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Theright to sexuality incorporates the right to express one'ssexuality and to be free from discrimination on the grounds ofsexual orientation. Although it is equally applicable toheterosexuality, it also encompasseshuman rights of people of diverse sexual orientations, includinglesbian,gay,asexual andbisexual people, and the protection of those rights. The inalienable nature of rights belonging to every person by virtue of beinghuman.[1]
No right to sexuality exists explicitly ininternational human rights law; rather, it is found in severalinternational human rights instruments, including theUniversal Declaration of Human Rights, theInternational Covenant on Civil and Political Rights, and theInternational Covenant on Economic, Social and Cultural Rights.
The right to sexuality is difficult to define, as it comprises various rights within the international human rights law framework.
Sexual orientation is defined in the Cambridge dictionary as "The fact of someone being sexually or romantically attracted to people of a particular gender, or more than one gender".[2]
Pronouns are used to identify what an individual goes by. For a female, it is typically used as she/her. For a male, it is typically used as He/Him.[3]
TheUniversal Declaration of Human Rights (UDHR) and theInternational Covenant on Civil and Political Rights (ICCPR) guarantee freedom from discrimination based on sexual orientation.
The UDHR provides for non-discrimination in Article 2, which states that:[4]
"Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty."
Sexual orientation can be read into Article 2 as "other status" or as falling under "sex".
In the ICCPR, Article 2 sets out a similar provision for non-discrimination:
"Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."
InToonen v Australia theUnited Nations Human Rights Committee (UNHRC) found that the reference to "sex" in Article 2 of the ICCPR included sexual orientation, thereby making sexual orientation prohibited grounds of distinction in respect of the enjoyment of rights under the ICCPR.[5]
The right to be free from discrimination is the basis of the right to sexuality, but it is closely related to exercising and protecting other fundamental human rights.
Individuals of diverse sexual orientations have been discriminated against historically and continue to be a "vulnerable" group in society today. Forms of discrimination experienced by people of diverse sexual orientations include the denial of theright to life, theright to work and theright to privacy, non-recognition of personal and family relationships, interference with humandignity, interference withsecurity of the person, violations of the right to be free fromtorture, discrimination in access to economic, social and cultural rights, including housing, health and education, and pressure to remain silent and invisible.[6]
Sixty-seven countries maintain laws that make same-sex consensual sex between adults a criminal offence, and seven countries (or parts thereof) impose the death penalty for same-sex consensual sex. They are Iran, Saudi Arabia, Yemen, Mauritania, the twelve northern states of Nigeria, and the southern parts of Somalia.
The right to sexuality has only relatively recently become the subject of international concern, with the regulation of sexuality traditionally falling within the jurisdiction of thenation state.[7] Today numerous internationalnon-governmental organizations andintergovernmental organizations are engaged in the protection of the rights of people of diverse sexual orientation as it is increasingly recognized that discrimination on grounds of sexual orientation is widespread and an unacceptable violation of human rights.
Acts of violence against LGBT people are often especially vicious compared to otherbias-motivated crimes[8] and include killings, kidnappings, beatings, rape, and psychological violence, including threats, coercion and arbitrary depravations of liberty.[9]
Examples of violent acts against people of diverse sexual orientation are too numerous to account for here, and they occur in all parts of the world. A particularly distressing example is the sexual assault and murder of fifteen lesbians inThailand in March 2012. In that example, two lesbian couples were killed by men who objected to their relationship and who were embarrassed when they were unable to convince the women to enter heterosexual relationships with them.[10]
In another disturbing case, which took place in 2017 in a church located inBrazil, a 13-year-old lesbian girl fell victim to sexual abuse after confessing to her bishop her sexual orientation. The bishop then proceeded to anoint the girl with oil under the pretext of "gay healing", to which the young girl was left traumatized and in need of psychological care.[11]
In another case,Nex Benedict, a 16-year-old teenager, was found dead inside their own home. Nex Benedict was a teenager who was usingthey/them pronouns, getting comfortable with their sexuality and expressing how they truly were. At school, many other teens bullied and picked on them due to their pronouns. It got to the point where Benedict was beaten; they died the following day.[12]
Often, acts of violence against people of diverse sexual orientations are perpetrated by the victim's own family. In the case ofZimbabwe, 18-year-old Tina Machida was raped multiple times as a lesbian which her own family organized in an attempt to "normalize" her from homosexuality.[13]
In those cases, as in many other cases of violence against people of diverse sexual orientation, State law enforcement authorities are complicit in human rights abuses for failing to persecute violators of rights.
Theright to privacy is a protected freedom under the UDHR,[14] and the ICCPR[15] which reflects the "widespread, if not universal, human need to pursue certain activities within an intimate sphere, free of outside interference. The possibility to do so is fundamental to personhood."[16] Intimate relationships, whether between two people of the same sex or of different sexes, are among those activities that are subject to a right of privacy. The privacy rights extend much further than just the things you do in your home, but to your medical records, who your sexual partners are, and what your sexual status is.
It has been successfully argued in several cases that criminalization of homosexual relationships is an interference with the right to privacy, including decisions in theEuropean Court of Human Rights and the UNHRC.[17][18][5]
The freedom to decide on one's consensual adult relationships, including the gender of that person, without the interference of the State, is a fundamental human right. To prohibit the relationships of people of diverse sexual orientations is a breach of the right to sexuality and the right to privacy.
Every person, by theirindividual autonomy, is free to express themselves, assemble, and join in association with others.Freedom of expression is a protected human right under Article 19 of the UDHR and Article 19 of the ICCPR, as is the right tofreedom of assembly under Article 20 of the UDHR and Article 21 of the ICCPR.
LGBT people are discriminated against in respect of their ability to defend and promote their rights. State governments often ban gay pride marches, peaceful demonstrations, and other events promoting LGBT rights.[19]
In 2011 gay pride marches were banned in Serbia[20] and another march in Moscow was broken up by police, who arrested thirty leading gay rights activists.[21]
Many individuals use pronouns that they feel are comfortable with their sexuality. When it comes to a female, it is typically she/her, and when it comes to a male, they use he/him. Nowadays, people use they/them pronouns to show that is how they go as an individual. There are different pronouns that people are also coming up with to go by as.[22]
In 2005, twenty-nine experts undertook the drafting of theYogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity.[23] The document was intended to set out experiences of human rights violations against people of diverse sexual orientation and transgender people, the application of international human rights law to those experiences and the nature of obligations on States in respect of those experiences.[6]
The Principles can be broadly categorized into the following:
The Yogyakarta Principles are an instrument ofsoft law and are, therefore, not binding. However, they do provide an important standard for States in their obligation to protect the rights of individuals of diverse sexual orientations.
On 17 June 2011 theUnited Nations Human Rights Council in a Resolution on Human Rights, Sexual Orientation and Gender Identity, adopted by a vote of 23 in favor, 19 against, and 3 abstentions, requested the commission of a study to document discriminatory laws and acts of violence against people based on their sexual orientation and gender identity.[24]
The 2011 Resolution was intended to shed light on how international human rights could be used to prevent acts of violence and discrimination against people of diverse sexual orientation.
On 15 December 2011 the first Report on human rights of LGBT people was released by theOffice of the United Nations High Commissioner for Human Rights.[25]
The Report made the following recommendations. To prevent such acts of violence occurring,United Nations Member States are recommended to:[26]
The United Nations has yet to take further action, although a proposed declaration on sexual orientation and gender identity was brought before theUnited Nations General Assembly in 2008. The General Assembly has not officially adopted that declaration and remains open for signatories.
