2018 Sexual Rights Highlights
Throughout 2018 the UN human rights system continued to be an important space for the development of global sexual rights norms and standards as well as providing critical accountability mechanisms for national laws and policies impacting human rights related to sexuality, reproduction and gender. From the establishment of new human rights standards on abortion to the explicit recognition of harms caused and perpetuated by patriarchy, sexual rights advocates flexed their collective muscles in 2018 to demand States do better and do more to fulfill their obligations under international human rights law.
Once more for those in the back: Abortion Rights are Human Rights!
After more than three years of consultation and deliberation, the Human Rights Committee adopted General Comment 36 on the Right to Life [Article 6]. The new General Comment explicitly addresses women’s and girls’ right to life in the context of pregnancy and reinforces existing treaty body jurisprudence[1] and recommendations[2] regarding States obligations to decriminalize abortion, to remove barriers to effective access to safe and legal abortion and to ensure that any restrictions on abortion do not jeopardize women’s and girls’ rights to life, health, non-discrimination, privacy and freedom from cruel, inhuman or degrading treatment.
On International Safe Abortion Day September 28, several Special Procedures issued a unequivocal joint statement calling on States to act now to decriminalise abortion. This was echoed by more than 200 civil society organizations that delivered a mass joint statement to the Human Rights Council calling for States to take action against attacks on abortion rights defenders. The UN’s independent human rights experts also drew attention to abortion rights during country visits to Poland and Indonesia, urgent communications to Argentina and in thematic reports on deprivation of liberty and assessing current struggles for women’s rights and empowerment.
While States are slow to adopt advances in abortion rights norms and standards at the intergovernmental level, two important political developments took place in 2018. First, resolutions on the prevention of maternal mortality and morbidity and elimination of discrimination against women and girls made a subtle but significant advance in relation to abortion. The resolutions called on States to ensure “safe abortion in accordance with international human rights law and where not against national law”. This is the first advancement on abortion language in a UN resolution in several years and the first time international human rights law has been invoked in this context. Second, States are steadily increasing the number of Universal Periodic Review recommendations on abortion and the acceptance rate is correspondingly rising.[3] These positive signs represent years of sustained advocacy by abortion rights defenders at the local, national, regional and international levels and provide critical entry points to disrupt entrenched narratives that abortion is too polarizing for constructive discussion at the UN.
The Revolution Must be Intersectional
The UN human rights system as a whole continued to struggle with the concept of intersectionality in 2018. Several resolutions identified different groups of people subject to multiple forms of discrimination but without examining the underlying and interlocking structural forces that give rise to the human rights abuses they face[4]. Much of the UPR and treaty monitoring body documentation and recommendations on sexual orientation and gender identity are narrowly addressed and issues related to comprehensive sexuality education, sex work and adolescent sexual rights remain underrepresented. Further, the Committee on the Rights of Persons with Disabilities’ new General Comment 7 on participation of persons with disabilities is notable for its weak gender analysis.
However, there were some bright spots that are important to highlight and build upon in 2019. The resolution on eliminating discrimination against women and girls upended the familiar rhetoric of supporting women’s economic empowerment as a means to achieve neoliberal policy goals[5]. By asserting women’s economic rights including the right to work and to just working conditions, calling out retrogressive actors that seek to deny women control over their personhood and naming patriarchy as a root cause of discrimination against women in the labour market, the resolution casts women not as victims of circumstance but as persons imbued with rights and dignity for which the State has a responsibility to remedy the multi-layered and systemic rights violations they face. This is a meaningful change in tone and framing of a UN Human Rights Council resolution that should be applied to future resolutions.
The Special Procedures also produced reports in 2018 that challenge a reductive understanding of intersectionality. The Special Rapporteur on Contemporary forms of racism, racial discrimination, xenophobia and related intolerance presented her report on nationalist populism that identifies the ways in which “…States use patriarchal, gender-discriminatory laws to achieve racial, ethnic and religious exclusion …” and specifically examines the role of sexuality within ethno-nationalist ideologies. The Working Group on the issue of discrimination against women in law and practice’s report reviewed the first six years of the mandate and highlighted the lack of intersectional analysis by States and within the UN system as “…a core problem affecting the way gender equality is addressed and a major obstacle to sustainable progress”. In a welcome step towards recognizing the interdependence of sexual rights, the Committees on the Rights of Persons with Disabilities and the Elimination of Discrimination against Women issued a joint statement on guaranteeing the rights of all women to sexual and reproductive health and rights particularly women with disabilities. The statement stresses the rights of all women to bodily autonomy and informed consent and recalls that gender equality and disability rights are mutually reinforcing.
Bodily Autonomy or Bust
The consistent integration of bodily autonomy into the lexicon of human rights discourse and as a framework from which to articulate sexual rights demands has been a long-standing objective of the SRI and many sexual rights advocates worldwide. In 2018, UN human rights mechanisms cautiously yet encouragingly recognized the moral weight of asserting sovereignty over one’s own body and life as a prerequisite for the realization of all human rights. This recognition was evident in resolutions on, inter alia, accelerating efforts to eliminate violence against women[6]and preventable maternal mortality and morbidity and human rights[7]. The Working Group on the Issue of discrimination against women in law and practice unequivocally stated in their 2018 report that “The right of a woman or girl to make autonomous decisions about her own body and reproductive functions is at the very core of her fundamental right to equality and privacy, involving intimate matters of physical and psychological integrity, and is a precondition for the enjoyment of other rights…”. On the flip side, the Special Rapporteur on Poverty’s report warned of the growing co-optation and subversion of the language of autonomy by those who seek to privatize basic social and economic protections. The SRI will work to build on these gains in 2019 and continue to advocate for the adoption of this inclusive and rights affirming framework.
Trends to watch
In addition to the mandates with a specific focus on migration and trafficking, several human rights mechanisms have turned their attention to global migration, people on the move and humanitarian settings in recent years. This includes, inter alia, the Special Rapporteurs on human rights defenders, the right to food, torture, extrajudicial, summary or arbitrary executions, as well resolutions on preventable maternal mortality and morbidity, rights of the child, child early and forced marriage and General Comments from the Committees on torture, the rights of the child, migrant workers and elimination of discrimination against women. While high-level consideration of the human rights dimensions of migration is very welcome, the SRI is concerned about the location of trafficking and sexual exploitation within this discourse given the persistent conflation of trafficking with sex work. As highlighted by sex worker-led organizations[8] and UN Women, the application of anti-trafficking laws and policies to migrant sex workers and the criminalization of sex work in general leads to inappropriate responses that fail to uphold the rights of both sex workers and persons who have been trafficked. In February 2019, the Committee on the Elimination of Discrimination against Women will hold a half-day discussion on trafficking in women and girls in the context of global migration as part of their process to develop a new General Comment on the same topic. The SRI will be working alongside sexual rights advocates to ensure that any new elaboration on these standards will respect the human rights of sex workers and trafficked persons and to challenge the underlying racist and morality-based motivations of anti-trafficking policies targeting migrant sex workers.
The political and normative progress on sexual rights within the UN human rights system presents challenges and opportunities for sexual rights advocates. On the one hand, increased visibility and utilization of the human rights mechanisms has enriched processes and outcomes related to sexual rights and contributed to the effectiveness of accountability measures. On the other hand, State restrictions on feminist organizing, persecution of women human rights defenders and donor practices that jeopardize intersectional and autonomous movement building in the Global South has contributed to an overrepresentation of Global North based international NGOs at decision-making and norm-setting tables. Consequently, the already limited space and resources for independent Global South feminist organizations and coalitions to advocate within the UN human rights system on their own terms is getting smaller and requires extensive time and energy to ensure sustainability. This is by no means a new phenomenon or unique to the UN human rights system, however, there has been a pronounced increase in international sexual and reproductive health and rights organizations engaging in the UN human rights mechanisms in recent years. The impact of this in relation to representation, perspectives, the issues that are prioritized, the way sexual rights are presented, access to resources, and power dynamics must be rigorously examined and openly discussed.
Challenging unequal systems of power and creating alternative spaces for solidarity and collective action is what feminists do, no matter the venue or actors. In 2019, the SRI will continue to encourage and participate in the difficult conversations, to bring forth new ideas to disrupt the unequal and unjust social, economic, cultural, civil and political status quo that undermines sexual rights, and to pursue advocacy strategies that advance sexual rights norms and standards for everyone, everywhere.
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[1] See for example CCPR/C/116/D/2324/2013
[2] See for example 2018 recommendations to New Zealand, Turkmenistan, Bahamas, El Salvador, South Africa, Lebanon, Spain, Nepal, The former Yugoslav Republic of Macedonia
[3] 33 recommendations on abortion were delivered during the 28th, 29th and 30th sessions compared with 35 total recommendations for the entire first cycle and 124 recommendations for the entire second cycle. 48% of recommendations on abortion were accepted in the 28th, 29th and 30th sessions compared with 20% in the first cycle and just 30% in the second cycle. Data retrieved from the SRI’s sexual rights UPR database.
[4] See for example A/HRC/38/8 OP 19 which urges States to address the intersecting forms of discrimination experienced by migrants, refugees and crises-affected populations in the context of HIV but does not consider the causes of such discrimination such as xenophobia, racism, forced displacement from extractive industries, neoliberal austerity policies etc. or the impacts such as State imposed restrictions on access to health care, education, employment and housing for migrant and refugee communities in host countries, incarceration of people seeking asylum etc.
[5] See for example Reclaiming Feminism: Gender and Neoliberalism
[6] A/HRC/38/5 OP 5 “Also recognizes that digital technologies can offer access to information that enables women and girls to make informed and autonomous decisions in matters regarding their own bodies, lives and health, including their sexual and reproductive health and reproductive rights…”
[7] A/HRC/39/10 OP 9 “Urges States to ensure that laws, policies and practices respect women’s bodily autonomy and privacy and the equal right to decide autonomously in matters regarding their own lives and health….”
[8] See for example Behind the Rescue: How Anti-Trafficking Investigations and Policies Harm Migrant Sex Workers