Sexual orientation, an enduring emotional, romantic, sexual or affectional attraction to another person, exists along a continuum from exclusive homosexuality to exclusive heterosexuality and includes various forms of bi=sexuality. Independent of sexual orientation are persons identified as transgender, meaning their gender identity (male female, transgender, neither or both) or gender expression does not match their assigned sex. Regardless of these differences in definition, persons with these distinctions (often referred to collectively by the acronym LGBT, i.e., lesbian, gay, bi-sexual, transgender) are often subject to the same violation of their human rights.
Sexual orientation is a relatively recent notion in human rights law and practice and a highly controversial subject in politics. Lesbians, gays and bi-sexuals do not claim any “special” or “additional rights” but are guaranteed the same rights as those of all other persons. The main principles guiding the rights approach to sexual orientation relate to equality and non-discrimination.
While the human rights legal framework does not refer directly to discrimination based on sexual orientation, it does prohibit discrimination on the basis of sex. In 1993 the UN Commission on Human Rights declared that the prohibition against sex discrimination in the International Covenant on Civil and Political Rights (ICCPR) includes discrimination on the basis of sexual preference.
Rights at Stake
Lesbian, gay, bi-sexual and transgendered (LGBT) persons are frequently denied – either by law or practices – basic civil, political, social and economic rights. The following violations have been documented in all parts of the world:
- Equality in rights and before the law: Through special criminal provisions or practices on the basis of sexual orientation, in many countries lesbians, gays and bisexuals are denied equality in rights and before the law. Often laws maintain a higher age of consent for same sex relations in comparison with opposite sex relations.
- The right to non-discrimination and freedom from violence: Sexual orientation is usually denied by omission from anti-discrimination laws, constitutional provisions, or their enforcement.
- The right to life : In some states the death penalty is applicable for sodomy and other same-sex behaviors.
- The right to be free from torture or cruel, inhuman or degrading treatment: Police practices in investigations or detention often violate this right in the case of lesbians, gays, bisexuals, and transgender persons.
- Arbitrary arrest: In a number of countries individuals suspected of having a homo/bisexual identity are subject to arbitrary arrest.
- The freedom of movement: In many countries same-sex relationships are not recognized and couples are denied entry.
- The right to a fair trial is often affected by the prejudices of judges and other law enforcement officials.
- The right to privacy is denied by the existence of “sodomy laws” applicable to lesbians, gays, bisexuals, and transgender persons even if the relation is in private between consenting adults.
- The rights to free expression and free association may either be denied explicitly by law, or denied in practice because of the homophobic social climate.
- The practice of religion is usually restricted, especially in the case of religions advocating against homosexuality.
- The right to work is the most affected among the economic rights, many lesbians, gays, bisexuals and transgender person being fired because of their sexual orientation or discriminated against in employment policies and practices.
- The rights to social security, assistance and benefits, and as a result the right to an adequate standard of living, are affected, for example persons have to disclose the identity of their spouse.
- The right to physical and mental health is at conflict with discriminatory policies and practices, some physicians’ homophobia, the lack of adequate training for health care personnel regarding sexual orientation issues or the general assumption that patients are heterosexuals.
- The right to form a family is denied by governments by not recognizing same sex families and by denying the rights otherwise granted by the state to heterosexual families. Children can also be denied protection against separation from parents based on a parent’s sexual orientation. In some countries lesbian, gay and bisexual couples and individuals are not allowed to adopt a child, even in the case of the child of their same-sex partner.
- The right to education: lesbians, gays, bisexuals and transgender students may be denied education because of an unsafe climate created by peers or educators in schools.
The core legal obligations of States with respect to protecting the human rights of LGBT people include obligations to:
- Protect individuals from homophobic and transphobic violence.
- Prevent torture and cruel, inhuman and degrading treatment.
- Repeal laws criminalizing homosexuality.
- Prohibit discrimination based on sexual orientation and gender identity.
Safeguard freedom of expression, association and peaceful assembly for all LGBT people.
Related Human Rights Documents
- International Covenant on Civil and Political Rights (ICCPR, 1966)