ESG・SDGs UPDATE Vol.14：Report on LGBTI+ Rights in Business by the UN Working Group on Business and Human Rights
1. Introduction: ESG and ‘Business and Human Rights’
ESG (environmental, social and governance) has recently become essential to business strategies, with human rights forming a core part of the ‘S’ in ESG, including the rights of LGBTI+ (lesbian, gay, bisexual, trans and intersex) individuals.
LGBTI+ rights are not only a Western focus; awareness of these human rights has been growing steadily across Asia. Recently, for instance, Thailand passed a marriage equality bill, making it the third country in Asia, after Taiwan and Nepal, to legalise same-sex marriage when the law takes effect in January 2025.
In Japan, the viewpoint of the American Chamber of Commerce in Japan (ACCJ) on ‘Support the Recruitment and Retention of Talent by Instituting Marriage Equality in Japan’ has been endorsed by more than 140 companies and law firms. In October 2024, the Tokyo High Court found that it was unconstitutional not to provide legal protection for same-sex couples.
In line with these developments, the UN Working Group on the issue of human rights and transnational corporations and other business enterprises (the ‘Working Group’) published its latest thematic report to the General Assembly in October 2024. The report explores key challenges and offers concrete recommendations for States and businesses to protect and respect the human rights of LGBTI+ individuals in business contexts.
Although not legally binding, this report offers valuable guidance for companies on respecting everyone’s rights, including LGBTI+ people. It serves as a helpful reference for businesses committed to upholding human rights in their operations.
This newsletter will provide an overview of the Working Group and the sections in the report that explain how businesses may be linked to human rights abuses against LGBTI+ individuals and outline steps corporations can take to respect their rights across operational contexts.
2. What is the Working Group?
The Working Group, composed of five independent human rights experts, was established by the UN Human Rights Council in 2011 with a mandate to promote, disseminate and implement the UN Guiding Principles on Business and Human Rights (UNGPs). Their role includes sharing best practices and lessons learned, as well as offering recommendations to improve human rights practices globally.
In relation to Japan, the Working Group conducted a country visit and produced a report in May 2024 outlining the challenges Japanese companies faced in terms of business and human rights.
【Reference Links】
Working Group’s Report on Country Visit to Japan
ESG・SDGs UPDATE Vol.12：国連人権理事会「ビジネスと人権」作業部会の訪日調査報告書公表｜三浦法律事務所／Miura & Partners (available only in Japanese)
3. The outline of the report
The following is the outline of the report. As you will see, it covers a wide range of topics, including what both States and companies should do to protect the human rights of LGBTI+ people.
I. Introduction
A. Context and objectives
B. Methodology and scope
II. Progress and gaps in the implementation of the Guiding Principles
A. State duty to protect
1. Discriminatory and non-inclusive laws and policies against LGBTI+ persons
2. LGBTI+ persons and criminalisation
3. Protecting against LGBTI+ discrimination in employment
4. National action plans on business and human rights
5. Legislation on human rights due diligence
6. Guidance and incentives for businesses
7. Economic diplomacy
8. State-business nexus
B. Corporate responsibility to respect
1. Public commitment from business enterprises
2. Gender-responsive human rights due diligence through a LGBTI+ lens
3. Respecting LGBTI+ rights in operational context that discriminate against LGBTI+ people
C. Access to remedy
1. State-based judicial mechanisms
2. State-based non-judicial mechanisms
3. Challenges in accessing State-based judicial and non-judicial mechanisms
4. Non-State-based mechanisms
III. Conclusion and recommendations
The following section in this newsletter will focus on how business enterprises can fulfil their responsibility to respect their rights.
4. How business enterprises can be involved in human rights abuses of LGBTI+ people
Businesses should avoid causing, contributing or being directly linked to human rights abuses against LGBTI+ people. The Working Group highlights ways businesses can unintentionally contribute to LGBTI+ human rights abuses:
Requiring LGBTI+ employees to work in locations where their rights aren’t recognised or where they face increased risks of violence or discrimination, even as a condition for promotion.
Overlooking the specific needs of same-sex households when determining parental leave and benefits.
Collecting or storing sensitive information about employees that goes beyond legal requirements or in ways that could expose LGBTI+ individuals to government persecution.
Partnering with governments or companies that enforce discriminatory policies against LGBTI+ individuals.
The Working Group acknowledges that companies have made progress, but most actions remain within the workplace. They suggest corporations take a broader approach to respect LGBTI+ rights in the labour market, communities where they operate, and in their supply chains.
5. What can businesses do to respect the rights of LGBTI+ people?
UNGPs and the Japanese government’s Guidelines on Respecting Human Rights in Responsible Supply Chains (the ‘Guidelines’) require businesses to take three actions: (i) express their commitment to meet their responsibility (establish a human rights policy), (ii) conduct human rights due diligence, and (iii) provide remediation. For more details about the Japanese government’s Guidelines, please visit the link below.
【Reference Links】
Yohei Sakao, Risk Management: How should companies manage the risks of human rights? (page 22).
ESG・SDGs UPDATE Vol.7：「ビジネスと人権」の基礎③－「責任あるサプライチェーン等における人権尊重のためのガイドライン」の公表－ (available only in Japanese)
ESG・SDGs UPDATE Vol.8：「ビジネスと人権」の基礎④－「責任あるサプライチェーン等における人権尊重のための実務参照資料」の公表－ (available only in Japanese)
Aligned with these three pillars of action, the Working Group suggests the following steps to avoid shortcomings and fully respect the rights of LGBTI+ people through their activities.
a. Public commitment from business enterprises
The Working Group emphasises that a public commitment to respecting the rights of LGBTI+ persons at the highest level is crucial for companies to fulfil their responsibilities in upholding the human rights of LGBTI+ individuals.
While an increasing number of businesses are adopting human rights or diversity, equity, and inclusion (DEI) policies, few explicitly address LGBTI+ issues. To ensure accountability and inclusion, it is essential to make a public commitment to LGBTI+ rights at the highest level (such as by the board of directors), enabling concrete actions to be implemented at the operational level.
The report highlights an example of a company in France that established a global framework for the protection of LGBTI+ employees. This framework was later adapted locally by its subsidiary in Poland－where anti-LGBT movements have been on the rise－to sign a declaration of support for the LGBTQ+ community and take concrete actions to respect and promote the rights of LGBTI+ persons.
b. Gender-responsive human rights due diligence
The Working Group also suggests developing an ongoing process to identify and address risks to the human rights of LGBTI+ people. This includes, among others.
Consulting with potentially affected LGBTI+ people by business activities.
Assessing the legal and cultural context in regions where the business operates.
Safely managing and protecting sensitive data.
Consulting trade unions.
Not only focusing on the most obvious human rights issues and ignoring others, including LGBTI+ issues.
Collaborating with other businesses and business associations.
Using influence over investee companies, including making LGBTI+ rights a priority at the board level.
c. Supporting LGBTI+ Human Rights in Discriminatory Regions
In the report, the Working Group highlights that businesses should seek ways to honour the principles of internationally recognised human rights where national laws conflict with international human rights. Therefore, this responsibility remains essential, regardless of a State’s ability or willingness to meet its own human rights obligation.
Some of the actions suggested by the Working Group are:
Take public action and engage with national governments to influence local laws that negatively impact LGBTI+ individuals.
Apply protective policies consistently, regardless of the local context.
Use contracts to reinforce human rights standards with partners and suppliers.
Challenge and limit compliance with local laws by interpreting them narrowly or minimising compliance.
Avoid supporting lawmakers or third parties that promote or indirectly back discriminatory policies.
Disengage responsibly if leverage fails and no other options can prevent or reduce human rights harms associated with operating.
Ensure that professional development of employees can occur without requiring them to be stationed in high-risk areas for LGBTI+ people.
d. Providing Remediation
Access to effective remedies is a core part of the UNGPs. In this report, the Working Group stresses that, to create effective grievance systems, companies must consider the unique challenges faced by LGBTI+ people in their operations and ensure these mechanisms meet the effectiveness criteria.
Notably, many Japanese companies already have harassment hotlines or whistleblower systems for compliance. However, few have set up operational-level grievance mechanisms specifically to address human rights, including those of LGBTI+ people. As Japanese companies consider implementing grievance mechanisms based on the UNGP and the Guidelines, it will be crucial to develop systems that specifically take into account the human rights of LGBTI+ individuals.
For instance, the report mentions companies that have established anonymous hotlines encouraging LGBTI+ employees to voice their concerns without fear of reprisal. Others conduct international campaigns to educate employees about non-retaliation policies.
6. Conclusions
The Working Group’s latest report underscores businesses’ responsibility to protect and respect LGBTI+ human rights. Although the Group’s recommendations may appear excessive, a crucial first step is to examine the legal and cultural context surrounding LGBTI+ individuals in the countries and regions where the business operates. Based on this understanding, it is essential to develop a human rights commitment that explicitly includes respect for the human rights of LGBTI+ individuals, as well as all other individuals.
The points raised in this report outline the international standards expected of companies' efforts on ESG from a gender perspective. Companies are required not only to establish formal human rights policies but also to make efforts to ensure these policies are substantive.
Businesses must move beyond minimal compliance to truly integrate these rights into their operations, policies, and corporate culture. By publicly committing to LGBTI+ rights, conducting targeted human rights due diligence, and implementing these practices globally, Japanese companies can play a leading role in setting new inclusivity standards.
Authors
Taro Tanaka, Partner
Taro Tanaka joined Miura & Partners (M&P) in 2024. He graduated from Waseda University and Keio Law School and earned his LL.M. in International Legal Studies from New York University as a Fulbright Scholar. He is admitted to the bar in Japan and is currently undergoing reinstatement.
Before joining M&P, Taro gained extensive experience at Mori Hamada & Matsumoto, Freshfields Bruckhaus Deringer in Tokyo, and the United Nations in Geneva and New York. Most recently, he represented Rohingya survivors in international legal proceedings, including cases at the International Criminal Court (ICC) and the International Court of Justice (ICJ).
Taro’s practice focuses on business and human rights, ESG/SDGs, diversity and inclusion (D&I), and international dispute resolution, including arbitration.
Yuhei Sakao, Partner
Yuhei Sakao joined Miura and Partners (M&P) in 2021. He is a graduate of the University of Tokyo, the University of Tokyo Law School and the University of Pennsylvania Law School (LL.M. with a Wharton Business and Law Certificate). He is admitted to the Bar in Japan and New York, and is qualified as a Certified Fraud Examiner (CFE).
Before Joining M&P, Yuhei has worked at Nagashima Ohno & Tsunematsu and Wilmer Cutler Pickering Hale and Dorr (Washington D.C.), and dealt with both domestic and global investigations. Also, he was seconded to the Legal Department of Mitsui & Co.
Yuhei’s practice focuses on corporate crisis management, corporate governance, compliance, litigation and ESG/SDGs.