Resource Library for International
Jurisprudence on Sexual Orientation and Gender Identity
In the United States in recent months, several court decisions have advanced the rights of lesbian, gay, bi-sexual, and transgender people. Laws criminalizing consensual homosexual conduct have been overturned; and now, one US state has advanced toward giving gays and lesbians the right to marry.
Yet the US courts have come late to these judicial advances. Post-apartheid South Africa in 1996 became the first country to enshrine protections against discrimination based on sexual orientation in its constitution; this provision has led to sweeping legal decisions affirming gay and lesbian equality and advancing same-sex partners’ rights. The United Nations has held for almost a decade that sexual orientation is a status protected from discrimination. And Europe’s own regional human rights court overturned sodomy laws more than twenty years before the US did (a fact the Supreme Court acknowledged in its own recent decision.) That court has also recognized gay and lesbian partnerships, condemned discriminatory age-of-consent laws, and given transgender people the right to change their identity legally and to marry.
Many obstacles remain. The storm of prejudice in the United States recently shows that the fight for full, equal marriage rights will be a long one. Human Rights Watch offers this summary of judicial precedents that have been set, in the hope they will be useful to activists in many nations who seek to change discriminatory laws — and to people in the US who want to compare domestic advances to rights won abroad.
These are important judicial decisions which have affirmed the rights of lesbian, gay, bisexual, and transgender people — and the unacceptability of discrimination based on sexual orientation or gender identity — at the international level and in national and provincial courts. The list is not exhaustive; it will continue to grow, so keep checking this page.
A brief description of each decision is attached; to download the full text, click the link.
Toonen v Australia, 1994 (Download 53 Kb PDF)
In this historic decision, the UN Human Rights Committee — which monitors states’ compliance with the International Covenant on Civil and Political Rights (ICCPR) — held that laws criminalizing consensual homosexual conduct violate protections for privacy (article 17) and against discrimination (articles 2 and 26) in the ICCPR. In particular, it held that the anti-discrimination provisions in the covenant should be understood to include sexual orientation as a protected status.
Young v Australia, 2003 (Download 137 Kb PDF)
In its first decision affirming the partnership rights of same-sex couples,
the UN Human Rights Committee held that Australia, in denying pension
rights to the surviving same-sex partner of a war veteran, violated
discrimination protections in article 26 of the ICCPR.
Dudgeon v United Kingdom, 1981 (Download 495 Kb PDF)
In this first major international decision affirming the protection of lesbian and gay rights, the European Court held that a law criminalizing consensual homosexual conduct in Northern Ireland — a “sodomy law”--violated protections for privacy in article 8 of the European Convention on Human Rights. The judicial overturning of sodomy laws in Europe came five years before the US Supreme Court upheld them, in its 1986 Bowers v Hardwick decision.
Norris v Ireland, 1991 (Download 210 Kb PDF)
The European Court reaffirmed the principles of Dudgeon in holding that a “sodomy law” in Ireland violated the right to privacy, noting “the detrimental effects which the very existence of the law can have on the life of a person of homosexual orientation.”
Modinos v Cyprus, 1993 (Download 204 Kb PDF)
The European Court again held that a “sodomy law” in Cyprus 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.
Salgueiro da Silva Mouta v Portugal, 1999 (Download 184 Kb PDF)
The Court held that a judge’s denial of child custody to a gay father on the grounds of his sexual orientation created a discriminatory enjoyment of privacy, and hence a violation of article 8 of the European Convention.
Smith and Grady v United Kingdom, 1999 (Download 268 Kb PDF)
Lustig-Prean and Beckett v United Kingdom, 1999 (Download 241 Kb PDF)
In two separate cases, the Court considered the United Kingdom’s policy of banning homosexuals from the military, and held that it violated protections for private life in Article 8 of the European Convention.
Goodwin v United Kingdom, 2002 (Download 283 Kb PDF)
I. v United Kingdom, 2002 (Download 254 Kb PDF)
The European Court 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 — and offering a major victory for transgender people’s rights — the Court 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 European Convention).
Van Kuck v Germany, 2003 (Download 147 Kb PDF)
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 decision had been upheld by German civil courts. The Court found violations of the right to a fair hearing (article 6.1 of the Convention) and of the right to private life (article 8), 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”: it stated 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 to physical and moral security.”
Karner v Austria, 2003 (Download 118 Kb PDF)
Austria’s highest court had denied a gay man the right to continue occupying his deceased partner’s flat, stating that this right, enjoyed by family members under Austrian law, did not apply to same-sex partners. The European Court held this violated anti-discrimination protections in Article 14 of the European Convention. Although the government claimed that excluding homosexuals aimed to protect “the family in the traditional sense,” the Court held Austria had not demonstrated how the exclusion was necessary to that aim.
L. and V. v Austria, 2003 (Download 160 Kb PDF)
S.L. v Austria, 2003 (Download 91 Kb PDF)
In two cases, the Court held that Austria’s differing age of consent for heterosexual and homosexual relations violated protections against discrimination in article 14 of the European Convention, saying the law “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.”
Among many steps taken by different European bodies to defend the
rights of lesbians, gays, bisexuals, and transgender people, a directive by
the Council of the European Union (Download 135 Kb PDF) in 2000 barred all
employment discrimination based on sexual orientation. Many European countries give formal legal recognition to same-sex relationships. The Netherlands, in 2001, granted full marriage rights to same-sex couples (for an unofficial translation of the historic Dutch legislation, by Professor Kees Waaldijk, an expert at the University of Leiden, see http://athena.leidenuniv.nl/rechten/meijers/index.php3?c=86). Belgium followed suit in 2003. Croatia, Denmark, Finland, France, Germany, Hungary, Iceland, Norway, Portugal, and Sweden offer some form of “civil unions” to same-sex partners.
British Columbia: Barbeau v British Columbia, 2003 (Download 144 Kb PDF)
Ontario: Halpern et. al. v Attorney General of Canada, 2003 (Download 116 Kb PDF)
In two landmark cases, the highest courts of two Canadian provinces concluded that denying marriage licenses to same-sex couples violated equality provisions of the national Charter of Rights and Freedoms, and ordered that gays and lesbians be given the right to marry. (The British Columbia court initially stayed its ruling for one year, to allow the federal and provincial legislatures to change the statutes, but reversed itself and ordered the ruling implemented immediately when, two months later, the Ontario court ordered marriage licenses immediately issued in that province.) The rulings have effect only in the two provinces. However, the national government has indicated that it not appeal the decision to the country’s Supreme Court, and instead will draft a law to legalize same-sex unions across Canada. It is still unclear whether this will fully legitimate equality in marriage, or offer a parallel but separate status of “civil unions” for same-sex partners.
National Coalition for Gay and Lesbian Equality and another v Minister of Justice and others, 1998 (Download 275 Kb PDF)
The Constitutional Court of South Africa, acting on the Equality Clause of South Africa’s 1996 constitution — the first constitution ever to include sexual orientation in its anti-discrimination provisions — unanimously overturned “sodomy laws” in the country. In a sweeping decision, it held that laws criminalizing consensual homosexual conduct violated not only privacy protections but the principles of equality and dignity. In eloquent language, both the majority opinion and a concurrent opinion affirmed that respecting gay and lesbian equality and dignity was a key aspect of overcoming South Africa’s repressive past.
National Coalition for Gay and Lesbian Equality and others v Minister of Home Affairs and Others, 1999 (Download 149 Kb PDF)
In its first decision addressing the partnership rights of gays and lesbians, the Constitutional Court overturned legislation which restricted immigration benefits (including the right to accord residency to a foreign partner) to “spouses” while denying it to same-sex partners. The court held that this denial reinforced harmful stereotypes of gays and lesbians, invading their constitutional right to dignity by conveying a message that same-sex relationships lacked the same validity as heterosexual ones. It also held that the denial discriminated against gays and lesbians on the grounds of sexual orientation and marital status. It ordered the legislation changed.
Satchwell v President of Republic of South Africa and Another, 2002 (Download 196 Kb PDF)
The Constitutional Court found unconstitutional a law giving benefits to the “spouses” of judges but not their same-sex life partners. It ordered the legislation changed accordingly.
Du Toit and another v Minister of Welfare and Population Development and another, 2002 (Download 205 Kb PDF)
In a unanimous judgment, the Constitutional Court held that statutory provisions which allowed only married couples to adopt a child jointly violated constitutional rights, discriminating on the grounds both of sexual orientation and of marital status. It ordered that language be added to the statutes to allow same-sex life partners jointly to adopt children on an equal basis with heterosexual married couples.
The South African Law Commission, which proposes law reforms to Parliament, is considering revisions to marriage law that would formally recognize same-sex unions, though it is still uncertain what form that recognition will take. For more information on these decisions and others, see More than a Name: State-Sponsored Homophobia and Its Consequences in Southern Africa, a report by Human Rights Watch and the International Gay and Lesbian Human Rights Commission, See also the website of South Africa’s Lesbian and Gay Equality Project at www.equality.org.za.
Bowers v Hardwick, 1986
(Majority Opinion: Download 131 Kb PDF;
Dissent: Download 167 Kb PDF)
In a blow to gays and lesbians, and personal freedoms in general, the United States Supreme Court upheld the constitutionality of laws criminalizing consensual homosexual conduct — “sodomy laws.” The decision famously deniedd that the right to privacy entailed “a fundamental right to engage in homosexual sodomy.” Justice Blackmun issued an eloquent dissent, defending “the right to be let alone.”
Romer v Evans, 1996 (Download 40 Kb PDF)
The United States Supreme Court held that a Colorado law which prohibited any legislative, executive, or judicial action to protect lesbian or gay people against discrimination violated the Equal Protection Clause of the US constitution. The decision stated the legislation “identifies persons by a single trait and then denies them protection across the board," and said, “A State cannot so deem a class of persons a stranger to its laws.” The decision moved toward overturning Bowers v Hardwick.
Lawrence and Garner v Texas, 2003 (Download 552 Kb PDF)
The Supreme Court finally overturned Bowers v Hardwick, and held that laws criminalizing consensual homosexual conduct violated privacy protections and the US constitution. The decision offered an expansive understanding of the rights of the person: the majority opinion states that “Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. [The question of laws criminalizing sexual conduct] involves liberty of the person both in its spatial and more transcendent dimensions.” The decision was also unusual for a US court in drawing on international legal precedents — specifically the European Court of Human Rights’ jurisprudence against sodomy laws, above.
Massachusetts: Goodridge et. al. v Department of Public Health, 2003. (Download 314 Kb PDF)
The highest court of the US state of Massachusetts held that denying marriage licenses to same-sex couples violated equality protections in the state’s constitution. It stated that “The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason.” It ordered the state legislature to change state law to offer full marriage rights to same-sex partners. Because the case was decided under a state constitution, it cannot be appealed to the US Supreme Court, which only rules on cases under the federal constitution. The question of whether the legislature will actually open the status of marriage to same-sex couples — and whether such marriages would be recognized in other US states — remains undecided.
For more information on US jurisprudence on sexual orientation and gender identity, visit www.lambdalegal.org.
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