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are millions every year. At the root of these acts lies the intent to punish victims on the
basis of preconceived notions of what should be their sexual orientation or gender
identity.
88.
There is a plethora of actions that States can adopt to initiate the task of
eradicating violence and discrimination on the basis of sexual orientation and gender
identity. They include law reform, access to justice, public policy and administrative
actions. Moreover, good practices exist in all corners of the world.
IX. Recommendations
89.
To address violence and discrimination based on sexual orientation and gender
identity, States must adopt a combination of laws, policies and other measures tailored
to the specific context, taking into consideration how each community is distinctly
affected and how other factors may have a negative impact on the vulnerability of the
persons concerned. The Independent Expert recommends that these measures be
evidence-based, and that the relevant communities, people and populations, and civil
society organizations, effectively participate in their design and implementation.
90.
The Independent Expert recommends that States repeal laws that criminalize
consensual same-sex relations, gender identity or expression, and statements or
publications or actions that discuss or refer to the identity or expression of lesbian,
gay, bisexual, trans and gender non-conforming persons (so-called “anti-propaganda”
laws). States should moreover review other laws and policies that exacerbate police
abuse and harassment, extortion and acts of violence against people based on their
actual or perceived sexual orientation or gender identity, in particular, laws based on
public decency, morals, health and security, including beggary and loitering laws; and
laws criminalizing conduct seen as “indecent” or “provocative”, including laws
criminalizing sex work.
91.
In addition, States should ensure that the death penalty is not imposed as a
sanction for consensual same-sex relations.
92.
The Independent Expert recommends that States take all measures necessary
to prevent, investigate and punish acts of violence and discrimination based on sexual
orientation or gender identity perpetrated by the State and non-State actors,
regardless of whether the violence was committed in the public or the private sphere,
and provide reparations to victims of the said violence and discrimination.
93.
In addition, States should enact legislation on hate crimes that defines
homophobia, misogyny, biphobia and transphobia as aggravating factors for the
purposes of sentencing. The Independent Expert also encourages States to adopt
legislation in relation to hate speech on the grounds of sexual orientation or gender
identity, and to hold to account those responsible, including political or religious
leaders.
94.
The Independent Expert calls upon States to develop comprehensive datacollection procedures in order to be able to assess uniformly and accurately the type,
prevalence, trends and patterns of violence and discrimination against lesbian, gay,
bisexual, trans and gender non-conforming persons. Data should be disaggregated by
communities, but also by other factors such as race, ethnicity, religion or belief,
health, status, age, class, and caste, or migration or economic status. The data should
then inform the policies and legislative actions of States with a view not only to
prevent further acts of violence and discrimination but also to address gaps in
investigations, prosecution and the remedies provided. In order to prevent the misuse
of collected data, States should follow a human rights-based approach to data, taking
into consideration the principles of participation, self-identification, privacy,
transparency and accountability. The overriding human rights principle of “do no
harm” should always be respected.81
95.
81
The Independent Expert also recommends that States:
OHCHR, A Human Rights-Based Approach to Data: Leaving No One Behind in the 2030 Agenda for
Sustainable Development, 2015.
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