Sexual orientation and gender identity in human rights impact assessment

Abstract

Responding to violations against lesbian, gay, bisexual, transgender, intersex and queer people worldwide, in the light of the universality of human rights, this paper demonstrates the need, benefits and opportunities for including sexual orientation and gender identity (SOGI) in human rights impact assessment (HRIA) and related impact assessments. The United Nations legal framework (including the 2011 Resolution on Human Rights, Sexual Orientation and Gender Identity) and supporting international legal documents such as the Yogyakarta Principles provide the mandate and basis for this paper. The paper develops a typology of documents related to SOGI aspects in HRIA and provides examples of SOGI-centred HRIA approaches, specifically the Uganda Anti-Homosexuality Bill and post-earthquake disaster relief in Haiti. Our findings identify research-practice gaps in modes and technicalities of the pioneer SOGI-centred HRIA cases, and attest to an absence of methodologies, tools and indicators. We call upon impact assessment practitioners to develop and use tools that are inclusive of gays, lesbians and bisexuals as well as transgender and intersex people.

Keywords:

• human rights appraisal
• gender mainstreaming
• sexuality
• heteronormativity
• diversity
• discrimination

Introduction

In the past four decades, impact assessment (IA) has been on the national and international agendas of nation states and public and private organisations as a method for identifying the intended and unintended impacts of policies, plans, programmes and projects. Today, there is a wide array of IA applications and tools, and sector-specific tools are constantly being developed. Human rights impact assessment (HRIA) has emerged in the last two decades and is currently ‘a field in expansion, both at the theoretical and practical levels’ (European Inter-University Centre for Human Rights and Democratisation 2006, p. 8). Since the 2005 United Nations World Summit, the mainstreaming of human rights into the systems of the United Nations (UN) and its member states in areas such as international cooperation and development has gained importance, and civil society organisations, governments and companies alike are in the process of developing HRIA instruments or guiding documents (Harrison & Goller 2008; UN, Human Rights Office of the High Commissioner 2011).

HRIA provides an entry point to assist the accountability of policies and consider the legitimacy of practices at the project level by facilitating human rights monitoring. HRIA assesses not only the de jure, but also the de facto human rights situation and its implications for access to those rights in measurable terms (Harrison 2011). Steps towards measurability include establishing the baseline situation in relation to the international standards of minimum human rights fulfilments, as established by the legal norms under the UN international human rights framework (Walker 2009; Kemp & Vanclay 2013). Questions of the universality of human rights, of whose rights are protected and of which understandings of human rights are applicable to whom and in what local situations are at the core of the reasons for conducting HRIAs (Donnelly 2003).

Often there is a gap between having rights and enjoying rights (Human Rights Impact Resource Centre 2012). An important part of the HRIA exercise therefore is to identify individuals and groups for whom the universal protection of human rights is neither a legal given nor a de facto reality.1 Groups who are especially vulnerable, whether on a project or policy level, include people with disabilities, the elderly, women, children, prisoners, homeless people, drug users, people infected or at the risk of being infected with HIV, and Indigenous people. However, new groups whose rights are seen as endangered, not fully granted or violated have recently been vocal in international human rights activism (Duncker 2000), and their vulnerability is beginning to be recognised (Donnelly 2003). These groups include lesbian, gay, bisexual, transgender, intersex and queer people (LGBTIQ), whose issues are commonly subsumed under the two concepts of sexual orientation and gender identity (SOGI). For the purpose of this paper, we refer to LGBTIQ as individuals or collectives as rights holders (people-centred), whereas SOGI is employed when describing the issues, discriminations and human rights violations faced by such people (issue-centred). We examine the state of the art of SOGI in HRIA and related forms of impact assessment by addressing the following questions: why is it important and what are the reasons and the relevant legal frameworks for including SOGI in HRIA? How are LGBTIQ target groups currently represented in HRIA-related research and publications? What consequences could be drawn from the current situation for future SOGI in HRIA research and practices on the ground?

Background concepts

A basic concept needed for our understanding is the distinction between sex (physical/the body) and gender (social role/gender expression), in combination with the concept of heteronormativity, which describes the strictly two-sexed and -gendered organisation of society and power distribution within society, in which men and women are meant only to relate heterosexually to each other. In many cultures, men have sexual relations and/or emotional bonds with other men; women have relations with other women; and individuals have relations with both men and women (Epprecht 2010). Such people are usually called or call themselves lesbians, gays or bisexuals (LGB). Transgender (T) people are those whose self-identified gender as woman, man, neither or both does not match their sex assigned at birth (Franzen & Sauer 2010). Intersex (I) people are born with physical sex characteristics of both of what is medically attributed to either male or female bodies (Holmes 2009). As in the case of transgender as well as intersex, such persons can inhabit a male, female, neither or both gender identity. Being transgender or intersex does not imply any specific form of sexual orientation – the individual may identify as heterosexual, homosexual, bisexual or even omni-, poli- or asexual.

Some individuals may also consider conventional sexual orientation labels inadequate or inapplicable to them. Queer (Q), although usually simply equated with LGB, is more accurately used as a negatively defined umbrella term for all those who are identified as not heterosexual, not heteronormative and/or not gender-binary (Budhiraja et al. 2010). In the Western context, queer also acts as a label for critiquing fixed LGB identity-based models, ignoring or homogenising the multi-layered, intersecting and fluid formation of identities (Haschemi Yekani et al. 2010). Its emergence and insurgence indicates that the struggle for LGBTIQ rights has so far been dominated by the prevalence of gay and lesbian identity issues and organisations (Parker et al. 2007; SIDA et al. 2010; Lind 2010). It is also important to note that these terms have developed in the global North and reflect inherent Western notions that do not represent global diversity and different local self-identifications. Homosexuality can be seen as a conduct rather than identity, and is then referred to as men having sex with men (MSM) – or much less widespread as women having sex with women (WSW).

At present, there is neither an overall accepted definition of HRIA (Walker 2009), nor a regulatory basis for making its conduct obligatory (De Beco 2010). In some cases, the term HRIA is applied to the analysis of the human rights consequences of policies, as well as of projects, programmes and other activities or interventions, but it is sometimes also applied to the analysis of the existing legal human rights situation and its implications for individuals and/or groups.

De Beco (2010) defines HRIA as a policy instrument, between regulatory and social IA, whereas Landman (2004) uses HRIA for project, programme and other activities, that is, for basically everything else but policy IA. MacNaughton and Hunt (2011) would employ HRIA in all of the IAs mentioned above, presupposing that there is a planned intervention, whereas De Beco (2010) and Black (2008) do not even see the need for an intervention or change in an existing situation or system. For them, HRIAs compare the de facto impact of existing legal situations with the international human rights duty. There is no consensus whether HRIA is a purely ex-ante method (MacNaughton & Hunt 2011) or whether the label can also be attached to parallel assessments or ex-post evaluations of direct and indirect, positive and negative, or intended and unintended effects (e.g. Black 2008; De Beco 2010). As a general understanding, we consider HRIA to be: ‘a process to measure the gap between the commitments made by a state (human rights in theory) and the actual ability of individuals, groups and communities in a country to enjoy these rights (human rights in practice)’ (Human Rights Impact Resource Centre 2012).

IAs are usually implemented in procedural environments based on legal requirements or institutional (self-) commitment. The outline of such IA procedures fosters the actual conduct of IA, which is based on methodological quantitative and/or qualitative tools (Adelle & Weiland 2012; Esteves et al. 2012; Gibson 2006; Harris-Roxas et al. 2012; Helming et al. 2011; Kirkpatrick & Parker 2004). Key criteria for IA tools and procedures are typically that they be scientific in nature, method-driven and evidence-based; that they produce measurable results for monitoring mechanisms; and that they be used for addressing strategic levels of decision-making (de Smedt 2010). These criteria will be used to guide our analysis of practical cases.

Method and iterative approach

We employed an iterative, three-step methodological approach in order to arrive at the state-of-the-art of SOGI in the field of human rights and HRIA. First, international human rights standards as laid out in UN treaties or resolutions and supporting legal documents are briefly presented in terms of their relevance to SOGI and human rights violations against LGBTIQ.

Second, a comprehensive literature review with keyword screening was conducted between November 2011 and August 2012, combined with snowballing qualitative inquiries for SOGI in IA within the international LGBTIQ and human rights activist community. Five major e-journal databases (ISI Web of Knowledge, Google Scholar, JSTOR, Hein online, EBSCO Host), as well as the library catalogues of the Cooperative Library Group Berlin-Brandenburg and grey literature, were researched for the keywords, ‘sexual orientation’, ‘gender identity’, ‘LGBTIQ’ and the individual components thereof, together with ‘men who have sex with men’ and ‘women who have sex with women’, in combination with the terms ‘human rights’, ‘human rights impact’, ‘human rights impact assessment’ and ‘human rights analysis’. Owing to the absence of a precise definition of HRIA, additional keywords for related IA tools were also researched, including ‘diversity’, ‘equality’, ‘gender’, ‘fundamental rights IA’, ‘health IA’, ‘poverty’ and ‘vulnerability IA’. The websites of international human rights organisations concerned with LGBTIQ target groups were also researched, specifically those of Human Rights Watch, Amnesty International, the International Gay and Lesbian Human Rights Commission, the International Commission of Jurists, ARC International, the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), ILGA-Europe, Transgender Europe, Global Action for Trans* Equality and the Organisation Intersex International. To triangulate the findings, a research request was posted on the largest worldwide, English language email list of international SOGI activists (run by ARC International). The results allowed us to establish a typology of human rights SOGI publications and identify current SOGI-specific HRIA research.

In the third step, these SOGI-specific studies were tested against our previously mentioned IA core criteria and subjected to an in-depth analysis to evaluate their technical sophistication. The analysis was executed in alignment with the international human rights framework and the three key IA criteria: that the tools and processes be (a) scientific (method-driven and evidence-based), (b) measurable (in quantitative and/or qualitative terms) and (c) operating at the applied science–policy interface with the intention of providing policy or programme advice (i.e. be policy oriented). Indirect instruments and cases that were found to have some SOGI mainstreaming elements, but that were not SOGI specific, were eliminated as a detailed subject of our research. The examples selected were then examined in more detail in relation to existing SOGI tool and indicator suggestions in order to develop a critique of their level of sophistication with regard to core IA elements and to establish a baseline from which further SOGI in HRIA tools and practices might progress.

LGBTIQ vulnerability and international human rights protection

In the past two decades, the particular vulnerability of LGBTIQ people has been well attested to, first by LGBTIQ organisations2 and later by international human rights organisations and an ever-increasing body of research (e.g. Dudek & Harnisch 2007; Human Rights Watch (HRW) 2011b, 2012a, 2012b; Amnesty International 2010; Dubel & Hielkema 2010). Homosexual conduct is criminalised in 78 countries and punishable by death in seven countries (Itaborahy & ILGA 2012). Cross-dressing, that is, the act of wearing clothes reserved for the other sex, is punishable by decency laws as disturbances of the public order in some countries (Transrespect versus Transphobia Worldwide 2012a). LGBTIQ people are denied the right of assembly and freedom of expression, they are barred from enjoying equal rights to marriage and founding a family, and they are subjected to torture and violence, and are even in danger of being killed through family and street violence or by state authorities (US Department of State et al. 2012; Itaborahy & ILGA 2012). More than 1000 transgender persons have been murdered worldwide in the last five years (Transrespect versus Transphobia Worldwide 2012b). Access to health, housing and other services is not universal for LGBTIQ. Moral stigma and societal marginalisation leaves them vulnerable to poverty and all forms of discrimination. Even Western states, as the (self-) idealised human rights protectors, do not guarantee full equal rights for these groups and continue to discriminate against them (Council of Europe 2011). The heightened vulnerability of LGBTIQ makes SOGI issues an important field of application for HRIA.

Unlike some other IAs, there is no regulatory basis by which HRIA in general and SOGI-specific HRIA in particular must be conducted. Where HRIA is conducted, the UN's Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and other covenants provide the legal meta-frame. Also, international ‘soft-law’, such as declarations, recommendations, protocols and resolutions, play a role as general reference documents because they express international agreement on standards of human rights protection, and they represent the first step toward solidification of customary law (Sauer & Chebout 2011). For example, Article 26 of the International Covenant on Civil and Political Rights (1966) states:

the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. (Emphasis added.)

The inclusion of ‘other status’ allows room for additional grounds that might prevail in the future and makes the list of the banned grounds of discrimination non-exhaustive. Since 2009, SOGI has been officially recognised as falling under ‘other status’. In General Comment No. 20 on non-discrimination, the International Covenant on Economic, Social and Cultural Rights reiterates earlier views on including sexual orientation and also introduces the concept of gender identity for the first time:

‘other status’ as recognized in article 2(2) includes sexual orientation. States parties should ensure that a person's sexual orientation is not a barrier to realising Covenant rights … In addition, gender identity is recognized as among the prohibited grounds of discrimination. (Emphasis added.)

Comments of other treaty bodies adopt a similar approach. The Committee against Torture and the Committee on the Rights of the Child list sexual orientation among the prohibited grounds of discrimination (Asia Pacific Forum 2010). In addition, a number of Special Procedure mandate holders have referenced the issue of persecution on grounds of SOGI as coming within their respective mandates. However, until 2011 there was no explicit official UN reference on SOGI, owing to the controversy about LGBTIQ issues among UN member states.

On 17 June 2011, the UN agreed on its first Resolution on Human Rights, Sexual Orientation and Gender Identity, which was passed by the UN's Human Rights Council. The resolution was adopted to bring specific focus to human rights violations on LGBTIQ people and to affirm the ‘universality, interdependence, indivisibility and interrelatedness of human rights’ (UN 2011, p. 1). It also notes concerns about acts of violence and discrimination that LGBTIQ people face all over the world. As a consequence, all UN member states are now called upon to focus on SOGI aspects and thus the rights of LGBTIQ people in their efforts toward universal human rights protection.

These advances of SOGI issues at the UN level were pre-dated by the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (International Panel of Expertss in International Human Rights Law and on Sexual Orientation and Gender Identity 2007a). Developed by 29 experts during an international human rights seminar in Yogyakarta (Indonesia), the Principles clarify the nature, scope and implementation of states' human rights obligations in relation to SOGI, including gender expression, under existing human rights conventions and laws. They do not constitute new law, but rather are an interpretation of duties under the existing international legal framework.

Translated into all six UN languages, the Yogyakarta Principles include rights ranging from the right to be free from employment discrimination and laws criminalising sexual behaviour, to state recognition of parenting and couples rights, to affirmative rights for an adequate standard of living, healthcare, education, housing and participation in public life (O'Flaherty & Fisher 2008). The Principles are designed to chart the way forward for the UN, regional bodies, national governments and other actors, such as human rights institutions, non-governmental organisations and private companies, to ensure the universal reach of human rights protection for LGBTIQ people. Although non-binding, the Principles constitute a human rights instrument for interpretation of international law that has already had a legal impact (Ettelbrick & Trabucco Zerán 2010; Brown 2010).

A typology of sexual orientation and gender identity in human rights impact assessment

Based on our comprehensive literature review, we suggest that SOGI in HRIA publications can be categorised according to the following three types:

1.	Human rights reporting on SOGI issues and LGBTIQ target groups. While international human rights law constitutes the legal basis for ‘rights in principle’, these studies on de facto human rights violations of LGBTIQ target groups build the baseline data (events-, standards- and survey-based) for human ‘rights in practice’ (Landman 2004). We identified institutional reports of the international human rights status of LGBTIQ at the UN level (UN 2012), at the regional level (i.e. the Asia Pacific Forum 2010), and at the national level (i.e. the Kenya Human Rights Commission 2011). The European Commission provided the only regional assessment for transgender and intersex people in a balanced way (EC et al. 2012). In addition, international human rights and/or LGBTIQ organisations have frequently identified the international legal situation, as well as criminalisation and anti-discrimination laws on sexual orientation (Itaborahy & ILGA 2012). International SOGI rights mapping (ILGA Europe 2012; ILGA 2009) has recently included transgender issues (TvT 2012c; ILGA Europe 2012; ILGA & ILGA trans 2012), and peer-reviewed journals as well as international non-governmental organisations have provided countless country studies on human rights violations against LGBTIQ groups. The first case of SOGI mainstreaming practice in UN human rights reporting can be found in the report on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism (Scheinin & UN 2009), which conceptualised the inclusion of LGBTIQ issues as an integral part of gender mainstreaming. Finally, there are instances of reporting on SOGI in an integrated fashion, such as by the USA in its general human rights practice reports (US Department of State, Bureau of Democracy, Human Rights and Labor).
2.	Mainstreaming SOGI issues into HRIA and related IA tools, methods, assessment frameworks, indicator sets, case studies (indirect/implicit). We understand mainstreaming to be the inclusion of SOGI issues and/or LGBTIQ target groups in HRIAs or related IAs with other primary foci (such as poverty reduction or HIV/AIDS prevention). SOGI mainstreaming guides attention of the assessment to the equity consequences for all, some or individual LGBTIQ target groups. Mainstreaming demands stringent, cross-cutting integration at all levels, steps and outcomes of analysis; however the review shows that the integration of SOGI issues can also yield a partial level integration. From its inception, human rights-based health IA has had an MSM focus (Gostin et al. 1994; Gostin & Lazzarini 1997). A recently-developed, women-focused HRIA instrument includes lesbians (Bakker et al. 2010). Some health-related gender IAs in Australia (on ageing, alcohol, depression, suicide, tobacco use) included lesbian issues as a cross-cutting theme (Women's Health Victoria 2009). As a result of the British Equality Act in 2010, which established unique regulatory requirements for LGBTIQ inclusion in IA, some SOGI elements can now be found in the Equality IA (EQIA) in the UK (Gosselin 2010), the Scottish EQIAs and Equality and Diversity IAs (Denike 2010), and the Northern Irish and Irish EQIAs (Equality Authority & Irish Vocational Education Association 2007). Under the umbrella of equal treatment, non-discrimination and protection of fundamental rights, certain tools and guidelines at the European level make room for taking SOGI elements into account: these include the integrated IA guidelines of the European Commission, which offer specific sub-guidelines devoted to social impact areas (EC 2009a, 2009b), and the European Commission's Fundamental Rights Assessment (EC 2011).
3.	SOGI-centred HRIA tools, methods, assessment frameworks, indicator sets and case studies (direct/explicit). SOGI-centred, SOGI-focussed or SOGI-specific HRIA tools, methods, indicators and assessment frameworks apply the SOGI lens as the central category for assessment by concentrating on the human rights situation of all, some or individual LGBTIQ target groups. However, universal SOGI inclusivity results only when the issues of all LGBTIQ target groups are integrated equally and in a balanced way. Examples of tools focused on homosexual issues include the Barometer of Gay Rights designed by Dicklitch et al. (2012) in an effort to establish a measurable human rights analysis framework and in response to the Ugandan Anti-Homosexual Bill and the on-going persecution of homosexuals. Dicklitch et al. (2012) suggest a combination of state-level and civil society-level indicators, such as de jure and de facto rights protection, the existence of gay rights activism, the level of protection of other socio-economic rights and the social persecution of homosexuals. Park (2011) suggested Human Development Indicators for Lesbians and Gay Men within a capabilities-driven social inclusion framework resting on the assessment pillars of health, education, income and legal status. Other existing tools include the LGBT impact assessment for use by Dutch local authorities and municipalities (Ministry of Education, Culture and Science in The Netherlands 2007) and the Toolkit to Promote and Protect the Enjoyment of all Human Rights by Lesbian, Gay, Bisexual and Transgender (LGBT) People for European Foreign Policy (European Union & Working Party on Human Rights 2010).

Using this typology, we were able to identify SOGI-specific HRIA studies that conformed to the three key IA criteria discussed earlier: that they be scientific, method-driven and evidence-based; that they produce measurable results for monitoring mechanisms; that they be used for addressing strategic levels of decision-making; and that they:

1.	used the de jure SOGI issues in relation to international human right guarantees in general and/or the Yogyakarta Principles as a reference frame for the analysis;
2.	put the de facto situation for LGBTIQ at the centre of analysis and were exclusively devoted to the human rights situation of all, some or individual LGBTIQ target groups.

Using this understanding, we were able to identify only three assessments that could be described as SOGI-centred HRIA studies: two ex-ante legal analyses of the human rights effects of the Anti-Homosexual Bill in Uganda (Tamale 2009; Sander 2010) and one ex-post evaluation of the disaster relief and recovery programme after the Haiti earthquake (International Gay and Lesbian Human Rights Commission & SEROvie 2011).

We found that HRIA and SOGI relevant publications are generally neither peer-reviewed nor published in the corporate sector. It became evident, especially from the online search of grey literature and assessment tools and practices, that, to date, there are very few examples of SOGI consideration in HRIA practice. Equally, there are no operational, SOGI-sensitive, HRIA tools or congruent and comprehensive assessment frameworks or indicator sets against which to measure de jure and de facto human rights guarantees. Only some policy, diversity, equality, health or gender IAs show traces of SOGI sensitivity.

SOGI-centred studies in the HRIA realm

Two of the three examples we identified concerned the Ugandan Anti-Homosexuality Bill, a draft of which was considered by the country's Parliament in October 2009. In its initial form, the Bill penalised homosexual behaviour with the death penalty. Discussion on the draft was postponed until after the next election, mainly owing to international pressure and threats to revoke development aid. It was re-tabled in May 2011 with changes requested. In February 2012 another version of the Bill was introduced in which the death penalty had been dropped, but in which lesbian and gay conduct was still criminalised. An amended Bill was still pending at the conclusion of research (Amnesty International 2012).

Case 1: Tamale (2009), “A human rights impact assessment of the Ugandan Anti-Homosexuality Bill 2009”

The document is the published and modified transcript of an invited speech presented by Professor Sylvia Tamale at a discussion on the Bill held at Makerere University in Kampala on 18 November 2009. It begins by providing examples of non-heteronormative and non-Western customary family law, such as non-sexual woman-to-woman marriages among various traditional African tribes. It then moves to general issues of concern for the institution of the Ugandan family and to lessons from history and a reiteration of how the draft Bill came into being. It explains the future social (de facto) and legal (de jure) implications of the Bill, including the introduction of the death penalty for homosexual conduct and the violation of the right to privacy, which would be central to its enforcement:

the bill imposes a stiff fine and term of imprisonment for up to three years for any person in authority over a homosexual who fails to report the offender within 24 h of acquiring such knowledge. Hence the bill requires family members to spy on one another. (Tamale 2009, p. 53)

The study regards the draft Bill as unconstitutional and against Uganda's international treaty obligations. It also poses questions about the rational basis for the subordinate legal position of homosexuality and about exact enforcement:

Does this include heterosexual couples that engage in anal sex? What about our constitutional right to privacy? (Tamale 2009, p. 55)

This study was the only assessment labelled explicitly as an HRIA. However, as a speech it is highly emotionally charged, and its most substantial part, the legal analysis, does not explicitly refer to any methodology. It does not provide measurability, because it does not provide evidence to back its qualitative statements about the de facto situation of homosexuals and the anti-homosexual mood in Ugandan society. With an appeal to the value of human dignity, the plead ends with the suggestion that the ‘bill be quietly forgotten’ (Tamale 2009, p. 56), which might be interpreted as a strategic policy orientation. However, because it is missing at least two of the three key IA components, this arbitrary socio-legal analysis does not represent an HRIA in a technical sense.3

Case 2: Sander (2010), “A nation at war with itself”

The second assessment of the Ugandan Bill, “A nation at war with itself: the potential impact of Uganda's Anti-Homosexuality Bill”, was conducted as an individual initiative during an internship with the African Prisons Project in Kampala. Like the case above, the assessment begins by providing a summary of the main provisions of the Bill before offering a human rights analysis. The assessment then places the discussion in the general international context of striving for the abolition of the death penalty and concludes that the introduction of this law would be a human rights concern for the Ugandan society as well as for the international community. The draft of the Bill is therefore regarded as being ‘in clear violation of Article (2) of the ICCPR [International Covenant on Civil and Political Rights]’ (Sander 2010, p. 12).

The assessment provides a methodology-driven text analysis of the legal aspects of the Bill, including court rulings. The remarks about the socio-realities, however, are based on general, unsubstantiated statements and therefore are not evidence-based or able to be measured. The study does not make any explicit recommendations, but shows clear strategic strands of argumentation against the introduction of the Bill. Although it is not labelled as an HRIA and although it does not include two core IA elements, the assessment comes closer to our SOGI-centred HRIA definition.

Case 3: International Gay and Lesbian Human Rights Commission & SEROvie (2011), “The Impact of the earthquake, and relief and recovery programs on Haitian LGBT people”

The third case is an ex-post evaluation conducted by the non-governmental organisations, International Gay and Lesbian Human Rights Commission and Foundation SEROvie. Their report, “The impact of the earthquake, and relief and recovery programs on Haitian LGBT people”, was not mandated by the government or the international donors whose disaster relief programming was under scrutiny in this study. The briefing paper includes a critique of relief structures as violating a list of human rights, such as the rights to housing, security of persons, and freedom from violence or arbitrary arrest and detention.

Another cited violation was the barring of access to food for LGBTIQ people. Because many LGBTIQ people had been outcast by their families, the destruction in the earthquake of the LGBTIQ self-help centre left them with no place to go. Their inter-personal support and safety networks were also disrupted by the loss of friends in the earthquake. However, the LGBTIQ centre was not included in the food and supply distribution schemes of the international donors. In addition, international aid and disaster relief organisations distributed food to female heads of households only, following a gender-based analysis that made it seem more likely that the food would actually reach the families through women and mothers. As an unintended result, gay men or transgender people without female partners or family members remained without food. Even lesbians without a male family member to accompany them and offer protection often shied away from attending the chaotic and often violent distribution sites, and therefore remained without food. With regards to homosexual men:

One MSM was so depserate [sic desperate] that he attempted to collect food aid at the Champs de Mars IDP camp by dressing as a woman, however, he was discovered by other men standing near the line and beaten until he left. (International Gay and Lesbian Human Rights Commission & SEROvie 2011, p. 5)

As a consequence, gay, lesbian or transgender identified persons were sometimes forced into exploitative sexual relationships with straight men in order to get food or money to buy food, since they were structurally excluded from food distribution. After a detailed description of these and other negative consequences of SOGI-ignorant aid programming, the study in its last section makes suggestions as to ways to increase LGBTIQ awareness by involving LGBTIQ organisations in aid measures and to include them in ex-ante planning, for which it recommended a gender-based, anti-violence tool for humanitarian settings (Inter-Agency Standing Committee 2012).

The assessment was based on interviews with 75 individuals, which created an evidence base to identify the negative social consequences of rights violations for LGBTIQ. The assessment suggested indicators, established measurability and performed the assessment steps of screening and scoping, although not named as such. With its recommendations for greater inclusion of LGBTIQ in disaster relief and recovery programming structures, it demonstrates a strategic purpose. While not claiming the label HRIA for itself, of the three cases considered, this study most resembled a SOGI-centred HRIA.

Discussion

The HRIA concept, being in flux and not yet mandated or standardised (De Beco 2010), remains malleable for new inquiries, application fields and target groups. The volatile human rights situation of LGBTIQ people establishes a clear need to include SOGI in HRIA, because heteronormative, gender-binary HRIAs run the risk, not only of overlooking particular LGBTIQ issues, but also of aggravating volatile humanitarian situations or inciting human rights violations, as demonstrated in case 3. The full integration of SOGI aspects becomes even more relevant when it is noted that, although the situation for lesbians, gay, bisexual and queer has been improved in the political, societal and analytical realms, in some countries transgender and intersex-related issues are usually ignored (Mittag & Sauer 2012; Sauer 2011).

The universality and indivisibility of human rights as stated in the UN treaties provides the legal basis and the supreme argument for the human rights inclusion of LGBTIQ. The legal overview demonstrates that SOGI has become an internationally acknowledged part of the UN's human rights framework. The legislative interpretation in the Yogyakarta Principles in particular could inform the development of rights-specific frameworks such as HIV/AIDS strategies with regards to the right to health (UNAIDS 2009; Seale 2009). In our literature review, it became evident that the first steps toward mainstreaming SOGI issues into IA approaches have been taken in theory and concept, although they have rarely been implemented in practice. SOGI in explicit HRIA tools is not yet present, neither mainstreamed nor focused; it is in a liminal phase, with the first studies only now emerging.

Most HRIA tools and practices still focus on the macro-legal situation, with no recognition of their heteronormative bias (e.g. Alkire et al. 2009; Amin et al. 2011; NomoGaia 2010; Roling & Koenen 2011). IA practitioners occupied with HRIA and related IAs, such as social, poverty and health IA, should be trained to recognise built-in hetero-biases and binary sex/gender norms in IA tools and practices, since tools are only as good as the users applying them.

In the future, we encourage the further integration of SOGI into HRIA through a three-pronged strategy. The first prong is to focus analysis on LGBTIQ target groups by conducting SOGI-centred HRIAs that take into account the particular intra-group needs and human rights violations against local LGBTIQ. The goal would be to render these target groups and their diverging needs visible in hostile and violent de jure and de facto human rights environments. The future development of such tools requires the expertise of LGBTIQ researchers, who in interdisciplinary efforts can help create a more in-depth understanding of the issues at stake and more refined instruments. Until such time as there are SOGI-specific HRIA tools available, starting with the Yogyakarta Principles is recommended. While these Principles do not represent a fixed assessment frame, there are already several suggestions for applying them to concrete analyses of human rights conditions (International Panel of Experts in International Human Rights Law and on Sexual Orientation and Gender Identity 2007b, International Commission of Jurists et al. 2007; Hirschfeld Eddy Foundation 2011; Quinn et al. 2010). They need to be further specified, localised, contextualised and developed into measurable meta-frames with indicators. By including the range of gender identity issues, from non-normative gender expressions and legal and medical transitioning to traditional gay and lesbian issues, such as de-criminalisation and access to marriage and adoption, the Yogyakarta Principles propose an inclusive approach. By not drawing on the closed Western identity labels of ‘lesbian’ or ‘gay’, and instead using the open concepts sexual orientation and gender identity, the Yogyakarta Principles avoid essentialist homogenising notions. As such, they continue to be the most persuasive and inclusive approach to raising awareness and gaining support for LGBTIQ within an overall human rights framework (Long 2008; Waites 2009). However, because they do not address intersex issues appropriately, they also demonstrate the need to continuously define, refine and enlarge SOGI human rights analytical frameworks and indicators. For example, the Principles do not address so-called ‘gender reaffirming’ genital surgery and hormone treatments which are often performed on intersex children and youth without their informed consent, even though such measures are widely criticised for their traumatising and physically harmful effects (Mittag & Sauer 2012). It is essential to diversify, taking culturally specific and local perspectives into account, which would shed light on a variety of sexualities, genders and ways of living (Alexander 2008; Kuntsman & Miyake 2008).

The second prong is the mainstreaming of SOGI aspects into a variety of IA tools with other foci, such as equality, equity, diversity, gender and vulnerability, and anchoring these individual approaches into a human rights framework. Human rights mainstreaming in general is already a widely practised and supported approach (Radstaake & Vries 2004), and its logics and techniques are transferable to SOGI mainstreaming at all implementation levels, whether strategic, policy, project or programme. A seamless fit of SOGI aspects into existing HRIA-relevant tools is particularly encouraged and made possible from a tool design perspective through familiarity with existing HRIA frameworks and other IA approaches. In Scotland, for example, the Equality Act already protects LGBTIQ people, and Scottish Equality IAs are consequently SOGI-sensitive, providing blueprints for HRIA (Harrison & Stephenson 2010). Such approaches are evidence that sensitive, finely honed tools can prompt new perspectives, allowing analysts to pick up indications of sexism, homophobia and transphobia (Harrison & Stephenson 2010). The question, however, is how far can SOGI mainstreaming in HRIA go? Recent SOGI mainstreaming efforts in HRIA-related tools have been restricted to one target group at a time. Also, existing instruments lean toward isolated, single issues related mostly to homosexuality, or employ data and indicators relevant only to sexual orientation (Walby & Armstrong 2010) such as the Equality Mainstreaming tool developed by the European chapter of the International Lesbian, Gay, Transgender and Intersex Association (Ahmeda et al. 2011). In compound LGBTIQ assessments, transgender and intersex are almost always under-conceptualised or absent, as in the European Union's equality mainstreaming efforts and fundamental rights IA. Also, the depth of SOGI elements in assessments varies, along with their integration in overall objectives (such as the values of the European Union in its fundamental rights IA or health outcomes in health IA) and monitoring. As the inclusion of SOGI aspects into HRIA proceeds, it is important to identify when a SOGI-centred approach should be chosen and which aspects and to what extent the mainstreaming of SOGI in (HR)IA concepts may fully reflect the impacts on LGBTIQ people. Mainstreaming SOGI into IA will require additional research to build a deeper, more specific understanding of LGBTIQ issues and the inclusion of more LGBTIQ experts in the IA community.

In the third prong of our strategy to integrate SOGI into HRIA, we call for the further development of SOGI-relevant (HR)IA tools. As the examples of practice in related IAs show, especially in human rights-based health IA (Veenstra 2011) or Equality IA, LGBTIQ people suffer from heightened vulnerability, which should put them, along with other vulnerable groups, at the centre of further HRIA goals, objectives and tool development, including human rights monitoring and the availability of data (Landman 2004; Anders Andreassen & Sano 2007). However, owing to the criminalisation of LGBTIQ activities, moral objections and uncertainty about the size of and ways to reach out to these target groups, data collection on LGBTIQ people is seen as problematic (Parken 2010). These difficulties only increase the urgency for action. Rather than being deterred, researchers need to overcome such stigma, to exhaust all data collection strategies, not only standards-based, but also survey- and events-based, and to stress the ‘need for continued provision of high quality information at the lowest level of aggregation’ (Landman 2004, p. 906). The German Institute for Human Rights is in the process of developing an LGBTIQ analysis toolkit with the working title of ‘Human rights of persons regardless their sexual orientation or gender identity’ (sic) (Deutsches Institut für Menschenrechte 2012). However, the challenge remains: to develop an integrative tool that operationalises issues of gender identity to the same level that issues of sexual orientation are operationalised, while addressing ethical issues of participation, access to data and benefits for target groups.

Conclusion

The precarious human rights situation of and the denial of equal rights to LGBTIQ people worldwide call for tools and assessment frameworks sensitive to – and practitioners sensitised to – SOGI issues. There is a persuasive human rights mandate for conducting HRIAs that directly centre on SOGI, as well as for mainstreaming SOGI into HRIAs and other IA tools that indirectly include LGBTIQ issues in all impact areas and regardless of their field of implementation, whether policy, project or strategic. The development of SOGI-sensitive HRIA methods, tools and indicators is in its infancy and does not address the differing needs of all LGBTIQ target groups in balanced ways. Further attention needs to be devoted to the tool–practice gap between the LGBTIQ and HRIA researchers in order to streamline LGBTIQ issues into the development of HRIA indicators and tools. The experience of LGBTIQ researchers in an interdisciplinary, global, yet localised exchange on the human rights of LGBTIQ is indispensable for advancing SOGI in HRIA and would help to bridge the gap.

Acknowledgements

The authors would like to thank Dr Katharina Helming, head of the Research Group Impact Assessment, Leibniz Centre for Agricultural Landscape Research; Andrea Kämpf, researcher for Development and Human Rights, German Institute for Human Rights; Mary Ann Sutherland, freelance consultant; and Prof. Dr. Frank Vanclay, Chair of Cultural Geography at the University of Groningen, for their valuable input and remarks.

FundingThe authors thank the Heinrich Boell Foundation and the FP7 research project, LIAISE (Linking Impact Assessment Instruments to Sustainability Expertise), for supporting the research.

Notes

^1. It is important not to see vulnerability as a concept that establishes seemingly fixed, coherent groups, but rather to apply it in a situated and context-based manner with an awareness of shifting positions of disempowerment and power (Sauer 2010; Baer 2012).

^2. It is important to note that transgender and intersex issues are usually not represented or marginalised in the larger LGBTIQ movement.

^3. These and all further judgements are strictly applied to the technicalities of HRIA in order to inform the IA community that is fostering SOGI-HRIA development. We do not wish to call into question the relevance of the subject matter; on the contrary, we wish to draw attention to these pioneering studies.