexual Orientation and Gender Identity to address the grievous issues of violence on and discrimination against persons based on sexual orientation and gender identity (popularly known as the SOGI mandate). The resolution entitled “Protection against violence and discrimination based on Sexual Orientation, and Gender Identity” had initially been brought by seven Latin American Member States – Argentina, Brazil, Chile, Colombia, Costa Rica, Mexico and Uruguay. The resolution was put to vote after a failed no-action motion brought by Kingdom of Saudi Arabia (KSA) and adoption of few amendments sought by Pakistan on behalf of the Organization of Islamic Conference (OIC) Member States excepting Albania. It was later adopted with 23 countries voting for and 18 against the resolution while 6 abstaining from it, including the Philippines.

Recently, the African Group introduced a hostile resolution against the SOGI mandate before the General Assembly Third Committee in, stating that it ‘decides to defer consideration of and action on Human Rights Council resolution 32/2 of 30 June 2016 on protection against violence and discrimination based on sexual orientation and gender identity, in order to allow time for further consultations to determine the legal basis upon which the mandate of the special procedure established therein will be defined.

The African Group in their statement went on to call for the suspension of the activities of the appointed Independent Expert pending the determination of this issue.’ Among the reasons underlying this call was that ‘non-internationally agreed notions such as sexual orientation and gender identity are given attention, to the detriment of issues of paramount importance such as the right to development and the racism agenda. The African Group also stated that the appointment of the Independent Expert would ‘delve into matters which fall essentially within the domestic jurisdiction of States counter to the commitment in the United Nations Charter to respect the sovereignty of States and the principle of non-intervention.’ Now the resolution will be up for vote on 17 November 2016 at United Nations General Assembly (UNGA) and the Philippines is again poised to abstain.

We write to inform you that the Department of Social Welfare and Development (DSWD) believes in supporting the establishment of an Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity and expression (SOGIE). As such, the DSWD strongly urges the Philippine representation in Geneva to vote against the above-mentioned hostile resolution that will prevent the new Independent Expert on SOGIE from performing his mandate.

Ambassador Cecilia Rembong explained the Philippine’s previous abstention because “the mandate holder to be created would by its very nature pursue a set of standards applied to a specific sector when there is no consensus on a set of universally accepted human rights standards.” But consider the following:

1. The Philippines has signed and ratified almost all of the human rights treaties and conventions. The most basic of these, the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR) all guarantee the freedom from discrimination, equality before the law, and equal protection of the law. To argue that the above-mentioned instruments do not mention sexual orientation and gender identity explicitly, and to insist that its applicability to SOGIE issues is merely a subjective interpretation or assumption, is belied by the 1992 Toonen vs Australia case, where the UN Human Rights Committee declared that the non-discrimination criteria of “sex” naturally extends to “sexual orientation”.

The international system and key human rights mechanisms of the United Nations have affirmed the States’ obligation to ensure effective protection of all persons from discrimination based on sexual orientation and gender identity. Note what other international human rights law have to say:

a)      Committee on the Rights of the Child, General Comment No. 4, Adolescent Health and Development in the context of the CRC (UN Doc. CRC/GC/2003/4, 1 July 2003) -“States parties have the obligation to ensure that all human beings below 18 enjoy all the rights set forth in the Convention w/o discrimination (Art 2), including race, color, sex, disability, birth, or other status; These grounds also cover adolescent’s sexual orientation and health status (including HIV/AIDS and mental health). Adolescents who are subject to discrimination are more vulnerable to abuse, other types of violence and exploitation, and their health and development are put at greater risk.”

b)      ECOSOC General Comment No. 20 (Par.15, Art 2 (2)) prohibits discrimination on grounds as “race, color, sex, language, religion, political, or other opinion, national or social origin, property, birth, or other status” “non-exclusively”, and interprets “other status” in Art 2 (2) as including sexual orientation, hence:

“States parties should ensure that a person’s sexual orientation is not a barrier to realizing Covenant rights, for example, in accessing survivor’s pension rights. In addition, gender identity is recognized as among the prohibited grounds of discrimination. (Par. 32)”

c)      Committee against Torture, General Comment No. 2, Implementation of Art 2, UN Doc CAT/C.GC.2/CRP.1/Rev.4 (11/23/2007 – “The protection of certain minority or marginalized individuals or populations especially at risk of torture is part of the obligation to prevent torture or ill-treatment. States must ensure that, insofar as the obligations arising from under the CAT is concerned, their laws are in practice applied to all persons, regardless of x xxgender, sexual orientation, transgender identity x xx”

In 2006, in response to well-documented patterns of abuse, a distinguished group of international human rights experts met in Yogyakarta, Indonesia to outline a set of international principles relating to sexual orientation and gender identity. The result was the Yogyakarta Principles: a universal guide to human rights which affirm binding international legal standards with which all States must comply. In essence, the Yogyakarta Principles recognizes lesbian, gay, bisexual and transgenderrights within the Human Rights framework and enumerates specific civil and political rights, as well as relevant social, economic, and cultural rights, LGBTs are entitled to. They promise a different future where all people born free and equal in dignity and rights can fulfil that precious birthright.

2.      Indeed there is a dissenting voice about the “universality” of human rights; some countries believe SOGIE and LGBT rights cannot be seen as human rights, or that the LGBT Community is claiming “special rights”. The DFA now appears to join the fray and seems to opine that there is no special or specific human right that can be made applicable only to LGBTs as a sector, hence they are already protected just like everyone else. But if this is really true, why are there numerous cases of discrimination and violence still being experienced by LGBTs worldwide?  

We cannot back off and wait until we have consensus among States or at least a broader acceptance that LGBT rights violations require a response.  Instead, we should press on - inspite of the controversy, laying out the facts, drawing attention to the suffering, the violence and the discrimination that continues day after day. Our fundamental responsibility is to the victims and to protecting the principles of equality and non-discrimination. The continued opposition on the part of some is regrettable, but it is no reason to abandon these principles, nor can it ever be an excuse for abandoning the victims of human rights violations.

The DFA in the time of the previous Aquino administration raised a cautionary “red flag” and emphasized that the LGBT/SOGIE is a sensitive and contentious issue. It even justified its stance invoking the alarmingly “reasonable” consideration of religious beliefs in policy-making even as our government should be operating on the level of secularism and non-sectarianism.

Ambassador Rembong also states that the Philippines’ vote against L75 was because it attempts to change the essence and message of Art. 1.5 of the Vienna Declaration and Programme of Action of the World Conference on Human Rights which reads in part: “x xx while the significance of national and regional particularities and various historical and cultural and religious backgrounds must be borne in mind, it is the duty of States regardless of their political, economic, and cultural systems to promote and protect all human rights and fundamental freedoms.”  

It has been recognized by the international community that human rights violations targeted towards persons because of their actual or perceived sexual orientation and gender identity constitute a global and entrenched pattern of serious concern.

As the 1^st United Nations Secretary-General to make a statement on SOGI issues, Ban Ki Moon declared in September 2010 in Geneva: “Laws criminalizing people on grounds of sexual orientation and gender identity violate the principle of non-discrimination. They also fuel violence, help to legitimize homophobia and contribute to a climate of hate…Social attitudes run deep and take time to change. But cultural considerations should not stand in the way of basic human rights.”

He reiterated this in December 2010 in New York, stating: “As men and women of conscience, we reject discrimination in general, and in particular discrimination based on sexual orientation and gender identity. When individuals are attacked, abused, or imprisoned because of their sexual orientation, we must speak out.. Where there is tension between cultural attitudes and universal human rights, universal human rights must carry the day..”

As the Secretary-General and the High Commissioner have both said repeatedly, there is an urgent need to challenge homophobia at its roots – through public education, training and information.

3.      In recent years, many States have made a determined effort to improve the human rights situation of LGBT people. Measures include banning discrimination, penalizing homophobic hate crimes, granting recognition of same-sex relationships, and making it easier for transgender individuals to obtain official documents that reflect their preferred gender. In many cases, training programmes have also been developed for police, prison staff, teachers, social workers and other personnel, and anti-bullying initiatives have been implemented in many schools. But while there is much to welcome, there is also much that remains to be done.

Far too many States still retain laws that criminalize same-sex relationships. Far too few have laws that offer comprehensive protection from discrimination. Even less have efficient systems for combating, or even recording, homophobic hate crimes. We need to document this problem and share information with States on a regular basis for discussion and action.

Even the United Nations’ reporting of violence and discrimination against LGBT people has been piece-meal and ad hoc. If we want to address these abuses systematically we need the proper tools to do so. That means an appropriate mechanism, dedicated to the issue, tasked with tracking violations and reporting them to States. We must institutionalize our efforts to address discrimination based on sexual orientation and gender identity. We need public education to change popular attitudes

4. The Independent Expert would focus on urgent, systematic and comprehensive attention to human rights violations, and encourage timely and necessary attention and dialogue between States, UN agencies, and other stakeholders. It is no different from the approach adopted by the UN HRC towards other groups suffering from discrimination, violence, and other human rights violations or abuses like indigenous people, Persons with Disabilities, Older Persons – all of whom have their own dedicated Special Procedure mandate.  

The Independent Expert will have strategic roles in raising awareness of violence and discrimination based on sexual orientation and gender identity, assessing implementation of existing human rights law, identifying gap and best practices, engaging in dialogue and consultation with States and other stakeholders, and facilitating provision of advisory services, technical assistance, capacity building and cooperation to help address violence and discrimination on these grounds. This is a historical moment that will enlighten the struggle to abolish discrimination and violence against LGBTQI around the world. 

5. The Philippines is a member of the United Human Rights Council (UN HRC) since 2007 with its term ending in 2018.  As a member of this important mechanism, the Philippines has a responsibility to actively participate in universally promoting and protecting the human rights of all people. The Philippines should realize its valuable position and not waste its opportunity to support the global recognition and fulfilment of protections against discrimination and violence based on sexual orientation and gender identity and expression. We must be one of the first to push for continuing dialogue and discussion on SOGIE at the international level, instead of participating in the blocking of every effort to bring clarity and understanding to the issue.
6. The DFA’s consistent reservation on a definitive foreign policy on SOGIE based on the “lack of a national law that comprehensively covers LGBT/SOGIE rights” is precisely a failure on the part of the State to protect Filipino LGBTs and address their needs, thereby making the Special Procedures mandate proposed during the 32^nd UN HRC Session all the more relevant and necessary.  The Anti-Discrimination Bill that seeks to give basic protections to Filipino LGBTs has been filed and re-filed, but has languished in Congress for almost 20 years. 

It must be remembered that as early as 2003 the United Nations Human Rights Committee’s Concluding Observations for the Philippines were as follows:

“The Committee urges the State party to take the necessary steps to adopt legislation explicitly prohibiting discrimination, in accordance with articles 3 and 26 of the Covenant. The Committee notes that legislation related to sexual orientation is currently being discussed in Congress and urges the State party, in this context, to pursue its efforts to counter all forms of discrimination. The State party is further invited to strengthen human rights education to forestall manifestations of intolerance and de facto discrimination.” (emphasis supplied)

Meanwhile, as far as national legislation is concerned, there are several laws which already prohibit discrimination based on SOGIE. The Magna Carta of Women or Republic Act No. 9710, makes specific mention of “sexual orientation” as a basis for non-discrimination under Section 3 on Declaration of Human Rights of Women. The Magna Carta of Social Workers of 2007 or RA 9433, specifically provides: under Section 17. Rights of a Pubic Social Worker – “Protection from discrimination based on sex, sexual orientation, age, x xx”  Similarly, the PNP Re-organization Act of 2008 likewise has a non-discrimination clause based on sexual orientation. The most recent legislation tackling sexual orientation and gender identity (SOGI) is the Anti-Bullying Act of 2013 which prohibits “gender-based bullying” based on perceived or actual sexual orientation or gender identity of the child.

For the DFA to reason that such non-discrimination provision in the Magna Carta of Women is such a “broad” principle that must be taken in conjunction with other existing Philippine laws on persons and family relations is a derogation of its innate value and to subsume it under a national law which may in fact be discriminatory. Such is the case of the Family Code of 1988 which looks at homosexuality and lesbianism in a negative light, categorizing it as a ground for annulment and legal separation, and a basis of fraud. While majority of who actually get married are not LGBTs, this type of “labelling” reinforced the idea being propounded by the Catholic Church that “LGBTs are to blame for annulled marriages and broken homes.” Admittedly, such legislations are a form of “institutionalized” homophobia.

7. While the Philippines touted the gains made by the Supreme Court decision of Ladlad vs. COMELEC during the December 2010 discussion on the UN Resolution proposing to remove “sexual orientation” as another basis for the prohibition vs. arbitrary killings and summary executions, it failed to mention that in the same case, the Philippine High Court also discredited the Yogyakarta Principles, the only international document that recognizes the human rights of LGBTs  and makes the United Nations treaties and conventions directly and specifically applicable to them. In disregarding the Yogyakarta Principles as a valid source of international law, the Philippine Supreme Court effectively left Filipino LGBTs with no specific international standard to invoke in the protection of their rights.

Meanwhile, in 2007 during the CEDAW reporting, the Philippine Shadow Report by EngenderRights, Inc. included the status of Filipino lesbians. The LGBT CSOs Coalition Report and the joint Rainbow Rights Project, Inc. and Philippine Hate Crime Watch submission to the 13^th Session of the Universal Periodic Review (UPR) in 2011 also painted a very bleak picture of the lives of Filipino LGBTs.

8. Failing to support the new mandate of an Independent Expert on the Protection against Discrimination and Violence based on Sexual Orientation and Gender Identity will undermine the great strides achieved by DSWD and trivialize its current efforts to fulfil its mandate of catering to the vulnerable and marginalized. The DSWD remains committed in improving the quality of life and providing social protection to marginalized sectors like the LGBT Community who suffer from multiple vulnerabilities given the various social and economic disparities they experience in Philippine society.

In fact, there have been similar efforts from other government agencies like the Department of Education which revised its Child Protection policy and issued DepEd Memorandum Order No. 40 in line with the Anti-Bullying Act of 2013. Republic Act No. 10627 prohibits “Gender-based bullying”, or any act that humiliates or excludes a person on the basis of perceived or actual sexual orientation and gender identity. Meanwhile, Civil Service Commission Resolution No. 01-0940 on Administrative Disciplinary Rules on Sexual Harassment Cases prohibits derogatory and degrading references to an individual’s sexual orientation.  The DFA cannot ignore these achievements and persist in its “strategic silence” policy on SOGIE while other government agencies have made significant progress and many developments are underway in the Philippine context.

As such, we would like to enjoin the DFA in representing the Philippine government at the United Nations General Assembly to make its vote count and not simply abstain as in previous occasions. The Philippines must vote against a hostile resolution which will negatively impact on thousands of Filipinos of diverse sexualities, and instead let the Independent Expert on SOGIE perform his mandate as soon as possible.

Yours truly,

JUDY M. TAGUIWALO

Secretary  

Department of Social Welfare and Development