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Sexual Orientation and Human Rights

Introduction
Rights at Stake
International and Regional Instruments of Protection and Promotion
National Protection and Service Agencies
Advocacy, Educational and Training Materials
Other Resources


Introduction

What is sexual orientation?
Sexual orientation is an enduring emotional, romantic, sexual or affectional attraction to another person. It can be distinguished from other aspects of sexuality including biological sex, gender identity (the psychological sense of being male or female) and the social gender role (adherence to cultural norms for feminine and masculine behavior).

Sexual orientation exists along a continuum that ranges from exclusive homosexuality to exclusive heterosexuality and includes various forms of bisexuality. Bisexual persons can experience sexual, emotional and affectional attraction to both their own sex and the opposite sex. Persons with a homosexual orientation are sometimes referred to as gay (both men and women) or as lesbian (women only).

Sexual orientation is different from sexual behavior because it refers to feelings and self-concept. Persons may or may not express their sexual orientation in their behaviors. The word homosexual is usually avoided because of its negative connotations relating to the way it has been used in the past.

Sexual orientation is a relatively recent notion in human rights law and practice and one of the controversial ones in politics. Prejudices, negative stereotypes and discrimination are deeply imbedded in our value system and patterns of behaviour. For many public officials and opinion-makers the expression of homophobic prejudice remains both legitimate and respectable - in a manner that would be unacceptable for any other minority.

The main principles guiding the rights approach on sexual orientation relate to equality and non-discrimination. Human rights advocates, lawyers and other activists seek to ensure social justice and guarantee the dignity of lesbians, gays and bisexuals.

 

 


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Rights at Stake

Lesbians, gays and bisexuals do not claim any 'special' or 'additional rights' but the observance of the same rights as those of heterosexual persons.

Lesbian, gay, bi-sexual and transgendered (LGBT) persons are denied - either by law or practices - basic civil, political, social and economic rights. The following violations have been documented in all parts of the world:

Through special criminal provisions or practices on the basis of sexual orientation, in many countries lesbians, gays and bisexuals are denied equality in rights and before the law. Often laws maintain a higher age of consent for same sex relations in comparison with opposite sex relations.

The right to non-discrimination and to be free from violence and harassment is usually denied by omitting sexual orientation in anti-discrimination laws, constitutional provisions or their enforcement.

The right to life is violated in states where the death penalty is applicable for sodomy.

The right to be free from torture or cruel, inhuman or degrading treatment is infringed upon by police practices, in investigations or in the case of lesbians, gays and bisexuals in detention.

Arbitrary arrest occurs in a number of countries with individuals suspected of having a homo/bisexual identity.

The freedom of movement is denied to bi-national couples by not recognizing their same sex relation.

The right to a fair trial is often affected by the prejudices of judges and other law enforcement officials.

The right to privacy is denied by the existence of 'sodomy laws' applicable to lesbians, gays and bisexuals, even if the relation is in private between consenting adults.

The rights to free expression and free association may either be denied explicitly by law, or lesbians, gays and bisexuals may not enjoy them because of the homophobic climate in which they live.

The practice of religion is usually restricted in the case of lesbians, gays and bisexuals, especially in the case of churches advocating against them.

The right to work is the most affected among the economic rights, many lesbians, gays and bisexuals being fired because of their sexual orientation or discriminated in employment policies and practices.

The rights to social security, assistance and benefits, and from here - the standard of living - are affected, for example when they have to disclose the identity of their spouse.

The right to physical and mental health is at conflict with discriminatory policies and practices, some physicians' homophobia, the lack of adequate training for health care personnel regarding sexual orientation issues or the general assumption that patients are heterosexuals.

The right to form a family is denied by governments by not-recognizing same sex families and by denying the rights otherwise granted by the state to heterosexual families who have not sought legal recognition, but still enjoy several rights. Children can also be denied protection against separation from parents based of a parent's sexual orientation. Lesbians, gay and bisexual couples and individuals are not allowed to adopt a child, even in the case of the child of their same sex partner.

Lesbian, gay and bisexual students may not enjoy the right to education because of an unsafe climate created by peers or educators in schools.

 


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International and Regional Instruments for Protection

International legal instruments take the form of a treaty (also called agreement, convention, protocol) which may be binding on the contracting states. When negotiations are completed, the text of a treaty is established as authentic and definitive and is "signed" to that effect by the representatives of states. There are various means by which a state expresses its consent to be bound by a treaty. The most common are ratification or accession. A new treaty is "ratified" by those states who have negotiated the instrument. A state which has not participated in the negotiations may, at a later stage, "accede" to the treaty. The treaty enters into force when a pre-determined number of states have ratified or acceded to the treaty.

When a state ratifies or accedes to a treaty, that state may make reservations to one or more articles of the treaty, unless reservations are prohibited by the treaty. Reservations may normally be withdrawn at any time. In some countries, international treaties take precedence over national law; in others, a specific law may be required to give an international treaty, although ratified or acceded to, the force of a national law. Practically all states that have ratified or acceded to an international treaty must issue decrees, amend existing laws or introduce new legislation in order for the treaty to be fully effective on the national territory.

The binding treaties can be used to force government to respect the treaty provisions that are relevant for the human rights of LGBT. The non-binding instruments, such as declarations and resolutions, can be used in relevant situations to embarrass governments by public exposure (governments who care about their international image).

The following international and regional treaties determine standards for the protection of lesbian, gay, bisexual and transgendered persons:

 

UNITED NATIONS

ILO Convention (No. 111) on Discrimination in Employment or Occupation (1958) (article 1) This treaty of the International Labour Organization does not itself prohibit discrimination on the basis of sexual orientation, but permits state parties to add additional grounds. In Australia implementation of the Convention in domestic law contributed to the ban on lesbians and gay men in the armed forces in 1992.

International Covenant on Civil and Political Rights (1966) (article 2, 26)
For sexual orientation the Covenant - the main international treaty on civil and political rights - is important because in 1994, in the case Toonen vs. Australia, the Human Rights Committee held that the references to "sex" in Articles 2, paragraph 1, (non-discrimination) and 26 (equality before the law) of the ICCPR should be taken to include sexual orientation. As a result of this case, Australia repealed the law criminalizing sexual acts between males in its state of Tasmania. With this case, the Human Rights Committee created a precedent within the UN human rights system in addressing discrimination against lesbian, gays and bisexuals.

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) (article 1)
This treaty is important because it is not limited to state actors (governments), as torture is defined broadly in Article 1: "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, where such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity". This shows the intention to address cases falling within the scope of the treaty when a state does not investigate or prevent them.

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (1979)
This treaty can be relevant in cases of discrimination against lesbian, bisexual or transgender women.

Convention on the Rights of the Child (1989) (article 2)
Article 2 of the Children's Convention prohibits discrimination and requires governments to ensure protection against discrimination. This treaty can be relevant in addressing sexual orientation discrimination of lesbian, gay or bisexual children and/or parents.

United Nations High Commissioner for Refugees
Since April 1993 the United Nations High Commissioner for Refugees (UNHCR) has recognized in several Advisory Opinions that gays and lesbians qualify as members of a "particular social group" for the purposes of the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees. In its publication "Protecting Refugees," the UNHCR states: "Homosexuals may be eligible for refugee status on the basis of persecution because of their membership of a particular social group. It is the policy of the UNHCR that persons facing attack, inhuman treatment, or serious discrimination because of their homosexuality, and whose governments are unable or unwilling to protect them, should be recognized as refugees." (UNHCR/PI/Q&A-UK1.PM5/Feb. 1996)

UN extra-conventional mechanisms

The UN non treaty-based mechanisms are particularly useful in emergency situations. The Commission on Human Rights - the main UN body to discuss human rights, adopts resolutions and initiates new treaties - works mainly through its Special Rapporteurs (appointed for countries or themes) and its Working Groups.

Two of the Special Rapporteurs have addressed sexual orientation in their reports and actions: The Special Rapporteur on Extra-judicial, Summary or Arbitrary Executions and the Special Rapporteur on Violence Against Women.

 


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AFRICAN UNION (FORMERLY ORGANIZATION OF AFRICAN UNITY, OAU)

African Charter on Human and Peoples' Rights (1981)
This treaty was adopted by the Organization of African Unity (now African Union) and is the most widely accepted regional human rights instrument, having been ratified by more than fifty countries. It condemns discrimination and provides for certain rights, but so far, its monitoring and enforcing body -- the African Commission on Human and Peoples' Rights -- has not yet officially dealt with sexual orientation.


COUNCIL OF EUROPE

Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (article 8, 14)
Sexual orientation is not mentioned explicitly in any of the provisions of the Convention. Nonetheless, the relevance of the Convention (usually called European Convention on Human Rights, abbreviated as ECHR) was established in a series of cases where the European Court of Human Rights found that discrimination in the criminal law regarding consenting relations between adults in private is contrary to the right to respect for private life in article 8 ECHR (Dudgeon v UK, 1981, Norris v Ireland, 1988, Modinos v Cyprus, 1993). The court was the first international body to find that sexual orientation criminal laws violate human rights and has the longest and largest jurisprudence in addressing sexual orientation issues. The case law also includes an 1997 decision of the European Commission on Human Rights (former first body for individual complaints) that a higher age of consent for male homosexuals acts from that for heterosexual acts was discriminatory treatment contrary to Article 14 ECHR in respect of the enjoyment of the right to privacy (Sutherland v UK).

Regarding sexual orientation discrimination in the military services, the Court held that the ban on homosexuals in the military was in breach of Article 8 ECHR (Lustig-Prean and Beckett v UK, 2000). Also in 2000, the Court held that, through the conviction of a man for having homosexual group sex in private, a State is in violation of the Convention (A. D. T v UK).

The Court also held in Salgueiro da Silva Mouta v Portugal that a homosexual father cannot be denied custody of his child based on his (homo)sexual orientation, the matter infringing upon the father's right to family life in Article 8 ECHR. The Court confirmed that Article 14 ECHR (non discrimination) was to be interpreted as including sexual orientation.

However, the Court views on the application of the Convention on sexual orientation issues have some limits, as for instance the Court held that gay sadomasochistic practices, although in private and between consenting adults, can be outlawed for reasons of health (Laskey, Jaggard, and Brown v UK, 1997).

The Court also decided that the 'right to respect for privacy and family life' is not applicable in the case of a transgender relationship and confirmed UK's decision that only a biological male, not a female-to-male transgender, can be recognized as a father (X, Y and Z v UK, 1997).

European Social Charter (1961)
This treaty protects social and economic rights and its European Committee of Social Rights examines the human rights record of states. It can hear opinions only from groups that have a consultative status with the Council of Europe, such as the International Lesbian and Gay Association (ILGA).

The Commissioner for Human Rights was appointed by the Council of Europe in 1999. The office of the Commissioner for Human Rights is an independent institution within the Council of Europe that aims to promote awareness of and respect for human rights in its member States. The Commissioner can receive individual complaints and has addressed sexual orientation issues in his reports and visits to member states.

The Parliamentary Assembly of the Council of Europe has an important role in monitoring the human rights situation in the member states and the states seeking membership with the Council of Europe. Various states repealed their criminal laws against lesbians, gays and bisexuals before being admitted as members or continued to be pressed for compliance with promises made at the time of becoming member of the Council.

The Assembly adopted several (non-binding) resolutions and recommendations regarding sexual orientation and Council of Europe's standards: Recommendation 924/1981 was the first and aimed at ending discrimination against lesbians, gays and bisexuals and it was followed by several resolutions calling upon Member States to guarantee asylum related rights to those prosecuted on the basis of their sexual orientation, grant residence and immigration rights to bi-national same sex couples, and same sex registered partnership rights.

 


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EUROPEAN UNION (EU)

Several European Union laws offer protection from discrimination based on sexual orientation and additional requirements refer to the human rights situation in accession countries.

The founding treaties on the EU were amended in the Treaty of Amsterdam to enable EU to fight sexual orientation discrimination. On May 1, 1999 the following provision in Article 13 EC Treaty entered into force in the first ever international treaty to explicitly mention and protect sexual orientation: "[…] the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation".

In December 2000, the 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. The Framework Directive is binding upon the current member states, while the accession states are required to have completed national implementation of the Directive before joining the EU.

The Charter of Fundamental Rights of the European Union is meant to be the EU code of fundamental rights and was proclaimed in Nice in December 2000. The Charter currently is a non binding document but is important since it expresses the EU vision on human rights. For lesbians, gay and bisexuals the Charter is important because of the explicit non-discrimination provisions in Article 21 (1): "Any discrimination based on any ground such as sex, race, color, ethnic or social origin, genetic features, language, religion or belief, political or other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited".

The European Parliament (EP) passed several (non binding) resolutions on human rights and sexual orientation, the first, adopted in 1984, calling for an end to work related discrimination on the basis of sexual orientation. In 1994, the "Roth" Report detailed the variety of discrimination against lesbians and gays in the EU and the Parliament adopted a recommendation on the abolition of all forms of sexual orientation discrimination. Although its power is limited, EP can exert a significant political influence on the Council and the Commission as in 1999 it requested them "to raise the question of discrimination against homosexuals during membership negotiations, where necessary". Regarding the enlargement of the European Union, the EP adopted in 1998 a resolution stating that it "will not give its consent to the accession of any country that, through its legislation or policies violates the human rights of lesbians and gay men".

European Union law regards discrimination against transgender persons as a form of sex discrimination. This principle was established by the Court of Justice in the 1996 case of P v S and Cornwall County Council, where it was held that the dismissal of an individual following gender reassignment was unlawful discrimination on the grounds of her sex. (Case C-13/94, P v S and Cornwall County Council [1996] ECR I-2143). "Gender identity discrimination" is the term now generally used to describe discrimination against transgender persons.


ORGANIZATION OF AMERICAN STATES (OAS)

 

The first case on human rights and sexual orientation in the Inter-American system is that of Marta Alvarez who brought a petition against Columbia before the Inter-American Commission on Human Rights (Velasquez Rodriguez v Honduras, 1998). She was denied the right to equal treatment through the refusal of Colombian prison authorities to grant her the conjugal visits with her partner because of her sexual identity as a lesbian. Colombian law states that conjugal visits are a right for all its citizens, without regard to sexual orientation.


ORGANIZATION FOR SECURITY AND COOPERATION IN EUROPE (OSCE)

The Organization for Security and Co-operation in Europe (OSCE) is the largest regional security organization in the world with 55 participating States from Europe, Central Asia and North America. OSCE was created by the 1975 Helsinki Final Act which contained a provision to "respect … human rights and fundamental freedoms, including freedom of thought, conscience and religion, and belief", as well as "equal rights and self-determination of peoples".

The Parliamentary Assembly of the OSCE passed a declaration in Ottawa in 1995 calling on member states to provide equal protection against discrimination for all, sexual orientation being among the grounds specifically protected from discrimination.

 


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National Protection and Service Agencies

National protection on the basis of sexual orientation exists in several states, in law, in practice or both, but it is far from being an accepted norm around the world.

Several states or provinces have clauses in their constitutions regarding protection against discrimination based on sexual orientation, as it is the case of South Africa, Ecuador, several states in Australia, Canada and Brazil. Other states have sexual orientation anti-discrimination laws or articles in the Penal Code, for example The Netherlands and Romania. The anti-discrimination provisions are adopted usually by including sexual orientation among the non-discrimination grounds from the beginning in the draft legal initiatives.

In practice, the implementation of existing anti-discrimination provisions is dependent on the political will. Some states created public agencies to investigate (sexual orientation) discrimination, and some of them can initiate legal actions for remedies to the benefit of the victim (The Netherlands, Sweden, Ireland).

The European Union's Framework Directive on Equal Treatment in Employment is currently the only international instrument obliging EU member states and, at a later stage, the candidate states to EU membership, to implement anti-discrimination policies at national level, based on, among other grounds, sexual orientation.

 


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Advocacy, Educational and Training Materials

For advocates

Making the Mountain Move: An Activist's Guide to How International Human Rights Mechanisms Can Work for You (International Gay and Lesbian Human Rights Commission)
This is a guide to accessing and using the various UN and regional systems of human rights protection. It highlights the various UN treaties, monitoring committees and special rapporteurs and provides information on the African and Inter-American human rights systems, and the various human rights bodies in Europe. The guide is specifically intended for use by activists working to defend the rights of lesbian, gay, bisexual, and transgender (LGBT) people as well as people living with HIV/AIDS, yet should be useful for anyone involved in human rights work.


For teachers

A Guide to Effective Statewide Laws/Policies: Preventing Discrimination Against LGBT Students in K-12 Schools (Gay Lesbian and Straight Education Network)
This guide is a part of ongoing educational outreach to the youth and their advocates who struggle everyday in schools to get a safe and sound education in the USA. The document presents the key legal and political considerations that should inform advocates' decisions about what actions to take at the state level.

Lesbian, Gay, Bisexual, and Transgender Rights: A Human Rights Perspective (Dave Donahue)
This curriculum is intended to further thoughtful examination and responsible action among high school students about LGBT issues. Unlike other curricula, however, this discussion is not in the context of civil or political rights but in the broader context of human rights. These rights, as defined in the Universal Declaration of Human Rights, include, among others, the right to education, identity, security, assembly, expression, employment, health, and family - all relevant to the current discussion of lesbian, gay, bisexual, and transgender rights. The activities in this curriculum promote appropriate action in addition to reflection and discussion. Students are asked to take responsibility for the homophobia that causes human rights abuses.

What Must be Done to Achieve Equality? (Amnesty International - USA Educators' Network)
In this lesson plan students consider the responsibility people have for themselves and others in efforts to end discrimination. Students also explore the relative importance of changing legislation, changing attitudes, and taking action in order to achieve equality.

Zero Indifference: A How-to Guide to Ending Name-Calling in Schools (Nancy Goldstein, GLSEN)
This guide spells out the legal and ethical case for stopping name-calling in schools yet also is a practical guide for intervention and education.


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Other Resources

Links to organisations that advocate for and educate about gay rights

World Legal Survey [survey of the legal position for lesbians, gays and transgendered people] (by International Lesbian and Gay Association, ILGA)

 

 

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Key terms

Age of consent - age provided by law for engaging in consenting sexual relations.

Homophobia - irrational fear of, or hatred against people emotionally and sexually attracted to persons of the same sex. If directed against transgender persons it is called transphobia.

LGBT - Lesbian, Gay, Bisexual and Transgender

Sodomy laws - legal provisions criminalizing same sex relations. While the wording of such laws usually refer to sexual acts, in practice laws are often enforced to criminalize the homo/bisexual identity.

Transgender identity - refers to a compelling sense that one's gender identity is not in conformity with the psychological characteristics of the sex one is born with. This may lead some to seek gender reassignment.

"All human beings are born free and equal in dignity and rights" Universal Declaration of Human Rights, Article 1

Some facts

- Homosexuals are subject to the death penalty in twelve countries in the world

- In about 30 countries or provinces lesbians, gays and bisexuals are subject to a discriminatory age of consent

- In more than 40 states around the world same sex acts are illegal

- In about 15 countries or provinces the free association and free expression of lesbians, gays and bisexuals are denied explicitly through legal provisions

- About 30 countries have some form of protection against discrimination based on sexual orientation

- Some form of recognition of same sex partnership exists in 10 countries

Source: The International Lesbian and Gay Association website (www.ilga.org) (May 2002)

Historical dates

1867 - The first time that a self-proclaimed gay person spoke out publicly for gay rights (Karl Heinrich Ulrichs)

1869 - First published use of the term homosexuality ('Homosexualität' in German) by Károly Mária Kertbeny

1897 - In Berlin Magnus Hirschfeld founded the Scientific-Humanitarian Committee - the world's first organization committed to ending legal and social intolerance of homosexuals

1969 - The Stonewall Rebellion started on the night of 27/28th June in New York City. It becomes a reference point for the LGBT movement worldwide.

1974 - The first International 'Gay' Rights Conference is held in Edinburgh, Scotland

1981 - The first decision of an international court on sexual orientation issues (European Court of Human Rights: Dudgeon v UK)

1989 - Denmark is the first country in the world to give legal recognition to same-sex partnerships

1999 - Treaty of Amsterdam enters into force (European Union) - the first international treaty to explicitly mention and protect sexual orientation

This guide was developed by Adrian Coman.

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