Human Rights Bodies Address Homophobia, Gun Violence after Orlando Attack
The United Nations Office of the High Commissioner for Human Rights (OHCHR), UN Security Council, and Inter-American Commission on Human Rights (IACHR) have urged States to address homophobia, gun violence, and terrorism in the wake of the recent nightclub shooting in Orlando, Florida. [OHCHR Press Release; UN Press Release; IACHR Press Release] Early Sunday morning on June 12, 2016 Omar Mateen entered Pulse, a gay nightclub in Orlando, and began shooting at the estimated 200 club-goers present for the “Hispanic party” hosted by the club that night. [CNN; IACHR Press Release] Mateen, who claimed allegiance to ISIS during the rampage, killed 49 people and wounded 53 more before being killed by police. [CNN] The Inter-American Commission and the OHCHR made recommendations to the United States to put in place measures to ensure non-discrimination and the elimination of violent attacks against lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons and called for more robust gun regulation in response to the shooter’s use of quick-reload weapons that he purchased legally. [USA Today; OHCHR Press Release; IACHR Press Release]
The recommendations were made in view of human rights bodies’ determination that sexual orientation and gender identity are included in non-discrimination provisions of human rights treaties, and the OHCHR’s recent conclusion that without adequate regulation, civilian gun use has a negative impact on the realization of many human rights. See Committee on Economic, Social and Cultural Rights, General Comment No. 20, Non-Discrimination in Economic, Social and Cultural Rights, UN Doc. E/C.12/GC/20, 10 June 2009, para. 32; UN High Commissioner for Human Rights, Human rights and the regulation of civil acquisition, possession and use of firearms, UN Doc. A/HRC/32/21, 15 April 2016. In related news, the European Court of Human Rights has again concluded that its Member States are not required to ensure marriage equality, or equal access to partner benefits, for same-sex couples.
The UN Security Council, under its mandate of maintaining international peace and security, focused its response to the Orlando massacre on counterterrorism. [UN Press Release] It condemned the act of terrorism and stated that terrorism is one of the greatest threats to international peace and security. [UN Press Release] While it noted that terrorism for any motive could not be tolerated, the Security Council expressed particular sympathy for the victims for being targeted as members of the LGBTI community. [UN Press Release] This statement reportedly marked the first time the Security Council has explicitly condemned violence that targeted individuals because of their sexual orientation. [BuzzFeed] Lastly, it encouraged all States to combat terrorism in accordance with international human rights, humanitarian, and refugee law. [UN Press Release]
Conversely, the OHCHR statement focused primarily on the need for greater gun regulation, with reference to a recent OHCHR report on the connection between civilian gun ownership to human rights violations. [OHCHR Press Release] High Commissioner Zeid Ra’ad Al Hussein highlighted the unfortunate frequency of gun violence in the United States, referring to the massacres at Sandy Hook Elementary School and in the Emanuel African Methodist Episcopal Church in Charleston and to individual acts of gun violence. [OHCHR Press Release] He stated that international examples have proven that stricter regulations, such as background checks for criminal history, drug use, mental illness, domestic violence, and contact with extremists as well as limits on assault weapons, drastically reduce incidence of violent crimes. [OHCHR Press Release] He urged the United States to establish stronger gun regulations and condemned the use of this tragedy to fuel Islamophobia and homophobia. [OHCHR Press Release]
In its statement, the IACHR urged the United States to promptly investigate the shooting, pass legislation to address its high rates of gun violence, and to take necessary steps to address prejudice and discrimination against LGBTI individuals. [IACHR Press Release] The IACHR First Vice-President and Rapporteur on the rights of lesbian, gay, bisexual, trans and intersex persons stated that violence is common in the lives of LGBTI individuals and that events such as the Orlando shooting serve as a reminder that despite major strides toward recognition, prejudice is still a major problem. [IACHR Press Release] The IACHR stressed that acts of violence against the LGBTI community should not be viewed as individual or isolated events, but rather as part of a larger pattern in which non-normative sexual and gender representation is targeted. [IACHR Press Release] It urged legislators to adopt measures that protect people from similar attacks and also that address the underlying social and cultural factors that contribute to patterns of violence and discrimination. [IACHR Press Release]
The IACHR called on the United States to also establish stronger regulation of guns, including background checks, license and registration requirements, and restrictions on assault weapons. [IACHR Press Release] It noted that in a prior Universal Periodic Review, the United States had responded to recommendations on improved gun control by affirming its support of stronger background checks. [IACHR Press Release]
Human Rights and Gun Control
Although no major human rights treaty specifically addresses gun control, in a report to the UN Human Rights Council released in April 2016, the OHCHR found that guns are globally recognized as the “primary tool” for violence and are the main weapon used in the violation of human rights. See Human rights and the regulation of civil acquisition, possession and use of firearms, UN Doc. A/HRC/32/21, 15 April 2016, paras. 5 and 9. The report specifically identified guns as the tool for violations of civil and political rights, including the rights to life, security, physical integrity, liberty, and protection from torture, because of the violence and fear encouraged by readily available guns. Id. at paras. 8 and 9. Guns also affect, according to the OHCHR, economic, social, and cultural rights, such as access to an adequate standard of living, education, health, and the ability to participate in cultural rights because of fear, insecurity, and resulting injuries and death due to firearms. Id. at para. 10.
The report also suggests that State regulation of guns may be required under international law. Id. at para. 53. States are required to prevent situations that could result in the deprivation of life. Id at para. 15. The report further notes that States are obligated to “prevent known, real and immediate risks” to the right to life even where private actors threaten that right. Id. The report cites to the UN Human Rights Committee’s previous statements that protecting against human rights violations applies to actions by not only State agents but also private actors, requiring the punishment of actions by both. See Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add. 1326, 29 March 2004.
The report also noted that several treaty and charter bodies have identified gun violence as a specific issue area, including the Special Rapporteur on violence against women, Committee on the Rights of the Child, Human Rights Committee, Committee on the Elimination of Discrimination against Women, and the Committee against Torture. Id. at paras. 21, 26, 28, 29, 30, and 31.
Protection of LGBTI Rights in International Law
The OHCHR has prepared two reports, one in 2011 and one in 2015, for the Human Rights Council on acts of violence and discrimination against LGBTI people and States’ obligations to protect LGBTI individuals from violence, discrimination, and the denial of rights. [UN News Centre; Human Rights Campaign] While the 2015 report identified global improvements since 2011 with regard to legislative protections against violence, it also noted that violence and harassment are alarmingly common, including homicide. Violence against LGBTI individuals, the report stated, is often characterized by a particularly high degree of cruelty and “grotesque killings.” See Discrimination and violence against individuals based on their sexual orientation and gender identity, UN Doc. A/HRC/29/23, 4 May 2015, paras. 26-27, 39-40, and 71-75.
The OHCHR reiterated the obligation to prevent, investigate, punish, and provide redress in instances of violence towards LGBTI persons and reminded States that UN bodies have called on them to publically denounce acts of violence aimed at the LGBTI community. See id. at para. 11. The OHCHR has also summarized States’ obligations towards the LGBTI community in a 2012 publication, finding States must protect individuals against homophobic and transphobic violence in accordance with the rights to life, liberty, and security. See OHCHR, Born Free and Equal: Sexual Orientation and Gender Identity in International Human Rights Law (2012), para. at 14.
Several human rights bodies have found that LGBTI individuals are a protected class under non-discrimination and equal protection provisions of human rights treaties. See International Justice Resource Center, Sexual Orientation and Gender Identity. The Committee on Economic, Social and Cultural Rights (CESCR) established that, although sexual orientation and gender identity are not explicitly included in the non-discrimination provision of the International Covenant on Economic, Social and Cultural Rights, they are both within its protection. See CESCR, General Comment No. 20, Non-Discrimination in Economic, Social and Cultural Rights, UN Doc. E/C.12/GC/20, 10 June 2009, para. 32.
International human rights treaty bodies and human rights courts have made similar determinations that States may not base differential treatment between persons on sexual orientation or gender identity without adequate justification. See, e.g., Human Rights Committee, Toonen v. Australia, Communication No. 488/1992, Views of 31 March 1994; ECtHR, Salgueiro da Silva Mouta v Portugal, no. 33290/96, ECHR 1999-IX, Judgment of 21 December 1999; I/A Court HR, Case of Atala Riffo and Daughters v. Chile. Merits, Reparations and Costs. Judgment of February 24, 2012. Series C No. 239, para. 95. The non-binding Yogyakarta Principles also state that the LGBTI community are entitled to the enjoyment of all human rights, including equal protection and non-discrimination.
European Court of Human Rights on Marriage Equality
While human rights bodies have often found that sexual orientation is a protected ground under the right to non-discrimination, they have not uniformly addressed, or recognized, marriage equality and the rights of LGBTI persons. The European Court of Human Rights recently ruled on two cases involving same-sex couples’ unequal access to marriage and partner benefits, in which it did not find violations of the treaty’s non-discrimination and right to marriage provisions. ECtHR, Aldeguer Tomás v. Spain, no. 35214/09, ECHR 2016, Judgment of 14 June 2016; ECtHR, Chapin and Charpentier v. France, no. 40183/07, ECHR 2016, Judgment of 10 June 2016 (French).
In Aldeguer Tomás v. Spain, the Court found no violation of Article 14 (non-discrimination) because the applicant, a same-sex partner who lived in a de facto marriage due to legal restraints on same-sex marriage and who was denied survivor benefits was not, in the Court’s view, in a similar position to a surviving partner in a heterosexual de facto marriage. Aldeguer Tomás v. Spain, Judgment of 14 June 2016. The relevant domestic law that provided survivor benefits to opposite-sex couples was enacted to equally distribute benefits between the two sexes where opposite-sex couples could not get married because divorce was not legal. At the time the law was enacted, same-sex couples could not get married at all. Id. at para. 87. Because in one situation, couples faced a barrier to re-marriage and in the other, the couples faced an obstacle to marriage in the first instance, the Court found that opposite-sex couples and same-sex couples in de facto relationships were in substantially different situations. See id. at paras. 87-88. Furthermore, the Court reiterated that it has previously found that “States enjoyed a margin of appreciation as regards the timing of the introduction of legislative changes in the field of legal recognition of same-sex couples.” Id. at para. 90.
In Chapin and Charpentier v. France, the Court found no violation of the right to marriage taken in conjunction with the right to non-discrimination, reiterating its previous holding that same-sex marriage is for State parties to regulate. Chapin and Charpentier v. France, Judgment of 10 June 2016. The Court reiterated its finding that States have a margin of appreciation with regards to the legal recognition of same-sex couples. The State, the Court held, does not have an obligation under Article 12 of the European Convention (right to marriage) to grant same-sex marriage. See id. at paras. 36-40.
For more information on the UN bodies, Inter-American Commission, European Court, and LGBTI Rights, visit IJRC’s Online Resource Hub. See the European Court of Human Rights’ factsheets on sexual orientation and gender identity for summaries of its judgments on these topics. Visit the IACHR Rapporteurship on the rights of LGBTI persons for decisions and reports related to its mandate.