Forthcoming Guidance on Respecting LGBTI Rights

Commentary, 06 June 2016

By Salil Tripathi, Senior Advisor, Global Issues, IHRB

The idea of human rights rests on the central premise that all humans are equal. It follows that all humans should be treated as equal, and all humans have dignity. Anything that undermines that dignity is a violation, for it violates the principle of equality, and it paves the way for discrimination. 

Human rights law does allow for some discrimination – in particular, actions undertaken to protect the marginalized and the vulnerable, and to extend opportunities to groups or individuals who have historically faced discrimination.

While discrimination has not been eliminated entirely, progressively, international law has extended the reach of human rights, and countries have legislated against discrimination, and criminalised it, and barriers imposed by gender, caste, religion, race, language, have slowly fallen.

The challenge for this age is to remove discrimination on grounds of sexual orientation, gender identity and sex characteristics.

The human rights of lesbian, gay, bisexual, transgender and intersex people (LGBTI) are coming into sharper focus around the world, with important advances in many countries in recent years, including the adoption of new legal protections. But tackling discrimination against LGBTI people is not the sole preserve of governments and lawmakers.

Companies have both a responsibility to respect human rights and tremendous economic power and influence to bring about positive change.

The global picture of the recognition of same-sex relationships is varied. In much of the Americas and Europe (with a few exceptions), same-sex relationships are legally recognied, as they are in South Africa, Australia and New Zealand. At the same time, same-sex relationships remain a crime in 74 countries around the world.

Legal recognition of same-sex relationships by states is important, but criminalisation of same-sex relationships leads to human rights abuses, including harassment, violence, restrictions on freedom of assembly, and expression.

What is a company to do in such a situation?

Should a company discriminate against LGBTI candidates while recruiting engineers in a country where same-sex relationships are outlawed?

Can a company, such as a hotel, deny its services to same-sex couples?

Should a company speak out against discrimination of the LGBTI community in a country?

Should a company allow its employees to create an LGBT employee resource group in a country that outlaws so-called gay propaganda?

Companies face these real problems around the world.

Forthcoming guidance

With a view to provide companies with some guidance so that their actions are consistent with international human rights standards and the UN Guiding Principles on Business & Human Rights, we at the Institute for Human Rights and Business (IHRB) are working on a process with the United Nations Human Rights Office.

Today, Monday June 6, we are having our first consultation with companies and experts in Mumbai, India. Many companies in India – large local corporations (some of whom are multinationals) as well as foreign multinationals – have taken positive steps towards diversity and inclusion in the world’s second-largest country by population.

Over the next few months we will have further consultations in the U.S., Europe and Africa. At the end of the process, guidance will be in the public domain which companies can use to develop policies and practices, and which civil society groups and academic communities can use as an advocacy tool.

Respecting LGBTI Rights

Companies have both legal duties not to infringe on the rights of LGBTI people, and opportunities to contribute to the greater good by promoting equality and inclusion in the countries where they operate.

The UN Guiding Principles on Business & Human Rights, unanimously endorsed by the UN Human Rights Council in 2011, provide companies with a framework to better understand their human rights responsibilities. The Guiding Principles state that that enterprises have the responsibility to respect human rights wherever they operate and whatever their size or industry. They call on companies to meet this responsibility by having in place a policy commitment to human rights, implementing effective due diligence procedures, and by providing or cooperating in access to effective remedy where gaps exist in cases of discrimination and other human rights abuses.

This corporate responsibility to respect human rights exists independently of the willingness or capacity of States to meet their own legal duties to respect, protect and fulfill human rights. No matter the context, States and businesses retain these distinct but complementary responsibilities.

Companies also have important opportunities to advance respect for human rights – including the rights of LGBTI people – in the countries where they do business.

The role that companies can play – and the approaches that might be deployed – will vary depending on the social and legal context. But in all parts of the world, and irrespective of local laws and political dynamics, there are actions that companies can take both to shield LGBTI people from unfair treatment and challenge discriminatory practices both within and beyond the workplace. Through calibrated, concerted interventions, the corporate world can make a vital contribution to reducing stigma and prejudice directed at LGBTI people everywhere.

The tide is turning

In the United Sates, the Human Rights Campaign notes that in 2002 only 61% of the companies surveyed had policies banning discrimination on the grounds of sexual orientation and only 5% on the grounds of gender identity. By 2015, those numbers had increased to 93% and 87% respectively.

Furthermore, 60% of the companies surveyed currently offer transgender-inclusive health care coverage, compared to no companies in 2002, and over three hundred major companies have approved gender transition guidelines for employees. In the United Kingdom and in Hong Kong, companies’ and employers’ commitment to diversity is ranked in annual index. 

Companies have also begun to speak out.

When the US Supreme Court was deliberating on the case that ultimately legalised marriage between same sex couples, several companies filed amicus briefs supporting marriage equality. As some American states have begun to introduce laws to permit companies to opt out of certain provisions on grounds of religious exemptions, several large US companies have spoken out against those laws, threatening to take their business elsewhere. Despite the present penal code stance on gay relationships, firms such as Godrej, Genpact, Intuit, ThoughtWorks, Microsoft, Goldman Sachs, and Google, are continuing to focus on increasing diversity in the workplace, including for the LGBT (lesbian, gay, bisexual & transgender) community. 

For the multinational firms, these efforts are part of their universal HR policies and diversity initiatives applied around the globe.

In India, several Indian companies took a public stance against section 377 of the country’s penal code, which criminalises same sex relationships. This has translated into recognisable brands running supportive ads in national publications. These included the jewellery brand Tanishq, the fashion brand Fastrack, and the luxury goods brand Hidesign, among others. The French initiative, L’Autre Cercle has created a “Charte d’engagement LGBTI” which companies can sign in order to demonstrate publicly their commitment to equality for LGBTI employees. Similarly, in the Netherlands, the Declaration of Amsterdam, signed by many large corporations commits companies to 10 steps aimed at addressing unfair treatment of LGBTI people in the workplace.

The draft guidance under development with the UN Human Rights Office is divided in four parts:

  • Respect human rights, through
    • Making policy commitment
    • Undertaking due diligence
    • Establishing remedies
  • Eliminate discrimination, through
    • Effective recruitment policies
    • Eliminating harassment
    • Ensuring access to all customers
  • Provide support, by
    • Backing and establishing LGBTI staff groups
    • Extending benefits without discrimination
    • Guaranteeing privacy
  • Act in public sphere, through:
    • Public advocacy
    • Collective action
    • Non-compliance with abusive orders

We are excited to be working with companies, academics, lawyers, civil society groups, and human rights defenders, to advance respect for human rights for all, everywhere, regardless of frontiers. Should you wish to learn more about the project or participate in its activities, please contact Charles Radcliffe at [email protected], Fabrice Houdart at [email protected], or me at [email protected]

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