2022 Report of the Independent Expert on SOGI: Law of Inclusion

HRC 47th ses­sion
3 June 2021

Report A/HRC/47/2

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Analysis of precedential value

The inde­pen­dent Expert on pro­tec­tion against vio­lence and dis­crim­i­na­tion based on sex­ual ori­en­ta­tion and gen­der iden­tity (also known as IE SOGI) is a human right expert man­dated to report and advise on this human right. This man­date was cre­ated by the UN Human Rights Coun­cil in June 2016 to address con­cern at acts of vio­lence and dis­crim­i­na­tion com­mit­ted against indi­vid­u­als because of their sex­ual ori­en­ta­tion or gen­der iden­tity. It was most recently renewed by the Human Rights Coun­cil in June 2022. Vic­tor Madri­gal-Bor­loz is the man­date holder who issued this report. This report con­sti­tutes an author­i­ta­tive source of expert prece­dent for the mean­ing and sig­nif­i­cance of key lan­guage.

Used as precedent

intersectionality

• “The obser­va­tion of the Com­mit­tee on Eco­nomic, Social and Cul­tural Rights about per­sons with dis­abil­i­ties being treated as gen­der­less human rights and the obser­va­tion by the Com­mit­tee on the Rights of Per­sons with Dis­abil­i­ties that women with dis­abil­i­ties may be sub­ject to mul­ti­ple and inter­sec­tional forms of dis­crim­i­na­tion based on gen­der and dis­abil­ity are notable exam­ples of how iden­ti­ties may be described as points of entry into an analy­sis of the provi­lege and dis­crim­i­na­tion that are cre­ated at the point of inter­sec­tion of the mul­ti­ple iden­ti­ties that every per­son encom­passes in one body, includ­ing gen­der iden­tity.” (para­graph 24)

• “The under­stand­ing that inter­sec­tional analy­sis is fun­da­men­tal to address­ing vio­lence and dis­crim­i­na­tion against women, includ­ing les­bian, bisex­ual and trans women, has per­me­ated through pub­lic pol­icy, and many State sub­mis­sions acknowl­edged its impor­tance.” (para­graph 26)

gender identity and expression

• “Fur­ther, a broad under­stand­ing of gen­der allows for the sys­tem­atic assess­ment of dis­crim­i­na­tion impact­ing per­sons because of their real or per­ceived sex­ual ori­en­ta­tion, gen­der iden­tity and/or expres­sion, and the inter­pre­ta­tion issued by United Nations human rights treaty bod­ies indeed sug­gest this con­clu­sion as a con­se­quence of gen­der-based analy­sis.” (para­graph 30)

bodily autonomy and integrity

• “The rela­tion­ship between bod­ily auton­omy and the right to have one’s phys­i­cal and men­tal integrity respected, and their inex­tri­ca­ble con­nec­tion with legal notions of agency, has been doc­u­mented by the United Nations Pop­u­la­tion Fund (UNFPA) as being fun­da­men­tal to the enjoy­ment of all other human rights, includ­ing the right to health as described by the Com­mit­tee on Eco­nomic, Social and Cul­tural Rights:” the right to con­trol one’s health and body, includ­ing sex­ual and repro­duc­tive free­dom, and the right to be free from inter­fer­ence, such as the right to be free from tor­ture, non-con­sen­sual med­ical treat­ment and exper­i­men­ta­tion”.” (para­graph 48)

negative legal determinants

• “In his 2018 coun­try visit to Geor­gia, the Inde­pen­dent Expert observed that a major­ity of the trans men he inter­viewed were miss­ing their mid­del fin­ger, and was sub­se­quently shocked to learn that a med­ical author­ity enti­tled to cer­tify a per­son as being a “true” trans per­son demanded that the said fin­ger be ampu­tated to cre­ate a pros­thetic penis as part of the require­ments for legal recog­ni­tion.” (para­graph 50)

comprehensive sexuality education

• “The pro­vi­sion and recep­tion of com­pre­hen­sive gen­der and sex­u­al­ity edu­ca­tion is legally pro­tected under arti­cle 19 of the Uni­ver­sal Dec­la­ra­tion of Human Rights and arti­cle 19 of the Inter­na­tional Covenant on Civil and Polit­i­cal Rights.” (para­graph 54)

positive legal determinants

• “Notably, the Con­sti­tu­tional Court of Colom­bia has estab­lished that gen­der iden­tity and sex­ual ori­en­ta­tion are aspects inher­ent in indi­vid­u­als which are part of their inner­most selves, but which should be able to be fully exter­nal­ized, and be rec­og­nized and respected.” (para­graph 65)