Discrimination based on the real or perceived sexual orientation and gender identity is drawing increasing attention from international and regional human rights bodies. People may self-identify or be perceived by others as being lesbian, gay, bisexual, transgendered (LGBT), intersex or gender non-conforming but wherever they may fall on the spectrum of gender and sexuality, they are in many places targets of state and non-state actors alike. Examples of grave human rights violations suffered by LGBT people include extrajudicial killings, torture and ill-treatment, sexual assault and rape, invasions of privacy, arbitrary detention, denial of employment and education opportunities. In short lesbian, gay, bi-sexual and transgendered persons are denied - either by law or practices - basic civil, political, social and economic rights. Heteronormative standards prevail and LGBT, intersex and gender non-conforming persons are identified as deviate/deviant, mentally ill or criminal in many countries. At least seven countries maintain the death penalty for consensual same-sex practices. More than 80 countries still maintain laws that make same-sex consensual relations between adults a criminal offence. In many places where homosexual acts are not explicitly criminalised, people are still subject to discrimination, harassment, humiliation and abuse based on their perceived or real sexual orientation or gender identity.
To date, there are no international human rights instruments dealing specifically with sexual orientation and/or gender identity but key human rights principles essential for the effective protection of LGBT people can be found in existing international instruments such as the ICCPR, CEDAW, CAT, ICESCR and CRC. Regional instruments applicable to violations based on sexual orientation and gender identity include the ACHPR, the ECHR and the ACHR.
Some of the earliest considerations of sexual orientation in the international arena were Recommendation 924 and Resolution 756 on sexual discrimination passed in 1981 by the European Parliament, which specifically condemned discrimination against homosexuals and called upon member states to report any provisions in their laws that discriminated against homosexuals. The Treaty of Amsterdam, which entered into force in 1999, amended the founding treaties of the European Union, which did not have a particular emphasis on non-discrimination. Article 13 of the Amsterdam Treaty empowered the European Council to combat discrimination on the grounds of sexual orientation and marked the first inclusion of sexual orientation in the non-discrimination clause of any international treaty. The Framework Employment Directive, 2000/78, based on Article 13, prohibits discrimination based on sexual orientation in employment and occupation.
In March 2007 a panel of international experts published the ‘Yogykarta Principles’ on the application of international human rights law in relation to sexual orientation and gender identity. The Principles affirm binding international legal standards with which all states must comply. The Principles affirm the primary obligation of states to implement human rights but also emphasise that all actors have responsibilities to promote and protect human rights. Recommendations are therefore addressed to state and non-state actors alike, including the UN, NHRI’s and NGOs.
The consideration of sexual orientation and gender identity within the human rights framework has evolved considerably since the 1980s. Despite the absence of explicit reference to sexual orientation and gender identity in the existing international human rights treaties, the treaty bodies have gradually incorporated this aspect of rights within the scope of their work. The development of this sexual orientation and gender identity-related human rights doctrine has centred on non-discrimination, the protection of privacy rights and ensuring enjoyment of human rights regardless of sexual orientation or gender identity.
In Toonen v. Australia the Human Rights Committee determined that the prohibition based on ‘sex’ encompasses the prohibition of discrimination on the grounds of sexual orientation and that a criminal prohibition on same-sex sexual activity, even if unenforced, constituted an unreasonable interference with the right to privacy. The Committee held in Joslin v. New Zealand that the denial of the right to marry to samesex couples did not constitute discrimination under the ICCPR. However, an individual concurring opinion concluded that ‘such differentiation may very well, depending on the circumstances of a concrete case, amount to prohibited discrimination’. In Young v. Australia and X v. Colombia the Committee found that distinctions made in law between the pension rights of same-sex partners and those of unmarried heterosexual partners constituted a prohibited discrimination under Article 26 ICCPR.
The ESCR Committee has indicated that the Covenant proscribes any discrimination on the grounds of, inter alia, sex and sexual orientation ‘that has the intention or effect of nullifying or impairing the equal enjoyment or exercise of [the right at issue]’ (General Comments No. 14, 15 and 18). In 2003 the CRC adopted General Comment No. 3 on HIV/AIDS and the rights of the child, expressing concerns about discrimination based on sexual orientation and gender non-conformity.
In December 2008, an historic declaration was read out in the UNGA on behalf of 66 states. This was the first time that a statement condemning abuses against lesbian, gay, bisexual, and transgender people has been presented in the UNGA. The declaration reaffirmed ‘the principle of non-discrimination, which requires that human rights apply equally to every human being regardless of sexual orientation or gender identity’. The declaration expressed deep concern ‘by violations of human rights and fundamental freedoms based on sexual orientation or gender identity,’ and the ‘violence, harassment, discrimination, exclusion, stigmatization and prejudice [?] directed against persons in all countries in the world because of sexual orientation or gender identity’.
The UN Special Procedures have increasingly dealt with abuses related to sexual orientation and gender identity. An example is the Special Rapporteur on extrajudicial, summary or arbitrary executions who has included sexual orientation as a factor to consider in his investigations. In its resolution 63/182 on extrajudicial, summary or arbitrary executions, adopted on 18 December 2008, the UNGA reaffirmed the mandate of the Special Rapporteur and urged all states
[t]o ensure the effective protection of the right to life of all persons under their jurisdiction and to investigate promptly and thoroughly all killings [...] committed for any discriminatory reason, including sexual orientation, [...] and to bring those responsible to justice before a competent, independent and impartial judiciary at the national or, where appropriate, international level, and to ensure that such killings, including those committed by security forces, police and law enforcement agents, paramilitary groups or private forces, are neither condoned nor sanctioned by State officials or personnel.
At the regional level, the European Court has dealt with both sexual orientation and gender identity. Dudgeon v. The United Kingdom was the first case before the Court involving homosexuality. It challenged the validity of the criminal prohibitions on male homosexual activity, also known as ‘sodomy laws’, and addressed the fact that there were not specific equality provisions considering sexual orientation in the ECHR (see also, e.g., Norris v. Ireland and Modinos v. Cyprus). The Court has, however, found inLaskey, Jaggard and Brown v. The United Kingdom that gay sadomasochistic practices, although in private and between consenting adults, may be outlawed for reasons of health. Goodwin v. The United Kingdom was a ground-breaking case for the rights of transgender people. Two transsexual women claimed discrimination when the state refused to change their legal identities after they completed gender-reassignment surgery. The Court found a violation of their right to privacy and the right to marry and affirmed the ‘right to gender identity and personal development’. Van Kuck v. Germanyconcerned a transsexual woman whose health-insurance company had denied her reimbursement for costs associated with sex-reassignment surgery and who had unsuccessfully sought redress in the domestic courts. The Court found violations of the right to a fair hearing and of the right to private life, holding that the state had failed to respect ‘the applicant’s freedom to define herself as a female person, one of the most basic essentials of self-determination’. In L. v. Lithuania the Court established that in the light of the ‘very essence of the ECHR being respect for human dignity and human freedom, protection is given to the right of transsexuals to personal development and to physical and moral security’. The Court ruled that the state is required to legislate for the provision of full gender-reassignment surgery whereby a person in the ‘limbo’ of partial reassignment could complete the process and be registered with the new gender identity. In Lustig-Prean and Beckett v. The United Kingdom, the Court found that a ban on homosexuals in the military violated the right to privacy and in A.D.T. v. The United Kingdom it held that a criminal conviction for homosexual group sex in private violated the right to privacy. In Salgueiro da Silva Mouta v. Portugal the Court held that denying a homosexual father custody of his child because of his sexual orientation violated the applicant’s right to family life. An important case for the family rights of LGBT people isE.B. v. France where the Court held that European countries could no longer justify exclusion of lesbian, gay and bisexual individuals from applying for adopting children. The applicant alleged that at every stage of her application for authorisation to adopt she had suffered discriminatory treatment that had been based on her sexual orientation and had interfered with her right to respect for her private life. The Court found a violation of the prohibition of discrimination in conjunction with the right to respect for private and family life.
European Union law regards discrimination against transgender persons as a form of sex discrimination. This principle was established by the European Court of Justice in 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. InTadao Maruko v. Versorgungsanstalt der Deutschen Bühnen the pension scheme for German theatres refused to pay the applicant a survivor’s pension after his partner died as such pensions were provided only for married partners. The European Court of Justice ruled that the refusal to grant the survivor’s pension to life partners constituted direct discrimination on grounds of sexual orientation.
The first case in the Inter-American human rights system involving sexual orientation was that of Marta Alvarez v. Colombia. The Inter-American Commission declared admissible a complaint against Colombia about prison rules that allowed conjugal visits for unmarried heterosexual couples but not homosexual ones. The Supreme Court of Colombia overturned the prohibition on homosexual conjugal visits in October 2001 on the ground that it was unlawful discrimination so the case was not examined on the merits by the Commission.
The African Commission has not dealt with any cases involving sexual orientation or gender identity.