31 Right to Sexual Minorities II

Dr. Aneesh V. Pillai

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Learning Outcome

  1. This chapter introduces students to various international instruments which talk about the rights of sexual minorities.
  2. The students would specifically learn about the instruments: UN Charter, 1945; Universal Declaration of Human Rights, 1948; International Covenant on Civil and Political Rights, 1966; International Covenant on Economic, Social and Cultural Rights, 1966; Human Rights and Sexual Orientation, 2003: Human Rights Council Resolution; The Yogyakarta Principles,2006; UN Declaration on Sexual Orientation and Gender Identity, 2008; Declaration of Sexual Rights, 2014; Report of the Office of the United Nations High Commissioner for Human Rights: ‘Discrimination and Violence against Individuals based on their Sexual Orientation and Gender Identity, 2015.

Introduction

The international human rights law includes the instruments like UN Charter, Universal Declaration on Human Rights, Two International Covenants and other various treaties and non binding instruments adopted by various UN bodies. However, these documents do not address the rights of sexual minorities directly, but through interpretations of UN bodies the sexual minorities are also brought under the purview of these international human rights instruments. It is to be noted here that though non-binding there are two important human rights instruments which addresses the rights of sexual minorities directly, they are The Yogyakarta Principles, 2006 and the UN Declaration on Sexual Orientation and Gender Identity, 2008.

UN Charter, 1945

The UN Charter creates legal obligations for member states and mandates the UN to formulate principles of international human rights law. The Charter expressly states that member states grant fundamental human rights and equality to all individuals. The Preamble to the Charter states that one of the goals of the United Nations is to “reaffirm faith in fundamental human rights, in the dignity and worth of the human person, and in the equal rights of men and women.” The Preamble also states that the U.N. will establish “conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.” Further, Article 1 of the Charter provides that one of the goals of the U.N. is to “promote and encourage respect for human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” Similarly, in Article 55, the Charter states that the U.N. shall “promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”

Thus it can be seen that UN Charter expressly prohibits any discrimination on the basis of sex. Hence, the supporters of sexual minorities’ rights argue that, the word ‘sex’ includes sexual orientation and thereby sexual minorities. Therefore it can be seen that the U.N. Charter is capable of providing human rights protections for sexual minorities. This way of interpretation gained its support from the working of UN in recent decades. For example, Human Rights Committee has stated the word ‘sex’ as includes sexual orientation. Thus it can be argued that since the UN Charter prohibits any discrimination on the basis of gender, it recognizes the rights of sexual minorities also. In the absence of explicit enactments relating to the rights of LGBTI individuals, the provisions in the Charter can be utilized to recognize sexual minorities under the term ‘sex’.

Universal Declaration of Human Rights, 1948

 

The Universal Declaration of Human Rights, expressly states that all human beings are “entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status ”. It also guarantees equal protection for all individuals with regards to all rights included in the Declaration. The supports of rights of sexual minorities argue that, since the Universal Declaration of Human Rights explicitly provides protection to individuals of “other status,” the Declaration affords protections to sexual minorities. Further, they points out that ‘almost every clause in the Declaration begins with the word “everyone,” conferring positive rights on all human beings including sexual minorities. This interpretation finds support in past U.N. conferences, where the term “other status” has been interpreted to include sexual minorities. For example the Global Plan of Action with respect to housing, 1996 the U.N. incorporated the term “other status” to ensure that sexual minorities would have equal access to shelter and basic services.

International Covenant on Civil and Political Rights, 1966

 

The International Covenant on Civil and Political Rights guarantees the rights of all people to non-discrimination and equality before the law. In Article 2 it states that, ‘each State Party to the present Covenant undertakes to respect and to ensure all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. Further, Article 26 states that, all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The ICCPR also protects various rights relevant to protection of sexual minorities such as right to privacy and the right to marry and found a family, etc. It is to be noted here that the ICCPR does not specifically refer to sexual minorities.

 

It was in 1994, the UN Human Rights Committee, the body that interprets the International Covenant on Civil and Political Rights held that the term other status in the Covenant includes other status based on sexual orientation. Thus Article 2 as well as Article 26 directly applicable to sexual minorities also. Since the ICCPR is a binding instrument, the State parties are mandated by the provisions of this instrument. Therefore in case of any violation of rights of sexual minorities, they can use the provisions of ICCPR for their help.

International Covenant on Economic, Social and Cultural Rights, 1966

 

The ICESCR also confer the right to non-discrimination. Under Article 2 (2) it mandates that states that, ‘the States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. It is to be noted here that like ICCPR, the ICESCR also does not explicitly prohibit discrimination on the grounds of sexual orientation. However, the UN Committee on Economic, Social and Cultural Rights has, through its general comments and its concluding observations, expressed concern over discrimination on grounds of sexual orientation. In its General Comment, the UN Committee on Economic, Social and Cultural Rights states that, discrimination on the grounds of sexual orientation is prohibited by the “other status” classification of article 2(2). Thus it can be seen that “other status” as recognized in article 2(2) includes sexual orientation.” Therefore, sexual minorities can claim protection of various rights mentioned under the ICESCR without any discrimination.

Human Rights and Sexual Orientation, 2003: Human Rights Council Resolution

This resolution was introduced by Brazil in April 2003, at the 59th Session of the United Nations Commission for Human Rights for consideration that called upon both the United Nations and state governments to incorporate protection from persecution and discrimination on the basis of “sexual orientation” into their human rights practices and procedures. The Resolution reaffirms that the Universal Declaration of Human Rights affirms the principle of the inadmissibility of discrimination and proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set forth therein without distinction of any kind. It affirms that, expresses deep concern at the occurrence of violations of human rights in the world against persons on the grounds of their sexual orientation. It stresses that human rights and fundamental freedoms are the birthright of all human beings, that the universal nature of these rights and freedoms is beyond question and that the enjoyment of such rights and freedoms should not be hindered in any way on the grounds of sexual orientation. It calls upon all States to promote and protect the human rights of all persons regardless of their sexual orientation.

The resolution notes the attention given to human rights violations on the grounds of sexual orientation by the special procedures in their reports to the Commission on Human Rights, as well as by the treaty monitoring bodies, and encourages all special procedures of the Commission, within their mandates, to give due attention to the subject. The resolution also requests the United Nations High Commissioner for Human Rights to pay due attention to the violation of human rights on the grounds of sexual orientation. This resolution was strongly opposed by a number of countries, including the Vatican, Zimbabwe, Pakistan (leading the Organization of Islamic Conference or OIC), Malaysia, Saudi Arabia, and Bahrain. At the same time this resolution has received support from Japan and the European Union, along with many Latin American and Central and Eastern European countries. As a result this resolution failed.

The Yogyakarta Principles, 2006

The Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity were developed in 2006 by a group of international legal experts and adopted in March 2007 in Yogyakarta, Indonesia. This document consists of 29 principles which gives detailed understanding about the application of international human rights law to sexual orientation and gender identity. The most important principle is the principle 1 which states that, all human beings are born free and equal in dignity and rights. Human beings of all sexual orientations and gender identities are entitled to the full enjoyment of all human rights’. Another important principle states that, ‘everyone is entitled to enjoy all human rights without discrimination on the basis of sexual orientation or gender identity. Everyone is entitled to equality before the law and the equal protection of the law without any such discrimination whether or not the enjoyment of another human right is also affected. The law shall prohibit any such discrimination and guarantee to all persons equal and effective protection against any such discrimination. Discrimination on the basis of sexual orientation or gender identity includes any distinction, exclusion, restriction or preference based on sexual orientation or gender identity which has the purpose or effect of nullifying or impairing equality before the law or the equal protection of the law, or the recognition, enjoyment or exercise, on an equal basis, of all human rights and fundamental freedoms. Discrimination based on sexual orientation or gender identity may be, and commonly is, compounded by discrimination on other grounds including gender, race, age, religion, disability, health and economic status’.

 

The various principles address a broad range of international human rights standards applicable to sexual minorities that can be summed up as follows: Rights to Universal Enjoyment of Human Rights, Non-Discrimination and Recognition before the Law; Rights to Human and Personal Security; Economic, Social and Cultural Rights; Rights to Expression, Opinion and Association; Freedom of Movement and Asylum; Rights of Participation in Cultural and Family Life; Rights of Human Rights Defenders; and Rights of Redress and Accountability.

 

The most important feature of these Principles is that each principle provides detailed recommendations to states, the United Nations, national institutions, the media, and NGO’s about the implementation of various measures for protecting the rights of sexual minorities. The Principles, like other soft law, have no binding force but may serve as a guideline to states in their conduct. For example, the Yogyakarta Principles were used as the basis for the 2008 UN Declaration on Sexual Orientation and Gender Identity which was supported by 67 member states. Furthermore, the Principles have been cited by a number of states, including members of the Commonwealth, as useful interpretative principles. The New Zealand Human Rights Commission referred to the Principles in its November, 2007, report ‘To Be Who I Am’, on transgender rights. The High Court of Delhi, referred to the Principles in its judgment in the case Naz Foundation v. Government of NCT of Delhi and Others striking down section 377 of the Indian Penal Code, which criminalizes homosexuality, as unconstitutional .

UN Declaration on Sexual Orientation and Gender Identity, 2008

 

The growing international momentum on sexual and gender rights culminated in the 2008 UN Declaration on Sexual Orientation and Gender Identity. It explicitly recognizes sexual orientation and gender identity as legitimate grounds for protection under international human rights law, and condemns a range of human rights violations based on sexual orientation and gender identity.

 

The Declaration expressly states that,the principle of non – discrimination, which requires that human rights apply equally to every human being regardless of sexual orientation or gender identity. It states that, ‘violence, harassment, discrimination, exclusion, stigmatization and prejudice are directed against persons in all countries in the world because of sexual orientation or gender identity, and that these practices undermine the integrity and dignity of those subjected to these abuses. It condemns the human rights violations based on sexual orientation or gender identity wherever they occur, in particular the use of the death penalty on this ground, extrajudicial, summary or arbitrary executions, the practice of torture and other cruel, inhuman and degrading treatment or punishment, arbitrary arrest or detention and deprivation of economic, social and cultural rights, including the right to health. It further urges states to take all the necessary measures, in particular legislative or administrative, to ensure that sexual orientation or gender identity may under no circumstances be the basis for criminal penalties, in particular executions, arrests or detention. It also states that, ‘States to ensure that human rights violations based on sexual orientation or gender identity are investigated and perpetrators held accountable and brought to justice’.

Declaration of Sexual Rights, 2014

This Declaration was adopted by the World Association for Sexual Health (WAS). It is a multi-disciplinary, world-wide group of scientific societies, NGOs and professionals in the field of human sexuality which promotes sexual health throughout the lifespan and through the world by developing, promoting and supporting sexology and sexual rights for all. The Declaration contains numerous provisions which directly address the rights of sexual minorities. It states that, everyone is entitled to enjoy all sexual rights set forth in this Declaration without distinction of any kind such as race, ethnicity, color, sex, language, religion, political or other opinion, national or social origin, place of residence, property, birth, disability, age, nationality, marital and family status, sexual orientation, gender identity and expression, health status, economic and social situation and other status.

Further it states that, ‘everyone shall be free from torture and cruel, inhuman, or degrading treatment or punishment related to sexuality, including: harmful traditional practices; forced sterilization, contraception, or abortion; and other forms of torture, cruel, inhuman, or degrading treatment perpetrated for reasons related to someone’s sex, gender, sexual orientation, gender identity and expression, and bodily diversity’.

The Declaration also expressly guarantees various rights including the right to life, liberty, and security of the person; The right to autonomy and bodily integrity; The right to be free from all forms of violence and coercion; The right to be free from all forms of violence and coercion; The right to enter, form, and dissolve marriage and other similar types of relationships based on equality and full and free consent; The right to participation in public and political life; and the right to access to justice, remedies, and redress. Though this Declaration is a non binding instrument its importance lies to the fact that, the declaration expressly includes the term sexual orientation and thereby protects various rights of sexual minorities.

Report of the Office of the United Nations High Commissioner for Human Rights: ‘Discrimination and Violence against Individuals based on their Sexual Orientation and Gender Identity, 2015

The Report notes that, in recent years, Governments in all regions have pursued a variety of initiatives aimed at reducing levels of violence and discrimination based on sexual orientation and gender identity. For example, since 2011, 14 States have adopted or strengthened anti-discrimination and hate crime laws, extending protection on grounds of sexual orientation and/or gender identity and, in two cases, also introducing legal protections for intersex persons. Three States have abolished criminal sanctions for homosexuality; 12 have introduced marriage or civil unions for same-sex couples nationally; and 10 have introduced reforms that, to varying degrees, make it easier for transgender persons to obtain legal recognition of their gender identity’.

The Report further states that, ‘States have well-established obligations to respect, protect, and fulfil the human rights of all persons within their jurisdiction, including LGBT and intersex persons. These obligations extend to refraining from interference in the enjoyment of rights, preventing abuses by third parties, and proactively tackling barriers to the enjoyment of human rights, including, in the present context, discriminatory attitudes and practices’. The Report has also identified the specific obligations of states in relation to protection of rights of sexual minorities. They are: To protect individuals from violence; To prevent torture and ill-treatment; To decriminalize homosexuality and to repeal other laws used to punish individuals on the basis of sexual orientation and gender identity; To protect individuals from discrimination on grounds of sexual orientation and gender identity; To protect rights to freedom of expression, association and assembly and to take part in the conduct of public affairs.

Along with various international instruments, different UN special rapporteurs also addressed the need for protection of sexual minorities in different matters. For example, the Special Rapporteur on the Right to Freedom of Opinion and Expression; the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health; the Special Rapporteur on the Right to Education ; the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living; and the Special Rapporteur on the Question of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Conclusion

 

The chapter holistically and comprehensively discusses various international instruments concerning the rights of sexual minorities. A key learning has been the importance of various international treaties and instruments in setting and recognizing the standards of law for Human Rights and their enforcement. The module effectively touches upon almost all the key treaties and declarations which provide for this framework namely: UN Charter, 1945; Universal Declaration of Human Rights, 1948; International Covenant on Civil and Political Rights, 1966; International Covenant on Economic, Social and Cultural Rights, 1966; Human Rights and Sexual Orientation, 2003: Human Rights Council Resolution; The Yogyakarta Principles,2006; UN Declaration on Sexual Orientation and Gender Identity, 2008; Declaration of Sexual Rights, 2014; Report of the Office of the United Nations High Commissioner for Human Rights: ‘Discrimination and Violence against Individuals based on their Sexual Orientation and Gender Identity, 2015.

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Reference

  1. UN Doc. A/59/324, 1 September 2004, paragraph 39; Also see, “Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe”, available at http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011 _en.pdf, visited on 10. 8. 2015.
  2. http://www.worldsexology.org/wp-content/uploads/2013/08/Declaration-of-Sexual-Rights-2014-plain-text.pdf,
  3. http://www.equalrightstrust.org/ertdocumentbank/091126%20Sharma%20-%20CHOGM%20Homophobic%
  4. Lucy Morgan, “Sexual and Gender Rights and the United Nations Human Rights Framework: Towards a Resolution of the Debate?”
  5. Sexual Orientation, “Gender Identity and Intersex Rights Snapshot Report.”