The State Department’s Annual Human Rights Reports on LGBTQI Abuses

May 18, 2022 – The State Department recently released its annual human rights reports, the Congressionally mandated catalogue of human rights challenges around the globe. While not focused exclusively on LGBTQI right, these reports are, by far, the most expansive look into the lives and human rights challenges faced of LGBTQI individuals in more than 200 countries. 

The Council for Global Equality reviews every report every year, and we are pleased to offer observations on the strengths and weaknesses that we see in this year’s reporting, along with the trendlines that emerge across the years. Here are some key observations from the latest reports.

Criminalization

The beginning section of each country report outlines the issues that the State Department identifies as “significant human rights issues” — that is, the State Department’s top concerns in a given country. The State Department almost always identifies the existence of laws criminalizing same-sex intimate relationships as a top priority in that section, which represents the Biden Administration’s significant commitment to decriminalization as a human rights priority. But after identifying the existence of laws criminalizing intimate same-sex relationships, the phrase then is often modified by this qualifier: “although the law was not enforced.” In most cases, that modifier is not completely accurate and is in fact potentially dangerous.

We know from both the rigorous research of CGE members and the on-the-ground reports from civil society partners around the world that even when authorities refrain from arresting people under sodomy-related laws, the laws themselves still form the harsh bedrock of both legal and societal discrimination. Keeping such laws on the books — whether or not they are enforced — justifies legal and extrajudicial acts of harassment, discrimination, extortion, and abuse.

As an aside, this raises serious questions about the decision of the Biden Administration to invite 26 criminalizing countries to participate in last year’s Summit for Democracy, and even more questions about whether those countries should be invited back to the second Summit for Democracy next year. All too often, the criminalization of LGBTQI persons is used to deny full citizenship rights to LGBTQI individuals. Indeed, how can LGBTQI persons in a criminalizing country expect full citizenship and equal democratic participation when they are, de jure, just un-apprehended felons?

But in terms of the human rights reports themselves, we acknowledge that by adding qualifications explaining that many sodomy-related laws are not directly enforced, the State Department is trying to emphasize — and even support — decisions by countries to refrain from directly arresting individuals under archaic criminalization laws that may be a legacy of colonization. That said, future reports should consider a more thoughtful way of phrasing the lack of direct enforcement that still emphasizes the dangers of these laws. Perhaps the State Department could consider another modifier along the lines of “while there were no reported convictions during the past year, the law continues to undermine the rights of LGBTQI persons in all respects.”

Legal Gender Recognition

The State Department deserves significant credit for reporting more accurately and more comprehensively than ever before on the ability of transgender and non-binary individuals to change their legal documents to reflect their self-determined gender or non-binary identity. This is a significant and valued leap in reporting.

At their most informative, the reports accurately identify the availability — or lack thereof — of laws and procedures to affirm an individual’s gender. This is a significant human rights issue, and the denial of legal gender recognition also should be identified as a top-paragraph concern — along with any laws criminalizing same-sex intimacy — in the opening section of every country chapter. As the United Nations Independent Expert on Sexual Orientation and Gender Identity has noted, “the lack of access to gender recognition negates the identity of a person to such an extent that it provokes a fundamental rupture of State obligations.” (See our recent blog on the topic here.)

In some cases, the country chapters identify the profound impact of the denial of legal gender recognition, noting, for example, that in El Salvador transgender individuals who cannot change their identity documents have been harassed and denied services at every turn, including while voting.

In other cases, however, the reporting on legal gender recognition overlooks key details or context. In the Hungary report, for example, the report accurately notes the March 2021 Constitutional Court ruling declaring unconstitutional provisions of the 2020 law banning legal gender recognition. However, this statement is oddly disconnected from other sections of the Hungary report documenting the government’s campaigns against its LGBTQI community, leaving unclear the limited implication of the Court ruling for transgender citizens.

The country reports also helpfully document other barriers to simple administrative changes to gender identity documents. The United Nations Independent Expert on Sexual Orientation and Gender Identity again identifies that legal gender recognition should be: “based on self-determination by the applicant; a simple administrative process; accessible and, to the extent possible, cost-free; and not require applicants to fulfil abusive medical or legal requirements.”

Intersex Reporting

As we commend the important steps forward in reporting on legal gender recognition, we also hope this will encourage a commitment to more detailed and more consistent reporting on intersex concerns. We fully support the decision to add “intersex” to the acronym that the State Department uses — as does the Council for Global Equality — but the letters need to carry content, policy, and investment. The reporting on intersex issues was weak.

Instructions for next year’s reports should help reporting officers identify top-line intersex concerns for most countries. Those generally include infanticide of intersex children, nonessential surgeries on intersex babies for cosmetic effect that can lead to trauma and debilitation as adults, and generalized discrimination even within the LGBTQI community.

We do note some examples of intersex reporting to build on for future reports, from the Belgian Chamber of Representatives unanimously adopting a “resolution for recognizing the right to bodily integrity of intersex minors” to the Russian intersex NGO that reported “that medical specialists often pressured intersex persons (or their parents if they were underage) into having so-called normalization surgery without providing accurate information about the procedure or what being intersex meant.”

The State Department should consult with intersex advocates to ensure that the reporting on these issues improves to the level of other LGBTQI issues and concerns; and where there are not organized intersex advocates, embassy human rights officers should conduct their own research in the country on how intersex issues are handled by the medical establishment.

Marriage and Family

The Council for Global Equality considers marriage recognition and family rights to be human rights for all, including LGBTQI families. We also recognize that the State Department historically has been concerned about speaking out in support of marriage equality, worrying that such emphasis could undermine preliminary struggles against criminalization, discrimination, and violence in many country contexts.

But in countries that are on the path to full equality, family, partnership, or marriage equality is often the leading issue. In those cases, we believe that the U.S. government should support marriage equality and should report on it accurately in the annual human rights reports. During the Trump Administration, there was virtually no mention of marriage equality battles — whether legal, administrative, or by referendum — in any country, even where those were some of the headlining human rights debates in a given country. The Trump Administration reports even failed to mention the vitriol, backlash, and hate crimes that accompanied some of those marriage equality battles over the past few years.

This year, the reports are mixed. They included important discussions of marriage equality progress in Chile, Mexico, and Panama. But they completely ignored significant efforts (that met with mixed success) in Japan, South Korea, and Thailand.

We also hope to see more reporting on family recognition, along the lines of the reporting of a discriminatory ruling from Israel’s Supreme Court that refused to make the process of registering parenthood for lesbian couples equal to that of heterosexual couples.

Future reports should highlight any effort toward marriage equality, partner recognition, or any other LGBTQI family issue as a human rights concern.

Lesbian Rights

Over the past several years, the State Department’s reporting on transgender rights has improved on an impressive yearly trajectory, even factoring in the antipathy of the previous administration towards transgender people. But oddly, lesbian-specific reporting seems to have declined. The El Salvador report points out important and widespread barriers to lesbian healthcare, while the Vietnam report mentioned “corrective rape” of lesbians. This makes us wonder why there are not more specific instructions for similar, lesbian-focused reporting across all regions.

We also would encourage future reports to consider intersectional approaches to LBTQI rights: in the Pakistan country report, for example, there is highly detailed reporting on the situation facing implicitly heterosexual and cisgender women and girls, while the minimal reporting on lesbians and bisexual women is relegated to the LGBTQI section, and there is almost no integration of the overlap in issues related to gender, sexual orientation, gender identity and expression, and sex characteristics.

We do recognize that since often lesbian-specific human rights abuses are not in the public sphere but in the home, involving non-state actors, they may be harder to document and report. This is important to point out in the instructions to human rights officers about how to ask questions of advocates that would elicit information about the situation for lesbians.

We also recognize that U.S. policy can often reinforce lesbian invisibility, given endemic sexism, given how some criminalization laws exclude lesbians (not out of any inclusive intent but rather the failure of colonizers to imagine women’s same-sex desires), and given how much of U.S. global LGBTQI funding is dedicated, via PEPFAR, to gay and bisexual men and to transgender women. Lesbian health and rights are far too easily ignored, including in these reports; future instructions need to make lesbians and bisexual women more visible.

Conversion Therapy

We were glad to see increased reporting this year on the use of so-called “conversion therapy” and, more importantly, the efforts to ban the discredited practices that seek to “cure” LGBTQI identities and expression. This additional line of reporting is important and influential, as momentum grows in many countries to ban conversion therapies that torture and otherwise devastate LGBTQI lives.

The Ecuador report notes that government efforts to prohibit conversion therapy have been frustrated by “clandestine private treatment centers.” Other reports noted efforts to end conversion therapy, such as in certain jurisdictions in Australia.

Still more reports noted the complexity of combatting conversion therapy, as the practice is often conducted by private actors. The Finland report notes how the practice is prohibited in medical settings but continues to be promoted by religious associations, notably in the Pentecostal Church community. Likewise, the Israel and Iran reports address the deep connections between the state and religious organizations in promoting conversion therapy.

Additionally, we appreciate reporting on how conversion therapy is used as punishment, as seen on the use of the practice in Uzbekistani prisons.

LGBTQI Rights, Human Rights, and Global Crises

More than ten years ago, then-Secretary of State Hillary Clinton delivered a landmark speech in Geneva, declaring that LGBTQI rights are human rights and that human rights are LGBTQI rights. That connection is perhaps most evident in the gravest crises of our time, from the global rise of authoritarianism to the COVID-19 pandemic to mass refugee migrations such as the one prompted by the Taliban’s seizure of power.

We particularly want to commend the highly detailed inclusion of LGBTQI issues in the Afghanistan country report, noting both the serious human rights concerns that predated the Taliban victory and the gross attacks on LGBTQI Afghans and other members of the nation’s civil society after August 2021. We also note the excellent reporting on Lebanon that detailed how during the pandemic, “the government-enforced lockdown posed increased risks to the LGBTQI+ community, which depended on community centers, tight social networks, and NGOs for emotional and financial support. NGOs also reported that the August 2020 Beirut port explosion destroyed areas frequented and inhabited by LGBTQI+ members, which severely impacted their livelihoods and well-being.”

Such an integrated approach to crisis reporting is essential for both these reports and for LGBTQI people around the world, and we hope to see more such reporting next year, whether on the Ukraine war and the mass migration of Ukrainians, often to countries backsliding on LGBTQI rights; the ongoing implications of COVID-19; the global refugee crises; the continuing attacks on LGBTQI and sexual & reproductive health and rights; and on other crises yet to emerge.

Conclusion

The State Department’s annual human rights reports present the facts and try not to editorialize. But the cumulative evidence this year points to significantly improved LGBTQI reporting on a dramatically deteriorating human rights landscape. 

For the International Day Against Homophobia, Biphobia, Interphobia, and Transphobia (IDAHOBIT) this year, President Biden warned that “we continue to witness disturbing setbacks and rising hate and violence targeting LGBTQI+ people in the United States and around the world.” Secretary of State Blinken echoed that warning, emphasizing that “[g]lobal data makes clear that the dehumanization of LGBTQI+ persons is systemic, pervasive, and often violent.” And Speaker of the House Nancy Pelosi reminded us that the fight against intolerance in the United States “remains as urgent as ever, as right-wing forces target trans students, Republican leaders threaten to unwind marriage equality and a radical Supreme Court takes aim at Americans’ most fundamental rights.”

The improved reporting in this year’s human rights reports now must be linked to concrete policy interventions and funding to ensure that our reporting is turned into action, and our rhetoric into real-world protections for LGBTQI individuals and other vulnerable minorities globally.