LGBT-Rights - Sexual Orientation, Gender Identity And

FACULTY OF LAW Stockholm University

LGBT-rights - sexual orientation, gender identity and

the human rights

Josefine Friman

Thesis in International law, 30 credit points Examiner: Pål Wrange Stockholm, Spring term 2014

Acronyms

CAT – Committee against Torture CEDAW – Committee on the Elimination of Discrimination against Women CESCR – Committee on Economic, Social and Cultural Rights CRC – Committee on the Rights of the Child ECHR – European Convention on Human Rights ECtHR – European Court of Human Rights HRC – UN Human Rights Committee ICCPR – International Covenant on Civil and Political Rights ICESCR- International Covenant on Economic, Social and Cultural Rights ILGA – International Lesbian, Gay, Bisexual, Trans and Intersex Association LGBT – Lesbian, Gay, Bisexual and Transgender NGO – Non-Governmental Organization OHCHR – Office of the High Commissioner for Human Rights OSCE - The Organization for Security and Co-operation in Europe UN – United Nations UDHR – Universal Declaration of Human Rights UNHCHR – United Nations High Commissioner for Human Rights

Table of Contents

1 Introduction ...... 4 1.2 Purpose and subject of inquiry ...... 5 1.3 Method ...... 6 1.4 Delimitations ...... 6 1.5 Definition of terms ...... 7 1.6 Important legal documents ...... 8 2 Sexual orientation as a crime ...... 9 2.1 Practice of the courts ...... 9 2.2 Hate Crimes ...... 14 2.2.1 Groups of sexual minorities and hate crimes ...... 16 2.3 Prohibition of torture or other inhuman and degrading treatment .. 18 2.4 Death penalty ...... 18 2.5 Appraisal ...... 20 3 Discrimination ...... 21 3.1 “Other status” ...... 22 3.2 Fundamental freedoms ...... 22 3.3 Discrimination of economic, social and cultural rights ...... 29 3.4 Other discriminations ...... 32 3.6 Appraisal ...... 33 4 Family Rights ...... 35 4.1 Civil Partnership ...... 35 4.2 Marriage ...... 37 4.3 Same-sex adoption ...... 39 4.3.1 The best interests of the child ...... 40 4.3.2 Case Law ...... 42 4.3.4 Same-sex parents ...... 45 4.4 Appraisal ...... 46 5 General Conclusions ...... 47 6 References ...... 51 6.1 Articles ...... 51 6.3 Cases ...... 52 6.4 Treaties ...... 52 6.5 UN documents ...... 52 6.6 Web ...... 53

3 1 Introduction The human rights situation for lesbian, gay, bisexual and transgender (LGBT) persons is a global issue. There is no region in the world where people are not mistreated on grounds of their actual or perceived sexual orientation and gender identity. In 76 states it is by law a criminal offence to be homosexual.1 In other states, discriminatory laws and practices of state authorities and society are common if you belong to a group of divergent sexual orientation or gender identity. It is not unusual to be considered a second-class citizen and be denied rights due to one’s sexual preference or the fact that one perceives himself/herself in a way that does not correspond to the general norm. The scope of human rights violations committed against sexual minorities is wide and includes everything from executions, killings, torture, physical, sexual and psychological abuse to discrimination and denying of fundamental rights and freedoms. The threat of the possibility to be exposed to all or any of these violations forces LGBT persons to live in constant fear and prevents them from being accepted for who they are. The right to self-determination and to be recognized by others and by your state as an individual equal to others should apply to every human being irrespective of whom he/she loves or what gender one considers himself/herself to be belong to. The Universal Declaration of Human Rights clearly states that “all human beings are born free and equal in dignity and rights”, the rights shall be enjoyed by everyone according to the principle of universality, which means just that, protection and enjoyment of the rights for all. The international human rights law consists partly of international customary law and of human rights treaties and conventions. Despite the principle of universality sexual minorities are constant victims of violations of these rights. The on-going exclusion of sexual minorities from essential human rights exists both on a macro level: in the international community and domes- tically, and on a micro level for individuals in their homes and working places.

1 "STATE-SPONSORED HOMOPHOBIA - ILGA." .

Homosexuality is not a new concept, but the development of the rights for sexual minorities is a fairly recent phenomenon and the jurisprudence has progressed enormously in the last three decades. The fast development is of course considered positive for sexual minorities but the current situation for LGBT persons is by no mean close optimal and these issues are more relevant than ever. The positive developments reaches far from everywhere. In the West we discuss same-sex marriage while in five countries of the world having consensual sex with an adult of the same-sex is an offence punishable by death penalty. Uganda recently passed an extremely controversial Anti Homosexuality act, also known as the anti-gay bill, which increases the oppression on the already highly vulnerable sexual minorities in the country.2 In 2011 the European Court of Human Rights found Russia guilty of violating the right to a peaceful assembly when denying a homosexual man to arrange a pride march. Two years later in 2013 Russia passed a federal law prohibiting any distribution of information or promotion of homosexual and non-traditional relationships to minors.

For all these reasons this is a subject that is very relevant to discuss in relation to the international human rights law. In this essay, I will examine and try to evaluate the compatibility of international human rights law and sexual orientation and gender identity. I will do this in three parts starting with the criminalization of homosexuality followed by discrimination of sexual minorities and finally the developing family rights.

1.2 Purpose and subject of inquiry This essay strives to put sexual orientation in relation to the human rights. The main question for this study is whether sexual minorities are protected by international human rights law. If yes, is the protection effective and sufficient? Or is there need for more specific international legislation on the subject?

2 Anti-Homosexuality law in Uganda violates human rights and endangers LGBT people –

5 1.3 Method The essay will be divided into three main parts to get an overview of the current position of the rights of sexual minorities. This division is made due to the huge differences in development of the rights for sexual minorities all over the world. For that purpose, relevant international instruments will be studied: International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic Cultural and Social Rights (ICECSR), Universal Dec- laration of Human Rights (UDHR) and the European Convention on Human Rights (ECHR). The purpose is to compare the rights set forth in these instruments with the actual situation for LGBT persons as regards their rights. I will use relevant communications from the UN Human Rights Committee (HRC) and judgments from the European Court of Human Rights (ECtHR) to clarify the present legal position. To examine the rights and their violations with respect to sexual orientation and gender identity I will also use studies published in relevant international law journals and UN documents, for example those from the Office of the High Commissioner of Human Rights (OHCHR). I have essentially avoided the use of articles from NGO’s with a more activist agenda, to keep the material as neutral and scientific as possible, but have in some parts used statistics from a well known and almost yearly updated report from the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA).

1.4 Delimitations This is a study in international law and focuses on human rights law and more precisely on the rights and violations of rights based on sexual orientation and gender identity. It will focus on sexual orientation and gender identity in relation to specific parts of the international human rights law. The main three areas of attention are criminalization, discrimination and family rights. There are other areas that are relevant to the subject of sexual minorities such as refu- gee law. However, they are not covered in the study due to the need of more precise limitation.

Limitation of the material has also been necessary and therefor the case law consists of communications from the UN Human Rights Committee and

6 judgements by the European Court of Human Rights. The international level consists of legal decisions mainly within the UN system. The regional jurisprudence is limited to the Council of Europe and the European Convention of Human Rights and will not examine any parts of the African Charter for Hu- man and Peoples rights or the American Convention on Human Rights or other regional human rights instruments. On national level there are examples in the study from different countries but no specific research on any particular state.

1.5 Definition of terms There are terms used in this essay that might need some clarifications for the reader to fully comprehend the content. Here is a short explanation of a few terms and the way they are used in the present study.

Sexual orientation refers to a person’s capacity for profound emotional, affec- tional and sexual attraction to, and relations with, individuals of a different gender or the same gender or more than one gender. Heterosexual refers to a person whose affection is directed at a person of the opposite sex. Homosexual refers to a person who is emotionally and/or sexually attracted to persons of the same sex and bisexual when attracted to both sexes. Gender Identity refers 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 and other expressions of gender, including dress, speech and mannerism. Transgender refers to people who live permanently in their preferred gender, without necessarily needing to undergo any medical transformation. Intersex refers to a person who has genitals, hormonal and physical features that are neither exclusively male nor exclusively female.3

In this study, the terms homosexual and same-sex are used interchangeably, for example: homosexual couple – same-sex couple. Gay refers to a homosexual person of the male or female gender and lesbian of a homosexual female person. The acronym LGBT (Lesbian, Gay, Bisexual and Transgender) is used synonymous with the term sexual minorities.

3 "ILGA-Europe Glossary." .

1.6 Important legal documents There are two documents worth mentioning when discussing human rights law and sexual orientation and gender identity. The first one is the Yogyakarta principles, which are a set of principles developed by a group of human right experts on the application of international human rights law in relation to sexual orientation and gender identity. The principles are intended as an instrument to define the human rights obligations of states concerning these questions and entail recommendations for states on how to implement, promote and protect the rights relating to sexual orientation and gender identity. The principles are comprehensive and intend to fill the gaps where the international human rights law on the subject is not sufficient or inconsistent. The principles cover a wide range of issues such as the universality of the rights, the right to life, the right to privacy and the right to work, in total 29 principles.4

There is also an important UN resolution adopted by the Human Rights Coun- cil in 2011 by 23 states voting for, 19 against and 3 abstentions. The resolution recalls the “universality, interdependence, indivisibility and interrelatedness of human rights as enshrined in the Universal Declaration of Human Rights […]. It also underlines that “the Universal Declaration of Human Rights affirms that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set forth in the Declaration…” The resolution further contains an expression of grave concern “at acts of violence and discrimination, in all regions of the world, committed against individuals because of their sexual orientation and gender identity.” 5

4 Yogyakarta principles, . 5 Resolution A/HRC/RES/17/19, Human Rights, Sexual Orientaion and Geder identity, 14 July 2011.

8 2 Sexual orientation as a crime One of the multiple layers of the on-going human rights violations committed against sexual minorities is the fact that many states criminalize homosexuality. This means that national legislation prohibits sexual contact between consenting adults of the same sex, so called sodomy laws. As of 2013 there are 76 states, out of 193 UN members, that in their domestic laws criminalize homosexual conduct.6 The relevant laws vary in their form and wording. For example prohibiting crimes against “the order of nature” or “morality” and can contain the words “debauchery” or “buggery” or more explicit “penetration per anum”. The penalties applied to this type of crimes ranges between fines, cor- poral punishments and short-term prison sentence up to life in prison, and in extreme cases even the death penalty.7 In most cases the relevant penal laws relating to homosexual sex regulate different ages of consent and are discriminatory in that they address only men and not homosexual women.

2.1 Practice of the courts The European Court of Human Rights (ECtHR) stated for the first time in the case Dugdeon v United Kingdom 1981, that national laws criminalizing certain sexual orientations as incompatible with the ECHR. In the opinion of the Court, this type of laws violated the right to respect for private and family life according to article 8 of the Convention. The complainant in Dudgeon v United Kingdom was a homosexual man from Northern Ireland who claimed that his right to privacy was violated by the criminal code of Northern Ireland which provided in the 1861 Act under sections 61 and 62: “committing and attempt- ing to commit buggery are made offences punishable with maximum sentences of life imprisonment and ten years’ imprisonment, respectively. Buggery consists of sexual intercourse per anum by a man with a man or a woman, or per anum or per vaginam by a man or a woman with an animal”. And also the 1885

6 Supra note 1, page 20-22 7 Report of the UNHCHR, A/HRC/19/41, Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity, . pages 13-14, also Supra note 5, pages 341-2

Act, section 11: “it is an offence, punishable with a maximum of two years’ imprisonment, for any male person, in public or in private, to commit an act of gross indecency with another male”8. Gross indecency is not legally defined in the section but refers to any sexual act between two males. 9

Mr Dudgeon had in 1976 been taken to the police station for questioning about some seized documents, personal correspondence and diaries, containing de- scriptions of homosexual activities. The police found the papers when execut- ing a search warrant for drugs in Mr Dudgeons home. For over four hours he was questioned about his sexual life but it did not lead to a prosecution.10 Mr Dudgeon complained that the law in question made him liable to prosecution and that he experienced fear, suffering and psychological distress as a result of the mere existence of the law. This combined with the questioning about his sexual relations by the police in 1976 resulted in a claim that his right to privacy in article 8 of the Convention had been breached.11

The court concluded that states have the possibility to make restrictions of Ar- ticle 8 if it is in accordance with section 2 of the same article that the interference should be “in accordance with the law” and “is necessary in democratic society”. The aims allowed for restrictions are among others “for the protection of health and morals” or “for the protection of the rights and freedoms of others”.12 The core question for the court concerning article 8 was if an interference with privacy for achieving the aims at hand is necessary in democratic society. For it to be necessary it has, according to the Court, to be a pressing social need for the interference to be legitimate. The states do have a certain margin of appreciation in these cases but they have to be compatible with the nature of the aim and the nature of the activities that are compromised. Sexual activities are a very intimate aspect of a person’s private life and therefore the reasons for interfering should be particularly serious. 13 The court must also evaluate the interference is proportionate to the claimed legitimate aim. The

8 Case of Dudgeon v United Kingdom, 1981, paragraph 14 9 Ibid, paragraph 14 10 Ibid, paragraph 33 11 Ibid, paragraph 37 12 Ibid, paragraph 43-46 13 Ibid, para 48, 51-52

10 court sees in this case a change in the attitude of the members of the Council of Europe towards homosexuality and a greater understanding and tolerance and that the majority of states no longer believe there is a need to sanction homosexual activities in criminal codes. There is therefor no longer a pressing social need for maintaining a legislation that makes adult consenting homosexual acts criminal. Concerning the proportionality the court held that the interest of re- taining the law is not as big as the effect the law can have on the life of a homosexual. The government of Northern Ireland provided reasons for maintaining the legislation but these are not in the Court’s view sufficient and the possible consequences of the law for Mr Dudgeon are disproportionate to the aim. The court concludes that Mr Dudgeon suffered and continues to suffer an unjustified interference with his right to respect to his private life and that the provision in the criminal code violates the Conventions article 8.14

Over a decade later in 1994, the treaty body for the International Covenant on Civil and Political Rights (ICCPR), the Human Rights Committee (the Com- mittee/HRC) addressed the question of legislations criminalising homosexual activities in their communications in the case of Toonen v Australia.15 The author of the complaint, Mr Toonen, an Australian citizen and a homosexual, gay-rights activist living in the Australian state Tasmania. Mr Toonen claims that his rights according to the ICCPR articles 2.1, 17 and 26 are being violated. He claims that the sections 122 a, c and 123 in the Tasmanian criminal code which criminalize “unnatural sexual intercourse” or “intercourse against nature” and “indecent practice between male persons” which in practice prohibits all forms of sexual contact between homosexual adult men in private are in contradiction with the before mentioned rights. Mr Toonen argues that the sections in the criminal code allows the authorities to investigate very private aspects of his life and gives the police right to detain him if they have reason to believe he is involved in such sexual conduct as the sections prohibit. He moreover complains about the effects of the sections that could endanger his employment and contribute to constant stigmatization and threats of violence. He means that the existence of the law in question has harmful impacts on his

14 Supra note, paragraphs 59-63 15 Toonen v Australia, Communication No. 488/1992.

11 and other homosexuals’ lives in Tasmania and that it contributes to an increase of the discrimination and violence they are exposed to.16 The complaint was that the law allows an interference with the right to privacy and that it distinguishes between sexual activity based on sexual orientation and identity, and also between male and female homosexual sex. Sexual activities between women are not illegal according to the sections. Mr Toonen further states that the only acceptable remedy is that these provisions will be repealed.17

The government of Tasmania denies that there has been any violation of the complainant’s rights under article 17 of the Covenant. The government argues that the law is partly motivated by that it protects the citizens from the spread of HIV/AIDS and justified on moral and health grounds. The State party on the other hand acknowledges that there has been an arbitrary interference with Mr Toonens privacy and that a public health reason cannot justify the contested sections in the criminal code. The State party settles on that the provisions of the law are not reasonable or proportionate in the circumstances. Concerning the question of discrimination of Mr Toonen the State party acknowledges that he has been directly affected by the disputed legislation.18 The State party and the Government of Tasmania disagree on the question if the legislation constitutes a violation of Mr Toonens rights.

The Committee examines on the merits if Mr Toonen has been a victim of an unlawful or arbitrary interference with his privacy contrary to article 17 of the Covenant and whether he has been discriminated against his right to equal protection of the law according to article 26 of the Covenant. The Committee first- ly notes that consensual adult sex is covered by the concept “privacy” and that Mr Toonen is personally affected by the provisions in the Tasmanian criminal code, regardless of whether the law is enforced or not. There is no guarantee that the authorities will not enforce the law and that persons will not be prose- cuted in the future. The mere existence of the current provisions directly inter-

16 Supra note 15, paragraphs 1, 2.1-2.2, 2.4, 2.7 17 Ibid, paragraph 3.1 18 Ibid, paragraphs 6.1-6.14

12 feres with Mr Toonens privacy. To the question if the interference is arbitrary the Committee answers that even if an exception from the article is provided for by law it should be in accordance with the aims and purposes of the Cove- nant and reasonable in the circumstances. The sought effect must be in proportion to the interference and necessary in the given situation to be considered reasonable.19 The Committee does not accept the health and morals aim which the Government argues as a reason for the criminalizing of homosexual sex.

The aim the Government uses as justification for the provisions is that it will minimize the spread of HIV/AIDS. The criminalisation could, according to the Committee, in fact have the opposite effect by making the persons in risk for infection not seek appropriate help. The Committee does neither accept that the question of morals is an entirely domestic concern and notes that Tasmania is the only state in Australia that have not repealed laws that criminalize homosexual conduct. The interference is thus not reasonable and it is arbitrary.20

The Committee gives an interpretation of where the term “sexual orientation” fit in under the Covenants article 2 paragraph 1 and article 26 paragraph 1 and finds that it should be covered under the wording “sex” and not under “other status”. And concludes that there have been violations of Mr Toonens rights under the ICCPR articles 17.1 and 2.1 and that the effective remedy would be to repeal the disputed sections in the Tasmanian criminal code. The Committee however does not see a reason to examine a possible violation under article 26 of the Covenant.21 The Committee rejected arguments that it is only the risk of being arrested that was discriminatory and held that it is the existence of the provisions that violates the Covenant.22

The Committee however leaves some questions unanswered. One is the issue of morality as a legitimate aim for legislation of this kind. It uses the fact that the rest of Australia has decriminalised same-sex acts as an argument for the

19 Supra note 15, paragraphs 8.1-8.3 20 Ibid, paragraphs 8.5-8.6 21 Ibid, paragraphs 8.7,9-11 22 Milon, A., and Cowell, F, Decriminalisation of Sexual Orientation through the Universal Periodic Review, page 343

13 proposition that there is no need for such a legislation due to morality reasons in Tasmania. That makes it more difficult to argue for a repeal of criminalizing laws in states that have a homogenous negative view on adverse sexual orientation.23

The ECtHR has had several cases since the one of Dudgeon v United Kingdom concerning the violation of privacy rights in relation to sexual orientation and gender identity, many of which is treated in conjunction with the not autono- mous article 14 of non-discrimination. The HRC on the other hand has not had a chance to address the question of sexual orientation in relation to the right to privacy in a communication since the case of Toonen v Australia.24

2.2 Hate Crimes A hate crime is a crime motivated by intolerance towards a certain group. For a criminal act to qualify as a hate crime, it must meet two criteria: the act must be a crime under the criminal code of the legal jurisdiction in which it is committed, the crime must also have been committed with a bias motivation. Bias motivation means that the perpetrator chose the victim of the crime on the basis that the he or she belongs to a certain group. Groups can share specific charac- teristic that are protected, such as race, religion, ethnicity, language or sexual orientation.25

The criminalization of same-sex activities is not only notable on the micro level, regarding the risk of prosecution and the direct effects on a persons life and interference with his or hers privacy. It has also effects on the general perception of homosexuality and fuels intolerance and discriminatory violence against LGBT-persons in society. There is a connection between the criminalization of sexual orientation and homophobic violence, including violence committed by state actors. And there is also a tendency not to prosecute hate crimes motivated by homophobia. In states where the laws criminalizing homosexuality are enforced and sanctioned they have the effect that it “reinforces

23 Supra note 22, pages 343-344 24 Fisher, J., and O'Flaherty, M., Sexual Orientation, Gender Identity And International Human Rights Law: Contextualising The Yogyakarta Principles, pages 220-222 25 OSCE, Hate Crime, .

14 existing prejudice and legitimizes community violence and police brutality directed at affected individuals”26 The stigmatization that comes with the sodomy laws makes LGBT persons more vulnerable to hate based violence and threats.27

Hate crimes with homo- and transphobic motivation consist of both physical and psychological violence and attempts to punish the persons for their difference. The attacks can be of a more organized nature and then committed by people belonging to a group of extremists, they can be religious, political or military extremist, such as nationalists. There are different victim groups of bias-motivated crimes but the abuse directed at sexual orientation and gender identity persons seems to be extra vicious and there are frequent reports of killings with homophobic motivation. Elements of brutality, torture, mutilation and castration are not uncommonly noted. For example the Special Rapporteur on extrajudicial, summary or arbitrary executions has reported about at least 31 murders of LGBT persons in Honduras in a time period of 18 months. Among these 31 cases there was one murdered transgender woman who was found dead in a ditch, her body showed signs of burns and rape and severe stoning to the head to the grade of unrecognition. LGBT persons are also reported victims of so called honour killings.28

Hate crimes with bias-motivated violence directed at sexual minorities is a global problem and reported in all regions. In the European Union 988 cases of this kind of crimes were reported in 2007. They are reported in every member state of the Council of Europe. In the USA it is the second most reported mo- tive for hate crimes after racial-biased violence.29 In 2012 there were 1,318 reported hate crime offenses based on sexual-orientation bias in the United States.30 The Organization for Security and Co-operation in Europe (OSCE) has gathered information from their member states and NGOs in the region to examine the figures of reported hate crimes motivated with bias against LGBT-

26 Supra note 7, page 14 27 Ibid. 28 Ibid, page 9 29 Ibid, page 11 30 FBI, 5 Nov. 2013, .

15 persons. OSCE has 57 member states in Europe, Central Asia and Northern America. The reporting from the states, were there are any official figures, differs from the number of such crimes reported by NGOs which reports of more hate crimes against LGBT people. In addition, the official number reported by member states varies a lot. For example, as regards 2012 Finland reported 67 hate crimes, out of which 54 contained physical assaults, Germany reported 186 bias motivated hate crimes against LGBT persons, out of which 42 involved violence. Sweden provided official figures of 718 reported hate crimes against people based on their sexual orientation and 41 against transgender persons.31

2.2.1 Groups of sexual minorities and hate crimes Transgender persons tend to be perceived as breaking the general binary gender norms. This makes them especially vulnerable to abuse and violence. One transgender person is killed every month in the United States. There has been reportings of a certain amount of cruelty in the violence directed at transgender persons, such as forced oral-sex, burning with cigarettes and beating with different types of weapons.32 The common perception is that there are only two sexes and to break those fundamentally instated norms is often perceived as very provocative. The fact that transgender persons defy the constitution of two genders appears to put them in a very exposed and potentially dangerous position. The way transgender persons perceive their gender identity challenges our most basic classifications of people and that makes them misunderstood and extra vulnerable.33 There has been response to periodic reports from the HRC questioning their criticism of police violence directed at transgender persons, questioning that this group is not mentioned in the Covenant. The Committee insists that the groups of sexual orientation and gender identity minorities are included in the protection of the rights of the treaty, and has addressed this in a number of its periodic reviews. It criticises states for police violence and hostility towards this group and other authorities unwillingness to act against it, both

31 Hate Crimes In The OSCE Region: Incidents and Responses: Annual Report for 2012 . 32 Supra note 24, page 209 33 Supra note 22, page 209

16 in legislation and refusal of investigation and prosecution of hate crimes directed at sexual minorities. It further recommends training and education to address these issues. The number of hate crimes committed, physical and psychological abuses, does not at all correspond to the number of investigations of the crimes. The information and protection of this group is substandard.34 There are figures from a project about transgender-biased murders showing 680 murders of transgender people in 50 countries in a three year time period from 2008 to 2011.35

There is a tendency of a certain sort of violence directed at lesbians, the violence aims to cure or correct them from homosexuality. The violence often contains sexual elements such as “curative” rape to correct her sexuality. This sort of abuse is common in South Africa and the perpetrator is often known by the victim. Both homosexual and transgender women are in greater risk of being victims by discriminatory violence due to their additional gender inequality. In this way, they suffer from a double discrimination.36 Reporting of lesbians being attacked raped and even forcibly impregnated by rape come from several states. The Committee on the Elimination of Discrimination against Women (CEDAW) has expressed grave concern about the number of reported sexual offences against women on account of their sexual orientation. The Special Rapporteur on violence against women has reported incidents of gang rapes, family violence and murders experienced by lesbian, bisexual and transgender women in a number of countries. These groups of women tend to be at greater risk of being victims of rape and other sexual violence. There has also been reporting of murders specially directed at the group of lesbians in South Africa, there are cases of alleged stoning, beating and stabbing which has caused the death. 37 Lesbian and bisexual women are more likely to be assaulted in their home while homo- and bisexual men tend to be likelier victims of abuse in a public environment by unknown perpetrators.38

34 Supra note 24, pages 221,222 35 Supra note 7, page 9 36 Ibid. 37 Ibid, pages 10-11 38 Ibid, page 11

17 2.3 Prohibition of torture or other inhuman and degrading treatment The groups of sexual minorities are overrepresented as victims of torture and other forms of inhuman and degrading ill treatment. In detention environments, police stations and prisons, there is a hierarchy and LGBT persons are perceived to be at the lowest rank of the order and especially targeted of the violence are transgender persons. There is also a tendency of lesser protection from the police and prison staff for this group, which makes them extra vulnerable. The type of abuse in this environment lashes from threats of sexual abuses, to actual sexual abuse, medically unmotivated examinations of the anus, isolation and the intentional beating of transsexual women who are internation- ally beaten at breast implants to release toxins in their bodies. 39

The Committee against Torture addressed the matter in a General Comment. Accordingly, “The protection of certain minority or marginalized individuals or populations especially at risk of torture is a part of the obligation to prevent torture or ill-treatment. State Parties must ensure that, insofar as the obligations arising under the Convention are concerned, their laws are in practice applied to all persons, regardless of […] gender, sexual orientation, transgender identity…”40

2.4 Death penalty There are five countries in the world where the death penalty is imposed for homosexual activities between consenting adults. They are Iran, Mauritania, Sudan, Saudi Arabia and Yemen. Also certain jurisdictions in Nigeria and So- malia can enact the death penalty for crimes of homosexuality.41 In addition to all the human rights violations caused by provisions criminalizing same-sex conduct, the death penalty violates the right to life protected in all human rights instruments including article 6 of the ICCPR. The right to life is not seen as jus cogens, and state parties are allowed to prescribe the death penalty if they have not acceded to the second Optional Protocol to the ICCPR, binding them abol-

39 Supra note 7, page 12 40 CAT/C/GC/2/CRP, Committee against Torture, General Comment no. 2 para 21. 41 Supra note 22, page 342

18 ish the death penalty within their jurisdiction. Article 6 of the ICCPR states that the death penalty may only be used for the most serious crimes, and sexual relations between consenting adults are not normally considered as a serious crime. The use of death penalty in such cases is therefore a clear violation of the right to life. States that are parties to the ICCPR and use the death penalty for these crimes do this in contradiction to their international obligations.42 Following provisions from two countries criminal codes exemplify how legislation that criminalize homosexual acts and provides the death penalty can be formulated:

In Mauritania, the penal code contains the following provision: “Article 308. - Any adult Muslim man who commits an indecent act or an act against nature with an individual of his sex will face the penalty of death by public stoning”.43

In Iran, the Islamic penal code from 1991 states: Article 108: Sodomy is sexual intercourse with a male. Article 109: In case of sodomy both the active and the passive persons will be condemned to its punishment. Article 110: Punishment for sodomy is killing; the Sharia judge decides on how to carry out the killing. […] Article 121: Punishment for Tafhiz (the rubbing of the thighs or buttocks) and the like committed by two men without entry, shall be hundred lashes for each of them. Article 122: If Tafhiz and the like are repeated three times without entry and punishment is enforced after each time, the punishment for the fourth time would be death. Article 123: If two men not related by blood stand naked under one cover without any necessity, both of them will be subject to Ta’azir of up to 99 lashes.

42 Supra note 7, page 15 43 "STATE-SPONSORED HOMOPHOBIA - ILGA." . , page 52

19 Article 124: If someone kisses another with lust, he will be subject to Ta’azir of 60 lashes.44

2.5 Appraisal The core human rights are intended to be enjoyed by all without any distinction; for example the right to life, the right to security and liberty of person, the right to be free from torture, right to equality before the law and the right to self-determination. The enforced and also the unenforced sodomy laws main- tain and empower motives for harassment and ill treatment of sexual minorities. These rights are provided to protect everyone, including people of diverse sexual orientation and the criminalizing legislation empower the authorities to detain people on loose grounds, sometimes just to torment them. To live in constant fear of being abused, harassed or detained is a violation of the general human rights in it self. It limits your possibility to live your life fully and express who you are. It also limits the chance for any affected individual from exercising his/her right to self-determination.

44 "STATE-SPONSORED HOMOPHOBIA - ILGA." , page 70

20 3 Discrimination A core problem for the compatibility of sexual orientation with the human rights is discrimination. It is an obstacle for full enjoyment of all human rights. Non-discrimination is therefor a key concept in realisation of human rights for sexual minorities. Non-discrimination articles exist in all of the relevant international human rights conventions, for example in the UDHR article 2, ICCPR article 2, ICESCR article 2, CRC article 2 and ECHR article 14. One question to be answered is whether sexual minorities are included in the non-discrimination articles and to what extend they are protected? The HRC has in its survey of the member states’ performance has encouraged govern- ments to “guarantee equal rights to all individuals, as established in the Cove- nant…without discrimination on the basis of their sexual orientation”.45 The HRC and the CESCR have both repeatedly called on states to repeal laws discriminating sexual minorities and encouraged legislation that includes sexual orientation as a ground for prohibited discrimination. A constitutional protection against sexual orientation discrimination currently exists in six states. Other states have similar protection in regional constitutions or in general dec- larations on discrimination.46

Discrimination can be defined as differential in treatment that is not objective and reasonably justified. To be justified the differential treatment must pursue a legitimate aim. The aim sought also has to be in proportion to the interference of inequality in treatment.47 Sexual orientation and gender identity biased discrimination can be found in many different levels of society and exist in all regions. This chapter will examine the possible protection of sexual minorities against discrimination and focus on two areas, namely the fundamental freedoms including freedom of expression and the right to a peaceful assembly. It also examines its compatibility with social, economic and cultural rights such as the right to employment and health.

45 Supra note 7, page16 46 Ibid. 47 Trispiotis, I.. Discrimination and Cival Partnerships: Taking “Legal” out of Legal Recogni- tion, page 4

3.1 “Other status” The international human rights treaties provide protection from discrimination on the basis of “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.48 The question is if there is a protection of discrimination on the grounds of sexual orientation and gender identity in these articles. The grounds of discrimination referred to above and listed in article 2.1, ICCPR are not exhaustive. The formulation is open with intention to leave room for grounds that are not specifically mentioned in the Covenant. By using the expression “or other status” the drafters made it possible to interpret a prohibition on grounds such as age, disability, health status, sexual orientation and gender identity.49

The Human Rights Committee pointed out in the above-mentioned case of Toonen v Australia that sexual orientation as a ground for discrimination is protected under the article, but under the prohibition of discrimination on the grounds of “sex”, and therefor are protected under both article 2.1 of enjoyment of the covenant rights and under article 26.1 for equality before the law. The HRC has been criticised for placing sexual orientation in the “sex” category because that relates to the inequality between men and women and that is a different type of discrimination than the one of sexual orientation. On the other hand, the discrimination can be argued to be based on the fact that people think that divergent sexual orientation and gender identity defies the classic perception of gender.50

3.2 Fundamental freedoms An important aspect in accessing recognition of sexual diversity and realisation of rights for sexual minorities is the possibility to speak up and be able to express your identity. LGBT people and human rights defenders constantly try to raise awareness of the on-going injustice, abuse and discrimination suffered by groups because of their perceived or actual sexual orientation and gender iden-

48 UDHR article 2, ICCPR article 2.1, 26, ICESCR article 2, CRC article 2 and ECHR article 14. 49 Supra note 7, page 4 50 Supra note 24, pages 216-217

22 tity and work hard to put LBGT-rights on the human rights agenda. It is not uncommon that states discriminate sexual minorities through their legal practice by prohibiting their citizens to exercise their political rights and freedoms. In states were it is a criminal offence to be homosexual, these rights are suppressed as a direct consequence of the criminalization, and the fear of prosecution or abuse. The freedom of thought, opinion, expression and right to a peaceful assembly and association and also the individuals right to democratic participation are called the fundamental freedoms. They are a keystone in real- ising democracy in any society and are all declared in the UDHR, articles 18- 21.51

But there are other ways than criminalization for a state to limit the LGBT persons’ possibility to enjoy these fundamental freedoms and rights. In the ICCPR these rights are protected as right to hold opinion and the freedom of expression in article 19 as well as by the right to peaceful assembly in article 21. In the ECHR, these rights are protected in article 10 and 11 of freedom of expression and right to peaceful assembly.

In the case of Alekseyev v Russia, the ECtHR extended their jurisprudence of LGBT rights in relation to discrimination of homosexuals, as they found Rus- sia guilty of violating a homosexual man’s right to peaceful assembly. The applicant, Mr Alekseyev, a gay rights activist, claimed a violation of his rights as he had been refused permission to organise and hold a Pride march in Mos- cow in 2006. The applicant had been denied permission by the mayor on the grounds of public order, for the prevention of riots, the protection of health and morals and protection of freedoms of others. When the applicant instead tried to get permission for a picket on the same date he was again refused on the same grounds. He was not only denied the permission, he was also met with hostility and the mayor instated a working group with the instructions “to take effective measures for the prevention and deterrence of any gay-oriented public or mass actions in the capital city”.52 The following two years the authori-

51 Universal Declaration of Human Rights, 52 Johnson, P., Homosexuality, Freedom of Assembly and the Margin of Appreciation Doctrine of the European Court of Human Rights: Alekseyev v Russia, page 579

23 ties continued to refuse the applicant permission to hold a pride march and pickets on the same grounds. Mr Alekseyev made numerous challenges of the decisions in domestic courts without any success.53

He claimed violations of articles 11,13 and 14 of the Convention. The grounds of the claims were that the refusal of permission to hold a pride march or a picket was not in accordance with the law, not pursued any legitimate aim and had not been necessary in democratic society. The Government replied that they had acted according to law and within their margin of appreciation. The Government held that the legitimate aims for the refusal were protection of safety and prevention of disorder, protection of morals and rights and freedoms of others. The State party supported this aims with the fact that several religious groups had made hostile statements which indicated a safety risk if the march or picket was allowed.

The Court unanimously found that the applicant had suffered a violation of his right to a peaceful assembly, article 11, based on that banning the pride marches did not correspond to a pressing social need and was not necessary in a democratic society. The Court also found Russia guilty of violating the right to an effective remedy, article 13. The applicant had not received the decisions about permission before the dates of the events were planned to take place, for organisers of public events the timing is of great importance and thus he suffered a violation of his right to an effective remedy. The Court unanimously found that the Russian Federation had violated article 14, in conjunction with article 11 of the Convention.

The applicant claimed that the main reason he was denied the permissions was the fact that he is homosexual. The Government on the other hand claimed that the restrictions was not discriminatory, they were necessary.54 The Court recalled the fact that a violation solely based on article 14 is not possible but in conjunction with other articles. The ECtHR acknowledged that the reason for the ban of the demonstrations was disapproval from the authorities of activities

53 Supra note 47, page 580 54 Ibid, page 578-592

24 promoting homosexuality. The Court also recognized the publicly declared strong personal opinions stated by the mayor of Moscow as a confirmation of discrimination based on sexual orientation. The Court recalled that sexual orientation is a protected ground of discrimination by the Convention and concluded that the applicant had suffered discrimination as regards his right to a peaceful assembly, articles 14 and 11 of the Convention.55

This judgement is interesting in more than one way. In a previous judgement of a similar case about the right to peaceful assembly in accordance with article 11 and sexual orientation, Baczkowski and others v Poland, the Court ruled on the unlawfulness of a ban of a similar manifestation of equality. The Court did not accept that the authorities based their decision on the national Road Traffic act to ban the march, a legilation intended for politically neutral events such as marathons and races. It did not go further into if the restriction was legitimate or necessary in democratic society. In the same case, the Court also empha- sised the importance of pluralism in society, to recognize and respect diversity. It underlined that this was not restricted to political parties but also groups with other purposes.56

In the later case of Alekseyev v Russia the Court did not focus on whether the ban was unlawful or the interference was legitimate but directly asked the necessity question: “irrespective of the aim and the domestic lawfulness of the ban, it fell short of being necessary in a democratic society, for the reasons set out below…”.57 This is a clear expansion of the jurisprudence of article 11 of the Convention and has implications for states that wants to limit the freedom of expression or assembly for sexual minorities, for even if it is in accordance with law, it is now less likely to pass the necessity test. The judgement also implies that the legitimate aims do not automatically justify restrictions of fundamental freedoms for sexual minorities. The Court clearly rejected the Gov- ernment’s use of public safety as an argument for legitimate interference with the right. The Government had claimed that it was not possible for public au-

55 Case of Alekseyev v Russia, 2010, paragraph 109 56 Supra note 52, pages 582-583 57 Supra note 55, paragraph 69

25 thorities to guarantee the safety of the participants and that the security risks were to high. The Court stated that the mere risk is insufficient to ban an event and that the concerned authorities must evaluate posed threats or risks to be able to take necessary measures to secure the public and participants.58 The Court answered the arguments of public safety aims with that the risk cannot be so severe that the whole event had to be banned, let alone three years in a row. If the risk of disturbance, in form of possible confrontation from opposing groups, was decisive for banning of demonstrations there would be very hard to get permission for groups to express any opinion. It lies in the nature of opinions that others oppose them.59 This is a big step for sexual orientation in relation to the fundamental freedoms, because now the states have an expressed responsibility to counteract the possible threats of violence made against LGBT persons instead of depriving them their rights. This corresponds to a recommendation from the Committee of Ministers of the Council of Eu- rope that states: “Member states should ensure that law enforcement authorities take appropriate measures to protect participants in peaceful demonstrations in favour of the human rights of lesbian, gay, bisexual and transgender persons from any attempts to unlawfully disrupt or inhibit the effective enjoyment of their right to freedom of expression and peaceful assembly.”60 The Court uses the threats from extremist religious groups61 as an example and emphasizes that the correct thing would be to prosecute and hold the ones making threats responsible instead of banning the event. The Court suggests that authorities endorse homophobic threats like these if it does not respond sufficiently and oppose them. However the court finds that the argument of public safety is in any way subsidiary when considering the statements made by public figures, which imposes a moral objection to homosexuality.62

The jurisprudence on sexual minorities from the ECtHR has up until this case been very focused on the right to privacy. The Court has in many cases ruled on article 8, with or without conjunction of article 14. This might not only be

58 Supra note 52, page 584 59 Supra note 55, paragraph 77 60 Ibid, paragraph 51 61 For example in the case of Alekseyev v Russia: a Mumslim cleric from Nizhniy Novgorod who reportedly said that homosexuals must be stoned to death. 62 Supra note 52, page 586

26 considered as positive direction of the jurisprudence, it affirms and recognizes the rights for LGBT persons in the privacy of their own homes, for example concerning the criminalization of consensual same-sex activities. This distinction between private and public sphere can be used as an argument by states that want to keep elements of sexual orientation and gender identity suppressed and not publicly spelled out. For this reason the judgment of Alekseyev v Rus- sia takes an important step forward when confirming the significance of the right to a peaceful assembly for LBGT people. It underlines the importance of not preventing open debate about sexual minorities and that upholding of morals is no justification to exclude this debate from the public sphere. Also the Court recalls that there is no scientific proof that public discussion about these matters are in any way harmful for children or vulnerable adult as the Govern- ment in this case claims. Through this argumentation the Court extended the protection for sexual minorities to apply also to public rights. Restriction of such rights cannot be justified on the grounds of protecting public morality.63

A Third argument for justification of the ban was made both by the decision- making authorities and by the State party, that the events would promote homosexuality and therefor not be compatible with the religious groups in Rus- sian society. They claimed that the applicant’s right to a peaceful assembly would have to be restricted in favour of protecting the rights and freedoms of others, in this case freedom of religion. The authorities argued that “the gay parades would be perceived by believers as an intentional insult and a terrible debasement of their human dignity”.64 The Court did not give these arguments any support and placed no higher grade of protection for religion over rights of sexual minorities and highlighted what they stated in the earlier case of Bacz- kowski v Poland that democracy not only means the prevalence of the majority but stands for pluralism and tolerance, and should not let the larger group, in this case religious, dominate and use its power to suppress a minority, in this case sexual minorities.65

63 Supra note 52, page 587-588 64 Ibid, page 588 65 Ibid, page 588-589

27 The response to the Court’s judgement in the case of Alekseyev v Russia is not considered positive by all. The criticismis that the Court tends to continue to interpret the Convention as partially applicable when dealing with human rights and homosexuality rather than promote a more universal approach. The ECHR jurisprudence on the issue has over the last twenty years definitely progressed and narrowed member states margin of appreciation in questions concerning restrictions of rights for sexual minorities but it is inconsistent at times. The Court balances between the margin of appreciation of the states and the rights of the complaining individuals and that leads to diverging results. The jurisprudence is also criticizedfor being inconsistent in the way that the Court places great significance in the European consensus in the determination of a states margin of appreciation. This means that where there is lack of consensus the margin of appreciation is wider for example in the question of right to same-sex marrigae. The Court thus places much weight in that the general consensus of Europe is to recognize LGBT people and their right to freedom of expression and assembly, leading to the result that it found Russia guilty of a violation in the Alekseyev case.66 But in the very same case the Court makes a contradicting statement: “The Court further reiterates that it would be incompatible with the underlying values of the Convention if the exercise of Convention rights by a minority group were made conditional on its being accepted by the majority. Were this so, a minority group's rights to freedom of religion, expression and assembly would become merely theoretical rather than practical and effective as re- quired by the Convention…”67 So the Court bases its conclusion about a violation of article 11 on consensus of the majority of states in Europe but then states that it is incompatible with the values of the Convention to argue a compromised right of a minority based on the opinion of a majority. The Court has in previous case law proved to act as a legal reformer willing to recognize rights of minorities despite there is a lack of consensus from the majority of the contracting states.68

66 Supra note 52, pages 590-91 67 Johnson, P.. Homosexuality, Freedom of Assembly and the Margin of Appreciation Doctrine of the European Court of Human Rights: Alekseyev v Russia, page 591 68 Ibid, pages 591-592

28 It is in the Court’s mandate to work with the Convention as a living instrument and interpret it in the light of present day conditions and thus reform and rein- terpret meaning of the rights when needed. It should not be a problem to apply the consensus argument on the margin of appreciation doctrine. The Court’s statement about not letting the majority decide the rights of minorities is also understandable (even if a bit ironic in this context as the sexual minorities’ rights depend on the consensus among the heteronormative majority) it is likely that they mean that on domestic level it should not be possible for the larger part of a population to hinder the development of rights for sexual minorities. And reversed when extending such rights to the scope of the Convention, then the disagreeing minority of states, in this case Russia, should not be able to withhold rights from LGBT persons against the consensus of the other member states of the Council.

3.3 Discrimination of economic, social and cultural rights Discrimination on grounds of sexual orientation and identity is also an issue in realizing economic, social and cultural rights. The Committee on Economic Social and Cultural Rights (CESCR) addressed the issue in a general comment: “‘Other status’ as recognized in article 2(2) includes sexual orientation. States parties should ensure that a person’s sexual orientation is not a barrier to re- alising Covenant rights, for example, in accessing survivor’s pension rights. In addition, gender identity is recognized as among the prohibited grounds of discrimination; for example, persons who are transgender, transsexual or intersex often face serious human rights violations, such as harassment in schools or in the work place.”69

The CESCR has approached the interpretation of sexual orientation as a ground for discrimination in various general comments and frequently categorizes it under the “other status” section. It however expresses in a general comment that sexual orientation also may be interpreted under article 3 addressing the

69 E/C.12/GC/20, Committee on Economic, Social and Cultural Rights, General Comment No. 20 para 32.

29 equality between men and women.70 There are a few economic, social and cultural rights that are of special importance when discussing discrimination of sexual minorities, two of them will be examined under this section.

First of all the right to highest attainable standard of health in article 12 of the ICESCR, which states:

“1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: (a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;(b) The improvement of all aspects of environmental and industrial hygiene;(c) The prevention, treatment and con- trol of epidemic, endemic, occupational and other diseases;(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.”71

The CESCR clarifies the content of the article in General Comment No. 14, 2000, and stresses that non-discrimination applies to the right to health and that also includes discrimination on grounds of sexual orientation.72 The realisation of this right in combination with discrimination poses a number of problems for sexual minorities, first of all in states that criminalization of same-sex activities can have the direct effect that homosexual persons abstain from seeking medical help when needed because of fear that their sexual orientation would be “discovered” and that it would lead to prosecution and sanctions. The consequences of not getting adequate health care can be fatal and is certainly a problem for prevention of the spread and treatment of HIV/AIDS. In states where it is not illegal but the practices and overall attitude towards sexual minorities are negative it can have similar effects. Homo- and transphobic attitudes among staff of hospitals and other care-giving facilities can lead to

70 Supra note 24, pages 214-215 71 ICESCR article 12, 72 E/C.12/2000/4, Committee on Economic, Social and Cultural Rights, General Comment No. 14, para 12

30 inequality in, or inferior treatment of LGBT persons. Another is the risk of medical institutions trying to “cure” persons from their divergent sexual orientation or gender identity with so called reparative therapy, which is potentially harmful and only increases the feeling of stigmatization.73 Documentation shows that LGBT person has been forcibly submitted to medical institutions and exposed to electroshock-therapy to treat them from their sexuality. Same- sex couples are furthermore excluded from rights that heterosexual couples enjoy in health aspects, as visiting of non-biological children in hospitals and make medical decisions for an incapacitated partner.74

For transgender persons the right to highest attainable health is extra problem- atic. Gender reassignment therapy is not available everywhere and where it is possible to attain it is very expensive and states rarely give financial support for these nor does private insurances. There is also the issue of medically un- necessary surgeries for children who are born with uncharacteristic genitals, these persons are called intersex and are often subjected to medical procedures such as surgeries when they are babies without their parents’ consent.75 There is also the very controversial question of involuntary sterilisation of transgender persons who go through with gender reassignment therapy. Swe- den, which in some aspects is seen as a very LGBT-friendly state, was the first state to legislate on gender identity determination when adopting the so called “sex-change law” in 1972 which at the time was very progressive.76 Involun- tary sterilisations were a requirement for reassigning of sex and were in fact practised on transgender persons in Sweden up until the end of 2012.

The right to work in ICESCRs article 6 is also of importance when discussing sexual orientation and non-discrimination. It is not uncommon that persons are denied employment and employment-related benefits because of their sexual orientation or gender identity.78 States are obligated to protect individuals from discrimination in accessing and maintaining employment and the CESCR prohibits such discrimination on grounds of sexual orientation, and particularly

73 Supra note 7, pages 17-18 74 Supra note 24, pages 212-213 75 Supra note 7, pages 17-18 76 “Transpolitiskt program." - RFSL. Web. 25 May 2014. . 78 Supra note 24, page 211

31 directed at disadvantaged and marginalized groups and individuals. It further holds that it is a violation of the Covenant to exclude a person or group from the labour market by discrimination. ?

Many States have laws prohibiting discrimination in employment based on sexual orientation. These laws are essential for realization of the right to work for LGBT persons, whereas the absence of such protection allows employers to fire or not to hire someone simply because they perceive them to be of a divergent sexual orientation or gender identity. This sort of discrimination can lead to harassment and ill treatment and create the feeling of exclusion in work- places were sexual minorities are not accepted. Verbal harassment of LGBT persons in working places is very common.79

3.4 Other discriminations The HCR has dealt with the question of discrimination of sexual minorities in its communications. As already mentioned, sexual orientation is confirmed to be covered by the scope of the non-discrimination articles of the ICCPR and has been proven to be useful for complaining individuals when invoking inequality of treatment due to their sexual orientation and gender identity. For example in the communications Young v Australia and X v Colombia80 the HRC questioned distinctions, in laws concerning pension benefits, between same-sex partners and unmarried different-sex couples. The homosexual couples were excluded from such benefits and the heterosexual couples were granted.81

In Young v Australia the HRC found that the state did not provide any arguments to support that the distinction between same-sex and different-sex couples of survivor pension benefits were reasonable and objective. According to the Committee there were no evidence of factors justifying the distinction in the law and therefor found that Australia had violated article 26 of the Cove-

79 Supra note 7, pages16-17 80 Similar cases have been under consideration in the ECtHR in the cases Mata Estevez v Spain, Manec v France, Karner v Austria, Kozak v Poland, P.B and J.S v Austria, and J.M v United Kingdom. 81 Supra note 24, page 217

32 nant.82 In the case of X v Colombia, concerning a similar complaint, the Com- mittee noted that it had not been an option for the author of the complaint to marry, his now late, life partner and that the law did not make a distinction between married and unmarried couples but between hetero- and homosexual couples. The Committee made the same conclusion as in the previous case and found a violation of article 26 of the ICCPR, equality before and protection of the law.83

The HRC has repeatedly affirmed that distinction on the basis of sexual orientation, and the other categories of discrimination in articles 2 and 26 of the Covenant, do not automatically amount to a prohibited discrimination, as long as the distinction is based on reasonable and objective criteria. A distinction on the basis of sexual orientation requires particularly strong reasons for not to be considered discrimination. The Committee raises the issue of sexual oriented discrimination in a number of concluding observations of states under review and repeatedly comments on states failure to incorporate sexual orientation as a protected category of discrimination in domestic legislation.84 It is however not clear how far the protection of the non-discrimination reaches for non-state actors, but it invokes publicly supported or tolerated discrimination.85

There are other treaty bodies that address the question of sexual orientation based discrimination. For instance, the Committee on the Rights of the Child (CRC) stated in a general comment that the prohibition of discrimination includes even sexual orientation: It placed this prohibition under “other status” in article 2 of the Convention on the Rights of the Child.86

3.6 Appraisal Sexual orientation and gender identity are certainly used as grounds for discrimination. The general consensus of the UN treaty bodies is that the protec-

82 Young v Australia, Communication No. 941/2000, paragraph 10.4 83 X v Colombia, Communication No. 1361/2005, paragraph 7.2 84 Supra note 24, pages 217-218 85 Ibid, pages 219-220 86 Ibid, page 215

33 tion of non-discrimination also includes discrimination on grounds of sexual orientation. On regional level the ECtHR has concluded in several judgments that sexual orientation is included in the scope of the non-discrimination according to article 14 both in relation to the right to privacy and the fundamental freedoms. The inclusion of sexual orientation and gender identity in domestic legislation is significant to ensure protection from discrimination. The protection can be ensured both through implementing it as a constitutional ground against discrimination or/and through other more specific legislation. The actions of states in form of anti-discriminating legislation and efforts against discriminating practices are fundamental. The acceptance of and unwillingness to prosecute discriminating actions is a form of governmental approval of sexual orientation based discrimination.

34 4 Family Rights As mentioned in the introduction, the development of family rights for sexual minorities has in recent years progressed and the jurisprudence is adopting a gradual positive change of attitude towards sexual orientation and gender identity. The progressions are almost exclusively concentrated on the western part of the world and the largest change is seen in Europe and some of the parts of the United States of America and in South America. This chapter will focus on three main issues of sexual minorities and their developing rights; they are the recognition of same-sex relationships in form of civil partnership; in same-sex marriage, and the question of same-sex adoption.

4.1 Civil Partnership To get some form of legal recognition for long-term same-sex relationships, there are alternatives to marriage called civil partnership, civil union or registered partnership. In Europe there are currently 17 countries that offer civil partnership for same-sex couples and only two countries in which the civil partnership is for different-sex couples only.87 In 2013 the Grand Chamber of the ECHR, in the case of Vallianatos v Greece, found Greece guilty of violating the prohibition of discrimination on grounds of sexual orientation in the enjoyment of their right to personal and family life. The complaints concerned a civil-unionlaw that only allowed couples of different sex to register a civil union, as a more flexible alternative to marriage.

Greece invoked two main arguments for the exclusion of same-sex couples from the legislation. First, it was claimed that the goals of the civil union legislation were not relevant to same-sex couples. The intention of the law was to encourage different-sex couples with children, the traditional family to strengthen their bounds in a union as an alternative to marriage, and thus irrel- evant to same-sex couples, the relevance argument. Secondly, they argued that even if it was considered to be relevant there were other alternatives for same-

87 Trispiotis, I.. Discrimination and Cival Partnerships: Taking “Legal” out of Legal Recogni- tion, page 6. Lithuania and Greece are the two countries.

sex couples to regulate matters of social-security, property and insurance, through private law for de facto couples and through contractual agreements. Thus the state party claimed that civil partnership was not adding any new rights for same-sex couples and was therefor redundant, the redundancy argument. The applicant contested these arguments and claimed that the exclusion of same-sex couples from civil partnership was not objectively nor reasonably justified and constituted an unlawful discrimination of their family rights. The applicants further claimed that the exclusion of same-sex couples only contrib- uted to the prejudice of homosexuality and reinforced the state’s disregard of homosexuals.88

The Court took a very careful approach by underscoring that neither the complaint nor the judgement was about if Greece was under a positive duty to provide legal recognition for same-sex couples. The question was if the state through the legislation treated heterosexual couples more favourably than homosexual couples. The Court referred to its case law where it was established that sexual orientation is a prohibited ground of discrimination. Every distinction is not discriminatory but can only be considered legitimate if it pursues a legitimate aim and is reasonable and proportionate. Discrimination can be indi- rect, which means that the law is neutral in wording but discriminatory when applied as treating a group more favourable than another. This is of importance in this case as the states do not have a positive duty to provide same-sex couples with social benefits but can be compelled to extend such benefits when providing them to different-sex couples because then the state treats one group less favourable. The Court therefore has to use a comparable group or individual to decide if the differential treatment is discriminatory.

The Grand Chamber in Vallianatos v Greece compares hetero- and homosexual couples in stable relationships and concludes that they are equally capable of committing themselves to stable long-term relationships and thus in need of similar protection and recognition of their relationships. The treatment of the civil-union law is confirmed to be differential and the Grand Chamber exam-

88 Supra note 87, pages 1-3

36 ines if there is reasons justifying the difference in treatment. Recalling that the states’ margin of the appreciation is narrow when it comes to sexual orientation discrimination and requires the state to have particularly convincing reasons. It is up to the state to prove that the unfavourable treatment is necessary to achieve the sought aim. The aim Greece presented in this case was the protection of the traditional family and children with unmarried parents. The Grand Chamber rejected the necessity of the presented aim and it stated that the perception of the traditional family is changing. The consensus of the Council of Europe member states on the question of offering civil partnership for same- sex couples is clear but the judgement was based on the lack of particular convincing reasons for the discrimination and therefor it constituted a violation of article 8 in conjunction with article 14 of the Convention.89

An interesting fact of this case is the weight the Grand Chamber puts to an available alternative to marriage in form of an official recognition of some sort for same-sex couples. It can be read as there is no obligation for a state to provide same-sex marriage but if it does not, it should at least provide a civil union.90 The Grand Chamber rejected the argument that there were other legal options for same-sex partners to secure agreements than civil unions and marriage, such as private contracts. The Grand Chamber affirmed the intrinsic value in an officially recognized alternative to marriage, besides the legal effects. The value is according to the judgment in Vallianatos v Greece a formal recognition of the homosexual couple by the state and confirmation of an equal moral value and that the lack of the same can be seen as a negative statement on behalf of the state against same-sex couples.91

4.2 Marriage Currently there are 16 countries in the world and 18 states in the USA that al- low same-sex couples to marry. As recently as in 2013 and 2014 France and United Kingdom joined the group of states that allows same-sex marriage by legislation. Even if there is a trend on national level towards opening up for

89 Supra note 87, pages 3-6 90 Ibid, page 8 91 Ibid, page 12-14

37 same-sex marriage the jurisprudence on international and regional level has not yet concluded that not legalising same-sex marriage is a violation of the human rights.

The HRC has examined same-sex marriage in the communication Joslin et al. v New Zealand93 The authors of the communication, two lesbian couples, claimed New Zealand violated the ICCPR (articles 16,17,23 paragraphs 1 and 2 and article 26) by not allowing same-sex marriage. The HRC held that the Covenant does provide a right to marry for “men and women” and not the general terms that is used in other parts of the Covenant, such as “everyone” and “every human being”. The wording of the article has consistently been interpreted to mean a state obligation to recognize marriage between a man and a woman. The Committee can therefor not find a refusal of providing same-sex marriage constitute a violation of article 23.94

The ECtHR has had the opportunity to answer the question of same-sex marriage at a time when this debate was on the agenda in many European states, from the date of submission in 2004 to the time of the judgment in 2010 the number of states allowing same-sex marriage had grown from two member states to six. In the case of Schalk and Kopf v Austria the applicants, a homosexual male couple, claimed a violation of articles 8 and 12 in conjunction with article 14 of the ECHR by Austria for refusing to let them marry each other. The Court had not addressed the question of same-sex marriage previously. The relevant article 12 provides a right for “men and women of marriageable age” to marry. The Court has proven to be progressive in spite of the specific wording of the article in the previous case of Christine Goodwin v United Kingdom, when confirming the right of a transgender in their current gender person to marry someone of the opposite sex. However in the case of Schalk and Kopf the Court concluded that this was a question for the member states to determine and the decision about extending marriage to same-sex couples or

93 Joslin et al. v New Zealand, Communication No. 902/1999 94 Ibid, para 8.2-8.3

38 not lies within their margin of appreciation. The Court also held unanimously that there was insufficient consensus among the member states.95

4.3 Same-sex adoption Adoption of children by gay or lesbians families is a controversial subject that is often heatedly debated. The rights of LGBT persons and the rights and best interest of the child are of importance in these discussions.

There are different types of adoptions for same-sex couples. First,it can be a joint adoption where the parents adopt a child together without any relations to the child96; it could for example be a foster child that the family wants to adopt. Secondly, single persons can apply for adoption on their own, wordings in many relevant legislation do not explicitly exclude homosexuals from single adoption. In one case in Ohio, USA, an 8-year-old boy, Charles, was adopted by a homosexual man, Mr B. Charles suffered from leukaemia and was both mentally and physically disabled. He was neglected and abused by his parents and their custody was taken from them by the state when Charles was four years old. Charles met his future adopter, Mr B who was a counsellor at the department of human services. Their relationship turned into a warm and caring relationship on a personal level. Mr B ended up being the one who took care of Charles and decided that he wanted to adopt him. At last, after two years of appeal, the Ohio Supreme Court granted the adoption. Statues from psychologists had been very prejudicial to say the least but this was certainly a step forward on gay adoption as early as 1990.9798

Thirdly, there is second-parent adoption, which means that one partner adopts the other partner’s biological child, for instance if a woman is artificially inseminated with donor sperm and gives birth to a child and her partner adopts the child.99 If the parents are male the situation could be that the sperm of one

95Hodson, L.. A Marriage by Any Other Name? Schalk and Kopf v Austria, pages 170-172 96 Kohm L.M, Lindsey M, Catoe W, An International Examination of Same-sex Parent Adop- tion, page 240. 97 Dagne, S., Whether a Person can be Discriminated in adoption based on Sexual Orienation? Page 24. 98 Patterson, Charlotte J, Adoption of Minor Children by Lesbian and Gay Adults: A Social Sience Perspective, page 191-193 99 Supra note 96, page 240.

39 of the men is used to inseminate a woman who carries the child for the couple as a surrogate mother and then the other man adopts the child with the woman’s consent.100 Second-parent adoption can also mean that one person has adopted or had a biological child in a previous relationship and later on the new partner wants to adopt the child, also called stepparent adoption. The second-parent adoption does not seek to terminate the first parent’s parental rights.101

The laws in European states are starting to develop towards opening up for same-sex adoption. People working for LGBT rights see adoption as the next step in fight against the inequality, after decriminalization, the prohibition of discrimination and the right to equal partnership or marriage. The possibility to adopt for homosexuals varies a lot from country to country but the trend seems to be moving towards protection and promotion of the right to same-sex adoption.102 This development is going relatively fast and the changes started to evolve in the beginning of this century.103 In the United States the possibility for homosexuals to adopt differs a lot depending on the state. It is generally second-parent adoption that is possible in allowing states. There are eleven states of the United States that recognize some form of same-sex adoption104 and in two states; Florida and Mississippi, adoption for homosexuals are totally prohibited.105

4.3.1 The best interests of the child The focus of adoption in modern times are on the rights of the child, the general view is that an adoption should be in the best interest of the child that is being adopted.106 The European Convention on the Adoption of Children states in article 8 that “The competent authority shall not grant an adoption unless it

100 Dethloff, N., Same-sex Parents in a Comperative Persprective , page 200. 101 Supra note 96, page 240. 102 Ibid, page 242. 103 Ibid, page 252. 104 Ibid. 105 Supra note 100, page 196. 106 Supra note 97, page 21.

40 is satisfied that the adoption will be in the interest of the child”.107 In the Con- vention of the Rights of the Child (CRC) the best interest of the child is of great importance and is being declared in many ways in the articles. It is clearly stated in article 3.1 of the CRC: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, ad- ministrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”108 And more about adoption in article 21: “States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration…”109 So what do we mean when we speak of the best interest of the child? Concerning adoption the aim is to secure that the children are being adopted into caring families. It should be ensured that the adoptive parents are “providing children with stable and harmonious homes” and ensure “overall ability of the adopter to care for the child”.110

There are a growing number of families where same-sex parents are raising children and the acceptance of gay and lesbian relationships in the world is increasing.111 That leads to the fact that there will be a greater number of homosexual parents. It is in the child’s best interest that these relationships are protected formally. By adoption the adoptive parents and child get custody rights, right to financial support and the right to inherit the parents. This protection can be crucial if the parents separate or divorce later on in life. If there is no legal bound between the child and one of the parents there is no right for the non-biological parent to custody of the child. There is also a risk of a parent dying and without the adoption there is once again a lack of protection.112

There is also the possible situation of a foster child who has been living for a large part of his or her life with a family of same-sex foster parents and with no option of returning to the birth family. It would be in the best interest of a child

107 European Convention on the Adoption of Children art. 8, 108 The Convention of the Rights of the Child, 109 The Convention of the Rights of the Child, http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx 110 Supra note 96, page 239. 111 Supra note 100, page 195. 112 Ibid, page 200.

41 not to risk losing yet another family and to connect to the new parents legally.113

4.3.2 Case Law In the case of Fretté v. France the ECtHR ruled in favour of France and stated that there was not a human rights violation when the French domestic courts denied a gay man to apply for adoption. The French courts’explanation was to protect the health and the rights of the children and the ECtHR allowed the state a certain margin of appreciation.114

In the case of E.B. v France the applicant was a lesbian woman who had applied for a single parent adoption. The woman, E.B, worked as a nursery school teacher, she had a stable relationship with another woman but requested to adopt on her own. The government did not authorise her to apply for an adoption on grounds such as lack of a parental figure for the child and the woman’s “lifestyle”.115 The ECtHR recognized that the case of Fretté v France like the one of E.B v France both concerned single parent adoption by a homosexual but that the circumstances in the cases differed.116 The French government accepted that E.B. had good qualities for raising a child and was a caregiving person but denied her authorisation anyway because of lack of a male role figure. The judgement states that this cannot be a reason in itself when applying for single parent adoption. It is not a married couple that apply and therefore it is clear that there will be just one paternal or maternal role figure. The court held that this explanation was evidently based on the applicant’s sexual orientation.117

The government repeatedly expressed concern about the woman’s “lifestyle”, pointing to her relationship, as an argument of refusal. This fact revealed the underlying reason for denying her to adopt based on her sexual orientation.118 The ECtHRs Grand chamber voted 10 to 7 for a conviction of France for vio-

113 Supra note 100, page 201. 114 Case of Fretté v France, 2002 115 Case of E B v France, 2008, paragraphs 7-10 116 Ibid, paragraph 71 117 Ibid, paragraph 87 118 Ibid, paragraphs 88-91

42 lating the Conventions article 8, the right to privacy and family life in conjunction with article 14 on non-discrimination.119

There is also relevant case law on the area of second parent adoption from the ECtHR. In the case of Gas and Dubois v France the applicants were Ms G and Ms D, a lesbian couple who were cohabiting since 1989 in France. Together they went to Belgium were Ms D was artificially inseminated with donor sperm from a secret donor. She gave birth to a daughter in 2000. The couple raised the daughter together in their shared home and registered in civil partnership after the birth.120 Ms G applied for a simple adoption of her partner’s daughter in 2006 and was denied in several instances.121 In French domestic law there is two options for adoption, a full adoption that is reserved for married couples or an individual. In a full adoption the pre-existing parent-child relationship is being completely replaced with the new one. And then there is simple adoption were the ties to the existing parent can be left intact if the child is a minor and if it is the spouse of the parent who is the adoptive parent. If it is someone else than the spouse of the parent the parental rights are transferred from the parent to the adopting parent.122 The applicants argued there had been a violation of ECHR article 8 in conjunction with article 14. The ECtHR explained that: “…there must be a difference in the treatment of persons in rele- vantly similar situations. Such a difference of treatment is discriminatory if it has no objective and reasonable justification” for it to be a violation of article 14 of non-discrimination.123 It also declared that if the result of the adoption is that the rights of the biological mother are terminated it can not be in the child’s best interest when the mother intends to continue raising her child.124 To determine if there has been a violation of article 14 the situation has to be compared with the one of a married or unmarried heterosexual couple. The Court did not recognize that the couple can be compared to a married heterosexual couple and therefore decided to compare with the situation of an unmarried heterosexual couple. It did not find any difference in treatment in that

119 Supra note, 115, paragraph 98 120 Case of Gas and Dubois v France, 2012, paragraphs 9-10 121 Ibid, paragraph 12 122 Ibid, paragraphs 17-19 123 Ibid, paragraph 58 124 Ibid, paragraph 62

43 comparison and therefore found that there had been no violation of article 14 in conjunction with article 8 of the Convention. It is true that there is not an option for a homosexual couples to marry and claim the same rights as the married heterosexual couple but there is no obligation for states to grant same-sex marriage.125

And lastly, the most resent case from 2013, X and Others v Austria, which in many ways is similar to the case of Gas and Dubois v France. In this case there were three applicants, two lesbian women and the biological son of one them. The mother had sole custody of the child and the partner of the mother applied to adopt the son without severing the parental bound between the mother and the son. They lived together as a family and the two women where both raising the son.126 In this case there existed a legal father who apposed the adoption, as the new legal parental relation would replace his.127 The ECtHR did a comparison like the one in Gas and Dubois v France, and said that the situation of the applicants was comparable with a heterosexual unmarried couple.128 The court concluded that the Austrian domestic law made it legally impossible for a same-sex couple to adopt in the same way that unmarried heterosexual could. Therefore the applicants had been treated differently.129 The ECtHR stated that the “Convention is a living instrument to be interpreted in present-day conditions” and that it is necessary to “take into account developments in society and changes in the perception of social, civil-status and relational issues, including the fact that there is not just one way or one choice when it comes to leading one’s family or private life.”130 Taking all of the factors together with the importance of protecting the de facto existing family the court declared that there had been a violation of the Convention’s article 14 taken in conjunction with article 8.131

125 Supra note 120, paragraphs 64-73 126 Case of X and Others v Austria, 2013, paragraphs 9-11 127 Ibid, paragraph 14 128 Ibid, paragraphs 111-112 129 Ibid, paragraphs 114-116 130 Ibid, paragraphs 139 131 Ibid, paragraphs 146, 153

44 4.3.4 Same-sex parents There is a lot of prejudice about same-sex parenting, negative stereotypes shine through the judgments from national courts concerning same-sex parents. For example there has been cases in USA were parents have lost custody of their biological children solely because of their sexual orientation, with the hostile assumption of that a homosexual is unfit to be a parent.132 And yet there is no actual evidence that it would in any way be harmful for a child to grow up in a family with same-sex parents. No study shows that children of gay or lesbian parents have difficulties in developing compared to children of heterosexu- als.133 There are numerous of prejudice against same-sex families that have been proven wrong in studies, for example that living with gay parents would increase the chance of the child being gay. Or that children would be in greater risk of sexual abuse of same-sex parents, when it is actually the other way around, the majority of these types of crimes are committed by heterosexual men.134 Social science research is overall presenting a very positive image of children of same-sex parents and does not support any of the prejudice against them. To underline this fact more than 250,000 mental health experts from all over the USA subscribed to the following conclusion: "The presumption that a parent in an openly gay or lesbian relationship is an unfit custodian has no basis in fact.”135

Naturally the best interests of the child shall be the main consideration in every case of adoption. There is no reason why these interests should not be compatible with the rights of homosexuals wanting to adopt. I see no reason why the rights of the individual should exclude the rights of sexual minorities as a group. It is in the children’s interests to protect their relations with their parents. De facto same-sex families exist whether it is culturally or legally accepted or not and these families have the right to the same protection as any other. Therefor second parent adoption should be an alternative for same-sex couples.

132 Supra note 98, page, 197 133 Ibid, page 198 134 Ibid, page,199. 135 Ibid, page 201

45 4.4 Appraisal The family rights are certainly in a highly developing state right now and as we have seen the development, mainly in Europe, points to an increasing consensus. The ECtHR shows a progressive jurisprudence and an incorporation of the rights of same-sex couples in the scope of the Convention rights. Step by step the states’ margin of appreciation with respect to sexual orientation questions is narrowed. As of today there is no declared positive obligation for states to provide civil unions or marriage for same-sex couples. But an exclusion from civil union alternative is considered as a violation of the Convention. With the growing consensus on the acceptance of homosexual couples in Europe it is a question of time before an exclusion from same-sex marriage constitutes discrimination of the right to marriage. This is possible because of the fact that the Convention is a living instrument even if the definition of marriage in article 12 is drafted in a gender-specific way.

Concerning adoption the recent case law shows in what direction the development is going and it is positive. Times are changing and so is the perception of family. For now this changes concentrate on the western part of the world but is undeniably spreading in Europe and will hopefully not stop there. Finally the studies show us that there is no substance in the prejudicial presumption that homosexual parenting would be in any way harmful for the children. It is of great importance to abolish these myths about gay parenting and that can be done by legally recognizing the same-sex right to be parents. Even if the right to joint adoption for same-sex couples has not developed to the same extent as the other two, the fact that more and more countries are allowing same-sex marriage is of importance. Joint adoptions, which mostly are reserved to married couples, will then be a possibility for same-sex married couples as well.

5 General Conclusions

The study has shown that there is protection for sexual orientation and gender identity in international human rights law, both on international and regional level. Sexual orientation and gender identity are expressed to be included as right holders by the UN through the Resolution adopted by the Human Rights Council. The Resolution recalls the concept of universality of human rights set forth in the UDHR and that it shall be applied on the human rights in all the relevant conventions, the principal of universality is crucial when speaking of the rights of minorities.136

There are three generations of rights, the first are the civil and political rights, the second are the economic, social and cultural rights and the third generation of rights is called group rights or collective rights. These third generation rights are developing fast and are expanding to include more groups of minorities. To incorporate the rights of sexual minorities in already existing treaties and conventions of international human rights law is not a simple task and it takes time. This leads to a protection consisting of a patchwork of interpretations in communications, judgments, general comments and periodic reviews and reports. The term “other status” was intentionally used in drafting of the human rights instruments to leave room for this sort of interpretation. The protection of sexual orientation and gender identity in international human rights law is therefor hard to overlook and a bit unpredictable.

Criminalization of homosexuality is confirmed to violate the right to privacy and equality and states that continue to make homosexual sex between consenting adults a criminal offence is doing so against their international obligations. Both the HRC and the ECtHR has established that laws criminalizing homosexuality constitute in a breach of these rights. It is also clear that laws of this sort have effects that reach beyond prosecution and punishment. Sodomy-laws

136 Supra note 5

47 contribute to stigmatization of homosexuals and support both state actors and non-state actors in prejudice and discriminatory treatment of LGBT persons. To criminalize an act is a clear way for a state to say that this behavioral is not accepted or tolerated. This view is translated in to society and acted out in violence, ill treatment and alienation of the minority group. To act out your divergent sexual orientation or gender identity in a state where it is unaccepted by law can have severe consequences. Apart from that the sodomy-laws are incompatible with states international human rights obligations there is also the additional protection of the core human rights as the right to life, security of person and the right to be free from torture, which prohibits states to act in a way that would violate these rights, regardless of a persons sexual orientation or gender identity. The Yogyakarta principles clarifies the necessary action of states is to decriminalize consensual homosexual sex to fulfill their responsibil- ities. The question is however politically controversial and there are many countries were the rights of LGBT persons is not recognized and there are per- sistent states that continue to claim that there is no legal foundation for the protection of sexual minorities in international human rights law.137

Sexual orientation is furthermore an international protected ground for discrimination, this has been confirmed through treaty body channels such as general comments and communications and by the legal practice of the European Court of Human Rights on the regional level. The level of experienced acceptance and tolerance for LGBT people is connected with the states ability to include them in legal protection of non-discrimination provisions.

The gap between the factual legal protection and some states unwillingness to recognize sexual minorities rights can be explained with the contradictions between the principle of universality contra cultural relativism. UN Secretary General Ban Ki-moon has addressed these issues in several speeches and following quote gives a clarification of the contradictions and that universality must prevail:

137 Supra note 22, page 344

48 “As men and women of conscience, we reject discrimination in general, and in particular discrimination based on sexual orientation and gender identity. Where there is a tension between cultural attitudes and universal human rights, rights must carry the day,”138

Concerning the developing family rights, as a result of the ECtHRs practice trough recent judgments we can see an expansion of the protection of LGBT persons privacy and family rights. The states margin of appreciation has narrowed in issues of interference with a persons privacy on grounds of sexual orientation. Although not confirming any positive obligations for the states to provide civil-union or marriage for same-sex couples it is cleat that discriminating and unfavorable treatment of individuals solely based on their sexual orientation and gender identity is a violation of the Convention. In the current pace of the development of LGBT rights in Europe and the growing consensus the progressions will surely continue to develop.

Realization of the rights can be described with three steps: decriminalization, non-discrimination and family rights. Repealing of the criminalization that exists in 76 states should be the priority in the continuing work towards realization of the rights for sexual minorities. The next step should be to ensure the equality through non-discrimination on grounds of sexual minorities and gender identity, through national legislation and practice. The third step is the realization of family rights. The Yogyakarta principles can be used as a way of defining and clarify the legal position, as of how to apply sexual orientation on human rights. The protection exists, it is however doubtful if it is sufficient and it is in all cases not efficient. More specific legislation is not a solution in it self, the application of the Yogyakarta principles can supply the information needed to understand the protection of sexual orientation and gender identity in human rights law. The core problem lies within attitudes and deeply rooted cultural prejudice. It is important to continue to address the prejudice with actions of tolerance and acceptance to overcome these obstacles and to support the concept of universality in relation to sexual orientation and gender identity.

138 Combatting discrimination based on sexual orientation and gender identity http://www.ohchr.org/en/issues/discrimination/pages/lgbt.aspx

50 6 References

6.1 Articles Dagne, S., Whether a Person can be Discriminated in adoption based on Sexu- al Orienation, International Journal of Baltic Law, Vol 3, No3, pp 20-38, 2007.

Dethloff, N., Same-sex Parents in a Comperative Persprective, International Law Forum Du Droit International, Vol 7, Issue 3, pp 195-205, 2005.

Fisher, J., and O'Flaherty, M., Sexual Orientation, Gender Identity And Inter- national Human Rights Law: Contextualising The Yogyakarta Principles, Hu- man Rights Law Review: pages 207-248, 2008:2, Oxford University Press.

Hodson, L.. A Marriage by Any Other Name? Schalk and Kopf v Austria, Hu- man Rights Law Review: pages 170-179, 2011:1, Oxford University Press.

Johnson, P.. "Homosexuality, Freedom of Assembly and the Margin of Appre- ciation Doctrine of the European Court of Human Rights: Alekseyev v Russia, Human Rights Law Review: pages 578-593, 2011:3, Oxford University Press.

Kohm L.M, Lindsey M, Catoe W, An International Examination of Same-sex Parent Adoption, Regent Journal of International Law, Vol. 5, Issue 2, 237- 268, 2007.

Milon, A., and Cowell, F. Decriminalisation of Sexual Orientation through the Universal Periodic Review, Human Rights Law Review: pages 341-352, 2012:2, Oxford University Press.

Patterson, C. J., Adoption of Minor Children by Lesbian and Gay Adults: A Social Sience Perspective, Duke Journal of Gender Law & Policy, Vol. 2, pages 191-206, 1995

Trispiotis, I.. “Discrimination and Cival Partnerships: Taking “Legal” out of Legal Recognition” Human Rights Law Review: 1-16, 7 april 2014, Oxford University Press.

6.3 Cases ECtHR Case of Dudgeon v United Kingdom, 1981, application no. 7525/76. Case of Fretté v France, 2002, application no. 36515/97. Case of E B v France, 2008, Application no. 43546/02. Case of Alekseyev v Russia, 2010, application no. 4916/07, 25924/08 and 14599/09. Case of Gas and Dubois v France, 2012, application no. 25951/07. Case of X and Others v Austria, 2013, application no. 19010/07. HRC Tooen v Australia, Communication No. 488/1992 Joslin et al. v New Zealand, Communication No. 902/1999

Young v Australia, Communication No. 941/2000

X v Colombia, Communication No. 1361/2005

6.4 Treaties CRC - http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx ICCPR - http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx ICESCR - http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx ECHR - http://www.echr.coe.int/Documents/Convention_ENG.pdf UDHR - http://www.un.org/en/documents/udhr/ European Convention on the Adoption of Children - http://conventions.coe.int/Treaty/en/Treaties/Html/058.htm

6.5 UN documents Committee on Economic, Social and Cultural Rights, General Comment No. 14, E/C.12/2000/4.

52 Committee on Economic, Social and Cultural Rights, General Comment No. 20, E/C.12/GC/20.

Committee against Torture, General Comment no. 2, CAT/C/GC/2/CRP

Report of the United Nations High Commissioner of Human Rights, “Discrim- inatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity.”, A/HCR/19/41, 17 November 2011.

Resolution adopted by the United Nations Human Rights Council, “17/19 Hu- man rights, sexual orientation and gender identity”, A/HRC/RES/17/19, 14 July 2011.

6.6 Web All last visited 25 May 2014. Anti-Homosexuality law in Uganda violates human rights and endangers LGBT people

“Combatting discrimination based on sexual orientation and gender identity” – UN Office for the High Commissioner for Human rights website

FBI, 5 Nov. 2013,

Hate Crimes in the OSCE Region: Incidents and Responses Annual Report for 2012,

53 ILGA-Europe Glossary,

OSCE, Hate Crime,

"STATE-SPONSORED HOMOPHOBIA - ILGA."

“Transpolitiskt program." – RFSL,

Yogyakarta principles,