OAS Resolution on Sexual Orientation, Gender Identity and Expression – Ten Years On

By Maurice Tomlinson, Senior Policy Analyst, Canadian HIV/AIDS Legal Network

Maurice Tomlinson presenting the IACHR Rapporteur on LGBTI people, Flavia Piovesan, with a copy of our work in the Caribbean

On June 5, the 48th General Assembly of the Organization of American States (OAS) adopted another annual resolution on Sexual Orientation, Gender Identity and Expression.  This is the 10th anniversary of the first such resolution, which met with strong opposition when it was introduced in 2008. However, in a wonderful reversal, one of the states that had initially sought to block that resolution, Belize, was this year a proud co-sponsor! This remarkable result was due to the hard work of many activists as well as a successful court challenge.

There have been many changes since that first ground-breaking resolution, which initially only condemned violence against LGBT people. Among other things, the language has progressively become stronger and more inclusive and now also condemns discrimination against LGBTI people. This has prompted a broader discussion on all aspects of discrimination, including laws that criminalize same-sex intimacy, which are present in nine Anglophone Caribbean countries. 

These countries and other members of the 15-nation Caribbean Community (CARICOM) nearly scuttled the first resolution in 2008 by announcing that they would oppose it as a block. As the 35-nation OAS tries to work by consensus, the CARICOM block would have been fatal to the resolution. However, after intense lobbying by Caribbean activists (including me), this block was broken and the first resolution passed. As this isn’t a binding treaty but rather a tool for guiding the work of the OAS on the issue of LGBTI human rights for the coming year, the resolution must be passed annually. Since the first introduction in 2008, Caribbean nations have included footnotes expressing reservations about aspects of the resolution (such as language relating to trans identities) but these states have not been able to mount another credible effort to block the resolution’s adoption.

Belize criminalized same-sex intimacy until 2016 and as such was opposed to the first resolution. But their position changed significantly after a successful court challenge brought by tenacious Belizean activist Caleb Orozco, which struck down the archaic anti-sodomy law. Caleb was one of the Caribbean activists lobbying for the resolution in 2008, along with other members of the OAS LGBTTTI (Lesbians, Gays, Bisexuals, Transgender, Transsexuals, Travestis and Intersex people of Latin America) Coalition. This coalition now has over 50 civil society organizations from across the Americas (including the Legal Network) and is working within the Inter-American human rights system to achieve the full realization of LGBTI human rights across the hemisphere. 

Belize’s U-turn on this year’s resolution shows the powerful impact that legal challenges to anti-sodomy laws can have. The Anglophone Caribbean countries that enter reservations usually claim that the resolution runs counter to their own domestic law. At the same time, the governments of these countries are simply too afraid of powerful right-wing religious lobby groups (many of which are supported by American churches and are becoming more visible at the OAS) to repeal these statutes. Since the parliament of The Bahamas struck down their anti-sodomy law in 1991, no other CARICOM legislature has followed suit. So the courts have to do the job that the politicians won’t take on. 

Following Belize’s sweeping court decision, a court in Trinidad has also jettisoned that country’s anti-sodomy law. Similar legal challenges have been launched in Jamaica and Barbados, supported by the Legal Network, including a petition to the Inter-American Commission on Human Rights, which is an arm of the OAS.

Although non-binding on states, the resolutions have prompted some significant initiatives by the Inter-American Commission on Human Rights to protect LGBTI people. These include the establishment of a special rapporteur on LGBT human rights and a report on violence against LGBTI people.

The OAS resolution was also the precursor to a similar resolution at the UN, which created the first independent expert (IE) on sexual orientation and gender identity.  The current IE, Victor Madrigal-Borloz, is from Costa Rica and was very active in the process of lobbying for the original OAS resolution.

The work of protecting LGBT human rights in the Americas is far from complete and the rise in populism coupled with increased activism by anti-rights religious groups pose significant threats to the gains that have been made.  However, as courts strike down anti-sodomy laws across the Caribbean, their governments will be free to join the cause for equality.  I therefore look forward to a day when the OAS resolution on Sexual Orientation, Gender Identity and Expression is unanimously sponsored by all of CARICOM.  I hope it will not take us another ten years to get there.

Maurice Tomlinson with the Belizean Foreign Minister, Hon. Wilfred Peter Elrington