CONCEPTS AND PROTECTIVE FRAMEWORK Concepts and protective framework Many countries continue to have legislation which discriminates against LGBTI people. Such discrimination can range from a higher age of consent for sexual intercourse for homosexuals than for heterosexuals,11 to discriminatory and degrading medical examinations12 or ambiguous decency laws. It can take the form of criminalisation of sexual relationships between persons of the same sex and of sexual orientation itself, which in some countries even carries the death penalty.13 This document does not analyse human rights concerns related to the criminalisation of homosexuality, but focuses on discrimination and abuse in places of detention. 1. Definitions LGBTI is an acronym used for Lesbian, Gay, Bisexual, Transgender and Intersex persons. Activists, civil society organisations, sociologists, the media and others may use other acronyms, including ‘LGB’, ‘LGBT’ or ‘LGBTQ’ (Q standing for ‘queer’), which all reflect various identities, realities, demands and concerns. Many people labelled as LGBTI would not even identify themselves with this acronym, its underlying narrative or associated symbolism. Some may find it understandably confusing or arbitrary to conflate sexual orientation with gender identity. In some cultures, nobody will identify themselves as lesbian or gay because of the very strong social stigma; however, some may have experienced same- sex relationships. The terms ‘men who have sex with men’ or ‘women who have sex with women’ have therefore emerged to enable description of some people who might not identify as gay or lesbian. That said, and bearing in mind the complexity of the issue and the broad scope of groups and persons concerned, LGBTI will be the terminology used in this paper. The terms lesbian, gay and bisexual can be understood through the prism of sexual orientation. According to the introduction to the Yogyakarta Principles, ‘sexual orientation is understood to refer to each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.’14 Transgender, by comparison, can be analysed through the prism of gender identity, understood by the Yogyakarta Principles ‘to refer to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms.’15 Finally, ‘intersex’ is a term used to describe different conditions in which a person is born with sexual or reproductive anatomy that does not fit the typical definitions of female or male. The issues and problems of transgender and intersex persons differ from those of lesbian and gay persons, and from each other. One of the main concerns for transgender persons relates to discrimination based on the fact that their perceived gender does not correspond to their biological sex, in particular problems accessing medical treatment such as sex reassignment surgery. On the other hand, one of the main demands advocated by organisations defending the rights of intersex people, is to ban the mutilation of children where it has the aim of assigning a definitive biological sex to the child, on the basis of social and cosmetic considerations.16 Realities, challenges and demands of these two groups may therefore be perceived as being entirely different. Despite the significant differences among the various groups concerned, experiences suggest that persons included under this terminology – or people perceived as belonging to one of the categories included in the acronym LGBTI – represent a group in a situation of 11. See for instance the Nevada state law criminalising consensual sex between same-sex teenagers, as a ‘crime against nature’. Available at: https:// www.leg.state. nv.us/NRS/NRS-201.html#NRS201Sec195 <accessed 7 October 2013>. 12. In some countries men arrested on charges of homosexuality are compelled to undergo medical examinations intended to obtain physical evidence of anal sex. The UN Working Group on Arbitrary Detention considers that ‘forced anal examinations contravene the prohibition of torture and other cruel, inhumane and degrading treatment, whether […] they are employed with a purpose to punish, to coerce a confession, or to further discrimination. In addition, they are medically worthless for the determination whether or not a person has engaged in same-sex sexual conduct.’ Working Group on Arbitrary Detention, Opinion No. 25/2009 on Egypt, A/HRC/16/47/Add.1, paras. 23, 28-29. 13. As of 2011, laws in at least 76 countries criminalised consensual relationships between adults of the same sex, with the death penalty an applicable sentence in at least five of them. See: Office of the High Commissioner for Human Rights, Death penalty increasingly viewed as torture, UN Special Rapporteur finds, 23 October 2012. 14. www.yogyakartaprinciples.org, p6. 15. www.yogyakartaprinciples.org, p6. 16. See, for example: www.intersex.ch. 4 | Penal Reform International | LGBTI persons deprived of their liberty: a framework for preventive monitoring