On July 7, will India finally vote for the queer community at a key UN meeting?

On July 7, at the end of the 50th session of the Human Rights Council, the member countries will vote on the renewal of the mandate of the Independent Expert in Sexual Orientation and Gender Identity.

This mandate was first established through a close vote in 2016 and was again narrowly renewed in 2019. Support for the mandate comes from the Latin American region, European countries and Asian countries such as Japan, South Korea, Vietnam and South Africa from the African group. The opposition was led by the African Group, as well as the Organization of the Islamic Conference. India has generally abstained in the vote.

Over the past six years, the mandate has consistently highlighted human rights violations based on sexual orientation and gender identity. One of the important ways that sexual orientation and gender identity has become part of the broader human rights discourse is through the reports produced by the Independent Expert.

In a groundbreaking report, independent expert Victor Madrigal-Borloz challenged one of the fundamental tenets of sociocultural life in the modern world: the link between the sex one is born into and the gender assigned at birth.

Referring to a variety of sources, Madrigal argues that to persist with the binary of dividing the world into men and women, and assigning gender based on the sex one is born into, is to commit violence against all those who step outside the norm. like intersex people.

In other reports, the independent expert has highlighted the serious human rights violation of existing anti-sodomy laws, the need for anti-discrimination laws and the need to recognize gender identity. Through these reports, the rights of LGBTQIA people have become part of the mainstream conversation at the United Nations level.

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The mandate also has authority to conduct country visits, and in the last six years the mandate holder has visited countries as diverse as Ukraine, Georgia, Argentina, Mozambique and Tunisia. The mandate has also made countries such as Russia, South Korea and Brunei respond to individual “complaint letters” of human rights violations based on sexual orientation and gender identity.

To take just one example, an Indonesian group submitted a letter of complaint about alleged arbitrary arrest, detention and ill-treatment of twelve transgender women in Aceh province. The Indonesian government responded to the Independent Expert’s complaint by stating that “there should be no discrimination against minorities in Indonesia” and highlighted the responsibility of the Indonesian police to “protect anyone who feels threatened because of their sexuality”.

Internationally, violations based on sexual orientation and gender identity are being taken seriously and must move forward. It is imperative that the mandate be renewed at the next vote in the Human Rights Council. As a member of the Human Rights Council, India can vote to renew the mandate, vote against the mandate, or simply abstain.

When the proposed resolution was presented to the independent expert in 2016, India abstained. The reason for the abstention, articulated by the Foreign Office, was that Section 377 of the Indian Penal Code prohibiting “unnatural sex” was on the statute books and the matter was sub-judice. In 2019, when the renewal of the mandate in the Council was raised, India again abstainedwithout giving any reason. On July 7, what will India do?

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If one follows the logic that a constitutional orientation should structure foreign policy, then the way India should vote is clear. The Supreme Court decisions in Navtej Johar vs Union of India and NALSA vs Union of India have unambiguously recognized that the LGBTQIA community has a fundamental right to dignity, free expression, equality and non-discrimination.

NALSA refers to the National Legal Services Authority. In the 2014 ruling, the Supreme Court recognized the right of transgender people to determine their gender identity. Any action at the international level that furthers this constitutional vision must be wholeheartedly embraced by the Indian government.

When the vote takes place on July 7, we will know whether the Indian government accepts the logic of Navtej and NALSA and votes in favor, or rejects the logic of Navtej and NALSA and abstains.

Arvind Narrain is a Bangalore-based lawyer and writer.