Sep 7, 2018

This article critically assesses a recent study on sexual orientation and gender identity (SOGI) prepared by the Organization for Islamic Cooperation’s (OIC) Independent Permanent Human Rights Commission (IPHRC). The first two parts review the establishment of the IPHRC and the norms governing regional human rights mechanisms (RHRMs). Following this, the article demonstrates that the methodology and conclusions evidenced in the IPHRC’s SOGI study diametrically oppose substantive international human rights law, and furthermore undermine the intended purpose of RHRMs within the human rights system. The article concludes by recommending that human rights advocates and others clearly and publicly call out these incompatibilities, set baselines for necessary corrections, and work to develop meaningful, binding standards for RHRMs. Among other things, these standards should ensure that similar bodies orient their activities to promoting and protecting international human rights rather than undermining them.

Introduction 

I. The OIC's Independent Permanent Human Rights Commission (IPHRC)

II. International Norms Applicable to Regional Human Rights Mechanisms

III. IPHRC Study on SOGI in Light of Islamic Interpretations and International Human Rights: Undercuting the RHRM System and Universal Human Rights 

Conclusion

Introduction

A variety of present day institutions and mechanisms help inform the development of international human rights norms. Likely familiar to most are the human rights institutions based out of the United Nations (UN) that include, for example, the UN Human Rights Council (UNHRC).^[1] Alongside these international mainstays, the past seventy years has seen the proliferation of hundreds of perhaps less familiar national and sub-national human rights institutions (NHRIs) across the globe.^[2] In addition, regional human rights mechanisms (RHRMs) such as the European Court of Human Rights have similarly taken root.^[3] In certain cases, these mechanisms have helped to further build out an interconnected web of human rights norm development and implementation.^[4] However, it remains unclear whether in undertaking their activities all these national and regional institutions equally share the underlying common objective of strengthening respect for international human rights norms.

In raising this possibility, the following article presents a case study that critically assesses a recent report on sexual orientation and gender identity (SOGI) prepared by the Organisation for Islamic Cooperation’s (OIC)^[5] Independent Permanent Human Rights Commission (IPHRC).^[6] After briefly discussing the IPHRC’s establishment, the article outlines the norms governing regional human rights mechanisms. It then proceeds to demonstrate that the methodology and conclusions evidenced in the IPHRC’s SOGI study diametrically oppose substantive international human rights law. As an outgrowth of this, the study itself undermines the intended purpose of RHRMs within the human rights system. Consequently, the article concludes that human rights advocates, concerned states, and others should clearly and publicly call out this incompatibility, set baselines for necessary corrections, and work to develop meaningful, binding standards for RHRMs.^[7] Among other things, these standards should ensure that RHRMs orient their activities to furthering the overarching objective of promoting and protecting international human rights rather than undermining it.

I. The OIC’s Independent Permanent Human Rights Commission (IPHRC)

Established in 2011, the IPHRC embodies the OIC’s most significant and tangible engagement to date with the development and implementation of human rights norms.^[8] The formal origins of the OIC’s human rights commission trace back over a decade. Several notable milestones help mark its evolution from idea to reality. In 2005, the OIC’s first Ten Year Program called on member states to “consider the possibility of establishing an independent permanent body to promote human rights in the Member States, in accordance with the provisions of the [OIC’s 1990] Cairo Declaration on Human Rights in Islam” (CDHRI).^[9] Three years later, the revised OIC Charter of 2008 solidified this intention by recognizing a new official OIC organ—the Independent Permanent Human Rights Commission (IPHRC).^[10] The Charter also authorized the IPHRC’s mandate to “promote the civil, political, social and economic rights enshrined in the organisation’s covenants and declarations [presumably including the much-criticized CDHRI]^[11] and in universally agreed human rights instruments, in conformity with Islamic values.”^[12]

Three years after its initial endorsement, the 38th session of the OIC’s Council of Foreign Ministers (CFM) officially gave life to the new human rights commission.^[13] Acting under Resolution 2/38-LEG, the CFM adopted the IPHRC’s statute and authorized the Commission to commence its operations.^[14] According to then Secretary General Ekmeleddin Ihsanoglu, the new body would serve to “boost OIC’s credibility in the eyes of the outside world, helping to increase the confidence of the OIC.”^[15] In his view, the event was nothing short of momentous:

It is only appropriate that a year marked by popular uprising in different parts of the Muslim world against injustice, corruption and abuse of power should conclude with the landmark establishment of a Human Rights Commission duly equipped with a progressive vision and mandate.^[16]

By requiring the IPHRC to promote the rights enshrined in the Cairo Declaration,^[17] however, the OIC effectively blanketed its new Commission in the CDHRI’s relativistic shadow. This move also signaled the OIC’s desire to use the IPHRC to further shape the Cairo Declaration’s aspirations into legally binding norms.^[18] In addition, the OIC took measures to ensure the IPHRC would promote the organization’s priorities. From the IPHRC’s outset, men have dominated its membership, despite the IPHRC statute specifically encouraging the nomination of women.^[19] Commissioners elected to date also demonstrate an inconsistent—and in some cases non-existent—level of human rights expertise.^[20] Finally, the IPHRC statute’s unusual requirement that the OIC Secretary General manage the task of hiring IPHRC staff^[21] further underscores the IPHRC’s dearth of functional independence.^[22]

Despite these foundational shortcomings, several scholars initially praised the commission’s establishment, and expressed hope that it could operate as an independent and effective human rights mechanism.^[23] However, more than five years into the IPHRC’s mandate, this optimism is misplaced. The IPHRC has embraced its primary function as a validator for the OIC’s relativist and revisionist perspective on human rights.^[24] As the following analysis evidences, the IPHRC’s asserted position on SOGI presents a frontal challenge to the promise of universal human rights,^[25] mirroring and reinforcing OIC opposition to SOGI recognition.^[26] Equally concerning, the dissemination of this position is antithetical to the intended purpose of regional human rights mechanisms. Rather than contribute to the protection and promotion of the universal human rights system, the IPHRC appears singularly focused on deflecting potential international criticism of OIC members by furnishing the organization with dubious human rights analysis driven by a disregard for international human rights norms.

II. International Norms Applicable to Regional Human Rights Mechanisms

The international community has long recognized that national human rights institutions (NHRIs) are positioned to play a “significant role ... at the national level ... in promoting and protecting human rights and fundamental freedoms.”^[27] The desire to enlist nation-states in the enterprise of promoting and protecting these norms can be traced at least as far back as the establishment of the UN.^[28] In June 1946, the UN Economic and Social Council (ECOSOC) adopted Resolution 9(II), which conveyed a sweeping mandate to the organization’s nascent Commission on Human Rights.^[29] Notably, this resolution also invited UN member states “to consider the desirability of establishing information groups or local human rights committees within their respective countries to collaborate with them in furthering the work of the Commission on Human Rights.”^[30] Thus, from the outset of the modern human rights era, the UN considered NHRIs integral to the effective promotion of international human rights, and moreover, a vital partner in achieving the objective of “implementation ... of an international bill of rights.”^[31]

This recognition did not occur in a vacuum; individual states as well as the UN gradually came to recognize an equally significant role for regional and subregional human rights arrangements in achieving the same overarching objective.^[32] Since then, the number of regional mechanisms has steadily proliferated to cover large parts of the globe, though to varying degrees.^[33] States participating in the landmark 1993 World Conference on Human Rights acknowledged in the Vienna Declaration and Programme of Action (VDPA) that “[r]egional arrangements play a fundamental role in promoting and protecting human rights” and “should reinforce universal human rights standards, as contained in international human rights instruments.”^[34] The VDPA further recommended that additional resources be provided to strengthen or establish such regional arrangements.^[35]

Since the World Conference, the UN has consistently reaffirmed this message of promotion, protection, and reinforcement across all human rights mechanisms.^[36] Most recently, the UN Human Rights Council tasked the UN Office of the High Commissioner for Human Rights (OHCHR) with preparing a report detailing the “progress made in the establishment of regional and subregional arrangements for the promotion and protection of human rights,” including their achievements “in all regions of the world,” and identifying “ways to increase the role that regional arrangements play in promoting and protecting human rights and [reinforcing] universal human rights standards, including as contained in international human rights instruments.”^[37]

To illustrate the extent to which the IPHRC has untethered itself from fulfilling the role intended for RHRMs, the following section offers a critical analysis of its recently published “Study on Sexual Orientation and Gender Identity in the Light of Islamic Interpretations and International Human Rights Framework.”[38] This analysis will demonstrate not only the IPHRC’s failure to promote and protect human rights, but also its active effort to undermine international human rights standards.

III. IPHRC Study on SOGI in Light of Islamic Interpretations and International Human Rights: Undercutting the RHRM System and Universal Human Rights

As part of the OIC’s opposition to extending human rights protections on the basis of sexual orientation and gender identity (SOGI),^[39] the organization issued a resolution in 2016 instructing the IPHRC to examine the issue “in the light of Islamic and human rights framework and present its recommendations to the CFM [OIC Council of Foreign Ministers].”^[40] The IPHRC released its final study, “Sexual Orientation and Gender Identity in the Light of Islamic Interpretations and International Human Rights Framework,” in May 2017.^[41]

    Despite its sweeping title, the ten page document (containing thirty-four footnotes) departed from the narrower assumption that “the institution of marriage is under assault by those who are attempting to radically redefine it to include the ‘union of any two persons’ i.e. ‘same-sex unions.’”^[42] By framing its report this way, the IPHRC effectively sidestepped any real engagement with the fundamental underlying legal issues relating to the denial of non-discrimination and equality in the context of SOGI.^[43] Instead, it directed its focus primarily to the narrow question of same sex marriage and the perceived “disastrous consequences of this suicidal social experiment” that threatens to inevitably render traditional family values “extinct.”^[44] To further set the stage, the report observed:

If the tendency to redefine the concept of traditional (heterosexual) marriage is not resisted and fallacies of ‘sexual orientation’ are not exposed, there is a real danger that other groups, citing genetic predisposition claims, would also be encouraged to demand legalizing incest, bestiality and other such deviant sexual behaviors ... as a matter of ‘human right’.^[45]

The IPHRC report begins by making several sweeping assertions. First, it assembles a brief mishmash of quotations to argue that “Judaism, Christianity, and Islam view homosexuality as sinful and detestable.”^[46] But drawing such a facile assertion ignores the very real interpretive nuance and complexity surrounding religious sources and practice. For example, within Judaism alone, the Reform movement “has a long and proud history of working for the full inclusion of LGBTQ (Lesbian, Gay, Bisexual, Transgender, Queer, and Questioning) people in Jewish life and for their full civil rights.”^[47] Similarly, the Conservative/Masorti movement’s Rabbinical Assembly has resolved that despite a “wide spectrum of views” surrounding sexual identity in Jewish law, it stood “united in our opposition to discrimination against anyone based on sexual identity and in our commitment to make our synagogues and our community more welcoming and safe places for all.”^[48] Orthodox streams of Judaism such as Chabad assert that Jewish law prohibits homosexuality but simultaneously prohibits homophobia;^[49] while other Orthodox Jewish movements are engaging with SOGI activists on “tolerance and inclusivity surrounding LGBTQ issues within the religious community.”^[50] Finally, at the other end of this spectrum, certain prominent voices within the Orthodox community continue to contend that homosexuality represents “a cult of abomination. It is clear that it is abomination. The Torah punishes it with death. There is no such thing as having understanding or tolerance for this.”^[51]

 A similar spectrum of interpretive nuance is evident across the various Christian faiths.^[52] Moreover, the recent rise in gay-friendly Muslim prayer spaces testifies to a parallel diversity of views within Islam that stands at odds with the IPHRC’s monolithic departure point. For example, the El-Tawhid Juma Circle/ETJC (Toronto Unity Mosque) defines itself as “a gender-equal, LGBTQI2S affirming, mosque, that is welcoming of everyone regardless of sexual orientation, gender, sexual identity, or faith background.”^[53] Its model as a place “of ritual and spiritual healing for everyone” has “inspired, resourced and/ or helped establish 9 similar communities in North America.”^[54] In the United States, Imam Daayiee Abdullah, likened to “the Harvey Milk of gay Muslim leaders in America” established the Light of Reform mosque in 2011.^[55] The first openly gay imam in the Americas, Abdullah reasons his approach is

not something that’s new. It’s just like reform and revival within Islam, about every 100, 150 years there have been these discussions and there have been people who have opposed the status quo on these issues.... So it’s not something that I’m just coming up with as a modern Islamic scholar, but something that has been in existence since time immortal.^[56]

In Africa, Imam Muhsin Hendricks believes the Muslim “call to prayer should welcome all Muslims, including gay Muslims.”^[57] His mosque in Cape Town is committed to “establish[ing] a movement that can respond to patriarchy and Islamic extremism.”^[58] The Open Mosque, also in Cape Town, shares a similar—if less progressive— emphasis on reconciling Islam with contemporary values. Its founder, Taj Hargey, reasons that “the Qur’an says quite clearly that homosexuality is a sin, but it does not say that you should punish people. It is for God to make that judgment.”^[59] Hargey would not preside over a same sex marriage but accepts civil partnerships: “It’s just that marriage to me is defined by the Qur’an as a man and a woman.”^[60]

The founder of the first inclusive gay-friendly Muslim prayer space in Europe reasons “Islam is not a totalitarian fascist identity. You should not use Islam to justify your prejudices and try to control the sexuality and gender of individuals.”^[61] A similar motivation underpins the more recently opened Ibn Rushd-Goethe Mosque in Berlin. Its cofounders intended the prayer space “to send a signal against Islamic terror and the misuse of our religion”^[62] and “to offer a place to worship to all people that do not feel at home in the existing mosques, to women that seek equal rights ... to homosexuals and primarily to all separate [Muslim] denominations.”^[63]

Efforts parallel to those noted above have taken root or are underway elsewhere, including in Australia,^[64] Norway,^[65] the United Kingdom,^[66] and Pakistan.^[67] These approaches, however, are not without their detractors. For example, some Muslims protested the opening of Cape Town’s Open Mosque, and the president of South Africa’s Muslim Judicial Council (MJC) told Muslims “to absolutely refrain from attending the so-called ‘Open Mosque’ based on their interpretation of aspects of Islam that clearly contradict Qur’anic and Prophetic directives as well as centuries of Islamic scholarship.”^[68] In a more extreme example, Dar al-Ifta, an institution tasked with issuing fatwas and affiliated with Egypt’s Ministry of Justice,^[69] denounced the Ibn Rushd-Goethe Mosque as extremist and violative of Islamic law.^[70] Together with this, Berlin’s State Office of Criminal Investigations concluded that death threats targeting one of the mosque’s cofounders necessitated German police provide “round-the-clock protection.”^[71]

The IPHRC’s sweeping assertion that the primary monotheistic faiths consider homosexuality sinful and detestable likewise disregards global efforts by various Jewish, Christian, and Muslim organizations to welcome LGBTQ co-religionists, embrace their equality and value as human beings, and advocate for a progressive and inclusive religious vision. For example, Muslims for Progressive Values, a United States-based NGO with consultative status at the UN, endorses “the human and civil rights of lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI) individuals” and is “committed to ending discrimination based on sexual orientation and gender identity.”^[72] Similarly, the Alliance of Inclusive Muslims (AIM), a “collective of progressive Muslims across all nationality, race and sectarian affiliation,” seeks “to challenge theological justifications for hate and supremacism” with what it describes as “progressive values ... inherent in Islam.”^[73] Among its priorities, AIM advocates for human rights and dignity, including “the recognition of each individual’s equal worth in society and equal protection under the law.”^[74]

Ignoring this type of activism, which can build inroads into the larger faith community and drive a path towards greater recognition of the need for inclusion and support,^[75] paints a distortive picture of religious views in theory and practice. As Scott Siraj al-Haqq Kugle observes, these Muslim activists are distilling “the ideals of Islam ... from the traditional forms of the religion and rework[ing] [them] into a new form that accepts more social pluralism and individual rights, including diversity in sexual orientation and gender identity.”^[76]

Second, the IPHRC report claims “[t]here is a consensus among Islamic scholars that human beings are naturally heterosexual.”^[77] Yet the authors provide no citation or reference to scholars consulted to validate this finding.^[78] More directly, this asserted consensus is at odds with the growing body of scholarship that testifies to an alternative approach to Islamic sources. For Kecia Ali, the emergence of this approach has been slow in coming because progressive voices “have been reluctant to enter into serious conversations about Islamic law, which is generally seen as the realm of more conservative scholars. Partially as a result of this hesitancy, discussions of Islamic law today tend to reflect on different degrees of conservatism and fundamentalism.”^[79] Even with this hesitancy, a lineage of progressive Muslim scholars who are steeped in Islamic sources have already validated the possibility of faithfully interpreting these sources to comport with international human rights norms. For example, Dr. Khaled Abou El Fadl has concluded that “the commitment to human rights does not signify a lack of commitment to God, or a lack of willingness to obey God. Rather, human rights become a necessary part of celebrating human diversity, honoring the vicegerents of God, achieving mercy, and pursuing the ultimate goal of justice.”^[80] Ebrahim Moosa has put this challenge more bluntly: “The success of a modem Islamic human rights theory depends on the extent to which modem Islamic thought would be open to a revisionist or reconstructionist approach in philosophy and ethical orientation.”^[81] Producing this “credible version of human rights in dialogue with both the tradition and the present,” demands Muslim jurists and scholars “acknowledge that quantum shifts have occurred” in a range of categories, including “human society and our inherited conceptions of ‘self’ and ‘other.’”^[82] In Moosa’s words, facilitating this dialogue will require nothing less than “a fundamental rethinking.”^[83]

This fundamental rethinking is already occurring despite the IPHRC’s insistence that a consensus against homosexuality exists. For example, self-described “progressive Muslim” scholars, such as Omid Safi, assert a “determination to hold Muslim societies accountable for justice and pluralism” by “exposing the violations of human rights ... and the right to dissent in Muslim countries ... [and] embracing and implementing a different vision of Islam than that offered by Wahhabi and neo-Wahhabi groups.”^[84] As explained by Adis Duderija, this approach seeks “to weave the ethos and the culture of human rights discourse into the social and cultural fabric of Muslim-majority societies in order for those rights to be more effectively realized in the political and legal realms of these societies.”^[85]

In a similar vein, Scott Siraj al-Haqq Kugle calls for a revived “Islamic humanism” to “encourage reform of Islamic law as a framework for ethical living in creative engagement with modern conditions.”^[86] In Kugle’s assessment, an “honest and subtle examination” of Islamic religious beliefs on sexuality and its diversity “reveals more ambiguities than the defenders of ‘orthodoxy’ care to admit.”^[87] Correcting this lacuna demands “a deep reform of Islamic belief and action”^[88] that can be derived from a “sexually-sensitive” interpretation of the Koran able to account for the reality of sexuality and sexual orientation among Muslims:

[This] interpretation would be explicitly non-patriarchal. It would not presume patriarchal values of male supremacy; it would not assume that all readers of Qur’an are (or should be) heterosexual in orientation. It would avoid imposing ideas of human nature that are obsolete (such as medieval Muslim assumptions...). In this sense, sexuality-sensitive interpretation of the Qur’an would complement and support gender-sensitive interpretation of the scripture ... as well as race-sensitive and class-sensitive interpretations.^[89]

Applying this type of interpretive approach to Islamic sources generates outcomes that challenge the IPHRC’s alleged consensus and may even serve to validate the recognition of same-sex marriage under Islamic law. To this point, a recent study by Junaid Jahangir and Hussein Abdullatif argues that the predominant Muslim “position on same-sex unions is not based on express texts but derived on the basis of analogy and alleged consensus, both of which are contested branches of Islamic knowledge.”^[90] Jahangir and Abdullatif posit that these same sources “can be marshaled to affirm gender and sexual diversity.”^[91]

Finally, the introduction to the IPHRC’s report also makes the unsubstantiated claim that “instances of people being punished for homosexual transgressions ... [in Muslim society] are exceedingly rare.”^[92] However, this too is not borne out by reality. For example, in 2015, multiple UNHRC mandate holders communicated an urgent appeal to the government of Egypt concerning its alleged arbitrary “arrest, detention, torture, and public stigmatization of 26 men who are being tried on charges related to their alleged sexual orientation.”^[93] Among other things, the UN mandate holders sought information related to:

*“allegations indicating that the 26 men were subjected to forensic anal examinations upon the request of the prosecutor, and ... [how such treatment] complies with Egypt’s obligations under international human rights law and standards;”^[94] and

*“the measures taken by the authorities to protect lesbian, gay, bisexual and transgender persons in Egypt from arbitrary arrest and detention, violence and discrimination on the grounds of their sexual orientation and/or gender identity.”^[95]

Following the state’s blanket denial, the Special Rapporteur on Torture criticized the Egyptian government’s failure to address the “larger question of whether persons in Egypt are treated in humiliating manner when detained and investigated about their real or alleged homosexuality.”^[96] In a report to the Human Rights Council, the Rapporteur concluded that Egypt had violated its Convention Against Torture obligations “by failing to protect the physical and psychological integrity” of the men arrested and tried for their alleged sexual orientation.^[97]

Similar mass arrest and trial incidents have occurred in other OIC states, including Bangladesh^[98] and Nigeria.^[99] More generally, OIC member-states predominate the list of countries where homosexuality may be punishable by death,^[100] and many other OIC states still criminalize homosexuality.^[101] Thus, even if not actively enforced, the specter of severe punishment still looms over the LGBT communities in these countries.^[102] Indeed, even where homosexuality is not per se illegal, “gay men and women are nonetheless persecuted, arrested, and in some cases murdered.”^[103]

The IPHRC’s sweeping oversimplifications regarding religious doctrine and state practice is followed by a four-paragraph section entitled “Homosexuality according to scientific research.”^[104] It would be an impressive feat for a study to consolidate and summarize all the available scientific research addressing sexual orientation in four paragraphs. But contrary to the section’s bold title, the IPHRC study does not attempt such a task. The section provides no direct citations to scientific research relating to sexual orientation. Instead, it relies on four footnotes—including one to Time magazine, one to lifesitenews.com (a website that believes “respect for life and family are endangered by an international conflict ... caused by secularists attempting to eliminate Christian morality and natural law principles”, and that “homosexuality and all other moral, life and family issues are all interconnected in an international conflict affecting all nations”),^[105] and another citation to a study on schizophrenia.^[106]

In place of a measured consideration of relevant scientific research, this section of the report proceeds by taking note of the American Psychological Association’s (APA) 1973 decision to remove homosexuality from its Diagnostic and Statistical Manual of Mental Disorders (DSM),^[107] and then approvingly citing to conversion therapy advocate Nicholas A. Cummings.^[108] The IPHRC invokes Cummings for the proposition that the APA “has been taken over by ‘ultraliberals’ beholden to the ‘gay rights movement’ who refuse to allow an open debate on reparative therapy for homosexuality.”^[109] Here, the IPHRC concludes that the “role of biological factors in the development of human sexual orientation remains a widely debated controversial topic.”^[110]

Endorsing conversion therapy and boosting Cummings in a section focused on scientific research seem questionable choices for a human rights commission. The validity of conversion therapy has come under increasing legal scrutiny for the harm it may inflict.^[111] For example, following visits to Malaysia in 2015 and Indonesia in 2017, the UN Special Rapporteur on the right to health condemned such treatment as “unacceptable from a human rights perspective,” “unscientific,” and responsible for serious negative impacts on the mental health and well-being.^[112]

Furthermore, Cummings’ own sworn affidavit submitted in defense of Jews Offering New Alternative for Healing (JONAH), a now-defunct U.S.-based conversion therapy group, failed to prevent a court from awarding summary judgment against the organization for misrepresenting homosexuality “as being a mental illness, disease [or] disorder.”^[113] Indeed, the court outright rejected the admissibility of testimony from no fewer than five of JONAH’s expert witnesses on similar grounds: “Each of JONAH’s experts proffers the opinion that homosexuality either is a disorder or is not a normal variation of human sexuality. Because the generally accepted scientific theory is that homosexuality is not a mental disorder and not abnormal, these opinions are inadmissible.”^[114]

To further substantiate its claim that a greater “open debate” is required concerning the mutability of sexual orientation and the validity of conversion therapy, the IPHRC report points to a 2012 Time magazine article that discusses an academic study on the potential connection between epigenetics and sexual orientation.^[115] From this second-hand extrapolation proffered in isolation from a larger and more complex body of scholarly research,^[116] the IPHRC implies scientific research is sufficient to show that homosexuality is not hereditary, but rather originates with changes to epigenetic marks that are presumably impacted by changeable environmental factors.^[117] In other words, if environmental factors influence sexual orientation, surely homosexuality is not immutable or rooted in biological factors, and therefore is not justifiably subject to human rights protection.^[118]

The reality, however, is far less clear cut. Sexual orientation still appears tied to biology, and in any case, dismissing a biological link does not operate to similarly dismiss the overarching necessity of respecting international equality and non-discrimination principles, including on the basis of SOGI. A cursory review of the scientific literature confirms as much. For example, two recent studies offered the following conclusions: First,

[n]o causal theory of sexual orientation has yet gained widespread support. The most scientifically plausible causal hypotheses are difficult to test. However, there is considerably more evidence supporting nonsocial causes of sexual orientation [i.e. genetics] than social [or environmental] causes [such as early sexual experiences and cultural acceptance of non-heterosexuality].^[119]

Second, “sexual orientation is largely influenced by biological factors (hormonal, genetic, epigenetic) acting mostly during the early stages of ontogeny and probably interacting with later social interactions.”^[120]

This section of the IPHRC’s study concludes with the sole direct reference to scientific research; however, it concerns the unrelated subject of schizophrenia, rather than sexual orientation.^[121] Again ignoring the preponderance of scientific evidence that rejects the assertion homosexuality is a “mental condition,” the report attempts to draw an analogy between homosexuality and schizophrenia, a “complex, debilitating psychiatric disorder.”^[122] The IPHRC describes schizophrenia as a “mental condition” with “known genetic predispositions.”^[123] Further, it asserts that despite the disease’s “genetic predisposition,” society does not accept the “behavioral anomalies” that flow from the disease.^[124] Instead, those suffering from the illness “are provided medical treatment either voluntarily or at times even forced to receive treatment.”^[125] The implication is clear: like schizophrenia, homosexuality ought to be regarded as a mental disease. Those “suffering” must be treated—whether voluntarily or involuntarily—in the name of protecting society from homosexuality’s “behavioral anomalies.”^[126] This inference brings the IPHRC to its main point, that ultimately, science does not matter: “Muslims, based on their overt religious beliefs and traditions, are duty bound to protect and promote the social institution of marriage and family.”^[127] And while “they have no specific animus against the homosexual individuals,” their “detestable sexual behavior” runs contrary to Islam and thus cannot be tolerated.^[128]

The IPHRC’s study next turns to identifying reasons for protecting the OIC’s vision of “traditional” family. This section argues that permitting same sex marriage would undermine the fundamental purpose of marriage as a “social institution” and cheapen “the purpose of marriage from procreation to mere adult sexual gratification.”^[129] In the IPHRC’s view, “the growing trend of confusing the definition of family with new and controversial notions of LGBT families”^[130] is at odds with the Koran’s “good society,” which can “only be achieved through the marriage between man and woman as husband and wife.”^[131] However, this narrow vision of family stands in opposition to recent findings presented by the UN’s Office of the High Commissioner for Human Rights (OHCHR). In a report addressing government efforts to protect the family, the OHCHR determined that states must “recognize the diverse and changing forms of the family institution.”^[132] The report concluded that any protection measures intended for the family “should be guided by basic human rights principles, including equality and non-discrimination, and by respect for the rights of individual family members, notably those who might find themselves in a situation of vulnerability.”^[133]

Despite this OHCHR guidance reiterating the critical importance of upholding equality and nondiscrimination for all individuals, the IPHRC study purports to highlight homosexuality’s “negative impact on society”^[134] as a means of further justifying its religion-based defense of traditional marriage. To do so, the IPHRC cites to defunct anti-gay marriage organizations,^[135] endorses statements from leaders of recognized hate groups,^[136] makes unsubstantiated claims, and again distorts scientific evidence. These latter two flaws are particularly egregious and merit greater exposition.

In the first instance, the IPHRC study claims—without substantiation—that “[w]hen rights for same-sex couples are expanded and enforced, freedom of expression, thought, conscience, religion and belief are threatened as citizens are coerced to accept and act against their conscience and belief.”^[137] The report offers no concrete examples to back up this claim nor does it recognize or engage in any type of rights-balancing analysis that likely would be required under such a scenario.

As another example, the IPHRC asserts—again without substantiation—numerous “well-documented” and “negative outcomes associated with the homosexual lifestyle,” including a higher “involvement with pedophilia.”^[138] This contention appears to trace back to a long-discredited social science study published by Paul Cameron, a psychologist once described as “the most dangerous antigay voice in the United States.”^[139] Cameron’s primary conclusion alleged “those who are bi- to homosexual are proportionately much more apt to molest youth.”^[140] However, scholars refuted the veracity of this conclusion by questioning Cameron’s methodologies as well as his findings. Among others, Professor Gregory Herek found Cameron’s study made “puzzling” assumptions that suggested “inattention by the author to the literature he himself claimed to have reviewed.”^[141] Herek also found that Cameron failed to explain the derivation of statistical data produced, and manipulated data “to increase further his estimate of the risk posed to children by homosexual/bisexual men.”^[142] Beyond questionable methodologies and misrepresented data,^[143] numerous subsequent studies also directly contradicted Cameron’s findings. One such study, conducted by Toronto’s Clarke Institute of Psychiatry and based on phallometric testing, concluded:

[T]he erotic attractiveness of male children (or pubescents) for androphiles [gay men] is not greater than the erotic attractiveness of female children (or pubescents) to gynephiles [heterosexual men]. Thus there must be another reason for [Cameron’s] finding ... those who blame androphiles for the relatively larger incidence of sexual offenses against male children, compared the incidence of sexual offenses against female children must come up with a reasonable explanation of why these offenses are not actually perpetuated by pedophiles.^[144]

Another study that reviewed 269 cases of child abuse by an adult found “there were only two children (0.7%) where the offender was identifiable as potentially homosexual or lesbian.”^[145] The authors concluded “no evidence is available from this data that children are at greater risk to be molested by identifiable homosexuals than by other adults. There is no support for the claim to this effect by groups advocating legislation limiting rights of homosexuals.”^[146] As Herek has summarized, current “empirical research does not show that gay or bisexual men are any more likely than heterosexual men to molest children.”^[147] Rather, “[o]ne individual has claimed to have data that prove homosexuals to be child molesters at a higher rate than heterosexuals. That person is Paul Cameron.”^[148]

From this, readers of the IPHRC report are left to wonder: Did the IPHRC simply forgo an authoritative citation to validate its claim concerning pedophilia because contemporary research rejects such a claim? Or did the omission stem from wanting to perpetuate the misinformation while avoiding the obvious faux pas of directly endorsing a discredited study by an author who has been expelled from the American Psychological Association, denounced by the American Sociological Association (ASA) for “consistently misinterpret[ing] and misrepresent[ing] sociological research on sexuality, homosexuality, and lesbianism,”^[149] and identified by the Southern Poverty Legal Center (SPLC) as an “infamous anti-gay propagandist whose one-man statistical chop shop, the Family Research Institute, churns out hate literature masquerading as legitimate science”?^[150]

In addition to not backing up its assertions, the IPHRC report also distorts scientific evidence for its own ends. For example, the report misleadingly cites a 2001 article published by Judith Stacey and Timothy J. Biblarz to validate its claims that “children reared by same-sex couples fare worse ... than those reared by heterosexual, married couples” and are “at increased risk for mental health problems, including major depression, anxiety and conduct disorders.”^[151] In actuality, Stacey and Biblarz confirm that the existing academic research “almost uniformly” finds “no notable differences between children reared by heterosexual parents and those reared by lesbian and gay parents, and ... finds lesbigay parents to be as competent and effective as heterosexual parents.”^[152]

Further, Stacey and Biblarz find the outlier research arguing that “gay parents subject children to disproportionate risks”^[153] unconvincing and fueled by authors such as Cameron who “subscribe to the view that homosexuality represents either a sin or a mental illness.”^[154] The authors conclude that this agenda-driven research “offer[s] only limited, and often implicit, theoretical explanations for the disadvantages of same-sex parenting,” and that “[t]he deeply rooted hetero-normative convictions about what constitutes healthy and moral gender identity, sexual orientation, and family composition held by contributors to this [outlier] literature hinders their ability to conduct or interpret research with reason, nuance, or care.”^[155]

Even with this section’s notable flaws, the IPHRC’s arguments surrounding SOGI still fail to move beyond marriage to address the larger human rights implications that flow from denying equality and non-discrimination in contexts such as freedom of assembly, the right to health, and freedom from torture and other inhuman treatment.^[156] When the study does turn to directly deal with international human rights norms, the IPHRC simply parrots familiar OIC positions instead of providing independent, objective or reasoned justifications for its position in the context of international human rights.^[157]

The IPHRC’s first recycled OIC argument claims that recognition of equality and nondiscrimination on the basis of SOGI would misinterpret the Universal Declaration on Human Rights (UDHR) and international treaties “to include notions that were never articulated or agreed.”^[158] In making this assertion, the IPHRC fails to engage with the UDHR’s foundational language that “[a]ll human beings are born free and equal in dignity and rights.”^[159] It similarly fails to account for the standing practice of framing treaty-based human rights protections to include “other status[es],”^[160] a purposeful legal formulation intended to ensure that enumerated protected classes would be taken as “open-ended and illustrative,”^[161] rather than narrow and restricted.^[162] In addition, the IPHRC fails to explain away the hypocrisy overhanging its rejection of SOGI protection on the basis that “[t]here is even no agreement on the term of ‘sexual rights’ least to mention sexual orientation or preferences, which are far more vague concepts.”^[163] This claim is particularly misguided given the OIC’s continued assertion of a vague and undefined international norm prohibiting defamation of religion,^[164] which the IPHRC has readily endorsed.[165]

Second, the IPHRC adopts the OIC’s misleading interpretation of the VDPA,^[166] despite that document representing “the culmination of a long process of review and debate over the current status of human rights machinery in the world.”^[167] Mirroring the OIC, the IPHRC suggests that the VDPA prioritizes “respecting diversity, national and regional particularities and various historical, cultural and religious backgrounds” over individual human rights.^[168] However, while the VDPA calls for bearing in mind the significance of religious and other particularities, it does so only in the context of prioritizing “the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.”^[169] In other words, while bearing in mind various particularities, the VDPA maintains that states have a duty not merely to “consider” human rights, but actually to “promote and protect” them, rather than restrict or impinge them.^[170]

The IPHRC’s framing of the VDPA is particularly egregious considering how forcefully the international human rights community has refuted such misappropriations. Writing in the late 1980s, scholar Abdullah An-Na’im concluded “no cultural relativist argument may be allowed to justify derogation from the basic obligation to uphold and protect the full human rights of religious minorities, within the Islamic or any other cultural context.”^[171] Surely, the same underlying principles would hold true in the context of SOGI. Indeed, confronted by a similar OIC assertion during a UN interactive dialogue on SOGI, Hila Jilani, the Pakistani human rights activist and former Special Representative of the UN Secretary General on Human Rights Defenders, responded:

[I]t is ... rather difficult and not convincing when [states invoke] culture and tradition ... as a shield for the failure to fulfill the obligation to protect from human rights violations.... There are no notions of responsibility that allow governments and duty-bearers to ... hold out that responsibility and hold out that protection selectively.^[172]

Third, the IPHRC also borrows the OIC’s claim that human rights law “already provides enough clarity to combat violence and discrimination against any person or group on any ground.”^[173] As such, express recognition of SOGI is unnecessary. This position turns nondiscrimination law on its head by validating the OIC’s argument that specific “focus on certain persons on the grounds of their sexual interests and behaviours” would undercut efforts to combat the overall scourge of intolerance and discrimination.^[174] In the words of one OIC representative, states “should refrain from attempting to give priority to the rights of certain individuals, as doing so could result in positive discrimination at the expense of the rights of others, in contravention of the principles of non-discrimination and equality.”^[175] Of course, actual implementation of such an approach would suggest state inaction is an appropriate response to confronting specific human rights violations impacting recognized vulnerable individuals. But more immediately, the IPHRC’s assertion that current IHRL standards sufficiently protect LGBTI individuals directly contradicts findings reached by the international human rights regime. For example, the OHCHR recently reported that “the overall picture remains one of continuing, pervasive, violent abuse, harassment and discrimination affecting LGBT and intersex persons in all regions ... current arrangements to protect the human rights of LGBT and intersex persons are inadequate.”^[176]

Overhanging all of this, the IPHRC claim that IHRL coverage is sufficient to protect “any ... group on any ground”^[177] smacks of artifice given the OIC’s demand for explicit international protection against defamation of Islam.^[178] Setting aside the intellectual leap required to justify the use of IHRL to protect religion rather than individuals, the OIC’s entire campaign to prohibit defamation is premised on a claim of inadequate existing protection and a desire to prioritize protection for a specific religion.^[179] The organization has steadily pursued this campaign even though it would necessarily result in the same “positive discrimination at the expense of the rights of others”^[180] the OIC rejects in the context of SOGI.

Finally, the IPHRC echoes the OIC’s advocacy of state sovereignty as a bar to SOGI recognition, demanding that the “international community must accord respect for the sovereign right of each country as well as its national laws.”^[181] This stance rejects long-established understandings that a state cannot evade international responsibility for human rights violations “by claiming that such matters are essentially within its domestic jurisdiction.”^[182] As W. Michael Reisman concluded in 1990, “no serious scholar still supports the contention that internal human rights are ‘essentially within the domestic jurisdiction of any state’ and hence insulated from international law.”^[183] Indeed, staking out such a position seems particularly outdated in the age of Universal Periodic Review.

Rather than embrace contemporary practice, the IPHRC’s assertion conjures up the Bangkok Declaration, which emphasized “the principles of respect for national sovereignty ... non-interference in the internal affairs of States, and the non-use of human rights as an instrument of political pressure.”^[184] Despite the 1993 VDPA ultimately rejecting this proposition, the OIC faithfully continues to adhere to it, for example, by urging all states to reject “the universality of human rights as a pretext to interfere in the internal affairs of other states and to impinge on their sovereignty.”^[185] Such a position might be understandable when emanating from states wanting to minimize external scrutiny of their own human rights practices. However, coming from a RHRM like the IPHRC, the invocation of sovereignty and noninterference as a trump card is especially misplaced. In the first instance, it brings into question the legitimacy of the IPHRC’s own scrutiny of the human rights practices of non-OIC states who have not consented to IPHRC’s asserted review of their national laws or practices.^[186] But no less boldly, prioritizing non-interference serves to undermine the very objective of RHRMs—namely promoting and protecting universal human rights.

The IPHRC study’s “careful deliberation”^[187] on various aspects of the SOGI debate reaches its conclusion after only eight pages: “such concepts are not recognized under any universal human rights instrument and run counter to the values and teachings of many cultures, religions and beliefs including Islam.”^[188] The IPHRC then proffers several recommendations to the OIC, including:

*Expressing “strong opposition and rejection” of SOGI as a “legally flawed and deeply divisive notion at all fora,” and continuing to “support the well-crafted UN resolution on Protection of Family” at the UN;^[189]

*“Oppos[ing] the legality of the controversial mandate of the Independent Expert on [SOGI,] ... maintaining the [OIC’s] stance of non-cooperation[,] [and] reject[ing] his forthcoming report”;^[190]

*Producing articles in international journals “refuting the legality of SOGI [rights] both from the Islamic and international human rights law perspective”;^[191]

*Preparing a “comprehensive OIC Declaration” on SOGI “which can serve as the standard OIC position on the subject”;^[192] and

*Urging OIC states to reconsider cooperation “with UN mandates and Agencies, who promote / seek to establish controversial and unagreed upon so called [SOGI] human rights that may compromise or undermine [Islamic] religious or cultural norms,”^[193] including ending the funding of UN Agencies “promoting views and positions against the religious and ethical beliefs of our pristine religion.”^[194]

Most of these recommendations endorse established OIC and IPHRC positions. But some of them are clearly intended to escalate opposition to SOGI rights within the international arena. For example, in the name of protecting “traditional” family, the IPHRC has consistently opposed UN efforts to boost programs providing comprehensive, non-discriminatory, evidence-based, and scientifically accurate sexual and reproductive health (SRH) information.^[195] The IPHRC has attacked such efforts as “disturbing and morally unacceptable ... as well as potentially harmful to the very institution of family ... [and] undermining the spirit of the universally accepted human rights values, norms and instruments.”^[196] Previously, the IPHRC “called on all stakeholders, including UN mechanisms, NGOs and national human rights institutions to put the family at the core of their agendas as well as avoid the misconceptions and controversies, which contradict the universal family values.”^[197] However, the IPHRC’s current recommendation for OIC member states to reconsider cooperation with and withdraw funding from such UN agencies represents a clear escalation.

A second such escalation stands out, in part because it is directed at “Muslim minority societies,”^[198] rather than the OIC or its individual member states. Specifically, the IPHRC urges Muslim communities “especially in the West,” to “invoke protection to practice their religious beliefs ... that grants the right to manifest one’s religion in accordance with his/her beliefs.”^[199] This appeal appears to advise—if not outright encourage—individual Muslims to invoke freedom of religion to challenge equality and nondiscrimination protections extended on the basis of SOGI. The mere fact that IPHRC would suggest such action again underscores its hypocrisy regarding its insistence that sovereignty and non-interference be respected concerning the internal affairs of OIC member states.^[200] At the same time, further undercutting the IPHRC’s faulty premise concerning consensus in Islam, the proposal seems unlikely to trigger the desired effect. According to the Pew Research Center, “[t]oday, about half of U.S. Muslims say homosexuality should be accepted by society (52%), while 33% say homosexuality should be discouraged. By comparison, in 2011, 39% of Muslims said homosexuality should be accepted; in 2007, just 27% held this view.”^[201] Following the attack on the Pulse nightclub in Orlando, FL, where self-described Islamic soldier Omar Mateen murdered 49 people and wounded 58 others, “some of the largest U.S. Islamic organizations, accustomed over the 14 years since 9/11 to quickly cobbling together news conferences and messaging against terrorism, decided to loudly, even eloquently, stand up in support of lesbian, gay, bisexual and transgender people.”^[202] Among other efforts, approximately 70 LGBT and Muslim groups released a “Unity Statement” expressing “solidarity, grief and outrage at the horrific attack.”^[203]

More concerning still is the fact that these recommendations are emanating from the IPHRC acting as a RHRM. By declaring SOGI recognition illegal, urging non-cooperation and a priori rejection of HRC-authorized reporting on the topic, and encouraging member states to withhold funding for UN bodies that seek to protect international human rights norms, including in the areas of sexual and reproductive health, the IPHRC has confirmed that its interest lies in dismantling rather than promoting and protecting international human rights norms.^[204]

Conclusion

Overall, the IPHRC’s “comprehensive study”^[205] on sexual orientation is a bizarre amalgam of hyperbolic, doom-laden, and bigoted claims singularly preoccupied with combatting same-sex marriage. In its effort to reject this pre-determined threat, the IPHRC has cast aside any concern for reflecting on or engaging with either actual scientific evidence or the substance of international human rights law.^[206] Based on this effort, the report lays bare the IPHRC’s failings as a legitimately independent human rights body committed to serving the intended purpose of a regional human rights mechanism. Rather than operate as “a platform for human rights protection,” the IPHRC has confirmed its predisposition to act on behalf of OIC member states as a “shield against global scrutiny.”^[207]

Precisely because of these grave shortcomings, the IPHRC report is likely to serve its intended purpose: adding fuel to the OIC’s campaign to deny equality and nondiscrimination based on SOGI. Indeed, taken at its worst, the IPHRC’s report can be viewed as condoning and even encouraging continued criminalization of SOGI and impunity with respect to attacks targeting the LGBTI community. This much is evident, given that, among other things, the report brands homosexuality as deviant, perverted, and detestable, links it to pedophilia, and at least impliedly validates coercive treatment of homosexuality as a mental illness.^[208]

Confronted with this reality, the international community should reject the frontal challenge the IPHRC poses to international human rights standards. Concerned states and activists should contest recognition of and engagement with the IPHRC at the UN and on the bilateral level. Cooperation with the IPHRC should cease until it adopts and endorses (rather than builds conflict with) existing IHRL norms, including standing and future UN treaty body general comments. In tandem with this, greater effort should be made to identify and adopt clear standards for determining whether self-styled RHRMs merit recognition and incorporation into the larger and ongoing project of securing the promotion and protection of universal human rights. As a start, the Paris Principles already provide guidelines for informing the competences, composition, and methods of operation for independent and effective NHRIs;^[209] and many of these best practices can readily be adapted to measure the fitness of purported RHRMs.

In addition to these measures, elements of the international human rights regime, including the OHCHR, the Human Rights Council, special rapporteurs, and treaty-body institutions, should take concrete steps to respond to and refute the IPHRC’s flawed analysis and misconstruction of international human rights law. As part of this effort, these institutions, together with human rights advocates more generally, should engage with and mainstream the voices of Muslim jurists, scholars, activists, and LGBTI Muslims that promote progressive and alternative interpretations of sharia at the United Nations and in other relevant fora. This small step can serve as a means of signaling that the OIC/IPHRC view is not accepted as either the exclusive or authoritative interpretation of sharia law or Islam.

* Professor of Law, University of Tennessee College of Law. This article is part of a larger work in progress that was presented at the 2017 ASIL Midyear Meeting Research Forum. Thanks to Elizabeth Sepper for providing comments on an earlier draft and to UTK College of Law for supporting part of the research presented here. Thanks also to Hannah Littlefield and the team at William & Mary for their thorough and professional assistance preparing this manuscript for publication.