LGBT: ADVANCEMENT AND ROLE OF INTERNATIONAL PRINCIPLES

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This article was written by Aakanksha Mishra, a student of Institute of Law Nirma University Ahmedabad.

 “The discriminating behavior towards LGBT is widely practiced across the globe and where in most of the countries it is punishable in some of the other countries it is punishable by death. Not many efforts had been placed in order to do something in this regard until 2008. In the year 2008 discussions took place in United Nations General assembly and United nations human rights council regarding the resolutions centered on this topic to deal with this situation.  There is a ‘London declaration of Human Rights’ and ‘Yogyakarta principle’ which has set international principles relating to sexual orientation and gender identity. Protection of Universal Human Rights are international obligation of each state but as united human rights has released in the year 2011 a wide range of documentation on violation of human rights on LGBT which includes abuse, bullying, violence,  physical assault, torture, killings. Criminal law also discriminate such people by imposing criminal sanctions on practicing homosexuality. Free speeches are also curbed in this regard which is a sheer violation of freedom of speech and expression, discriminatory practices in everyday life at schools hospitals workplace home.

 Since there is no domestic law in most of the countries to protect such discriminatory practices and these treatments remained unchecked which leaves no space for any recourse to the affected people. It is also confirmed by United Nations treaty bodies that prohibited grounds of discrimination are inclusive of sexual orientation as well as gender identity. The opening words of UDHR is “all human rights are born free and equal in dignity and rights” so this protection given under international human rights or in any other human rights treaties lays down no exception and hence any state can’t practice discrimination on basis of sexual orientation”.

Introduction

Equality before law, equal protection of law and non-discrimination these grounds have been universally and globally recognized grounds for protecting inherent human dignity under International law. The duty of the state is not only protect these rights from the state agents but also against the private individual and entities. Equal treatment and non-discrimination has also elevated to the level of ‘Jus Cogens’ and is a preemptory norm of international law in which no derogation is permissible. These principles authorize deferential treatment but only on rational and objective basis. In case of Lesbians, Gays Bisexuals and Transgender the pertinent question to ask is why it is so controversial to demand an equal status to this community as every individual is born equal so why a specific community is being targeted on the basis of their Sexual Orientation and Gender Identity. So it’s essential to get through the international steps taken for protection of these minorities.

International Principles and the Recognition of Sexual Orientation and Gender Identity

United Nations Human Right Convention Human rights guaranteed by UNHRC is inclusive of every individual regardless of their sexual orientation because these are inherent rights that are based on the principle that everyone is born equal and free [without any discrimination].

UDHR was adopted in UN General Assembly in 1948 which lays down its foundation on the basis that there are certain rights which are universal and inalienable in character because everyone is born equal and free and hence no discrimination. It’s equally applicable to LGBT community since they also form a part of human being but merely on the basis of their sexual orientation they have been targeted since long.

Universal Declaration of Human Rights “Every individual is born free and equal in rights as well as in dignity it also gives right to marry and right to form a family”[2]

It says “Men and Women of full age entitled to equal right to marry”[3] it nowhere mentions that Men can’t marry Men and Women can’t marry Women it just gives right to marriage to Men and Women individually which is inclusive of marriage of Lesbians Gays Homosexuals and for that matter Transgender as well .

Yogyakarta Principles: “International Human Rights law application in relation to Sexual orientation and Gender identity under existing treaties and laws.”[4] It was drafted by various distinguished members of U.N, International NGOs, experts, judges, Former UN High Commissioner, UN Special Procedure with in United Nations.

The preamble of Yogyakarta Principles defines Sexual Orientation and Gender Identity “[Sexual Orientation] which refers the capacity of each person for profound affection emotions and sexual attraction, or sexual relation towards or with other individual of either of same gender or different gender or extends to more than one gender”[5]

“[Gender identity] which refers the experience of each person’s deeply felt individual and internal experience of gender which might or might not correspond with the sex assigned at birth, also includes the personal sense of the body and other gender based expressions, includes speech mannerism and dressing”[6]

These two grounds have been historically proven to be discriminating amongst individuals. Many of the international instruments does not specifically mentions these two grounds but has evolved through its interpretation a broader ground prohibiting discrimination which is inclusive of Sexual Orientation and Gender Identity.

Declaration of Principles on Equality “there shall be prohibition on discrimination on the basis of….. [Sex]… [sexual orientation], or on any associated characteristics on these grounds.”[7]

International Convention on Civil And Political Rights Article 26 it does not expressly enumerate the word sexual orientation but according to Human right committee the word “Other Status” includes Sexual orientation and thereby prohibits discrimination on the basis of sexual orientation of a person. “All the individuals are equal before the law and thus eligible for protection of the law without any discrimination. On this ground the law shall prohibit any discrimination and guarantee to all individuals an equal as well as effective protection against discrimination on any basis such as [sex]….. Or [other status]”[8]

Convention On The Elimination Of All Forms Of Discrimination Against Women For Discrimination against any Lesbian women Transgender or Bisexual women this treaty can be interpreted accordingly in order to give protection to this community.

United Nations High Commissioner for Refugees This convention is meant for protecting the refugee after due considerations and opinions from expert the UNHRC in its publication “Protecting Refugee” has made it clear that “homosexuals might also be eligible for refugee status on the basis of persecution because they belong to a particular social group who are under fear of discriminatory treatment or inhuman behavior on the basis of their [sexual orientation]”.[9] And the underlying aim of UNHCR is to protect such people whose government is either unable or no willing to protect them.

European Commission On Human Rights “Right to ‘[respect for private and family life]’ which also prohibits interference and enjoyment of any rights and freedom that is granted by this Convention shall be secured by prohibiting any discrimination on any basis such as [sex]… or [other status]”[10]. Same as ICCPR in this convention as well Other Status has been evolved and has made inclusive of prohibition against discrimination on the basis of Sexual Orientation and Gender Identity, through various pronouncement of the European Court it is now well recognized ground of prohibition.

Commissioner for Human Rights It was established by the council of Europe in 1999 and was authorized to take individual complaints and was authorized to address [sexual orientation] issues.

The African Commission on Human and People Right Article 3 of ACHPR guarantees “Equality before law and equal protection of the law whereas Article 28 embarks upon the duty on every individual to consider and respect without discriminating other fellow being and inclined towards maintaining and reinforcing relation which aims for safeguarding mutual respect”[11]

These conventions are not given meaning from their wordings only these principles have been evolved and elaborated through purposive construction.

Judicial Approach towards Protecting the Rights of LGBT: A Global Perspective

Europe: Dudgeon v. United Kingdom[12] The anti sodomy law under Section 11 of Criminal amendment act of Ireland was held to be violative of Article 8 of European convention on human rights and hence was invalidated on this ground this was considered to be the most intimate aspect of private life and interference in which is prohibited by Article 8 of ECHR. Again in Norris v Ireland[13] and in Modinos v Cyprus[14] the court confirmed the earlier ruling and ordered Ireland and Cyprus to set aside its discriminating laws practicing Anti sodomy as it violates Article 8 of ECHR.

United States: Lawrence v. Texas[15] This case overruled Bowers v Harwick (1986) and the court held unconstitutional a Texas law criminalizing sodomy. It also said the private sexual act is protected under Amendment 14 of U.S constitution in Due process clause. United States v. Windsor[16] U.S laws which in its definition of marriage and spouse does not take into consideration the marriage of homosexuals is unconstitutional. And held it to be narrow definition since it excludes certain class of people which is against the principle of equality and hence against the 5^th Amendment. Hollingsworth v. Perry[17] The Californian Supreme Court held that the constitution of California shall not restrict to defining marriage between opposite sex only, same sex marriages also comes under the definition of marriage as it is also a union.

United Nations: Nicholas Toonen v. Australia[18] Section 122(a) and 122(c) along with Section 123 of Tasmanian Criminal Court was challenged which criminalize sexual contacts between male inclusive of sexual contact in private between consenting adult homosexuals. HRC in this case stated that sex used in Article 2 of ICCPR includes prohibition on the ground of sexual orientation also though not specifically mentioned but it includes ‘Sexual Orientation’.

South Africa: National Coalition for Gay and Lesbian Equality v. Minister of Justice[19] the section prohibiting sodomy (sexual conduct between men in certain circumstances) in the sexual offences act was held to be unconstitutional by the court the court went up by saying that discrimination on the basis of one’s sexual orientation is against south African constitution and a prohibited ground of discrimination and a violation of right to equality, liberty, privacy and dignity. Minister of Home Affairs v. Fourie[20]  same sex couples have also right to marry and it’s their constitutional right under Article 9(1) and 9(3) of African constitution. Article 9(3) specifically denies discrimination on the basis of sexual orientation but still Court took into consideration the various foreign sources and pronouncements to strengthen its ruling same happened in U.S Justice Kennedy took into consideration the pronouncement of European court to strengthen its ruling.

NEPAL: Sunil Babu Pant & Others v. Government of Nepal & Others [21] “Directives have been issued to the Government of Nepal by the Supreme Court of Nepal to eliminate all kinds of discriminations against people of different sexual orientation recognizing the Fundamental rights of Gays, Lesbians, Homosexuals, and Transgender by taking into consideration the principles of equality, equal p[protection and non-discrimination and ordered the govt. to make necessary changes accordingly.”[22]

Canada: Egan v. Canada[23] “The question was raised on section 2 of the old age security act which raised a distinction between same sex couples and opposite sex couples the question raised was whether the word ‘spouse’ is applicable to homosexuals or not the Canadian Charter of right and freedom Section 15(1) mentions ‘Sex’ as a prohibited ground for discrimination but court through its purposive interpretation held that it also includes [Sexual Orientation] and hence section 2 of old age security is of discriminating nature which is unreasonable and violative of the principle of equality.”

India: Delhi High Court Decision Decriminalizing Homosexuality: A Correct Approach in Naz Foundation v Govt. of NCT of Delhi

Indian Supreme Court judgment in holding 377 constitutional by reversing the judgment of Delhi High Court has shown a blatant attitude towards other than Indian Sources of Law. However had the Supreme Court taken into consideration the international principle it must have benefitted from that jurisprudence of International Sources on the subject matter of Sexual Orientation of Homosexuals. While delivering the judgment of ‘Naz Foundation v Govt. of NCT of Delhi’[24] H.C elaborated mainly upon two International Principles:

1. Yogyakarta Principles
2. Declaration of Equality

Delhi HC while passing its judgment held that section 377 has been misused by the police authorities most of the times to unlawfully detain and harass those people whose sexual orientation and gender identity is different [Gays, Lesbians, Homosexuals and Transgender]. There is no harm in allowing the private acts between two consenting adults and since section 377 violates this fundamental right which is right to privacy and the constitutional guarantee under Article 14, Article 15 which prohibits discrimination on the basis of Religion, race…. [Sex] the HC declared it unconstitutional, since it’s been a widely misused law to target LGBT community. However SC of India rejected all the arguments and held that there is no violation of any fundamental rights the SC also stated that:

“In its enthusiastic approach to declare section 377 IPC unconstitutional which has been said to be violative of right to privacy dignity freedom and to protect the rights of LGBT community the reliance has been put upon the judgments of courts of other jurisdictions by the H.C. These judgments though enlightening on different aspects of such right and are disclosing in relation to the condition and plight of this community which comes under sexual minority, can’t be blindly applied for deciding any constitutional validity of law enacted by Indian legislature”[25]

The particularistic view of SC judges had not let them give value to International Principles which was indeed valued and correctly applied by HC.

Conclusion

International arena is breaking the old discriminatory norms and culture by specifically mentioning the word sexual orientation and gender identity. Though these concepts are evolving but what requires is a hard law on this delicate issue which is more of a binding nature these laws do give a specification in order to avoid and prohibit discrimination though there are ‘Jus Cogens’ norm specifically prohibits discrimination and protects dignity but many of the states seemingly violate this underlying principle and other principles such as Yogyakarta Principles and Declaration of Equality, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. There are various examples of different countries for instance Uganda’s infamous Anti homosexuality bill, persecution of gay men in Malawi is a major illustration describing the resistance hampering the progressive implementation of laws prohibiting discrimination LGBT persons and the implementation of their universal rights. Indeed the Court of many countries has tried to keep pace with these international principles by following it but there are still countries left who are reluctant and are constantly violating these international principles. We have achieved success in eliminating discrimination but still there is a long way to go to attain the objective set internationally.

[1] Aakanksha Mishra, Student 5^th Year Institute of Law Nirma University Ahmedabad.

[2] Article 1 & Article 16 of UDHR, www.un.org/en/universal-declaration-human-rights/

[3] Article 16 of UDHR, www.un.org

[4] www.yogyakartaprinciple.org

[5] Supra

[6] ibid, P. 2

[7] Part II, Principle 5, Declaration of Principles on Equality 2008,  The Equal Rights Trust

[8] ICCPR adopted by General Assembly of the United Nations on 19^th December 1996, www.treaties.un.org, Article 2

[9] UNHRC/PI/Q&A-UK1.PM5/Feb,1996

[10] Article 8 & Article 14 of ECHR, http://www.echr.coe.int

[11] Article 3 and Article 28 of ACHPR, http://www.achpr.org/instruments/achpr/

[12]  App No 7525/ [1981] Oxford Reports on International Law [ORIL], http://opil.ouplaw.com

[13] Application no. 10581/83, Council of Europe: European Court of Human Rights, 26 October 1988, http://www.refworld.org

[14] 7/1992/352/426, Council of Europe: European Court of Human Rights, 23 March 1993, http://www.refworld.org

[15] 539 U.S. 558 (2003), https://supreme.justia.com

[16] United States Court of Appeals For The Second Circuit No. 12–307 https://supreme.justia.com

[17] 570 U.S_2013, https://supreme.justia.com

[18] Toonen v. Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994), http://iilj.org/courses/documents/Toonenv.Australia.pdf

[19] 1998 (6) BCLR 726, http://www.equalrightstrust.org

[20] CCT 60/04) [2005] ZACC 19, http://www.saflii.org

[21]  (2008)1 Writ No 9172064 BS (2007 AD) 2NJALJ (2008) 261

[22] Writ Petition No. 917 of 2007

[23] [1995] 2 S.C.R, http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1265/index.do

[24] Writ Petition No 7455 of 2001

[25] Suresh Kumar Koushal v Naz Foundation Civil Appeal No.10972 of 2013, Para 52