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Sexual Orientation & Gender Identity
- HUMAN RIGHTS CONCERNS SPECIFIC TO LGBTI PERSONS
- COMMON HUMAN RIGHTS VIOLATIONS AFFECTING LGBTI PERSONS
- MONITORING & ENFORCEMENT
- ADDITIONAL RESOURCES
For more information on specific rights discussed in this guide, please see the full list of IJRC’s thematic guides.
International and regional human rights conventions protect all persons regardless of their sexual orientation or gender identity. The Universal Declaration of Human Rights lays out this key principle of modern human rights, declaring, “All human beings are born free and equal in dignity and rights.” See The Universal Declaration of Human Rights (adopted 10 December 1948), UNGA Res. 217 A(III) (UDHR) art.1. Unfortunately, homophobic attitudes, failure to protect or investigate hate crimes and other abuses, and insufficient legal protection at the national level often prevent lesbian, gay, bisexual, transgender and intersex (LGBTI) persons from fully enjoying their human rights.
In recent years, international human rights bodies and civil society have taken definitive steps to raise awareness about the problems facing the LGBTI community and advocate for change. However, hostility toward sexual minorities has resulted in laws criminalizing homosexuality, pervasive discrimination by both public and private actors, and violence against members of the LGBTI community. The persistence of practices such as the forced sterilization of transgendered persons, the execution of persons identifying as homosexual, and the “corrective rape” of lesbian women indicate the need for significant advances in the protection and enforcement of LGBTI persons’ rights
Because this is a developing area of international human rights law, future decisions by courts and other bodies concerning LGBTI rights may significantly alter the scope, interpretation, or implementation of international legal protections. This guide reports the state of human rights law as of May 2014.
Defining Sexual Orientation & Gender Identity
Humans have both a sexual orientation and a gender identity. Sexual orientation refers to a person’s “emotional, affectional and sexual attraction to…individuals of a different gender or the same gender or more than one gender.” International Commission of Jurists, Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity (2007) (“Yogyakarta Principles”), Preamble. Heterosexuality, homosexuality and bisexuality are all sexual orientations. The terms lesbian, gay and bisexual also refer to an individual’s sexual orientation.
Gender identity refers to “each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth.” See Yogyakarta Principles, Preamble. Many individuals identify as male or as female. However, some individuals may identify with a non-binary gender or with no gender at all. A person’s gender identity may be different than the gender that society might attribute to that person on the basis of external signifiers such as clothing or mannerisms.
Transgender individuals identify with a gender other than the one they were assigned at birth.
Additionally, intersex persons are individuals who are “born with sexual anatomy, reproductive organs and/or chromosomal patterns that do not fit the typical definition of male or female.” UN Office of the High Commissioner for Human Rights, Free and Equal: Sexuality and Gender are not Black and White. This term is used to describe a wide variety of characteristics. Intersex persons, like others, have a sexual orientation and gender identity.
Collectively, members of sexual minority groups are frequently referred to using the acronym “LGBTI,” which stands for lesbian, gay, bisexual, trans and intersex. Discrimination on the basis of sexual orientation and gender identity also affects individuals whom others merely assume or perceive to belong to a sexual minority.
Currently, no international human rights treaty specifically protects the rights of LGBTI persons. Nevertheless, the absence of a specialized convention does not mean that sexual minorities’ human rights are not protected under international human rights law. Human rights bodies have heard and continue to hear claims concerning the violation of the rights of LGBTI persons. However, they have not uniformly addressed all the human rights of LGBTI persons nor have they wholly extended all the same protections to sexual minorities as they have to others. This area of the law is evolving, and as it evolves, human rights bodies have become increasingly protective of LGBTI persons’ rights. Still, international human rights law has been interpreted to permit States to treat sexual minorities differently in some circumstances, at least until there is greater consistency among governments in areas such as marriage equality.
Many of the recent advances in the recognition of LGBTI rights are aspirational statements and policy positions taken by intergovernmental and political bodies. Unlike the decisions and legal interpretations of independent human rights courts and monitoring bodies, these outcomes are generally not binding on States. However, they reflect political will to recognize the rights of LGBTI persons and can be helpful in understanding how human rights standards may apply to the kinds of rights abuses often experienced by sexual minorities. In addition, some of the human rights bodies within the United Nations and regional intergovernmental organizations have taken steps to more closely monitor sexual orientation and gender identity issues and to guide States in improving respect for LGBTI persons’ rights.
The Yogyakarta Principles, a non-binding set of international standards, apply international human rights standards to issues that affect the LGBTI community. Developed by a group of experts, the Yogyakarta Principles have been used by the UN and other groups in their effort to promote and protect the human rights of sexual minorities. The Principles affirm that “human beings of all sexual orientations and gender identities are entitled to the full enjoyment of all human rights.” Yogyakarta Principles, principle 1. Each Principle identifies a particular right and then sets forth the duties and obligations States should satisfy to ensure that LGBTI persons are able to exercise and enjoy that right.
The Principles also offers recommendations concerning the realization LGBTI persons’ human rights to the United Nations (UN), regional human rights organizations, national human rights institutions, and other relevant stakeholders. Yogyakarta Principles, Additional Recommendations.
Many activists and civil society groups embraced the Principles as a major breakthrough in the international recognition of rights for the LGBTI community. See, e.g., Human Rights Watch, ‘Yogyakarta Principles’ a milestone for Lesbian, Gay, Bisexual and Transgender Rights, March 27, 2007. However, the Principles have also been at the center of controversy between UN states. Several States have opposed their use in official documents or resolutions. See, e.g., UN General Assembly, Third Committee, Summary record of the 29th meeting held at Headquarters, New York, on Monday, 25 October 2010, at 3 p.m, UN Doc. A/C.3/65/SR.29, paras. 9 and 23.
United Nations Standards
The United Nations Human Rights Council and other UN human rights bodies have made several notable advances in the recognition of the rights of sexual minorities through statements, resolutions and reports. In March 2011, Colombia delivered a Joint Statement on ending acts of violence and related human rights violations based on sexual orientation or gender identity to the Human Rights Council on behalf of more than 80 UN Member states. This statement publicly acknowledged the unacceptable treatment of people in all regions of the world on the basis of their sexual orientation or gender identity. UN Human Rights Council, Joint Statement on ending acts of violence and related human rights violations based on sexual orientation or gender identity (22 March 2011). However, the number of States that did not participate in the Joint Statement underscores the global tension surrounding the issue.
Then, in June 2011, the UN Human Rights Council adopted Resolution 17/19 recognizing the acts of violence and discrimination committed against LGBTI persons around the world and requesting a report from the UN Office of the High Commissioner for Human Rights. Human Rights Council, Resolution 17/19: Human Rights, Sexual Orientation and Gender Identity, A/HRC/RES/17/19 (17 June 2011). This marked the first time that the UN adopted a resolution addressing sexual identity or gender orientation.
In response to Resolution 17/19, the Office of the High Commissioner for Human Rights (OHCHR) submitted a Report to the Human Rights Council outlining the problems facing the LGBTI community and reiterating each State’s duty to protect the rights of all citizens. UN Human Rights Council, Report of the United Nations High Commissioner for Human Rights on Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity, UN Doc. A/HRC/19/41, (17 November 2011). The report recommends that all States investigate serious acts of violence, repeal laws criminalizing homosexuality, and enact legislation to prevent discrimination on the basis of sexual orientation or gender identity.
The OHCHR has also launched a public education campaign, Free and Equal (www.unfe.org), designed to raise awareness of the violence, discrimination and other human rights violations affecting the LGBTI community and to promote equality for everyone regardless of sexual orientation or gender identity.
In recent years, the Organization of American States (OAS) and the Inter-American Commission on Human Rights (IACHR) have taken steps to address the patterns of violence and other human rights abuses affecting LGBTI persons within the Americas.
Between June 2008 and June 2013, the General Assembly of the Organization of American States approved six resolutions concerning human rights, sexual orientation, and gender identity. See, e.g., Organization of American States (OAS), General Assembly Res. AG/RES. 2807 (XLIII-O/13), Human Rights, Sexual Orientation and Gender Identity (June 6, 2013). These resolutions acknowledge and condemn discrimination and acts of violence against members of the LGBTI community and call upon States, the IACHR and other bodies to take appropriate measures to address the problem.
In Res. 2653 (XLI-O/11) the OAS General Assembly requested that the IACHR and the Inter-American Juridical Committee prepare reports on the “legal implications and conceptual and terminological developments as regards sexual orientation, gender identity, and gender expression.” See, Organization of American States (OAS), General Assembly Res. AG/RES. 2653 (XLI-O/11), Human Rights, Sexual Orientation and Gender Identity (June 7, 2011), para 6.
In response to this request, the IACHR issued the document, Sexual Orientation, Gender Identity, and Gender Expression: Key Terms and Standards, and the Inter-American Juridical Committee released its Report on Sexual Orientation, Gender Identity, and Gender Expression. IACHR, Sexual Orientation, Gender Identity, and Gender Expression: Key Terms and Standards, CP/CAAP-INF. 166/12, 23 April 2012; Inter-American Juridical Committee, Report on Sexual Orientation, Gender Identity, and Gender Expression, CP/doc.4846/13, 17 March 2013.
The IACHR has worked to develop strategies and infrastructure to address the particular human rights concerns of LGBTI persons. As part of the IACHR’s Strategic Plan 2011-2015, the IACHR developed Action Plan 4.6.i to address the ongoing issue of discrimination and violence against the LGBTI community. As part of the strategic plan the IACHR proposed to “establish legal standards, rule on cases, and issue reports on the situation of members of the LGBTI communities in the American States.” IACHR, Action Plan 4.6.i (2011-2012) LGBTI Persons, para. 2.
In November 2011, the Inter-America Commission also created a rapporteurship on the rights of lesbian, gay, bisexual, trans, and intersex persons. IACHR, Press Release No. 115/11: IACHR Creates Unit on the Rights of Lesbian, Gay, Bisexual, Trans, and Intersex Persons, 3 November 2011, available at http://www.oas.org/en/iachr/media_center/PReleases/2011/115.asp. The rapporteurship is tasked with advising the IACHR on petitions and cases concerning sexual orientation, gender identity and gender expression; providing technical support to Member States; preparing reports on the rights of LGBTI persons; and monitoring the human rights violations against LGBTI persons in the Americas. IACHR, Rapporteurship on the Rights of LGBTI Persons: Mandate and Functions.
Within the European continent, the Council of Europe has taken positive steps to identify and respond to discrimination, violence and other issues affecting the LGBTI community. The Sexual Orientation and Gender Identity Unit within the Council of Europe is responsible for working with relevant stakeholders on issues of sexual orientation and gender identity issues.
In March 2010, the Council of Europe adopted Recommendation CM/Rec(2010)5 on measures to combat discrimination on grounds of sexual orientation or gender identity. Emphasizing the universality of human rights and the importance of non-discrimination, the recommendation called upon Member States to take positive steps to protect the rights if the LGBTI community. Council of Europe: Committee of Ministers, Recommendation CM/Rec(2010)5 of the Committee of Ministers to member states on measures to combat discrimination on grounds of sexual orientation or gender identity, 31 March 2010.
The Council of Europe also published a 2011 report, Discrimination on grounds of sexual orientation or gender Identity in Europe, which addresses homophobia, transphobia and discrimination within the 47 Member States of the Council of Europe and makes recommendations for their prevention. Council of Europe, Discrimination on grounds of sexual orientation or gender Identity in Europe (2011).
Moreover, the Commissioner for Human Rights published an issue paper, Human Rights and Gender Identity, in 2009. Council of Europe Commissioner for Human Rights, Issue Paper on Human Rights and Gender Identity (2009).
Discrimination & Inequality
International human rights law guarantees freedom from discrimination in the enjoyment of human rights for all people, including LGBTI individuals. For example, the International Covenant on Economic, Social and Cultural Rights, Article 2(2) states:
The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976), 993 UNTS 3 (ICESCR), art. 2(2). Although sexual orientation and gender identity are not explicitly included in the list of protected categories, the Committee on Economic, Social and Cultural Rights (CESCR) has established that both are protected by the non-discrimination provision above. CESCR, General Comment No. 20, Non-Discrimination in Economic, Social and Cultural Rights, UN Doc. E/C.12/GC/20, 10 June 2009.
Similarly, other human rights courts and quasi-judicial bodies have confirmed that States may not enact laws or policies or implement practices that treat persons differently on the basis of their sexual orientation or gender identity without providing adequate justification for the treatment that meets the appropriate legal standards. 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; ECSR, INTERIGHTS v. Croatia, Complaint No. 45/2007, Merits, 30 March 2009.
As a general rule, discrimination occurs when a person is treated differently than someone else in a similar situation, and this treatment causes that person harm or prevents his or her enjoyment of one or more human rights. The Yogyakarta Principles define discrimination as:
any distinction, exclusion, restriction or preference based on sexual orientation or gender identity which has the purpose or effect of nullifying or impairing equality before the law or the equal protection of the law, or the recognition, enjoyment or exercise, on an equal basis, of all human rights and fundamental freedoms.
Yogyakarta Principles, principle 2. Discrimination on the basis of sexual orientation or gender identity can affect every aspect of life, including housing, education, employment, healthcare, and family life.
Typically, courts and other human rights bodies will find different treatment of individuals in similar situations to be discriminatory unless the State provides a “reasonable and objective” justification. See CESCR, General Comment No. 20, Non-Discrimination in Economic, Social and Cultural Rights, UN Doc. E/C.12/GC/20, 10 June 2009. To meet this standard, States must show that the treatment pursues a legitimate aim and the means are proportional to the aim. If the difference in treatment does not meet this standard, then it is arbitrary and violates the human rights of the affected parties. See, e.g., ECtHR, Karner v. Austria, no. 40016/98, ECHR 2003-IX, Judgment of 24 July 2003, para. 37. See also 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. 99 et seq.
As indicated above, several human rights bodies, including the Inter-American Commission and the European Court, have found that sexual orientation is protected by non-discrimination provisions in human rights instruments even though it is not explicitly listed as a protected category. Therefore, when sexual orientation is at issue in a case, both bodies have held that States must provide particularly convincing and “weighty reasons” for a difference in treatment. See I/A Court HR, Case of Atala Riffo and Daughters v. Chile. Judgment of February 24, 2012. para. 124; Karner v. Austria, Judgment of 24 July 2003, para. 37; ECtHR, E. B. v. France [GC], no. 43546/02, Judgment of 22 January 2008, para. 91. In recent decisions, the European Court of Human Rights has also rejected “the protection of morals” as sufficient justification for discrimination in law or practice. See, e.g., ECtHR, A.D.T. v. the United Kingdom, no. 35765/97, ECHR 2000-IX, Judgment of 31 July 2000.
In order to fulfill their obligations under international human rights treaties, States must take appropriate steps to ensure that LGBTI persons can enjoy their human rights free from discrimination. Each international and regional human rights treaty requires States to adopt or change laws and policies as necessary to implement the treaty’s provisions at the domestic level. For example, Article 2(2) of the International Covenant on Civil and Political Rights places the following obligation on State parties:
Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.
International Covenant on Civil and Political Rights (adopted 16 December 1966 entered into force 23 March 1976), 999 UNTS 171 (ICCPR), art. 2(2). Should States fail to take the necessary steps, individuals may bring claims to the appropriate court or oversight mechanism. See, e.g., Human Rights Committee, Toonen v. Australia, Views of 31 March 1994 (finding that Tasmanian laws criminalizing homosexuality were inconsistent with the State’s obligations under Article 17 of the International Convention on Civil and Political Rights to respect the applicant’s private life.)
HUMAN RIGHTS CONCERNS SPECIFIC TO LGBTI PERSONS
Certain practices and policies, such as the criminalization of homosexuality, the denial of same-sex marriage rights, and the recognition of gender identity, have a particular impact on the human rights of LGBTI persons. The social, political, and legal landscape in countries around the world changes frequently on these issues – sometimes advancing recognition of LGBTI persons’ rights and sometimes further restricting respect for those rights. International human rights law in this area continues to develop, generally in favor of increased protection for LGBTI persons.
Criminalization of Homosexuality
In more than 70 countries, persons engaging in private, consensual sexual acts with persons of the same sex are at risk of criminal prosecution, and may face severe penalties, including capital punishment. OHCHR, Born Free and Equal (2012). A number of cases, the majority before the European Court of Human Rights, have been brought alleging that this practice violates one or more human rights. There are two separate categories of cases. These include challenges to the laws criminalizing homosexuality and challenges to discriminatory laws concerning the age of consent.
Both the European Court of Human Rights (ECtHR) and the United Nations Human Rights Committee have ruled that laws prohibiting homosexual sexual acts between consenting adults constitute a violation of the right to privacy. See ECtHR, Dudgeon v. the United Kingdom, ECtHR, Series A no. 45, Judgment of 22 October 1981; Human Rights Committee, Toonen v. Australia, Views of 31 March 1994.
The European Court has repeatedly found that laws criminalizing sexual relationships between consenting adults of the same sex violate the right to privacy under Article 8 of the European Convention on Human Rights. See, e.g., ECtHR, Dudgeon v. the United Kingdom, Judgment of 22 October 1981; ECtHR, Norris v. Ireland, ECtHR, Series A no. 142, Judgment of 26 October 1988. In evaluating whether a law criminalizing private sexual acts between consenting adults of the same sex violates an individual’s right to privacy, the European Court considers whether or not the State’s actions were in accordance with the law, had a legitimate aim, and were necessary in a democratic society. ECtHR, Dudgeon v. the United Kingdom, Judgment of 22 October 1981, para. 43.
In Dudgeon v. the United Kingdom, the ECtHR determined that laws criminalizing homosexuality violated the applicant’s right to privacy as protected by Article 8 of the European Convention on Human Rights. The Court rejected assertions by the State that the laws were necessary for the protection of “public morals” and “the rights and freedoms of others,” finding that these reasons were disproportionate to the harmful affect that the legislation has on the private life of a homosexual person. Id. at paras. 60-01.
Although the European Court has recognized that certain situations may justify the State’s interference with sexual acts, the Court has consistently found that the State has a narrow margin of appreciation for determining when the interference in the private sexual life of an individual is necessary. See, e.g., ECtHR, A.D.T. v. the United Kingdom, Judgment of 31 July 2000, para. 37-38.
The European Court has also made clear that the mere existence of a law criminalizing homosexuality may violate the right to privacy even if the State does not actively enforce the prohibition. See ECtHR, Modinos v. Cyprus, Series A no. 259, Judgment of 22 April 1993.
Like the ECtHR, the UN Human Rights Committee has found that the criminalization of sexual relationships between men violates the right to privacy. In the case of Toonen v. Australia the applicant claimed that laws criminalizing homosexual relations between consenting adult males were discriminatory and resulted in a violation of his private life. See Human Rights Committee, Toonen v. Australia, Views of 31 March 1994.
The Human Rights Committee determined that “any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case” to meet the reasonableness requirement. Id. at para. 8.3. In this case, the State argued that the criminalization of homosexuality was necessary for the protection of public health and morals. Id. at para. 8.4. Like the ECtHR, the Human Rights Committee rejected these justifications finding that they failed to meet the reasonableness requirement. Id. at para. 8.6.
Age of Consent Laws
The ECtHR has also heard several cases involving the criminalization of same-sex sexual relationships involving individuals below the legal age of consent. These cases are distinct from the cases discussed above and typically arose because State laws imposed a different age of consent on individuals engaging in male homosexual sexual relationships than those engaging in heterosexual or lesbian sexual relationships. See ECtHR, L. and V. v. Austria, nos. 39392/98 & 39829/98, ECHR 2003-I, Judgment of 9 January 2003; ECtHR, B.B. v. the United Kingdom, no. 53760/00, Judgment of 10 February 2004.
Applicants claimed that the difference in the age of consent violated the prohibition on discrimination (Article 14) together with the right to privacy (Article 8) under the European Convention on Human Rights. See ECtHR, L. and V. v. Austria, Judgment of 9 January 2003, para. 3; ECtHR, B.B. v. the United Kingdom, Judgment of 10 February 2004, para. 20.
In the case of L. and V. v. Austria, the government defended the homosexual age of consent law as necessary to protect the sexual development of adolescent boys. However, the Court found that while the protection of the rights of others is a legitimate aim, the State failed to show “convincing and weighty reasons” for maintaining a law that treats homosexual males differently than other individuals. ECthHR, L. and V. v. Austria, Judgment of 9 January 2003, para. 53.
Notably, prior to the decisions in the cases brought against Austria and the United Kingdom, these States repealed the laws in question and replaced them with laws that applied to all persons regardless of sexual orientation. See ECtHR, L. and V. v. Austria, Judgment of 9 January 2003, paras. 17-22; ECtHR, B.B. v. the United Kingdom, Judgment of 10 February 2004, paras. 15-19.
Although universal and regional human rights instruments often contain provisions recognizing the right to marry for adult men and women, no such convention explicitly includes the right for same-sex couples to enter into matrimony. See, e.g., ICCPR, art. 23(2); Convention for the Protection of Human Rights and Fundamental Freedoms, (adopted on 4 November, 1950, entered into force 3 September 1953) 213 UNTS. 221 (European Convention on Human Rights, as amended) (ECHR) art. 12. In this regard, the Yogyakarta Principles also do not specifically require marriage equality. Rather, Principle 24 urges States to ensure equal treatment if their domestic law recognizes same-sex marriages or legal partnerships, indicating that “States shall”:
e) Take all necessary legislative, administrative and other measures to ensure that in States that recognise same-sex marriages or registered partnerships, any entitlement, privilege, obligation or benefit available to different-sex married or registered partners is equally available to same-sex married or registered partners;
f) Take all necessary legislative, administrative and other measures to ensure that any obligation, entitlement, privilege or benefit available to different-sex unmarried partners is equally available to same-sex unmarried partners;
Many States only authorize or recognize marriages by couples composed of one man and one woman, according to the domestic law. However, national and local governments frequently adopt new legislation to recognize same-sex marriages or partnerships. Although international human rights law has not yet been interpreted to require States to ensure marriage equality, a small number of cases before United Nations and regional human rights bodies have begun to flesh out the underlying principles. However, these bodies appear reluctant to recognize marriage equality as a fundamental right unless and until this becomes the cultural and legal norm. See, e.g., Human Rights Committee, Joslin v New Zealand, Communication No. 902/1999, UN Doc CCPR/C/75/D/902/1999, Views of 17 July 2002; ECtHR, Schalk and Kopf v. Austria, no. 30141/04, ECHR 2010, Judgment of 24 June 2010.
Both the European Court of Human Rights and the United Nations Human Rights Committee have found that States are not required under the relevant human rights instruments to allow same-sex couples to marry. The Human Rights Committee, in its sole decision regarding same-sex marriage, upheld the State’s right to refuse to provide gay couples with the right to marry. See Human Rights Committee, Joslin v New Zealand, Views of 17 July 2002. The Committee found that the use of the phrase “men and women” in Article 23(2) instead of a neutral term “has been consistently and uniformly understood as indicating that the treaty obligation of States…is to recognize as marriage only the union between a man and a woman wishing to marry each other.” Id. at para. 8.2.
In 2009, the European Court of Human Rights first addressed the right of same-sex couples to marry in Schalk and Kopf v. Austria. The applicants in the case claimed that the Austrian law limiting marriage to heterosexual couples violated Article 12 (the right to marry and found a family) and Article 14 (freedom from discrimination) taken together with Article 8 (right to private and family life). The Court found that “States are still free, under Article 12 of the Convention as well as under Article 14 taken in conjunction with Article 8, to restrict access to marriage to different-sex couples.” ECtHR, Schalk and Kopf v. Austria, Judgment of 24 June 2010, para. 107.
With regard to Article 12, the Court relied on the traditional interpretation of the phrase “men and women” to find that Austria’s law did not contravene the European Convention. The Court noted that it felt obligated “not [to] rush to substitute its own judgment in place of that of the national authorities, who are best placed to assess and respond to the needs of society.” Id. at para. 62. In considering whether the Austrian law was unlawfully discriminatory, the European Court noted “an emerging European consensus towards legal recognition of same-sex couples” but found “there [was] not yet a majority of States providing for legal recognition of same-sex couples” and, therefore, the issue involved “evolving rights with no established consensus, where States must also enjoy a margin of appreciation in the timing of the introduction of legislative changes.” Id. at para. 102.
The ECtHR has considered whether or not a State could offer an alternative form of legal partnerships, such as a civil union, to heterosexual couples and not homosexual couples. ECtHR, Vallianatos and others v. Greece [GC], no. 29381/09, ECHR 2013, Judgment of 7 November 2013. However, this case only addressed the validity of an existing law and did not address any positive obligation of States to provide an alternative to marriage.
The applicants in Vallianatos and others (a homosexual couple, six other Greek nationals, and an association based in Athens) challenged a Greek law that only offered civil unions to heterosexual couples and not homosexual couples. The applicants claimed that the law violated their right to private and family life (Article 8) and was discriminatory (Article 14), noting that the difference in treatment was detrimental to same sex couples. Id. at paras. 1-3. The ECtHR found that the law violated Article 14 taken in conjunction with Article 8. Id. at para. 92.
The Inter-American Commission dismissed a claim challenging Paraguay’s refusal to recognize the applicant’s de facto partnership with his deceased partner of the same sex because the applicant failed to exhaust domestic remedies and his allegations were manifestly groundless. However, the decision indicated an acceptance of the Paraguayan definition of marriage as between a man and a woman. IACHR, Report No. 96/01, Petition 19/99, José Alberto Pérez Meza (Paraguay), October 10, 2001.
Partner & Survivor Benefits
According to the Yogyakarta Principles, States should take all necessary measures to insure the right to social security and other social protection measures for LGBTI persons including “pensions and benefits with regard to the loss of support for spouses or partners as the result of illness or death.” Yogyakarta Principles, principle 13. In practice, State action on these issues varies widely and human rights bodies have not yet required States to extend full and equal benefits to same-sex partners in all cases.
The European Court of Human Rights’ jurisprudence in this area has evolved over the past fifteen years. For example, in Mata Estevez v. Spain, which concerned the right of a same-sex partner to claim the social security allowance provided to surviving spouses, the Court described States’ margin of appreciation with regard to recognizing same-sex partnerships as “wide.” ECtHR, Mata Estevez v. Spain (dec.), no. 56501/00, Judgment of 10 May 2001. In that case, where marriage was a requirement for accessing the social security allowance (and marriage was not available to same-sex couples), the Court’s admissibility decision determined that Spain’s difference in treatment pursued the legitimate aim of protecting the family based on marriage bonds and was therefore not unduly discriminatory. Id.
However, in later judgments, the Court has written that States have only a “narrow” margin of appreciation to treat individuals differently on the basis of sexual orientation. See ECtHR, P.B. and J.S. v. Austria, no. 18984/02, Judgment of 22 July 2010, para. 42. See also ECtHR, Karner v. Austria, no. 40016/98, Judgment of 24 July 2003. In P.B. and J.S. v. Austria, the applicants challenged Austria’s refusal to extend health and accident insurance coverage to the homosexual partner of an insured person. Marriage was not a requirement under the law, and the Court found denying the same benefits to same-sex couples as were offered to heterosexual couples to be discriminatory, in part because the State offered no justification for the difference in treatment. ECtHR, P.B. and J.S. v. Austria, Judgment of 22 July 2010, para. 41. However, when Austria modified the relevant law to allow insurance coverage to be extended to a cohabitating partner with whom the insured individual was raising children in a common household, the Court rejected the applicants’ argument that the law was still discriminatory, holding that it treated similarly-situated couples equally and it would not be impossible for homosexual couples to meet the condition of raising children together. Id. at paras. 45-50.
Similarly, the Inter-American Commission on Human Rights has admitted a petition challenging Columbia’s exclusion of same-sex couples from eligibility for survivor’s pensions. See IACHR, Report No. 150/11, Petition 123-05, Ángel Alberto Duque (Colombia), November 2, 2011. The Commission found the petition presented allegations that could constitute violations the rights to humane treatment, judicial guarantees, equality before the law, and judicial protection under the American Convention on Human Rights. Id. at paras. 43-46.
And, finally, the UN Human Rights Committee has upheld a same-sex partner’s right to survivor benefits available to heterosexual partners where the State offered no justification for the difference in treatment. In the case of Young v. Australia, the applicant claimed that the denial of pension benefits on the basis of his same-sex relationship violated his right to equality under the law and freedom from discrimination. The Committee emphasized that the State had failed to provide any justification for denying pensions to unmarried same-sex partners while granting them to unmarried opposite sex partners. Therefore, the difference in treatment constituted unjustified discrimination and violated the applicant’s rights under the International Covenant on Civil and Political Rights. Human Rights Committee, Young v. Australia, Communication No. 941/2000, Views of 6 August 2003.
For many trans and intersex persons, barriers to legal and societal recognition of gender identity limit their ability to fully enjoy their human rights. In this regard, the European Court of Human Rights has recognized an individual’s ability to identify as a particular gender as “one of the most basic essentials of self-determination.” See, e.g., ECtHR, Van Kuck v. Germany, no. 35968/97, ECHR 2003-VII, Judgment of 12 June 2003.
Although the European Court of Human Rights has addressed several key issues related to gender identity – including limitations on gender reassignment surgery, legal recognition of post-operative gender identity, and the right to marriage for post-operative trans persons – these topics have not yet been decided by other human rights bodies.
Trans persons may elect to undergo gender reassignment surgery. Several claims have been submitted to the ECtHR concerning barriers applicants have faced when pursuing gender reassignment surgery.
In the case of L. v. Lithuania, the applicant claimed that the State’s failure to enact legislation allowing an individual to undergo gender reassignment surgery and change his or her gender on official documents violated Article 3 and Article 8 of the European Convention on Human Rights. At the time, Lithuanian law recognized a person’s right to change gender, but did not regulate gender reassignment surgery. Based on the facts of the case, the Court found no violation of the prohibition on inhuman and degrading treatment. However, the Court did find that the legislative gap left the applicant in “a situation of distressing uncertainty vis-à-vis his private life and the recognition of his true identity” and therefore, the State violated the applicant’s right to private life as protected by Article 8. ECtHR, L v. Lithuania, no. 27527/03, ECHR 2007-IV, Judgment of 11 September 2007.
The European Court has also heard several cases concerning both pre- and post-operative insurance coverage. See ECtHR, Schlumpf v. Switzerland, no. 29002/06, Judgment of 8 January 2009 (French only); ECtHR, Van Kuck v. Germany, Judgment of 12 June 2003. In Van Kuck v. Germany, the applicant “alleged that German court decisions refusing her claims for reimbursement of gender reassignment measures and also the related proceedings were in breach of her right to a fair trial and of her right to respect for her private life and that they amounted to discrimination on the ground of her particular psychological situation.” ECtHR, Van Kuck v. Germany, Judgment of 12 June 2003. at para. 3. The Court found that the approach taken by the German court of appeals to determine the medical necessity of gender reassignment surgery and the cause of the applicant’s transsexualism was in violation of Article 6. Id. at paras. 63-65. Additionally, the Court determined that German authorities failed to strike an appropriate balance between the insurance company’s and the applicants’ interests when they required the applicant to prove her transsexuality and the medical necessity of a treatment so closely related to such an intimate area of her life. Therefore, the Court found a violation of Article 8. Id. at paras 82-86.
Additionally, an application currently pending before the ECtHR concerns the Turkish requirement that persons undergoing gender reassignment surgery be declared permanently infertile or be surgically sterilized. The applicant in the case has claimed that this law violated her right to respect for private life as protected by Article 8 of the European Convention. See ECtHR, Y.Y. v. Turkey, no. 14793/08, Judgment of 24 March 2010 (Communicated Case – French Only).
While intersex persons may also face challenges relating to both involuntary gender reassignment as a child and voluntary gender reassignment surgery as an adult, international and regional human rights courts have not yet rendered any decisions on these issues.
The Yogyakarta Principles, while acknowledging the importance of allowing elective gender reassignment surgery, emphasizes that these procedures should only be performed with the full consent of an individual. The Special Rapporteur on Torture has also reported on the harmful nature of “involuntary genital normalizing surgery” performed on intersex infants, noting that the invasive surgery may cause “permanent, irreversible infertility” and “severe mental suffering.” Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, UN Doc. A/HRC/22/53, 1 February 2013, para. 77.
Trans, intersex, and other persons may face legal and social barriers in obtaining official recognition of their gender identity. For individuals whose anatomical sex does not match their personal gender identity or who have undergone sex reassignment surgery, securing identification documents or gaining access to benefits reserved for one gender may present significant challenges. While some States allow trans individuals to change their name to reflect their post-operative gender, the State may not consider the applicant to be of that same gender in other areas.
The European Court of Human Rights has heard several cases involving the legal identity of postoperative transsexuals. Initially, the Court did not require States to change their laws and practices to provide transsexual persons with full recognition of their gender identity. See, e.g., ECtHR, Rees v. the United Kingdom, Series A no. 106, Judgment of 17 October 1986; ECtHR, Cossey v. the United Kingdom, Series A no. 184, Judgment of 27 September 1990.
In the case of Rees v. the United Kingdom, the applicant asked the Court to find that the State’s failure to recognize his postoperative gender status resulted in a violation of the right to a private life (Article 8) and the right to marry (Article 12) of the European Convention. ECtHR, Rees v. the United Kingdom, Judgment of 17 October 1986. With regard to Article 8, the Court found no violation, stating that recognition of the applicant’s gender would require substantial changes to the administrative system of the United Kingdom and would impose new duties on the population. Id. at paras. 38-47. The Court also found no violation of the applicant’s right to marry. The Court stated its opinion that, “the right to marry guaranteed by Article 12 (art. 12) refers to the traditional marriage between persons of opposite biological sex” and confirmed that domestic laws govern the exercise of this right. Based on these assertions, the Court determined that restricting the rights of same sex couples did not violate the right to marry. Id. at paras. 48-51.
However, in subsequent cases the European Court has required States to provide full recognition of the post transition gender of a trans person. See, e.g., ECtHR, B. v. France, Series A no. 232-C, Judgment of 25 March 1992; ECtHR, Christine Goodwin v. the United Kingdom, no. 28957/95, Judgment of 11 July 2002. The Court found a violation of the right to private life (Article 8) for transsexuals for the first time in the B. v. France. Although the Court acknowledged shifting attitudes towards transsexualism and scientific progress, it also noted the lack of a “sufficiently broad consensus between the member States of the Council of Europe to persuade the Court to reach opposite conclusions to those in its Rees and Cossey judgments.” Instead, the Court distinguished this case from earlier cases (Rees v. the United Kingdom and Cossey v. the United Kingdom) on the basis of differences between the English and French civil status systems. In this case, the Court found that the applicant’s situation was incompatible with her right to respect for private life, and therefore, the State’s failure to strike an appropriate balance between general interests and the interests of the applicant constituted a violation of her rights under Article 8 of the European Convention on Human Rights. ECtHR, B. v. France, Judgment of 25 March 1992.
Then, in the landmark case of Christine Goodwin v. the United Kingdom, the ECtHR departed from its earlier decisions and found that the lack of legal recognition for a post-operative transsexual violated the applicant’s right to private life and right to marry and found a family. ECtHR, Christine Goodwin v. the United Kingdom, Judgment of 11 July 2002. Because the UK did not recognize her sex change, the applicant experienced difficulties pursuing a sexual harassment claim, could not obtain a new health insurance number or modified birth certificate, and would have been ineligible for a government pension for an additional five years. Id. at paras. 15-19.
In its decision, the Court noted a “clear and uncontested evidence of a continuing international trend in favour not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of post-operative transsexuals.” Id. at para. 85. It placed greater weight on this emerging trend than on the absence of a common European approach to the legal rights of transsexuals. Id. With regard to Article 8, the Grand Chamber determined that “[n]o concrete or substantial hardship or detriment to the public interest has indeed been demonstrated as likely to flow from any change to the status of transsexuals.” Id. at para. 91. Therefore, the State’s failure to respect the private life of the applicant violated her right to respect for private life.
With regard to Article 12, the Court overturned its earlier decisions, in which it had determined that the use of biological criteria in determining a person’s sex for the purpose of marriage did not violate the right to marry for transsexual persons, and held that after a trans person establishes that his or her gender has been reassigned there is “no justification for barring the transsexual from enjoying the right to marry under any circumstances.” Id. at para. 103. The Court determined that basing the right to marry on a person’s sex at birth violated the very essence of the right and noted that the applicant, who lives as a woman, would not be able to marry a man. Id. at para. 101.
Third or Indeterminate Gender
Today, not all countries adhere to a strict male/female gender designation. Several countries, including Germany and Australia, officially recognize a third gender category for individuals who do not identify as male or female. However, international human rights law and jurisprudence have not yet directly addressed whether States have a positive obligation to recognize any gender or gender identity other than male and female.
COMMON HUMAN RIGHTS VIOLATIONS AFFECTING LGBTI PERSONS
LGBTI persons may be particularly vulnerable to human rights violations due to stigma and discrimination concerning their actual or perceived sexual orientation or gender identity. Reports, case law, and other indicators suggest that sexual minorities often face abuses or difficulty in gaining protection or recognition of their rights in the areas of personal safety and physical integrity, asylum, family matters, and health.
International and regional human rights conventions place positive obligations on States to insure individuals’ safety and security from violence and arbitrary killings committed by both State and non-State actors. See, e.g., ICCPR, arts. 6 and 9; American Convention on Human Rights (adopted 21 November 1969, entered into force 18 July 1978) 1141 UNTS 123, arts. 4; African Charter on Human and Peoples’ Rights, arts. 4 and 6. See also ACommHPR, Resolution 275 on Protection against Violence and Other Human Rights Violations against Persons on the Basis of Their Real or Imputed Sexual Orientation or Gender Identity, 55th Ordinary Session, 28 April-12 May 2014.
However, according to a report by the UN Office of the High Commissioner for Human Rights, homophobic and transphobic violence has occurred in all regions of the world. This violence affects sexual minorities and the human rights defenders working to promote and protect the rights of the LGBTI community. Such violence includes the infliction of physical harm, such as murder, rape, and assault, as well as psychological harm, such as threats and coercion. See UN Human Rights Council, Report of the United Nations High Commissioner for Human Rights on Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity, UN Doc. A/HRC/19/41 (Nov. 17, 2011), available at www.undocs.org/ A/HRC/19/41.
The Special Rapporteur on extrajudicial, summary or arbitrary execution has repeatedly expressed concern at the killing of lesbian, gay, bisexual and transgender persons by State actors without any legal consequence. OHCHR, Born Free and Equal (2012) p. 16-17. Additionally, in 2012, the United Nations General Assembly once again added individuals targeted for their sexual orientation and gender identity to the list of groups to that State’s should protect from extrajudicial killings. UN G.A., Res. 67/168, extrajudicial, summary or arbitrary executions, A/RES/67/168, 15 March 2013.
Currently, the only decisions from the European Court involving violence or other cruel and inhuman treatment due to a person’s sexual orientation or gender identity appear to concern the treatment of inmates and the deportation of individuals to countries where they may be subject to cruel and inhuman treatment.
In the case of Stasi v. France, the applicant claimed that the State had failed to protect him from ill treatment by other inmates who targeted him due to his homosexuality. The Court found no violation of Article 3 because authorities had taken the measures reasonably expected of them to prevent harm to the applicant. ECtHR, Stasi v. France, no. 25001/07, Judgment of 20 October 2011 (French only). However, the Court did find a violation of Article 3 in the case of X v. Turkey, in which the applicant was held in solitary confinement for over eight months. The Court determined that the conditions of detention caused physical and mental suffering, and these conditions coupled with the lack of an effective remedy, reached the level of inhuman and degrading treatment. The Court also found a violation of the right to be free from discrimination (Article 14) taken with Article 3 on the grounds that the decision to place the applicant in solitary confinement for his protection was based on his homosexuality. ECtHR, X v. Turkey, no. 24626/09, Judgment of 9 October 2012.
For more information about cases involving deportation, see the section on asylum (below).
Additionally, several other cases are pending before the ECtHR which may affect this area of international human rights law. See ECtHR, M.C. and C.A. v. Romania, no. 12060/12, Communicated on 30 January 2013 (concerning attacks against the applicants following an annual gay march and the State’s alleged failure to investigate, provide an effective remedy, and adequately criminalize hate crimes); ECtHR, Identoba and Others v. Georgia, no. 73235/12, Communicated on 18 December 2013 (concerning alleged verbal and physical attacks during a peaceful demonstration celebrating International Day against Homophobia and Transphobia); ECtHR, Aghdgomelashvili and Japaridize v. Georgia, no. 7224/11, Communicated on 3 December 2013 (concerning alleged ill treatment during a police raid on the offices of an LGBT rights organization and lack of an effective investigation due to the individuals’ actual or perceived sexual orientation); ECtHR, Sabalić v. Croatia, no. 50231/13, Communicated on 7 January 2014 (concerning an alleged lack of procedural response and effective domestic remedy for a physical attack by a private party and alleged discrimination on the basis of sexual orientation.)
Although the Inter-American Commission has not issued a decision in any cases concerning violence against LGBTI individuals or LGBTI human rights defenders, it has issued 11 precautionary measures for LGBTI individuals, human rights defenders and members of groups working to advance LGBTI rights as of May 2014. See IACHR, Rapporteurship on the Rights of LGBTI Persons: Precautionary Measures. The Commission requests that States adopt precautionary measures in serious and urgent situations to prevent irreparable harm to a person or subject matter of a petition. Most recently, the Commission issued a request for precautionary measure on behalf of the Asociación para una Vida Mejor de Honduras (Association for a Better Life in Honduras). Due to their activities protecting and promoting the rights of LGBTI persons in Honduras, the Commission found the lives and personal integrity of the members of the Asociación para una Vida Mejor de Honduras to be at risk. See IACHR, Resolution No. 1/2014, PM 457-23, Asociación para una Vida Mejor de Honduras, 22 January 2014 (Spanish only).
Persecution & Seeking Asylum
Due to the rampant violence and discrimination in many countries, LGBTI persons may flee their countries of origin to escape harm. Several cases before the European Court of Human Rights involve allegations that the applicants’ forced return to their countries of origin would violate Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights. See, e.g., ECtHR, I.I.N. v. the Netherlands (dec.), no. 2035/04, 9 December 2004; ECtHR, A.S.B. v. the Netherlands (dec), no. 4854/12, 10 July 2012; ECtHR, M.K.N. v. Sweden, no. 72413/10, Judgment of 27 June 2013.
In M.K.N. v. Sweden, the only such case in which the Court has issued a final decision on the merits as of May 2014, the applicant claimed that if he were returned to Iraq he would face persecution, due in part to a prior homosexual relationship. He alleged that his partner had been killed after their relationship was discovered. However, due to the applicant’s delay in claiming that his homosexual relationship would place him in danger during domestic proceedings and proceedings before the Court, the Court found that the applicant’s claims concerning his homosexual relationship were not credible. ECtHR, M.K.N. v. Sweden, Judgment of 27 June 2013, para. 43.
Currently, an individual whose request for a residence permit on the basis of his marriage to another man was denied has filed an application alleging that deportation would violate both Article 3 and Article 8 of the European Convention. ECtHR, M.E. v. Sweden, no. 71398/12, Communicated on 12 December 2012.
Family & Parental Rights
Several international and regional human rights have examined alleged violations of LGBTI individuals’ rights related to parenthood. These issues are generally considered to fall within the scope of the human right to family. For example, the European Court of Human Rights has determined that “a cohabiting same-sex couple living in a stable de facto partnership falls within the notion of ‘family life’, just as the relationship of a different-sex couple in the same situation would.” See ECtHR, Schalk and Kopf v. Austria, no. 30141/04, Judgment of 24 June 2010, para. 94.
For their part, the Yogyakarta Principles assert that all individuals have the right to found a family and for that family to exist free from discrimination on the basis of the sexual orientation or gender identity of its members. According to the Principles, this includes that right to adoption and assisted procreation. Yogyakarta Principles, principle 24.
The UN Human Rights Committee has confirmed that, pursuant to the International Covenant on Civil and Political Rights, “[t]he right to found a family implies, in principle, the possibility to procreate and live together” and that family planning policies should not be discriminatory. UN Human Rights Committee, General Comment No. 19: Article 23 (The Family) Protection of the Family, the Right to Marriage and Equality of Spouses, UN Doc. HRI/GEN/1/Rev.9 (Vol. I), p. 152, 27 July 1990, para. 5
Although international human rights law protects the rights to respect for private and family life, in some circumstances these rights may be limited by the State’s authority to intervene in the parent-child relationship in order to protect the health and well-being of the child. Due to the limited number of cases involving LGBTI parents, this remains a developing area of international human rights law and future jurisprudence could significantly alter current interpretations.
As a general rule, human rights courts have found that the sexual orientation of a parent is not sufficient justification to deny custodial rights. See ECtHR, Salgueiro da Silva Mouta v. Portugal, No. 33290/96, Judgment of 21 December 1999; I/A Court HR, Case of Atala Riffo and Daughters v. Chile, 24 February 2012. In the case of Salgueiro da Silva Mouta v. Portugal, the European Court of Human Rights found that making the applicant’s homosexuality a decisive factor in the determination of parental rights violated the applicant’s right to respect for private and family life taken with the applicant’s right to be free from discrimination. ECtHR, Salgueiro da Silva Mouta v. Portugal, Judgment of 21 December 1999.
Similarly, in the case of Atala Riffo and Daughters v. Chile the Inter-American Court of Human Rights found that the custody proceeding and the subsequent decision to restrict the applicant’s parental rights on the basis of her relationship and co-habitation with another woman violated her rights to private life and family life as well as her right to equality and non-discrimination. I/A Court HR, Case of Atala Riffo and Daughters v. Chile, 24 February 2012.
However, in a case involving the rights of a transgender parent, the ECtHR upheld the right of a Spanish court to restrict the visitation rights of a male to female transsexual in the process of going through gender reassignment surgery. ECtHR, P.V. v. Spain, No. 35159/09, Judgment of 30 November 2010 (French only). In this case, the Court found that the applicant’s transsexualism had not been the decisive factor in the contact arrangements and held that limiting the applicant’s contact with her child was in the best interest of the child due to the reported emotional instability of the applicant. Id.
Medically Assisted Procreation
While international human law generally protects the right to have a child by natural means, it may not necessarily guarantee a right to medically assisted procreation. Human rights bodies have recognized that “the right of a couple to conceive a child and to make use of medically assisted procreation for that purpose is … an expression of private and family life” protected by human rights norms, but that the interpretation of this area of international law “is subject to a particularly dynamic development in science and law…” See, e.g., ECtHR, S.H. and Others v. Austria [GC], no. 57813/00, Judgment of 3 November 2011, paras. 82, 118. Whether a State’s laws on this topic are found to violate its international human rights obligations will likely depend on the specific characteristics of the law or policy, whether there is consistency of practice among States on the issue, and which body is deciding the case. Compare ECtHR, S.H. and Others v. Austria [GC], Judgment of 3 November 2011 with I/A Court H.R., Case of Artavia Murillo et al. (“In Vitro Fertilization”) v. Costa Rica. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 28, 2012. Series C No. 257.
The the European Court found violations in Italy’s law restricting access to in vitro fertilization for sterile or infertile couples and men with sexually transmitted diseases only. See ECtHR, Costa and Pavan v. Italy, no. 54270/10, Judgment of 28 August 2012. With regard to the applicants, who were carriers of cystic fibrosis, the European Court found the restriction to be a disproportionate interference with their right to respect for private and family life because the Italian legislature’s reasoning was inconsistent in restricting IVF in order to protect the health of the mother and child, preserve the dignity and freedom of conscience of the medical profession, and avoid its use in eugenics while simultaneously allowing abortions on medical grounds. See id.
However, in an earlier case concerning a narrower limitation, the Grand Chamber of the European Court of Human Rights held that the State’s prohibition of egg and sperm donation for in vitro fertilization was within the government’s margin of appreciation and therefore compatible with the European Convention on Human Rights because the national legislature carried out a careful balancing of competing interests and allowed other forms of medically assisted procreation, and considering the absence of any strong European consensus on whether donation for in vitro fertilization should be allowed. ECtHR, S.H. and Others v. Austria [GC], no. 57813/00, Judgment of 3 November 2011, paras. 99-118.
The Inter-American Court held that Costa Rica’s complete prohibition of in vitro fertilization violated the American Convention’s provisions on humane treatment, personal liberty, privacy, and rights of the family because it was a disproportionately “severe interference in relation to [the couples’] decision-making concerning the methods or practices they wished to attempt in order to procreate a biological child” but offered only “very slight” protection of prenatal life. I/A Court HR, Case of Artavia Murillo et al. (“In Vitro Fertilization”) v. Costa Rica. Judgment of November 28, 2012, paras. 284, 315.
The Inter-American and European human rights courts have also considered allegations that IVF restrictions are discriminatory. For example, in Gas and Dubois v. France, the European Court of Human Rights expressed its view that a French law limiting access to artificial insemination by an anonymous donor to infertile heterosexual couples was not discriminatory because a fertile homosexual couple’s situation could not be considered comparable to that of an infertile heterosexual couple. See ECtHR, Gas and Dubois v. France, no. 25951/07, Judgment of 15 March 2012, para. 63. The Inter-American Court of Human Rights looked at the discriminatory impacts of Costa Rica’s IVF ban in determining the severity of the restriction. See I/A Court HR, Case of Artavia Murillo et al. (“In Vitro Fertilization”) v. Costa Rica. Judgment of November 28, 2012. paras. 285-304.
No one, regardless of sexual orientation or gender identity, has a fundamental right to adopt a child under international human rights law. The human right to respect for family life does not explicitly include a right to adoption. See, e.g., ICCPR, art. 17(1) (“No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence…”); American Declaration on the Rights and Duties of Man, O.A.S. Res. XXX adopted by the Ninth International Conference of American States (1948), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L/V/I.4 rev.13 at 13 (2010), art. 5; European Convention on Human Rights, art. 8.
Rather, where States have implemented domestic laws that allow couples or individuals to adopt, international human rights treaties require that the adoption process does not discriminate on the basis of sexual orientation or gender identity. See, e.g., ECtHR, E.B. v. France, no. 43546/02, Judgment of 22 January 2008. For example, a domestic decision denying an LGBTI individual’s or couple’s adoption application will be considered discriminatory if sexual orientation was the basis for the denial. Id.
However, a denial based on marital status would not necessarily be considered discriminatory – even in countries that do not recognize same-sex marriage – where other individuals in a comparable situation would be treated similarly. Compare ECtHR, X and Others v. Austria [GC], app. no. 19010/07, Judgment of 19 February 2013 with ECtHR, Gas and Dubois v. France, No. 25951/07, Judgment of 12 March 2012. In this regard, the European Court of Human Rights found no violation concerning a French decision denying a lesbian woman’s application to adopt her legal civil partner’s biological child because the decision was not based on the applicant’s sexual orientation and the same outcome would have been reached with regard to an unmarried heterosexual couple. ECtHR, Gas and Dubois v. France, Judgment of 12 March 2012, paras. 58-73. This was because French law would have terminated the biological parent’s rights, which the French authorities considered to be against the child’s best interests. Id. at para. 62. The European Court did not compare the applicants’ situation with that of a married couple because marriage is a right protected by the European Convention that “gives rise to social, personal and legal consequences” and it has not interpreted the European Convention to require marriage equality. Id. at paras. 61-73.
In contrast, the European Court found the Austrian adoption system to be discriminatory because it allowed second-parent adoption by the heterosexual partner of an unmarried biological parent, but essentially prohibited such adoption by same-sex couples because it required the biological parent’s legal relationship with the child to be severed by not recognizing more than one parent of the same sex. See ECtHR, X and Others v. Austria, Judgment of 19 February 2013.
A number of International and regional human rights treaties protect the rights to health for all people. See, e.g., International Covenant on Economic, Social and Cultural Rights, art. 12; African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) 21 ILM 58 (African Charter), art 16; European Social Charter (adopted 18 October 1961, entered into force 26 February 1965), ETS 35, arts. 11, 13. Defining the scope of the right to health in its General Comment No. 20, the Committee on Economic, Social and Cultural Rights confirmed that discrimination on the basis of sexual orientation or other status can result in a violation of the right to health. CESCR, General Comment No. 14, The right to the highest attainable standard of health, UN Doc. E/C.12/2000/4, 11 August 2000, para. 18. Additionally, Yogyakarta Principle 17 identifies State responsibilities for ensuring individuals’ right to the highest attainable standard of mental and physical health, while Principle 18 specifically addresses the right of LGBTI persons to be free from medical experimentation and non-consensual treatment.
Discrimination in Health Services
Discriminatory laws, social biases, and lack of education or information may all negatively affect the ability of LGBTI persons to receive appropriate medical care. For example, the criminalization of homosexuality in some countries may prevent LGBTI individuals from safely receiving appropriate sexual health advice and treatment.
Furthermore, LGBTI individuals may be denied other privileges closely tied to the right to health such as access to assisted procreation (see above), health benefits for family members, LGBTI sexual education, and insurance coverage. See, e.g., FXB Center for Health and Human Rights & Open Society Foundations, Chapter 8: LGBTI, Health and Human Rights, Health and Human Rights Resource Guide, 2013. In the case of INTERIGHTS v. Croatia, the applicants challenged the sex-education curriculum on the basis that it was “scientifically inaccurate, gender stereotyped or outright discriminatory on grounds of sexuality and/or family status.” The European Committee of Social Rights found that the inclusion of stigmatizing statements “based upon negative, distorted, reprehensible and degrading stereotypes about the sexual behaviour of all homosexuals” resulted in a violation of the right to protection of health (Article 11(2)) taken with the non-discrimination clause of the European Social Charter. ECSR, INTERIGHTS v. Croatia, Complaint no. 45/2007, Merits, 30 March 2009.
Health Benefits & Insurance Coverage
LGBTI persons may face challenges when applying for health benefits and insurance coverage. In a report to the Human Rights Committee, the UN High Commissioner for Human Right acknowledged that “[l]ack of official recognition of same-sex relationships and absence of legal prohibition on discrimination can also result in same-sex partners being discriminated against by private actors, including health-care providers and insurance companies.” UN Human Rights Council, Report of the United Nations High Commissioner for Human Rights on Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity, UN Doc. A/HRC/19/41, (Nov. 17, 2011), para. 69.
Additionally, the Yogyakarta Principles place the duty on States to take all necessary measures “to ensure equal access, without discrimination on the basis of sexual orientation or gender identity, to social security and other social protection measures” including employment benefits and health insurance. Yogyakarta Principles, principle 13(a).
In the case of P.B. and J.S. v. Austria, the European Court of Human Rights considered whether or not the refusal to extend health and accident insurance to the second applicant because he was the same sex as the first applicant violated the applicants’ rights under the European Convention on Human Rights. The Court determined that because the Government provided no justification for treating same sex couples differently than opposite sex couples in similar situations, a violation of the applicants’ right to be free from discrimination taken in conjunction with the right to private and family life occurred from August 1, 2006 to June 30, 2007. However, the State amended the laws concerning accident and health insurance, taking a neutral approach to the sexual orientation of persons living together and avoiding discrimination on the basis of sexual orientation. Once this new law entered into force on July 1, 2007, the State was no longer in violation of the Convention. ECtHR, P.B.and J.S. v. Austria, no. 18984/02, Judgment of 22 July 2010.
Individuals who have or are perceived to have HIV/AIDS often face discrimination from actors in both the public and private sector. LGBTI individuals in general and specifically those living with HIV/AIDS are particularly vulnerable to discrimination for both their sexual orientation/gender identity and their actual or perceived health condition.
Discrimination due to an actual or perceived health status violates their human rights. The UN Commission on Human Rights has confirmed that that the phrase “or other status” contained in many non-discrimination provisions includes health related statuses such as HIV/AIDS. UN Comm’n on Human Rights, Human Rights Res. 1996/43, UN Doc. E/CN.4/RES/1996/43 (Apr. 19, 1996). The Committee on Economic, Social and Cultural Rights, specifically disallows discrimination in “access to health care and underlying determinants of health, as well as to means and entitlements for their procurement” on the grounds of health status including HIV/AIDS if it “has the intention or effect of nullifying or impairing the equal enjoyment or exercise of the right to health.” CESCR, General Comment No. 14, The right to the highest attainable standard of health, UN Doc. E/C.12/2000/4, 11 August 2000, para. 18.
Areas of particular concern for HIV/AIDS discrimination include employment, access to healthcare, education, sports, and access to transportation. For many years, the UN bodies including the Office of the High Commissioner for Human Rights and the Joint United Nations Programme on HIV/AIDS (UNAIDS) have urged States to take steps to protect the rights of individuals with HIV/AIDS. See OHCHR & UNAIDS, International Guidelines on HIV/AIDS and Human Rights: 2006 Consolidated Version (2006).
MONITORING & ENFORCEMENT
Generally, through the Universal Periodic Review process, States engage in a peer review of all UN Member States’ progress toward the comprehensive implementation of human rights, including freedom from discrimination and equal treatment for all persons regardless of sexual orientation or gender identity.
Additionally, the Human Rights Committee, which monitors States application of the ICCPR, and the Committee on Economic, Social and Cultural Rights, which monitors the application of the ICESCR, review State reports on the implementation of the conventions’ provisions and identify areas for improvement. Through this process, the violation of LGBTI persons’ rights such as freedom from discrimination may be identified and addressed.
The courts and commissions of the regional human rights systems are each empowered to decide complaints concerning alleged violations of LGBTI rights, within the framework of the treaties each body interprets. These bodies include the African Commission and Court of Human and Peoples’ Rights, Inter-American Commission and Court of Human Rights, European Court of Human Rights, and European Committee of Social Rights, each of which has an individual complaints mechanism. In addition, LGBTI rights in the Americas are monitored by the Inter-American Commission‘s Rapporteurship on the Rights of Lesbian, Gay, Bisexual, Trans, and Intersex Persons.
Useful online sources on the human rights of LGBTI persons include the following:
- Council of Europe Commissioner for Human Rights, Human Rights of Lesbian, Gay, Bisexual, Transgender and Intersex Persons (LGBTI).
- ECtHR Factsheets on Sexual Orientation Issues, Gender Identity Issues, and Homosexuality: Criminal Aspects.
- IGLA-Europe, Human Rights and Gender Identity: Best Practices Catalogue (2011).
- International Gay & Lesbian Human Rights Commission, Directory of Organizations Relevant to the Human Rights of LGBT People.
- International Commission of Jurists, Sexual Orientation, Gender Identity and Justice: A Comparative Law Casebook (2011).
- UNAIDS, HIV – Related Stigma, Discrimination, and Human Rights Violations: Case studies of successful programmes (2005).
- UN Office of the High Commissioner for Human Rights, Born Free and Equal: Sexual Orientation and Gender Identity in International Human Rights Law (2012).
- UN Office of the High Commissioner for Human Rights (OHCHR), Free & Equal Campaign.