Introduction
On June 13, 2023, a bipartisan coalition in the U.S. Congress reintroduced the Global Respect Act (GRA). The GRA would empower the State Department to levy visa-blocking sanctions against foreign individuals who are credibly determined to have violated the human rights of lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI) persons. This brief provides an overview of the GRA and its enforcement mechanisms. It also highlights instances, by region, of human rights violations against LGBTQI individuals to illustrate cases where this legislation could be impactful.
Threats to LGBTQI Human Rights
LGBTQI persons around the globe face significant opposition to living freely and without persecution. More than 60 countries criminalize homosexuality, while 14 countries effectively criminalize transgender individuals through restrictions on gender identity or expression. Seven countries currently maintain the death penalty as a punishment for consensual same-sex conduct. In countries that do not explicitly prohibit same-sex relations or criminalize forms of gender identity or expression, LGBTQI individuals often face other barriers to accessing fundamental rights, including marriage, legal gender recognition,or personal safety.
Research has shown that the extent to which LGBTQI people are included in a country’s laws and policies is strongly associated with their level of acceptance by society. Hostile laws and policies can increase stigma that engenders violence and discrimination on the basis of a person’s actual or perceived sexual orientation, gender identity, gender expression, or sex characteristics. For example, following the May 2023 passage of anti-LGBTQI legislation in Uganda, the country experienced a marked increase in violence and harassment targeting sexual and gender minorities.
Public officials increasingly weaponize anti-LGBTQI rhetoric and policies for political gains, whether as populist strategies to mobilize voters or to distract from domestic economic or social crises. These local actions are bolstered by a coordinated, well-resourced transnational movement against LGBTQI communities comprised of religious organizations, advocacy groups, governmental officials, and donors. Between 2008 and 2017, organizations in the United States spent more than $1 billion to support groups associated with the global “anti-gender” movement. This escalation of anti-LGBTQI activity has had an evident impact on the human rights of LGBTQI people. For instance, a recent report by ILGA-Europe shows that violence against LGBTQI individuals in Europe and Central Asia was at its highest in a decade, largely stemming from “rising and widespread hate speech from politicians, religious leaders, right-wing organizations and media pundits.”
What is the Global Respect Act?
The Global Respect Act (H.R. 3485) directs the Department of State to penalize foreign actors for human rights violations against LGBTQI individuals. Sanctions could be imposed on any individual or their agent who, based on “credible information,” is deemed “responsible for or complicit in” the following violations based on a person’s actual or perceived sexual orientation, gender identity, or sex characteristics:
- Torture or cruel, inhuman, or degrading treatment;
- Prolonged detention of the individual without charges or trial;
- Causing the disappearance of the individual by the abduction and clandestine detention of the individual and
- Other flagrant denial of the right to life, liberty, or the security of the individual.
The State Department would be obligated to track violations and submit a regularly updated list of persons added or removed from the sanctions list to Congress. A person could be removed from the list if it is determined through credible information that they did not engage in the activity for which they were added, that they were prosecuted for the activity, or that they have demonstrated “a significant change in behavior,” have paid “an appropriate consequence for the activity,” and have committed to not engage in the activity in the future. The bill also stipulates that the annual State Department Report on Human Rights would include a section on LGBTQI international human rights, as well as an annual report to Congress on the effectiveness of sanctions.
The GRA was first passed in the House of Representatives in February 2022 and sent to the Senate Committee on Foreign Relations, but it never moved beyond this stage. At that time, the Biden Administration released a Statement of Administration Policy officially supporting the passage of the GRA. On June 13, 2023, a bipartisan coalition of legislators, including Senators Shaheen (D-NH) and Murkowski (R-AK) and Representatives Jacobs (D-CA) and Fitzpatrick (R-PA), reintroduced this legislation in both chambers of Congress.
Existing Sanctions Landscape and Potential Scope of the GRA
While the GRA would be novel in creating a mechanism specifically targeting individuals who commit violations against LGBTQI persons, there is precedent for sanctioning individual human rights abusers. For one, Section 212 of the Immigration and Nationality Act enables visa bans if there are “reasonable grounds” to believe there would be “foreign policy consequences” if the person were admitted to the United States or if a person is determined to have “ordered, incited, assisted, or otherwise participated in genocide” or to have participated in torture or extrajudicial killing. Section 7031(c) of the Department of State, Foreign Operations, and Related Programs Appropriations Act enables the sanctioning— including visa sanctions—of “officials of foreign governments and their immediate family members” if there is credible information of “significant corruption” or “a gross violation of human rights.” A number of other executive orders and proclamations enable sanctioning on similar grounds, and hundreds of individuals have been sanctioned using these mechanisms.
Notably, the 2016 Global Magnitsky Human Rights Accountability Act enables the use of both visa and property sanctions against foreign persons responsible for gross human rights violations. Sanctionable individuals include those “responsible for extrajudicial killings, torture, or other gross violations of internationally recognized human rights,” which are defined in the Foreign Assistance Act (FAA) of 1961 as “torture or cruel, inhuman, or degrading treatment or punishment, prolonged detention without charges and trial, causing the disappearance of persons by the abduction and clandestine detention of these persons, and other flagrant denial of the right to life, liberty, or the security of person.” In 2017, Executive Order 13818 was issued to implement the Act’s provisions and expanded the scope of sanctionable targets to include those associated with perpetrators of abuses. As of December 2022, 450 people have been sanctioned through these provisions.
The text of the GRA indicates that any “foreign person” responsible for violations of internationally recognized human rights against LGBTQI persons could be subjected to sanctions. This includes both government officials and private actors. Existing visa-blocking sanctions based on human rights abuses provide some insight into potential targets of the GRA. Previous examples of sanctioned persons include the following:
- Government officials. Sanctioned government officials include current and former Iranian officials who violently repressed peaceful protests and the director of the Tibetan Public Security Bureau, who engaged in arbitrary arrests, religious and political persecution, and mass detentions in the Tibetan Autonomous Region.
- Private citizens with government ties. In Russia, human rights abuses during the war in Ukraine prompted the Biden Administration to impose visa-blocking sanctions against 19 Russian oligarchs and 47 of their family members and associates.
- Military officials. The State Department recently imposed sanctions on officials within Sudanese military forces currently locked in a conflict that has resulted in hundreds killed and extensive human rights violations.
- Non-government actors. Sanctions were placed on more than 500 Nicaraguan individuals and family members for their part in enabling “regime repression and corruption” by the Nicaraguan government. Sanctions have also been imposed on Belarusian nationals in charge of state-owned factories and universities involved in the intimidation and harassment of pro-democracy strikers.
According to the text of the GRA, the range of human rights violations that could fall within the scope of the law is broad. Like the Global Magnitsky Act, the sanctionable violations enumerated in the GRA (Sec. 3(a)(1)) are crimes that constitute “gross violations of internationally recognized human rights” as defined by the Foreign Assistance Act. Existing obligations under international and domestic law provide some insight into the types of actions that constitution gross violations of international human rights:
- Torture or cruel, inhuman, or degrading treatment or punishment. Torture is among the more clearly specified violations. The Torture Act, which ratified the International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), defines torture as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.” Severe mental pain or suffering consists of prolonged mental harm caused by or resulting from, among other things, the threat or infliction of severe physical pain or suffering or the threat of imminent death. Cruel, inhuman, or degrading treatment has not been directly addressed by statute or case law. Article 16 of the CAT states that “each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture.”
- Prolonged detention of the individual without charges or trial. The International Covenant on Civil and Political Rights (ICCPR) prohibits arbitrary or prolonged detention. According to the ICCPR, any person who is detained is entitled to challenge the lawfulness of detention before a court.
- Causing the disappearance of the individual by the abduction and clandestine detention of the individual. The International Convention for the Protection of All Persons from Enforced Disappearance prohibits enforced disappearance, defined as “the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.”
- Other flagrant denial of the right to life, liberty, or the security of the individual. The U.N. Human Rights Committee issued a General Comment on the Right to Liberty and Security of Person enshrined in Article 9 of the ICCPR. It underscores the grave implications of infringing on these rights because “the deprivation of liberty and security of person have historically been principal means for impairing the enjoyment of other rights.” In addition to protection from physical detention, the right to security under the ICCPR “protects individuals against intentional infliction of bodily or mental injury, regardless of whether the victim is detained or non-detained.” States party to the ICCPR have an obligation to “respond appropriately to patterns of violence against categories of victims…[including] violence against persons on the basis of their sexual orientation or gender identity.”
Taken together, these categories of rights violations encompass a range of official and non-official acts against LGBTQI persons that could warrant sanctions under the GRA.
Efficacy of Targeted Sanctions
Studies on the efficacy of existing sanctions regimes highlight the importance of the GRA and provide evidence as to how it could be implemented effectively. Targeted sanctions such as visa bans have become increasingly prevalent in recent years. Compared to traditional comprehensive sanctions, which can harm citizens of a country rather than the officials perpetrating human rights abuses, targeted sanctions offer a more surgical approach to holding perpetrators accountable. Studies have found that individuals subject to targeted sanctions can experience a loss in professional prestige, experience “political handicap[s]” because of their inability to travel, struggle to physically access bank accounts in countries from which they are banned, or experience social psychological harm among their peers. In many situations, visa bans have been used to effectively call attention to anti-democratic processes or human rights abuses, achieving their purpose by publicly designating and condemning their targets.
Visa-blocking sanctions have many limitations in their ability to force large-scale social or political changes, but they may be more effective in constraining and stigmatizing specific actions by a designee. Research suggests that their success rate can be maximized by taking several key steps. For one, targets should be selected carefully; local intelligence is essential to determine individuals with decision-making power who directly caused specific harm.Additionally, designees should be publicized to ensure their awareness of the sanction and to raise public consciousness of ongoing abuses. This also ensures that designees have the opportunity to make changes to secure removal from sanctions lists.
The public listing of sanctions targets could have the added benefit of increasing the amount of available information on human rights abuses against LGBTQI persons to inform policymaking and other interventions. While some news outlets, international organizations, and human rights non-governmental organizations (NGOs) report on violations against LGBTQI individuals, the GRA offers an opportunity to leverage the resources and reach of the State Department to further expand the breadth and depth of information available.