The Equal Rights Trust The Equal Rights Review The Equal Rights Trust (ERT) is an independent international organisation whose Promoting equality as a fundamental human right purpose is to combat discrimination and promote equality as a fundamental human right and a basic principle of social justice. and a basic principle of social justice Established as an advocacy organisation, resource centre and think tank, ERT discrimination, developing strategies for translating the principles of equality into practice.focuses on the complex and complementary relationship between different types of In this issue: ■ The Ugandan anti-homosexuality bill Chair of the Board: Bob Hepple ■ Northern Ireland transformed Board of Directors: Sue Ashtiany ▪ Tapan Kumar Bose ▪ Shami Chakrabarti ▪ by affirmative action Claire L’Heureux-Dubé ▪ Gay McDougall ▪ Bob Niven ▪ Sonia Picado ▪ Michael Rubenstein ▪ Theodore Shaw ▪ Sylvia Tamale ■ HIV-based discrimination in China Founding Chair: Anthony Lester ■ Gender equality jurisprudence Executive Director: Dimitrina Petrova in Africa Staff: ▪ James Fitzgerald (Advocacy ■ Testimony from Western Sahara Ellen Leaver (Legal Intern) ▪ ▪ activists KatherineJarlath Clifford Perks (Legal(Legal Researcher)Officer) ▪ Kelly Scott (Executive Assistant)and Communications ▪ Serap Yildirim Officer) (Financial and Administrative Manager) ■ Role of the judiciary in developing equality Consultants: Felicitas Aigbogun ▪ David Baluarte ▪ Amal De Chickera ▪ Stefanie Grant ▪ Muhsin Hendricks ▪ Chris Lewa ▪ Pratibha Menon ▪ Elizabeth Mottershaw ▪ ▪ Gail Saliterman Laban Osoro Volunteers: Anne-Marie Forker ▪ Vania Kaneva Sponsors: Arcus Foundation ▪ Ford Foundation ▪ J. M. Kaplan Fund ▪ King Baudouin Foundation ▪ Network of European Foundations ▪ ▪ ▪ Tides Foundation ▪ UK Department for International Development ▪ UK Foreign Oak Foundation Open Society Institute and Commonwealth Office The Equal Rights Review Volume Four (2009) Four Volume Review Rights The Equal Biannual publication of The Equal Rights Trust Volume Four (2009) Contents 3 Editorial The Sexual Orientation Frontier Articles 7 Christopher McCrudden, Raya Muttarak, Affirmative Action without Quotas in Heather Hamill, Anthony Heath Northern Ireland 15 Wan Yanhai, Hu Ran, Guo Ran, Discrimination against People Linda Arnade with HIV/AIDS in China 26 Sibongile Ndashe, Solomon Watch the Courts Dance: Litigating the Right Sacco to Non-discrimination on the Ground of Sex 35 Amal De Chickera Through the Lens of Dignity: An Essay on Equality and Liberty Special 49 Sylvia Tamale A Human Rights Impact Assessment of the Ugandan Anti-homosexuality Bill 2009 58 ERT Legal Brief on the Ugandan Anti-homosexuality Bill 2009 71 Naz Foundation v. Government of NCT of Delhi and Others: ERT Case Note Testimony 77 Torture and Discrimination in Western Sahara Interview 87 Equality in the Courts – A Judicial Perspective: ERT talks with Claire L’Heureux-Dubé and Kate O’Regan Activities 99 Jarlath Clifford Workshop Report, Mumbai, 12-13 December 2009 109 Jim Fitzgerald The Equal Rights Trust Advocacy 116 Update on Current ERT Projects 120 ERT Work Itinerary: July – December 2009 2 Editor: Dimitrina Petrova © DecemberAssistant 2009 Editor: The Jarlath Equal CliffordRights Trust PrintedDesign in and the layout:UK by Prontaprint Dafina Gueorguieva Bayswater ISSN: 1757-1650 The Equal Rights Review is published biannually by The Equal Rights Trust. The opinions expressed in authored materials are not necessarily those of The Equal Rights Trust. All rights reserved. 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The Equal Rights Review, Vol. Four (2009) 3 Editorial The Sexual Orientation Frontier The second half of 2009 contained two very dif- tion on the basis of sexual orientation or gender - identity very often intersects with other forms of discrimination, for example with discrimina- judgmentferent days in of the the Nazglobal Foundation struggle for case, LGBT decrimi equal- tion on the basis of HIV/AIDS status, as shown by ity. On 2 July 2009, the Delhi High Court, in its 2009, an absurd bill proposing to criminalise - nalised homosexuality in India. On 14 October- sistingWan Yanhai homophobic and others legislation in this issue. increasingly On the othermeet ure to report homosexuals to the police within withhand, opposition cultural and from religious heterosexual justifications rights for advo per- 24even hours, the promotion was introduced of LGBT in rightsthe parliament and the fail of cates, on the basis of the universality of human Uganda. So, where are we heading: forward, to- rights and the ensuing need for comprehensive- wards a growing global recognition of the equal ness and consistency of equality legislation. greater discrimination against people on the ba- sisrights of theirof LGBT sexual persons, orientation, or backwards, gender towardsidentity universal right to equality that The Equal Rights and gender expression? It is in this nexus between LGBT rights and the According to the Yogyakarta Principles, sexual typesTrust situatesof discrimination, its own efforts. its strengthAs the Trust's is in focus ap- orientation is understood to refer to each per- is on the complex relationship between different- - tional and sexual attraction to, and intimate and outproaching of an integrated LGBT equality equality from agenda. a unified In perspecpractical son’s capacity for profound emotional, affec terms,tive and this not means allowing that whereverLGBT equality our work to be takes left gender or the same gender or more than one us, be it to a round-table on draft anti-discrimi- sexual relations with, individuals of a different nation legislation in Nairobi or a training work- each person’s deeply felt internal and individual shop for equality lawyers in Mumbai, we make a experiencegender. Gender of gender, identity which is understood may or may to notrefer cor to- respond with the sex assigned at birth, includ- ing the personal sense of the body (which may explicitlypoint – and on if the needed agenda. a fuss – about having LGBT representatives in the room and LGBT equality appearance or function by medical, surgical or The rights to equality and non-discrimination otherinvolve, means) if freely and chosen, other expressionsmodification of of gender, bodily apply to all people regardless of their sexual including dress, speech and mannerisms. orientation or gender identity. The Equal Rights Trust incorporates this understanding in all its Few issues within international human rights projects, advocating that states should give ef- fect to the principles of equality and non-dis- controversy among states. Yet the good news crimination on the basis of sexual orientation can compete with LGBT rights for a record of and gender identity in their national constitu- legitimately extricated from universal human tions or other appropriate legislation, if not yet is that LGBT rights can no longer be easily or far from being an exception, is rather the rule in achieved through amendment of legislation or therights. phenomenology On one hand, of multipleinequalities. discrimination, Discrimina- judicialincorporated interpretation. therein. In“Giving its legal effect” opinions, may ERT be The Equal Rights Review, Vol. Four (2009) 4 often seeks to derive, if possible, the protection apart from the legal indivisibility characterising human rights, there is also the issue of human norms and doctrines already existing in national rights politics, an area governed by the stark divi- andof equal international rights for LGBTlaw. This persons approach from concepts,of walk- sion in political interests. Dr Tamale draws atten- ing on a sometimes narrow and shaking bridge tion to the crucial question why homosexuality, a of legal continuity is complementary to the ap- phenomenon that has always existed in African proach of ringing alarm-bells about the real-life as well as non-African societies, is being politi- cised in her country at this particular moment, - and what political purpose is being pursued, at triesrift between with illiberal the capabilities blockages to of the LGBT recognition and non- of this point in time, by the obsession with people’s LGBT persons to participate in society. In coun their bedrooms. LGBT rights, both approaches are necessary. different ways of making love in the privacy of discrimination is very empowering, as it allows In an exciting current project, ERT is looking toERT’s construct unified both framework legal continuity on equality