LGBT Rights

Question 1

What are sexual rights?

Answer 1

Right to a happy and healthy sexual life

• attain highest possible standard of sexual health (access to sexual and reproductive health services)
• respecting body integrity
• decision whether to be sexually active
• choice of sexual partner and to enter into consensual sexual relationships
• right to make a decision to have children

Question 2

What are LGBT rights ?

Answer 2

• persecution of sexual minorities in oppressive and torturous regimes e.g. Nazi Germany
• homosexuality was seen as an illness until the 1980s
• gender segregation e.g. In Ancient Greece lead to more same sex antics
• in many criminal codes homosexuality was only prohibited for men and not women = gender inequality
• bible - 18:22 shameful to sleep with a man like one sleeps with a woman, 20:13 both should be put to death
• Qur’an poets 165-166: basically out of all the creatures in the world would you really approach men instead of the mates that allah has provided you with? - no explicit mention in the Qur’an

Question 3

Repression

Answer 3

Violation of right to life.m, torture and degrading treatment
Hate violence: hate crime, speech, homophobia, stereotyping = violates right to life and privacy

Question 4

Is LGBT repression continuous?

Answer 4

1/3 world / 78 states it is still a crime to be gay

• 7 states still have the death penalty
• non/ discrimination based on the sexual orientation (work, home, social benefits… rights to marriage and adoption)
• violation of rights in vulnerable groups e.g. Migrants and asylum seekers

Question 5

The law

Answer 5

• UDHR articles 1, 7, 12, 23
• ICCPR articles 2,3,23,26,10
• ICESCR articles 2, 17 (right to prevention of epidemic diseases)
• ECHR article 8 right to privacy

Question 6

What does the ICESCR GC say?

Answer 6

Number 20 2009: “other status” included in article 2(2) includes sexual orientation. State parties should ensure that a person’s sexual orientation is not a barrier to realising covenant rights, for example in accessing survivor’s pension rights. In addition, gender identity is recognised as among the prohibited grounds of discrimination - people who are transsexual or transgender or intersex often face human rights violations such as harassment in schools or the workplace

Question 7

HR Committee jurisdiction

Answer 7

• Toonen v Australia: criminalising homosexuality is a violation of rights and unlawful interference with his privacy
• Joslyn v NZ: lesbians gay marriage was NOT a violation - right to marriage in article was that the committee c
• young v Australia: veterans right to his partners’ veterans pension, issues with marriage / heterosexual unmarried couple distinction with gay couples who were not allowed to marry = violation of article 26 of the covenant

Question 8

UN resolutions

Answer 8

• on extrajudicial., summary or arbitrary executions in 2002: states cannot apply the death penalty for SOGI
• 17/19 2011: human rights SO and GI
• also the Rapporteur in violence against women and violence on women who don’t have conforming sexual attitude

Question 9

ICCPR Committee general comment 34

Answer 9

On article 19 of the ICCPR: (freedom of expression): morals cannot be used to justify a restriction of rights, can only be when the morals are n/discriminatory and compatible with the universality of HR

Question 10

HR Committee and privacy

Answer 10

Doesn’t consider applications on the right to privacy other than when to do with criminalisation but it can ONLY have jurisprudence over cases referred to it - so could expand its margin of appreciation, but it has never explored the privacy approach in the periodic reports submitted by state parties to the ICCPR

Question 11

2007 Yogyakarta Principles

Answer 11

• set of principles on the application of the IHRL standards for sexual orientation and gender identity
• comprised by UN experts and academics from across the world (diverse group for representation of cultures)
• referred to by the UN organs and the ECHR: Zontul v Greece: asylum seeker, Turkish national got a boat from turkey heading for Italy, it was intercepted by Greek coast guards and the passengers were moved to an abandoned school in Crete, subject to horrific detention conditions, including minimal access to toilet facilities, food, water and basic amenities. Many asylum seekers were assaulted including the claimant who was raped with a truncheon by a coastguard for being gay. Held that he had been tortured, and Greece were ordered to pay €50,000

Question 12

ECHR article 8 case law

Answer 12

• dudgeon v UK and Norris v Ireland criminalisation of homosexuality against article 8
• modinos v cyprus: consistent non application of the criminality of homosexuality provisions did not counter or make up for not repealing them
• smith and Grady v UK: non recruitment into the army because of being gay violated the right to privacy
• Goodwin v UK and I v UK: the ECHR recognition to the right of privacy not about states prohibiting gender choice but about states taking positive obligations to allow people to be able to live as a different gender e.g. Changing identity documents
• van kuck v Germany: transsexual woman denied reimbursement for sex reassignment surgery costs by her health company - German courts were held to not respect the basic and fundamental right of self-determination which is your gender identity