Modern day society faces various challenges with regard to protection and promotion of the fundamental human rights of the individuals, especially in relation to individuals who are discriminated because of ‘sexual orientation ‘and ‘gender identity’. Since the past two decades, the international community has witnessed various efforts by international human rights activists and lawyers who have been vehemently arguing for combating all forms of discrimination and violence against sexual minorities. The gamut of international human rights law (“IHRL”) have become inclusive and mindful of the need to address the issues concerning individuals who identify their sexual orientation and gender identity within either same-sex, bisexual or transsexual relationships. Historically, people belonging to lesbian, gay or bisexual and transgender (“LGBT”) social groups have experienced various human rights violations such as violence, harassment, discrimination, exclusion, stigmatisation and right to privacy. Further, such violations also include killings, rape and physical attacks, torture, arbitrary detention, the denial of rights to assembly, expression and information, and discrimination in employment, health and education. Often, the anti-LGBT supporters have challenged the sexual orientation of the LGBT group as immoral, deviant behaviour, and indecent behaviour. Thus, more than 80 States have premised homosexuality as a criminal offence. The national laws criminalising such behaviour considers it either as sodomy, public scandals, immoral or indecent behaviour and thereby are used to penalise people for looking, dressing or behaving differently from imbedded social norms. The attempt, however, must be to repeal or amend the laws which penalise homosexuality.
The human rights principles that have been consolidated for the protection and promotion of basic human rights of the LGBT group, who identify their sexual orientation and gender identity beyond the accepted social norms. The approach must be to decriminalize homosexuality and transsexuality, rather than branding such social groups as ‘immoral’. A review of the Yogyakarta Principles on the Application of International Law in Relation to Issues of Sexual Orientation and Gender Identity (“Yogyakarta Principles”) and the jurisprudence as evolved through case laws by the UN Human Rights Committee (“the Committee”), would form the bedrock for advancing human rights law in this area of study.
Evolution of human rights principles on protecting the rights of LGBT Community
The international human rights framework is comprehensive enough and has gradually developed for the better part of the last century. The very foundation of the modern respect for Human Rights lies within the Charter of the United Nations, 1945, which paved way for the adoption of the Universal Declaration of Human Rights (“UDHR”) as a “common standard of achievement for all peoples and all nations.”3 The era of UDHR coincided with the era of civil rights movements the world over. The decades post-UDHR witnessed a revolution in the evolution and universalization of human rights, through the International Conventions dealing with economic, social, civil, political, women’s, children’s, minorities’ and refugee rights.
A uniform approach by the international community, especially by States, in addressing the LGBT rights is not visible. One of the main factors for passive reactions towards protection and promotion of basic human rights of the LGBT group could be deciphered from the diverse historical, cultural, and religious backgrounds of States, which links morality with the debates of homosexuality and transsexuality. Non-recognition of sexual minority rights is rather deep rooted in the national laws that discriminates and criminalises such sexual orientation and gender identities. Nevertheless, certain efforts of the human rights activists worldwide must be appreciated for their struggle to ensure non-discrimination and equality vis-à-vis stopping violence against such individuals. There are three methods to understand the evolution process: (i) efforts of the UN Human Rights Committee; (ii) the Yogyakarta Principles 2007, which though non-binding in nature comprehensively discusses the rights and obligations of the LGBT group as well as the States; and (iii) a review of the resolution adopted by the UN Human Rights Council at its recent session.
The Efforts of the UN Human Rights Committee
The Committee, is the body responsible for monitoring States Parties’ implementation of the International Covenant on Civil and Political Rights, 1966 (“ICCPR”), and thereby has a pivotal role to play in promoting and protecting the human rights of LGBT groups. The contribution of the Committee towards the process of formulating the LGBT rights through constant engagement with States is very important. In the absence of legal framework to decriminalize homosexuality at the international level, two decades before, the Committee interpreted the provisions of the ICCPR (especially Article 2 and 26) to affirm the basic human rights of the individuals belonging to diverse sexual orientation and gender identity. This section outlines the efforts of the Committee to address and affirm the rights of the LGBT community through case laws and through concluding observations after engaging with the States through assessing State Periodic Reports.
Contribution through Case Laws
The human rights principles addressing the concerns and rights of the LGBT group has evolved in the past two decades through constant assertion by the human rights activists of their rights and reminding the States of their obligation to guarantee protection and promotion of human rights of all peoples regardless of their sexual orientation and gender identity. The jurisdiction of the courts was invoked to challenge, repeal or amend the discriminatory laws, which prima facie, violated the basic human rights of the LGBT group (US LGBT rights movement is the perfect example). However, the landmark judgment decided by the Committee in Toonen v Australia, held that sections 122 and 123 of the Tasmanian Criminal Code violate right to privacy and right to non-discrimination enshrined in the ICCPR. The Committee deviated from the prior international jurisprudence on prohibition of same-sex relations by innovatively reading the principle of non-discrimination on the grounds of “sex” under Article 2 as including “sexual orientation”. This decision also leads the UN treaty-monitoring bodies to consolidate the principle that sexual orientation discrimination is inadmissible in IHRL.
On the right to marry, privacy rights and equal protection of law as enshrined in the ICCPR, the Committee while interpreting Article 23 stated that it applied only to “the union between a man and a woman”. However, in later decision the Committee held that equal protection of law shall be applied to civil partnerships as well. This remains a remarkable approach towards recognizing civil partnership under Article 26 of the ICCPR.
The International Covenant on Economic, Social and Cultural Rights, 1966 (“ICESCR”) also premises non-discrimination and equality as fundamental components of IHRL and essential to the exercise and enjoyment of economic, social and cultural rights. By virtue of General Comment No. 14, 15 and 20 of the Committee of Economic, Social and Cultural Rights (CESCR), the terminology “other status” as recognized in Article 2 (2) has been made inclusive of sexual orientation.Thus, States parties are required to ensure that a person’s sexual orientation is not a barrier to realizing ICESCR rights. In addition, gender identity is recognized as among the prohibited grounds of discrimination, especially harassment in schools and workplace.
The Committee’s engagement with LGBT rights through assessing State Periodic Reports
Initiatives of the UN Human Rights Committee on its work in relation to the rights of LGBT people could be deduced from its concluding observations on States Parties’ Periodic Reports submitted in the past ten years, which crosschecks the level of compliance by State Parties with Articles 2 and 26 of the ICCPR. This period witnessed the Committee frequently raising the issue of LGBT rights, yet much more could be attained. Many of the concluding observations contained comments of a positive nature, praising progress that a State Party had made, encouraging a State Party to make improvements to the protection and promotion of LGBT rights. Briefly, these observations could be categorized under (i) anti-discrimination measures; and
(ii) decriminalisation of homosexuality and homosexual activity through repealing or amending various legislations. The comments relating to discrimination sometimes recommended not only the repeal of discriminatory criminal laws but also the adoption of proactive anti-discrimination laws or policies, to safeguard the basic human rights of the LGBT community. This review reveals that the Committee’s priority is to enhance institutional or legal protection of LGBT persons and reduce targeted violence. The observations also have gone to the extent of highlighting the prevalence of hate-based violence against LGBT persons.
There is a hope for improvement as in the recent past, the Committee increased number of references to LGBT rights, increased depth and detail in the observations particularly individual instances, and greater use of LGBT-precise language. Since 2009, the nomenclature used for referring to LGBT persons was ‘sexual orientation’, however, there was a substantial change by using the term ‘LGBT’ for the first time in one of the reviews of its Member States, expanding the construct of sexual orientation to acts of violence against lesbian, gay, bisexual and transgender (LGBT) persons’, thereby emphasizing on sexual minority rights. Later in 2012, the Committee mentioned in its concluding observations ‘intersex’ persons, also intended to expand, LGBTI (the ‘I’ denoting intersex), which attaches more significance to greater sensitivity to the diversity and dispersed-nature of sexuality. In this instance, it has to be noted that it is high time the Committee engages itself in adopting the language of decriminalisation of homosexuality, which could be read as more practical to the anti-discriminatory practices and violence against sexual minorities.
The Yogyakarta Principles
A decade after the Toonen’s decision, the Yogyakarta Principles on the Application of International Law in Relation to Issues of Sexual Orientation and Gender Identity was adopted in March 2007, by a distinguished group of international human rights experts. The attempt was to outline a set of international principles relating to sexual orientation and gender identity, which will affirm binding international legal standards.
The Yogyakarta Principles consists of 29 principles, giving paramount importance to universality and inalienability of human rights devoid of sexual orientation and gender identities. The order of these principles explains the nature and extent of discrimination faced by the LGBT group which is embedded in society that is enforced through its legal system. These principles are based on the theory of rights-based approaches, which entrusts the State Parties with duty to implement the legal obligations, such as:
(i) taking all necessary legislative, administrative and other measures to eradicate impugned practices which discriminate and violate the basic human rights of the individuals with diverse sexual orientation and gender identities;
(ii) undertaking protection measures for the persons identifying themselves with the LGBT community or group;
(iii) ensuring accountability of perpetrators violating the basic human rights of the LGBT community and also seeking redress for the victims; and,
(iv) promotion of a human rights culture by means of education, training and public awareness-raising.
Principle 1 explains the right to enjoyment of human rights, which obligates State parties to amend legislations, including criminal law to ensure full enjoyment of universal human rights. Mindful of the discrimination and abuse faced by the LGBT group, the Yogyakarta Principles emphasizes on the need to repeal criminal and other legal provisions that prohibit consensual sexual activity between same-sex individuals or transsexual/transgender individuals. Reiterating the right to recognition before the law, it has been explained that each individual’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom.
An overview of the Yogyakarta Principles reflects the attempt by the defenders of the LGBT group, of their fundamental rights to life, freedom from violence and torture, privacy, access to justice, fair trial, to be treated with humanity while in detention, and freedom from arbitrary detention as dealt from Principles 4 to 11. Another important provision explains protection against all forms of trafficking, sale and right against exploitation. This provision acknowledges and takes into account the vulnerability of people with diverse sexual orientation, due to discrimination and inequality based on social exclusion, which might lead them to fall easy prey to trafficking and exploitation.
The Principles 12 to 18 outlines the importance of equality and non-discrimination towards full enjoyment of economic, social and cultural rights, in terms of right to work, social security and other protection measures, adequate standard of living and housing, education, health and protection from medical abuses. The key aspect on right to attainment of highest standard of health requires States to ensure access to healthcare facilities, goods and services, especially in relation to sexual and reproductive health, and to their own medical records.
The right to freedom of opinion and expression includes expressing one’s sexual identity or personhood through speech, deportment, dress, bodily characteristics, choice of name, or any other means. Such express mention of cross-dressing practice by the drag kings and drag queens, who may choose any medium for expressing their queer identity, is also recognised. The Principles from 19 to 21 also ensures that notions of public order, public morality, public health and public security are not to be employed in a discriminatory manner to restrict the rights of the LGBT community to express themselves of their diverse sexual orientation. Such freedom of expression, extends to their right to freedom of peaceful assembly and association, including for the purposes of peaceful demonstrations as well. The right to freedom of thought, conscience and religion and movement and residence within borders of the State, thereby obligating States’ not to impede such person’s entry, egress or return to or from any State, including that person’s own State. Principles 22 and 23 highlight the rights of persons to seek asylum from persecution. These principles are followed by the rights of persons to participate in family life, public affairs and the cultural life of their community. The crucial principles are enshrined in Principles 28 and 29 which affirms holding perpetrators of these rights to be accountable, and ensure appropriate redress for the victims belonging to diverse sexual orientation and gender identities.
Yogyakarta Principles have been well received by the UN bodies, Regional Human Rights Bodies, National Courts, Government Commissions and the Commissions for Human Rights, Council of Europe and so on. These bodies have endorsed these
Principles and recognized them as important tool for identifying the obligations of States to respect, protect and fulfill the human rights of the people belonging to the LGBT community.
UN Human Rights Council Resolution (27th Session, 2014)
It is almost two decades that the deliberations on LGBT rights have found place in the UN agenda, yet decriminalizing homosexuality and transsexuality remains nowhere close to reality. On 24 September 2014, the UN Human Rights Council at its 27th Session adopted a resolution on “Human rights, sexual orientation and gender identity”. This resolution vide Preambular paragraph 3, states that significance must be attached to “national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms”The language, however, does not categorically stress on decriminalizing. Further, it gives prominence to historical, cultural and religious backgrounds of States which does not make it obligatory on the part of States to repeal or amend either its criminal laws or discriminatory laws. In this regard, it is also important to note that India abstained from voting on the UN Human Rights Council resolution on “Human Rights, Sexual orientation and gender identities” which was adopted on 24 September 2014.
Indian Legal Position
The Indian judiciary had at length discussed on decriminalization of homosexuality (Section 377 of the Indian Penal Code 1860) in the recent past through three important judgments. In the Naz Foundation v Government of NCT of Delhi case, the High Court of Delhi upheld decriminalization of homosexuality (decriminalized adult consensual sexual acts in private). The Naz Foundation case filed as Public Interest Litigation challenged the constitutional validity of Section 377 of the IPC, which criminally penalizes “unnatural offences”, to the extent the said provision criminalises consensual sexual acts between adults in private, which infringes the fundamental rights guaranteed under Articles 14, 15, 19 and 21 of the
Constitution of India 1950. However, in December 2013, this decision was set aside by the Supreme Court of India, in appeal, in Suresh Kumar Koushal & Anr. v Naz Foundation & Ors, thereby upholding the validity of Section 377 of the IPC. In
March 2014, a curative petition was filed by the Naz Foundation (India) Trust, the original petitioner in the constitutional challenge to Section 377 of the IPC, challenging the Supreme Court’s decision in Suresh Kumar Koushal v Naz Foundation delivered in December, 2013. The contentions of the petitioner in this curative petition rests on the most glaring error in the above mentioned decision of the Supreme Court wherein it failed to take notice of the effect of amendment to the Criminal Law (Amendment) Act, 2013, with special reference to the offence of rape in Section 375 of the IPC.
On the issue of rights of the transgender community in relation to their gender identity, the Supreme Court of India in National Legal Services Authority v Union Of India & Ors, upheld their concerns. The court declared the individuals from the transgender community, apart from binary genders, be considered as third gender for safeguarding their rights guaranteed under Part III of the Indian Constitution.. The three important decisions dealing with the issue of decriminalizing homosexuality and transsexuality had referred to the Yogyakarta Principles in order to reiterate the basic human rights of the individuals belonging to diverse sexual orientation and gender identities.
The human rights of the individuals belonging to the LGBT community are still in the nascent stage of evolution. The initial attempt by the LGBT defenders and human rights activists were to argue for social inclusion through expanding the definition of diverse sexual orientation and gender identity. The UN Human Rights Committee, which can be considered as vanguard of protecting human rights that is universal and inalienable, to all human beings addressed these issues within the scope of Article 2 and 26 of the ICCPR. These efforts form part of the international jurisprudence on this subject. The Toonen’s case was a breakthrough in this field, as the Committee could declare the criminal law that penalized this social group as violative of the basic human rights of the LGBT community. Simultaneously, the General Comments by the Committee on Economic, Social and Cultural Rights gradually started extending the basic rights to sexual minority by including them within the ‘other status’. The role of the UN Human Rights Committee and Council have been crucial in counter checking various national laws that criminalizes and discriminate the members of this social group.
The Yogyakarta Principles, though is of non-binding nature, could be regarded as comprehensive in terms of incorporating the basic human rights of sexual minorities.
These Principles have attempted to address various problems faced by this social group, primarily being right against violence and privacy. The Indian legal position has deviated from the progressive path by setting aside the decision decriminalizing homosexuality. When it comes to the Indian scenario, homosexuality (same-sex relationships) has been distinguished from transsexuality. This is manifestly evident from the decided case laws of the Indian Supreme Court, where on the one hand, criminal law criminalizing homosexuality was declared valid and on the other hand, people belonging to transgender community were given the status of ‘third gender’.