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Until 2022, the Kaleidoscope Trust CEDAW Tracker looked at and examined the approach of the CEDAW Committee towards the condition of LBTI people’s rights in 54 countries. In August 2022, two African countries, Gabon and Togo joined the Commonwealth, making this total to 56. Therefore, in 2023, the CEDAW Tracker reviewed the information – concluding observations, list of issues, state reports – of a total of 56 commonwealth countries.
Out of the 56 commonwealth countries, a total of 25 countries received at least one rights-affirming observation from the Committee, while 8 received a complete endorsement of LBTI rights from the CEDAW Committee. A total of 19 countries received concluding observations without any recognition of LBTI rights by the Committee. 3 countries were out of the purview of this study, and 1 has not ratified the Convention.
From a regional analysis, it was found that African nations received the largest number of SOGIESC-specific rights-affirming observations from the CEDAW Committee (14) and The Pacific had the highest number of countries (7 out of 9 State parties that have ratified CEDAW) that did not receive any rights-affirming observations from the Committee.
A total list of countries that have received rights-affirming observations are: Botswana, Cameroon, Gabon, The Gambia, Kenya, Malawi, Mauritius, Mozambique, Namibia, Nigeria, Rwanda, Seychelles, South Africa, and Uganda (Africa); Antigua and Barbuda, The Bahamas, Barbados, Canada, Guyana, St. Kitts and Nevis, and St. Vincent and the Grenadines (Americas); India, Malaysia, Maldives, Pakistan, Singapore and Sri Lanka (Asia); Cyprus, Malta and the United Kingdom (Europe); and Australia, Fiji and New Zealand (Pacific).
The CEDAW Tracker noted that some countries had a change in status. In Africa, two countries – Rwanda and Namibia – also moved from ‘No recognition of LBTI rights’ to receiving its first ever rights-affirming reading. Additionally, Uganda’s status changed from ‘Rights affirming reading’ to ‘Complete endorsement of LBTI rights under the convention’ – this means that the Committee put out more rights-affirming recommendations for Uganda, despite recent developments in the country and backlash against LGBTQI+ activists.
In the Americas, St. Kitts and Nevis moved from ‘No recognition of LBTI rights’ to receiving its first ever rights-affirming reading for LBTI people in 2022. Singapore, Malaysia and Maldives in Asia moved from ‘Rights affirming reading’ to ‘Complete endorsement of LBTI rights’, which means that the CEDAW Committee recognised the use of the Convention for the advancement of LBTI rights, acknowledges state action around decriminalisation; all LBTI constituencies are recognised in their framing and positive rights and a framework for their implementation is included in the concluding observation, with intersectionality at its centre.
Africa also had two new countries join the Commonwealth – Gabon and Togo. While Togo did not receive a rights-affirming reading in its last CEDAW session in 2012, Gabon received its first in 2022, which looked at recommending effective protection to LBTI people from gender-based violence, discrimination and asked the state to ensure that they receive full access to justice. Gabon and Togo both come to the Commonwealth with interesting histories and relationships with LBTI rights. Historically, these countries have not been a part of the British colonial system, and as a result have not inherited the laws criminalising sodomy. In fact, Gabon is one of the 88 member states and governments who make up the International Organisation of La Francophonie (OIF), and has a mixed legal system based on customary law and French civil law, which did not export laws criminalising sexual orientation. Therefore, in Gabon, same-sex conduct has never been illegal, except for a period between July 2019 and June 2020. Gabon, therefore, criminalised same sex conduct in 2019, which was then reversed. Togo criminalised same-sex conduct in 2015.
While the Committee did not provide SOCIESC-focused recommendations for certain countries, despite a SOCIESC-inclusive LoI, there were also countries where there were no LBTI-inclusive LoIs and yet, the Committee Concluding Observations contained recommendations that centred LBTI people. Most of these countries (6 countries) were in the African region – Cameroon, Gabon, the Gambia, Kenya, Mozambique and Namibia, .
Despite a push back against LBT recommendations from the Gambia expressed in its sixth periodic report submitted to the Committee in December 2020, where the state stated that the issue of LGBT was not considered to be a problem in The Gambia because even though it is criminalised the LGBT community are not subjected to any form of discrimination and harassment, in October 2022, the Committee noted with concern that women human rights defenders, especially those who identify as LBTI and advocate on behalf of LBTI people are subjected to serious online and other threats, intimidation and harassment for their work on women’s human rights. LBTI people, as the Committee noted, face criminalisation and intersecting forms of discrimination in the Gambia. However, there were no LBTI-specific or inclusive questions in the LoI in 2022.
Other countries that did not have an LBTI-inclusive LoI but received SOGIESC-focused rights-affirming recommendations were New Zealand, (Pacific); The Bahamas, Barbados, Canada, St. Kitts and Nevis, and St. Vincent and Grenadine (Americas).
There is an increasing number of LBTI-inclusive/SOCIESC-focused recommendations from the 69th Session onwards. From 2018 onwards, therefore, a number of countries have received very holistic observations on LBTI rights: Fiji (2018; 69th session); Australia (2018; 70th session); New Zealand (2018; 70th session); United Kingdom (2019; 72nd session); Cyprus (2018; 70th session); Guyana (2019; 73rd session); The Bahamas (2018; 71st session); Antigua and Barbuda (2019; 72nd session); St. Kitts and Nevis (2022; 83rd session); Guyana (2019; 73rd session); Malaysia (2018; 69th session); Maldives (2021; 80th session); Pakistan (2020; 75th session); Mauritius (2018; 71st session); Botswana (2019; 72nd session); Seychelles (2019; 74th session); Namibia (2022; 82nd session); Nigeria (2020; 77th session); Uganda (2022; 81st session); Mozambique (2019; 73rd session); South Africa (2021; 80th session); The Gambia (2022; 83rd session).
Two countries in the Pacific – Samoa and Kiribati – received Lists of Issues (LoIs) that contain LBTI-inclusive questions, but the CEDAW Committee did not provide any SOCIESC-focused recommendations. The LoI for Samoa contained questions on the situation of LBTI persons and whether any measures had been taken by the State party to address “intersectional forms of discrimination”, and providing disaggregated (by sex, age, nationality, geographic location and relationship between the victim and perpetrator) data on the gender-based violence that LBTI persons face. Kiribati had similar questions in its LoI. One was around measures to amend the Constitution and adopt comprehensive legislation to guarantee substantive equality of women and men, and protect women who face intersecting forms of discrimination, including LBTI people. Samoa’s last attended session was in 2018, and Kiribati’s in 2020.
Uganda received a SOGIESC-focused recommendation in 2010, over a decade ago, without an LBTI-inclusive LoI (the 2021 and 2022 LoIs have LBTI-inclusive issues). The recommendation related to the criminalisation of “homosexual behaviour”. Since that recommendation and following LBTI-inclusive LoIs, Uganda has increased punitive measures for same-sex relationships in 2013 (annulled the law in 2014), and more recently, the 2023 Anti-Homosexuality Bill that was reintroduced in Parliament in March 2023 and expands on the criminalisation of same sex acts. People found guilty of the “offense of homosexuality” may be imprisoned for up to 10 years. The bill also includes a punishment of up to five years in prison for the “promotion of homosexuality.” The Bill follows months of hostile rhetoric against sexual and gender minorities by public figures in Uganda, as well as government crackdowns on LGBT-rights groups and other human rights groups.
In March 2022, in a landmark decision by the CEDAW Committee, Sri Lanka was found to be violating the rights of a lesbian and leading LGBTI activist who was subjected to discrimination, threats and abuses due to the country’s Penal Code that criminalises same-sex sexual activity. The case was brought in by Rosanna Flamer-Caldera, the Executive Director of Equal Ground, a primary LGBT organisation in Sri Lanka; and set a major legal precedent, holding that the criminalisation of lesbian and bisexual women violates the CEDAW Convention.
The Committee seemed to follow three types of recommendation styles when it came to LBTI rights within Concluding Observations:
Both (2) and (3) styles have certain concerns. Style (2) groups LBTI people with other constituencies of women and lacks a rights-based approach. This is coupled with the lack of an intersectional lens, despite grouping ‘marginalised’ or ‘disadvantaged’ women together. Therefore, the Committee often fails to address the multiple layers of marginalisation that affect LBTI (or even other constituencies) people. Style (3) seems to be a rational option but seems to think of LBTI people and their rights as different, separate and segregated from the rights of cisgender women. Both (2) and (3) seem to create hierarchies within the Concluding Observations between cisgender women and LBTI people.
In addition, certain constituencies are often left out from the Concluding Observations. For example, Cameroon, The Gambia, Antigua and Barbuda, Fiji, Cyprus and Seychelles are countries where the Committee does not mention intersex people. For Pakistan’s recommendations, the Committee speaks about intersex and transgender people, thus leaving out lesbian and bisexual women. For Barbados, the Committee specifically mentions ‘transgender women’ in one observation, giving us the impression that perhaps transgender men are not included. For Canada, the Committee uses ‘transsexual’ instead of transgender.
For certain countries, the Committee provided unique, issue-based and constituency-specific recommendations. For instance, in Malaysia’s Concluding Observations, the Committee mentioned the protection of LBTI human rights defenders – “To ensure that women human rights defenders, including LBTI people can freely undertake their important work without fear or threat of violation of their rights”. For Mozambique and the Gambia, the Committee provides for recommendations related to “arbitrary detention of women perceived to be lesbian” and “conditions in female detention facilities”, thereby, indicating a clear relationship between the carceral nature of law enforcement and women who are/perceived to be LBTI. For Mauritius and Botswana, the Committee provided for recommendations related to substantive equality in employment and education; and Uganda, Botswana and Antigua and Barbuda were provided with specific HIV/AIDS-related observations and recommendations to include LBTI people in COVID 19 recovery strategies and other public health measures.
The Committee struck a balance between providing gender-based violence related rights-affirming observations for LBTI people and access-related provisions. One thing that became clear during this study is that the Committee has been thinking about the kind of violence that is endemic to the LBTI population through the mention of hate crimes, including violence that happens in the domestic sphere, and how it should be covered within domestic violence legislations (St. Vincent and the Grenadines and Sri Lanka). For observations on South Africa, the Committee also mentioned ‘corrective rape’.
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