I. INTRODUCTION
“You never completely have your rights, one person, until you all have your rights.”[1] In the 1970s, Marsha P. Johnson, a torch-bearer for LGBTQIA+ rights in America, spoke these lines in approbation of the gay liberation movement. As of 2023, about 66 nations criminalize consensual same-sex relationships, which extends to activities done in an individual’s private domain. These outrageous laws are implemented using vague terms like ‘gross indecency,’ ‘against the order of nature’ and ‘sodomy’ in their provisions. In extrapolation to that, around 14 countries forbid the identification of transgender persons, by banning ‘cross-dressing’ in their laws, and about 12 countries impose the atrocious death penalty on persons for merely identifying as a member of the LGBTQ community.[2]
Article 1 of the Universal Declaration of Human Rights (UDHR) adopted by the UN General Assembly (UNGA) exclaims the right of all human beings to be born with the inherent rights to equality and dignity.[3] This cherishes all individuals, irrespective of their jurisdiction, to exercise their human rights freely.[4] In the 1994 landmark case of Toonen v. Australia,[5] the Human Rights Committee held that the legal provisions banning same-sex activities between consensual adults violate the International Covenant on Civil and Political Rights (ICCPR). This legally binding judgment was the first ever time, the rights of homosexuals were addressed by a UN body.
In this blog, we will, however, dwell upon the International legal mechanisms that have evolved for the protection of LGBTQ rights.
II. ANALYSIS
2.1. LGBTQA+ Rights and International Legal Frameworks
The historical overview of LGBTQ+ rights in the domain of international law has embraced various turning points. In 1990 the World Health Organization (WHO) took a commendable step towards destigmatizing LGBTQ identity. It detached homosexuality from the WHO list of the International Classification of Diseases. This was important in the international setting to concede that being gay is not equivalent to having a mental disorder. This was followed by the Netherlands being the first nation in the world to legalize same-sex marriage in 2001.[6] Moreover, in 2006 pioneering Yogyakarta Principles were articulated by various human rights experts. The motive behind furnishing these principles was to incorporate matters of sexual orientation into the framework of international human rights.[7]
The United National Human Rights Council (UNHRC) in the year 2011, adopted a resolution titled ‘Resolution 17/19’.[8]This resolution was the first-ever UN resolution to explicitly bring into the picture the rights of the LGBTQ community. This resolution set into force several UN reports detailing LGBTQ rights and the homophobic incidents impeding the same. Further in 2013, a global campaign, called ‘Free & Equal’ was devised by the UN.[9] This public information campaign aimed at creating awareness towards the transphobic and homophobic abuse inflicted on the LGBTQ community. Nonetheless, these above-mentioned international legal mechanisms facilitate in accomplishing ‘reduced inequalities’ i.e., the tenth agenda of the UN Sustainable Development Goals 2030.
The clauses in these international frameworks generally direct towards factors like race, sex, colour or ‘other status,’ as grounds that cannot be used to discriminate against an individual. However, though there is no explicit mention of sexual orientation under UDHR or ICCPR, the author argues that sexual orientation is rather encompassed in ‘other status’ as the grounds for protection. The opposition’s argument of sexual orientation not being a part of the “universally recognized” human rights is erroneous since it contrasts with the very first tenant of human rights law i.e., human rights are inherently universal.[10] Further, the same was recognized by the national courts of Uganda in the year 2008 in the case of Victor Mukasa and Yvonne Oyo v. Attorney General.[11] The court held that the arbitrary arresting of LGBTQ persons on the sole basis of their sexual orientation encroach upon Article 1 of the UDHR. The limited grounds for discrimination as mentioned in the clauses of these frameworks are envisioned to be merely illustrative and not at all exhaustive. The phrase “other status” indicates that the categories in these provisions are open-ended. Further General Comments in both the UN Committee on the Rights of the Child of 2003 and the UN Committee Against Torture, explain that the non-discrimination clause in these international frameworks is inclusive of sexual orientation.[12] Hence, we deliberated on LGBTQ rights in the context of the current international mechanisms.
2.2. Hate crimes and Discrimination against LGBTQ+ Persons.
The rights of LGBTQ+ persons are gravely impeded by roadblocks arising from cultural groundings. In most Asian nations, heteronormativity is considered a norm, and any deviance from it is condemned by society. This idea of social discrimination against homosexuals is buttressed by state-sponsored homophobic practices.[13]
The LGBTQ prisoners are considered by the United Nations Office on Drugs and Crime (UNODC) to be particularly more vulnerable to police cruelty. Further, the revised version of the Mandela Rules formulated by the UN states that for LGBTQ+ prisoners, their self-perceived gender should be respected. As a response to the hate crimes, the countries are taking an active step by training their police officials and sensitizing them about LGBTQ rights. The establishment of a 24/7 hotline service like that by the Brazilian Human Rights Secretariat to deal with LGBTQ- based violence is also ideal.[14]
Further, discrimination towards LGBTQ persons is extended to asylum seekers who are fleeing persecution from their home nation. The vulnerability of refugees is exacerbated by their LGBTQ identity. Thus, the United Nations High Commissioner for Refugees (UNHCR) issued guidelines for encouraging states to incorporate sexual orientation into the domestic asylum legislation of their nations.[15] Further articles 9 and 17 of the ICCPR, provide for the rights of the persons to be protected from any arbitrary intervention and detention from the state. The response to this incessant state-sponsored LGBTQ discrimination thus lies in addressing the legal ambiguity through reviews and repealing the discriminatory provisions.
2.2.2. Lack of Health Services for LGBTQ+ persons
Global health lacks inclusivity of the LGBTQ community. The policies governing health globally are largely cisnormative and heteronormative, discounting the health experiences and needs of LGBTQ+ persons.[16] Article 12(1) of ICESCR (Covenant on Economic, Social and Cultural Rights), states that everyone has the right to enjoy the highest achievable standard of health. The “other status” used in the provision is inclusive of sexual orientation. As a response to this, Norway has formulated government action plans while South Africa has passed national strategies aiming at addressing the health needs and reproductive health rights of LGBTQ. Malta, a European nation has adopted an act namely, the Gender Identity, Gender Expression and Sex Characteristics Act of 2015 which is the first-ever act to protect intersex minors from forced medical surgeries. Further, forced “conversion therapies,” “diagnosis,” and “sterilisation” of trans/ inter-sex persons should be banned by the states.[17]
2.2.3. Curtailment of freedom of expression of LGBTQ+ persons
Article 19 and Article 20 of the UDHR dwell upon the right to freedom of expression and the right to peaceful assembly, respectively. The Indian Supreme Court in the landmark judgment of National Legal Services Authority v. Union of India,[18] stated that the right to freedom of expression is incorporative of the right to freely self-identify oneself. This can be extended but not limited to the words, behaviour, dress, or actions of a person. Nations like Thailand also promulgate LGBTQ rights by decriminalizing laws that make cross-dressing transgender persons unlawful. This calls for a need to safeguard the freedom of expression of LGBTQ persons and repeal laws that serve as anti-propaganda to the wide spectrum of LGBTQ rights.[19]
2.3. Intersectionality in the LGBTQ+ Community
The assumption of LGBTQ+ identity being homogeneous is flawed owing to the multiple intersecting identities it toils with. These multiple identities vary from ethnicity, disabilities, migratory status, poverty, age, and refugee status to factors like religion and belief.[20] South Africa, through its National Intervention Strategy for LGBTQ+ persons, has specifically highlighted the experiences of black lesbian women. These women owing to their multiple intersecting identities are subjected to atrocious corrective-rape actions. The US government also has been adopting several policies addressing the inhibitions posed to transgender women, especially ethnic minorities. Recently, we have also seen great promulgation of the ‘UK Black Pride’ propaganda, which aids in the realization of intersectionality.[21] Consequently, it is of utmost importance that the states take cognizance of the intersectionality of the LGBTQ+ populations.[22]
IV. CONCLUSION
In the above paper, we dwelled upon LGBTQ+ rights and international law. We first discussed the existing International legal frameworks focusing on the incorporation of sexual orientation in its legal provisions. Next, we deliberated on the challenges posed to LGBT+ rights in the international framework. This ranged from discriminatory laws, hate crimes, lack of access to healthcare, and impediments to freedom of speech and expression. Further, we deciphered LGBTQ+ rights to not be read as a homogeneous category but rather as a spectrum of heterogeneous identities in the international global forum. Therefore, it is high time that we view international law from a queer lens and incorporate laws that prohibit homophobia in the global phenomenon.
Author: Kanishka Gunjiyal
Law School: National Law School of India University