Saturday, November 1, 2008

Right to express their gender and sexual identity and to disseminate ideas and information freely.

For immediate distribution: 27th October 2008
ARTICLE19 was invited to participate in a roundtable on “Freedom of Expression and Diversity”, on occasion of the Feria de Comunicación Alternativa 08’ (Alternative Communicaion Fair 08’) that was held in Mexico City on October 23 and 24. The importance of freedom of expression and access to information without discrimination and free of attacks towards the LGBTI community was stressed, highlighting the importance for the State to guarantee everyone’s right to express their gender and sexual identity and to disseminate ideas and information freely.


The right to express one’s sexual and gender identity
The fundamental right to freedom of expression, along with the right to be free of discrimination, are recognised in numerous human rights treaties including the International Covenant on Civil and Political Rights (ICCPR),1 the American Convention on Human Rights,2 the European Convention on Human Rights (ECHR),3 the African Charter on Human and Peoples’ Rights.4 The
European Union (EU) and the Organisation for Co-operation and Security in Europe (OSCE) have also recognised these rights.5
The right to freedom of expression is not absolute. It may be restricted, among others, to protect public order and morals, and the reputation and rights of others. However, pursuant to international law, any such restriction must be provided by law, and be necessary to protect a recognised legitimate aim, including those listed above. Restrictions must protect against a risk of
actual harm; it is not legitimate to restrict freedom of expression simply on the grounds that something might shock, offend or disturb others.
The right to freedom of expression also has a positive aspect. States have a positive obligation to protect against attacks or other acts aimed at limiting the exercise of the right to freedom of expression. States are also under a positive obligation to ensure respect for the right to access to
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1 UN General Assembly Resolution 2200A (XXI), 16 December 1966, entered into force 3 January 1976.
2 Adopted at San José, Costa Rica, 22 November 1969, O.A.S. Treaty Series No. 36, entered into force 18 July 1978.
3 Adopted 4 November 1950, E.T.S. No. 5, entered into force 3 September 1953.
4 Adopted at Nairobi, Kenya, 26 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, entered into force 21 October 1986.
5 See the EU Charter of Fundamental Rights and the Document of the Copenhagen Meeting of the Human Dimension of the Conference on Security and Co-operation in Europe -------------------------------------------xxx------------------------------
information, including by providing access to information held by public bodies and by proactively disseminating information of key public importance.

Key human rights mechanisms at the United Nations and elsewhere have affirmed that anti-discrimination rules under international law oblige States to ensure effective protection against discrimination based on sexual orientation or gender identity. The scope of international obligations in this area have been particularly well captured by the Yogyakarta Principles. In relation to freedom of expression, the principles state:
Everyone has the right to freedom of opinion and expression, regardless of sexual orientation or gender identity. This includes the expression of identity or personhood through speech, deportment, dress, bodily characteristics, choice of name, or any other means, as well as the freedom to seek, receive and impart information and ideas of all kinds, including with regard to human rights, sexual orientation and gender identity, through any medium and regardless of
frontiers.6

Violations of the right to express one’s sexual and gender identity
Human rights violations targeted toward persons because of their actual or perceived sexual or gender identity constitute an entrenched global pattern of serious concern. Such violations include not only restrictions on freedom of expression, but also extrajudicial killings, torture and ill-treatment, sexual assault and rape, invasions of privacy, arbitrary detention, denial of employment and education opportunities, and serious discrimination in relation to the enjoyment of other human rights. These forms of discrimination are perpetrated not only by officials but also by private actors.

Latin America and the Caribbean has been assessed as the region of the world with the highest number of killings due to homophobia.7 Mexico has the second highest number of such cases, with some 420 having been registered between 1995-2006.8 Brazil is the country with the highest number of registered cases and, in 2007 alone, some 122 people were killed due to their sexual orientation or gender identity, a 30% increase over the previous year.9
In many countries, the right to express one’s sexual identity is censored or curtailed in the name of public morality. However, as noted, the right to express one’s sexual or gender identity is protected under international law. Indeed, States are under an obligation to prevent discrimination on this basis. While it may be legitimate for States to restrict freedom of expression to prevent
immoral actions that cause actual harm, such as sexual attacks on children, as opposed merely to offence, morality can never justify restrictions on freedom of expression aimed at limiting the right to express one’s sexual or gender identity as such. When assessing whether or not a particular expression is harmful, the same standards should apply to all forms of sexual expression.
State obligations in this area go beyond ensuring that any restrictions on freedom of expression do not limit the right to express one’s sexual or gender identity, or do not discriminate. States are also under an obligation to provide protection against attacks on these forms of expression. For

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6 See http://www.yogyakartaprinciples.org/.
7 Campaigns against Homophobia in Argentina, Brazil, Colombia and Mexico, Pan-American Health Organization, 2006, p. 10 . http://www.paho.org/Spanish/AD/FCH/AI/homofobia.pdf.
8 Annual Report on Homophobic Crimes 2005-2006. Letra S, Mexico. See:
http://www.asylumlaw.org/docs/sexualminorities/Mexico5_051908.pdf.
9 Bahia Gay Group, 2008. http://www.ggb.org.br/ .
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example, States should provide protection where there is a risk that a peaceful gathering may attract violent counter-demonstrations, something that is all too common in the context of gay pride marches. Instances of attacks on newspapers or against books about sexual or gender identity give rise to a similar obligation of protection.
At some point, extreme expressions based on homophobia or related prejudices constitute a form of verbal attack which undermines the right of the LGBTI community to equality. Where such verbal attacks constitute hate speech – defined as advocacy of hatred which constitutes incitement to discrimination, hostility or violence – international law not only allows, but actually requires
States to ban it.10 Hatred, in this context, may be defined as an “irrational and intense antagonism” towards a person or a group, in this case due to their sexual or gender identity being different from the traditional social construct. Hate speech rules, however, should never be used to limit the expression of identity by a protected group, including expressions of sexual and gender identity. Furthermore, such rules should only be applied to expressions which directly incite to violence, discrimination or hatred.
The role of freedom of expression in breaking down prejudice
Eradicating entrenched and widespread social prejudices, such as those against the LGBTI community, requires a broad range of social actions. Respect for freedom of expression can be an important tool for combating prejudice, and promoting tolerance and understanding. Promoting a diverse media environment which ensures that all groups in society, including the LGBTI community, can express themselves is key to the achievement of this goal. In 2007, the four special mandates on freedom of expression at the United Nations (UN), the Organisation of American States (OAS), the Organisation for Security and Cooperation in Europe (OSCE) and the African Commission on Human and Peoples’ Rights (ACHPR) issued a Joint Declaration recognising “the fundamental importance of diversity in the media to the free flow of information
and ideas in society, in terms both of giving voice to and satisfying the information needs and other interests of all, as protected by international guarantees of the right to freedom of expression.”11 The Declaration emphasises, in particular, the need for the recognition of diversity
in all its forms as an underpinning of democracy, social cohesion and the full participation of all in decision-making processes. Media diversity is also key to ensuring that the LGBTI community has the ability to disseminate information and ideas of importance to it, such as advocacy for legal rights, organisation of or participation in conferences and demonstrations, and dissemination
of and access to safer-sex information. The media can also play a key role in breaking down prejudice and in promoting understanding.
The media makes a critical contribution to the formation of beliefs, opinions and attitudes in society. As such, it can give legitimacy to, reproduce or instead counter the propagation of discriminatory ideologies against differences, including those based on homophobia. Public media, and in particular public broadcasters, have a particular obligation in this regard, based on their public mandate and their duty to serve the needs of all groups in society. They
should have a formal mandate to combat all forms of discrimination and to make a positive contribution to the fight against human rights violations, including those motivated by the sexual or gender identity of the victims. At the same time, commercial, community and alternative media have a moral and social obligation to combat prejudice.
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10 See, for example, Article 20(2) of the ICCPR.
11 Adopted 12 December 2007. Full text available at: http://www.article19.org/pdfs/igodocuments/
mandates-broadcasting.pdf.
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The media should also make an effort to avoid disseminating unreliable or biased information about the LGBTI community. For example, the media and others often stigmatise people living with HIV/AIDS, thereby propagating prejudice and hampering efforts to address the problem.
The propagation of biased views of the problem of HIV/AIDS as a uniquely homosexual problem may also prevent accurate information reaching other groups facing a high-risk of exposure to the epidemic.
Access to information
In many countries, access to information on issues of particular importance to the LGBTI community, including information about health services, HIV/AIDS and legal rights, is limited. States have an obligation not to impose undue restrictions on the dissemination of these types of information. But they also have a positive obligation to ensure the dissemination of information
of key importance to all members of society. Information is, for example, a central component to the fight against HIV/AIDS and yet many
States have not made sufficient efforts to promulgate accurate information about the virus, while some States have actively prevented the dissemination of such information. The media can also play a significant role here, providing the LGBTI community with information of importance to them.
Recommendations
ARTICLE 19, Agenda LGBT and DECIDIR call on all States to implement their international human rights obligations and, in particular, to:
· Respect, protect and uphold the human rights of the LGBTI community.
· Review all restrictions on freedom of expression to ensure that no one is denied the right
to express his or her sexual or gender identity, or to receive and impart information and ideas concerning sexual and gender identity, including through speech, deportment, dress, bodily characteristics, choice of name or other means. Interests such as the protection of public order, morality and health should not used to justify restrictions that discriminate on the basis of sexual or gender identity.
· Take adequate measures to ensure appropriate protection of the LGBTI community against attacks that undermine its members ability to exercise their right to freedom of expression, including through appropriate restrictions on hate speech.
· Promote media diversity with a view to ensuring that everyone, regardless of sexual or gender identity, can impart and receive information and ideas, and participate in public debate.
· Ensure that the mandate of public service broadcasters includes combating prejudice and discrimination, as well as serving the needs of all members of society, including the LGBTI community, and that the personnel recruitment and promotion policies of such organisations are non-discriminatory.
· Disseminate key information of importance to the LGBTI community on a proactive basis.
ARTICLE 19, Agenda LGBT and DECIDIR call on broadcasters to:
· Put in place effective ethical and self-regulatory codes of conduct which prohibit discrimination against the LGBTI community and which promote a LGBTI-sensitive approach to media work.
· Design and deliver media training programmes which promote a better understanding of issues relating to sexual and gender identity, homophobia and discrimination.
· Play an active role in combating prejudice against and misinformation about the LGBTI community.
Notes to Editors
_ For more information, please contact Ricardo González (+52) (55)1054-6500
ricardo@article19.org.
_ ARTICLE 19 is an independent human rights organisation that works around the world to protect and promote the right to freedom of expression. It takes its name from Article 19 of the Universal Declaration of Human Rights, which guarantees free speech. www.article19.org
_ Agenda LGBT is an organisation that fights against AIDS and works for better living conditions for the lesbian, gay, bisexual and transgender communities. www.agendalgbt.com
_ DECIDIR is an organisation for young activists that promoted for the sexual and reproductive rights of the youth, in particular through creating and consolidating free spaces and respect for diversity. www.decidir.org.mx
Source: Article19.org

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