How an international human rights instrument can help us eliminate discrimination against LBTI women

Within the global LGBTI+ rights movement, it’s widely acknowledged that the issues facing LBTI women, or people who are read as female, can be different to those facing men.

Whilst some countries criminalise sex between women, this is much rarer than the criminalisation of sex between men – not least because the UK never criminalised sex between women and therefore never exported this law to its former colonies. But women in general are much more at risk from gender-based violence and LBTI women, who are seen as deviating from gender norms, may be at even greater risk. 

Women in general are more likely to face discrimination and limitations on living their lives as they wish than men are. Issues such as forced or child marriage, a lack of education or employment opportunities and domestic and sexual violence all impact on women and may particularly prevent LBTI women from living lives free from discrimination. This is one of the reasons why Kaleidoscope Trust is so dedicated to taking a feminist and intersectional approach to our work. 

When it comes to tackling discrimination, stigma and violence against LBTI women, we do have a powerful international human rights tool which all LBTI activists and human rights defenders should be aware of: the Convention for the Elimination of Violence Against Women (CEDAW).

What is CEDAW?

CEDAW (the Convention for the Elimination of Violence Against Women) was first adopted by the UN General Assembly in 1979. It has been described as ‘an international bill of rights for women’ and sets out an agenda for action by countries to ensure that all women are guaranteed enjoyment of those rights. 

CEDAW is one of nine international core human rights instruments which UN member states are asked to sign up to and ratify. Once the treaty is ratified by a country, its government agrees to be bound by it and to have its progress against the aims of the treaty regularly monitored. Within the Commonwealth, all countries except for Tonga have ratified CEDAW.

How is CEDAW implemented?

When a state signs up to CEDAW they agree to work to eliminate all forms of discrimination against all women in all areas of life and to ensure women’s full development and advancement in order that they can exercise their full human rights. They also agree to allow the CEDAW Committee to scrutinise their efforts to reach these goals, and to provide regular reports to the Committee on their progress. 

The CEDAW Committee consists of 23 independent experts on women’s rights from around the world. They consider reports submitted to them by states and other interested parties, such as civil society organisations. They hold public sessions where they review each state party’s report and issue lists of concerns and recommendations to the state. 

A state’s progress is reviewed around every five years (although this varies depending on individual circumstances and the Covid-19 pandemic delayed the review process for several years). At the beginning of the review cycle the state reports on its progress. Other stakeholders, such as civil society organisations and National Human Rights Institutions often submit reports alongside the state’s report.

The UN CEDAW Committee uses these reports to produce a List of Issues (LOI) which they have identified in progress towards eliminating discrimination for all women. The state and other stakeholders then respond to this LOI, giving information or evidence about the issues raised. The state is then formally examined by the Committee – representatives from the state’s Government are questioned about the issues raised. 

Following this examination, the UN publishes recommendations of what the state should do to improve. The state is then expected to implement the recommendations of the Committee and to report back on its progress. 

How can CEDAW be used to address discrimination against LBTI women?

CEDAW requires states to work to eliminate discrimination against ALL women, not just heterosexual, cisgender women. So, if a woman (or someone who is seen as a woman by the state, as many trans and non-binary people who were assigned female at birth will be) is facing discrimination the state should address this. 

Through the reporting process civil society organisations or National Human Rights Institutions can draw the Committee’s attention to instances where this may be happening. States themselves can also offer evidence of issues and what they are doing to address them. 

If the CEDAW Committee finds evidence that certain groups of women are facing discrimination from the state, or that the state is not doing enough to tackle discrimination against certain groups of women, it can make a recommendation that the state should address this. 

In the last decade the Committee appears to have been increasingly willing to highlight when states are not doing enough to protect LBTI women from discrimination which is partly related to their sexual orientation, gender identity or expression or sex characteristics. However, the Committee seems more likely to mention LBTI women’s rights when the state themselves have mentioned them, or when other stakeholders have drawn attention to discrimination against LBTI women.

Additionally, there is an Optional Protocol to CEDAW, which was adopted in 1999. Not all states that are signatories to CEDAW have also ratified the Optional Protocol. For those states that have, an individual or group of individuals can directly submit a complaint to the CEDAW Committee that their state is not adequately protecting them from discrimination because they are a woman. 

It was under this protocol that Rosanna Flamer-Caldera from Sri Lanka successfully brought a case against her Government which led to the CEDAW Committee ruling that criminalisation of same-sex intimacy between women is a human rights violation.

Where can I find information about my country’s performance on LBTI women’s rights relating to CEDAW?

In order to allow interested parties, such as civil society organisations fighting for the rights of LBTI people, to understand how their state is performing and any recommendations they have been given relating to discrimination against LBTI women we have developed a CEDAW Tracker.

The CEDAW Tracker contains information about all Commonwealth countries. It allows you to access information about the general situation for LBTI women in a specific country, such as whether they are criminalised, and gives information about whether the CEDAW Committee has explicitly affirmed the rights of LBTI women when examining that country’s progress.

The Tracker has ‘at a glance’ colour-coding to allow users to understand whether a state has received recommendations from the CEDAW Committee which affirm the rights of LBTI women and/or has specifically highlighted those rights in its own submissions to the Committee: pink for states where there has been no affirmation of rights, yellow for states where there has been at least one rights affirming reading of CEDAW and green for states where evidence and/or recommendations on discrimination against LBTI women is widespread. 

The Tracker also lists specific recommendations which have been made to individual states relating to discrimination against LBTI women, and instances where the CEDAW Committee has raised discrimination against LBTI women in the List of Issues (LOI) which precedes the formal examination of a state’s record. 

What can I do with this information?

If your country has already received a recommendation relating to discrimination against LBTI women, you can use this information in your campaigning or engagement with your Government. You can remind state officials of their obligation to respond to recommendations made by the CEDAW Committee. 

If your organisation works to eliminate discrimination against LBTI women you may even be able to work with the state to help it to meet its obligations. For example, if the state has received a recommendation that it works to raise awareness of the legal remedies available to vulnerable groups of women who have been victims of gender-based violence and you are able to provide education and support to LBTI women who are at risk of violence you may be able to argue that the government could help fund this service.  

If the CEDAW Committee has highlighted discrimination against LBTI women in the List of Issues for your country, you can submit evidence relating to this to the Committee ahead of the state examination (there is usually a couple of years between the List of Issues being published and the state being examined). Even if LBTI women are not explicitly mentioned you may have relevant evidence to share. For example, if sexual violence against women is highlighted in the List of Issues, you may want to share evidence you have of LBTI women being subjected to so-called ‘corrective rape’. 

Even if your state has not received any rights affirming recommendations, you can still use information from the Tracker. Evidence suggests that the CEDAW Committee is more likely to raise discrimination against LBTI women if evidence of this is shared with them – otherwise it is easy for states to say that LBTI women do not face discrimination in their country, or even that they do not exist! 

In some countries a group submission is made to the CEDAW Committee on behalf of civil society organisations in the form of an alternative report. You could engage with this process and submit evidence of discrimination against LBTI women for inclusion in the submission. 

You can also submit written evidence to the Committee directly on behalf of your organisation or you could submit evidence jointly with other civil society organisations – for example, a group of three civil society organisations who all work on human rights issues relating to LBTI people may want to jointly make a written submission to the Committee. 

National Human Rights Institutions also make submissions to the CEDAW Committee about their state’s progress in implementing CEDAW. So, if you have evidence of discrimination against LGBTI+ women in your country, you could engage with your National Human Rights Institution to bring this to their attention so they can include it in their report. 

Have you used CEDAW in your work?

Kaleidoscope Trust already has some examples of where civil society organisations have successfully used CEDAW to advocate for the rights of LGBTI+ women in their countries, including in Mauritius and the Bahamas. If your organisation has engaged with the CEDAW process we’d love to hear how and what the outcome was – please get in touch.

Visit our CEDAW Tracker