Call for a nuance approach to disability rights by the UN

The Universal Declaration of Human Rights – which celebrates its 75^th anniversary this year – has served as the cornerstone for the development of provisions and protections afforded to citizens in many modern constitutions established after it.

While a large mass of the planet bears the stain of colonial exploitation – with its tendrils still affixed to conservative social and political structures – the pursuit of democracy has been guided by the principles of equality before the law for all persons such that no person is deemed a second-class citizen.

For persons with disabilities, however, many of these developments have continually overlooked their presence – more so in underdeveloped states. In a recent policy statement by the United Nations Independent Expert on Protection Against Violence and Discrimination Based on Sexual Orientation and Gender Identity, UN states have been urged to reframe the scope applied to upholding and defending Disability rights.

Looking over the histories of persons with disabilities across the globe, the common thread is that the original point of departure in classifying them has long been to see them as needing to be fixed. This violence from the onset has historically resulted in persons with disabilities being denied access to services such as education and legal justice. In his final days as the Independent Expert on Sexual Orientation and Gender Identity, Victor Madrigal-Borloz released four policy statements, including one reflecting on the status of violence and discrimination faced by persons with disabilities on these very grounds. This intersection is often disregarded.

Botswana is in a prime position to heed the recommendations made as it has recently brought into effect legal commitments covering both areas. In 2021, the Court of Appeal struck down the penal code statutes that criminalised consensual same-sex sexual activity. In the same year, Botswana ratified the Convention of the Rights of Persons with Disabilities after a long wait by civil society organisations and the communities they represent. Madrigal-Borloz partnered with the United Nations Special Rapporteur on the Rights of Persons with Disabilities, Gerard Quinn, to develop the advisory in a move to encourage holistic interventions as guided by the tenets of the United Nations.

In the report, they note that “persons with disabilities who are lesbian, gay, bisexual, trans and otherwise gender diverse often experience discrimination, face stigma, and suffer violence based on both their sexual orientation and/or gender identity, as well as their disability”, further noting that this is “an intersection in which perpetrators seek to negate their inherent dignity and equal participation in society”.

Prior to the decriminalisation ruling, lesbian, gay, bisexual and transgender (LGBTQ+) people couldn’t stand forward to be counted, as such there is no formal data on the community size. However, it would be presumptuous to assume that of the 70, 628 persons with disabilities accounted for by Statistics Botswana in 2014, none of them fall within the LGBTQ+ community. It is this very consideration that the Special Rapporteurs’ advisory encourages states, recognising barriers in access to education, healthcare, employment, and participation in public life.

The advisory boldly declares: “sexual pleasure and fulfilment must be available to LGBT persons with disabilities”, explaining: “a healthy sexual life includes receiving information, support, and care”. Yet, in many modern and traditionalist societies the subject matter of sex is often classified as taboo when not governed by moralistic or medical language. The Rapporteurs alert states that for persons with disabilities, “practices of correction or conversion and the denial of agency in decisions about their bodies, forced sterilization, and interventions – medical or otherwise – to which they are subjected” go against the provisions of the commitments they are signatories to.

In the advisory, they call for the development of appropriate joint and intersecting law and policy; public awareness campaigns to confront stigma; making public services, facilities and information accessible; collection of disaggregated data on this intersection to inform policy design; capacitation of law enforcement, healthcare, and psycho-social service providers in inclusive responsiveness; and that states “enact and enforce comprehensive anti-discrimination and hate crime laws that explicitly include disability, sexual orientation, and gender identity as protected characteristics” among others.

In the quarter century that it has existed, the Universal Declaration of Human Rights has been where civil society continues to return to in the hopes of reminding leaders of their states’ commitments to the inalienable rights afforded to all people. The progress has not been without resistance – much of which continues to result in costly violations on personal and national levels. With their advisory, the Rapporteurs encourage all parties to approach the human rights of persons with disabilities and LGBTQ+ persons as groups that are part of the rich and diverse fabric of human society – a valuable and just investment.