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To what extent are sexual orientation and gender identity human rights protected universally by International Law?

To what extent are sexual orientation and gender identity human rights protected universally by International Law?

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An essay for the 2012 Undergraduate Awards (International Programme) Competition by James Toolan. Originally submitted for International Law at University of St. Andrews, with lecturer Dr. Michelle Burgis in the category of International Relations & Politics
An essay for the 2012 Undergraduate Awards (International Programme) Competition by James Toolan. Originally submitted for International Law at University of St. Andrews, with lecturer Dr. Michelle Burgis in the category of International Relations & Politics

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Published by: Undergraduate Awards on Aug 31, 2012
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10/27/2013

 
To what extent are sexual orientation and gender identity human rightsprotected universally by International Law?Key words:
International Law, Human Rights, Sexuality
Abstract
Human rights are purported to be universal by their very nature. However, this doesinclude the human rights of people of different sexual orientations and gender identities. These human rights are marginalised and violated on a daily basis in manyregions of the international system with numerous instances of verbal, psychologicaland physical abuse, torture and, in some cases, death. This essay examines theuniversality of sexual orientation and gender identity human rights by analysingvarious regional systems and United Nations Human Rights Treaty Bodies. Thisessay compares the case law of the European Court of Human Rights with other regional systems and discusses whether the European Court could act as a paradigmfor the rest of the international system. The polemic issues of state sovereignty andcultural relativism in International Law are also explored and the significance of theYogyakarta Principles are addressed. The study argues that there have been positivechanges in the protection of sexual orientation and gender identity human rights;however these changes take time and are a gradual process. It recommends that incertain predominately religious regions it may be more beneficial to enforce thehuman right to privacy rather than apply an enumerated sexuality or gender humanright which would cause great aggravation and would not be adhered to.
 
The Universal Declaration of Human Rights states that “all human beings are bornfree and equal in dignity and human rights.”
1
This essay shall examine theuniversality of this statement in relation to sexual orientation and gender identity andto what extent these human rights are protected by International Law. This shallinvolve a comparison of the development of sexual orientation human rights inregional systems, such as the European Convention of Human Rights (ECHR), withother regional systems where there are persistent violations of human rights based on perceived or actual sexual identity.
2
United Nations Human Rights Treaty Bodiesshall also be assessed in order to analyse the universal application of these rights.Cultural relativism and state sovereignty shall be discussed in relation to the difficultyof implementing these human rights on an international level, with reference to theYogyakarta Principles.
3
 In order to assess to what extent sexual orientation and gender identity rightsare protected universally and why they should be constitutionally protected it isnecessary to clarify these terms: sexual orientation refers to the gender(s) preference(s) that a person is sexually attracted to and gender identity is defined as thegender(s) that a person identifies themselves as.
4
These concepts may not benecessarily inter-
related; however both are regarded as “sexual minorities” within a
hetero-normative international society. This essay shall argue that the violation of human rights based on sexuality or gender identification reflects a contradiction in thefundamental basis of human rights. If human rights derive from the mere fact of beinghuman, then violations based on how one chooses to lead ones private life underminestheir value. This presents serious implications for other marginal minorities who needthe protection of international human rights law most. It is how these minorities insociety are treated that truly tests the human rights regime.
5
 
1
2
O’Flaherty, Michael and Fisher, John:
Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles
(HRLR, vol. 8, 2008) p.207
3
 
4
Thomas, Michael:
Teetering on the Brink of Equality: Sexual Orientation and InternationalConstitutional Protection
(Boston College Third World Law Journal, vol. 17, 1997) p. 367
5
Donnelly, Jack:
Universal Human Rights in Theory and Practice
(USA: Cornell University Press,2003, 2
nd
ed.) p. 226
 
I. T
HE
E
UROPEAN
C
ONVENTION OF
H
UMAN
IGHTS
 Since the 1960s there have been major developments in the protection of humanrights of sexual minorities as homosexual acts have been decriminalised in manydomestic jurisdictions. These advances have occurred particularly, but notexclusively, in Western states. The ECHR presents the most progressive case law onsexual orientation and gender identity human rights within the international system.The European Union has also declared that respect for sexual orientation rights is a prerequisite for states that wish to join the Union through its enlargement process.
6
 Article 14 of the ECHR derives from Article 2 of the UDHR which states that
“the enjoyment of rights and freedoms set forth in this Convention shall be secured
without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national
minority, property, birth or other status.”
7
Although the ECHR does not refer tosexual orientation or gender identity explicitly (nor does any international humanrights treaty), the judgement of the European Court of Human Rights (Court) in
 Marckx v. Belgium, 1979
 
8
reflects the fact that these enumerated categories are
regarded as “illustrative” rather than “exhaustive.”
9
In this case, the Court prohibiteddiscrimination against unmarried mothers even though this was not a specific
category, stating that Article 14 “prohibits discriminatory treatment having at its basisor reason a personal characteristic („status‟) by whi
ch persons or groups of people are
distinguishable from one another.”
10
The all-
inclusive wording of the “other status”
demonstrates that this category can also be used to prohibit discrimination on anygrounds.The decision of the Court in
 Dudgeon v. United Kingdom, 1981
 
11
 
was a “watershedevent in international human rights law for lesbian women and gay men,”
12
as it wasthe first Court hearing of a case involving sexual orientation. The Court noted
6
Lau, Holning:
Sexual Orientation: Testing the Universality of International Human Rights Law
(TheUniversity of Chicago Law Review, vol. 71, 2004) p. 1701
7
8
Case of 
 Marckx v. Belgium
, 74 ECHR 1979
9
Heinze, Eric:
 Equality: Between Hegemony and Subsidiarity
(Review of the InternationalCommission of Jurists vol. 52, 1994) p. 62-63
10
Case of 
 Marckx v. Belgium
, 74 ECHR 1979 at para. 32
11
Case of 
 Dudgeon v. U.K 
, 76 ECHR 1981
12
Sanders, Douglas:
Getting Lesbian and Gay Issues on the International Human Rights Agenda
(18Human Rights Quarterly, Vol. 67, 1996) p. 78

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