30 Rights of Sexual Minorities I

Dr. Aneesh V. Pillai

Learning Outcomes:

1. This chapter would introduce students to the conceptual understanding of the term ‘sexual minorities’ and the various groups that form a part of it.
2. The students would get to learn about the international legal protection available for sexual minorities by way of instruments like UDHR, ICCPR, Child Rights Convention, CEDAW, Convention against Torture and others.

Introduction

In recent years the rights of sexual minorities has growingly gained attention at international and national level. This attention focuses on the decriminalization of activities of people belongs to sexual minorities and adoption of legal standards for preventing various discriminatory practices against sexual minorities. The driving force behind these movements is that the persons belonging to sexual minority are most vulnerable to attacks and forced migration. They are being persecuted by their families, communities, and in certain countries governments worldwide. A human’s sexuality is an integral part of who they are, and their sexual orientation makes up a large part of this. It is today widely appreciated that different individuals have different sexualities, which the law should recognize and not criminalize. In recent years the reactions towards the protection of sexual minorities have resulted in the development of human rights of sexual minorities. Since the sexual minorities is an umbrella term, the rights can be claimed by various groups such as lesbian, gay, and transgender, therefore the rights of sexual minorities are classified as a collective rights or group rights or third generation human rights.

Sexual Minorities: Concept and Meaning

Sexual minorities can be defined as persons of a sexual orientation which is not part of the majority, or whose practices differ from the majority of the surrounding society . Sexual orientation is a term used to describe, “our patterns of emotional, romantic, and sexual attraction and our sense of personal and social identity based on those attractions”. Gay, lesbian, bisexual and straight are all examples of sexual orientations. Initially, the term sexual minorities referred primarily to lesbians and gays, but it has come to include bisexuals and the wide spectrum of transgendered people: lesbians, male homosexuals (gays), bisexuals, the transgendered (those whose gender identity does not match their assigned sex) and inter-sexed (those whose biological sex cannot be clearly defined as male or female). These days, they are often referred to in short as LGBTI. This term also includes people who may not identify themselves in any such category but may practice the same sexual activities. An example of this is men who have sex with men but who do not perceive themselves as gay or bisexual (MSM). Thus it can be seen that the term sexual minority is an umbrella term and it includes Lesbians, Gays, Bisexuals, Transgender and Inter- Sex, i.e. LGBTI.

Lesbian: A person who identifies as woman and has significant (to oneself) sexual or romantic attractions towards another woman, or who identifies as a member of the lesbian community. In India, this term is used to indicate bisexual women also.

Gay: A gay person is one who has significant (to oneself) sexual or romantic attractions primarily to members of the same gender or sex, or who identifies as a member of the gay community.

Bisexual: The term bisexual is generally used to describe people who are romantically and/or sexually attracted to people of more than one sex or gender.

Transgender: Transgender describes people whose innate sense of gender identity is different from the gender (female or male) assigned to them at birth. Transgender includes people who adopt or seek gender modification or social identities to reflect their self-identified gender. It includes those who transgress the social gender norms of the society they belong to and this term is often used as an umbrella term to mean all the people who defy rigid, binary gender constructions, and who express or present a breaking and/or blurring of culturally prevalent/stereotypical gender roles.

Inter-Sex: According to Inter- Sex Association of North America, Intersex is a general term used for a variety of conditions in which a person is born with a reproductive or sexual anatomy that doesn’t seem to fit the typical definitions of female or male. For example, a person might be born appearing to be female on the outside, but having mostly male-typical anatomy on the inside. Or a person may be born with genitals that seem to be in-between the usual male and female types, for example, a girl may be born with a noticeably large clitoris, or lacking a vaginal opening, or a boy may be born with a notably small penis, or with a scrotum that is divided so that it has formed more like labia. Or a person may be born with mosaic genetics, so that some of her cells have XX chromosomes and some of them have XY.

It is to be noted here that the sexual minorities are having a sexual orientation which is different from the majority practice in the society. Thus heterosexual are does not come under the purview of sexual minorities. Various studies have shown that Lesbian, Gay, Bisexual, and Transgendered people experience discrimination in countries around the globe. For example, in over seventy-eight countries, homosexual acts are illegal and parts of seven countries still retain the death penalty for homosexual acts. In states where homosexual acts are not penalized, LGBT people frequently experience more subtle discrimination through national laws, for example, in the area of employment and family life. Even in states with legislation that specifically protects LGBT people, violent crimes against LGBT people occur with increasing frequency.

Protection of Sexual Minorities at International Level: Various Initiatives

It is generally accepted in the contemporary international law that, all people, regardless of their sexual orientation or gender identity, should have access to all human rights described in the Universal Declaration of Human Rights. Everyone has a sexual orientation and a gender identity. When someone’s sexual orientation or gender identity does not conform to the majority they are often seen as a legitimate target for discrimination or abuse. Not only are millions of people across the globe facing execution, imprisonment, torture, violence and discrimination because of their sexual orientation or gender identity, but the very consideration of the issue is seen by many states as a threat to the core principle of the universality of human rights.

At the international level there is no human rights instrument which specifically addresses the rights of sexual minorities. For example, the Magna Carta of human rights, i.e. the Universal Declaration of Human Rights, provides under Article 2 that all human beings are entitled to the rights enunciated in the document and explicitly states that this entitlement shall apply “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. However, it does not refer to sexual minorities or people having different sexual orientation. The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights are also does not refer sexual orientation and protection of people with different sexual orientation, i.e. sexual minorities. Though there no explicit reference to sexual minorities under any of the human rights instruments, it does not mean that the international human rights law is not applicable to sexual minorities. This is because in recent decades there is a tendency to include the term sexual orientation in major international human rights instruments while interpreting its provisions.

One of the most important interpretations for the protection of sexual minorities under the general human rights law is given by the Human Rights Committee in the case of Toonen v. Australia. In this case Toonen, the complainant argued that Tasmanian law criminalizing consensual sexual conduct between adults breached the ICCPR in relation to articles relating to antidiscrimination and privacy. The HR Committee found that the law breached Toonen’s right to privacy under Article 17. The Committee held that, “sex” in Article 2(1) of the ICCPR must be read as including sexual orientation. Further, the Committee states that sexual orientation is neither a reasonable nor objective criterion for an exception to the prohibition of discrimination.

The Human Rights Committee in the case of Young v. Australia, held that not granting a same sex partner the deceased partner’s veteran’s pension constituted discrimination on the basis of sexual orientation and explicitly stated that sexual orientation is protected under the “other status” category in Article 26 of the ICCPR. Further in X v. Colombia, it was held that the denial of pension transfer on the basis of sexual orientation amounts to violation of Article 26 of ICCPR. Therefore in the word ‘sex’ and ‘other status’ in international human rights treaties should include sexual minorities or persons with different sexual orientations. Thus it can be seen that the jurisprudence of the HR Committee suggests that the general human rights treaties though not directly addresses the rights of sexual minorities, protects their rights indirectly.

The interpretations given by Human Rights Committee was followed by other UN Treaty bodies and expressly held that their respective treaties encompass sexual orientation rights. The Committee on Economic, Social, and Cultural Rights has stated that the International Covenant on Economic, Social, and Cultural Rights protects sexual minorities. The Committee observed that, “Non-discrimination is among the most fundamental principles of international human rights law. ICESCR proscribes any discrimination in access to health care and underlying determinants of health, as well as to means and entitlements for their procurement, on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS), sexual orientation and civil, political, social or other status, which has the intention or effect of nullifying or impairing the equal enjoyment or exercise of the right to health”.

The UN Committee on the Rights of the Child has interpreted Article 2 of the Convention on the Rights of the Child as barring disparity between heterosexual and homosexual couples’ age of consent. While interpreting the provisions of CEDAW, in 1999, the Committee on the Elimination of Discrimination against Women recommended that “lesbianism be re-conceptualized as a sexual orientation and those penalties for its practice is abolished”.

Likewise while interpreting the provisions of Convention against Torture, The UN Committee Against Torture, in General Comment No. 2, stated the following: The principle of non-discrimination is a basic and general principle in the protection of human rights and fundamental to the interpretation and application of the Convention. . . States parties must ensure that, insofar as the obligations arising under the Convention are concerned, their laws are in practice applied to all persons, regardless of . . . sexual orientation, transgender identity. . . or any other status or adverse distinction19. In 2004, the Committee on the Rights of the Child recognized that children and adolescents under the age of 18 who are subject to discrimination are more vulnerable to abuse and their health and development are put at risk. The Committee expanded the enumerated grounds for protection against discrimination in Article 2 to “cover adolescent’s sexual orientation and health status (including HIV/AIDS and mental health)”.

Thus it can be seen that, the UN treaty bodies have declared that rights of sexual minorities are subsumed by existing provisions in their respective treaties. For example, the UN Human Rights Committee has announced that “sexual orientation” is subsumed by the ICCPR’s protection against discrimination on the basis of “sex.” Likewise, the UN Committee on Social, Economic, and Cultural Rights has suggested that “sexual orientation” is a ground for protection that is subsumed by the ICESCR’s “other status” grounds.

It is to be noted here that, the treaty bodies are not the only organs that declared human rights to sexual minorities. In 1993, the UN held the World Conference on Human Rights in Vienna. This was the first UN event that invited LGBTI NGOs to participate. In negotiations over the final conference statement, Canada proposed adding “sexual orientation” to the listed grounds prohibiting discrimination, but it was decided to not include any list. Instead, the Vienna Declaration and Programme of Action states that “all human rights are universal, indivisible, and interdependent and interrelated”. In 1995, during the Fourth World Conference on Women, held in Beijing, there was another attempt to include a reference to “sexual orientation” in the final statement. After an hour debate on the issue, it was decided to omit any such references.

In April 2003, the Brazilian delegation to the United Nations Commission on Human Rights introduced a resolution prohibiting discrimination on the basis of sexual orientation to the United Nations Commission on Human Rights . The resolution states 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”. Though this declaration can be considered as a historic move, the United Nations Commission on Human Rights repeatedly postponed voting on this resolution due to sever opposition. As a result, this resolution failed.

In 2006 a team of experts gathered together in Yogyakarta, Indonesia to discuss recent violations of individuals’ human rights because of their sexuality. In an attempt to fill a gap in international human rights law consisting in the fact that there was no major international document or agreement relating directly to the legal status of sexuality, to which countries could look for guidance, the experts developed and adopted the Yogyakarta Principles on the application of international human rights law in respect to persons of different sexual orientation or gender identity. These Principles represent the expert interpretations of existent human rights law and how it applies to sexual minorities.

In December 2008, the proposed United Nations Declaration on Sexual Orientation and Gender Identity was presented to the United Nations General Assembly. It was initiated as a statement by the French and Dutch, and backed by the European Union. It clearly articulates sexual orientation and gender identity as legitimate grounds for protection from discrimination in international human rights law. Furthermore, this proposed declaration names and condemns several human rights violations based on sexual orientation and gender identity, including violence, harassment, discrimination, exclusion, stigmatization, prejudice, killings, executions, torture, arbitrary arrest, deprivation of economic, social and cultural rights. It also called upon the Human Rights Council and treaty bodies to continue integrating the consideration of human rights violations based on sexual orientation and gender identity within their mandate. This Declaration is a non-binding instrument and it was passed with support from 66 countries.

In March 2011, Colombia delivered a Joint Statement on ending acts of violence and related human rights violations based on sexual orientation or gender identity to the Human Rights Council on behalf of more than 80 UN Member states. This statement publicly acknowledged the unacceptable treatment of people in all regions of the world on the basis of their sexual orientation or gender identity. However, the number of States that did not participate in the Joint Statement underscores the global tension surrounding the issue. Then, in June 2011, the UN Human Rights Council adopted Resolution 17/19 recognizing the acts of violence and discrimination committed against LGBTI persons around the world and requesting a report from the UN Office of the High Commissioner for Human Rights. In response to this resolution, the Office of the High Commissioner for Human Rights submitted a Report to the Human Rights Council outlining the problems facing the LGBTI community and reiterating each State’s duty to protect the rights of all citizens. The report recommends that all States investigate serious acts of violence, repeal laws criminalizing homosexuality, and enact legislation to prevent discrimination on the basis of sexual orientation or gender identity.

In 2015, Office of the United Nations High Commissioner for Human Rights submitted a report to the Human Rights Council. It expressly states that, “all human beings, irrespective of their sexual orientation and gender identity, are entitled to enjoy the protection of international human rights law with respect to the rights to life, security of person and privacy, to freedom from torture and ill-treatment, discrimination and arbitrary arrest and detention, and to freedom of expression, association and peaceful assembly, and all other civil, political, economic, social and cultural rights”.

In sum, it can be seen that, according to various UN treaty monitoring bodies and other initiatives under the system of UN, the sexual minorities are protected by existing human rights treaties.

Conclusion:

To sum up, we learnt the international legal regime relevant to the protection of the rights of sexual minorities. This discussion began by understanding the meaning of ‘sexual minorities’ and the various sections of the people that constitute sexual minorities (transgender, gay & lesbian, bisexual, inter-sex etc.). The discussion then introduced various international legal instruments which provide for the rights of sexual minorities. Universal Declaration of Human Rights serves as the magna carta of human rights and guarantees them equally to sexual minorities as well. We then learnt about other instruments like the Child Rights Convention, CEDAW, Convention Against Torture, ICCPR and also the actions taken by the Office of the United Nations High Commissioner for Human Rights.

Reference

1. Joshua Hepple, “Will Sexual Minorities Ever Be Equal? The Repercussions of British Colonial ‘Sodomy’ Laws”, The Equal Rights Review, Vol. Eight (2012), 50.
2. Impact of the Naz Foundation Judgment on The Gay, Bisexual and Transgender People in Delhi: An Empirical Investigation, available at http://www.jgu.edu.in/chlet/PDF/Report_ImpactFoundation_publication.pdf.
3. Braun, Kerstin. “Do Ask, Do Tell: Where is the Protection against Sexual Discrimination in International Human Rights Law?” American University International Law Review 29 no. 4 (2014): 871-903.
4. H.R. Comm. Commc’n 488/1992, Toonen v. Australia, 50th Sess., U.N. Doc. CCPR/C/50D/488 (Dec. 25, 1992).
5. H.R. Comm. Commc’n 941/2000, Young v. Australia, 78th Sess., July 14– Aug. 8, 2003, U.N. Doc. CCPR/C/78/D/94/2000, at 10.2–13 (Sept. 18, 2003).
6. UN Human Rights Council, Joint Statement on ending acts of violence and related human rights violations based on sexual orientation or gender identity on 22nd March 2011.
7. See, Human Rights Council, Resolution 17/19: Human Rights, Sexual Orientation and Gender Identity, on 17th June 2011.