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LEGAL

COMMITeE
Topic: The Protection of Rights of the LGBT community
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Dear Delegates:

Welcome to the United Nations Legal Committee of LiMUN 2017!

My name is Paola Castillo and I have the honor and pleasure of directing this
committee. This is my third time as part of the LiMUN and my goal, alongside
the rest of the team, is to make this Conference one of the most challenging,
fun and remarkable experience you will have in Model UN.

I am a Lawyer from Universidad de Lima, currently working at Estudio


Echecopar in the Banking and Corporate section. While I was in college I had
the opportunity of discover the MUN experience thanks to Peruvian
Universities, which allowed me to attend to WorldMUN 2015, winning a
Diplomacy Award in the Legal Committee. Likewise. I consider MUN as a tool
which allows us to develop skills for the rest of our lives, but foremost it is an
opportunity to discuss pressing problems and achieve real solutions through
teamwork.

I am particularly excited to hear the ideas you will be bringing to the table in
the context of the Legal Committee, aligning to your country policy and
proposing respectful solutions to this very controversial problem. During this
conference, I strongly encourage delegates to take this as an opportunity to
learn and understand how the different legal frameworks operate in the world.
Every idea in a resolution must take into consideration that we live in a
multicultural world and that human dignity is the main pillar for the
development of a nation no matter its religion, gender, race or ideology.

I hope you are looking forward to debating and elaborating solutions that are
meaningful, viable and applicable to this issue in addition to forging
friendships and memories. I am very excited to get to know all of you so I
encourage you to stop by the dais at some point in the conference and say
hello.

Sincerely,

Paola Castillo
Director

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COMMITTEE HISTORY

The Sixth Committee is the primary forum for the consideration of legal
questions in the General Assembly. All of the United Nations Member States
are entitled to representation on the Sixth Committee as one of the main
committees of the General Assembly.

The United Nations General Assembly (GA) is one of the six principal organs of
the UN, where all Member States have equal representation. Its first session
was convened on 10 January 1946 in London, after the establishment of the
UN on 24 October 1945. Its composition, functions, powers, voting, and
procedures are set out in Chapter IV of the UN Charter. Its main responsibilities
are to oversee the budget of the United Nations, appoint the nonpermanent
members to the Security Council, receive reports from other parts of the United
Nations and make recommendations in the form of Resolutions. It has a wide
number of subsidiary organs. The GA subsidiary organs are divided into five
categories: committees (30 total, six main), commissions (seven), boards (six),
councils and panels (five), working groups, and "other". Among the six main
committees, there is the Legal Committee (6th) [1].

Additionally, is the primary forum for the consideration of legal questions in the
General Assembly. The UN General Assembly has an express mandate to
promote the development of public international law. Article 13 of the UN
Charter states that the “General Assembly shall initiate studies and make
recommendations for the purpose of: (…) encouraging the progressive
development of international law and its codification”. This provision has been
interpreted in the practice as an extensive authorization to elaborate new
treaties on the broadest range of issues, to subsequently adopt them, and to
recommend them to States for their signature, ratification, and accession.
Generally speaking, international law-making consultations take place in a
variety of specialized bodies of the UN, depending on their particular subject-
matter, however the negotiations related to general international law are
generally held at the Sixth Committee [2].

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TOPIC HISTORY

The Lesbian, Gay, Bisexual and Transgender (LGBT) acronym is a simplified


way to talk about a group of people who challenge traditional sexual and
gender norms. Lesbian and gay refers to individuals, female and male
respectively, who are attracted to people of their same biological gender.
Bisexuals are individuals who are attracted to both biological genders. And
finally, transgender refers to individuals who reject the biological gender they
are born with (a woman who feels like a man trapped in a female body) and will
endure physical transformations to change their appearance. Notice that there
exists another group of individuals who have been born with a genetic
composition that does not make them identify as either men or women, called
Intersex (an example will be a hermaphrodite, someone born with female and
male sex organs) and the acronym is thus expanded sometimes as LGBTQI
(the Q stands for “Questioning” or for “Queer”).

Everyday, people identified as part of the LGBT community are subject to a


series of human right violations, such as homophobic violence, murder, rape,
arbitrary detention and generalized discrimination in their workplace and in
their access to basic services from housing to health. It is illegal to be
homosexual in over 70 countries today, meaning that millions of individuals are
at a real risk of detention, imprisonment and even execution. While many
challenges remain for this community, there has been significant progress
through measures adopted by many countries, allowing the LGBT community
to enjoy their rights to live and exist, enshrined in international law [3]. There is
still much to do for their fulfillment, though in recent years there has been a
marked global movement towards their cause.

CURRENT STATUS

In recent years, Member States across all regions have pursued a variety of
initiatives aimed at reducing the existing levels of violence and discrimination
based on sexual orientation and gender identity. For instance, since the
adoption of resolution 17/19 of the United Nations Human Rights Council
(UNHRC) on June 17 2011, which made reference to human rights, sexual
orientation and gender identity [4], 14 Member States have adopted or
strengthened antidiscrimination and hate crime laws, extending protection on

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grounds of sexual orientation and and/or gender identity [5]. In addition, in two
cases, legal protections for intersex persons have also been introduced.
Likewise, three Member States have abolished criminal sanctions for
homosexuality; 12 have introduced marriage or civil unions for same-sex
couples nation-wide and 10 have presented reforms that make it easier for
transgender people to obtain legal recognition of their gender identity [5].

Despite these recognizable advances and the general acceptance of


homosexuality at the government level by most Member States, they are still
overshadowed by continuing anti-LGBT legislations, which allow serious and
widespread human rights violations against individuals based on their sexual
orientation and gender identity to be perpetrated, often with impunity [5].
Same-sex relationships are currently illegal in 76 countries and punishable by
death in 7, these nations being Sudan, Iran, Mauritania, Saudi Arabia, Yemen
and parts of Nigeria and Somalia [6]. In addition, since 2011, hundreds of
people have been killed and thousands more have been injured in brutal and
violent attacks, as well as having suffered violations which include torture,
arbitrary detention, denial of rights to expression, and discrimination in health
care, education, employment and housing [5]. In these sense, more than 90%
of homosexual men and women have reported being targets of verbal abuse or
threats, and more than one-third have reported being survivors of violence
related to their sexuality [7].

Homophobia and Transphobia


In order to discuss a possible legal framework for the protection of the LGBT
community, it is important to first understand the causes of the problem. On
one hand, homophobia can be defined as an irrational fear of, hatred or
aversion towards lesbian, gay or bisexual people, while transphobia denotes
an irrational fear, hatred or aversion towards transgender people [8]. However,
the term homophobia has often been used in an all-encompassing way to refer
to this behavior towards the LGBT community in general.

In this sense, there can be several explanations for this type of conducts. First,
it can be considered that some people perceive the behavior of the LGBT
people to go against traditional gender roles and in this way, end up
undermining social norms. Essentially, those considered to be homophobic
actually tend to feel threatened by homosexuality because they feel
uncomfortable by the perceived shift, away from a society dominated by

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‘masculine’ males [7]. In addition, other explanations are rooted within the first
one, including lack of education on the topic and moralistic and religious
beliefs, which consequently cause the generation of misconceptions and
harmful stereotypes about the LGBT community. For instance, the idea that
LGBT people come from ‘problematic’ homes or families, that they are
pedophiles or that homosexuality can be ‘cured’ or ‘prevented’. These
misconceptions and stereotypes are problematic, not only because of the
actions of violence and discrimination that can occur because of them, but
because it reinforces the ‘otherness’ of the LGBT community and creates
numerous obstacles towards encouraging tolerance.

Criminalization
Currently, the United Nations takes a clear stance on the criminalization of
homosexuality, by either imprisonment or death, affirming that “laws
criminalizing homosexuality violate rights to privacy and non-discrimination in
breach of States’ legal obligations under the International Covenant on Civil
and Political Rights” [9]. In addition, it considers that laws criminalizing gender
expression, including ‘cross-dressing’ or ‘imitation of the opposite-sex’,
negatively impact on the liberty and security of the trans and gender diverse
population, as it tends to foster a climate where hate speech, violence and
discrimination are condoned and perpetrated with impunity [10].

Regarding these concerns, the United Nations High Commissioner for Human
Rights issued a report on November 2011 documenting discriminatory laws,
practices and acts of violence against individuals based on their sexual
orientation and gender identity, and how international human rights law can be
used to end violence and related human rights violations based on sexual
orientation and gender identity [11]. In addition, in July 2013, the High
Commissioner launched UN Free & Equal (www.unfe.org), a global education
campaign to combat homophobia and transphobia that has so far reached
more than a billion people around the world through events and via traditional
and social media [5]. Finally, in June 2016 the UNHRC passed a resolution to
appoint, for a period of 3 years, an Independent Expert on protection against
violence and discrimination based on sexual orientation and gender identity, to
find the causes of violence and discrimination, raise awareness about these
issues and discuss and work in cooperation with Member States about how to
protect these people [12].

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Discrimination and social exclusion


Everyone has the right to be free from discrimination, including on the basis of
their sexual orientation and gender identity. This right is protected by article 2
of the Universal Declaration of Human Rights as well as the non-discrimination
provisions of core international human rights treaties. In addition, article 26 of
the Universal Declaration provides that everyone is equal before the law and is
entitled without discrimination to the equal protection of the law [13].

Nevertheless, deeply-embedded homophobic and transphobic attitudes, often


combined with a lack of adequate legal protection against discrimination on
grounds of sexual orientation and gender identity, expose many lesbian, gay,
bisexual and transgender people of all ages and in all regions of the world to
be victims of several forms of discrimination [14]. They suffer from both official
discrimination, in the form of State laws and policies that criminalize
homosexuality, bar them from certain forms of employment, deny them access
to basic health care and education, as well as unofficial discrimination in the
form of social exclusion, stigma and bias at home, school, health care
institutions and at work [13]. In this regard, States are required to guarantee
non-discrimination in the exercise of all human rights for everyone, regardless
of sexual orientation or gender identity, in both the public and private sphere
[13].

Case Studies

Russia
A brutal campaign against gay men is sweeping Chechnya, a region in
southern Russia, with reports of abduction-style detention, enforces
disappearances, torture and deaths. Police are rounding up men believed to
be homosexual, holding them in secret detention and beating and humiliating
them. Sometimes police even forcibly ‘out’ these men to their families, hinting
that they should be taken care of in an ‘honor killing’ [15]. In this sense,
Russia’s record of failure to investigate and prosecute anti-LGBT violence in
the country and the lack of accountability by security officials for the violent
actions, sends an urgent signal to the international community to step in and
save the lives and dignity of the LGBT people, before it leads to more suffering
[15].

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Malaysia
The Malaysian government is offering cash prizes up to 900 dollars for the best
videos explaining how to ‘prevent’ homosexuality, in regard to a competition
launched recently on the health ministry’s website in June [16]. Homosexuality
is known to be forbidden in Malaysia, where laws criminalizing anal sex can
even result in imprisonment, corporal punishment and fines. In this manner,
this kind of contest will only trigger more hatred and discriminations towards
the LGBT community in Malaysia, as well as confusion, distrust and fear [16].

BLOCK POSITIONS

1. North America

North America is one of the regions where the exercise of LGTBI rights has
been consolidated more firmly. The United States recognizes the right to
homosexual marriage at the federal level since the Supreme Court’s judgment
in 2015 [17] while transgender rights are recognized in 46 states, although
recently the government of Donald Trump has rolled back on the Protection of
LGBT rights as in the transgender bathroom policy [18]. In Canada, gay
marriage has been legal since 2005 [19], and in terms of transgender rights,
regulation also depends on each province, with gender identity being
recognized in all but one of the provinces [20].

Finally, Mexico approved homosexual marriage in all its territory since 2015 by
a Supreme Court’s judgment [21] while transgender rights and gender identity
is only recognized and valid in the Federal District.

2. Europe and Russia

Western Europe countries have developed and adapted their constitutions to


ensure the protection of LGBT community, having legalized same-sex marriage
and adopted other similar legal forms like civil unions or domestic partnership.
In addition, countries such as Malta (88%), Belgium (82%), United Kingdom
(81%), Denmark (71%) and most of Western European nations have in place
strong protections for LGBT on their national policies and laws. [22]

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However, the situation of LGBT’s rights in Eastern Europe and Russia is


worrying. Considering the ILGA-Rainbow Map 2016 on legal protection based
on sexual orientation and gender identity, this region exhibits low percentages
and a prevailing conservatism. The conservative- religious component
influences domestic politics to limit civil, political and economic LGBT people’s
rights. Therefore, Poland has a ban on same-sex marriage since 1997, Croatia
carried out a referendum to prohibit gay marriage. Notwithstanding, many of
these countries are also on a process of tolerance towards LGBT and have
created- in some cases- an atmosphere of friendliness towards sexual
minorities.

On the other hand, Russia is the least protective country in Europe for LGBT
citizens and the hardest place for gay people to live in. In 2013, the Russian
duma in Moscow passed a new law banning the “propaganda of non-
traditional sexual relationships” to minors which is effectively a ban on LGBT-
support campaigns. [23]

3. Asia and the Pacific

Several regions of central and Eastern Asia have conservative legislation


regarding LGBT rights, especially in Islamic countries such as Afghanistan,
Bangladesh, Pakistan, Maldives, Malaysia or Indonesia, which ban marriage,
adoption and military service, even including penalties for same-sex sexual
activity. India’s policy and legislation regarding LGBT community is similar to
those of the Islamic countries beforementioned. In all Turkic countries of
Central Asia (Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan and
Uzbekistan), same-sex couple adoption and marriage are illegal, and there is
no specific legislation to protect LGBT community. Southeast and East Asian
countries have similar policies, with few recognitions to the LGBT community.
In China, both Koreas, Cambodia, Laos, Philippines and Vietnam, same-sex
marriage and adoption are not allowed. Israel and Japan are a couple of the
countries with the biggest improvements in the whole region [24].

4. Latin America and the Caribbean

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Latin America and the Caribbean region is a region which includes a wide
range of policies regarding LGBT’s rights and where the full consolidation and
exercise are in slow progress.

For a first glance, we observe that homosexuality is legal in South America and
Central America countries, but is illegal in most Caribbean island countries.
Following this approach, we find that the recognition and exercise of
homosexual marriages is complete in Colombia, Uruguay, Brazil and Argentina
(Corrales 2015: 56-57). Furthermore, homosexual civil unions are approved in
Chile and Ecuador; foreign homosexual marriages and civil unions are
recognized in Costa Rica [25] and Peru [26] and forbidden in the rest of the
countries in the region [27]. On transgender rights, we see a slower but similar
evolution as in homosexual marriage; gender identity is approved with different
legal nuances in all Central American and South American countries except
Nicaragua, Paraguay, Suriname, Guyana and most of the Caribbean countries
where it is prohibited; but only Argentina has approved full transgender rights
since 2013 [28].

5. Middle East and Africa

In the Middle East region, traditional ideas about gender identity, sexual
orientation and family prevail. Nowadays, in Iran, sodomy is a capital offence
and people are executed for it. Furthermore, countries such as Saudi Arabia,
Sudan, Yemen and Mauritania consider sodomy as a crime punishable with
death. In other cases, the penalty is up to 10 years in prison. Moreover, there
are some countries which do not have specific laws against homosexuality.
However, they still could be prosecuted under other laws typified on legal
bodies according to the country itself. For example, an old law in Egypt against
debauchery is still applied against the LGBT [29].

These laws demonstrate the disapproval of homosexuality and how


discrimination based on sexual orientation has been legally accepted by
Muslim societies. Though, since the previous decade non- governmental
organizations and Arab LGBT websites have worked in Arab countries for gay
and transgender rights. For instance, My Kali is a Jordanian magazine “which
strives to address homophobia and transphobia and empower the youth to
defy mainstream gender binaries in the Arab world" [30].

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On the other hand, most African countries have a conservative view


regarding LGBT rights. According to the Human Rights Report, in Tanzania the
LGBT community faces social discrimination limiting their access to health
care, employment and housing. Similar cases were reported also in Sierra
Leone, Uganda and Zambia [31]. Despite this situation, some progress has
been done. South Africa, through constitutional amendments and anti-
discriminatory legislation, is paving the way. Nevertheless, there exists a
tremendous challenge for governments in Africa in order to ensure rights to all
its population.

QUESTIONS A RESOLUTION MUST ANSWER (QARMAS)

1. According to these different realities, should there exist a common legal


framework? Or would it be recommendable to establish some pillars that
must be respected by all Member States?

2. How can the international community contribute with the protection of


the rights of the LGBT community without trespassing their internal
policies?

3. What are the main obstacles for the full development of LGTB rights? Is
it possible to find solutions through the legal remedies?

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BIBLIOGRAPHY

[1] United Nations General Assembly Rules of Procedure, art. 98; Alan Boyle and Christine Chinkin,
The Making of International Law (Oxford: Oxford University Press, 2007) pp. 116 – 117

[2] The Charter of the United Nations: a commentary, (München: C. H. Beck Verlag, 1995), pp.
265 – 266; Paul C. Szasz, The Security Council Starts Legislating, 96 American Journal of
International Law, (2002) p. 901

[3] Office of the United Nations High Commissioner for Human Rights. Embrace diversity and
protect trans and gender diverse children and adolescents: International Day against Homophobia,
Transphobia and Biphobia. Available from:
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21622&LangID=E

[4] Human rights, sexual orientation and gender identity. United Nations Human Rights Council,
A/HRC/RES/17/19: July 14, 2011

[5] Discrimination and violence against individuals based on their sexual orientation and gender
identity. United Nations Human Rights Council, A/HRC/29/23; May 4, 2015

[6] State-sponsored Homophobia. The International Lesbian, Gay, Bisexual, Trans and Intersex
Association. May 2010. Available from:
https://web.archive.org/web/20101122235101/http://old.ilga.org/Statehomophobia/ILGA_State_S
ponsored_Homophobia_2010.pdf

[7] Henry E. Adams, Lester W. Wright Jr., and Bethany A. Lohr, “Putting Freud to the Test,” Public
Broadcasting Station

[8] Fact Sheet: LGBT Rights – Frequently Asked Questions, United Nations Office of the High
Commissioner [cited 2017 June 11]

[9] Fact Sheet: Criminalization, United Nations Office of the High Commissioner [cited 2017 June
11]

[10] Office of the United Nations High Commissioner for Human Rights. Embrace diversity and
protect trans and gender diverse children and adolescents: International Day against Homophobia,
Transphobia and Biphobia. Available from:
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21622&LangID=E

[11] Discriminatory laws and practices and acts of violence against individuals based on their
sexual orientation and gender identity. United Nations Human Rights Council, A/HRC/19/41;
November 17, 2011

[12] Protection against violence and discrimination based on sexual orientation and gender identity.
United Nations Human Rights Council, A/HRC/32/L.2/Rev.1; June 28, 2016

[13] Office of the United Nations High Commissioner for Human Rights. Born Free and Equal:
Sexual Orientation and Gender Identity in International Human Rights Law. New York and Geneva;
2012. Available from:
http://www.ohchr.org/Documents/Publications/BornFreeAndEqualLowRes.pdf

[14] Office of the United Nations High Commissioner for Human Rights. Combatting discrimination
based on sexual orientation and gender identity [homepage on the internet]. No date [cited 2017
June 11]. Available from: http://www.ohchr.org/EN/Issues/Discrimination/Pages/LGBT.aspx

[15] Knight K. Gay men in Chechnya are being tortured and killed. More will suffer if we don’t act.

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The Guardian. 2017 April 13 [cited 2017 June 11]

[16] Malaysia offers cash prizes for best ‘gay prevention’ videos. The Guardian. 2017 June 4 [cited
2017 June 11]

[17] Lawler, David (2015).Gay marriage made legal across the United States - as it happened

http://www.telegraph.co.uk/news/worldnews/northamerica/usa/11701633/Gay-marriage-now-
legal-across-America-live.html

[18] Associated Press (2017). Donald Trump revokes Barack Obama guidelines on transgender
bathrooms

http://www.telegraph.co.uk/news/2017/02/23/donald-trump-revokes-barack-obama-guidelines-
transgender-bathrooms/

[19]The New York Times –Publishing House (2005). Canada passes bill to legalize gay marriage

http://www.nytimes.com/2005/06/29/world/americas/canada-passes-bill-to-legalize-gay-
marriage.html

[20] International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) and others

(2016). Trans Legal Mapping Report 2016: Recognition before the law, pages 57-58. Geneva:
ILGA.

[21]Martínez, Jan (2015). El Supremo de México avala el matrimonio homosexual

http://internacional.elpais.com/internacional/2015/06/15/actualidad/1434391282_348815.html

[22] International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) and others. (2016).
Europe Rainbow Map 2016. 10th june, from ILGA-Europe Sitio web: http://www.ilga-
europe.org/sites/default/files/Attachments/side_a_rainbow_europe_map_2016_a3_small.pdf

[23] Global Equality web site http://www.globalequality.org/newsroom/latest-news/1-in-the-


news/186-the-facts-on-lgbt-rights-in-russia

[24] Equaldex organization. (2017). LGBT Rights in Asia. 11th june, from Equaldex web site:
http://www.equaldex.com/directory/regions/asia

[25] Benedetti, Ana (2013) Costa Rica Accidentally Approves Same-Sex Unions

http://www.huffingtonpost.com/2013/07/03/costa-rica-same-sex-marriage_n_3542904.html

[26] Fowks, Jackeline (2017).La Justicia peruana reconoce un matrimonio homosexual celebrado
en el extranjero
http://internacional.elpais.com/internacional/2017/01/11/america/1484089382_126225.html

[27] Corrales, Javier (2015). “The Politics of LGBT Rights in Latin America and the Caribbean:
Research Agendas” in European Review of Latin American and Caribbean Studies. No. 100 -
December, pp. 53-62

[28] Lahrichi, Kamila and La Valle, Leo (2016). Argentina's Field of Dreams for the LGBT

https://www.usnews.com/news/best-countries/articles/2016-04-04/argentinas-field-of-dreams-
for-the-lgbt

[29] Brian Whitaker. (2016). Everything you need to know about being gay in Muslim countries.

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June 9th 2017, The Guardian web site: https://www.theguardian.com/world/2016/jun/21/gay-lgbt-


muslim-countries-middle-east

[30]My.Kali web page

https://medium.com/my-kali-magazine

[3 ] The Council for Global Equality. (2012). Country Details Human Rights Report. United States:
U.S Department of State.

AVISO LEGAL

La información contenida en esta guía de estudio se proporciona sin costo y únicamente para
propósitos académicos, y constituye y recopilación de opiniones y pensamientos de diferentes
autores, expertos y académicos sobre el tema cuyos créditos no han sido necesariamente
incluidos. Los autores de esta guía de estudio no reclaman ningún derecho de autor ni ningún tipo
de propiedad intelectual o derecho legal por su contenido o por la información específica que se
incluye. La información contenida en esta guía de estudio no puede ser revelada ni utilizada para
otros propósitos sin el consentimiento previo por escrito del autor de la misma. Esta guía de
estudio ha sido hecha en cumplimiento con el Decreto Legislativo 822.

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