May 29, 2009

Appendix: Legal Standards

The United Nations System

Legal Precedents Relating to Sexual Orientation and Gender Identity 

Various UN bodies, such as the Human Rights Committee and the Special Procedures pay particular attention to issues of gender identity. 

The UN Special Rapporteur on the question of torture and other cruel, inhuman or degrading treatment or punishment notes that, generally, discrimination against “sexual minorities” affects them when dealing with the police and other authorities and deters them from speaking out against abuses.

[D]iscriminatory attitudes towards 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. Members of sexual minorities, when arrested for other alleged offences or when lodging a complaint of harassment by third parties, have reportedly been subjected to further victimization by the police, including verbal, physical and sexual assault, including rape. Silencing through shame or the threat by law enforcement officials to publicly disclose the birth sex of the victim or his or her sexual orientation (to family members, among others) may keep a considerable number of victims from reporting abuses.[106]

Moreover, the Special Rapporteur has specifically referred to gender identity and harassment of lesbian, gay, bisexual, and transgender people:

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 orientationor gender identity and physical abuse, including rape and sexual assault. He notes with concern that, according to the information received, the rape of a man or of a male-to-female transsexual woman is often subject to the lesser charge of “sexual assault”, which carries lighter penalties than the more serious crime of rape in a number of countries. It is also reported that male-to-female transsexual women have been beaten intentionally on their breasts and cheek-bones which had been enhanced by silicone implants, causing the implants to burst and as a result releasing toxic substances into their bodies. 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.[107]
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.
...
Finally, the Special Rapporteur notes and shares the views of the Special Representative of the Secretary-General on human rights defenders regarding “greater risks ... faced by defenders of the rights of certain groups as their work challenges social structures, traditional practices and interpretation of religious precepts that may have been used over long periods of time to condone and justify violation of the human rights of members of such groups. Of special importance will be (...) human rights groups and those who are active on issues of sexuality, especially sexual orientation(...). These groups are often very vulnerable to prejudice, to marginalization and to public repudiation, not only by State forces but other social actors.”[108] 

The Special Rapporteur also recognizes that a considerable proportion of the incidents of torture carried out against members of the LGBT community reflect bias:  such individuals often are 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.[109]

The International Covenant on Civil and Political Rights (ICCPR), which Honduras has signed and ratified, affirms the equality of all people in articles 2 and 26. 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 “sexual orientation” was a status protected under the ICCPR from discrimination, finding that “the reference to ‘sex’ in articles 2, paras. 1, and 26 is to be taken as including sexual orientation.”[110]

The continuum that exists between issues of sexual orientation and gender identity, discussed earlier in this report, has also been noted and touched upon by several UN bodies.[111] Thus, issues concerning gender identity are beginning to be addressed as part of the larger prohibition on discrimination.

For instance, the UN’s independent expert on minority issues recognizes that “some individuals within ethnic, religious, linguistic or national minority groups may experience multiple forms of discrimination because of other factors including gender, gender expression, gender identity, sexual orientation, disability, age or health status.”[112] The independent expert thus stated that she would highlight “the importance of protecting diverse forms of personal expression.”[113]

The Human Rights Committee has also urged states to pass anti-discrimination legislation that expressly includes sexual orientation and to include in their constitutions the prohibition of discrimination based on sexual orientation and gender identity.[114] 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).[115]

In his visit to Guatemala, the UN Rapporteur on extrajudicial, summary or arbitrary executions found a criminal justice system that was unable to investigate murders of sexual minorities and others. He stated that the “State bears responsibility under human rights law for the many who have been murdered by private individuals.”[116] Similarly, Honduras is a state with high levels of murders against LGBT people and others, and low levels of investigation. The Special Rapporteur recognized that “Guatemala is not a failed state and is not an especially poor State.”[117] Neither is Honduras and, like Guatemala, Honduras bears international responsibility for a police and a judicial system that fails particular groups of people.

The UN mechanisms have also addressed  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.”[118]

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), states that acknowledging systemic and entrenched discrimination is an essential step in implementing guarantees of non-discrimination and equality and changing such roles. An aim of CEDAW is to "modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women."[119]

The Inter American System

Protections for Sexual Orientation and Gender Identity

The American Convention on Human Rights (American Convention) includes provisions on the right to privacy and equal protection that have been interpreted to cover sexual orientation and gender identity.[120]  Similar provisions on equality and privacy have been so interpreted by other regional and domestic jurisdictions.[121]

The principles of equality and non-discrimination are deeply rooted in the American Convention and protected by it. Equality is understood as encompassing not only as equal treatment, but also policies tailored to address the specific needs of particular groups in certain circumstances.[122] For instance, the Inter American Commission on Human Rights (IACHR) has stated the importance of developing affirmative action programs or granting preferential treatment through the law in order to protect specific groups.[123]

The IACHR has also emphasized the role of judicial systems in protecting and ensuring the rights to equality and non-discrimination. It has stressed that judicial systems should provide people with effective investigations of violations to their rights in order to maintain the trust of the people in the government institutions.[124] 

The IACHR has addressed sexual orientation and gender identity in two cases. Marta Lucia Alvarez Giraldo v Colombia concerned the refusal of Colombian prison authorities to allow a woman to have an intimate visit with her imprisoned partner. Colombia argued before the IACHR that “allowing homosexuals to receive intimate visits would affect the internal disciplinary regime of prison establishments and that Latin American culture has little tolerance towards homosexual practices in general.”[125] The case was settled before the IACHR decided on the merits but is nonetheless significant in that the IACHR deemed the case admissible under the right to privacy.[126]

Karen Atala and daughters v Chile is the most recent case found admissible by the IACHR involving issues of sexual orientation. The petitioners argued that Chile violated the rights of Karen Atala and her three daughters when the Fourth Chamber of the Supreme Court, on May 31, 2004, awarded permanent custody of Atala’s daughters to their father. In reaching its decision, the Chilean court determined “that Ms. Atala had put her interests before those of her daughters when she made the decision to be open about her homosexuality and began to live with a same-sex partner.”[127] The case was deemed admissible under article 24 of the American Convention on the right to equal protection. It is still pending before the IACHR.

Other Relevant National and Regional Decisions

In 2003, in Van Kuck v Germany, the Europe Court of Human Rights 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 the right to respect for private life; it stated that the insurance company’s decision denied “the applicant’s freedom to define herself as a female person, one 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.[128]

Other decisions at the European level have stressed the illegality of discrimination on the grounds of gender identity. In Goodwin v United Kingdom as well as I v. United Kingdom, the European Court of Human Rights held that the United Kingdom’s refusal to change transgender individual’s legal identities and papers to match their post-operative genders violated their right to respect for their private lives.[129]

National courts have gone further to protect gender identity as an essential part of human dignity. In a 2006 decision, the Supreme Court of South Korea ruled in favor of a transsexual individual’s right to change her name and sex on her legal documents. The Court held that “transsexuals’ human dignity is protected by the Korean Constitution and that maintaining transsexuals’ original sex designation in the register compromises that right to dignity.”[130]

In 2008, the Nepal Supreme Court studied a petition by Blue Diamond Society, an LGBT organization in Nepal. The group sought the protection of the state in guaranteeing equality and freedom from violence. The court recognized the petitioners’ right to be protected against discrimination based on gender identity in all areas of their lives. It concluded,

As the people with third type of gender identity other than the male and female and different sexual orientation are also Nepali citizens and natural person they should be allowed to enjoy the rights with their own identity as provided by the national laws, the Constitution and international human rights instruments. It is the responsibility of the state to create an appropriate environment and make legal provisions accordingly for the enjoyment of such rights. It cannot be construed that only  “men” and “women” can enjoy such rights and other people cannot enjoy them solely because they have a different gender identity and sexual orientation.[131] 

The court called on the state to

[c]reate an appropriate environment, enact legal provisions to enable LGBTI [lesbian, gay, bisexual, transgender, and intersex] people to enjoy fundamental rights, and amend the new constitution so as to guarantee nondiscrimination on the grounds of gender identity and sexual orientation as well as sex, in line with the Bill of Rights of the Constitution of South Africa.

[106]“Report of the Special Rapporteur on the Question of Torture and other Cruel, Inhuman and Degrading Treatment or

Punishment,” UN General Assembly, E/CN.4/2002/76, December 27, 2001, (accessed April 1, 2009).

[107]“Report of the Special Rapporteur on the Question of Torture and other Cruel, Inhuman and Degrading Treatment or    Punishment,” UN General Assembly, A/56/156, July 3, 2001, (accessed April 1, 2009).

[108]“Report of the Special Rapporteur on the Question of Torture and other Cruel, Inhuman and Degrading Treatment or Punishment,” UN General Assembly, A/56/156, July 3, 2001 (accessed April 1, 2009).

[109]Report of the Special Rapporteur on the question of torture and other cruel, inhuman or degrading treatment or punishment,” E/CN.4/2004/56, December 23, 2003 (accessed April 1, 2009).

[110]Nicholas Toonen v Australia, 50th Sess., Communication No. 488/1992, CCPR/c/50/D/488/1992, April 14, 1994, para 8.7.

[111] See Shannon Minter, “Do Transsexuals Dream of Gay Rights? Getting Real about Transgender Inclusion in the Gay Rights Movement,” 17 N.Y.L. SCH. J. HUM. RTS. 589, 592 (2000).

[112]“Report of the Independent Expert on Minority Issues,” E/CN.4/2006/74, January 6, 2006, para. 28.

[113] Ibid.

[114]Human Rights Committee, “Concluding Observations: Slovakia,” CRC/C/SVK/CO/2, June 8, 2007, para. 28; “Concluding Observations: Namibia,” CCPR/CO/81/NAM, July 30, 2004, para. 22; Concluding Observations: Trinidad and Tobago, CCPR/CO/70/TTO, November 3, 2000, para. 11; Concluding Observations: Poland,” 66th Session, CCPR/C/79/Add.110, para. 23.

[115]Human Rights Committee, “Concluding Observations: El Salvador,” CCPR/CO/78/SLV, July 22, 2003, para. 16.

[116]Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Mission to Guatemala, A/HRC/4/20/Add.2, February 19, 2007 (accessed April 20, 2009).

[117]Ibid.

[118] Report of the Special Rapporteur on the Right to Freedom of Opinion and Expression, Mission to Colombia, E/CN.4/2005/64/Add.3, November 26, 2004 (accessed March 15, 2009), para. 75.

[119] Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted December 18, 1979, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, A/34/46, entered into force September 3, 1981, art. 12(2), Article 5.

[120] American Convention on Human Rights, OAS Treaty Series No. 36, 1144 U.N.T.S. 123, November 22, 1969,

[121] See European Convention on Human Rights, article 8 (Right to respect for private and family life); article 14 (Prohibition of Discrimination).

[122] Inter American Court on Human Rights, Moiwana Community v Suriname, Concurring Opinion of Judge Trindade Cançado, June 15, 2005, http://www.corteidh.or.cr, (accessed April 21, 2009), para. 11.

[123] Adivisory Opinion OC-18/03, “Juridical Condition and Rights of the Undocumented Migrants,”September 17, 2003, http://www.corteidh.or.cr/opiniones.cfm (accessed April 21, 2009), paras. 103-106.

[124] IACHR, Annual Report of the Inter-American Commission on Human Rights 2002, OEA/Ser.L/V/II.117, March 7, 2003, http://www.cidh.org/annualrep/2002eng/toc.htm (accessed April 21, 2009), para. 7.

[125]IACHR, Martha Lucía Álvarez Giraldo v. Colombia, Report 71/99, Case 11.656, May 4, 1999, http://www.cidh.org/annualrep/99eng/admissible/colombia11656.htm (accessed April 21, 2009), para. 2.

[126] American Convention on Human Rights, Article 11(2),.

[127]IACHR, Karen Atala and Daughters v Chile, Report No. 42/08, July 23, 2008, http://www.cidh.org/annualrep/2008eng/chile1271.04eng.htm (accessed April 14, 2009).

[128]Van Kuck v Germany (Application No. 35968/97), June 12, 2003, www.echr.coe.int. (accessed April 21, 2009), para. 73.

[129]Goodwin v United Kingdom (Application No. 28957/95), July 12, 2002, paras. 90 and 91; I v United Kingdom (Application no.

25680/94), July 11, 2002, www.echr.coe.int. (both accessed April 21, 2009), para. 57.

[130] Holning Lau, “Sexual Orientation and Gender Identity: American Law in Light of East Asian Developments,” presented at the Williams Institute’s Works-in-Progress Series, p. 95 (on file with Human Rights Watch).

[131]Nepal Supreme Court, Writ No. 917, Blue Diamond Society v Office of the Prime Minister and Council Ministers et. al., 2 NJALJ (2008) 261-286, translated into English by Mr. Yadav Pokharel (on file with Human Rights Watch).