LGBT Discrimination and International Enforcement

JURIST Guest Columnist Charles Radcliffe, Head of Global Issues at the Office of the UN High Commissioner for Human Rights, says that while international laws protect LGBT persons, proper enforcement is required to combat discrimination...
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After decades during which the words "sexual orientation" and "gender identity" were rarely uttered in formal, inter-governmental meetings at the UN, a debate is finally unfolding at the Human Rights Council in Geneva on the rights of lesbian, gay, bisexual and transgender (LGBT) people. The discussions at the Council have focused political attention on discriminatory laws and practices at the national level and on the obligations of states under international human rights laws to address such discrimination through legislative and other measures.

A breakthrough came in June 2011 when the Human Rights Council approved the first ever UN resolution on human rights, sexual orientation and gender identity. The resolution was approved by a narrow margin but, significantly, received support from Council members from all regions. Its adoption paved the way for the first official UN report on the same subject, prepared by the High Commissioner for Human Rights.

The report, issued in December 2011, found evidence of a pattern of systematic violence and discrimination directed at people because of their sexual orientation and gender identity, and called on states to take a number of measures designed to better protect the human rights of LGBT people. Its findings and recommendations were discussed at the Council on March 7, 2012. It was the first time a UN intergovernmental body has held a formal debate on the issue.

Presenting the report to the Council, High Commissioner Navi Pillay challenged states to help write a "new chapter" in UN history dedicated to ending violence and discrimination against all people — irrespective of their sexual orientation and gender identity. Speaking via video, UN Secretary-General Ban Ki-moon described violence and discrimination against LGBT people as a "monumental tragedy for those concerned and a stain on our collective conscience". He also noted it is a violation of existing international human rights law.

The legal obligations of states to safeguard the human rights of all persons, including those who are LGBT, are well-established under the Universal Declaration of Human Rights (UDHR) and subsequently agreed international human rights treaties. Everyone, regardless of his or her sexual orientation or gender identity, is entitled to enjoy the protections provided for by international human rights law. That includes respect of rights to life, security of person and privacy, the right to be free from torture, arbitrary arrest and detention, the right to be free from discrimination and the right to freedom of expression, association and peaceful assembly.

The principle of non-discrimination underpins international human rights law and is embodied in the Charter of the United Nations, the UDHR and in core human rights treaties. Non-discrimination clauses in international instruments typically require that the rights set forth are made available to everyone without discrimination, and states must ensure that their laws, policies and programs are not discriminatory in impact.

The specific grounds of discrimination referred to in the International Covenant on Civil and Political Rights and other human rights treaties are not exhaustive. For example, under Article 2 of the Covenant, each state party undertakes:

"To respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."
While sexual orientation and gender identity, like disability, age and health status, are not explicitly mentioned, the drafters intentionally left the grounds of discrimination open by using the phrases "such as" and "other status".

In 1994, in the case of Toonen v. Australia, the Human Rights Committee, which is responsible for assessing state compliance with the provisions of the International Covenant on Civil and Political Rights, found Australia to be in breach of its duties under the Covenant for retaining a law that criminalized consensual, same-sex relationships. The Committee further confirmed that under the non-discrimination provisions of the Covenant, state parties are obligated to protect all individuals from discrimination on the basis of their sexual orientation. This position has since been reflected in general guidance issued by UN committees of experts tasked with supporting implementation of other human rights treaties, including those related to economic, social and cultural rights, children's rights, torture, and discrimination against women.

States have a duty, not only to make sure that their own laws and policies do not discriminate directly or indirectly against LGBT people, but also to ensure that LGBT people are protected from discrimination practiced by third parties — such as employers, landlords, schools, health care facilities and other private sector organizations. Both the Human Rights Committee and the committee dealing with economic, social and cultural rights have called regularly on states to enact laws prohibiting discrimination on grounds of sexual orientation and have welcomed legislation that includes sexual orientation among the prohibited grounds of discrimination.

A significant gap exists between law and practice. As the High Commissioner's report makes clear, the level of protection in place at a national level varies significantly from country to country. Some 76 states still have discriminatory criminal laws that punish individuals for engaging in consensual, same-sex relationships. In at least five countries the death penalty may apply under such charges. As long as these laws remain in force, discrimination and violence against LGBT people will continue unchecked.

Even where homosexuality has been decriminalized, the legal framework often provides scant protection against discriminatory treatment. Only six countries embed guarantees of protection from discrimination on grounds of sexual orientation in their constitutions, while others have incorporated such guarantees into regional or provincial-level constitutions. In some case, general language on non-discrimination has been interpreted by courts as providing equivalent protection. Fifty-four states have laws in place prohibiting discrimination in employment based on sexual orientation, while a number of others have also banned such discrimination in access to, and provision of, goods and services. Relatively few states reference gender identity in domestic anti-discrimination laws. The High Commissioner's report concludes with a recommendation that all those states that have not done so already should enact "comprehensive anti-discrimination legislation" that includes discrimination on grounds of sexual orientation and gender identity among prohibited grounds and recognizes intersecting forms of discrimination.

For all of the significance of recent developments at the United Nations, the global struggle to end violence and discrimination against LGBT people is just beginning. More dialogue is needed both among and within states. Necessary legislative changes will need to be accompanied in many places by a shift in public attitudes. For all the challenges, there is an air of hope and expectation. As UN Secretary-General Ban Ki-moon told the Human Rights Council in March 2012, a historic shift is underway. "We must tackle the violence, decriminalize consensual same-sex relationships, ban discrimination and educate the public," he told the assembled delegates. "I count on this Council and all people of conscience to make this happen. The time has come."

Charles Radcliffe is a human rights lawyer and head of global issues at the Office of the United Nations High Commissioner for Human Rights in New York, NY. This article was written in a personal capacity and does not necessarily reflect the views of the Office of the United Nations High Commissioner for Human Rights.

Suggested citation: Charles Radliffe, International Laws Need Enforcement to Combat LGBT Discrimination, JURIST - Hotline, May 12, 2012, http://jurist.org/hotline/2012/04/charles-radcliffe-un-lgbt.php .


This article was prepared for publication by Leah Kathryn Sell , an assistant editor of JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org.

 

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