WHAT CAN MONITORING BODIES DO?
What can monitoring
bodies do?
When monitoring bodies embark upon addressing the
issue of discrimination and abuse in detention on the
basis of sexual orientation and/or gender identity, this
will require a series of considerations, ranging from
the monitoring team’s composition, strategy and even
legislative issues, to knowledge-building on the situation
of sexual minorities and adaptation of their monitoring
methodology.
Of utmost importance is to be clear and unequivocal
within the monitoring body about the fact that
discrimination on the basis of sexual orientation or
gender identity is unjustifiable. If there is a lack of
consensus within the monitoring mechanism itself,
monitors will not be able to effectively and credibly
address the protection of sexual minorities in their work.
1. Legal basis
Where monitoring bodies are established by law and their
powers enshrined in legislation, there is an opportunity
to give more visibility to the specific risks faced by LGBTI
persons. Where groups in situations of vulnerability are
listed in the law, LGBTI persons should be included
in the same way as others. In Honduras, the Bill
establishing the NPM (CONAPREV – Comité Nacional de
Prevención contre la Tortura, Tratos Crueles, Inhumanos
o Degradantes) clearly states that the NPM’s personnel
has among other functions the responsibility to ‘verify the
existence of vulnerable groups such as […] LGBT, etc., in
order to establish specific risks faced by such groups’.73
The inclusion of LGBTI detainees in the list conveys
a strong message to the authorities as well as to the
general public.
gender balance and the adequate representation of
ethnic and minority groups in the country’. This should
also be applicable to the extent possible to other
minorities. Monitoring bodies could therefore put in
place an institutional policy encouraging recruitment
of representatives – whether staff, experts or honorary
members – from minority groups and vulnerable persons,
including LGBTI persons.
3. Policies
Some monitoring bodies, whether part of a National
Human Rights Institution (NHRI) or Ombudspersons
Office, have developed policies which explicitly
prohibit discrimination against minorities, including
sexual minorities.74 Some of them proactively speak
out to uphold the human rights of sexual and gender
minorities. Such an approach enables monitoring bodies
to convey a strong message of non- discrimination
and inclusiveness of sexual minorities. For example,
the Human Rights Commission of New Zealand has
produced a policy named ‘Born free and equal’ which
is also a statement to the public. It is based on the
Yogyakarta Principles and stipulates that ‘[a]ll people,
regardless of their sexual orientation or gender identity,
have the same rights and freedoms. All sexual and
gender minorities in New Zealand have these human
rights, whichever word they use to describe their sexual
orientation or gender identity. […] The Human Rights
Commission recognises and values this diversity of
identities and communities and acknowledges the
difficulty encompassing this diversity under any single
umbrella term.’75
4. Training
2. Composition
The composition and membership of monitoring bodies
are key elements contributing to effective oversight of
places of detention. Article 18 of the Optional Protocol
to the Convention against Torture (OPCAT) establishes
that ‘the States Parties shall take the necessary
measures to ensure that the experts of the national
preventive mechanism have the required capabilities
and professional knowledge. They shall strive for a
In order to address the issues and risks faced by LGBTI
detainees coherently and professionally, members of
monitoring bodies will need specific preparation and
possibly training. Such training may include knowledge
building about the specific groups concerned,
differentiating the categories, especially as regards
sexual orientation as opposed to gender identity, and
understanding the needs, risks, and the standards
related to detention.
73. La Gaceta, N°32,647, Honduras, 19 October 2011, Article 14.b.
74. See, for example, the Care Quality Commission’s ‘Equality and human rights’ policy’, which includes sexual orientation among the special needs to
be considered by its inspectors. (The Care Quality Commission is one of the bodies constituting the UK NPM.) Available at: http://www.cqc.org.uk/
content/equality-and-human-rights <accessed 20 November 2015>.
75. See Sexual orientation and gender identity, New Zealand Human Rights Commission. Available at: https://www.hrc.co.nz/files/1914/2388/0525/
HRNZ_10_rights_of_sexual_and_gender_minorities.pdf <accessed 20 November 2015>.
14 |
Penal Reform International | LGBTI persons deprived of their liberty: a framework for preventive monitoring
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