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MAFS 015 Contemporary Issues in International

Law

International Human Rights Law on Sexual


Orientation and Gender Identity: A
comparative Analysis between European
and Inter-American Standards

BYL NOYA FLORENTINO


MA in Foreign Service
What is International Human Rights Law?

International human rights law (IHRL) creates a set of legal responsibilities for states in their
treatment of individuals within their state boundaries. States, however, voluntarily agree to these
limitations on their sovereignty in order to uphold these globally held ideals.

The main sources of IHRL are:


1. treaties, which are legally binding agreements between states;
2. customary law, which includes consistent conduct of states due to the belief that the conduct is legally
required;
3. general principles of law which are found in most state domestic legal systems; and
4. decisions made by judicial bodies. IHRL serves as the way in which individuals and states can ensure that
certain fundamental rights are respected and upheld by state governments.

Source: outrightinternational.org
IHRL link to Sexual Orientation and 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.”
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.

• The right to equality and non-discrimination are core principles of human rights, enshrined in the United
Nations Charter, The Universal Declaration of Human Rights (UDHR) and human rights treaties.
• The equality and non-discrimination guarantee provided by international human rights law applies to all
people, regardless of sex, sexual orientation and gender identity or “other status.”

Source: ohchr.org
Sexual Orientation and Gender Identity

Discrimination on grounds of sexual orientation and gender identity (SOGI) is prohibited by international
human rights instruments, which most states have ratified. Nevertheless, persons with a sexual orientation or gender
identity that does not conform to – perceived - majority norms face discrimination, marginalization and violence
worldwide.

Sexual orientation Gender identity


o refers to each person’s capacity for profound emotional  refers to each person’s deeply felt individual experience
and sexual attraction to individuals of a different gender, of gender, which may or may not correspond with the
the same gender or more than one gender, and to the sex assigned at birth. Gender identity includes the
capacity to have sexual relations with them. personal sense of the body (which may involve, if freely
• Lesbian chosen, modification of bodily appearance or function) and
• Gay other expressions of gender, including dress, speech and
mannerisms.
• Bisexual
• Transgender
• Heterosexual
• Cisgender
Homophobia
Cisgenderism
Biphobia
Transphobia
Heterosexism
Human rights violations affecting LGBT
people

• Violent attacks, ranging from aggressive verbal abuse and psychological bullying to physical
assault, beatings, torture, kidnapping and targeted killings.
• Discriminatory criminal laws, often used to harass and punish LGBT people, including laws
criminalizing consensual same-sex relationships, which violate rights to privacy and to freedom
from discrimination.
• Discriminatory curbs on free speech and related restrictions on the exercise of rights to
freedom of association and assembly, including laws banning dissemination of information on
same-sex sexuality under the guise of restricting the spread of so-called LGBT “propaganda.”
• Discriminatory treatment, which can take place in a range of everyday settings, including
workplaces, schools, family homes and hospitals. Without national laws prohibiting discrimination
by third parties on grounds of sexual orientation and gender identity, such discriminatory
treatment continues unchecked, leaving little recourse to those affected. In this context, lack of
legal recognition of same-sex relationships or of a person’s gender identity can also have a
discriminatory impact on many LGBT individuals.

Source: ohchr.org
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 and transgender
people.
• Prohibit discrimination based on sexual orientation and gender
identity.
• Safeguard freedom of expression, association and peaceful
assembly for all LGBT people.

Source: ohchr.org
International standards and principles related to SOGI

European - The Council of Europe


- In March 2010, the Council of Europe adopted Recommendation CM/Rec(2010)5
Standards  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.

- The Organization of American States (OAS) and the Inter-American


Inter- Commission on Human Rights (IACHR)
American - Between June 2008 and June 2013, the General Assembly of the
Standards Organization of American States approved six resolutions concerning
human rights, sexual orientation, and gender identity .
Research Paper Outline

- Brief overview and origin of the concept of Sexual Orientation and Gender Identity.
Introduction - The SOGI movement (CSOs and NGOs)
- SOGI situation both in Europe and America

- SOGI Terminologies
Review of Related Literature - SOGI Rights
- The SOGI situation in other world regions
- Yogyakarta Principle
- United Nations Standards
- European and Inter-American Standards

- Initiatives and Efforts recognizing the SOGI rights (Statement/resolution/recommendation/reports) from


Findings and Analysis both standards
- General analysis based on SOGI core legal obligations of states to:
- protect individuals from homophobic and transphobic violence.;
- prevent torture and cruel, inhuman and degrading treatment;
- repeal laws criminalizing homosexuality and transgender people;
- prohibit discrimination based on sexual orientation and gender identity;
- safeguard freedom of expression, association and peaceful assembly for all LGBT people.

International Human Rights Law on Sexual Orientation and Gender Identity: A


comparative Analysis between European and Inter-American Standards
MAFS 015 Contemporary Issues in International
Law

International Human Rights Law on Sexual


Orientation and Gender Identity: A
comparative Analysis between European
and Inter-American Standards

BYL NOYA FLORENTINO


MA in Foreign Service