32 Rights of Sexual Minorities III

Dr. Aneesh V. Pillai

Learning outcomes

• Introducing students to the four regional systems for protection of Human Rights.
• Introducing students to the way in which the four regional systems protect Rights of Sexual Minorities.

Introduction

The issue of sexual minorities is not something which has been born out in the recent years, but has been a topic of ridiculement amongst various groups for centuries, but over the past few years, there have been various measure put forward by governments of different countries to recognise them and recognise their place in the society. Cultures, practices and customs play a vital role on how human rights and formulated, for this very reason a regional system can efficiently monitor the implementation of human rights more efficiently. This paper analyses various initiatives at these regional systems for the sexual minorities.

The various initiatives under the international level to protect the rights of sexual minorities has also influenced the regional human rights law and as a result they have also took various measures for ensuring and protecting the rights of sexual minorities. Currently there are four regional systems for the protection human rights: European Union; Organization of American States; African Union and Arab League. Among these systems except Arab League, the rights of sexual minorities are received a greater attention in these decades. The importance of these regional human rights systems lies on the fact that, they can strengthen the protection and enjoyment of human rights by taking into account their regional considerations, such as shared regional customs, values, culture, and practices. Moreover it is considered that the regional systems can monitor the implementation of human rights provisions more effectively than an International body. It is informative to analyze various initiatives at these regional systems for the sexual minorities.

European Union

Among the different regional organization, the European Union has a rich history of protecting the rights of sexual minorities. Within EU, the European Court of Human Rights has dealt with the issue of sexual orientation since the early 1980’s by applying the European Convention on Human Rights and Fundamental Freedoms on the basis of violations of the right to privacy. The development of protection of rights of sexual minorities in EU is mainly based on various judicial interpretations. In Dudgeon v. The United Kingdom, the European Court held that, ‘the criminalization of homosexual conduct in Northern Ireland violated Mr. Dudgeon’s right to privacy under Article 8 of the European Convention on Human Rights’. This ruling was followed in cases like Norris v. Republic of Ireland and Modinos v. Cyprus.

Further in Lustig – Prean v. United Kingdom, the European Court ruled that the Ministry of Defense’s ban on homosexuals from the military was discriminatory and offended the European Convention on Human Rights. In Salgueiro Da Silva Mouta v. Portugal, a father had been deprived of the custody of his children during divorce proceedings because of his sexual orientation. It was held that such an action is violative of his right to equality. In Alekseyev v Russia, the Court found that a ban on a ‘Gay Pride Parade’, because the parade could provoke violent reaction violated the right to non-discrimination. The Court found that such a ban incompatible with the fundamental values of the European Convention, ‘if the exercise of Convention rights by a minority group were made conditional on its being accepted by the majority’.

EU has also adopted various instruments for the protection of sexual minorities. As early in 1981, the Council of Europe has adopted a specific recommendation for the protection of rights of sexual minorities. The Recommendation highlights that, ‘all individuals, male or female, having attained the legal age of consent provided by the law of the country they live in, and who are capable of valid personal consent, should enjoy the right to sexual self-determination’. It recommends that, Committee of Ministers to: 1) urge those member states where homosexual acts between consenting adults are liable to criminal prosecution, to abolish those laws and practices; 2) urge member states to apply the same minimum age of consent for homosexual and heterosexual acts; 3) call on the governments of the member states: a) to order the destruction of existing special records on homosexuals and to abolish the practice of keeping records on homosexuals by the police or any other authority; b) to assure equality of treatment, no more no less, for homosexuals with regard to employment, pay and job security, particularly in the public sector; c) to ask for the cessation of all compulsory medical action or research designed to alter the sexual orientation of adults; d) to ensure that custody, visiting rights and accommodation of children by their parents should not be restricted on the sole grounds of the homosexual tendencies of one of them; e) to ask prison and other public authorities to be vigilant against the risk of rape, violence and sexual offences in prisons. It is to be noted here that these Recommendations are non-binding and only provides guidance.

The Treaty of Amsterdam, 1999 under Article 13 confers the European Parliament the power to combat discrimination against sexual orientation. It is the first international treaty to explicitly mention and protect sexual orientation. On the basis of this authority in 2000, the the European Council adopted a binding general Framework Directive on equal treatment in employment prohibiting direct and indirect discrimination on the grounds of religion or belief, age, disability or sexual orientation. Article 1 of the Directive explains its propose in the following words: ‘The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment’.

Further the EU Charter of Fundamental Rights, 2000 expressly includes sexual minorities under the Charter and guarantees various rights. Article 21 (2) of the Charter states that, “any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited”.

The Council of Europe has also established the Sexual Orientation and Gender Identity Unit within the Council of Europe and which is responsible for working with relevant stakeholders on issues of sexual orientation and gender identity issues. Moreover, the Commissioner for Human Rights published an issue paper, Human Rights and Gender Identity, in 2009. In March 2010, the Council of Europe adopted Recommendation CM/Rec (2010) on measures to combat discrimination on grounds of sexual orientation or gender identity. Emphasizing the universality of human rights and the importance of non-discrimination, the recommendation called upon Member States to take positive steps to protect the rights if the LGBTI community. The Council of Europe also published a 2011 report, Discrimination on grounds of sexual orientation or gender Identity in Europe, which addresses homophobia, transphobia and discrimination within the 47 Member States of the Council of Europe and makes recommendations for their prevention.

The Inter-American system

In Inter- American Regional System, the human rights bodies responsible for protecting and enforcing the human rights provisions are the Organization of American States are the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. Both the bodies have taken various steps to protect the rights of sexual minorities within American region. The case of Marta Alvarez v. Colombia was the first case concerning sexual orientation heard by the Inter-American Commission on Human Rights. Marta Alvarez stated that she was denied conjugal visits from her same-sex partner while heterosexual couples within the same prison were granted this right. The Commission decided that the case was admissible, meaning it gave an unpublished report of its findings and recommendations to the State, giving the State time to comply. If they State fails to comply, the Commission can submit the case to the Inter-American Court of Human Rights for a binding decision.

In 2011, considering the serious discriminatory practices and other violence against sexual minorities and for developing an adequate framework for protecting the rights of sexual minorities, the Inter-American Commission on Human Rights (IACHR) has created a Unit on the Rights of Lesbian, Gay, Bisexual, Trans, and Intersex Persons. The main focus of this Unit was (i) preparing thematic, regional or country reports on the situation of LGBTI persons in the Americas; (ii) developing standards on the interpretation of the Inter-American human rights instruments with respect to sexual orientation, gender identity, gender expression and body diversity through the individual petition and case system; (iii) providing technical advice and input to states and political bodies of the Organization of American States; and (iv) monitoring the human rights situation of LGBTI persons and promoting the visibility of violations against their human rights.

In order to provide a more focused attention to work of the Commission on the promotion and protection of the rights of LGBTI persons in the Americas, the IACHR decided to create a Rapporteurship on the Rights of Lesbian, Gay, Bisexual, Trans and Intersex Persons in November 2013. This Rapporteurship will continue with the works of IACHR Unit on those same topics.

Between June 2008 and June 2014, the General Assembly of the Organization of American States approved seven resolutions concerning human rights, sexual orientation, and gender identity. These resolutions acknowledge and condemn discrimination and acts of violence against members of the LGBTI community and call upon States, the IACHR and other bodies to take appropriate measures to address the problem. For example, in its 2009 resolution the OAS has resolved to condemn acts of violence and related human rights violations committed against individuals because of their sexual orientation and gender identity; and to urge states to ensure that acts of violence and human rights violations committed against individuals because of their sexual orientation and gender identity are investigated and that their perpetrators are brought to justice.

In its 2012 resolution OAS has very clearly addressed the issue of rights of sexual minorities. It also resolved to condemn discrimination against persons by reason of their sexual orientation and gender identity; and to urge the states within the parameters of the legal institutions of their domestic systems to eliminate, where they exist, barriers faced by lesbians, gays, and bisexual, transsexual, and intersex (LGBTI) persons in access to political participation and in other areas of public life, as well as to avoid interferences with their private life.

It further states that OAS will encourage member states to consider, within the parameters of the legal institutions of their domestic systems, adopting public policies against discrimination by reason of sexual orientation and gender identity. The resolution again expressed its disapproval against the acts of violence and human rights violations committed against persons by reason of their sexual orientation and gender identity; and to urge states to strengthen their national institutions with a view to preventing and investigating these acts and violations and ensuring due judicial protection for victims on an equal footing and that the perpetrators are brought to justice.

Further, it recommends to the member states to ensure adequate protection for human rights defenders who work on the issue of acts of violence, discrimination, and human rights violations committed against individuals on the basis of their sexual orientation and gender identity. Thus by the adoption of this resolution the OAS has broadened its approach towards the protection of rights of sexual minorities.

In 2013 the OAS has adopted a binding instrument, i.e. Inter-American Convention against All Forms of Discrimination and Intolerance which specifically protects the rights of sexual minorities. In Article 2 it states that, ‘every human being is equal under the law and has a right to equal protection against any form of discrimination and intolerance in any sphere of life, public or private. Further in Article 3 it states, ‘every human being has the right to the equal recognition, enjoyment, exercise, and protection, at both the individual and collective levels, of all human rights and fundamental freedoms enshrined in their domestic law and in the international instruments applicable to the States Parties’.

For the purpose of this Convention it defines ‘Discrimination’ as any distinction, exclusion, restriction, or preference, in any area of public or private life, the purpose or effect of which is to nullify or curtail the equal recognition, enjoyment, or exercise of one or more human rights and fundamental freedoms enshrined in the international instruments applicable to the States Parties. Such discrimination may be based on nationality; age; sex; sexual orientation; gender identity and expression; language; religion; cultural identity; political opinions or opinions of any kind; social origin; socioeconomic status; educational level; migrant, refugee, repatriate, stateless or internally displaced status; disability; genetic trait; mental or physical health condition, including infectious-contagious condition and debilitating psychological condition; or any other condition. Thus it can be seen that in the Inter-American regional system the rights of sexual minorities are protected to a greater extend.

African Union Human Rights System

In African Union the bodies which are responsible for the protection and promotion of human rights are the Organization of African Unity and the African Commission on Human and Peoples Rights. The major human rights instrument in this regional framework is the African Charter on Human and Peoples’ Rights, 1981. This is a binding human rights instrument and has been unanimously ratified by all African Union (AU) states. The Charter affirms in broad terms the equality of all people before the law and the right to freedom from discrimination. Article 2 of the Charter states that, ‘every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or any status’. Article 3 guarantees that “every individual shall be equal before the law” and that “every individual shall be entitled to equal protection of the law.” Though right to non-discrimination and equality is recognized to everyone by the Charter, the treaty does not contain any direct provisions for the protection of rights of sexual minorities.

It is to be noted that, the African Charter grants rights to everyone, without distinction, under a state party’s jurisdiction. The formulation that ‘every individual’ is entitled to the rights in the Charter is repeated in around 12 articles. Further, in Article 2, the right of ‘every human being’ to respect for life is reiterated; Article 8 provides that the freedom of conscience of ‘no one’ may be restricted; and article 13 provides for the rights of ‘every citizen’. It can be argued that the terms ‘everyone’, ‘every human being’ and ‘no one’ includes sexual minorities also. Further, the rights under the Charter are guaranteed to every individual without any distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or any status’. It can be argued that the word ‘other status’ includes sexual orientation also. This is because the same word in ICESCR has been interpreted by the Commission on ESCR in its General Comment to include sexual orientation also.

Further it can be argued that the word ‘sex’ used in Article 2 includes ‘sexual orientation’ also. This is because the word sex in ICCPR has been interpreted by the Human Rights Committee as includes sexual orientation. The reason for citing the interpretations given to these terms by the UN bodies and the claim for assigning the same interpretation to these words in African Charter is because of Article 60 of the Charter. The Article 60 states that, ‘the African Commission should draw inspiration form international law on human and peoples’ rights, particularly from the provisions of various African instruments on Human and Peoples’ Rights, the Charter of the United Nations, the Charter of the Organization of African Unity, the Universal Declaration of Human Rights, other instruments adopted by the United Nations and by African countries in the field of Human and Peoples’ Rights, as well as from the provisions of various instruments adopted within the Specialized Agencies of the United Nations of which the Parties to the present Charter are members’. Thus while interpreting the provisions of African Charter, the African Commission are expected to incorporate developments in international human rights law. Therefore, the interpretations given to the words ‘other status’ and ‘sex’ by UN bodies should be considered by the African Commission while interpreting Charter provisions. Hence, it can be seen that sexual minorities are also entitled to claim protection under the African Charter.

This view has also been recognized by the African Commission in its decisions. For the first time the African Commission discussed the issue of protection of sexual minorities is in the case of William Courson v. Zimbabwe. In this case, the complainant challenged the criminalization of sexual conduct between men in Zimbabwe and the utterances of senior political figures condemning the practice. However, the Commission did not make a finding because the complainant withdrew the case. The Commission got another opportunity to discuss the issue of rights of sexual minorities is in the case of Zimbabwean Human Rights NGO Forum v. Zimbabwe. The Commission stated that non-discrimination under Article 2 of the Charter aims to ensure equality of treatment for individuals irrespective of a number of grounds, including ‘sexual orientation’.

Recently, the African Commission on Human and Peoples’ Rights adopted a ‘Resolution on Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity’. This Resolution condemns the increasing incidence of violence and other human rights violations, including murder, rape, assault, arbitrary imprisonment and other forms of persecution of persons on the basis of their imputed or real sexual orientation or gender identity. It also condemns the situation of systematic attacks by State and non-state actors against persons on the basis of their imputed or real sexual orientation or gender identity. Further, it strongly urges States to end all acts of violence and abuse, whether committed by State or non-state actors, including by enacting and effectively applying appropriate laws prohibiting and punishing all forms of violence including those targeting persons on the basis of their imputed or real sexual orientation or gender identities, ensuring proper investigation and diligent prosecution of perpetrators, and establishing judicial procedures responsive to the needs of victims. Thus it can be seen that various initiatives were took place in African Region also to protect the rights of sexual minorities.

Conclusion

This chapter has provided us with a holistic understanding of how the different regional systems protect rights of sexual minorities through various initiative. Further it shows how various treaties, commissions and other instruments play a vital role in shaping the human rights jurisprudence on Rights of Sexual Minorities. There have been various initiatives internationally to protect the rights of sexual minorities. These initiatives in effect have also affected the regional human rights laws. Currently there are four regional systems for the protection of human rights: European Union, Organization of American States, African Union and Arab League. All of these states excluding the Arab League have received a greater attention over decades.

Reference

1. Human Rights Protections for Sexual Minorities in Insular Southeast Asia: Issues and Implications for Effective HIV Prevention”, available at unesdoc.unesco.org/images/0021/002110/211087e.pdf.
2. Applications nos. 4916/07, 25924/08 and 14599/09.
3. Ivy Irene Kwamboka Nyarang’o, The Role of the Judiciary in the Protection of Sexual Minorities in Kenya, A dissertation submitted in partial fulfillment of the requirements of the degree LLM, available at http://repository.up.ac.za/bitstream/handle/2263/18647/Nyarang’o_Role(2011).pdf?sequenc e=1.
4. “Sexual Orientation & Gender Identity”, available at http://www.ijrcenter.org/thematic-research-guides/sexual-orientation-gender-identity/.
5. Inter- American Commission on Human Rights, Report No 71/99.
6. Resolution AG/RES. 2504 (XXXIX-O/09), Human Rights, Sexual Orientation and Gender Identity, approved at the fourth plenary session, held on June 4, 2009.