G20 New Delhi Declaration and LGBTQ+ Rights
The Group of Twenty (G20) is a crucial forum for addressing international economic issues and has historically played a pivotal role in shaping the global architecture and governance concerning major international economic matters. Between September 9 to 10, 2023, India hosted the 18th G20 Summit at Bharat Mandapam in New Delhi and on the very first day, amidst much speculation and skepticism, a "100% consensus" was reached at the G20 Summit in New Delhi, India. The G20 New Delhi Leaders’ Declaration (Delhi Declaration) was officially adopted by all G20 leaders and the Indian Prime Minister, Mr. Narendra Modi, made this announcement with the Government hailing it as "historic and groundbreaking."
India's G20 Sherpa, Mr. Amitabh Kant, went on to say that the New Delhi Declaration, running into 38 paragraphs, garnered unanimous agreement concerning developmental and geopolitical concerns. He also stated that the present period should be recognized as the “golden age of human-centric globalization”; and credited India's G20 Presidency, led by the Prime Minister of India, Narendra Modi, for its work in pursuing this objective.
The Delhi Declaration is undeniably a comprehensive document, encompassing a wide array of crucial global concerns: from fostering financial inclusion and advancing quality education to bolstering healthcare infrastructure, promoting sustainable green development, facilitating multilateral trade, and harnessing the potential of Artificial Intelligence. Yet, what conspicuously stands out in the Declaration is what was left unsaid- the LGBTQ+ rights, underscored by a lamentably inadequate mention of gender equality and inclusion.
International Human Rights and the Indian Legal Framework
It should be noted that India's track record on LGBTQ+ rights is mixed, and it does not seem to be a national priority for the Government in power. The Government rolled out the problematic Transgender Protection Act, 2019, banned same-sex couples from its revised surrogacy law, and very recently opposed marriage equality before the Hon’ble Supreme Court of India.
The constitutionality of Sections 4, 5, 6, 7, 12(3), 18(a), and 18(d) of The Transgender Persons (Protection of Rights) Act, 2019 is currently under review by the Supreme Court of India in the case of Swati Bidhan Baruah v Union of India. Here, the petitioners argue that these sections violate the fundamental rights of transgender people guaranteed under Articles 14, 15, 16, 19, and 21 of the Constitution, as established in NALSA v. Union of India (2014). The issues raised in the petition include concerns about the recognition of transgender persons as a socially and educationally backward class for reservations in public employment and educational institutions, disparities in penalties for sexual abuse, vagueness in specific provisions of the act, and restrictions on decisional autonomy to choose one's gender. The petition also challenges the conditional nature of recognizing the transgender identity based on the completion of medical surgery.
Most G20 leaders who adopted the resolution share a mixed to negative stance on LGBTQ+ rights and out of all the G20 leaders, only a handful have made LGBTQ+ rights a national priority and arguably hold a solid track record in protecting their rights. Some of them include Mr. Justin Trudeau (Canada), Mr. Olaf Scholz (Germany), Mr. Emmanuel Macron (France), Mr. Cyril Ramaphosa (South Africa), Mr. Joe Biden (The United States), and Mr. Alberto Fernandez (Argentina).
Some of the other leaders, particularly Mr. Rishi Sunak (United Kingdom) and Ms. Giorgia Meloni (Italy), have mixed records and have recently faced criticism for their negative positions on transgender rights and parental rights of same-sex couples, respectively. Meanwhile, China, Russia, Saudi Arabia, and Indonesia firmly oppose LGBTQ+ rights, with Saudi Arabia even going as far as imposing the death penalty for homosexuality. Therefore, it comes as no surprise that LGBTQ+ rights found no mention in the Declaration, as it required unanimous approval from all members to pass.
It is deeply disconcerting that, in the present day, LGBTQ+ rights remain a contentious issue. Fundamental rights for LGBTQ+ individuals are absent from a declaration that paradoxically proclaims, "We are One Earth, One Family, and we share One Future" in its preamble, emphasizing the necessity to "scale up financing from all sources for accelerating progress on SDGs.” LGBTQ+ individuals are not recognized as part of this "global family" within the declaration, despite their presence worldwide. A significant portion of the global LGBTQ+ population is compelled to conceal their identities, resulting in what researchers at the Yale School of Medicine have termed a "Huge Global Closet." Their study estimates that 83 percent of LGBTQ+ survey respondents fall into this category. Furthermore, the study highlights that in regions with some of the world's most stringent anti-homosexuality laws, such as the Middle East and North Africa, as well as Sub-Saharan Africa, the rates of LGBTQ+ individuals remaining closeted are alarmingly high, standing at 94.8% and 89.5%, respectively.
Regarding the Sustainable Development Goals (SDGs), two SDGs, SDG 5 and SDG 10, address gender equality and reduce global inequality. SDG 5 emphasizes the necessity of safeguarding the sexual and reproductive rights of women and ensuring that women and girls receive equal protection under the law by removing discriminatory legislation. Meanwhile, SDG 10 underscores the imperative of eliminating sex-based discrimination.
The Supreme Court of India has referenced the Yogyakarta Principles in two significant cases. In 2014, the Court addressed the legal status of transgender people in the National Legal Services Authority v. Union of India (NALSA), and in 2018, it addressed the constitutionality of an anti-sodomy law within India's criminal code in Navtej Singh Johar. vs. Union of India (Navtej).
While India is not a signatory to these principles, they hold immense importance in the realm of LGBTQ+ rights and are rooted in the application of International Human Rights law concerning sexual orientation and gender identity. They assert the fundamental duty of states to protect human rights and provide specific recommendations to ensure the safeguarding and promotion of these rights. These principles emerged following an experts' meeting held at Gadjah Mada University in Yogyakarta, Indonesia from 6th to 9th November 2006, where 29 distinguished experts from 25 countries unanimously adopted them. The Yogyakarta Principles serve as a universal guide to human rights, envisioning a future where all individuals, regardless of sexual orientation or gender identity, can enjoy their fundamental rights. While they are not legally binding, and there are no internationally negotiated treaties on LGBTQ+ rights, Miloon Kothari (India), UN Special Rapporteur on the right to adequate housing, is a signatory to these principles.
In NALSA, the Supreme Court ruled that gender identity is an integral part of an individual's personal identity, encompassing gender expression and presentation. Denying transgender persons equal protection under the law was deemed a violation of various articles of the Constitution, including Articles 14, 15, 16, 19, and 21. Similarly, in Navtej, the Court's rationale echoed these very same principles. It asserted that criminalizing homosexuality contradicted constitutional morality, and the existing anti-sodomy law infringed upon Articles 14, 15, 19, and 21 of the Constitution. Importantly, the concept of sex discrimination under Article 15 was expanded to encompass sexual orientation and gender identity as protected characteristics. Therefore, the denial of LGBTQ+ rights impedes the realization of SDG 10 per Indian law.
It is also worth noting that while India has endorsed the Yogyakarta principles, the policy positions of the Government in power and its recent opposition to marriage equality contradict these principles. Likewise, certain G20 members (China, Indonesia, and Turkey), despite being signatories to the principles, continue to uphold discriminatory LGBTQ+ laws, highlighting the intricate and challenging nature of LGBTQ+ rights advocacy on the global stage.
Religion and Inclusivity: Harmonizing Freedom of Religion with LGBTQ+ Rights
The final section of the Delhi Declaration, titled "Creating a more inclusive world," prominently addresses several key issues. It highlights the inclusion of the African Union into the G20, reaffirms the G20's commitment to supporting migrants, including migrant workers and refugees, and underscores the commitment to promoting respect for religious and cultural diversity, dialogue, and tolerance. The goal is to combat all forms of intolerance and discrimination based on religion or belief.
However, the Declaration overlooks a critical aspect – the intersection of religion or belief systems with the human rights of LGBTQ+ individuals in societal and political discussions. Not mentioning LGBTQ rights in this section might unintentionally lead to people assuming that such a conflict exists.
There have been instances where religious narratives have been intentionally misused to justify violence and discrimination. This is often in contrast to the core tenets of those faiths and outside the scope of the right to freedom of religion or belief, as noted by Victor Madrigal-Borloz, the UN Independent Expert on Protection against violence and discrimination based on sexual orientation and gender identity. This is why his report to the 53rd Session of the Human Rights Council argues for a reconciliation between religious beliefs and LGBTQ+ rights. Religion, as a flexible paradigm, does not inherently adopt fixed positions, and it is counterproductive to portray it as predominantly pro- or anti-LGBTQ. Instead, the report advocates for the availability of spirituality and faith to all individuals, including those with diverse sexual orientations and gender identities. Many people seek a sense of purpose in their lives, and for a significant portion of humanity, spirituality plays a fundamental role in this quest. Freedom of religion or belief (FoRB) serves as a safeguard to protect this aspect of human existence while also protecting the right to abstain from particular beliefs.
Harmonizing FoRB with LGBTQ+ rights would have rendered the Delhi Declaration a more comprehensive and robust document in terms of inclusivity. Although achieving consensus on this issue remains challenging due to the global divide on homosexuality, taking small steps, if not large ones, is imperative. A global commitment to decriminalization, for example, would represent a welcome and progressive move in line with the Sustainable Development Goals (SDGs) and the G20 theme of 'Vasudhaiva Kutumbakam,' Sanskrit for "The World Is One Family."
Another approach is to consider each issue individually, as seen in courts and legislatures across G20 nations. For instance, during the marriage equality hearings in India, the Hon’ble Supreme Court consolidated numerous petitions seeking recognition of non-heterosexual marriages under various marriage laws, both religious and secular. However, the court decided to limit its ruling to secular marriage laws. This approach aimed to balance the sentiments of those opposed to marriage equality on religious grounds while upholding the rights of LGBTQ+ petitioners who sought legal recognition of their marriages. Despite the ultimate ruling against the petitions, the Hon’ble Supreme Court emphasized that it was within the purview of Parliament to legislate on this matter, with the minority suggesting that Parliament should recognize LGBTQ+ unions if not full marriage.
Similarly, in the United States Congress, the Equality Act of 2019 was introduced in the 116th Congress on March 13, 2019, and it passed in the House on May 17, 2019, with 236 members in favor and 173 against. Notably, out of the 236 in favor, 228 were Democrats, and 8 were Republicans. Although the Act has yet to become law and the vote largely followed party lines, it did witness a small attempt to bridge the partisan divide. This is significant, given the content of the bill, which aims to prohibit discrimination based on sex, gender identity, and sexual orientation in various areas, including public accommodation, public education, federal funding, employment, housing, jury selection, by expanding the scope of the Civil Rights Act of 1964 to include sexual orientation and gender identity as additional protected grounds alongside race, color, religion, sex, or national origin.
These suggestions are illustrative of incremental strides towards a progressive alignment with the Sustainable Development Goals (SDGs) and the G20's vision of a united global community. They emphasize that while achieving a comprehensive consensus on the interplay between freedom of religion and LGBTQ+ rights remains a complex endeavor, it is crucial to acknowledge the ongoing discrimination and violence faced by LGBTQ+ individuals worldwide. In this context, taking measured steps to promote decriminalization and address these issues within different cultural and legal frameworks is paramount.
In an era marked by rapid social change, navigating the intricate intersection of religious freedoms and LGBTQ+ rights is no small feat. Nonetheless, it is a collective responsibility, one that requires global cooperation and thoughtful dialogues. As we strive for a more inclusive world, these suggestions highlight the potential for equality and respect for all individuals, irrespective of their sexual orientation, gender identity, or religious convictions. In the spirit of ‘Vasudhaiva Kutumbakam,’ which reminds us that the world is one family, the G20 ought to unite to build a fairer, more inclusive, and compassionate global community.
This article has been authored by Kanav N Sahgal, Project Manager at the Samvidhaan Fellowship and Communications Managar at Nyaaya. This blog is part of the RSRR’s Excerpts from Experts series.