Sexual orientation and gender identity Flashcards
“Sexual minorities” under attack: State
persecution and punishment
In the 90s there was an explosion of SOGI rights domestically, and quickly spilled over to intl live, with the expected pushback. Sodomy laws, laws against “immorality,” “indecency,” etc.
“Sexual minorities” under attack: Social/private persecution and punishment
Social norms about gender roles or sexual conduct that when are derived from, punishment is expected or carried out anyways.
“Sexual minorities” under attack: Forced treatment of a “disease”
Aversion therapy, genital “correction” (intersex), rape therapy (lesbians).
“Sexual minorities” under attack: Violations of economic, social and cultural rights
Job-market discrimination, risk of homelessness.
SOGI rights in intl human rights law: Right to a private life
Right to live a personal life and make choices without interference. Criminalization of same-sex sexual activity between adults in private. Loss of parenting rights.
SOGI rights in intl human rights law: Right to equality and non-discrimination
SOGI-related discrimination: equal treatment by and before the law. Sometimes direct discrimination (unequal treatment), and sometimes indirect. Unequal age of consent for sexual activity. Right to adequate standard of living.
SOGI rights in intl human rights law: General human rights protections
Assembly, expression, physical integrity, detention, family life. The right to marriage (HRC vs. IACtHR): Status of same sex marriage in intl human rights law is still not uniform. IACtHR interpretation of same sex marriage: denying same sex couples the right to marriage is a violation of American Convention of human rights.
The Yogyakarta Principles (2007)
Has not been turned into a treaty. SOGI rights: polarized international norm. Governments that would be willing to turn them into a treaty are probably not the ones that need it. The countries in which it would make a difference for, have no interest in making this happen.
International polarization: UNGA Statements (Dec. 2008)
Implication of the family is the typical narrative used by the group that opposes the SOGI rights, because they are framing it as losing rights, or an attack on the traditional family or values. SOGI rights is a form of western rights / imperialism. If. you allow SOGI rights to enter your country you are allowing your country to be imperialized.
Toonen v. Australia (HRC 1992/1995): The facts
Tasmania’s Criminal Code criminalizes sex between consenting men in private (sodomy).
Toonen v. Australia (HRC 1992/1995): The complaint
This criminal code violated his right to privacy (Art. 17). And also a violation of his right to equality and discrimination (art. 26) based on the fact that it concerns homosexual men and not homosexual women, and sexual orientation (“other status”) because the practices are much more common between homosexual men than heterosexual men. No effective remedy available (other than the repeal of these CC provisions).
Toonen v. Australia (HRC 1992/1995): The defence
It’s only the Tasmanian government that has these laws. Equal treatment: The law targets a class of acts not a class of individuals - there is no direct discrimination or unequal treatment.
Toonen v. Australia (HRC 1992/1995): The Committee’s Views
Right to privacy: Interference in private life must not be arbitrary - i.e. must be reasonable. A law can still lead to an arbitrary infringement on private life. This law is not reasonable: because there is no public good being protected. Right to equality and nondiscrimination: Prohibited grounds of discrimination - “sex” includes “sexual orientation”. There is a violation of the right to privacy- the provisions must replaced. No need to determine if there was a violation of the right to equality. The case worked to introduce SOGI rights into the ICCPR.
Christine Goodwin v. the UK (ECtHR 1995/1999/2002): The facts
Goodwin is a post-operative transgender woman (“male to female transsexual”). The law still considers her a man, and as a result: forced disclosure of transgender status (harassment, discrimination), sexual harassment lawsuit dismissed, pension at set age of 65 instead of 60, higher car insurance premium.
Christine Goodwin v. the UK (ECtHR 1995/1999/2002): The complaint
Right to privacy (Art. 8). Right to marry (Art. 12). Right to equality (Art. 14).
Christine Goodwin v. the UK (ECtHR 1995/1999/2002): The defence
Refusing to formalize her sex was done in order to protect a public interest. Necessary and proportional infringements on privacy to protect a public interest.
Christine Goodwin v. the UK (ECtHR 1995/1999/2002): The Committee’s views
Right to privacy: No public interest threatened –> not recognizing her as a male was more harmful than the benefit it provided to the public. Violation. The infringements on the right to privacy were not justified.
Right to marry: The court ruled that not allowing her to marry her husband was also a violation. This is not a ruling on same sex marriage. The UK has to first accept that she’s a woman’s and second allow the couple (a man and women) to get married.
