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< Viewpoints
< 2008
“Time to recognise that human rights principles apply also to sexual
orientation and gender identity”
[14/05/08] A number of people around
the world – including in Europe – continue to be stigmatised because of
their actual or perceived sexual orientation and gender identity. In some
cases these individuals are still being denied their right to education,
health care, housing and work. Some of them are harassed by the police,
get no protection when attacked by extremists or are deported to countries
where they risk torture or execution. Also, some of their organisations
are denied registration or are refused a permit to organise peaceful meetings
and demonstrations. Too few leading politicians stand up against these or
even worse homophobic and transphobic expressions.
It is sometimes said that the protection of the human rights of lesbians,
gays, bisexuals and transgender people (LGBT) amounts to introducing new
rights. That is a misunderstanding. The Universal Declaration of Human Rights
and the agreed treaties establish that human rights apply to everyone and
that no one should be excluded.
What is new is that there is now a stronger quest for this universal principle
to be applied consistently. When grounds for not-allowed discrimination
are listed in human rights treaties or such previous lists are interpreted,
there are now clear references to sexual orientation. This also goes for
the interpretation of the 1966 UN International Covenant on Civil and Political
Rights. Also, the European Court of Human Rights has clarified in several
judgments that discrimination on grounds of sexual orientation is not allowed.
The EU’s Fundamental Rights Charter explicitly includes discrimination based
on sexual orientation.
The idea is to make clear the obvious – that lesbians, gays, bisexuals and
transgender people have the same rights as others. The international standards
do apply to them as well. In other words, discrimination against anyone
on the grounds of sexual orientation or gender identity is a human rights
violation.
This is the main message of the
Yogyakarta Principles on
the Application of Human Rights Law in Relation to Sexual Orientation and
Gender Identity. These principles, which were adopted after an expert
meeting in Yogyakarta in Indonesia in 2006, identify the obligations of
States to respect, protect and fulfil the human rights of all persons, regardless
of their sexual orientation(1) or gender identity(2).
The Principles are the unanimous result of discussions between 29 independent
international human rights experts from different parts of the world, of
whom almost half have served in United Nations treaty committees or as special
rapporteurs. One of the experts was the former High Commissioner for Human
Rights Mary Robinson(3).
In the introduction to the Principles the experts make clear that they do
not ask for new norms, only that those existing should be respected. They
state that it is critical to clarify State obligations under agreed international
human rights law in order to promote and protect all human rights for all
persons on the basis of equality and without discrimination.
Therefore, the Yogyakarta document goes further than just defining the principles,
it also spells out the State’s obligations. It asks for legislative and
other measures to prohibit and eliminate discrimination against individuals
because of their sexual orientation or gender identity. Legislation and
action plans against discrimination should include this type of discrimination
as well. Laws should be repealed which criminalise consensual sexual acts
between people of the same sex(4).
The document also requests governments to take concrete action to counter
prejudices through education and training. Steps should be taken to dispel
discriminatory attitudes or behaviours which are built on the idea that
any sexual orientation or gender identity is superior or inferior.
One particularly important chapter in the document relates to the implementation
of the principle of the right to security of persons. In this chapter it
is recommended that governments do the following:
• Take all necessary policing, or other, measures to prevent and provide
protection from all forms of violence and harassment related to sexual orientation
and gender identity;
• Take all necessary legislative measures to impose appropriate criminal
penalties for violence, threats of violence, incitement to violence and
related harassment, based on the sexual orientation and gender identity
of any person or group of persons, in all spheres of life, including the
family;
• Take all necessary legislative, administrative or other necessary measures
to ensure that the sexual orientation and gender identity of the victim
may not be advanced to justify, excuse or mitigate such violence;
• Ensure that preparation of such violence is vigorously investigated, and
that, where appropriate evidence is found, those responsible are prosecuted,
tried and duly punished, and that victims are provided with appropriate
remedies and redress, including compensation;
• Undertake campaigns of awareness-raising, directed at the general public
as well as actual and potential perpetrators of violence, in order to combat
the prejudices that underlie violence related to sexual orientation and
gender identity.
Such steps are necessary. During my mission travels I have been confronted
with some of the realities behind the aggressive intolerance of those who
are perceived as different. I have met individuals who live in fear of being
exposed and others who have ‘come out’ but suffer serious consequences.
Transgender persons are humiliated. Some of them have been denied necessary
healthcare and have been confronted with medical practitioners who refuse
to provide gender reassignment therapy. Others have been prevented from
having a change of name in passport or identification documents or only
managed such a change after having gone through de-humanising procedures
that are currently in place in many States.
The prejudices in this area are indeed very deep, not least in countries
with a recent past of dictatorship and absence of free discussion. Unfortunately,
some religious preaching has also been influenced by similar tendencies
and generally not been helpful in the defence of human rights of LGBTs.
Advocacy against homophobia is clearly not opportune in a number of countries.
This underlines the importance of broader and more systematic education
and awareness efforts and more principled positions by leading politicians.
I believe that the Yogyakarta Principles are important in this endeavour.
I recommend all governments of the Council of Europe member states to study
the document and build on its principles through concrete action. In fact,
some of the member states have already made them an integral part of their
human rights policies. For my part, I fully endorse the Principles.
Thomas Hammarberg
Notes
1. The Yogyakarta document states that the term ‘sexual orientation’
refers to "each person’s capacity for profound emotional, affectional and
sexual attraction to, and intimate and sexual relations with, individuals
of a different gender or the same gender or more than one gender."
2. The document defines ‘gender identity’ with reference 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 (which may involve, if freely chosen, modification of bodily
appearance or function by medical, surgical or other means) and other expressions
of gender, including dress, speech and mannerisms."
3. Other Europeans among the experts are Maxim Anmeghichean (Molodova),
Yakin Erturk (Turkey), Judith Mesquita (United Kingdom), Manfred Nowak (Austria),
Michael O’Flaherty (Ireland), Dimitrina Petrova (Bulgaria), Nevena Vuckovic
Sahovic (Serbia), Martin Scheinin (Finland), Stephen Whittle (United Kingdom)
and Roman Wieruszewski (Poland).
4. More than 80 countries still criminalise consensual same-sex acts and
at least seven maintain the death penalty.
Link
The Yogyakarta Principles
This Viewpoint can be re-published in newspapers or on the internet without
our prior consent, provided that the text is not modified and the original
source is indicated in the following way: "Also available at the Commissioner's
website at www.commissioner.coe.int"
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