An effective understanding of human rights has sometimes remained elusive to rights-holders in view of the tools employed to demystify them.. Human rights have tended to be explained in abstract and ideal terms not easily convertible and deployable by an individual or group to practical effect.
Article 1 of the Universal Declaration of Human Rights states that:
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
In similar vein, Cranston states that a human right is:
A universal moral right, something which all men everywhere, at all times ought to have, something of which no one may be deprived without grave affront to justice, something which is owing to every human being because he is human.5
It is not difficult to imagine the consternation of a vulnerable individual – a woman, disabled person or a lesbian - confronted by the assertion that she was born equal in rights with her abusive husband, her non-disabled classmate or her heterosexual work-mate. The far more valuable definition of human rights, for example as articulated by Louis Henkin, posits them as:
Claims, which every individual has, or should have, upon the society in which he lives.6
Calling such claims “human” introduces the universality principle, that is that they are due to all human beings in society:
To call them ‘rights’ implies that they are claims of right, not merely appeals to grace, or charity, or brotherhood, or love; they do not need to be earned or deserved.
The history of human rights is a history of rights claims, rights contestation and rights conferment via law; and the major international human rights
instruments attest to this fact. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) of 1979 became the embodiment of a struggle which propelled women from being considered as mere chattels in the 19th century to people with equal suffrage rights in the 20th century. Article 7 of CEDAW which requires states to ensure to women on an equal basis with men, the right “To vote in all elections and public referenda and to be eligible for election to all publicly elected bodies” would indeed be sweet music to the suffrogets who orchestrated civil disobedience campaigns with great dedication and fervour in the early 20th century in order to secure this right. Other international Conventions too gained their currency from demands and struggles fronted by affected constituencies, for example against apartheid (Art.3 of the International Convention on Elimination of All Forms of Racial Discrimination [ICERD]); and exclusion on account of disability (the International Convention on the Rights of Persons with Disabilities). Archbishop Desmond Tutu recently likened discrimination against gays with the apartheid practiced in South Africa for many years.8
When an individual claims his or her rights, states as principal duty-bearers have threefold obligations whose effect is to enable rights-holders to exercise their rights. A state which has ratified a human rights convention is required to:
• Respect the rights in question,by not violating them, for example, by restricting the individual’s sexual or reproductive autonomy;
• Protect those rights by taking actions against third parties who violate them, for example, by enforcing sanctions against violators as well as deterrent measures; and
• Fulfil/facilitate those rights by putting in place via policy, legislative and administrative means, the environment appropriate to enable individuals to have the effective benefit of human rights.
All these obligations import a special duty on the part of states to either do
5 - Maurice Cranston: What are Human rights; 1973; 2 nd Edition; London; Bodley Head; p.36.
6 - Prof. Louis Henkin: Rights Here and There; 8 Columbia Law Review; 1582 (1981). 7 - Ibid.
8 - “African Gays Call for Equal Rights at Social Forum”; Musoke Kezio David; ??; January 25 2007.
something positive (such as protecting people from rights violations) or negative (such as ensuring that they stop themselves from violating peoples’ rights).
3.
Sexual Rights as Human Rights
Sexuality is an integral part of the personality of every human being. Its full development depends upon the satisfaction of basic human needs such as the desire for contact, intimacy, emotional expression, pleasure, tenderness and love. Sexuality is constructed through the interaction between the individual and social structures. The full development of sexuality is essential for individual, interpersonal and societal wellbeing.
Sexual rights are universal human rights on account of the inherent freedom, dignity and equality of all human beings which is articulated in all human rights conventions. The term “sexual rights” captures a range of human rights principles to the extent that they relate to sexuality. It covers human expressions and practices around gender and sexuality. Scott Long lists sexual rights to include:
the rights to be free from torture, violence, discrimination and coercion related to sexual and gender identity and expression … the right not to be imprisoned or otherwise punished or detained arbitrarily because of discriminatory laws or prejudices about sexuality … the right to a safe and satisfying sex life, information about services related to sexual and reproductive health, the right to choose one’s sexual partner, and the right to express sexuality separate from the context of reproduction.9
He notes that some advocates structure discourses and campaigns around “rights” not found in treaties which, in effect, are aspirational; for example, the “right to happiness, dreams and fantasies,” and the “right to be free and autonomous in expressing one’s sexual orientation.10
Broadly, then, the following can be extrapolated from human rights Conventions and Declarations12 as sexual rights which call for recognition, respect, promotion and defence by individual as well as state actors:
• The Right to sexual freedom –encompassing the possibility of individuals to express their full sexual potential. However, this right excludes all forms of sexual coercion, exploitation and abuse;
• The Right to Sexual autonomy, sexual integrity and safety of the sexual body
- involving the ability to make autonomous decisions about one’s sexual life within the context of one’s own personal and social ethics. It also encompasses control and enjoyment of one’s body free from torture, mutilation and violence of any form;
• The Right to privacy and confidentiality – involving the right for one to make individual decisions about intimacy as long as such decisions do not intrude on the sexual rights of others. Furthermore, sexual and reproductive health-care services should be confidential and offered with privacy;
• The Right to sexual equality – referring to freedom from all forms of
discrimination regardless of gender, sex, sexual orientation, age , race, social class, religion or physical and emotional disability;
• The Right to sexually associate freely. This means the possibility to marry or not, to divorce and to establish other types of responsible sexual associations; • The Right to make free and responsible reproductive choices. This encompasses
the right to decide whether or not to have children, the number and spacing of children, and the right to full access to the means of fertility regulation;
• The Right to sexual information based upon scientific inquiry. This right implies that sexual information should be generated through a process of unencumbered and yet scientifically ethical inquiry, and disseminated in appropriate ways at all societal levels;
• The Right to comprehensive sexuality education. This is a life long process from birth throughout the lifecycle and should involve all social institutions; and • The Right to Sexual health care. Sexual healthcare should be available for
prevention and treatment of all sexual concerns, problems and disorders. Hence, sexual rights are universal and inalienable. They are for everyone- women and men, young people and adults, rich and poor, rural and urban, immigrant and indigenous. Sexual rights, like other human rights, transcend nationality, religion and culture. The basis for sexual rights can be found in different cultural traditions, religions and international agreements. Sexual rights are not a western concept. They are far reaching and life affirming.
Sections II and III of this paper zero in on the issues of sexual orientation and gender identity in order to illustrate the broad thesis that even where sexual rights are not defined adequately enough in international or national law, effective recourse can progressively be had to ensure the protection of the exercise of such rights.
9 - Scott Long: “’Why should he be punished this way’? Sexual Orientation, Gender Identity, Sexual Rights: Understanding the Violations”; Human Rights Watch; longs@ hrw.ORG
10 - Ibid.
11 - International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, Convention on Elimination of all forms of Discrimination Against Women, Convention on the Rights of the Child, International Convention on the Rights of Persons with Disabilities, African Charter on Human and Peoples’ Rights and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.
12 - For example, The Cairo Programme (developed at the International Conference on Population and Development, 1994); and the Declaration and Platform for Action (the Beijing Platform); adopted at the 1995 4th World Conference of Women in Beijing.
II: Sexual Orientation and Gender Identity: From
Inference to Reference
1.
Definitions
The term sexual orientation refers to a person’s capacity for profound emotional, affectional and sexual attraction, and intimate and sexual relations with, people of the same gender (homosexual), another gender (heterosexual) or both genders (bisexual). In other words, it is the direction of a person’s sexual desires. Gender identity refers to a person’s experience of self-expression in relation to the social constructions of masculinity or femininity (gender). It is one’s deeply felt and internal sense of belonging to a gender which need not be the gender they were assigned at birth. A person may have a male or female gender identity with the physiological characteristics of the opposite sex.
2.
Towards international protection
Over half of the countries in the world still criminalise sexual relations between persons of the same sex. Repressive and discriminatory national laws, policies and practices have encouraged endemic homophobia, hate crimes and prejudice, and a climate of impunity for human rights violations based on sexual orientation and gender identity. Lesbian, gay, bisexual, transgendered and intersexed peoples (LGBTIare subjected to widespread and severe forms of discrimination and human rights violations, including violations of the right to life, executions and hate- induced violence, torture, ill-treatment and detention solely on the basis of feeling and acting contrary to popular social norms and expectations. LGBTI persons also face discrimination in the areas of housing, employment, education, freedom of association, right to family life, and other civil and political and economic, social and cultural rights.
No international instruments comprehensively address all aspects of human rights violations on the grounds of sexual orientation and gender identity. However, the findings, jurisprudence and commentary of treaty bodies, special procedures of the Commission on Human Rights3, the Sub-Commission on the Promotion and Protection of Human Rights, the Office of the High Commissioner for Human
Rights and the Office of the High Commissioner for Refugees, make explicit reference to the issue of sexual orientation.17
In 2002, following the report of the Special Rapporteur on Extra-Judicial, Summary or Arbitrary Executions, the UN Commission on Human Rights (now “Human Rights Council”) adopted resolutions:
• Calling on all states to protect the right to life of all persons and investigate promptly and thoroughly all killings committed for any discriminatory reason including sexual orientation;18 and
• Asking states to ensure that the death penalty is not imposed for sexual relations between consenting adults.19
At the 59th Session of the Human Rights Commission in 2003, Brazil tabled the first comprehensive resolution on human rights and sexual orientation with the aim of affirming that equal rights would be enjoyed by all, regardless of sexual orientation, and that there should be no violation of rights or hindrance to the enjoyment of rights on the grounds of sexual orientation. Evatt notes that if successful, this motion’s effect would have been to add to each human rights principle the words “regardless of sexual orientation”.20 But Brazil’s efforts were frustrated by more than 50 amendments and a no-action motion. Although Brazil decided to defer the resolution to subsequent sessions, it did not pursue its resolution in the 60th & 61st sessions and no other state took it up. At the 61st Session New Zealand on behalf of more than 30 states made a joint statement calling for the Commission to address these issues. This was further stressed in a joint written statement submitted by various NGO’s to the Human Rights Council in its 1st session, entitled “The Promise of the Human Rights Council: Marginalised Groups, Sexual Orientation and Gender Identity”. The NGO’s stated that: “the Human Rights Council’s success in addressing persistent human rights violations against marginalized groups will be a litmus test of the credibility and effectiveness of the reform process and the United Nations as a whole.”
This was the context within which the Yogyakarta Principles (discussed below) were developed.
17 - See International Commission of Jurists: International Human Rights References to Human Rights Violations on the Grounds of Sexual Orientation and Gender Identity; 2nd edition; Geneva; 2006.
18 - Paragraph 6; Commission on Human Rights; Resolution 2002/36; (http://ap.ohchr. org/documents/E/CHR/ resolutions/E-CN_4-RES-2002- 36.doc).
19 - Paragraph 4 (f);
Commission on Human Rights; Resolution 2004/67; (http:// ap.ohchr.org/documents/E/ CHR/resolutions/E-CN_4-RES- 2004-67.doc).
20 - Elizabeth Evatt: „Status of International Human Rights Law in relation to Sexual Orientation and Gender Identity”; paper presented at the Experts’ Meeting on sexual Orientation, Gender Identity and Human Rights; 6-9 November 2006; Yogyakarta; Mimeo.
3.
International and national jurisprudence on sexual
orientation and gender identity
Important judicial decisions at the national and international levels have affirmed the rights of LGBTI people; and the unacceptability of discrimination on the basis of sexual orientation or gender identity. Laws that criminalize consensual homosexual conduct have been overturned and violations of human rights established. International human rights instruments have been interpreted for this purpose.
Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with his (or her) privacy. The right to privacy has been the basis for judicial decisions affirming that laws criminalising private, homosexual consensual behaviour between adults amounts to a violation. In Nicholas Toonen v Australia, 1994,21 Mr. Toonen complained that Tasmanian laws criminalizing consensual sex between adult males in private were a violation of his right to privacy; because they distinguished between people on the basis of sexual activity, orientation and identity; which meant that homosexual men in Tasmania did not enjoy equality before the law. The UN Human Rights Committee upheld Mr. Toonen’s complaint, stating that Tasmanian laws were in violation of the right to privacy (Article 17 ICCPR) and the right against discrimination (Articles 2 and 26 of the ICCPR). The Commission held that the anti-discrimination provision in the Covenant should be understood to include sexual orientation as a protected status. The Commission recommended that the law be repealed. Responding to the Tasmanian Parliament’s refusal to repeal the offending laws, the Federal government passed the Human Rights (Sexual Conduct) Act, which prohibits the making of laws that arbitrarily interfere with the sexual conduct of adults in private. In the case of Croome v Tasmania (1997), the High Court of Australia struck down the Tasmanian laws on the grounds that they were inconsistent with the Federal Human Rights (Sexual Conduct) Act.
The South African Constitutional Court defined ‘privacy’ not only to include the right to privacy in its literal meaning, but also to include the human capacity to make connections constitutive of the self:
Privacy recognises that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from
the outside community. The way in which we give expression to our sexuality is at the core of this area of private intimacy. If, in expressing our sexuality, we act consensually and without harming one another, invasion of that precinct will be a breach of our privacy.22
The Court also stressed the interdependent roles which dignity and equality play alongside privacy as essential values for informing decriminalisation of homosexual acts.
Relatedly, in Young v Australia (2003), the UN Human Rights Committee held that in denying pension rights to the surviving same-sex partner of a war veteran, Australia violated protection provided for in Article 26 of the ICCPR which affirms the equality of all before the law without any discrimination. The Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions also reiterated the same position, stating that:
The Special Rapporteur … believes 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. 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.23
Jurisprudence against sodomy laws has also grown. The European Court of Human Rights (ECHR) has variously found – in Dudgeon v United Kingdom (1981); Norris v Ireland (1991); and Modinos v Cyprus (1993) - that sodomy laws in the United Kingdom, Ireland and Cyprus, respectively, violated the right to privacy in Article 8 of the European Convention for the Protection of Human Rights
and Fundamental Freedoms. The ECHR also found violations of Article 8 of the European Convention in Salgueiro da Silva Mouta v Portugal (1999) where it 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. In Smith and Grady v United Kingdom; and Lustig- Prean and Beckett v United Kingdom (1999), the Court determined that United Kingdom’s policy of banning homosexuals from the military violated protection of private life. In Goodwin v United Kingdom; I v United Kingdom 2002, the United Kingdom was held in violation of Articles 8 and 12 of the European Convention for denying two transsexual women the right to change their legal identities and papers to match their post-operative genders. In
21 - UN Doc CCPR/C/50/ D/488/1992.
22 - National Coalition for Gay and Lesbian Equality et. al. v Minister of Justice et. al., 1999 [1] SA 6 (S. Afr. Const. Ct.).
23 - “Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions”; UN Doc. E/ CN.4/1999/39, 6 January 1999 at 77.
L and V v Austria; S.L. v Austria (2003), 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. In the United States, the Supreme Court has held that laws criminalizing consensual homosexual conduct violated privacy protection in Romer v Evans 1996 and Lawrence and Garner v Texas 2003.
Article 19 (2) of the ICCPR affirms that everyone shall have the right to freedom of expression including seeking, receiving and imparting information. This right is violated when states suppress information on gay and lesbian existence; or eradicate it from state-controlled or private media. Article 21 of the ICCPR states that the right of peaceful assembly shall be recognized, while Article 22 affirms that