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