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of Human Rights Defenders

April 2010

Sexual Orientation and Gender Identity in Human Rights Law,
References to Jurisprudence and Doctrine of the United Nations Human Rights System

Published by International Commission of Jurists in 2010, fourth updated edition

The ICJ is pleased to publish this fourth edition of references to sexual orientation and gender identity within the United Nations human rights system. The fourth edition is a comprehensive collection of jurisprudence, general comments, concluding observations, and reports from human rights treaty bodies and independent experts (also known as Special Procedures) of the UN Charter-based system. In addition, it includes speeches and press releases from the Office of the High Commissioner for Human Rights; the Joint Statement on Human Rights, Sexual Orientation and Gender Identity, signed by 66 States and presented to the General Assembly in December 2008; and excerpts from the UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity. This UN compilation covers the time period January 2007 through March 2010. Earlier editions of the UN compilation are available on the ICJ website at www.icj.org. 
The three previous editions of the UN compilations have been relied upon extensively by lawyers, civil society groups, and human rights defenders. In this edition, the ICJ has made changes to the structure and format in order to facilitate its use. Each entry is annotated with a key word or key words, reflecting the topic or topics discussed. All key words are listed in the Index. The inclusion of these search terms should make it easier to identify relevant decisions and comments. 
Annex I contains the most important jurisprudence and references to sexual orientation and gender identity from the earlier editions. Specifically, the 1994 landmark decision of the UN Human Rights Committee, Toonen v. Australia, which held that Articles 17 and 26 of the International Covenant on Civil and Political Rights prohibit discrimination on the grounds of sexual orientation and protected private sexual activity, is included here. Relevant General Comments from the UN Committee on Economic, Social and Cultural Rights and the UN Committee on the Rights of the Child are included as well. Together with Toonen, these General Comments establish that the prohibition on discrimination contained in these human rights treaties encompasses discrimination on the basis of sexual orientation. Annex II contains the most relevant articles from the international instruments referred to by the treaty bodies and Special Procedures of the UN human rights system. 
A few observations about sexual orientation, gender identity, and human rights, as reflected in the work of the UN human rights system, are in order. 
First, references to sexual orientation and to gender identity are increasingly common. Six of the eight principal human rights treaty bodies regularly refer to sexual orientation and gender identity. A majority of the thematic mandates also regularly refer to issues concerning sexual orientation and gender identity. 
Second, both the concluding observations of the treaty bodies when reviewing States’ periodic reports and the reports of the special procedures offer a clear picture of the range of violations faced by lesbian, gay, bisexual and transgender people. State-sponsored expressions of homophobia range from the criminalization of same-sex sexual activity to officially sanctioned discrimination in access to jobs, health care, education, and housing. 
Transgender persons are prevented from changing their gender on official documents. In many countries, LGBT individuals simply do not have the same protection and enjoyment of rights that are supposed to be universally guaranteed. For example, they are denied permission to form associations or organizations, they are prevented from holding parades or demonstrations, and even their speech is censored. Without the rights of freedom of association, assembly, and expression, they are rendered invisible. Official discrimination, in turn, signals to the wider public that LGBT people, or those perceived as being nonconforming in their sexual orientation, gender identity, or gender expression, are appropriate targets for abuse. At the hands of non-state actors, LGBT individuals are frequent victims of hate speech and hate violence. And because police harassment and abuse is also common, victims often have nowhere to turn for help.
Third, rights are interrelated. A single act or event can produce multiple violations. A law that criminalizes same-sex sexual activity not only runs counter to the rights to privacy and non-discrimination contained in the International Covenant on Civil and Political Rights, it also drives vulnerable populations underground and prevents them from accessing treatment, thus undermining their right to health guaranteed in the International Covenant on Economic, Social and Rights. Arrest and detention of same-sex couples solely on grounds of their sexual orientation or private consensual sexual activity, is not only in breach of the nondiscrimination guarantee, it also breaches the guarantee on freedom from arbitrary detention. Restrictions on freedom of expression and peaceful assembly impact not only LGBT individuals and groups, but also the essential work of human rights defenders.
Finally, although this picture is indeed bleak, it is also evident that the international human rights system promotes and protects the human rights of everyone, regardless of sexual orientation or gender identity. The treaty bodies and special procedures of the UN regularly and consistently urge States to reform penal legislation, to decriminalize consensual adult sexual activity, to end police abuse, and to enact non-discrimination laws that protect everyone. Violations are documented and governments are called to account. The human rights mechanisms are thus deeply engaged in the project of universality – sending the strong message that all human rights are interdependent and universal. In the words of the UN High Commissioner for Human Rights, “The principle of universality admits no exception. Human rights truly are the birthright of all human beings.”
 

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