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Sexual Orientation in International Law
What role has international law played in the LGBT movement?
Does the international legal system recognize the rights of lesbians, gay men, bisexuals and transgendered people? What is the history of the LGBT movement within the UN system?
Professor Douglas Sanders answers these questions and explains the history of sexual orientation and gender identity in his article “Human Rights and Sexual Orientation in International Law.” Professor Sanders is a Canadian citizen and resides in Bangkok, Thailand. He is a professor of law at the University of British Columbia in Vancouver and Chulalongkorn University in Bangkok. When Professor Sanders addressed the United Nations on behalf of ILGA in 1992, he made history by becoming the first openly gay individual to address the UN and giving the first speech to address LGBT issues at the UN.
HUMAN RIGHTS AND SEXUAL ORIENTATION IN INTERNATIONAL LAW
Professor Douglas Sanders
May 16, 2007
International human rights law and the lesbian and gay rights movement have grown up together in the years since World War II. Both are still developing. Both are evolving from western initiatives to a world-wide presence.
The founding documents of international human rights law are the United Nations Charter of 1945, the Universal Declaration of Human Rights of 1948, the European Convention on Human Rights of 1950, and the two basic United Nations human rights treaties of 1966, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The core United Nations human rights treaties include, as well, the conventions on racial discrimination, women, torture, children, migrant workers, forced disappearance and people with disabilities.
Does this international system recognize the rights of lesbians, gay men, bisexuals and transgendered people? None of the international human rights instruments mentioned make any reference to “sexual orientation” or "gender identity." Much of the international human rights system focuses on specific groups. There are treaties and programs dealing with race and sex, and concerns with specific groups such as refugees, children, cultural minorities, indigenous peoples, migrant workers and the disabled. Only through invoking provisions on personal privacy and general provisions on equality have lesbians and gay men been able to gain some recognition.
By the end of the 20th century concern with discrimination on the basis of sexual orientation had gained sufficient recognition
- in national legal systems,
- in the European human rights system and various European institutions,
- in actions of the United Nations treaty bodies, special procedures and working groups,
- in initiatives of the UN High Commissioner for Human Rights, and
- in the work of important Non-Governmental Organizations
that it had become realistic to say that the issue was now a part of a broad international human rights agenda, though progress often continues to be contested. For gays and lesbians the United Nations system, at the moment, is partly open and partly closed.
The story begins in Europe.
The European Convention on Human Rights
The first breakthrough came in the 1981 decision of the European Court of Human Rights in Dudgeon v United Kingdom. The United Kingdom had decriminalised male homosexual activity in England and Wales in 1967. The old law was still in place in Northern Ireland. Jeffrey Dudgeon, an activist with the Northern Ireland Gay Rights Association, launched a challenge. Since the European Convention on Human Rights did not have a general equality provision it was necessary to find a specific right in the convention that had been denied. The Court ruled that the law violated Dudgeon’s right to respect for his private life.
Dudgeon was a very good test case. The United Kingdom could not claim that the law was necessary for the "protection of health or morals", justifications allowed in the Convention. It had repealed the same law in England and Wales. As well, the law was not being enforced, something that is true in almost every country that continues to have a criminal prohibition. The law was out of step with the laws in other European states, a fact that strongly influenced the Court.
The United Kingdom wanted to loose. Public opinion in Northern Ireland was evenly divided. Reform was stalled by the strong opposition of conservative Protestants. The Court decision made law reform politically possible. After Dudgeon the European Court of Human Rights ruled against similar laws in Norris v Ireland in 1988 and in Modinos v Cyprus in 1993.
While the European human rights system started well with the Dudgeon decision in 1981, gays and lesbians lost all subsequent cases except those identical to Dudgeon. In frustration, the International Lesbian and Gay Association (ILGA) decided in 1990 to press for an additional protocol to the Convention to expressly prohibit discrimination on grounds of sexual orientation. There seemed no other way to make progress. But, without any change to the Convention, the Commission and Court changed direction in the late 1990s.
In Sutherland v United Kingdom in 1997 the European Commission of Human Rights applied privacy reasoning to strike down an unequal age of consent for homosexual and heterosexual acts, reversing earlier decisions. The Commission noted changed medical views on homosexuality, and observed that the law "might inhibit efforts to improve the sexual health of young homosexual and bisexual men." The Court came to the same conclusion in January, 2003, in an age of consent case from Austria. The Austrian Constitutional Court said the law was designed to protect a young, maturing person “from developing sexually in the wrong way.” The European Court found scientific support for the proposition that sexual orientation was determined before puberty, undercutting any justification based on protecting youth.
…the Court reiterates that sexual orientation is a concept covered by art 14. Just like differences based on sex, differences based on sexual orientation require particularly serious reasons by way of justification.
In other cases criminal laws against sado-machocistic acts were upheld, criminal laws against group sex were struck down, and a ban on lesbian and gay organizations that have members under 19 was upheld.
The United Kingdom's ban on homosexuals in the military was successfully challenged in the 1999 decisions in Smith and Lustig-Prean. The government conceded that the ban interfered with the right of individuals to respect for their private lives, but claimed justification. The Court ruled that the military concerns with "operational effectiveness" were based "solely upon the negative attitudes of heterosexual personnel…"
…these attitudes, even if sincerely felt by those who expressed them, ranged from stereotypical expressions of hostility to those of homosexual orientation, to vague expressions of unease about the presence of homosexual colleagues. To the extent that they represent a predisposed bias on the part of a heterosexual majority against a homosexual minority, these negative attitudes cannot, of themselves, be considered by the Court to amount to sufficient justification for the interferences with the applicants' rights outlined above, any more than similar negative attitudes towards those of a different race, origin or colour.
A key part of the argument against the ban was the conflict between the policy on homosexuals and policies designed to ensure the successful integration of women and racial minorities in the armed forces.
As in Dudgeon, the Court looked to changed practices in other countries:
[The Court] notes the evidence before the domestic courts to the effect that the European countries operating a blanket legal ban on homosexuals in their armed forces are now in a small minority. It considers that, even if relatively recent, the Court cannot overlook the widespread and consistently developing views and associated legal changes to the domestic laws of Contracting States on this issue…
The Court concluded that the discrimination was not "necessary in a democratic society", a requirement for any justification under Article 8. The Court held that the hallmarks of a democratic society included "pluralism, tolerance and broadmindedness…"
The Court had ruled that respect for personal privacy required non-discrimination in employment. Respect for ‘privacy’, paradoxically, now allowed homosexuals to be open about their sexual orientation without the fear of loosing their jobs. Arguably all forms of state discrimination on the basis of sexual orientation, and now gender identity as well, are covered by this expansive interpretation of privacy rights.
For many years there was no recognition of lesbian and gay families. In December, 1999, in the da Silva Mouta case, the Court found a breach of Article 8 in a case where a man had lost custody of his child on the basis of his homosexuality. He had been granted parental access only on the condition that he hide his orientation. This was the first family rights case to be won. The Court noted that the denial of access on the part of the gay father was based on sexual orientation, and ruled that this was “a distinction which cannot be tolerated under the Convention”.
In February, 2002, in the Frette case, the Court ruled that France could refuse to allow gays and lesbians to adopt children. Three judges said there were significant divisions within the scientific community about the possible consequences for children being brought up by one or more homosexual parents. One judge held that adoption rights did not come within the Convention. Three judges dissented. As a result, there was no majority reasoning. A new case is re-examining the adoption issue. Meanwhile, European governments are increasingly allowing same-sex couples to adopt.
In July, 2003, in the Karner case, the Court upheld successor tenancy rights for same-sex partners, which Austrian law recognized for a spouse or an unmarried “life companion.” The claim for survivor rights in relation to rent-controlled tenancies had been won in earlier landmark equality cases in New York and the United Kingdom. The decision of the Austrian Supreme Court had limited “life companion” to a heterosexual companion, on the basis that this would have been the intent of the legislators in 1974 when the language was adopted. The Austrian government argued that the goal was to protect the family “in the traditional sense.” The Court spoke very clearly:
…very weighty reasons have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention … Just like differences based on sex, differences based on sexual orientation require particularly serious reasons by way of justification…
A goal of supporting the ‘traditional family’ did not require the denial of homosexual equality.
Transsexual rights have been recognized. In July 2002 the Court rejected some of its earlier decisions and ordered the United Kingdom to change the information on Christine Goodwin’s birth certificate.
In the twenty first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues. In short, the unsatisfactory situation in which post-operative transsexuals live in an intermediate zone as not quite one gender or the other is no longer sustainable. …society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost.
The breach was not simply of the right of privacy, but also of the right to marry. The Court ruled that Christine Goodwin, a male to female transsexual, had the right to marry a man.
In June, 2003, in van Kuck, the Court held that German courts had violated privacy rights by interpreting a health insurance contract between a transsexual woman and a private insurance company as not requiring reimbursement for the costs involved in gender reassignment.
In May, 2007, in Baczkowski v Poland the Court held that the banning of the gay pride parade in Warsaw in 2005 violated rights of freedom of association and assembly and the prohibition of discrimination.
A broad equality provision has been added to the European Convention. The text of the twelfth protocol to the Convention was approved in 1999, adding a general ban on discrimination, comparable to that in the International Covenant on Civil and Political Rights. It came into force on April 1, 2005. At that point, however, only 11 European countries had ratified the protocol, not including France, Germany or the United Kingdom. While "sexual orientation" is not specifically mentioned in the text, it is referred to in the explanatory report. It will clearly be treated as a prohibited ground of discrimination. The changed attitude in the European Court of Human Right makes the protocol simply a confirmation of recent decisions on sexual orientation and gender identity.
The Council of Europe and the European Union
The basic European institutions are the Council of Europe and the European Union. The first is a broad political organisation responsible for the European Convention on Human Rights. States seeking membership in the European Union must first ratify the European Convention on Human Rights and join the Council of Europe. To begin this process, it is now necessary for states to repeal any anti-homosexual criminal laws, specify an equal age of consent for sexual activity and prohibit discrimination.
The landmark developments have been:
1981 – the report to the Parliamentary Assembly of the Council of Europe on "Discrimination Against Homosexuals". The report led to a set of resolutions (a) calling on the World Health Organisation to remove homosexuality from its list of diseases (which has occurred), (b) urging member states to decriminalise homosexual acts and apply equal ages of consent for homosexual and heterosexual acts, and (c) seeking equal treatment for lesbians and gay men in employment.
1983 – in a resolution on HIV/AIDS the Parliamentary Assembly reaffirmed
...its unshakeable attachment to the principle that each individual is entitled to have his privacy respected and to self-determination in sexual matters.
1989 – both the Parliamentary Assembly of the Council of Europe and the European Parliament addressed the rights of transsexuals, prompted, it seems, by the negative decision of the European Court of Human Rights in the Rees case. The Council of Europe published reports on transsexual issues, in 1995 and 2000.
1993 – in the groundbreaking Roth report, the Committee on Civil Liberties of the European Parliament reported on equality issues for lesbians and gay men. In response to the report, the European Parliament, in February, 1994, called for (a) decriminalisation, (b) an equal age of consent, (c) equal social benefits, (d) inheritance and housing rights, (e) state action against homophobic violence, (f) anti-discrimination laws, (g) equal state funding for homosexual social and cultural organizations, (h) access to marriage or an “equivalent legal framework” and (i) equal adoption rights.
1997 – the Treaty of Amsterdam added “human rights” to the treaty establishing the EU and authorized the EU Council to act against discrimination on the basis of sexual orientation, but only if it acted unanimously and in response to a proposal from the Commission.
2000 – the Parliamentary Assembly of the Council of Europe restated now familiar calls for decriminalization, an equal age of consent, anti-discrimination laws and registration for same-sex relationships. It added some subjects: (a) refugee status for persons facing persecution on the basis of sexual orientation, (b) immigration rights for the same-sex partners of nationals, and (c) educational programs against homophobia, particularly in schools, the medical profession, the armed forces and the police. Responding to these decisions, the Committee of Ministers of the Council of Europe in September, 2001, indicated some support, and specifically rejected “cultural” arguments:
Homosexuality can still give rise to powerful cultural reactions in some societies or sectors thereof, but this is not a valid reason for governments or parliaments to remain passive. On the contrary, this fact only underlines the need to promote greater tolerance in matters of sexual orientation.
2000 – the EU Council adopted the Employment Equality Directive, 2000/78/EC, which bars discrimination in employment on a number of grounds, including sexual orientation. The EU established a Group of Independent Experts on sexual orientation discrimination. They completed a detailed report on the implementation of the sexual orientation part of the equality directive in late 2004. The July, 2005, Annual Report on Equality and Discrimination of the European Commission named Latvia as the only country in the EU which had not yet expressly banned employment discrimination on the basis of sexual orientation. Such discrimination was banned in the other 24 member states and in the then candidate countries of Romania and Bulgaria.
2000 - the European Union Charter of Fundamental Rights was proclaimed by the Parliament, Council and Commission of the European Union on December 7th, 2000, in Nice, France. Article 21 prohibits discrimination on a number of grounds, including sexual orientation.
2002 - Peter Schieder, the President of the Parliamentary Assembly of the Council of Europe, accepted the role of honorary patron of the European conference of the International Lesbian and Gay Association, meeting in Lisbon in October, 2002.
2002 - the European Parliament criticized Egypt’s prosecution of 50 men as homosexuals, following up on an earlier resolution of November 2001, when the men were first arrested and charged. A further resolution in April, 2003, called on Egypt to “stop persecuting gays and to prohibit discrimination on grounds of sexual orientation…”
2003 – the European Court of Justice confirmed an earlier ruling that discrimination against transsexuals is a form of discrimination on the basis of sex, and prohibited by the EU treaty.
2004 – the draft European Constitution was completed, incorporating the Charter of Fundamental Rights, previously agreed upon. As before, the Charter would only apply to EU law, not to domestic law. The Constitution was defeated in referendums in France and the Netherlands in 2005.
2005 – the mobility directive 2004/58/EC came into force in July, 2005. It recognizes as a “family member” a same-sex partner of an EU citizen in situations where there has been a registered partnership under the laws of a member state and where registered partnerships are recognized in the law of the host country. The new directive, though limited, is the first occasion on which registered partnerships have gained recognition in EU law.
There have been a number of innovations in monitoring and analysis. In 1999 the Council of Europe established a Commissioner for Human Rights, to play a public advocacy role. In 2002, the EU appointed the Network of Independent Experts on Fundamental Rights. The EU Fundamental Rights Agency began operations in March, 2007, taking over from the European Monitoring Centre on Racism and Xenophobia. The EU Institute on Gender Equality was approved in December 2006, and is to come into operation within two years.
THE BUTTIGLIONE AFFAIR
In October, 2004, the incoming president of the EU Commission, Jose Manuel Barroso, named his 24 member executive team from candidates put forward by member states. For justice commissioner he chose Rocco Buttiglione of Italy, a friend of both the conservative Italian Prime Minister of the day Silvio Berlusconi and the then Pope, John Paul II.
In hearings before the European Parliament Buttiglione was asked his position on homosexuality. He said he viewed homosexual acts as sinful, adding that this would not influence his actions as justice commissioner because such acts were not illegal. In additional comments he supported traditional roles for women. These events occurred in a period of some competition between the Parliament and the Commission. Quickly the homosexual issue became a flash point, with strong opposition building against Buttiglione. The Parliament could not reject Buttiglione alone, but had the power to reject the full panel of commissioners proposed by President Barroso, something it had done once before on corruption issues.
There was political pressure on parliamentarians to endorse Barroso’s appointments, to prevent a hiatus. To appease the critics, Barroso made certain promises. He pledged to replace the existing anti-discrimination directives with a single document (which, by treating the differing grounds together, would extend the prohibition of sexual orientation discrimination beyond employment). Additionally he pledged to establish a new European human rights agency (an idea already moving forward). Opponents were not satisfied.
On October 27th, Barroso withdrew his nominations in the face of almost certain rejection by the Parliament. Romano Prodi stayed in office as President on a caretaker basis. On October 30th Buttiglione withdrew his name and Italy appointed foreign minister Franco Frattini in his place. Frattini, in questioning by members of the European Parliament, stated that same-sex partners who are legally recognized in any one of the EU member states should enjoy the same legal recognition throughout the European Union, a more progressive position than that found in the mobility directive.
In the Buttiglione affair, the issue of homosexual rights had caused an institutional crisis in the EU. The old distinction between sin and crime, which had been acceptable in public discourse in the 1950s and 1960s, was rejected. The crisis led to new political promises on anti-discrimination laws and on mobility rights. It was a striking victory for GLBT equality in Europe, though promises made in the heat of battle remain to be fulfilled.
Getting into the Council of Europe and the European Union
After the end of the cold war the world witnessed the rapid repeal of anti-homosexual criminal laws in Eastern Europe. No such rush of reforms has occurred in any other comparable period in any other region. The reforms have now gone beyond decriminalisation to deal with the requirement of an equal age of consent and anti-discrimination laws. Such reforms were becoming necessary for any Eastern European states seeking membership in the Council of Europe and the European Union.
On September 7th, 1998, the European Parliament passed a resolution stating that it would not “give its consent to the accession of any country that, through its legislation or policies, violates the human rights of lesbians and gay men”. It went on to criticize Austria, Bulgaria, Cyprus, Estonia, Hungary, Lithuania and Romania for unfair treatment of lesbians and gay men. Discriminatory laws were repealed in Lithuania in September, 2000, Estonia in September, 2001, Romania in December 2001, Cyprus in July, 2002, and Hungary and Bulgaria in September, 2002.
“This is a truly historic success for the human-rights policies of the European Union, for the European Parliament and for Europe’s LGBT movement,” said ILGA-Europe Executive Director Ailsa Spindler. “Changes which could have taken decades without international pressure have been effected in a few years.”
The on-going reforms led ILGA-Europe to announce that with the completion of law reform in Armenia on August 1st, 2003, Europe was free of laws banning same-sex relationships for the first time in 1,500 years.
For the first time in many centuries, and probably since the enactment of Byzantine Emperor Justinian’s legal code in the 6th Century AD, there will be no part of Europe where lesbians, gays and bisexuals face a threat of criminal prosecution simply because of their love for a person of the same sex.
While the process of repealing laws banning same-sex relationships goes back two hundred years to the Napoleonic Code, the major changes have come about in the last half-century; in 1950 two-thirds of today’s 48 European countries still criminalized relations between women and between men, or between men only.
Organisation for Security and Co-operation in Europe
The OSCE arose out of the Helsinki Accord of 1975, in which representatives of the two cold-war military alliances, the Warsaw Pact and the North Atlantic Treaty Organization, agreed to a set of security and human rights provisions. The OSCE has created a number of specialized institutions as well as holding meetings on various issues. Representatives of the International Lesbian and Gay Association have been active at meetings of the OSCE, beginning in 1980 when the OSCE was still a “Conference” not an “Organisation”. A key ILGA representative, Kurt Krickler of Vienna, states:
ILGA has been participating as an NGO in the Human Dimension of the OSCE since the Moscow meeting in 1991. Since 1993, we have been presenting oral statements to the Human Dimension, reporting positive developments in participating States with regards to the respect of the human rights of lesbians and gay men but also reminding non-complying States to honour their commitments entered not only under the OSCE process but also under the International Covenant on Civil and Political Rights and the European Human Rights Convention.
The Final Report of the 1993 CSCE Implementation Meeting on Human Dimension Issues held in Warsaw included the following sentences:
Participants point out to groups which were not "national minorities" but which none the less suffered discrimination, including women, homosexuals, migrant workers, and conscientious objectors...
It was pointed out that CSCE commitments in the area of non-discrimination cover homosexuals as well. Suggestions were made that discriminatory State policies against homosexuals, and criminalizing legislation, should be eliminated.
The Parliamentary Assembly of the OSCE met in Ottawa, Canada, in July, 1995. The Assembly passed a declaration that called on member States
...to ensure that all persons belonging to different segments of their population be accorded equal respect and consideration in their constitutions, legislation and administration and that there be no subordination, explicit or implied, on the basis of ethnicity, race, colour, language, religion, sex, sexual orientation, national or social origin or belonging to a minority...
The reference to sexual orientation was included at the initiative of Danish parliamentarians. It passed by a large majority, over protests from Bulgarian members.
Funding decisions by European institutions.
The European Commission funded summer courses in lesbian and gay studies in Utrecht in 1989, in Essex in 1991, and again in Utrecht in 1995. The courses were organised by a number of European universities, including the Department of Gay and Lesbian Studies at the University of Utrecht in the Netherlands. European Union funding resulted in the production and publication in 1993 of two significant studies, "Lesbian Visibility" and "Homosexuality: A European Community Issue". In 1994 the Democracy Programme of the European Union funded an anti-discrimination project of ILGA involving work with seven lesbian and gay organisations in Estonia, Latvia, Lithuania and Russia. A number of the annual conferences of the International Lesbian and Gay Youth Organisation have received funding from the European Youth Foundation (Council of Europe) and the Commission of the European Union.
Since December, 2000, ILGA-Europe, the European regional organization of the International Lesbian and Gay Association, has been receiving core funding from the European Commission under a program supporting organizations fighting discrimination at the European level. This support meant renting offices in Brussels, the publication of a newsletter and the hiring of staff.
European foreign policy
In 1990 the EU declared that development assistance would be conditional on the human rights performance of recipient states. In 1995 the European Commission stated that human rights would be an “essential element” of all EU agreements with other countries, whether dealing with trade, development or cooperation. The agreements specify that the parties are to act in accordance with international human rights standards. To date the EU has not threatened to terminate any agreements on the basis of violations of the rights of gays and lesbians – for example for anti-homosexual criminal laws.
European Parliamentarians have looked beyond Europe. On January 23rd, 2001, a resolution of the European Parliament outlined priorities for the work of member States in the annual session of the United Nations Commission on Human Rights. Among other things, the parliament called for states to support measures to protect homosexuals against degrading and inhumane treatment. In April, 2001, the Parliament condemned the outbreak of homophobia within the ruling party of Namibia. In February, 2002, 127 MEPs signed an appeal to President Hosni Mubarak calling for the release of 23 Egyptians convicted and imprisoned for participating in a gay party. French President Chirac raised the issue directly with President Mubarak during his visit to Paris, February 9th, 2002. In October, 2005, the European Parliament condemned Iran on nuclear issues and human rights. It condemned executions for convictions related to sexual orientation, acts “not considered crimes on the basis of international legal standards.” In 2006 parliamentarians condemned a new anti-homosexual law being proposed in Nigeria.
In July 2001, the European Parliament adopted its annual report on the Union’s foreign policy towards third countries. It called upon the “eighty countries in the world which still prohibit homosexuality in their domestic law to change this legislation without delay” and “urges those States which impose the death penalty on homosexuals to stop doing so immediately.”
The Netherlands has included financial support for lesbian and gay organisations in its foreign policy. It has provided funding to lesbian and gay groups in Costa Rica, El Salvador, India, Malaysia, Nicaragua and Zimbabwe, and funding for a regional conference in the Caribbean. In 2003 it granted 170,000 Euros to a Ukrainian group, enough to allow the purchase of an office and salaries for four employees. Other states have made grants supporting lesbian and gay equality in developing states as part of their international promotion of human rights, including Australia, Canada, Denmark and Norway. The European Parliament does not include sexual orientation equality conditionality in their development assistance agreements with Third World states.
The United Nations
The last few years have been very difficult for the United Nations.
The invasion of Iraq went ahead without a clear Security Council mandate. The moral authority of the organization was undercut by massive corruption in the Iraq oil-for-food program. States that routinely violated human rights sat on the Commission on Human Rights. Organization of the Islamic Conference countries, along with certain African states, blocked any discussion of sexual orientation at the Commission in 2003, 2004 and 2005, using undemocratic filibuster tactics.
Secretary General Kofi Annan made a major attempt to restructure the UN on its sixtieth birthday. The effort failed to reform the Security Council, but did lead to a new Human Rights Council, replacing the Commission on Human Rights. The fight over the Council isolated the United States. In the end only the US and its three most reliable allies (Israel, the Marshall Islands and Palau) voted against the reform. Venezuela, Iran and Belarus abstained, not wanting to be on the same side as the US by voting no.
The UN continues as the key international intergovernmental organization concerned with developing human rights standards and monitoring state behavior. Additional human rights work is undertaken by some of the specialized agencies, such as WHO, UNESCO and the ILO.
Sexual orientation issues are recognized in some parts of the large UN system and rejected in others. Progress has occurred in treaty bodies, world conferences, the work of special rapporteurs, the activities of working groups, and the concerns of important non-governmental organizations. Progress has been blocked in the political organs – primarily the Commission on Human Rights, now the Human Rights Council.
The United Nations Economic and Social Council can grant ‘consultative status’ to non-governmental organizations, allowing them limited rights of participation in UN human rights meetings.
In July, 1993, the International Lesbian and Gay Association, ILGA, was granted consultative status after an earlier refusal. How did this happen?
Western states were determined to have the NGO Human Rights Watch accredited, over the objections of a number of states, notably China and Cuba. For the first time decisions on accrediting NGOs, both in the NGO committee and in the Economic and Social Council itself, were done by majority vote, not by consensus. For the first time individual states did not have a veto. Because of that change, and because of the absence of delegates from developing countries at key meetings, ILGA was accredited as an innocent bystander during the fight over Human Rights Watch. Western states were pleased that ILGA was accredited, but it was something of a fluke. ILGA representatives made statements in the 1993 and 1994 sessions of the Sub-Commission and in the 1994 session of the Commission on Human Rights.
In 1994 right-wing forces in the United States found an issue to attack ILGA’s accreditation at the United Nations. Of ILGAs 350 members, one was a highly controversial US organization that supported consensual "man-boy love." United States Senator Jesse Helms used that affiliation to block US funding to various international organizations if ILGA remained accredited at the UN. ILGA responded to the controversy by expelling three organizations from membership in June, 1994. Investigations by the United States suggested that there were other problematic ILGA members. On the basis of that information ECOSOC suspended ILGA in September, 1994.
ILGA went on to draft a new constitution that committed the organization to the support of international human rights standards, including those in the Convention on the Rights of the Child. But the NGO committee of the Economic and Social Council repeatedly delayed dealing again with the question of ILGA, in spite of the wording of the suspension resolution and frequent ILGA requests. Letters and telephone calls went unanswered.
In January, 2002, the NGO Committee of the Economic and Social Council finally reconsidered the issue. Germany, France, the United States, Romania, Chile and Bolivia voted in favour of consultative status. Canada, though not a member of the committee, lobbied strongly in favor of ILGA. Sudan, Pakistan, Tunisia, Libya, China, Senegal, Ethiopia and Russia voted against. Cuba, India, Colombia, Turkey and Algeria abstained.
On April 30th the full Economic and Social Council confirmed the committee’s decision by a vote of 29 to 17, with seven abstentions. Opposition in the Council to ILGA was led by Egypt, where the criminal convictions of homosexual men had garnered international publicity in 2001. Other active opponents were Iran, Qatar, Sudan, Uganda and Zimbabwe.
ILGA and the Danish organization LBL were considered in the ECOSOC committee in January, 2006. Their applications were summarily rejected, with Cameroon, China, Cuba, Iran, Pakistan, Russia, Senegal, Sudan, the United States and Zimbabwe voting against accreditation. Germany, supporting ILGA and LBL, protested that any charge that ILGA supported pedophilia was in error, and a pretext. But by December, 2006, the tide had turned. ILGA-Europe, which had consultative status with the EU, and two other LGBT NGOs gained consultative status in an ECOSOC vote. By this time other accredited NGOs active at the UN had taken up LGBT issues, organizations such as Human Rights Watch, Amnesty International, the International Commission of Jurists and the International Service for Human Rights.
1. The World Conference on Human Rights:
Three LGBT non-governmental organizations were accredited by the United Nations World Conference on Human Rights, held in Vienna in 1993. NGO participation was not limited to organizations already accredited by the Economic and Social Council, for there were few such organizations in the developing world.
Vienna was the first time that lesbian and gay organizations were recognized at a UN event. Six statements were made by lesbian and gay activists either in the plenary session or in the main committee. In addition they participated in the meetings of the NGO parallel conference.
Five governments made positive references to lesbian and gay issues at Vienna: Australia, Austria, Canada, Germany and the Netherlands. Singapore was the only state to make a negative comment. In a statement pointedly called "The Real World of Human Rights" Singapore described most human rights as "still essentially contested concepts." The statement went on:
Singaporeans, and people in many other parts of the world do not agree, for instance, that pornography is an acceptable manifestation of free expression or that homosexual relationships is just a matter of lifestyle choice. Most of us will also maintain that the right to marry is confined to those of the opposite sex.
The draft final conference statement had an equality paragraph condemning discrimination on listed grounds. In the drafting committee Canada proposed adding "sexual orientation" to the list. In response the paragraph was rewritten as a general, open-ended prohibition of discrimination, without a list.
The Vienna Declaration and Programme of Action states that ‘all human rights are universal, indivisible and interdependent and interrelated…” All participant states agreed to this language. It is modified only by the statement that
The significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind…
2. The Fourth World Conference on Women
The Fourth World Conference on Women was held in Beijing in September, 1995. Canada and other states worked to have references to “sexual orientation” included in the final conference statement. In a preparatory conference in Vienna in October, 1994, Canada proposed a paragraph addressing discrimination against women on multiple grounds, such as sex and race, sex and disability, sex and sexual orientation. This “diversity paragraph,” as it came to be known, was included in the draft text without opposition or discussion. At the New York preparatory meeting in March-April, 1995, Canada again proposed the paragraph. The paragraph along with much of the draft was “bracketed”, indicating that there was no consensus on the wording. At the New York meeting several delegations, including South Africa, Canada, Israel and the European Union, proposed wording that referred to “sexual orientation.”
Lesbians were visible at the Conference in Beijing and at the NGO Forum in nearby Huairou. There was a ‘lesbian tent’ at the Forum and a lesbian march on September 5th. Eleven explicitly lesbian or lesbian and gay organisations were accredited to the conferences. Two Canadian women unfurled a banner “Lesbian Rights are Human Rights” in the main conference hall. Security guards hastily intervened.
At the beginning of the Beijing Conference there were four references to “sexual orientation” in the draft “Platform of Action”. The four references were considered together in a drafting committee meeting that stretched into the early morning of the final day, Friday, September 15th, ending after 4 a.m. After an hour of debate on sexual orientation, the chair, Ms. Patricia Licuanan, commented that this had been the first substantive discussion of the subject in any United Nations forum. She said it required much more discussion, but given the division, the references would be omitted. Thirty-three States indicated their support for the references. Twenty States indicated opposition. The diplomatic preference for consensus decision-making prevailed. A fight on the floor in the closing plenary was avoided.
Five years after the Beijing conference, a special UN General Assembly session in June, 2000, revisited women's equality issues. Again the debate was intense, and again there was no consensus on adding "sexual orientation" even in a sentence that was drafted as a factual comment:
The turning point came in the wee hours of Thursday morning, the first of two all-night negotiating sessions, when Western nations continued insisting that expanded homosexual rights be listed among the document's accomplishment. The section noted measures taken "by a growing number of countries…to prohibit discrimination on the basis of sexual orientation."
"We cannot accept that language," said a delegate from Senegal. A Syrian delegate agreed: "There's no way we can accept a document tonight with the phrase 'sexual orientation.'" Delegates from Nicaragua and Kuwait said they could not accept "sexual orientation," an undefined term, as a human right. …
Then the blowup came. Western delegations are "holding the women of the world hostage to one term, 'sexual orientation,'" when their real needs are clean water and help in overcoming illiteracy, said the Pakistan delegate.
The International Service for Human Rights recorded the outcome:
The two most contentious issues were abortion and sexual orientation. A significant source of opposition came from Catholic and Islamic countries, including the Holy See, Nicaragua, Pakistan, Libya, Sudan, Iraq and Iran. Delegates from these countries blocked the use of the term “sexual orientation” from the final draft document and prevented it from being used even in a passage highlighting non-discrimination laws in various countries. In their closing statements, representatives of Norway, New Zealand, Canada and the European Union, stated their disappointment in the lack of language against discrimination based on sexual orientation and reaffirmed their commitment to anti-discrimination laws.
3. The General Assembly Special Session on HIV/AIDS
In June, 2001, the United Nations General Assembly held a Special Session on HIV/AIDS. Two questions arose. Would a speaker from the International Gay and Lesbian Human Rights Commission (IGLHRC), a US-based NGO, be allowed to speak at a UN sponsored workshop preceding the Special Session? Secondly, would the final statement of the Session mention homosexuals or sexual orientation? The Iranian Ambassador feared that the Session would turn into
…an opportunity for certain forces in the Western world to push the envelope in areas where there is cultural sensitivity, ideological sensitivity, ethical sensitivity.
Karen Kaplan from IGLHRC was included in the workshop by the Assembly President, then banned at the request of Egypt, Iran, Libya, Malaysia, Morocco, Pakistan, Saudi Arabia, Sudan and Syria. A motion to reinstate her was made by Canada, backed by the European Union, Australia, New Zealand, Argentina, Norway, Chile, Iceland and others. The United States did not co-sponsor the motion, but voted in favor. On the 24th, the issue of approving Kaplan was debated for over two hours, delaying the opening of the Session.
Islamic states sought unsuccessfully on Monday to block a U.S.-based gay rights group from participating in a panel, delaying for hours a major U.N. General Assembly session on AIDS. The nations, from Malaysia to Syria, many represented by the Organization of Islamic Conference, tried to deny the assembly a quorum after it was clear they would lose a vote. But Assembly President Harri Holkeri of Finland refused to rule that a threatened walkout meant there was no quorum and said delegates could not speak in the assembly and then say they were not there. “We have had the presence of the majority of members here in the plenary,” he said…. The Islamic nations were backed by Cuba, China, Russia and Belarus as well as Nigeria, Tanzania, Burkina Faso, Cameroon, Congo, Kenya, Mali, Senegal, Haiti and El Salvador.
In the end, Karen Kaplan spoke at the workshop.
A Catholic-Muslim-Evangelical alliance was starting to become important.
Lamani [a Moroccan diplomat representing the Organization of the Islamic Conference] said he was first approached by U.S. Christian non-governmental organizations, or NGOs, at the special session of the U.N. General Assembly on AIDS in New York in June 2001. Liberal Western activists and governments, he said, had offended the religious and cultural sensitivities of Islamic countries by proposing that a final conference declaration include explicit references to the need to protect prostitutes, intravenous drug users and “men who have sex with men” from contracting AIDS.
“It was totally unacceptable for us,” Lamani said. “The Vatican and so many NGOs came to us saying this is exactly the same position we are defending.”
The final document approved by the Special Session made no mention of homosexuals, or the phrase “men who have sex with men,” a phrase commonly used in HIV/AIDS prevention work.
A last-minute compromise on the declaration came after Western nations reluctantly agreed to drop language specifically naming groups vulnerable to the disease – including homosexuals and prostitutes – because it was offensive to some Muslim nations. Instead of mentioning “men who have sex with men,” the new language refers to those who are at risk due to “sexual practice.” Prostitutes are referred to as those vulnerable to infection due to “livelihood,” and prisoners as those made vulnerable through “institutional location.”
One Western diplomat, however, said the compromise text represented a victory for the Western camp. “The language of the declaration is not perfect because it does not contain any reference to sexual orientation,” the diplomat stressed. “But the reference to homosexuals was a cut-off point for the Muslim group of countries.” Europe was left in isolation after coalitions of Latin American and African countries as well as the United States failed to back its position, the diplomat said. But the Western camp was successful in imposing a paragraph on “cultural obstacles” relating to education, prevention and treatment of AIDS, he said, noting that the Islamic group had been persuaded to go along with it. Moreover, the text recognizes “women’s rights over their sexuality.” “It’s a great victory for the European Union and a defeat for Egypt and Iran,” said the diplomat, noting that “on a scale of one to three, we notched up two and a half.”
4. The World Conference on Racism
The UN World Conference on Racism, Racial Discrimination, Xenophobia and Related Intolerance, was held in Durban, South Africa, August 31st to September 6th, 2001.
A fight occurred over whether ILGA would be accredited to the conference. Malaysia, in the name of the Organization of the Islamic Conference, objected to ILGA’s accreditation. The bitter fight in June over IGLHRC was repeated. On July 30th, 2001, a vote was held on ILGA, resulting in a 43-43 tie, defeating accreditation. The countries supporting ILGA were Western and Latin American States, but also Japan. The countries opposing were African and Islamic states, including Indonesia, Malaysia and Pakistan, plus China, India, Mongolia, Nepal, Singapore, Sri Lanka, and Vietnam. Abstainers included Cuba, the Philippines, Russia, South Africa, and Thailand. Many of the votes were not consistent with positions of those states taken in previous votes involving accreditation or the inclusion of references to sexual orientation. In spite of ILGA being barred, many lesbian and gay representatives participated at the parallel conference.
Preparatory meetings developed a Draft Declaration and Programme of Action that included one reference to “sexual orientation" in another diversity-style paragraph.
We recognize that certain persons and groups may experience other forms of discrimination on the basis of their gender, age, disability, genetic condition, language, religion, sexual orientation, economic status or social origin, and that in addition they may experience acts of racism, racial discrimination, xenophobia and related intolerance. We note that this situation can result in such persons being victims of multiple forms of discrimination, and stress that special attention should be given to the elaboration of strategies, policies and programmes, which may include affirmative action, for such persons.
The opening speech of Secretary-General Kofi Annan on August 21st, 2001, referred to various grounds for discrimination – race, nationality, ethnicity, religion, gender, descent, citizenship – and particular groups – refugees, migrants, migrant workers, indigenous peoples. The speech addressed the most divisive issues - the conflict between Israel and Palestine, and possible reparations for slavery. But, he said, by omission, discrimination on the basis of sexual orientation was not yet a United Nation’s human rights concern.
Homosexuals again got no mention in the final conference declaration. But the document has an open-ended statement on equality and non-discrimination. There are three ways in which it can be interpreted as covering discrimination on the basis of sexual orientation, though those words are not included. It also speaks of goals of “tolerance, pluralism and respect for diversity,” language used by the European Court of Human Rights to support homosexual equality rights.
Human rights treaties that operate under United Nations sponsorship establish committees to monitor governmental compliance. The Human Rights Committee is the UN treaty body responsible for monitoring compliance with the International Covenant on Civil and Political Rights. Individuals from states that have signed the Optional Protocol to the treaty can make direct ‘communications’ to the Committee, alleging state violations of treaty provisions.
The first decision of the Committee on lesbian and gay rights occurred in 1982 in Hertzberg v. Finland. Finnish penal law prohibited the public encouragement of "indecent behaviour" between persons of the same sex. This provision led to regulations and policies against radio and television programs dealing with homosexuality. Two programs had been censored and a third had been prosecuted, unsuccessfully, under Finnish penal law. Article 19 (3) of the Covenant on Civil and Political Rights provides that the right of freedom of expression can be limited to protect “public health or morals.”
Finland argued that the restrictions in Finnish law reflected prevailing moral conceptions. The Committee considered asking for the transcripts of the two censored programs, noting that only by such an examination could it determine whether the programs simply contained factual information on issues relating to homosexuality. Apparently willing to assume that the programs could have been wholly factual, the Committee ruled in favor of Finland.
It has to be noted, first, that public morals differ widely. There is no universally applicable common standard. Consequently, in this respect, a certain margin of discretion must be accorded to the responsible national authorities.
The Committee finds that it cannot question the decisions of the responsible organs of the Finnish Broadcasting Company that radio and TV are not appropriate forums to discuss issues related to homosexuality, as far as a programme could be judged as encouraging homosexual behaviour. According to article 19 (3), the exercise of the rights provided for in article 19 (2) carries with it special duties and responsibilities for those organs. As far as radio and TV programmes are concerned, the audience cannot be controlled. In particular, harmful effects on minors cannot be excluded.
Norwegian academic Torkel Opsahl was joined by two other members of the Committee, in dissenting from this reasoning:
… in my view the conception and contents of the 'public morals' referred to in article 19(3) are relative and changing. State-imposed restrictions on freedom of expression must allow for this fact and should not be applied so as to perpetuate prejudice or promote intolerance. It is of special importance to protect freedom of expression as regards minority views, including those that offend, shock or disturb the majority. Therefore even if such laws as paragraph 9(2) of chapter 20 of the Finnish Penal Code may reflect prevailing moral conceptions, this is not in itself sufficient to justify it under article 19(3). It must also be shown that the application of the restriction is 'necessary'.
In 1994 the Human Rights Committee decided Toonen v Australia, a case with strong similarities to Dudgeon v. United Kingdom. The Toonen decision, like the Dudgeon decision for Europe, marked a foundational recognition of gay and lesbian rights within the United Nations human rights system.
Nicholas Toonen, like Jeffrey Dudgeon, was a gay rights activist. Tasmania, like Northern Ireland, retained old criminal prohibitions on homosexual activity. All other Australian jurisdictions had decriminalised. The government of Australia, like that of the United Kingdom, sought the repeal of the law. As in Northern Ireland, the law in Tasmania was not enforced in practice. As in Northern Ireland opinion in Tasmania was divided on law reform. As in Northern Ireland, opposition was led by intemperate reactionaries. Elected representatives were quoted as saying that gay men were "no better than Saddam Hussein" and that people were "15 times more likely to be murdered by a homosexual than a heterosexual..."
Toonen argued privacy rights and equality rights. Article 17 of the International Covenant on Civil and Political Rights bars "arbitrary or unlawful interference" with privacy. Article 26 prohibits discrimination
...on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
There were two equality arguments. The discrimination was on the basis of "sexual orientation" which, it was argued, would come within the phrase "other status". As well the law discriminated on the basis of "sex" by applying only to male homosexual activity. By ignoring lesbians, the law followed a criminal law tradition that denied women's sexuality.
Tasmania argued that the law was partly motivated by a concern to check the spread of HIV/AIDS. But Australia, the World Health Organisation and UN bodies all agreed that criminal prohibitions aimed at gay men made it more difficult to organise effective programs to prevent HIV infection. Tasmania also argued a moral basis for the prohibition. Australia conceded that "domestic social mores may be relevant to the reasonableness of an interference with privacy", while asserting a general Australian view that discrimination on the basis of sexual orientation was wrong.
The Committee followed the rulings of the European Court of Human Rights in Dudgeon, Norris and Modinos in finding that the Tasmanian law violated Toonen's right to privacy. They easily rejected Tasmania's arguments on HIV/AIDS and turned to the issue of a moral justification for the law in a passage which clearly departs from the spirit of the majority ruling in the earlier decision Hertzberg v. Finland:
The Committee cannot accept that for the purposes of article 17 of the Covenant, moral issues are exclusively a matter of domestic concern, as this would open the door to withdrawing from the Committee's scrutiny a potentially large number of statutes interfering with privacy. It further notes that with the exception of Tasmania, all laws criminalizing homosexuality have been repealed throughout Australia and that, even in Tasmania, it is apparent that there is no consensus as to whether Sections 122 and 123 should not also be repealed. Considering further that these provisions are not currently enforced, which implies that they are not deemed essential to the protection of morals in Tasmania, the Committee concludes that the provisions do not meet the "reasonableness" test in the circumstances of the case, and that they arbitrarily interfere with Mr. Toonen's right under article 17, paragraph 1.
The Committee dealt briefly with the issue of equality rights:
The State party has sought the Committee's guidance as to whether sexual orientation may be considered an "other status" for the purposes of article 26. The same issue could arise under article 2, paragraph 1, of the Covenant. The Committee confines itself to noting, however, that in its view the reference to "sex" in articles 2, paragraph 1, and 26 is to be taken as including sexual orientation.
The Committee was not saying that the exclusive focus on male activity constituted discrimination on the basis of “sex.” Nor did it place “sexual orientation” within the phrase “other status.” The Committee held that “sex” included “sexual orientation.” Discrimination against homosexuals can only operate with reference to the sex of individuals and the sex of the people they desire. The idea that discrimination on the basis of sexual orientation is a form of discrimination on the basis of sex had not been widely accepted before the Toonen decision.
Since the Toonen decision, the Human Rights Committee has included a concern with anti-homosexual criminal laws in its review of the reports required periodically of all State parties on compliance with the Covenant. The Committee criticized the United States over anti-homosexual criminal laws. India is now open to Committee criticism for maintaining a colonial-era criminal prohibition. Other treaty bodies now deal with sexual orientation issues.
The U.N. Human Rights Committee has repeatedly concluded that laws criminalizing same-sex sodomy constitute discrimination based on sexual orientation. The U.N. Committee on Torture and the U.N. Working Group on Arbitrary Detention condemned Egypt’s gender-neutral “debauchery” law as constituting discrimination on the basis of sexual orientation. Similarly the U.N. Committee on the Rights of the Child has analyzed disparities in age-of-consent laws between same and different-sex partners as sexual orientation discrimination.
The concerns go beyond criminal laws. In concluding observations on Poland in November, 2004, the Human Rights Committee stated:
The State Party should provide appropriate training to law enforcement and judicial officials in order to sensitise them to the rights of sexual minorities. Discrimination on the ground of sexual orientation should be specifically prohibited in Polish law.
In 2000 the Committee on Economic, Social and Cultural Rights, the UN treaty body monitoring compliance with the International Covenant on Economic, Social and Cultural Rights, issued Comment 14 on the right to health. Such comments are issued periodically by various treaty bodies to explain their interpretation of particular provisions in their treaty. Following the logic of the Toonen case, Comment 14 interpreted the non-discrimination wording in article 2 (2) as prohibiting discrimination on the basis of “sexual orientation.”
In July, 2002, the Human Rights Committee considered the issue of same-sex marriage in the case of Joslin v. New Zealand. New Zealand courts had rejected the claim of two lesbian couples, both raising children, for access to marriage. The Human Rights Committee rested its decision on the wording of section 23(2):
The right of men and women of marriageable age to marry and to found a family shall be recognized.
This is the only provision in the Covenant using gendered terms, referring to “men and women”. The Committee held that this wording limited mariage to opposite sex couples. A separate concurring opinion by two Committee members added that in some circumstances there might be a valid claim of denial of equality under section 26 for same sex couples, repeating the ruling from Toonen that discrimination on the basis of sexual orientation was included in the prohibition of discrimination on the basis of “sex.”
Contrary to what was asserted by the State party (para. 4.12), it is the established view of the Committee that the prohibition against discrimination on grounds of “sex” in article 26 comprises also discrimination based on sexual orientation. And when the Committee has held that certain differences in the treatment of married couples and unmarried heterosexual couples were based on reasonable and objective criteria and hence not discriminatory, the rationale of this approach was in the ability of the couples in question to choose whether to marry or not to marry, with all the entailing consequences. No such possibility of choice exists for same-sex couples in countries where the law does not allow for same-sex marriage or other type of recognized same-sex partnership with consequences similar to or identical with those of marriage. Therefore, a denial of certain rights or benefits to same-sex couples that are available to married couples may amount to discrimination under article 26, unless otherwise justified on reasonable and objective criteria.
The couples submitting the complaint had not alleged specific discrimination, seeking the symbolic validation that would be given to their relationships by marriage.
In August, 2003, the Human Rights Committee again considered equality issues for same-sex couples in Young v Australia. Young’s long-time same-sex partner, a war veteran, died in 1999. Young applied for the pension available to married or unmarried partners of war veterans. Since the legislation expressly applied only to heterosexual couples, the pension was refused. Australia argued that factors other than sexual orientation would have justified a denial of the pension, attempting to avoid, it seems, the discrimination issue. Australia, the Committee ruled, had shown no “reasonable or objective” ground for such discrimination (and had made no attempt to do so). The application for the pension would have to be reconsidered by Australian authorities, the Committee ruled, and a decision made which did not involve discrimination on the basis of sexual orientation. Australia apparently did not eliminate the discrimination, and a second case, Takamisawa v Australia has been submitted to the Committee on the same issue.
HIGH COMMISSIONER FOR HUMAN RIGHTS
The office of the High Commissioner for Human Rights was created as a result of recommendations from the Vienna World Conference on Human Rights. The High Commissioner heads the section of the UN secretariat responsible for human rights, while having a much higher profile than simply the head of a UN department.
Former Irish President Mary Robinson was High Commissioner from 1997 to 2002, with a much greater visibility than her predecessor. In October, 1998, she met with leaders of the International Lesbian and Gay Association and indicated a positive interest in receiving information on human rights violations against lesbians and gay men. Earlier she had acted for Senator Norris in the challenge to Ireland’s anti-homosexual criminal laws before the European Court of Human Rights. The present High Commissioner, Louise Arbour, was supportive of lesbian and gay equality rights when she served as a judge of the Canadian Supreme Court. In 2005 the website of the UN High Commissioner for Human Rights, for the first time, included a reference to “sexual orientation” in a section on “cross-cutting issues.”
The office of the High Commissioner has gradually increased in importance. The high-level report on reforming the United Nations, issued in December, 2004, suggested the High Commissioner should prepare an annual report on the situation of human rights worldwide. The UN Summit in September, 2005, pledged to double the budget of the human rights program. The High Commissioner spoke at the large International Conference on Lesbian, Gay, Bisexual and Transgender Human Rights in Montreal in August, 2006, a part of the international “Out Games.” A representative of the Commissioner said in January, 2007, that UN activities established
…that lesbians, gay men, bisexuals and metis [Nepalese transgender] have the right to non-discrimination and they have the right to equality before the law.
Over the years ‘special procedures’ have developed in the UN Commission on Human Rights. The main example is the appointment of ‘special rapporteurs’ authorized to examine particular issues. Some are ‘country specific’, such as the special rapporteur on human rights in North Korea. Others are ‘thematic’, dealing with issues like violence against women.
In the annual meeting of the Commission on Human Rights in 2001 certain delegates objected to the inclusion of cases of extrajudicial executions of sexual minorities in the report of the Special Rapporteur on Extrajudicial, Summary, and Arbitrary Executions. Delegates argued that the special Rapporteur had overstepped her mandate by addressing these crimes. The resolution renewing her mandate was stripped of language explicitly recognizing that sexual minorities were vulnerable to extrajudicial executions.
This incident came a couple of months before a letter was circulated by the office of the High Commissioner for Human Rights indicating that six special rapporteurs “were interested in receiving information on sexual minority issues falling within their respective mandates...” The six were the Special Rapporteur on extrajudicial executions, the Special Rapporteur on violence against women, the Special Rapporteur on torture, the Special Rapporteur on the independence of judges and lawyers, the Special Rapporteur on freedom of expression, and the Special Representative of the Secretary-General on human rights defenders. The annual reports of these independent experts now contain information on sexual orientation issues, if relevant information comes to the rapporteur’s attention. As well the rapporteur may investigate specific cases.
This development meant that by 2001 two parts of the United Nations system had institutionalized a concern with sexual minority issues – the treaty bodies and the Special Rapporteurs.
The Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions, Asma Jahangir, was the first to include individual cases of severe persecution of members of sexual minorities in her reports to the Human Rights Commission (see E/CN.4/1999/39); a decision that led to accusations by members of the Commission that she had overstepped her mandate. Since 1999, she has been systematically reviewing and investigating violations of the right to life of sexual minorities in her reports to the Commission and during her missions to various countries. Jahangir has studied issues such as the climate of impunity surrounding crimes against LGBT people, laws prescribing the capital punishment for homosexual relationships, and the link between violence and the criminalization of matters of sexual orientation. … On 29 June 2001, the Special Rapporteur on freedom of expression, Abid Hussain, held a historic meeting with transgender activists while on official mission to Argentina (see: E/Cn.4/2002/75/Add.1). … In November, 2001, the Special Representative on human rights defenders, Hina Jilani, met with Colombian LGBT organizations working with members of sexual minorities, people living with HIV/AIDS and sex workers during her stay in the country (see: E/CN.4/2002/106/Add.2). That same month, the Special Rapporteur on torture, Nigel Rodley, raised the issue of torture and discrimination against sexual minorities before the UN General Assembly in New York (See: E/CN.4/2002/76).
The issue of the work of special rapporteurs came up again in April, 2002, at the Commission of Human Rights.
The Special Rapporteur [on extrajudicial, summary or arbitrary executions] reports that she continues to receive information of persons having been subjected to death threats or extrajudicially killed due to their sexual orientation or for having advocated for the rights of sexual minorities. In this regard, urgent appeals have been sent to the Governments of Argentina, Ecuador and Mexico. A communication was also sent to the leadership of the province “Puntland” in Somalia. The urgent appeals have concerned NGOs and individuals.
Pakistan, on behalf of the Organization of the Islamic Conference, moved to delete the two references to sexual orientation in the annual resolution extending the mandate of the Special Rapporteur. The motion was defeated, 28 to 15, with 9 abstentions. This reversed the hostile decision taken by the Commission in 2001.
The resolution on extrajudicial, summary and arbitrary executions, renewed periodically, continues to be the only resolution ever adopted by the Commission on Human Rights to include a reference to “sexual orientation.”
The report of the Special Rapporteur on health in 2004 dealt with sexual and reproductive health issues. He said these rights were central to efforts to achieve gender equality, poverty reduction, to combat HIV/AIDS and to achieve the Millennium Development Goals of the UN.
…discrimination on the grounds of sexual orientation is impermissible under international human rights law. The 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 and transgender identities or conduct [referencing reports of special rapporteurs on torture and on extrajudicial executions]. Additionally, the Special Rapporteur recalls that the Human rights Committee, in Toonen v. Australia, observed: “Criminalization of homosexual activity … would appear to run counter to the implementation of effective education programmes in respect of HIV/AIDS prevention.” …
Sexual rights include the right of all persons to express their sexual orientation, with due regard for the well-being and rights of others, without fear of persecution, denial of liberty or social interference.
The United States criticized the report for what it saw as a permissive stance on abortion and for suggesting that sexual orientation was within an international human rights framework. Pakistan
…rejected the Special Rapporteur’s conclusion that discrimination on the grounds of sexual orientation was impermissible under international human rights law and challenged the Special Rapporteur to quote exactly which article of any international human rights law convention prohibited such discrimination, According to Pakistan, the “easy” way for homosexuals, lesbians and transgender persons to avoid discrimination on the basis of sexual orientation was to “stop” engaging in non-heterosexual activity. In the words of the delegate, those of different sexual orientation should suppress their urges or “consult a medical doctor” and “get some medication.”
Egypt and Saudi Arabia agreed. Canada and Switzerland disagreed.
The various special rapporteurs meet once a year, along with independent experts and the chairpersons of working groups. The report of their meeting in June, 2005, included the following paragraph:
43. The discussion then turned to the emerging cross-cutting themes, particularly human rights violations on the grounds of sexual orientation and gender identity. NGO representatives presented a publication containing excerpts of the authoritative findings, jurisprudence and commentary of treaty bodies, special procedures, the Sub-Commission on the Promotion and Protection of Human Rights and the Office of the High Commissioner for Refugees (UNCHR) with explicit reference to sexual orientation. They drew attention to the fact that discrimination on the ground of sexual orientation was widely practiced and that persons suffering such discrimination were more exposed to human rights violations and were less likely to claim their rights and obtain remedies. States should take measures to curb discriminatory laws and practices and take initiatives such as the enactment of non-discriminatory legislation, including the prohibition of discrimination on the ground of sexual orientation.
The Commission on Human Rights and the Sub-Commission have established a number of working groups to deal with specific issues. They typically consist of five or more members of the parent body, and meet separately from the parent body. The United Nations Working Group on Arbitrary Detention on June 21st, 2002, drew conclusions about the arrest and trail of fifty individuals in Cairo.
The detention of the above-mentioned persons prosecuted on the grounds that, by their sexual orientation, they incited ‘social dissension’ constitutes arbitrary deprivation of liberty…
This was an important development. Now three kinds of United Nations bodies – the treaty bodies, the special rapporteurs and the working groups - would be regularly examining human rights issues faced by gays and lesbians.
UN STAFF RULES
On August 4th, 2003, the organization of gay and lesbian UN employees held a panel discussion. They pointed out that the United Nations denied spousal benefits to same-sex partners. A UN spokesman said the secretary-general would have to move cautiously on that issue:
Member states themselves have divergent and strongly held views on this subject, so the secretary-general is carefully considering how he would forward on this issue.
At the panel discussion some significant figures expressed support for dealing with gay and lesbian equality. Both Mark Malloch Brown, head of the UN Development Programme, and Peter Piot, executive director of the Joint UN Programme on HIV/AIDS, linked the ending of discrimination to the goals of their programs.
The Secretary-General, Kofi Annan, issued a directive in February, 2004, extending spousal benefits to same-sex partners in those situations where the relationship was legally recognized in the staff-person’s home country. The General Assembly, “pressured by the Vatican and numerous Islamic and African nations,” insisted that the Secretary-General reconsider the directive. It was revised to omit the phrase “domestic partnership,” but not changed in substance.
Charter bodies: the Human Rights Council and the Sub-Commission
The primary UN human rights bodies established under the United Nations Charter are the Commission on Human Rights, now the Human Rights Council, and the Sub-Commission on the Promotion and Protection of Human Rights (formerly the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities).
The Commission, and its successor, the Council, have always been political bodies. That is, their members are governments, and voting reflects the views and interests of the governments involved. The Sub-Commission, in contrast, was supposed to be an ‘expert’ body. Members were to be individual experts who acted in a ‘personal capacity.’ The quality of members of the Sub-Commission has varied greatly. Some show no expertise and no independence. Others are excellent.
From the early 1980s, voting in the Commission has been heavily weighted against the West. The assignment of seats is not on the basis of regional populations. Of the 53 members, 15 were from Africa, 12 from Asia, 5 from Eastern Europe, 11 from Latin America and the Caribbean and 10 from the Western group (Western Europe, the United States, Canada, Australia and New Zealand). Africa, the most homophobic continent (in terms of the statements of political leaders) had 15 votes, though the total population of the continent is less than either China or India.
Criticisms of the Commission on Human Rights were forcibly stated in the report issued in December, 2004, by the high-level group authorized by the Secretary-General to review the workings of the United Nations. It spoke of “eroding credibility and professionalism” on the part of the Commission.
Standard-setting to reinforce human rights cannot be performed by States that lack a demonstrated commitment to their promotion and protection. We are concerned that in recent years States have sought membership of the Commission not to strengthen human rights but to protect themselves against criticism or to criticize others. The Commission cannot be credible if it is seen to be maintaining double standards in addressing human rights concerns.
Some observers expressed amazement that the Commission’s Working Group on Situations for 2005, which reviews confidential accusations of human rights violations against states (the so called 1503 procedure), had as members Cuba, Zimbabwe and China, along with the Netherlands and Hungary. Other questionable members of the Commission for 2005 were Congo, Saudi Arabia and Sudan. And when the Brazilian resolution on sexual orientation was introduced in 2003, the Chair of the Commission represented Libya.
The UN Summit in September, 2005, agreed that the Commission should be replaced by a new Human Rights Council. In March, 2005, the General Assembly approved a new Council (a) with 47 members (still radically favoring Africa), (b) with member countries to be judged on the basis of their record on human rights, (c) with members elected by an absolute majority in the General Assembly (which requires at least 96 ‘yes’ votes), (d) to meet for at least ten weeks a year, in at least three annual sessions, and (e) with members who cannot serve more than two consecutive terms. The Council will assess the human rights performance of all UN members each year. There are no exemptions for the major powers.
ACTIONS OF THE COMMISSION AND SUB-COMMISSION
The only UN study on sexual orientation issues arose out of a report on prostitution, seen as a ‘slavery-like practice,’ done for the Sub-Commission. That report recommended an additional study on male prostitution, but the recommendation made confused references to transvestism, transsexuals and pedophilia. The resulting study, on the legal and social problems of sexual minorities, including male prostitution, was completed in 1987. There was no lesbian or gay voice within the UN system at the time. ILGA forwarded information to Mr. Fernand-Laurent, the special rapporteur, through Minority Rights Group, an accredited non-governmental organisation.
The final report contained an odd mix of stereotypes and misinformation. The report attracted almost no attention. Mr. Rhenan-Segura, a member of the Sub-Commission, called the study superficial and the conclusions dubious. He added that it had been received under an inappropriate agenda item, the consideration of the report of the Working Group on Slavery and Slavery-Like Practices. Such criticisms of reports are extremely rare in the diplomatic milieu of the United Nations. There were no follow up resolutions. Few at the UN remember that the report was ever done. No actions at the United Nations since then have referred back to it.
The present author made the first statement as a homosexual in a United Nations forum in 1992 in the Sub-Commission. The statement was made in the name of Human Rights Advocates, a San Francisco based NGO, and the International Lesbian and Gay Association, ILGA, which did not have consultative status. Observers noted that the statement was greeted by “open hostility” on the part of some members of the Sub-Commission.
A study by Special Rapporteur Danilo Turk, received by the Sub-Commission in August, 1992, addressed the issue of indicators to be used in assessing State compliance with economic, social and cultural rights. One approach, the study said, was to begin with assessing patterns of discrimination. It went on:
To apply discrimination-oriented criteria, however, it will be necessary to devote increased attention to areas of discriminatory behaviour generally ignored at the international level, in particular the grounds of social status, income level, medical status, age, property and sexual orientation.
On August 13th, 1993 Mr. Louis Joinet, the French member of the Sub-Commission, proposed that the mandate of a study on new forms of racism and xenophobia be expanded to include consideration of discrimination on the basis of sexual orientation. The proposal was not accepted.
On August 24th, 1995, in the Sub-Commission Louis Joinet proposed an amendment to a resolution condemning discrimination on the basis of HIV/AIDS. The resolution mentioned nine examples of groups “suffering from disadvantaged economic, social or legal status” who were, as a result of that marginalisation, more vulnerable to the risk of HIV infection. The list did not include male homosexuals, an obvious category in the west for any such list. Mr. Joinet moved the addition of that category. The amendment was strongly opposed by two members, Ms. Warzazi and Ms. Gwanmesia. After a somewhat heated exchange and an accusation of homophobia, the amendment was passed with ten affirmative votes, five negative votes and six abstentions. This was the first substantive resolution of the Commission or Sub-Commission to refer expressly to homosexuals.
In August, 1996, representatives of Australia discussed the idea of a study on sexual orientation discrimination with several members of the Sub-Commission. There was some support, and an understanding that there would also be opposition. The matter was not raised in public sessions of the Sub-Commission.
In August, 2003, a working group of the Sub-Commission drafted a document defining how it thought international human rights standards applied to transnational corporations and other business enterprises. The document requires corporations to end any discrimination based on race, colour, sex, language, religion, political opinion, national or social origin, social status, indigenous status, disability, age or other status. The commentary attached to the draft gives as an example of an “other” status “sexual orientation.” The report of the working group was approved by the Sub-Commission for consideration by the Commission.
THE BRAZILIAN RESOLUTION
The April Surprise, 2003
In April, 2003, with no advance warning, Brazil introduced a resolution “Human Rights and Sexual Orientation” in the Commission on Human Rights.
The draft resolution said that the Commission
1. Expresses deep concern at the occurrence of violations of human rights all over the world against persons on the grounds of their sexual orientation;
2. Stresses that human rights and fundamental freedoms are the birthright of all human beings, that the universal nature of these rights and freedoms is beyond question and that the enjoyment of such rights and freedoms should not be hindered in any way on the grounds of sexual orientation;
3. Calls upon all States to promote and protect the human right of all persons regardless of their sexual orientation;
4. Notes the attention given to human rights violations on grounds of sexual orientation by the special procedures in their reports to the Commission on Human Rights, as well as the treaty monitoring bodies, and encourages all special procedures of the Commission on Human Rights, within their mandates, to give due attention to the subject;
5. Requests the High Commissioner for Human Rights to pay due attention to violations of human rights on the grounds of sexual orientation;
6. Decides to continue consideration of the matter at its sixtieth session under the same agenda item.
The resolution gained 27 co-sponsors, including Australia, Canada and the countries of the European Union. Pakistan moved a “no action” motion. That procedural move was defeated, permitting consideration of the resolution itself.
A number of countries had been caught off guard, and they sought direction from their home governments. No consultations had occurred with other states before the resolution was presented, a breach of standard practice. The United States delegation received instructions from Washington to abstain in any vote on the resolution. Amnesty International issued a statement of support.
Amendments were proposed by Saudi Arabia, Pakistan, Egypt, Libya and Malaysia affecting all paragraphs of the draft resolution. Pakistan threatened to move a hundred more amendments. The goal was to block any vote on the resolution. All this took place in the last days of the Commission session. The resolution and amendments were put over for consideration to the next session in 2004 by a vote of 24 to 17, with 12 abstentions.
Some countries that had supported GLBT rights in votes in the past did not support the Brazilian motion in 2003, notably Argentina, Cameroon, Chile, Cuba, Peru, South Africa, the United States, Uruguay and Venezuela. Their positions may not be fixed.
The GLBT Muslim organization Al-Fatiha condemned the Organization of Islamic Conference and the Vatican for using religion to justify homophobia and intolerance.
Round two - 2004
In advance of the 2004 Commission session, Pakistan, as coordinator of human rights and humanitarian issues in the Organization of the Islamic Conference, circulated a letter to other OIC missions in Geneva. It listed a set of arguments against the Brazilian resolution.
The concept of “sexual orientation” has never been defined in the UN. It has hardly ever figured in a UN document. Efforts to do so have always created enormous controversy and discord. … The list of sexual behaviour could always be expanded to include grossly errant behaviour like pedophilia. … In our perspective sexual orientation is not a human rights issue. Instead it is related to social values and cultural norms. Individual countries need to deal with this issue within the parameters of their own social and legal systems. … The concept of the traditional family constitutes the foundation of the human civilization.
The Holy See, which has observer status at the United Nations, also circulated its views on the Brazilian resolution.
This appears to be a preliminary step to claiming equal treatment regarding “marriage” for persons of the same sex, and regarding adoption for “unisexual households.” This attempt might be facilitated if a request were made to the Sub-Commission on Human Rights to undertake a study on discrimination on any grounds, including “sexual orientation.”
The short document dealt with marriage and adoption three times, clearly a central concern. Like the Pakistan Ambassador’s letter, it argued that “sexual orientation” has not been recognized in international human rights law (in spite of the 1992 Toonen decision).
Around fifty lesbian and gay activists traveled to Geneva for the 2004 session of the Commission on Human Rights to support the Brazilian resolution. No comparable lobbying effort had ever been made in the past and a number spoke in Commission sessions. The lobbyists were active and visible, organizing panel discussions during the Commission session that drew good audiences.
Argentina, Brazil, Canada, Germany and Sweden used their speeches in the ‘high-level’ session to state their concern with discrimination on the basis of sexual orientation. Brazil announced the launch of its “Brazil Without Homophobia” educational campaign, but did not mention the resolution.
In contrast, opposition was silent or indirect.
Rather ominously the Pakistani delegate concluded his statement on behalf of the OIC by stressing the need for co-operation and understanding, and warning against “efforts to create new rights not sanctioned by existing treaty law” arguing that they would be “high fractious, divisive and counterproductive.” In implicit reference to the postponed resolution of Brazil on sexual orientation, the delegate asserted “attempts to develop norms which directly contradict fundamental value systems need to be avoided (…) No Islamic society would be able to accept any obligation which directly contradicts the basic tenets of our religion”.
Brazil did not reintroduce the motion in 2004. It issued a statement that more time was necessary for consultations with other states in hopes of building a consensus. The resolution was deferred to the next annual session.
Round three - 2005
In advance of the 2005 Commission session the International Commission of Jurists published a compilation of international human rights law references to sexual orientation and gender identity. It demonstrated, in over a hundred pages of detailed text, the extent to which sexual orientation issues had already been recognized in the special procedures, the treaty bodies and the refugee system. Around 60 GLBT representatives traveled to Geneva, organizing parallel panel sessions and lobbying governments.
The resolution was not introduced again in 2005, ending the Brazilian initiative. The official reason given was a lack of support in the Commission. The resolution would not pass.
Both the German delegation and the NGO Human Rights Watch believed that there were probably enough votes to pass the resolution if the obstructive tactics of opposing states could be overcome. One organizer analyzed the position of various countries, concluding that approval or rejection lay with 7 states whose vote he could not predict. In contrast, a prominent opponent estimated a vote at the 2005 session of the Commission of 23 against the resolution, defeating 20 or 21 supporters, with about 11 abstentions.
There have been surprises for those predicting the positions of states. Italy did not support the resolution in 2003, departing from what was otherwise an EU consensus. In 2005, South Africa indicated to local activists that it was not prepared to sponsor or support the resolution, in part, at least, to avoid undercutting its position as a leader within the African regional group.
What creates the possibility of majority support for the Brazilian resolution is a combination of votes from the West and from Latin America – plus the possibility of support from countries like South Africa, South Korea, Japan and the Philippines – and abstentions.
Understanding Brazil’s actions
Given the difficulties of dealing with ‘sensitive’ issues within the Commission, why did Brazil make its move in 2003? And why did it back off in 2004 and 2005?
It seems that the resolution had been largely the initiative of two individual Brazilian diplomats. It was consistent with positions taken by Brazil during the presidency of Fernando Henrique Cardoso, both at home and at the UN World Conference on Racism in Durban in 2001. Brazil had been a lead state in Durban in trying to get a reference to sexual orientation in the final conference statement.
President Luis Inacio Lula da Silva took office in January, 2003. His government has been very active, internationally, but not in ways conducive to the initiative on gay and lesbian rights. Brazil has established itself as a leader of developing states at the UN and in the World Trade Organization. Brazil heads the ‘G-20’, which challenged the US and the EU on agricultural subsidies at the WTO ministerial meeting in Cancun, Mexico, changing the politics within the trade organization. Brazil put forward its own candidate for the post of director-general of the WTO, with support from China and India. Lula has actively sought investment from Arab states. In April, 2005, he hosted an Arab-South America summit in Brazil, with representatives of thirty-four states. The story has circulated that Egypt directly asked Brazil to drop the resolution on sexual orientation.
There are no votes for sexual orientation equality among the Arab states, and few from the members of the G-20. For Brazil, current economic and political considerations are in conflict with pursuing the equality initiative. Yet it has proceeded with its “Brazil Without Homophobia” domestic campaign, including new legislation. In his re-election campaign in 2006, Lula pledged to strengthen the campaign.
Western states expressed a reluctance to take over sponsorship of the resolution from Brazil. The German delegation, probably the strongest supporter of the Brazilian resolution, said European sponsorship would be the “kiss of death.” It would polarize the issue between Western and non-Western countries, something that was already a reality within the UN. A member of the South African delegation said that the perception of developing states was that Brazil “was being used by the EU to push the resolution” because, it said, Brazil gave no reason for the initiative. South Africa had no interest in taking over the Brazilian initiative, saying it would only support resolutions that dealt with discrimination in general, and also was focused on development issues. South Africa wanted to retain a leadership role in the African group, and support for the Brazilian resolution conflicted with that goal. Different reasons were given for doing nothing.
Lobbying at the commission, without the Brazilian resolution
While the 2005 sessions of the Commission were notable for the number of GLBT representatives trying to engage the process, opponents were oddly silent. Perhaps they knew that they had won this round. They chose to revert to silence on the issue, rather than repeating their arguments.
Only one NGO made an intervention expressing concerns about sexual orientation equality (and then only in the context of the free speech implications of a specific Swedish law prohibiting the promotion of disrespect towards minorities). No State in plenary explicitly spoke against recognition of human rights based on sexual orientation, although Pakistan on behalf of the OIC (Organization of the Islamic Conference) warned against recognition of “new rights that can be contrary to religious and cultural values.”
GLBT activists became engaged in a number of specific lobbying efforts during the Commission sessions in 2005. There was enthusiasm when Sweden agreed to include a reference to “gender identity” in the draft resolution on extrajudicial executions, the most obvious place in the UN system to recognize human rights abuses against transgendered individuals. But Sweden dropped the reference during bargaining on the text. Canada included a reference to “sexual orientation” in the draft text of the resolution on violence against women. Again it was dropped.
Sweden and Canada have sponsored these specific resolutions for a number of years, and were concerned with getting continuing support in the face of some real opposition. Each resolution already included some controversial language (on ‘honor killings’ for example). Each resolution authorizes the work of a special rapporteur. The rapporteurs can deal with issues of sexual orientation and gender identity when relevant to their mandates, with or without specific authorization. In 2005 eight rapporteurs dealt with such issues in their reports.
The work of GLBT activists in the Commission in 2005 led many governments to speak in support of their goals. There were references to sexual orientation rights in the opening ‘high level’ segment, in the debates around special procedures and in an EU statement. New Zealand delivered a joint statement on behalf of 33 states (both current members and non-members of the Commission). The statement said, in part:
Sexual orientation is a fundamental aspect of every individual’s identity and an immutable part of self. It is contrary to human dignity to force an individual to change their sexual orientation, or to discriminate against them on this basis. And, it is repugnant for the State to tolerate violence committed against individuals because of their sexual orientation. … we recognize that sexuality is a sensitive and complex issue. But we are not prepared to compromise on the principle that all people are equal in dignity, rights and freedoms. The Commission must uphold the principle of non-discrimination. We urge all States to recognize this common ground and to participate in debate. We hope this Commission will not be silent for too much longer.
Human Rights Watch noted some progress at the Commission in 2005:
Strong language on the protection of people on the grounds of sexual orientation was retained in the resolution on extra-judicial executions. However, an attempt to explicitly condemn extrajudicial killings of transgender people, a frequent phenomenon in some countries, was blocked. At the same time, the commission maintained its silence on the human rights abuses relating to sexual orientation and gender identity in other contexts, despite strong calls by non-governmental organizations for a resolution on this subject.
The GLBT activism at Geneva, now established, will continue. Even without the Brazilian resolution there are on-going issues about the mandates of special rapporteurs and perhaps a goal to get an official study on sexual orientation and gender identity issues (that opponents have already identified as a move to be opposed).
THE BOSSUYT STUDY ON DISCRIMINATION
The Sub-Commission on the Promotion and Protection of Human Rights in August, 2004, received a working paper on non-discrimination by Sub-Commission Member Emmanuel Decaux of France. Madam Warzazi, a long-standing member from Morocco, objected to a reference to sexual orientation, citing cultural and religious concerns
…and asserting that the legal doctrine on this aspect of non-discrimination was not so settled as Mr. Decaux seemed to suggest. Mr Pinheiro [Brazil] disagreed; he remarked that, while cultural concerns remained a relevant factor, they should not constitute obstacles to fighting discrimination based on sexual orientation.
The Sub-Commission appointed Mr. Marc Bossuyt to undertake a full study on non-discrimination as enshrined in article 2, paragraph 2, of the International Covenant on Economic, Social and Cultural Rights. Madam Warzazi told Bossuyt to exclude any discussion of sexual orientation from the study. She said that no delegation during the Vienna World Conference on Human Rights “ever thought of sexual orientation” and that it had been “excluded” from the conference. Four other members of the Sub-Commission endorsed Madam Warzazi’s comments, while two others pointedly suggested that “new issues were constantly appearing” in international law.
Madam Warzazi had chaired the Main Committee at Vienna, in which representatives of three accredited lesbian and gay organizations spoke. The head of the Australian government delegation personally lobbied Warzazi to allow more time for the GLBT organizations to participate, a request Warzazi rejected. And, as noted earlier, five governments made statements in plenary sessions opposing sexual orientation discrimination. Warzazi’s hostility to lesbian and gay rights was clear at Vienna, making it unlikely that she would have forgetten what had taken place.
The International Labor Organization
In 1998 the ILO approved a Declaration on Fundamental Principles and Rights at Work, which, as an interpretation of the basic constitutional purposes of the organization, was said to be binding on all members. This new approach reflected the ILO’s frustration that many of its detailed labor standards treaties had not been signed by many states. The US was a notable hold-out. The Declaration was both a new strategy organizationally, and a short and clear statement of what the ILO considered the basic issues. One of the four “fundamental principles” was the “elimination of discrimination in respect of employment and occupation.” The Declaration had no definition of what constituted discrimination.
In May, 2007, the ILO issued a major report Equality at Work: Tackling the Challenges. For the first time the ILO specifically addressed discrimination on the basis of sexual orientation, both in its press release and, more fully, in the report itself. The reports wording was cautious and descriptive:
International and national human rights institutions and mechanisms are attaching increasing importance to fighting discrimination based on sexual orientation. Certain countries have adopted legal provisions prohibiting discrimination at work based on sexual orientation. This has occurred in particular in the EU 25 in the past three years following the adoption of the EU Equality Directive prohibiting, among others, discrimination based on sexual orientation.
A footnote refers to an earlier version of this paper, available on the website of the International Lesbian and Gay Association.
Other specialized agencies
The World Health Organisation’s Global Programme on AIDS was established in 1987. While the WHO constantly restates the basic proposition that HIV/AIDS is not a gay disease, it has pointed out that discrimination against gay men, women and racial minorities creates serious problems for effective HIV prevention programs. ILGA and other lesbian and gay rights organisations have participated in the various HIV/AIDS conferences organised by the WHO. ILGA has co-operated with the Global Program on AIDS in many projects. WHO supported and co-sponsored annual ILGA regional conferences for eastern and south-eastern Europe since the Prague conference in 1991. The World Health Organisation funded several research projects at the Department of Gay and Lesbian Studies at the University of Utrecht in the Netherlands.
The 1991 Human Development Report, issued by the United Nations Development Programme, rated countries according to a "Human Freedom Index", reflecting the idea that "freedom" strengthens economic growth. The group of 77 developing states, an informal grouping within the UN membership, objected the index, for one of the forty criteria used in assessing states was whether homosexual acts were legal. Because of this opposition, the UNDP developed a new "Political Freedom Index" to replace the broader "Human Freedom Index" and stopped publishing the ratings of individual States.
Refugees are defined as individuals who have a well-founded fear of persecution based on grounds of race, religion, nationality, membership of a particular social group or political opinion. The United Nations High Commissioner for Refugees has interpreted the phrase "social group" to include lesbians and gay men. This interpretation has been accepted by decisions in many States. The first cases to gain widespread coverage occurred in Australia, Canada and the United States and involved individuals from Argentina, Brazil and China. The idea that lesbians or gay men can constitute a "social group" for refugee status no longer seems controversial and is expressly stated in the 1991 Austrian law on asylum. The issue in individual cases will be whether there is evidence establishing a well-founded fear of persecution on the part of the individual making the application, not whether lesbians or gay men constitute a ‘social group.’
Support by states at the U.N.
The following states have voted in favour of lesbian and gay rights. “A” means the state supported the original accreditation of ILGA at the United Nations either in the NGO Committee of the Economic and Social Council or in the Council itself. “B” means that the state supported wording on lesbian rights at the Fourth World Conference on Women, held in Beijing in 1995. “C” indicates the state supported lesbian and gay rights in meetings of the Organisation for Security and Co-operation in Europe. “D” means the state supported the accreditation of ILGA to the World Conference on Racism in 2001. “E” means the state supported the motion in the UN Economic and Social Council for reconsideration of ILGAs application for accreditation in April, 2002. “F” means the state supported the inclusion of “sexual orientation” in the resolution on the Special Rapporteur on Extrajudicial Executions at the Commission on Human Rights in April, 2002. “G” means that the state supported Brazil’s draft resolution in the Commission on Human Rights in April, 2003 (though the resolution never went to a vote). “H” means that the state supported the New Zealand statement in the Commission on Human Rights in April, 2005 (made after it was clear that the Brazilian resolution would not be debated). “I” means the state supported accreditation of ILGA and LBL in January, 2006.
Andorra (E, H), Argentina (A, H), Armenia (F,G), Australia (A,B,C,D,E,G), Austria (A,B,C,D,E,F,G,H), Barbados (B), Belarus (A), Belgium (A,B,D,F,G,H), Bolivia (B), Brazil (A,B,D,F,G), Bulgaria (A,D), Burundi (F), Cameroon (F), Canada (A,B,C,D,F,G,H), Chile (A,B,D,F,H,I), Colombia (B,D), Cook Islands (B), Costa Rica (A,F,G), Croatia (D,E,F), Cuba (A,B), Cyprus (H), Czech Republic (D,F,G,H), Denmark (A,B,C,D,G,H), Ecuador (F), El Salvador (D), Estonia (D), Finland (B,C,D,E,G,H), France (A,B,D,E,F,G,H,I), Georgia (E), Germany (A,B,D,E,F,G,H,I), Greece (A,B,D,G,H), Guatemala (D,F,G,H), Hungary (D,E), Iceland (H), Ireland (A,B,D,G,H), Israel (B,D), Italy (A,B,D,E,F), Jamaica (B), Japan (A,D,E,F,G), Latvia (B,D), Liechtenstein (D,G), Lithuania (D), Luxembourg (B,D,G,H), Macedonia (D), Malta (E), Mexico (A,F,G,H), Monaco (D), Netherlands (B,C,D,E,G), New Zealand (B,D,H), Norway (A,B,C,D,G,H), Peru (A,F,I), Poland (D,F,G), Portugal (B,D,F,G,H), Republic of Korea (F,G,H), Romania (D,E,H,I), Russian Federation (A,G), San Marino (D), Slovakia (D), Slovenia (B,D,H), South Africa (B), Spain (A,B,D,F,G,H), Sweden (A,B,C,E,F,G,H), Switzerland (B,D,H), Thailand (F,G), Ukraine (A,B,C,D,G), United Kingdom (A,B,D,E,F,G,H), United States (A,B,C,D,E), Uruguay (F,H), Venezuela (F,H).
This list has some surprises. Cuba has frequently been criticised for its treatment of lesbians and gays, but it cast two positive votes internationally. During some of the years that Chile cast positive votes it still had criminal laws against male homosexual acts. Austria had discriminatory laws but a consistently positive voting record. Ireland and Russia were supportive at meetings that took place before their anti-homosexual criminal laws had been repealed. India abstained on the original ECOSOC vote to accredit ILGA, though Indian criminal law prohibits male homosexual acts. It then voted against ILGA in ECOSOC in 2002. Domestic laws or policies do not always dictate state policies in international meetings.
While the Netherlands played an early role, Australia, Canada and Germany have been the most active states in recent years, with Brazil taking a lead in 2003 at the Human Rights Commission. Australia lobbied for more speaking time for lesbian and gay organisations at the Vienna World Conference on Human Rights in 1993, as well as urging movement on sexual orientation issues in their major statement at the conference. Australia has raised lesbian and gay rights in the U.N. Commission on Human Rights. Australia introduced national legislation to implement the Human Rights Committee decision in the Toonen case. The change in government in Australia in 1996 did not alter the government’s position on sexual orientation issues. Prime Minister Howard stated in February, 1996, that the two coalition parties “strongly oppose discrimination against individuals or groups on the grounds of race, gender, religion or sexuality.” His Foreign Minister, Alexander Downer stated:
I am strongly committed to individuals having the freedom to conduct their lives as they wish so long as that freedom does not impinge upon the freedom of others. I will carry out this commitment as Foreign Minister by ensuring that in its diplomatic representations abroad and in multilateral fora, Australia continues to oppose the persecution against individuals on the basis of religion, ethnic grouping or sexual preference.
Canada led the campaign to have IGLHRC seated at the workshop associated with the General Assembly’s Special Session on AIDS. It is also now one of the most advanced western states in terms of domestic law.
The countries that are members of the Organization of the Islamic Conference regularly vote as a bloc, and will oppose resolutions that are supportive of abortion or homosexuality. They have allies in black African states, and, on abortion, have support from the United States. Fifty years ago it was Catholic states that voted as a bloc at the UN, opposing programs of ‘family planning.’ There were no resolutions on homosexuality for them to oppose. Now states with large Catholic populations are supporters of sexual orientation equality rights and of women’s rights to control their own fertility. They do not follow the urgings of the Vatican when voting at the UN. Will Muslim states eventually go the way of Catholic states, separating religious views from governmental positions? If so, how long will that evolution take?
Regional treaty-based human rights bodies
In 1992 the refusal of the Government of Argentina to grant legal status to the non-governmental organisation Comunidad Homosexual Argentina was taken to the Inter-American Commission of Human Rights. The refusal had been confirmed in a decision of the Supreme Court of Argentina. Later that year the government granted legal recognition to the organisation, an act which the Commission considered an "amicable settlement" of the matter. The same problem was repeated in 1995 with the refusal of government agencies to register the Costa Rican group Abraxas and the Association of Honduran Homosexuals Against Aids. After protest, the Costa Rican organisation was registered.
In 1998 a lesbian journalist in the United States was fired from her job for off- the-job political activity on behalf of lesbian and gay rights. She petitioned the Inter-American Commission over the failure of the United States Supreme Court to review a judicial decision upholding her firing.
In 1999 the Inter-American Commission ordered El Salvador to provide anti-retroviral medications to twenty-six Salvadorans whose lives were endangered by AIDS.
In 1999, Marta Alvarez, a lesbian prisoner in Colombia, petitioned the Inter-American Commission for equal access to conjugal visits. In October, 2001, the Supreme Court of Colombia, in a separate case, handled by the same feminist lawyer, ordered that conjugal prison visits for a lesbian couple take place on the same basis as those for heterosexual couples. This ruling was not applied to the case of Marta Alvarez until November, 2002.
In 2004 the Supreme Court in Chile removed three children from the custody of their mother, Karen Atala, a judge, who had publicly stated that she was a lesbian. The Inter-American Commission agreed to review the matter in March, 2006. Proceedings were suspended when the parties agreed to seek a negotiated settlement.
In 1995 a petition was submitted to the African Commission on Human Rights asking it to open an inquiry into Zimbabwe's laws and policies on homosexual conduct. The communication was withdrawn at the request of the country's largest lesbian and gay organisation out of concern for possible reprisals by the government. Later in 1995, a large book fair, annually held in Harare, banned a gay rights exhibit under pressure from the government. Four organisations boycotted the fair in protest. President Robert Mugabe in a speech opening the fair denounced homosexuals, saying "We do not believe they have any rights at all." Later he called for an international campaign "to oppose those who support homosexuality." He said that homosexuality was not part of African culture. Mugabe has continued to give speeches condemning homosexuals, saying they are no better than dogs or pigs.
LGBT organizations began attending sessions of the African Commission on Human and People’s Rights in 2005. That year 20 African organizations, working in collaboration with human rights groups, held a training and strategy workshop. They then attended the Commission session, at which they raised the issue of the arrest of gay men and lesbians in the Cameroon. At the 2006 Commission meeting the International Gay and Lesbian Human Rights Commission (IGLHRC), based in the United States, and the national LGBT organization in Uganda distributed a ‘shadow report,’ paralleling the official report of the government of Uganda. IGLHRC released a document “Voices From Nigeria,” with statements reacting to proposed legislation that would ban LGBT activism. The International Commission of Jurists circulated its report on the extent to which issues of sexual orientation have been addressed in international inter-governmental human rights mechanisms.
The leading international lesbian and gay non-governmental organizations are ILGA and IGLHRC. ILGA, the International Lesbian and Gay Association, is a loosely organized, poorly funded federation of over 350 organizations. IGLHRC, the International Gay and Lesbian Human Rights Commission, does work comparable to Amnesty International in publishing background materials, country studies and urgent action bulletins. Neither organization has “consultative status” at the United Nations.
LGA-Europe submitted written arguments to the European Court of Human Rights in both the Frette and Karner cases, a new pattern of advocacy for the organization. These initiatives were handled by Professor Robert Wintemute, King’s College, University of London, who has written widely on sexual orientation issues.
The number of non-governmental organizations that will deal with sexual orientation issues has slowly increased, and now includes Amnesty International, Human Rights Watch, Global Rights, the International Commission of Jurists and the International Service for Human Rights.
Many branches of Amnesty International have LGBT groups, including those in Thailand and the Philippines. AI members march in pride parades, call for anti-discrimination laws, and support the recognition of same-sex relationships. Amnesty organized an international human rights conference in conjunction with the Gay Games in Amsterdam and again at the Gay Games in Sydney, Australia, in 2002. Their current publication, Sex, Love and Homophobia, was published in 2004 with a foreword by Archbishop Desmond Tutu of South Africa.
There have been victories, and there continue to be at least temporary defeats.
The decisions in Dudgeon, Norris, Modinos, Sutherland, Lustig-Prean, Karner, Goodwin, Toonen and Young were victories. In addition, international law clearly recognizes a well-founded fear of persecution on the basis of sexual orientation as qualifying individuals for refugee status. And Europe has moved to require non-discrimination rules in the laws of all members of the European Union.
Lesbian and gay representatives have been able to get into important meetings such as the Vienna World Conference on Human Rights, the Beijing Conference on Women, and the Durban Conference on Racism and Xenophobia. Gay and lesbian concerns have not yet appeared in the final conference statements of any of these large UN sponsored meetings. In 2001 there were fights over participation in two major UN meetings. In both cases, some lesbian and gay participation occurred.
A bloc of countries at the UN will vote against any resolution supporting sexual orientation equality rights. A different bloc supports any such resolution.
Western states extend the logic of domestic reforms to their international advocacy. The EU requires non-discrimination laws among its 25 member states, and takes the same position in international forums. But Western states also fear that including sexual orientation issues in the UN agenda will further polarize debates in Geneva and New York, in a period in which Islam must be shown some respect in the hopes of taming its extremists.
Representatives of Muslim states say they have no bargaining room on the issue. It is a religious, a cultural, a traditional matter.
In the polite and diplomatic world of the United Nations, neither side wants to push too hard. Neither wants a decisive win or loss. Sexual orientation is not the only issue on which these two sides publicly contend. There are a set of issues – honor killings, abortion, contraception, HIV/AIDS, the family, violence against women, prostitution – that provoke parallel stand-offs.
International law can develop only when there have been reforms at the level of domestic legal systems. The 1996 post-apartheid constitution of South Africa was the first in the world to expressly prohibit discrimination on the basis of sexual orientation. Similar express wording was included in subsequent new constitutions in Fiji, Ecuador and Portugal. An amendment to the constitution of Switzerland bans discrimination on the basis of "form of life," a phrase intended to include sexual life. In a number of other states general constitutional guarantees of equality have been interpreted to prohibit discrimination on the basis of sexual orientation.
The domestic legal systems of leading states now require decriminalization, individual equality, equal spousal benefits and partner immigration rights. Significantly, these developments are no longer limited to states in the western bloc.
The internationalization of sexual orientation equality rights, building on reforms at the domestic level, first occurred in the European regional system. Continuing reforms at the level of individual states – in the West and, more slowly, in Africa, Asia and Latin America – will permit sexual orientation issues to be openly addressed at the United Nations and in regional intergovernmental organizations in the years to come.
The tide has turned.
Professor Douglas Sanders