Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles

Chapter 24

Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles

Michael O’Flaherty and John Fisher

Introduction

Worldwide, people are subject to persistent human rights violations because of their actual or perceived sexual orientation and gender identity. These human rights violations take many forms, from denials of the rights to life, freedom from torture, and security of the person, to discrimination in accessing economic, social and cultural rights such as health, housing, education and the right to work, from non-recognition of personal and family relationships to pervasive interferences with personal dignity, suppression of diverse sexual identities, attempts to impose heterosexual norms, and pressure to remain silent and invisible.

At least seven countries maintain the death penalty for consensual same-sex practices,¹ and numerous reports have documented persons killed or sentenced to death because of their sexual orientation or gender identity,² including a gay man sprayed with gasoline and set on fire in Belgium, the murder of a transgender human rights defender in Argentina, a nail bomb explosion in a gay bar in the United Kingdom, killing three people and injuring dozens of others, the murder of a gay rights activist by multiple knife wounds in Jamaica, prompting a crowd to gather outside his home, laughing and calling out ‘let’s get them one at a time’, and the recent execution-style murder of two lesbian human rights defenders in South Africa. Often killings based on sexual orientation or gender identity are perpetrated ‘by agents of the State, and their murders go unpunished. Indeed no prosecution is ever brought’.³

In a recent report,⁴ Amnesty International documents serious patterns of police misconduct directed against individuals in the United States because of their sexual orientation or gender identity, including profiling of such individuals as criminal, selective enforcement of laws, sexual, physical and verbal abuse, failure to respond or inadequate responses by the police to hate crimes and violence, as well as to situations of domestic violence that involve same-sex partners, inappropriate searches and mistreatment in detention and a lack of accountability for perpetrators.

Those who transgress gender norms are particularly likely to be targeted for violence. The organisation ‘Transgender Day of Remembrance’ estimates that one transgender person is killed every month in the US.⁵ In Nepal, métis (people born as men who identify as women) have been beaten by police with batons, gun butts and sticks, burnt with cigarettes and forced to perform oral sex.⁶

Transgender people are ‘often subjected to violence … in order to “punish” them for transgressing gender barriers or for challenging predominant conceptions of gender roles’,⁷ and transgender youth have been described as ‘among the most vulnerable and marginalized young people in society’.⁸ As one Canadian report underlines:

Violations directed against lesbians because of their sex are often inseparable from violations directed against them because of their sexual orientation.¹⁰ Community restrictions on women’s sexuality result in a range of human rights violations, such as the multiple rape of a lesbian in Zimbabwe, arranged by her own family in an attempt to ‘cure’ her of her homosexuality.¹¹ The Institute for Democracy in South Africa has reported that lesbians face violence twice as frequently as heterosexual women, and are at increased risk of being raped precisely because of their sexual orientation, often by someone they know.¹² According to the Institute, the reason most frequently cited for rape of lesbians was that the man needed to ‘show her’ she was a woman.¹³

The linkages between violence based on sex, sexual orientation, gender identity and gender expression are illustrated by a recent case in which a teenager in Dublin attacked a woman he mistook for a gay man because of her hairstyle. Approaching the woman and her male companion with the inquiry ‘are you two gay guys?’ he proceeded to strike the couple, knocking them to the ground, before kicking the woman in the back and stomach, and jumping on the man’s back.¹⁴

More than 80 countries still maintain laws that make same-sex consensual relations between adults a criminal offence.¹⁵ Recently, such laws were used in Morocco to convict six men, after allegations that a private party they had attended was a ‘gay marriage’,¹⁶ and in Cameroon 11 men were arrested in a bar believed to have a gay clientele in May 2005, and sent to prison where they spent more than a year, and a further six men were arrested on 19 July 2007, after a young man who had been arrested on theft charges was coerced by police into naming associates who were presumed to be homosexual.¹⁷ In other countries, laws against ‘public scandals’, ‘immorality’ or ‘indecent behaviour’ are used to penalise people for looking, dressing or behaving differently from enforced social norms.¹⁸ Even where criminal sanctions against homosexuality or ‘immorality’ are not actively enforced, such laws can be used to arbitrarily harass or detain persons of diverse sexual orientations and gender identities, to impede the activities of safer sex advocates or counsellors, or as a pretext for discrimination in employment or accommodation.¹⁹

Those seeking to peaceably affirm diverse sexual orientations or gender identities have also experienced violence and discrimination. Participants in an Equality March in Poland, for example, faced harassment and intimidation by police as well as by extremist nationalists who shouted comments such as ‘Let’s get the fags’, and ‘We’ll do to you what Hitler did with Jews’,²⁰ and attempted suppression of Pride events has been documented in at least 10 instances in Eastern Europe.²¹ State interference with such exercise of the freedoms of expression, assembly and association have included banning of Pride marches, conferences and events, condemnatory anti-homosexual comments by political representatives, police failure to protect participants from violence or complicity in such violence, and discriminatory or arbitrary arrests of peaceful participants.²²

Discrimination in accessing economic, social and cultural rights has been widely documented. People have been denied employment, employment-related benefits or faced dismissal because of their sexual orientation or gender identity.²³ In the context of the right to adequate housing, lesbian and transgender women have been found to be at increased risk of homelessness, discrimination based on sexual orientation or gender identity in renting accommodations has been experienced both by individuals and same-sex couples, and persons have been forced from their homes and communities when their sexual orientation or gender identity has become known.²⁴ Transgender persons may face particular obstacles in seeking to access gender-appropriate services within homeless shelters.²⁵ Materials referencing issues of sexual orientation and gender identity have been banned from school curricula, student groups addressing sexual orientation and gender identity issues have been prohibited, students have faced high levels of bullying and harassment because of their actual or perceived sexual orientation or gender identity, and in some cases young persons who express same-sex affection have been expelled.²⁶ In some countries, laws have prohibited the ‘promotion of homosexuality’ in schools.²⁷

Multiple health-related human rights violations based on sexual orientation and gender identity have also been documented. Lesbian, gay, bisexual and transgender persons have been forcibly confined in medical institutions, and subject to ‘aversion therapy’, including electroshock treatment.²⁸ Criminal sanctions against homosexuality have had the effect of suppressing HIV/AIDS education and prevention programs designed for men who have sex with men or persons of diverse sexual orientations or gender identities.²⁹ Transgender people report having been referred to by health professionals as ‘thing’, ‘it’, or ‘not a real man/woman’.³⁰ Intersex people have been subjected to involuntary surgeries in an attempt to ‘correct’ their genitals.³¹

In the health-sector and elsewhere, same-sex relationships are frequently unrecognised and devalued, with same-sex partners denied a broad range of entitlements available to heterosexuals, such as the right to make medical decisions for an incapacitated partner, to visit a partner or partner’s child in hospital, to inherit property or be involved in funeral arrangements when a partner dies, to have equal pension benefits, file joint tax returns, obtain fair property settlement if a relationship ends, or be recognised as a partner for immigration purposes.³²

Those who seek to advocate for an end to such violations or affirm the human rights of persons of diverse sexual orientations or gender identities are particularly at risk:³³

Although less tangible, perhaps even more systemic and far-reaching in consequence is the net result of such endemic human rights violations: the constant fear in which many persons of diverse sexual orientations and gender identities have to live.³⁴ As one man arrested and subsequently tortured following a police raid of a gay discotheque in Egypt noted: ‘I used to think being gay was just part of my life and now I know it means dark cells and beatings.’³⁵

Faced with obstacles to familial and social acceptance that may seem overwhelming, many lesbians, gays, bisexuals, transgender and intersex people remain invisible and isolated. The high rates of documented suicide by such people are consequently unsurprising.³⁶

Review of Law and Jurisprudence

There is a growing jurisprudence and other law-related practice that identifies a significant application of human rights law with regard to people of diverse sexual orientations and gender identities. This phenomenon can be observed at the international level, principally in the form of practice related to the United Nations-sponsored human rights treaties, as well as under the European Convention on Human Rights. The development of this sexual orientation and gender identity-related human rights legal doctrine can be categorised as follows: (a) non-discrimination, (b) protection of privacy rights, and (c) the ensuring of other general human rights protection to all, regardless of sexual orientation of gender identity. In addition, it is useful to examine (d) some general trends in human rights law that have important implications for the enjoyment of human rights by people of diverse sexual orientations and gender identities.

Non-Discrimination

The practice of the bodies that monitor implementation of the United Nations-sponsored human rights treaties relates to sexual orientation-related discrimination rather than to discrimination on the basis of gender identity.

The Committee on Economic, Social and Cultural Rights (CESCR) has dealt with the matter in its General Comments, the interpretative texts it issues to explicate the full meaning of the provisions of the Covenant on Economic, Social and Cultural Rights. In General Comments Nos 18 of 2005 (on the right to work),³⁷ 15 of 2002 (on the right to water)³⁸ and 14 of 2000 (on the right to the highest attainable standard of health),³⁹ it has indicated that the Covenant proscribes any discrimination on the basis 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]’. The CESCR has consistently based this prohibition on the terms of the Covenant’s anti-discrimination provision, Article 2.2, which lists invidious categories of discrimination as including ‘sex’ and ‘other status’. Presumably, since the CESCR distinguishes ‘sex’ and ‘sexual orientation’ in its General Comments, it locates sexual orientation within the rubric of ‘other status’. The CESCR, in the General Comments, also invokes the article addressing equal rights of men and women, Article 3, as a basis for its prohibition of sexual orientation-related discrimination. This linkage of the categories of sex and sexual orientation-related discrimination is discussed subsequently in the context of the practice of the Human Rights Committee (HRC).

The Committee on the Rights of the Child (CRC) has also dealt with the issue in a General Comment. In its General Comment No. 4 of 2003,⁴⁰ it stated that, ‘State parties have the obligation to ensure that all human beings below 18 enjoy all the rights set forth in the Convention [on the Rights of the Child] without discrimination (Article 2), including with regard to “race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status”. These grounds also cover [inter alia] sexual orientation’. The CRC thus appears to adopt the same approach as the CESCR in locating sexual orientation within the category of ‘other status’.

Both the CESCR and the CRC very occasionally raise issues of sexual orientation-related discrimination in the Concluding Observations they adopt on the periodic reports submitted to them by States parties on their record of implementation of the treaties (CESCR: regarding eight of the 70 States considered between 2000 and 2006, CRC: regarding five of the 186 States considered in the same period). These Concluding Observations have a non-binding and flexible nature. As such, they are not always a useful indicator of what a Committee may consider to be a matter of obligation under the Covenant. Nevertheless, where the Committee expresses concern or makes a specific recommendation for correction of a practice, we can discern that serious issues under the treaty are at issue.⁴¹ It is in this context that we may observe the CESCR’s regret, in 2005, that Hong Kong’s anti-discrimination legislation failed to cover sexual orientation-related discrimination⁴² and its concern, in 2000, that Kyrgyzstan classified lesbianism as a sexual offence in its penal code.⁴³

The Committee on the Elimination of Discrimination against Women (CEDAW), notwithstanding that it has not addressed the matter in a General Comment or otherwise specified the applicable provisions of the Convention on the Elimination of All Forms of Discrimination Against Women, on a number of occasions has criticised States for discrimination on the basis of sexual orientation. For example, it also addressed the situation in Kyrgyzstan and recommended that, ‘lesbianism be reconceptualised as a sexual orientation and that penalties for its practice be abolished’.⁴⁴ The Committee on the Elimination of Racial Discrimination (CERD) appears never to have engaged with issues of discrimination against persons who belong to both racial and sexual minority groups. This gap is startling when one considers the authoritative evidence of such persons facing forms of ‘double discrimination’, as reported, for instance, by the UN Human Rights Council’s Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance.⁴⁵

Issues of sexual orientation have received the most extensive attention in the work of the monitoring body under the International Covenant on Civil and Political Rights, the HRC. In the individual communication, Toonen v Australia, in 1994, it considered that, ‘the reference to “sex” in articles 2, paragraph 1, and 26 is to be taken as including sexual orientation’.⁴⁶ The HRC thus decided that sexual orientation-related discrimination is a suspect category in terms of the enjoyment of Covenant rights (Article 2) and, more generally, for equality before and equal protection of the law (Article 26). The HRC has persistently observed, however, that discrimination on the basis of sexual orientation, as is the case for all the other discrimination categories listed in Articles 2 and 26, is not inherently invidious, since ‘not every distinction amounts to prohibited discrimination under the Covenant, as long as it is based on reasonable and objective criteria’.⁴⁷

The HRC, in individual communications subsequent to Toonen, while reaffirming the scope of the Article 2.1 and 26 provisions to embrace sexual-orientation-related discrimination, has avoided specifying that this is by means of a reading of the term ‘sex’, albeit an individual concurring opinion of two HRC members in the case of Joslin v New Zealand, in 2002, categorically states that, ‘it is the established view of the Committee that the prohibition against discrimination on grounds of “sex” in article 26 comprises also discrimination based on sexual orientation’.⁴⁸ The apparent reliance on the ‘sex’ category has been criticised by the European Court of Justice,⁴⁹ on the basis that matters of sexual orientation are substantively different from binary men/women issues which the category of ‘sex’ is often perceived to address. However, in support of the HRC’s approach it may be recalled⁵⁰ that much discrimination based on sexual orientation or gender identity is directed against those who violate social or cultural conceptions of gender. Also, taking account of how sexual discrimination has an elevated status in the Covenant, being addressed also in Article 3, the reliance on the ‘sex’ category appears to elevate the suspect nature of sexual orientation-related discrimination to a higher level than that of the other listed categories. Perhaps it is with considerations such as these in mind that Jack Donnelly described the HRC’s approach as ‘radical and provocative’.⁵¹ The approach adopted by the HRC has the additional merit of avoiding an invocation of the category of ‘other status’ in the absence of clearly established criteria for when a non-specified form of discrimination can be so designated.

A small number of cases have illustrated the HRC’s application of its nondiscrimi-nation doctrine. In Young v Australia⁵² and X v Colombia⁵³ the HRC impugned a distinction made in law between same-sex partners who were excluded from pension benefits, and unmarried heterosexual partners who were granted such benefits. In Joslin the denial of the right to marry to same-sex couples was considered not to constitute a violation of Article 26. However, an individual concurring opinion of two members observed that the authors had not sought to identify any difference in treatment arising from their inability to marry and, ‘the Committee’s jurisprudence supports the position that such differentiation may very well, depending on the circumstances of a concrete case, amount to prohibited discrimination’.⁵⁴

The breadth of the application of the HRC approach is best seen in its practice under the report review procedure. HRC frequently raises the issue of discrimination on the basis of sexual orientation: during the period 2000–2006, it did so regarding 13 of the 84 countries under review. It criticised the criminalisation of homosexual sexual relations (multiple countries),⁵⁵ a failure to prohibit employment-related discrimination,⁵⁶ failure to include the category of sexual orientation in broad anti-discrimination legal regimes (multiple countries),⁵⁷ a lack of education programs to combat discriminatory attitudes⁵⁸ and unequal ages of consent for sexual activity.⁵⁹

At the regional level, the European Court of Human Rights (ECtHR) has been invited to consider issues of discrimination with regard to both sexual orientation and gender identity. The ECtHR, while reiterating that the nondiscrimination provision of the European Convention on Human Rights (ECHR), Article 14, unlike Article 26 of the International Covenant on Civil and Political Rights, does not erect an autonomous anti-discrimination provision, but rather one that can only be applied in conjunction with a substantive provision of the ECHR (albeit it embraces those additional rights, falling within the general scope of any ECHR article, for which a State has voluntarily decided to provide),⁶⁰ has consistently stated that differences based on sex and sexual orientation must ‘have particularly serious reasons by way of justification’.⁶¹ And the ECtHR, and the former European Human Rights Commission, have not been concerned to identify whether the identification of such forms of suspect discrimination derives from the categories of ‘sex’, ‘other status’ or otherwise.⁶²

In Salgueiro da Silva Mouta v Portugal the ECtHR held that a judge’s denial of child custody to a homosexual father on the grounds of his sexual orientation created a discriminatory enjoyment of privacy.⁶³ In Karner v Austria the ECtHR was of the view that the failure of Austria to permit a homosexual man to continue occupying his deceased partner’s flat was discriminatory, since this right, enjoyed by other family members under Austrian law, did not apply to same-sex partners. Although the government claimed that excluding homosexuals aimed to protect ‘the family in the traditional sense’, the ECtHR held Austria had not demonstrated how the exclusion was necessary to that aim.⁶⁴ In L. and V. v Austria⁶⁵ and S.L. v Austria66 the ECtHR considered that Austria’s differing age of consent for heterosexual and homosexual relations was discriminatory; it ‘embodied a predisposed bias on the part of a heterosexual majority against a homosexual minority’, which could not ‘amount to sufficient justification for the differential treatment any more than similar negative attitudes towards those of a different race, origin or colour’.⁶⁷

One instance in which a discrimination-based claim failed was that in Fretté v France. In this case a homosexual man argued that a refusal to allow him to adopt a child for reasons of his sexual orientation constituted a violation of the ECHR.⁶⁸ In finding against him, the ECtHR referred to the fast evolving and very diverse practice across Europe as well as the conflicting views of experts as to what would be in the best interests of the child. The judgment is problematic. The reasoning is inconsistent and posits false dilemmas such as a supposed tension between the rights of the man and the child. There is no such tension. The tension is between the rights of homosexual and heterosexual prospective adoptive parents, with the rights of the child, especially its best interests, always being paramount. Issues such as these were handled in a more consistent and comprehensible manner in the very recent decision in E.B. v France. The ECtHR, while assiduously maintaining the paramount principle of the best interests of the child, held that ‘in rejecting the applicant’s application for authorisation to adopt, the domestic authorities made a distinction based on considerations regarding her sexual orientation, a distinction which is not acceptable under the Convention’.⁶⁹

It is unclear how far a non-discrimination approach can go in terms of the regulation of practices of non-state actors, not least since the existing jurisprudence and practice only addresses instances of discrimination that fall clearly within well established jurisprudential limits. Taking account of the extensive literature on the subject of the reach of anti-discrimination law into the private sphere, the applicable principles are well-articulated by Jack Donnelly: ‘[T]he internationally recognized human right to non-discrimination prohibits invidious public (or publicly supported or tolerated) discrimination that deprives target groups of the legitimate enjoyment of other rights… . Only when … social contacts systematically influence access to economic or political opportunities do they become a matter of legitimate state regulation.’⁷⁰

Protection of Privacy Rights

The first successful international human rights cases on issues of sexual orientation were taken under the ECHR and concerned the privacy of same-sex sexual relations. In Dudgeon v United Kingdom⁷¹ and Norris v Ireland,⁷² the criminalisation of such practices was deemed a violation of the privacy protection in Article 8 of the ECHR. In Modinos v Cyprus the ECtHR again held that such a law violated the right to privacy, and maintained that even a ‘consistent policy’ of not bringing prosecutions under the law was no substitute for full repeal.⁷³ Privacy arguments were also successfully invoked in cases concerning a ban on recruitment to the military of homosexuals: Smith and Grady v United Kingdom⁷⁴ and Lustig-Prean and Beckett v United Kingdom.⁷⁵ The ECtHR has also recognised privacy protection under the ECHR for transsexual persons. In Goodwin v United Kingdom⁷⁶ and I. v United Kingdom77 it considered the cases of two transsexual women who claimed that the United Kingdom’s refusal to change their legal identities and papers to match their post-operative genders constituted discrimination. Reversing a number of its previous decisions, the ECtHR held that their right to respect for their private lives, and also their right to marry, had been violated (Articles 8 and 12 of the ECHR). In Van Kuck v Germany⁷⁸ the ECtHR considered the case of 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. It found violations of the right to a fair hearing (Article 6(1) of the ECHR) and of the right to private life, holding that the German civil courts 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 a powerful statement of the entitlement to an autonomous gender identity the ECtHR spoke 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’.⁷⁹ In L. v Lithuania, the ECtHR considered that the State was 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.⁸⁰

The HRC, in Toonen, adopted the Dudgeon/Norris approach in finding a violation by Australia of Article 17 of the Covenant. It considered that a criminal prohibition on same-sex sexual activity, even if unenforced, constituted an unreasonable interference with Mr Toonen’s privacy.⁸¹ The HRC has not had the occasion since, in its consideration of individual cases, to address other applications of the right to privacy in the context of sexual orientation or gender identity. One possible opportunity, in Joslin, was missed since Ms Joslin was unsuccessful in arguing the primordial claim that Article 23 of the Covenant on marriage extended protection to same-sex relationships on the same basis as heterosexual relationships.⁸² Nor has the HRC taken the opportunity to itself explore the range of applications of a privacy approach in the context of its review of periodic reports. Here it has addressed privacy rights exclusively in the context of the criminalisation of same-sex sexual activity (as is the case, also, in CESCR, CEDAW and CRC). Taking account of the relatively vigorous and wide-ranging engagement with privacy issues in the European context, this dearth of practice is notable. It may reflect unease with the issues on the part of the treaty bodies or a failure of civil society groups to bring situations of concern to their attention.

The Ensuring of other General Human Rights Protection to All, Regardless of Sexual Orientation or Gender Identity

In 2006, during the HRC’s consideration of a periodic report, a representative of the State party, while replying to a question of a committee member on police violence against transsexuals,⁸³ observed that there was no mention of such people in the Covenant. The inference seemed to be that these people had a lesser entitlement to protection. Any such view is, of course, untenable. The HRC and the other treaty bodies, in the review of periodic reports, on a number of occasions, have insisted on the entitlement of people of diverse sexual orientations and gender identities to benefit from the protection of human rights of general application. The HRC has addressed various aspects: ‘violent crime perpetrated against persons of minority sexual orientation, including by law enforcement officials [and] the failure to address such crime in the legislation on hate crime’;⁸⁴ ‘[t]he State party should provide appropriate training to law enforcement and judicial officials in order to sensitive them to the rights of sexual minorities’;⁸⁵ ‘[t]he Committee expresses concern at the incidents of people being attacked, or even killed, on account of their sexual orientation (art.9), at the small number of investigations mounted into such illegal acts’.⁸⁶ The CRC has expressed concern that homosexual and transsexual young people ‘do not have access to the appropriate information, support and necessary protection to enable them to live their sexual orientation’.⁸⁷ The practice of the Committee Against Torture (CAT) is also notable. On a number of occasions it has expressed concern about the torture of homosexuals (for instance, Argentina⁸⁸ and Egypt89), and, in 2002, regarding, ‘complaints of threats and attacks against sexual minorities and transgender activists’ in Venezuela.⁹⁰

The proceedings of the Special Procedures of the former UN Human Rights Commission and the current Human Rights Council constitute a valuable repository of examples of the application for people of diverse sexual orientations and gender identities, of general human rights protections, as well as of the principle of non-discrimination. The Working Group on Arbitrary Detention has frequently invoked Toonen as a basis for its finding of arbitrary detention of homosexuals. The Special Representative of the Secretary-General on the situation of human rights defenders has been assiduous in condemning the intimidation of and attacks on lesbian, gay, bisexual, transgender and intersex activists.⁹¹ She has drawn attention to such human rights violations as arbitrary detention, torture, summary execution, arbitrary and unreasonable impediments to freedom of expression, movement, association and participation in political and public life.

The Special Representative has referred to the phenomenon of multiple victimisation, where already vulnerable people face heightened risk when promoting the rights of people of diverse sexual orientations and gender identities. In 2002, she reported about women human rights defenders as follows: ‘women human rights defenders are paying a heavy toll for their work in protecting and promoting the human rights of others… . For women human rights defenders standing up for human rights and the victims of human rights abuses—be they migrants, refugees, asylum-seekers or political activists, or simply people unwillingly relegated to the margins of society, such as ex-offenders and member of sexual minorities—can result in intimidation, harassment, unfair dismissal, death threats, torture and ill-treatment, and even death’.⁹² A similar point was made by the Independent Expert on minority issues, who referred to the ‘multiple forms of exclusion’ of members of minority communities, ‘based on aspects of their identities and personal realities such as sexual orientation or gender expression that challenge social or cultural norms’.⁹³ The Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, has drawn attention to problems within racial minority groups: ‘[b]lack homosexuals suffer from double discrimination, because of their colour and sexual orientation’.⁹⁴

Among the other Special Procedures that have engaged with the issues are those on extrajudicial, summary or arbitrary executions; torture and other cruel, inhuman or degrading treatment or punishment; freedom of religion; promotion and protection of the right to freedom of opinion and expression; violence against women; and sale of children, child prostitution and child pornography.

Those Special Procedures that address issues of economic, social and cultural rights have frequently drawn attention to the extent to which violations of these rights are at issue for people of diverse sexual orientations and gender identities. The Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health has drawn wide-ranging consequences from his analysis of the state of international human rights law. For instance, in 2004, he observed that ‘fundamental human rights principles, as well as existing human rights norms, lead ineluctably to the recognition of sexual rights as human rights. Sexual rights include the right of all persons to express their sexual orientation, with due regard for the well-being and rights of others, without fear of persecution, denial of liberty or social interference’.⁹⁵

The regional level has also presented instances of attention by human rights mechanisms and procedures to sexual orientation and gender identity-related issues of the general application of human rights. For instance, country reports and follow-up reports of the Inter-American Commission on Human Rights have drawn attention to such violations as ‘social-cleansing’ (killing) of homosexuals and the treatment of lesbian prisoners.⁹⁶ The current Council of Europe Commissioner for Human Rights, Thomas Hammarberg, repeatedly addresses country-level sexual orientation-related concerns. His detailed and expansive treatment of such issues in a 2007 ‘memorandum’ to the Polish government is noteworthy.⁹⁷

The question arises of when a generally stated human right is actually limited in terms of who may benefit. For our purposes, the issue concerns when a right exclusively addresses the situation and choices of what we might term sexual majorities. The matter has been considered with regard to the right to marry. The HRC, in Joslin, stated that the ‘use of the term “men and women” rather than the general terms used elsewhere in Part III of the Covenant, has been consistently and uniformly understood as indicating that the treaty obligation of States parties stemming from article 23, paragraph 2 of the Covenant is to recognize as marriage only the union between a man and a woman wishing to marry each other’.⁹⁸ It is less clear whether the Covenant recognises the rights of same-sex unmarried families. Article 23, paragraph 1 states the fundamental importance of the family and its entitlement to protection by the State, without reference to the form of family under consideration. Only in Article 23 paragraph 2 do we find reference to the right of men and women to marry and found families. It does not follow, however, that Article 23 paragraph 2 restricts the meaning of the word ‘family’ in Article 23 paragraph 1, and in this regard it may be observed that in its General Comment No. 19, the HRC has acknowledged the existence of various forms of family.⁹⁹ The HRC has been willing to impugn State practices that impede same sex couples from benefiting from family-related benefits, such as transfer of pension entitlements (Young and X, referred to before). These cases, however, only addressed Article 26-based issues and, in X, in a dissenting opinion of two members, it was observed that ‘a couple of the same sex does not constitute a family within the meaning of the Covenant and cannot claim benefits that are based on a conception of the family as comprising individuals of different sexes’.¹⁰⁰

The ECtHR, in a number of cases, had held that marriage, for purposes of the ECHR is the union of two persons of the ‘opposite biological sex’¹⁰¹ but, in Goodwin, it indicated that the determination of sex cannot be undertaken with solely biological criteria, so that an individual who has had a sex change operation has a right to marry someone of the now opposite sex.¹⁰² While not specifically addressing the issue of any distinction between families and marriages, the ECtHR has frequently indicated that homosexual stable relationships are not equivalent in rights to heterosexual relationships.¹⁰³ However, in the Salguiero da Silva Mouta case, the ECtHR found a violation of the right to family life of a man in a homosexual relationship, albeit the family unit under consideration was that of the man and his daughter rather than that of him and his partner.¹⁰⁴ And, in Goodwin, the ECtHR was willing to interpret the term in Article 8 of the ECHR, ‘the right of a man and a woman to marry’ in a flexible manner taking account of changes in society.¹⁰⁵ It is beyond the scope of the present chapter to explore this issue further, other than to take account of the various other sources which lean towards flexible understanding of the term ‘family’,¹⁰⁶ as well as the increasing recognition by States of diversity of family forms, as reflected in the Declaration on the International Year of the Family.¹⁰⁷

Some General Trends in Human Rights Law that have Important Implications for the Enjoyment of Human Rights by People of Diverse Sexual Orientations and Gender Identities

An examination of the human rights of people of diverse sexual orientations and gender identities would be incomplete without a brief reference to the evolving understanding of the duties that fall to States and the entitlements of the rights holder. Reference has already been made to those wide-ranging aspects of the human rights obligations that have been charted by the UN Special Procedures. Of more immediate normative significance are those recent General Comments of the United Nations human rights treaty bodies¹⁰⁸ that have emphasised that States are obliged to undertake effective programs of education and public awareness about human rights and must otherwise seek to enable people to fully enjoy their entitlements. They must be assiduous in protecting rights, establishing appropriate monitoring and promotional institutions, as well as investigating and disciplining violations. Victims of human rights violations are entitled to redress and reparation and those who defend and promote human rights must be protected.

More generally, the programmatic implications of the duty that falls on States are being clarified within the context of the theory and practice of the human rights-based approaches to development (RBAD). The principal elements of the rights-based approach have been indicated in a statement of a common position of all of the UN agencies engaged in the work of human development, the Statement of Common Understanding, adopted at Stamford, Connecticut, USA (the Stamford Statement) in May 2003.¹⁰⁹ The Stamford Statement asserts that all programs of development co-operation, policies and technical assistance should further the realisation of human rights as laid down in the Universal Declaration of Human Rights (UDHR) and other international human rights instruments and that development cooperation contributes to the development of the capacity of ‘duty-bearers’¹¹⁰ to meet their obligations and/or of ‘rights-holders’ to claim their rights. The Statement identifies a number of elements which it considers as ‘necessary, specific and unique to a RBAD:

1. Assessment and analysis in order to identify the human rights claims of rights-holders and the corresponding human rights obligations of duty-bearers¹¹¹ as well as the immediate, underlying, and structural causes of the non-realisation of rights.
   
2. Programs assess the capacity of rights-holders to claim their rights and of duty-bearers to fulfil their obligations. They then develop strategies to build these capacities.
   
3. Programs monitor and evaluate both outcomes and processes guided by human rights standards and principles.
   
4. Programming is informed by the recommendations of international human rights bodies and mechanisms’.

Of most direct interest for the present discussion are the principles derived from human rights law which are identified as integral to a RBAD. These are described in the Stamford Statement to be: universality and inalienability; inter-dependedness and interrelatedness; non-discrimination and equality; participation and inclusion; and accountability and the rule of law.