Objective
The Commission on Human Rights should adopt a resolution affirming that human rights cannot be denied on the basis of sexual orientation or gender identity. Such a resolution is important not only to shed light on violations that are often shrouded in stigma and silence - but also to uphold the principle that all human rights must be enjoyed equally by all people. The Commission should also integrate language condemning abuses based on sexual orientation and gender identity into other thematic resolutions.
Background
"Sexual orientation" refers to the way in which a person's sexual and emotional desires are directed. "Gender identity" refers to a person's deeply felt, internal sense of belonging to a gender. These are profoundly rooted, fundamental aspects of the human personality and of human dignity.
Persecution and discrimination based on sexual orientation or gender identity are widespread around the world. Almost one hundred countries still legally prohibit sexual relations between persons of the same sex. In other countries, vaguely worded and sweeping laws against "public scandals" or "indecent behavior" are used to penalize people whose only crime is looking, dressing, or behaving differently from rigidly enforced social norms. In many countries, people detained on the basis of their sexual orientation or gender identity are tortured and otherwise ill-treated in police custody. Many people face violence in the community or family because of their sexual orientation or gender identity. Many government officials, driven by prejudice, refuse to protect them.
Human Rights Watch and many others have documented these egregious abuses on the basis of sexual orientation and gender identity. United Nations human rights mechanisms and bodies have also drawn attention to such abuses.
Most notably, the Human Rights Committee has condemned unequal treatment based on sexual orientation. In its landmark 1994 decision in the case of Toonen v Australia, the Committee held that sexual orientation be understood to be a status protected against discrimination under articles 2 and 26 of the International Covenant on Civil and Political Rights. The Human Rights Committee has continued to be concerned with sexual-orientation-based discrimination in its comments to a number of countries.
Drawing on this strong precedent, Brazil introduced a resolution on "Human Rights and Sexual Orientation" at the 59th session of the Commission on Human Rights. Affirming the inadmissibility of discrimination as a fundamental principle, the resolution expressed "deep concern at the occurrence of violations of human rights all over the world against persons on the grounds of their sexual orientation." Consideration of the resolution was postponed for two successive sessions of the Commission. It is incumbent on the Commission to act on it.
The resolution's condemnation of such abuses is well grounded in human rights standards and United Nations precedents. In recent years, the Commission's resolution on extrajudicial, summary or arbitrary executions has called on states "to investigate ... all killings committed for any discriminatory reason, including sexual orientation." The Special Rapporteur on extrajudicial executions has noted that "criminalizing matters of sexual orientation increases the social stigmatization of members of sexual minorities, which in turn makes them more vulnerable to violence and human rights abuses, including violations of the right to life."
Similarly, in his 2001 report to the General Assembly, the Special Rapporteur on torture stated 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 the grounds of sexual orientation may often contribute to the process of dehumanization of the victim, which is often a necessary condition for torture and ill-treatment to take place."
The Special Representative of the U.N. Secretary General on human rights defenders also noted in her 2001 report the "special importance" of "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."
The U.N. Working Group on Arbitrary Detention also held that detaining people on the basis of their sexual orientation violates fundamental rights even when the laws under which they are detained do not expressly refer to homosexual conduct.
The 2004 report of the Special Rapporteur on the right to health notes that "discrimination on the grounds of sexual orientation is impermissible in international law," and finds that "[t]he legal prohibition of same-sex relations in many countries, in conjunction with a widespread lack of support or protection for sexual minorities against violence and discrimination, impedes the enjoyment of sexual and reproductive health by many people with lesbian, gay, bisexual, or transgender identities or conduct." The Rapporteur observes a basic "duty on the State to respect an individual's freedom to control his or her health and body."
Finally, at the domestic level, numerous countries have institutionalized protections against discrimination based on sexual orientation or gender identity. In 1996, post-apartheid South Africa became the first country to bar discrimination based on sexual orientation in its Constitution.
Recommendations
The Commission on Human Rights should adopt a resolution that:
- Affirms the principle of the inadmissibility of discrimination on any grounds;
- Expresses concern at the occurrence of discrimination and violations of human rights based on persons' sexual orientation or gender identity;
- Stresses that the enjoyment of human rights should not be hindered on the grounds of sexual orientation or gender identity;
- Calls upon States to promote and protect the rights of all persons regardless of their sexual orientation and gender identity;
- Encourages all special procedures of the Commission on Human Rights, as well as the treaty bodies, to give due attention within their mandates to human rights violations based on sexual orientation and gender identity;
- Requests the United Nations High Commissioner for Human Rights to pay due attention to such violations, and to present a report on this issue to the 62ND session of the Commission on Human Rights.
The Commission on Human Rights should also:
- Integrate language condemning abuses based on sexual orientation and gender identity into its other thematic resolutions. People are subjected to torture on the basis of their sexual orientation and gender identity; violence against women is often a punishment for their exercise of sexual autonomy; human rights defenders face retaliation for working with marginalized and stigmatized groups; and people are denied basic rights in areas such as health, education, and housing. The Commission should draw attention to these impermissible forms of discrimination and abuse.
