France Circulates Draft UN Declaration on “Sexual Orientation” and “Gender Identity”

Late last week the government of France, in its role as six-month president of the European Union (EU), began circulating a draft declaration on “sexual orientation” and “gender identity” among United Nations (UN) member states. The draft calls for recognition of “sexual orientation or gender identity” as a protected human rights category on par with race and sex.

Rama Yade, France’s Junior Minister of State for Foreign Affairs and Human Rights, had previously announced that her country would submit such a “declaration” at the UN General Assembly in December. Sources have told the Friday Fax that so far at least 47 nations have signed onto the draft declaration, a list that presumably includes all 27 member states of the EU. It is expected to take the form of a “political declaration” which will not be voted on, but simply submitted to the Secretary-General for promulgation as representative of the views of the signatory nations.  

The declaration also calls for states “to ensure that sexual orientation or gender identity may under no circumstances be the basis for criminal penalties,” which some interpret as an implicit linking of behavior to orientation and identity, given that it is homosexual acts which are illegal in some 90 nations worldwide.

Though not a binding document, critics fear that once issued, proponents will begin touting the declaration as evidence of a new international norm that is in the process of evolving. Such fears are not unfounded – the draft declaration itself references a resolution on “Human Rights, Sexual Orientation, and Gender Identity” that emerged over the summer from the Organization of American States (OAS). That OAS resolution, however, was also non-binding and not subject to a vote, passing instead by consensus.

Moreover, though political declarations are nonbinding, they frequently reappear in a more definitive format later. A resolution on the Moratorium on the Use of the Death Penalty, which passed the Third Committee both this year and last, first appeared in the General Assembly as a political declaration. 

So far member states have rebuffed attempts to add “sexual orientation” to the list of protected non-discrimination categories. In 2003, at the UN Commission on Human Rights in Geneva, Brazil introduced a resolution that sought to make “sexual orientation” a protected classification. Member states overwhelmingly rejected the proposal.

Critics also raise the ambiguity of the term “gender identity.” The concept of gender as defined in UN documents upholds traditional understandings. The 1995 Beijing Platform for Action said that gender is “understood in its ordinary, generally accepted usage,” and the Report of the Conference on Human Settlements held the following year in Istanbul restated this. Likewise, the Rome Statute of the International Criminal Court declares that “the term ‘gender’ refers to the two sexes, male and female, within the context of society.”
France’s six-month EU presidency term expires at the end of the year, with the Czech Republic scheduled to take the helm next. France’s President Nicholas Sarkozy courted controversy last month when his government suggested that France continue to lead the bloc on economic issues, given the worldwide financial crisis and the Czech Republic’s small size and relative newness to the EU. 

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