Relevant International Legal Precedents Relating to Sexual Orientation and Gender Identity

The United Nations System

The ICCPR, which Turkey has signed and ratified, affirms the equality of all people, in its Articles 2 and 26.[243] In the 1994 case of Nicholas Toonen v Australia, the UN Human Rights Committee, which monitors compliance with and adjudicates violations under the ICCPR, heard a complaint concerning a "sodomy law" punishing consensual, adult homosexual conduct in the Australian state of Tasmania. The Committee held that such laws violate protections against discrimination in the ICCPR, as well as article 17, which protects the right to privacy.[244] Specifically, the Committee held that "sexual orientation" was a status protected under the ICCPR from discrimination, finding that "the reference to 'sex' in articles 2, para. 1, and 26 is to be taken as including sexual orientation."[245]

This definitive intervention by the United Nations against discrimination based on sexual orientation has had far-reaching consequences. The Committee has elsewhere found that the prohibitions of discrimination in the ICCPR place a broad mandate on states to remedy unequal treatment in all areas of life. Thus it has declared that article 26 "prohibits discrimination in law or in fact in any field regulated and protected by the public authorities." Any state that regulates private employment, for example, therefore is responsible for offering protections against discrimination in that sphere-including protections against discrimination based on sexual orientation. The Committee has also found that the article bars acts and policies that are discriminatory in effect, as well as those that intend to discriminate.[246]

In a subsequent decision, Edward Young v Australia, the Committee held that the Covenant required that equality in pension benefits be given same-sex partners, founding this in the protection against discrimination.[247] This was reiterated by the Committee in X v. Colombia. The Committee called for an "effective remedy, including reconsideration of his request for a pension without discrimination on grounds of sex or sexual orientation.[248] It has urged states to pass anti-discrimination legislation that expressly includes sexual orientation[249] and has urged states to include in their constitutions the prohibition of discrimination based on sexual orientation.[250] It has criticized states' failure to protect people from sexual-orientation-based violence, saying in the case of transgender people assaulted in El Salvador that

The 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, and at the current provisions (such as the local "contravention orders") used to discriminate against people on account of their sexual orientation (art. 26).

The State Party should provide effective protection against violence and discrimination based on sexual orientation."[251]

Since then, numerous UN bodies and mechanisms have addressed such discrimination in their work. The Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions, for instance, has declared that

criminalization of matters of sexual orientation increases the social stigmatization of members of sexual minorities … in turn makes them more vulnerable to violence and human rights abuses, including violations of the right to life. Because of this stigmatization, violent acts directed against persons belonging to sexual minorities are also more likely to be committed in a climate of impunity.[252]

A lengthy statement by the UN Special Rapporteur on Torture to the General Assembly is relevant in this regard. It examines, and condemns, many of the causes and consequences of abuses detailed in this report.

The Special Rapporteur notes that a considerable proportion of the incidents of torture carried out against members of sexual minorities suggests that they are often subjected to violence of a sexual nature, such as rape or sexual assault in order to "punish" them for transgressing gender barriers or for challenging predominant conceptions of gender roles.

The Special Rapporteur has received information according to which members of sexual minorities have been subjected, inter alia, to harassment, humiliation and verbal abuse relating to their real or perceived sexual orientation or gender identity and physical abuse, including rape and sexual assault. … Ill-treatment against sexual minorities is believed to have also been used, inter alia, in order to make sex workers leave certain areas, in so-called "social cleansing" campaigns, or to discourage sexual minorities from meeting in certain places, including clubs and bars.

While no relevant statistics are available to the Special Rapporteur, it appears that members of sexual minorities are disproportionately subjected to torture and other forms of ill-treatment, because they fail to conform to socially constructed gender expectations. Indeed, discrimination on grounds of sexual orientation may often contribute to the process of the dehumanization of the victim, which is often a necessary condition for torture and ill-treatment to take place. The Special Rapporteur further notes that members of sexual minorities are a particularly vulnerable group with respect to torture in various contexts and that their status may also affect the consequences of their ill-treatment in terms of their access to complaint procedures or medical treatment in state hospitals, where they may fear further victimization, as well as in terms of legal consequences regarding the legal sanctions flowing from certain abuses. The Special Rapporteur would like to stress that, because of their economic and educational situation, allegedly often exacerbated or caused by discriminatory laws and attitudes, members of sexual minorities are deprived of the means to claim and ensure the enforcement of their rights, including their rights to legal representation and to obtain legal remedies, such as compensation…

Discriminatory attitudes to members of sexual minorities can mean that they are perceived as less credible by law enforcement agencies or not fully entitled to an equal standard of protection, including protection against violence carried out by non-state agents. The Special Rapporteur has received information according to which members of sexual minorities, when arrested for other alleged offences or when lodging a complaint of harassment by third parties, have been subjected to further victimization by the police, including verbal, physical, and sexual assault, including rape.[253]

The UN Working Group on Arbitrary Detention has affirmed that the detention of people solely on the basis of their sexual orientation violates fundamental human rights-even though the laws under which they are detained may not expressly refer to homosexual conduct.[254]

In its General Comment 14, the UN Committee on Economic, Social, and Cultural Rights specifically noted that the relevant Covenant, which has been signed and ratified by Turkey, should be read to bar "any discrimination in access to health care and underlying determinants of health, as well as to means and entitlements for their procurement, on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS), sexual orientation [emphasis added] and civil, political, social or other status, which has the intention or effect of nullifying or impairing the equal enjoyment or exercise of the right to health."[255]

The UN mechanisms also touch upon the right to freedom of expression for human rights organizations working on defending the human rights of lesbian gays, bisexual, and transgender people considering "that all citizens, regardless of, inter alia, their sexual orientation, have the right to express themselves, and to seek, receive and impart information."[256]

The European Union

As early as 1994, the European Parliament passed a sweeping resolution calling for comprehensive anti-discrimination measures protecting sexual orientation in all member states. It called on member states, "together with the national lesbian and homosexual organizations, to take measures and initiate campaigns against the increasing acts of violence perpetrated against homosexuals." It also called on them "to take measures and initiate campaigns to combat all forms of discrimination against homosexuals."[257]

In 1997, the European Union's Treaty of Amsterdam empowered the European Council to "take appropriate action to combat discrimination based on sex, racial, or ethnic origin, religion or belief, disability, age or sexual orientation."[258] It was the first mention of sexual orientation in a major international treaty.

In 2000, the European Union Charter of Fundamental Rights also prohibited discrimination based on sexual orientation. In the same year, as part of the implementation of Article 13, the European Council issued a directive "establishing a general framework for equal treatment in employment and occupation" (Directive 2000/78/ED). The "Employment Directive" barred discrimination based on sexual orientation in employment across the Union, and laid down measures toward its full elimination. The Directive is part of the acquis communitaire of the Union-required to be enacted into law and policy by all member states, and required to be integrated into the legislation of new members. The European Union Charter of Fundamental Rights, also prohibits discrimination on the grounds of sexual orientation under Article 21.

At the same time the EU created a Discrimination Action Programme, to fund projects over six years to combat discrimination, including sexual-orientation-based discrimination.

The European Commission is mandated closely to monitor the steps taken by applicant countries to reshape legislation and policy in conformity with the acquis communitaire.[259] In 2003, in its "Report on the conclusions of the negotiations on enlargement" (the "Brok report"), the European Parliament observed that "in many candidate countries situations of abuse and discrimination persist due to shortcomings in the judicial and law enforcement systems … the EU anti-discrimination acquis must be implemented as defined in Article 13 of the EC Treaty and according to the Charter of Fundamental Rights."[260]

The European Union's Enlargement Commission, tasked with evaluating the progress of each candidate toward compliance and admission, has drawn up regular reports on each. In its 2004 Regular Report on Turkey-published only days after the Turkish parliament passed its diminished version of anti-discrimination protections in the Criminal Code-it noted that the country "Still lacks legislation against discrimination on the basis of all prohibited grounds, such as … sexual orientation" [emphasis added].[261]

Similarly in its 2007 report on Turkey it stated "Transposition of the EC Directives concerning discrimination on grounds of racial or ethnic origin, religion or belief, disability, age and sexual orientation is incomplete." It called for "[a]n effective and independent Equality Body ... to promote non-discrimination and equal treatment… ."[262]

A 1976 directive of the European Council deals with equal treatment for men and women in employment.[263] In 1996, the European Court of Justice-the EU's highest judicial body-made a major decision on gender identity under this directive. It held that a transsexual-that is, a transgender person who had undergone surgical procedures to accommodate physical appearance to gender identity-could not be dismissed on the grounds of change of sex. This finding protected the employment rights of post-operative transgender people throughout the European Union.

The Council of the European Union has also issued directives seeking to guarantee non discrimination. For instance, Council Directive 97/80/EC determines that "indirect discrimination shall exist where an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion of the members of one sex unless that provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex" and shifts the burden of proof in cases of discrimination based on sex in civil and administrative procedures.[264]

The Council of Europe

In three successive decisions, Dudgeon v United Kingdom(1981), Norris v Ireland(1988) and Modinos v Cyprus(1993)[265]the European Court of Human Rights held that laws criminalizing consensual homosexual conduct violated the right to privacy, protected in Article 8 of the ECHR. It did so in language relevant to the moral defenses of discriminatory conduct often heard worldwide. Thus in Dudgeon, the Court held that laws penalizing homosexual conduct could not be held "necessary in a democratic society,"

Although members of the public who regard homosexuality as immoral may be shocked, offended, or disturbed by the commission by others of private homosexual acts, this cannot on its own warrant the application of penal sanctions when it is consenting adults alone who are involved.[266]

In Norris, the court held that "such justifications as there are for retaining the law in force unamended are outweighed by the detrimental effects which the very existence of the legislative provisions can have on the life of a person of homosexual orientation."

Subsequently, the European Court of Human Rights has used defenses for private conduct and private life to strike down discriminatory provisions. In Smith and Grady v. United Kingdom and Lustig-Prean and Beckett v United Kingdom, it held that a ban on homosexuals in the military was incompatible with respect for their private life.[267] The Court held that concerns about "operational effectiveness" were based only on "negative attitudes of heterosexual personnel":

To the extent that they represent a predisposed bias on the part of a heterosexual majority against a homosexual minority, these negative attitudes cannot, of themselves, be considered by the Court to amount to sufficient justification for the interferences with the applicants' rights … any more than similar negative attitudes towards those of a different race, origin, or colour.[268]

Meanwhile, in Karner v Austria, in 2003, the Court held that denying the same-sex partner of a deceased man spousal benefits violated anti-discrimination provisions in the ECHR.[269] It made the same finding in two cases, L and V v Austriaand S.L. v Austria, both also in 2003, holding that a different age of consent for homosexual and heterosexual relations breached protections against discrimination.[270]

In 2002, the European Court struck a major blow against discrimination based on gender identity. It reversed previous decisions and held, in Goodwin V. United Kingdom as well as I v. United Kingdom, that the United Kingdom's refusal to change their legal identities and papers to match their post-operative genders violated their right to respect for the private lives (as well as their right to marry). It stated resonantly that:

In the 21st century, the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy … Society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost. [271]

In 2003, in Van Kuck v Germany, the Court considered the case of a transsexual woman whose health insurance company had denied her reimbursement for costs associated with sex-reassignment surgery. The Court found a violation of respect for private life; it stated that the decision denied "the applicant's freedom to define herself as a female person, on of the most basic essentials of self-determination." It also noted that "the very essence of the Convention being respect for human dignity and human freedom, protection is given to the right of transsexuals to personal development and moral security.[272]