LGBT-rights: sexual orientation, gender identity and the human rights

(1)

FACULTY OF LAW Stockholm University

LGBT-rights

- sexual orientation, gender identity and the human rights

Josefine Friman

Thesis in International law, 30 credit points Examiner: Pål Wrange

Stockholm, Spring term 2014

(2)

Acronyms

CAT – Committee against Torture

CEDAW – Committee on the Elimination of Discrimination against Women CESCR – Committee on Economic, Social and Cultural Rights

CRC – Committee on the Rights of the Child ECHR – European Convention on Human Rights ECtHR – European Court of Human Rights HRC – UN Human Rights Committee

ICCPR – International Covenant on Civil and Political Rights

ICESCR- International Covenant on Economic, Social and Cultural Rights ILGA – International Lesbian, Gay, Bisexual, Trans and Intersex Association LGBT – Lesbian, Gay, Bisexual and Transgender

NGO – Non-Governmental Organization

OHCHR – Office of the High Commissioner for Human Rights OSCE - The Organization for Security and Co-operation in Europe UN – United Nations

UDHR – Universal Declaration of Human Rights

UNHCHR – United Nations High Commissioner for Human Rights

(3)

Table of Contents

1 Introduction ... 4

1.2 Purpose and subject of inquiry ... 5

1.3 Method ... 6

1.4 Delimitations ... 6

1.5 Definition of terms ... 7

1.6 Important legal documents ... 8

2 Sexual orientation as a crime ... 9

2.1 Practice of the courts ... 9

2.2 Hate Crimes ... 14

2.2.1 Groups of sexual minorities and hate crimes ... 16

2.3 Prohibition of torture or other inhuman and degrading treatment .. 18

2.4 Death penalty ... 18

2.5 Appraisal ... 20

3 Discrimination ... 21

3.1 “Other status” ... 22

3.2 Fundamental freedoms ... 22

3.3 Discrimination of economic, social and cultural rights ... 29

3.4 Other discriminations ... 32

3.6 Appraisal ... 33

4 Family Rights ... 35

4.1 Civil Partnership ... 35

4.2 Marriage ... 37

4.3 Same-‐sex adoption ... 39

4.3.1 The best interests of the child ... 40

4.3.2 Case Law ... 42

4.3.4 Same-‐sex parents ... 45

4.4 Appraisal ... 46

5 General Conclusions ... 47

6 References ... 51

6.1 Articles ... 51

6.3 Cases ... 52

6.4 Treaties ... 52

6.5 UN documents ... 52

6.6 Web ... 53

(4)

1 Introduction

The human rights situation for lesbian, gay, bisexual and transgender (LGBT) persons is a global issue. There is no region in the world where people are not mistreated on grounds of their actual or perceived sexual orientation and gender identity. In 76 states it is by law a criminal offence to be homosexual.¹ In other states, discriminatory laws and practices of state authorities and society are common if you belong to a group of divergent sexual orientation or gender identity. It is not unusual to be considered a second-class citizen and be denied rights due to one’s sexual preference or the fact that one perceives himself/herself in a way that does not correspond to the general norm. The scope of human rights violations committed against sexual minorities is wide and includes everything from executions, killings, torture, physical, sexual and psychological abuse to discrimination and denying of fundamental rights and freedoms. The threat of the possibility to be exposed to all or any of these violations forces LGBT persons to live in constant fear and prevents them from being accepted for who they are. The right to self-determination and to be recognized by others and by your state as an individual equal to others should apply to every human being irrespective of whom he/she loves or what gender one considers himself/herself to be belong to. The Universal Declaration of Human Rights clearly states that “all human beings are born free and equal in dignity and rights”, the rights shall be enjoyed by everyone according to the principle of universality, which means just that, protection and enjoyment of the rights for all. The international human rights law consists partly of international customary law and of human rights treaties and conventions. Despite the principle of universality sexual minorities are constant victims of violations of these rights. The on-going exclusion of sexual minorities from essential human rights exists both on a macro level: in the international community and domes- tically, and on a micro level for individuals in their homes and working places.

1 "STATE-SPONSORED HOMOPHOBIA - ILGA."

<http://old.ilga.org/Statehomophobia/ILGA_State_Sponsored_Homophobia_2013.pdf>.

(5)

Homosexuality is not a new concept, but the development of the rights for sexual minorities is a fairly recent phenomenon and the jurisprudence has pro- gressed enormously in the last three decades. The fast development is of course considered positive for sexual minorities but the current situation for LGBT persons is by no mean close optimal and these issues are more relevant than ever. The positive developments reaches far from everywhere. In the West we discuss same-sex marriage while in five countries of the world having consensual sex with an adult of the same-sex is an offence punishable by death penalty. Uganda recently passed an extremely controversial Anti Homosexuality act, also known as the anti-gay bill, which increases the oppression on the already highly vulnerable sexual minorities in the country.² In 2011 the European Court of Human Rights found Russia guilty of violating the right to a peaceful assembly when denying a homosexual man to arrange a pride march. Two years later in 2013 Russia passed a federal law prohibiting any distribution of information or promotion of homosexual and non-traditional relationships to minors.

For all these reasons this is a subject that is very relevant to discuss in relation to the international human rights law. In this essay, I will examine and try to evaluate the compatibility of international human rights law and sexual orientation and gender identity. I will do this in three parts starting with the criminalization of homosexuality followed by discrimination of sexual minorities and finally the developing family rights.

1.2 Purpose and subject of inquiry

This essay strives to put sexual orientation in relation to the human rights. The main question for this study is whether sexual minorities are protected by international human rights law. If yes, is the protection effective and sufficient?

Or is there need for more specific international legislation on the subject?

2 Anti-Homosexuality law in Uganda violates human rights and endangers LGBT people –

<http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14275&LangID=

(6)

1.3 Method

The essay will be divided into three main parts to get an overview of the current position of the rights of sexual minorities. This division is made due to the huge differences in development of the rights for sexual minorities all over the world. For that purpose, relevant international instruments will be studied:

International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic Cultural and Social Rights (ICECSR), Universal Dec- laration of Human Rights (UDHR) and the European Convention on Human Rights (ECHR). The purpose is to compare the rights set forth in these instruments with the actual situation for LGBT persons as regards their rights. I will use relevant communications from the UN Human Rights Committee (HRC) and judgments from the European Court of Human Rights (ECtHR) to clarify the present legal position. To examine the rights and their violations with respect to sexual orientation and gender identity I will also use studies published in relevant international law journals and UN documents, for example those from the Office of the High Commissioner of Human Rights (OHCHR). I have essentially avoided the use of articles from NGO’s with a more activist agenda, to keep the material as neutral and scientific as possible, but have in some parts used statistics from a well known and almost yearly updated report from the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA).

1.4 Delimitations

This is a study in international law and focuses on human rights law and more precisely on the rights and violations of rights based on sexual orientation and gender identity. It will focus on sexual orientation and gender identity in relation to specific parts of the international human rights law. The main three areas of attention are criminalization, discrimination and family rights. There are other areas that are relevant to the subject of sexual minorities such as refu- gee law. However, they are not covered in the study due to the need of more precise limitation.

Limitation of the material has also been necessary and therefor the case law consists of communications from the UN Human Rights Committee and

(7)

judgements by the European Court of Human Rights. The international level consists of legal decisions mainly within the UN system. The regional jurisprudence is limited to the Council of Europe and the European Convention of Human Rights and will not examine any parts of the African Charter for Hu- man and Peoples rights or the American Convention on Human Rights or other regional human rights instruments. On national level there are examples in the study from different countries but no specific research on any particular state.

1.5 Definition of terms

There are terms used in this essay that might need some clarifications for the reader to fully comprehend the content. Here is a short explanation of a few terms and the way they are used in the present study.

Sexual orientation refers to a person’s capacity for profound emotional, affec- tional and sexual attraction to, and relations with, individuals of a different gender or the same gender or more than one gender. Heterosexual refers to a person whose affection is directed at a person of the opposite sex. Homosexual refers to a person who is emotionally and/or sexually attracted to persons of the same sex and bisexual when attracted to both sexes. 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, including the personal sense of the body and other expressions of gender, including dress, speech and mannerism. Transgender refers to people who live permanently in their preferred gender, without necessarily needing to undergo any medical transformation. Intersex refers to a person who has genitals, hormonal and physical features that are neither exclusively male nor exclusively female.³

In this study, the terms homosexual and same-sex are used interchangeably, for example: homosexual couple – same-sex couple. Gay refers to a homosexual person of the male or female gender and lesbian of a homosexual female per- son. The acronym LGBT (Lesbian, Gay, Bisexual and Transgender) is used synonymous with the term sexual minorities.

3 "ILGA-Europe Glossary." <http://www.ilga-europe.org/home/publications/glossary>.

(8)

1.6 Important legal documents

There are two documents worth mentioning when discussing human rights law and sexual orientation and gender identity. The first one is the Yogyakarta principles, which are a set of principles developed by a group of human right experts on the application of international human rights law in relation to sexual orientation and gender identity. The principles are intended as an instrument to define the human rights obligations of states concerning these questions and entail recommendations for states on how to implement, promote and protect the rights relating to sexual orientation and gender identity. The principles are comprehensive and intend to fill the gaps where the international human rights law on the subject is not sufficient or inconsistent. The principles cover a wide range of issues such as the universality of the rights, the right to life, the right to privacy and the right to work, in total 29 principles.⁴

There is also an important UN resolution adopted by the Human Rights Coun- cil in 2011 by 23 states voting for, 19 against and 3 abstentions. The resolution recalls the “universality, interdependence, indivisibility and interrelatedness of human rights as enshrined in the Universal Declaration of Human Rights […].

It also underlines that “the Universal Declaration of Human Rights affirms that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set forth in the Declaration…” The resolution further contains an expression of grave concern “at acts of violence and discrimination, in all regions of the world, committed against individuals because of their sexual orientation and gender identity.” ⁵

4 Yogyakarta principles, <http://www.yogyakartaprinciples.org/principles_en.pdf>.

5 Resolution A/HRC/RES/17/19, Human Rights, Sexual Orientaion and Geder identity, 14 July 2011.

(9)

2 Sexual orientation as a crime

One of the multiple layers of the on-going human rights violations committed against sexual minorities is the fact that many states criminalize homosexuality. This means that national legislation prohibits sexual contact between consenting adults of the same sex, so called sodomy laws. As of 2013 there are 76 states, out of 193 UN members, that in their domestic laws criminalize homosexual conduct.⁶ The relevant laws vary in their form and wording. For example prohibiting crimes against “the order of nature” or “morality” and can contain the words “debauchery” or “buggery” or more explicit “penetration per anum”. The penalties applied to this type of crimes ranges between fines, cor- poral punishments and short-term prison sentence up to life in prison, and in extreme cases even the death penalty.⁷ In most cases the relevant penal laws relating to homosexual sex regulate different ages of consent and are discriminatory in that they address only men and not homosexual women.

2.1 Practice of the courts

The European Court of Human Rights (ECtHR) stated for the first time in the case Dugdeon v United Kingdom 1981, that national laws criminalizing certain sexual orientations as incompatible with the ECHR. In the opinion of the Court, this type of laws violated the right to respect for private and family life according to article 8 of the Convention. The complainant in Dudgeon v United Kingdom was a homosexual man from Northern Ireland who claimed that his right to privacy was violated by the criminal code of Northern Ireland which provided in the 1861 Act under sections 61 and 62: “committing and attempt- ing to commit buggery are made offences punishable with maximum sentences of life imprisonment and ten years’ imprisonment, respectively. Buggery consists of sexual intercourse per anum by a man with a man or a woman, or per anum or per vaginam by a man or a woman with an animal”. And also the 1885

6 Supra note 1, page 20-22

7 Report of the UNHCHR, A/HRC/19/41,Discriminatory laws and practices and acts of vi- olence against individuals based on their sexual orientation and gender identity,

<http://www.ohchr.org/Documents/Issues/Discrimination/A.HRC.19.41_English.pdf>.^pages

13-14, also Supra note 5, pages 341-2

(10)

Act, section 11: “it is an offence, punishable with a maximum of two years’

imprisonment, for any male person, in public or in private, to commit an act of gross indecency with another male”⁸. Gross indecency is not legally defined in the section but refers to any sexual act between two males.⁹

Mr Dudgeon had in 1976 been taken to the police station for questioning about some seized documents, personal correspondence and diaries, containing de- scriptions of homosexual activities. The police found the papers when execut- ing a search warrant for drugs in Mr Dudgeons home. For over four hours he was questioned about his sexual life but it did not lead to a prosecution.¹⁰ Mr Dudgeon complained that the law in question made him liable to prosecution and that he experienced fear, suffering and psychological distress as a result of the mere existence of the law. This combined with the questioning about his sexual relations by the police in 1976 resulted in a claim that his right to privacy in article 8 of the Convention had been breached.¹¹

The court concluded that states have the possibility to make restrictions of Ar- ticle 8 if it is in accordance with section 2 of the same article that the interference should be “in accordance with the law” and “is necessary in democratic society”. The aims allowed for restrictions are among others “for the protection of health and morals” or “for the protection of the rights and freedoms of others”.¹² The core question for the court concerning article 8 was if an interference with privacy for achieving the aims at hand is necessary in democratic society. For it to be necessary it has, according to the Court, to be a pressing social need for the interference to be legitimate. The states do have a certain margin of appreciation in these cases but they have to be compatible with the nature of the aim and the nature of the activities that are compromised. Sexual activities are a very intimate aspect of a person’s private life and therefore the reasons for interfering should be particularly serious.¹³ The court must also evaluate the interference is proportionate to the claimed legitimate aim. The

8 Case of Dudgeon v United Kingdom, 1981, paragraph 14

9 Ibid, paragraph 14

10 Ibid, paragraph 33

12 Ibid, paragraph 43-46

13 Ibid, para 48, 51-52

(11)

court sees in this case a change in the attitude of the members of the Council of Europe towards homosexuality and a greater understanding and tolerance and that the majority of states no longer believe there is a need to sanction homosexual activities in criminal codes. There is therefor no longer a pressing social need for maintaining a legislation that makes adult consenting homosexual acts criminal. Concerning the proportionality the court held that the interest of re- taining the law is not as big as the effect the law can have on the life of a homosexual. The government of Northern Ireland provided reasons for maintaining the legislation but these are not in the Court’s view sufficient and the possible consequences of the law for Mr Dudgeon are disproportionate to the aim. The court concludes that Mr Dudgeon suffered and continues to suffer an unjustified interference with his right to respect to his private life and that the provision in the criminal code violates the Conventions article 8.¹⁴

Over a decade later in 1994, the treaty body for the International Covenant on Civil and Political Rights (ICCPR), the Human Rights Committee (the Com- mittee/HRC) addressed the question of legislations criminalising homosexual activities in their communications in the case of Toonen v Australia.¹⁵ The author of the complaint, Mr Toonen, an Australian citizen and a homosexual, gay-rights activist living in the Australian state Tasmania. Mr Toonen claims that his rights according to the ICCPR articles 2.1, 17 and 26 are being violated. He claims that the sections 122 a, c and 123 in the Tasmanian criminal code which criminalize “unnatural sexual intercourse” or “intercourse against nature” and “indecent practice between male persons” which in practice prohibits all forms of sexual contact between homosexual adult men in private are in contradiction with the before mentioned rights. Mr Toonen argues that the sections in the criminal code allows the authorities to investigate very private as- pects of his life and gives the police right to detain him if they have reason to believe he is involved in such sexual conduct as the sections prohibit. He moreover complains about the effects of the sections that could endanger his employment and contribute to constant stigmatization and threats of violence.

He means that the existence of the law in question has harmful impacts on his

14 Supra note, paragraphs 59-63

15 Toonen v Australia, Communication No. 488/1992.

(12)

and other homosexuals’ lives in Tasmania and that it contributes to an increase of the discrimination and violence they are exposed to.¹⁶

The complaint was that the law allows an interference with the right to privacy and that it distinguishes between sexual activity based on sexual orientation and identity, and also between male and female homosexual sex. Sexual activities between women are not illegal according to the sections. Mr Toonen further states that the only acceptable remedy is that these provisions will be repealed.¹⁷

The government of Tasmania denies that there has been any violation of the complainant’s rights under article 17 of the Covenant. The government argues that the law is partly motivated by that it protects the citizens from the spread of HIV/AIDS and justified on moral and health grounds. The State party on the other hand acknowledges that there has been an arbitrary interference with Mr Toonens privacy and that a public health reason cannot justify the contested sections in the criminal code. The State party settles on that the provisions of the law are not reasonable or proportionate in the circumstances. Concerning the question of discrimination of Mr Toonen the State party acknowledges that he has been directly affected by the disputed legislation.¹⁸ The State party and the Government of Tasmania disagree on the question if the legislation consti- tutes a violation of Mr Toonens rights.

The Committee examines on the merits if Mr Toonen has been a victim of an unlawful or arbitrary interference with his privacy contrary to article 17 of the Covenant and whether he has been discriminated against his right to equal protection of the law according to article 26 of the Covenant. The Committee first- ly notes that consensual adult sex is covered by the concept “privacy” and that Mr Toonen is personally affected by the provisions in the Tasmanian criminal code, regardless of whether the law is enforced or not. There is no guarantee that the authorities will not enforce the law and that persons will not be prose- cuted in the future. The mere existence of the current provisions directly inter-

16 Supra note 15, paragraphs 1, 2.1-2.2, 2.4, 2.7

17 Ibid, paragraph 3.1

18 Ibid, paragraphs 6.1-6.14

(13)

feres with Mr Toonens privacy. To the question if the interference is arbitrary the Committee answers that even if an exception from the article is provided for by law it should be in accordance with the aims and purposes of the Cove- nant and reasonable in the circumstances. The sought effect must be in proportion to the interference and necessary in the given situation to be considered reasonable.¹⁹ The Committee does not accept the health and morals aim which the Government argues as a reason for the criminalizing of homosexual sex.

The aim the Government uses as justification for the provisions is that it will minimize the spread of HIV/AIDS. The criminalisation could, according to the Committee, in fact have the opposite effect by making the persons in risk for infection not seek appropriate help. The Committee does neither accept that the question of morals is an entirely domestic concern and notes that Tasmania is the only state in Australia that have not repealed laws that criminalize homosexual conduct. The interference is thus not reasonable and it is arbitrary.²⁰

The Committee gives an interpretation of where the term “sexual orientation”

fit in under the Covenants article 2 paragraph 1 and article 26 paragraph 1 and finds that it should be covered under the wording “sex” and not under “other status”. And concludes that there have been violations of Mr Toonens rights under the ICCPR articles 17.1 and 2.1 and that the effective remedy would be to repeal the disputed sections in the Tasmanian criminal code. The Committee however does not see a reason to examine a possible violation under article 26 of the Covenant.²¹ The Committee rejected arguments that it is only the risk of being arrested that was discriminatory and held that it is the existence of the provisions that violates the Covenant.²²

The Committee however leaves some questions unanswered. One is the issue of morality as a legitimate aim for legislation of this kind. It uses the fact that the rest of Australia has decriminalised same-sex acts as an argument for the

19 Supra note 15, paragraphs 8.1-8.3

20 Ibid, paragraphs 8.5-8.6

21 Ibid, paragraphs 8.7,9-11

22 Milon, A., and Cowell, F, Decriminalisation of Sexual Orientation through the Universal Periodic Review, page 343

(14)

proposition that there is no need for such a legislation due to morality reasons in Tasmania. That makes it more difficult to argue for a repeal of criminalizing laws in states that have a homogenous negative view on adverse sexual orientation.²³

The ECtHR has had several cases since the one of Dudgeon v United Kingdom concerning the violation of privacy rights in relation to sexual orientation and gender identity, many of which is treated in conjunction with the not autono- mous article 14 of non-discrimination. The HRC on the other hand has not had a chance to address the question of sexual orientation in relation to the right to privacy in a communication since the case of Toonen v Australia.²⁴

2.2 Hate Crimes

A hate crime is a crime motivated by intolerance towards a certain group. For a criminal act to qualify as a hate crime, it must meet two criteria: the act must be a crime under the criminal code of the legal jurisdiction in which it is committed, the crime must also have been committed with a bias motivation. Bias motivation means that the perpetrator chose the victim of the crime on the basis that the he or she belongs to a certain group. Groups can share specific charac- teristic that are protected, such as race, religion, ethnicity, language or sexual orientation.²⁵

The criminalization of same-sex activities is not only notable on the micro level, regarding the risk of prosecution and the direct effects on a persons life and interference with his or hers privacy. It has also effects on the general perception of homosexuality and fuels intolerance and discriminatory violence against LGBT-persons in society. There is a connection between the criminalization of sexual orientation and homophobic violence, including violence committed by state actors. And there is also a tendency not to prosecute hate crimes motivated by homophobia. In states where the laws criminalizing homosexuality are enforced and sanctioned they have the effect that it “reinforces

23 Supra note 22, pages 343-344

24 Fisher, J., and O'Flaherty, M., Sexual Orientation, Gender Identity And International Human Rights Law: Contextualising The Yogyakarta Principles, pages 220-222

25 OSCE, Hate Crime, <http://www.osce.org/odihr/66388>.

(15)

existing prejudice and legitimizes community violence and police brutality directed at affected individuals”²⁶ The stigmatization that comes with the sodomy laws makes LGBT persons more vulnerable to hate based violence and threats.²⁷

Hate crimes with homo- and transphobic motivation consist of both physical and psychological violence and attempts to punish the persons for their differ- ence. The attacks can be of a more organized nature and then committed by people belonging to a group of extremists, they can be religious, political or military extremist, such as nationalists. There are different victim groups of bias-motivated crimes but the abuse directed at sexual orientation and gender identity persons seems to be extra vicious and there are frequent reports of killings with homophobic motivation. Elements of brutality, torture, mutilation and castration are not uncommonly noted. For example the Special Rapporteur on extrajudicial, summary or arbitrary executions has reported about at least 31 murders of LGBT persons in Honduras in a time period of 18 months. Among these 31 cases there was one murdered transgender woman who was found dead in a ditch, her body showed signs of burns and rape and severe stoning to the head to the grade of unrecognition. LGBT persons are also reported victims of so called honour killings.²⁸

Hate crimes with bias-motivated violence directed at sexual minorities is a global problem and reported in all regions. In the European Union 988 cases of this kind of crimes were reported in 2007. They are reported in every member state of the Council of Europe. In the USA it is the second most reported mo- tive for hate crimes after racial-biased violence.²⁹ In 2012 there were 1,318 reported hate crime offenses based on sexual-orientation bias in the United States.³⁰ The Organization for Security and Co-operation in Europe (OSCE) has gathered information from their member states and NGOs in the region to examine the figures of reported hate crimes motivated with bias against LGBT-

26 Supra note 7, page 14

27 Ibid.

28 Ibid, page 9

29 Ibid, page 11

30 FBI, 5 Nov. 2013, <http://www.fbi.gov/about-us/cjis/ucr/hate-crime/2012/topic- pages/incidents-and-offenses/incidentsandoffenses_final>.

(16)

persons. OSCE has 57 member states in Europe, Central Asia and Northern America. The reporting from the states, were there are any official figures, differs from the number of such crimes reported by NGOs which reports of more hate crimes against LGBT people. In addition, the official number reported by member states varies a lot. For example, as regards 2012 Finland reported 67 hate crimes, out of which 54 contained physical assaults, Germany reported 186 bias motivated hate crimes against LGBT persons, out of which 42 involved violence. Sweden provided official figures of 718 reported hate crimes against people based on their sexual orientation and 41 against transgender persons.³¹

2.2.1 Groups of sexual minorities and hate crimes

Transgender persons tend to be perceived as breaking the general binary gen- der norms. This makes them especially vulnerable to abuse and violence. One transgender person is killed every month in the United States. There has been reportings of a certain amount of cruelty in the violence directed at transgender persons, such as forced oral-sex, burning with cigarettes and beating with different types of weapons.³² The common perception is that there are only two sexes and to break those fundamentally instated norms is often perceived as very provocative. The fact that transgender persons defy the constitution of two genders appears to put them in a very exposed and potentially dangerous position. The way transgender persons perceive their gender identity challenges our most basic classifications of people and that makes them misunderstood and extra vulnerable.³³ There has been response to periodic reports from the HRC questioning their criticism of police violence directed at transgender persons, questioning that this group is not mentioned in the Covenant. The Committee insists that the groups of sexual orientation and gender identity minorities are included in the protection of the rights of the treaty, and has addressed this in a number of its periodic reviews. It criticises states for police violence and hostility towards this group and other authorities unwillingness to act against it, both

31 Hate Crimes In The OSCE Region: Incidents and Responses: Annual Report for 2012

<http://tandis.odihr.pl/hcr2012/pdf/Hate_Crime_Report_full_version.pdf#page=80>.

(17)

in legislation and refusal of investigation and prosecution of hate crimes directed at sexual minorities. It further recommends training and education to address these issues. The number of hate crimes committed, physical and psychological abuses, does not at all correspond to the number of investigations of the crimes. The information and protection of this group is substandard.³⁴ There are figures from a project about transgender-biased murders showing 680 murders of transgender people in 50 countries in a three year time period from 2008 to 2011.³⁵

There is a tendency of a certain sort of violence directed at lesbians, the vio- lence aims to cure or correct them from homosexuality. The violence often contains sexual elements such as “curative” rape to correct her sexuality. This sort of abuse is common in South Africa and the perpetrator is often known by the victim. Both homosexual and transgender women are in greater risk of being victims by discriminatory violence due to their additional gender inequality. In this way, they suffer from a double discrimination.³⁶ Reporting of lesbians being attacked raped and even forcibly impregnated by rape come from several states. The Committee on the Elimination of Discrimination against Women (CEDAW) has expressed grave concern about the number of reported sexual offences against women on account of their sexual orientation.

The Special Rapporteur on violence against women has reported incidents of gang rapes, family violence and murders experienced by lesbian, bisexual and transgender women in a number of countries. These groups of women tend to be at greater risk of being victims of rape and other sexual violence. There has also been reporting of murders specially directed at the group of lesbians in South Africa, there are cases of alleged stoning, beating and stabbing which has caused the death. ³⁷ Lesbian and bisexual women are more likely to be assaulted in their home while homo- and bisexual men tend to be likelier victims of abuse in a public environment by unknown perpetrators.³⁸

34 Supra note 24, pages 221,222

36 Ibid.

37 Ibid, pages 10-11

38 Ibid, page 11

(18)

2.3 Prohibition of torture or other inhuman and degrading treat- ment

The groups of sexual minorities are overrepresented as victims of torture and other forms of inhuman and degrading ill treatment. In detention environments, police stations and prisons, there is a hierarchy and LGBT persons are perceived to be at the lowest rank of the order and especially targeted of the violence are transgender persons. There is also a tendency of lesser protection from the police and prison staff for this group, which makes them extra vulnerable. The type of abuse in this environment lashes from threats of sexual abuses, to actual sexual abuse, medically unmotivated examinations of the anus, isolation and the intentional beating of transsexual women who are internation- ally beaten at breast implants to release toxins in their bodies. ³⁹

The Committee against Torture addressed the matter in a General Comment.

Accordingly, “The protection of certain minority or marginalized individuals or populations especially at risk of torture is a part of the obligation to prevent torture or ill-treatment. State Parties must ensure that, insofar as the obliga- tions arising under the Convention are concerned, their laws are in practice applied to all persons, regardless of […] gender, sexual orientation, transgender identity…”⁴⁰

2.4 Death penalty

There are five countries in the world where the death penalty is imposed for homosexual activities between consenting adults. They are Iran, Mauritania, Sudan, Saudi Arabia and Yemen. Also certain jurisdictions in Nigeria and So- malia can enact the death penalty for crimes of homosexuality.⁴¹ In addition to all the human rights violations caused by provisions criminalizing same-sex conduct, the death penalty violates the right to life protected in all human rights instruments including article 6 of the ICCPR. The right to life is not seen as jus cogens, and state parties are allowed to prescribe the death penalty if they have not acceded to the second Optional Protocol to the ICCPR, binding them abol-

40 CAT/C/GC/2/CRP, Committee against Torture, General Comment no. 2 para 21.

(19)

ish the death penalty within their jurisdiction. Article 6 of the ICCPR states that the death penalty may only be used for the most serious crimes, and sexual relations between consenting adults are not normally considered as a serious crime. The use of death penalty in such cases is therefore a clear violation of the right to life. States that are parties to the ICCPR and use the death penalty for these crimes do this in contradiction to their international obligations.⁴² Following provisions from two countries criminal codes exemplify how legislation that criminalize homosexual acts and provides the death penalty can be formulated:

In Mauritania, the penal code contains the following provision:

“Article 308. - Any adult Muslim man who commits an

indecent act or an act against nature with an individual of his sex will face the penalty of death by public stoning”.⁴³

In Iran, the Islamic penal code from 1991 states:

Article 108: Sodomy is sexual intercourse with a male.

Article 109: In case of sodomy both the active and the passive persons will be condemned to its punishment.

Article 110: Punishment for sodomy is killing; the Sharia judge decides on how to carry out the killing.

[…]

Article 121: Punishment for Tafhiz (the rubbing of the thighs or buttocks) and the like committed by two men without entry, shall be hundred lashes for each of them.

Article 122: If Tafhiz and the like are repeated three times without entry and punishment is enforced after each time, the punishment for the fourth time would be death.

Article 123: If two men not related by blood stand naked under one cover without any necessity, both of them will be subject to Ta’azir of up to 99 lashes.

<http://old.ilga.org/Statehomophobia/ILGA_State_Sponsored_Homophobia_2013.pdf>.

, page 52

(20)

Article 124: If someone kisses another with lust, he will be subject to Ta’azir of 60 lashes.⁴⁴

2.5 Appraisal

The core human rights are intended to be enjoyed by all without any distinc- tion; for example the right to life, the right to security and liberty of person, the right to be free from torture, right to equality before the law and the right to self-determination. The enforced and also the unenforced sodomy laws main- tain and empower motives for harassment and ill treatment of sexual minorities. These rights are provided to protect everyone, including people of diverse sexual orientation and the criminalizing legislation empower the authorities to detain people on loose grounds, sometimes just to torment them. To live in constant fear of being abused, harassed or detained is a violation of the general human rights in it self. It limits your possibility to live your life fully and express who you are. It also limits the chance for any affected individual from exercising his/her right to self-determination.

<http://old.ilga.org/Statehomophobia/ILGA_State_Sponsored_Homophobia_2013.pdf>, page 70

(21)

3 Discrimination

A core problem for the compatibility of sexual orientation with the human rights is discrimination. It is an obstacle for full enjoyment of all human rights.

Non-discrimination is therefor a key concept in realisation of human rights for sexual minorities. Non-discrimination articles exist in all of the relevant international human rights conventions, for example in the UDHR article 2, ICCPR article 2, ICESCR article 2, CRC article 2 and ECHR article 14.

One question to be answered is whether sexual minorities are included in the non-discrimination articles and to what extend they are protected? The HRC has in its survey of the member states’ performance has encouraged govern- ments to “guarantee equal rights to all individuals, as established in the Cove- nant…without discrimination on the basis of their sexual orientation”.⁴⁵ The HRC and the CESCR have both repeatedly called on states to repeal laws dis- criminating sexual minorities and encouraged legislation that includes sexual orientation as a ground for prohibited discrimination. A constitutional protection against sexual orientation discrimination currently exists in six states.

Other states have similar protection in regional constitutions or in general dec- larations on discrimination.⁴⁶

Discrimination can be defined as differential in treatment that is not objective and reasonably justified. To be justified the differential treatment must pursue a legitimate aim. The aim sought also has to be in proportion to the interference of inequality in treatment.⁴⁷ Sexual orientation and gender identity biased discrimination can be found in many different levels of society and exist in all regions. This chapter will examine the possible protection of sexual minorities against discrimination and focus on two areas, namely the fundamental freedoms including freedom of expression and the right to a peaceful assembly. It also examines its compatibility with social, economic and cultural rights such as the right to employment and health.

45 Supra note 7, page16

46 Ibid.

47 Trispiotis, I.. Discrimination and Cival Partnerships: Taking “Legal” out of Legal Recogni- tion, page 4

(22)

3.1 “Other status”

The international human rights treaties provide protection from discrimination on the basis of “race, colour, sex, language, religion, political or other opin- ion, national or social origin, property, birth or other status”.⁴⁸ The question is if there is a protection of discrimination on the grounds of sexual orientation and gender identity in these articles. The grounds of discrimination referred to above and listed in article 2.1, ICCPR are not exhaustive. The formulation is open with intention to leave room for grounds that are not specifically mentioned in the Covenant. By using the expression “or other status” the drafters made it possible to interpret a prohibition on grounds such as age, disability, health status, sexual orientation and gender identity.⁴⁹

The Human Rights Committee pointed out in the above-mentioned case of Toonen v Australia that sexual orientation as a ground for discrimination is protected under the article, but under the prohibition of discrimination on the grounds of “sex”, and therefor are protected under both article 2.1 of enjoyment of the covenant rights and under article 26.1 for equality before the law.

The HRC has been criticised for placing sexual orientation in the “sex” catego- ry because that relates to the inequality between men and women and that is a different type of discrimination than the one of sexual orientation. On the other hand, the discrimination can be argued to be based on the fact that people think that divergent sexual orientation and gender identity defies the classic perception of gender.⁵⁰

3.2 Fundamental freedoms

An important aspect in accessing recognition of sexual diversity and realisation of rights for sexual minorities is the possibility to speak up and be able to express your identity. LGBT people and human rights defenders constantly try to raise awareness of the on-going injustice, abuse and discrimination suffered by groups because of their perceived or actual sexual orientation and gender iden-

48 UDHR article 2, ICCPR article 2.1, 26, ICESCR article 2, CRC article 2 and ECHR article 14. 49 Supra note 7, page 4

(23)

tity and work hard to put LBGT-rights on the human rights agenda. It is not uncommon that states discriminate sexual minorities through their legal practice by prohibiting their citizens to exercise their political rights and freedoms.

In states were it is a criminal offence to be homosexual, these rights are suppressed as a direct consequence of the criminalization, and the fear of prosecution or abuse. The freedom of thought, opinion, expression and right to a peaceful assembly and association and also the individuals right to democratic participation are called the fundamental freedoms. They are a keystone in real- ising democracy in any society and are all declared in the UDHR, articles 18- 21.⁵¹

But there are other ways than criminalization for a state to limit the LGBT persons’ possibility to enjoy these fundamental freedoms and rights. In the ICCPR these rights are protected as right to hold opinion and the freedom of expression in article 19 as well as by the right to peaceful assembly in article 21. In the ECHR, these rights are protected in article 10 and 11 of freedom of expression and right to peaceful assembly.

In the case of Alekseyev v Russia, the ECtHR extended their jurisprudence of LGBT rights in relation to discrimination of homosexuals, as they found Rus- sia guilty of violating a homosexual man’s right to peaceful assembly. The applicant, Mr Alekseyev, a gay rights activist, claimed a violation of his rights as he had been refused permission to organise and hold a Pride march in Mos- cow in 2006. The applicant had been denied permission by the mayor on the grounds of public order, for the prevention of riots, the protection of health and morals and protection of freedoms of others. When the applicant instead tried to get permission for a picket on the same date he was again refused on the same grounds. He was not only denied the permission, he was also met with hostility and the mayor instated a working group with the instructions “to take effective measures for the prevention and deterrence of any gay-oriented pub- lic or mass actions in the capital city”.⁵² The following two years the authori-

51 Universal Declaration of Human Rights, <http://www.un.org/en/documents/udhr/>

52 Johnson, P., Homosexuality, Freedom of Assembly and the Margin of Appreciation Doctrine of the European Court of Human Rights: Alekseyev v Russia, page 579

(24)

ties continued to refuse the applicant permission to hold a pride march and pickets on the same grounds. Mr Alekseyev made numerous challenges of the decisions in domestic courts without any success.⁵³

He claimed violations of articles 11,13 and 14 of the Convention. The grounds of the claims were that the refusal of permission to hold a pride march or a picket was not in accordance with the law, not pursued any legitimate aim and had not been necessary in democratic society. The Government replied that they had acted according to law and within their margin of appreciation. The Government held that the legitimate aims for the refusal were protection of safety and prevention of disorder, protection of morals and rights and freedoms of others. The State party supported this aims with the fact that several religious groups had made hostile statements which indicated a safety risk if the march or picket was allowed.

The Court unanimously found that the applicant had suffered a violation of his right to a peaceful assembly, article 11, based on that banning the pride marches did not correspond to a pressing social need and was not necessary in a democratic society. The Court also found Russia guilty of violating the right to an effective remedy, article 13. The applicant had not received the decisions about permission before the dates of the events were planned to take place, for organisers of public events the timing is of great importance and thus he suffered a violation of his right to an effective remedy. The Court unanimously found that the Russian Federation had violated article 14, in conjunction with article 11 of the Convention.

The applicant claimed that the main reason he was denied the permissions was the fact that he is homosexual. The Government on the other hand claimed that the restrictions was not discriminatory, they were necessary.⁵⁴ The Court recalled the fact that a violation solely based on article 14 is not possible but in conjunction with other articles. The ECtHR acknowledged that the reason for the ban of the demonstrations was disapproval from the authorities of activities

54 Ibid, page 578-592

(25)

promoting homosexuality. The Court also recognized the publicly declared strong personal opinions stated by the mayor of Moscow as a confirmation of discrimination based on sexual orientation. The Court recalled that sexual orientation is a protected ground of discrimination by the Convention and concluded that the applicant had suffered discrimination as regards his right to a peaceful assembly, articles 14 and 11 of the Convention.⁵⁵

This judgement is interesting in more than one way. In a previous judgement of a similar case about the right to peaceful assembly in accordance with article 11 and sexual orientation, Baczkowski and others v Poland, the Court ruled on the unlawfulness of a ban of a similar manifestation of equality. The Court did not accept that the authorities based their decision on the national Road Traffic act to ban the march, a legilation intended for politically neutral events such as marathons and races. It did not go further into if the restriction was legitimate or necessary in democratic society. In the same case, the Court also empha- sised the importance of pluralism in society, to recognize and respect diversity.

It underlined that this was not restricted to political parties but also groups with other purposes.⁵⁶

In the later case of Alekseyev v Russia the Court did not focus on whether the ban was unlawful or the interference was legitimate but directly asked the ne- cessity question: “irrespective of the aim and the domestic lawfulness of the ban, it fell short of being necessary in a democratic society, for the reasons set out below…”.⁵⁷ This is a clear expansion of the jurisprudence of article 11 of the Convention and has implications for states that wants to limit the freedom of expression or assembly for sexual minorities, for even if it is in accordance with law, it is now less likely to pass the necessity test. The judgement also implies that the legitimate aims do not automatically justify restrictions of fundamental freedoms for sexual minorities. The Court clearly rejected the Gov- ernment’s use of public safety as an argument for legitimate interference with the right. The Government had claimed that it was not possible for public au-

55 Case of Alekseyev v Russia, 2010, paragraph 109

57 Supra note 55, paragraph 69

(26)

thorities to guarantee the safety of the participants and that the security risks were to high. The Court stated that the mere risk is insufficient to ban an event and that the concerned authorities must evaluate posed threats or risks to be able to take necessary measures to secure the public and participants.⁵⁸ The Court answered the arguments of public safety aims with that the risk cannot be so severe that the whole event had to be banned, let alone three years in a row. If the risk of disturbance, in form of possible confrontation from opposing groups, was decisive for banning of demonstrations there would be very hard to get permission for groups to express any opinion. It lies in the nature of opinions that others oppose them.⁵⁹ This is a big step for sexual orientation in relation to the fundamental freedoms, because now the states have an expressed responsibility to counteract the possible threats of violence made against LGBT persons instead of depriving them their rights. This corresponds to a recommendation from the Committee of Ministers of the Council of Eu- rope that states: “Member states should ensure that law enforcement authori- ties take appropriate measures to protect participants in peaceful demonstrations in favour of the human rights of lesbian, gay, bisexual and transgender persons from any attempts to unlawfully disrupt or inhibit the ef- fective enjoyment of their right to freedom of expression and peaceful assem- bly.”⁶⁰ The Court uses the threats from extremist religious groups⁶¹ as an example and emphasizes that the correct thing would be to prosecute and hold the ones making threats responsible instead of banning the event. The Court suggests that authorities endorse homophobic threats like these if it does not respond sufficiently and oppose them. However the court finds that the argument of public safety is in any way subsidiary when considering the statements made by public figures, which imposes a moral objection to homosexuality.⁶²

The jurisprudence on sexual minorities from the ECtHR has up until this case been very focused on the right to privacy. The Court has in many cases ruled on article 8, with or without conjunction of article 14. This might not only be

59 Supra note 55, paragraph 77

61 For example in the case of Alekseyev v Russia: a Mumslim cleric from Nizhniy Novgorod who reportedly said that homosexuals must be stoned to death.

(27)

considered as positive direction of the jurisprudence, it affirms and recognizes the rights for LGBT persons in the privacy of their own homes, for example concerning the criminalization of consensual same-sex activities. This distinc- tion between private and public sphere can be used as an argument by states that want to keep elements of sexual orientation and gender identity suppressed and not publicly spelled out. For this reason the judgment of Alekseyev v Rus- sia takes an important step forward when confirming the significance of the right to a peaceful assembly for LBGT people. It underlines the importance of not preventing open debate about sexual minorities and that upholding of morals is no justification to exclude this debate from the public sphere. Also the Court recalls that there is no scientific proof that public discussion about these matters are in any way harmful for children or vulnerable adult as the Govern- ment in this case claims. Through this argumentation the Court extended the protection for sexual minorities to apply also to public rights. Restriction of such rights cannot be justified on the grounds of protecting public morality.⁶³

A Third argument for justification of the ban was made both by the decision- making authorities and by the State party, that the events would promote homosexuality and therefor not be compatible with the religious groups in Rus- sian society. They claimed that the applicant’s right to a peaceful assembly would have to be restricted in favour of protecting the rights and freedoms of others, in this case freedom of religion. The authorities argued that “the gay parades would be perceived by believers as an intentional insult and a terrible debasement of their human dignity”.⁶⁴ The Court did not give these arguments any support and placed no higher grade of protection for religion over rights of sexual minorities and highlighted what they stated in the earlier case of Bacz- kowski v Poland that democracy not only means the prevalence of the majority but stands for pluralism and tolerance, and should not let the larger group, in this case religious, dominate and use its power to suppress a minority, in this case sexual minorities.⁶⁵

63 Supra note 52, page 587-588

64 Ibid, page 588

65 Ibid, page 588-589

(28)

The response to the Court’s judgement in the case of Alekseyev v Russia is not considered positive by all. The criticismis that the Court tends to continue to interpret the Convention as partially applicable when dealing with human rights and homosexuality rather than promote a more universal approach. The ECHR jurisprudence on the issue has over the last twenty years definitely pro- gressed and narrowed member states margin of appreciation in questions concerning restrictions of rights for sexual minorities but it is inconsistent at times.

The Court balances between the margin of appreciation of the states and the rights of the complaining individuals and that leads to diverging results. The jurisprudence is also criticizedfor being inconsistent in the way that the Court places great significance in the European consensus in the determination of a states margin of appreciation. This means that where there is lack of consensus the margin of appreciation is wider for example in the question of right to same-sex marrigae. The Court thus places much weight in that the general consensus of Europe is to recognize LGBT people and their right to freedom of expression and assembly, leading to the result that it found Russia guilty of a violation in the Alekseyev case.⁶⁶ But in the very same case the Court makes a contradicting statement:

“The Court further reiterates that it would be incompatible with the underlying values of the Convention if the exercise of Convention rights by a minority group were made conditional on its being accepted by the majority. Were this so, a minority group's rights to freedom of religion, expression and assembly would become merely theoretical rather than practical and effective as re- quired by the Convention…”⁶⁷

So the Court bases its conclusion about a violation of article 11 on consensus of the majority of states in Europe but then states that it is incompatible with the values of the Convention to argue a compromised right of a minority based on the opinion of a majority. The Court has in previous case law proved to act as a legal reformer willing to recognize rights of minorities despite there is a lack of consensus from the majority of the contracting states.⁶⁸

67 Johnson, P.. Homosexuality, Freedom of Assembly and the Margin of Appreciation Doctrine of the European Court of Human Rights: Alekseyev v Russia, page 591

68 Ibid, pages 591-592