This article sketches the potential and challenges that the gender/sexual minorities (LGBTIAQ+) movements have faced in claiming CEDAW to reinstate their rights in India. Though the instrument is flawed and limited, there is merit in engaging with CEDAW to highlight the issues of members of the LGBTIAQ+ communities.
May 2019 “Sarmila Malla, 19 a woman in eastern India has been tied up to a tree and beaten after neighbors discovered she was in a same-sex relationship. The neighbours said she is immoral and had besmirched the name of the village”
In June 2018 Asha Thakor and Bhavna Thakor, a lesbian couple, jumped to their death in Gujarat's Sabarmati river after leaving behind 'suicide notes' near Ellisbridge."We have left this world to live with each other. The world did not allow us to stay together.”
April 2019 Shalu a transwoman in Kerala was found dead near the bus depot under “mysterious circumstances” and her biological family refused to accept her body. Members of the community performed the last rites.
In most instances, these cases receive scant attention and often the victims are themselves treated as criminals, “abnormal” or “perverts”.
What is heartening is that the United Nations has started to pay attention to the issues of the LGBTIAQ+ through resolutions and joint statements at General Assembly, as well as through its human rights mechanisms and by the UN Agencies that have focussed on what has been called discrimination based on Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (SOGIESC).
This article examines the possibilities and challenges of employing the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) to the highlight and seek redressal for the discrimination and oppression of lesbian, bisexual women, transgender and intersex people (LBTI); and further the goal of enhancing the rights to sexual freedom and gender identity of LBTI persons.
CEDAW a unique and useful charter
“One of the Decade’s greatest achievements has been the creation of awareness about the injustices and negative effects of discriminatory practices against women” Filomina Chimona Steady 1985 on the International Decade Women.
It has been 50 years of CEDAW. This Convention, which is considered Women’s Bill of Rights, was long in the making and the process of its adoption in 1979 was the result of a long struggle by women within and without the UN. This unique instrument melds together diverse human rights elements to provide a robust framework to address the complex nature of the inequality experienced by women.
CEDAW stemmed from the idea that despite the recognition of the United Nations founding documents that declare that human rights are universal, women were excluded because the standards for human rights are derived from the experience and concerns of men. Women emphasised the need for a separate instrument that would respond to the discrimination that they face.
CEDAW is an instrument that challenges traditional binaries around rights. It yokes together the formal (de jure) and substantive (de facto) equality and defines discrimination in terms of both purpose and effect (direct and indirect discrimination). Again it captures the interdependence, interrelation, and indivisibility of all human rights (civil, political, economic, social and cultural), while framing them in terms of nondiscrimination and equality. This, despite the fact that the first drafts of the Declaration of Elimination of Discrimination Against Women (which serviced as the foundation document for CEDAW) were being drafted at a time when human rights were being bifurcated into civil and political (backed by the USA) and economic and social (backed by USSR).
The “public” and “private” spheres were brought within its ambit. This again is a crucial departure from viewing rights merely vis-a-vis the state. It also holds states accountable for addressing and eliminating discrimination perpetrated by both state and non-state actors. The CEDAW Convention also covers the needs of specific groups of women who may face multiple forms of discrimination.
This collapsing of binaries, challenging of dichotomies and emphasis on all forms of discrimination (including gender stereotypes) resonates with the position of the LGBTIAQ+ movements that have raised questions on seeming self-evident categories around sex, gender and sexuality. These movements have also pointed to the deep-seated discrimination against them and the hostile or at best weak state response to the abuse they face.
The women’s movement has claimed this Convention and deployed it as a tool to rally around, foster international dialogue, fight for non-discrimination and equality and build accountability among duty bearers. The Convention, therefore has become a live document, that is being continually redefined and expanded.
It is an appropriate and powerful instrument for LBTI, persons to use to further their rights and claims to equality. It would be wrong to assume that this is merely a compromise given that there is no one particular international legal instrument that expressly and explicitly obliges state parties to respect the human rights of LGBTIAQ+ persons. Rather CEDAW is a valuable channel, in and of itself, and has to be claimed by all those who are discriminated based on their gender.
Gender and sexual minorities (LGBTIAQ+) are present in all countries. Discrimination and violence are part of their daily lives due to all-pervasive social stigma, and the laws and policies that institutionalise prejudice against people on the basis of their sexual orientation and gender identity. This discrimination and violence are perpetrated by various institutions including the family, community, state and non-state institutions. The forms of violence include rape, physical violence, ex-communication, bullying, and name-calling. Their access to a range of services like education, health, as well as employment and recreation is severely compromised due to overt and covert discrimination, and this, in turn, makes them more vulnerable to poverty and violence and significantly curtails a range of other rights and freedoms guaranteed to all.
Naming rights and highlighting violations are often the crucial first step in drawing the attention of the international community. The next tasks include recognizing where these rights are located (social or legal recognition), and claiming and asserting rights by advocates and individuals in different fora including through CEDAW (besides within other human rights frameworks)
The notion of oppression that CEDAW torchlighted goes beyond mere unequal treatment, it includes structural issues that cause or contribute to marginalisation, violence.
Expanding CEDAW to include discrimination based on SOGIESC
The language of equality that is embedded in the Convention is based on a comparison between women and men. “Yet, the Committee has repeatedly insisted that the obligations contained in the Convention express broader dimensions of inequality, including inequalities amongst women.”
There is no provision in CEDAW that refers to the interaction of sex and gender and other markers of identity including sexual orientation. CEDAW has come in for criticism for ‘failing to capture the diversity of women and the range of their experiences’ and not recognising the ‘complexity of discriminatory practices directed at intersecting identities’. However, others argue that this is a misreading of CEDAW and it is constantly evolving and alive to the different lived experiences of all women. As early as 1994 the Committee had noted the concern of the Netherlands about issues pertaining to sexual preference in its state report and welcomed the government of New Zealand move to pass a Human Rights Act that made sexual orientation a prohibited ground of discrimination. Further by issuing General Recommendations the CEDAW Committee adapts and clarifies the provisions and meaning of the Convention as international human rights law develops over time.
Scholars have noted that the Convention could be applied to provide protection for women who are discriminated against because of their sexuality where this ‘has been used to subordinate women’ for example, where ‘a lesbian’s right to life is violated when she is subjected to death threats for not conforming to dictated heterosexual norms’. It could, therefore, be argued that the phrase ‘all forms of discrimination against women’ in the Convention’s title also includes oppression that is related to women’s sex, sexuality, gender roles, and/or gender identity.
Since CEDAW does not engage in the difference between sex and gender, many have argued that Article 1 of CEDAW can be expanded to include trans and intersex people as it expands the term discrimination to mean: ‘the term “discrimination against women” shall mean any distinction...made on the basis of sex which has the effect or purpose of impairing...”
This expanded version of going beyond sex-based to gender-based discrimination is made explicit in the Committee’s General Recommendation No. 28. This is an important development to allow for SOGIESC to enter the ambit of the Convention. Similarly, the text of CEDAW does not directly discuss the meaning of marital status. The CEDAW Committee has held that ‘state parties are obligated to address the sex and gender-based discriminatory aspects of all various forms of family and family relationship’ and, more specifically, ‘where they are recognised, whether as a de facto union, registered partnership or marriage the state party should ensure protection of economic rights of the women in those relationships’ (CEDAW Committee, General Recommendation No. 29).
Again this can be used to acknowledge same –sex unions or marriages. Similarly, the provision in CEDAW to counter gender stereotypes is also understood to champion the cause of all persons who renounce traditional heterosexual and patriarchal feminine and masculine gender identities and gender roles. This would include lesbian and bisexual women and trans people.
Besides reading into the text and expanding the Convention, rights of lesbian, bisexual women and trans people find an explicit reference in the General Recommendations. Beginning in December 2010, CEDAW began to regularly include sexual orientation and gender identity as vulnerable grounds in its General Recommendations, particularly in comments on intersectionality and multiple forms of discrimination. To date, there are a total of 37 General Recommendations. Of these, No. 27 (concerning the rights of older women), No. 28 (on the core obligations of state parties under article 2), No. 32 (on the gender-based dimensions of refugee status, asylum, nationality and statelessness of women), No. 33 (on women’s access to justice), No. 35 (on gender-based violence against women, updating general recommendation No. 19) No. 36 (on the right of girls and women to education) and General Recommendation 37 (on the gender-related dimensions of disaster risk reduction in the context of climate change) explicitly refer to SOGIESC.
This step of inclusion of SOGISEC is not without difficulty as often there have been fierce debates and lack of support for this agenda from a swath of nations.
Why use CEDAW
"As lesbians, we are both outside the law and within it. And yet, we are always under it. Sometimes under it in the sense of being beneath notice, not deserving of legal recognition. And at other times, under it in the sense of being under a system that dominates, being under its power." - Ruthann Robson
The failure of nations to report, monitor, and prevent human rights violations against the LGBT community stems from the failure of the global community to articulate these human rights.Governments sanction the persecution of these populations because they consider homosexuality unnatural and abnormal.
Therefore CEDAW offers a window of opportunity. All the 189 members of the UN who have ratified this convention need to report against it.
In countries that have laws that penalise same-sex conduct or any kind of non-normative sexuality, most LBT women have to stay hidden from public and the State’s gaze and therefore are unlikely to report or seek redressal if they experience discrimination or violence. Besides the state they are also fearful of repercussions within the family, community, work place etc. They are routinely subject to some of the most heinous of human rights abuses; however these abuses are yet to be systematically addressed by United Nations treaty bodies such as CEDAW.
Shadow/alternative reports are a key mechanism for making otherwise hidden violations of women’s rights visible. The reports need to establish that “a law, policy or practice violates a right protected by CEDAW and what the impact of this violation is on women because of their gender and also because of their sexual orientation and/or gender identity.” It also important as it aids the Committee in its duty to protect LBT communities. It draws attention to the fact that all women are equally entitled to and deserving of human rights protections, while it encourages human rights activists to be inclusive in their reporting practices.
From a strategic standpoint, it often is more effective to ensure that the discrimination faced by women on the basis of SOGIESC is knitted into the main NGO shadow/ alternative report drafted by a national women’s rights organization. This reduces the perception that discrimination on the basis of SOGIESC is a “marginal” issue, reaffirming its connection to gender-based discrimination against women and to the main themes of CEDAW. Similarly, the sexual rights framework offers some advantages over ‘identity-based’ (e.g. LBT) rights lobbying for securing anti-discrimination provisions on the basis of sexual orientation and gender identity in that it gains larger support.
However, it also makes sense to write a separate report on human rights abuses against LBT people, thereby preventing the issue from becoming diluted by CEDAW Committee members. If the report is a coordinated one with inputs from many organisations, it will be stronger and more nuanced.
One of the biggest challenges is that the distinction between sex and gender has not been clarified by the CEDAW Committee’s work. The Committee has not taken cognisance of the recent scholarship that challenges the traditional binary concepts of sex and gender.
The Committee is also under pressure from groups including faith-based ones, as well as member countries that regard including aspects of SOGIESC into its work as going against its religious and/or cultural norms. In these countries talking about the rights of people who are outside the heteronormative framework may be dangerous and therefore there may be very little data for the Committee to work with.
Besides another popular opinion is that any “deviation” from the expected gender role or heterosexism is “abnormal” or “unnatural” and need to be fixed. Given this and other biases among many of the countries, same-sex relationships are not legally, socially or culturally accepted in a considerable number of State parties. Therefore, most of the states’ official submissions to the CEDAW Committee do not cover discrimination on the basis of SOGIESC.
The other danger is around that when inclusion of these issues does happen, who will get included. The concern is if this will lead to a privileging of Western-based identity categories and an erasure of those whose identities do not fit into this framework.
Another serious concern is that the simple addition of SOGIESC to existing human rights discourses may not be very favourable. While rights that resemble those that extend to others – such as marriage – may get some support- but others – such as the right to determine one’s gender may be missing.
For over two decades there are already examples of the CEDAW Committee raising issues of LBT in its concluding remarks including against laws that specifically criminalise or penalise lesbianism. This indicate that SOGIESC has become more entrenched with the CEDAW system. The need is for the gender/sexual rights movements to claim CEDAW and shape it to include their stories, their struggles and their voices.
Recent trends of development around LGBT rights worldwide have been mixed. On one hand steps towards same-sex marriage rights (often held out as the last hurdle to equality) have been gathering support, on the other, there has been a receding of rights in many countries with the adoption of “homosexual propaganda” bills. The UN, as the foremost progenitor in the development and protection of international human rights, becomes a significant arena to engage with, especially under these circumstances.
 Jain, Devaki (2005). Women, development, and the UN a sixty-year quest for equality and justice. Bloomington, Indiana: Indiana University Press pg 88-89
 Committee on the Elimination of Discrimination against Women (CEDAW Committee), Concluding Observations: Netherlands, para. 253, UN Doc. A/49/38, April 12, 1994.
 Committee on the Elimination of Discrimination against Women (CEDAW Committee), Concluding Observations: Netherlands, para. 253, UN Doc. A/49/38, April 12, 1994.
 Rikki Holtmaat & Paul Post (2015) Enhancing LGBTI Rights by Changing the Interpretation of the Convention on the Elimination of All Forms of Discrimination Against Women?, Nordic Journal of Human Rights, 33:4, 319-336, DOI: 10.1080/18918131.2016.1123502 pp 323