EnGendeRights Calls on the Member States of the UN to Uphold the Right to Sexual Orientation at the Human Rights Council Universal Periodic Review

by Clara Rita A. Padilla

April 10, 2008, Geneva—“It is the obligation of every state party to Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Civil and Political Rights Covenant, the Economic, Social and Cultural Rights Covenant, the Convention on the Rights of the Child, and the Convention Against Torture, to fulfill its obligations to respect, protect and fulfill the rights of lesbians, gays, bisexuals, transgender and intersex (LGBTIs),” says Clara Rita Padilla, Executive Director of EnGendeRights and a lawyer based in the Philippines.

On the occasion of the Universal Periodic Review (UPR) of Ecuador, Slovenia expressed their concern on the torture of LGBTIs and asked what the Government is doing to apply the principle of universality and overall international human rights law in relation to sexual orientation and gender identity. Slovenia recommended that Ecuador further strengthen its commitment to non-discrimination against LGBTIs and urged the application of the Yogyakarta Principles to uphold LGBT rights.

In the Report of the Working Group on the UPR, Ecuador fully cooperated and agreed to “implement measures to combat discrimination on the ground of sexual orientation and gender identity, as well as other human rights violations against the gay, lesbian, bisexual, transsexual and transvestite community.”

The Egyptian delegation initially raised concern about the inclusion of said recommendation in the Working Group report on Ecuador saying that the issue of sexual orientation is not yet universally recognized.[1] It was agreed at the plenary, however, that such recommendation should be maintained since Ecuador had already committed itself to uphold the right to sexual orientation in its national report, inter alia.

Clara Rita Padilla stressed, “A clear expression of the affirmation of the rights to sexual orientation and gender identity is the March 26, 2007 Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity released by international human rights experts in a worldwide call for action against sexual orientation discrimination.” “The Principles were adopted by 29 distinguished experts in international law following a meeting in Yogyakarta, Indonesia. Among the group of experts were former United Nations High Commissioner for Human Rights and former President of Ireland Mary Robinson, UN independent experts including Philip Alston (UN Special Rapporteur on extrajudicial, summary and arbitrary executions) and Paul Hunt (UN Special Rapporteur on the right to the highest attainable standard of health), current and former members of human rights treaty bodies, judges, academics and human rights defenders,” said Clara Rita Padilla. Sonia Onufer Corrêa of Brazil, who co-chaired the experts’ group said, “ [W]omen, men and persons whose sexuality does not conform with dominant norms face rape, torture, murder, violence, and abuse because of their sexual orientation or gender identity. These Principles affirm that human rights admit no exceptions.”

The Committee on the Elimination of Discrimination Against Women (CEDAW Committee), tasked to monitor CEDAW, issued General Recommendation 21 recognizing that “[t]he form and concept of the family can vary from State to State, and even between regions within a State.”[2] The Committee has also asked states parties to reconceptualize lesbianism as a sexual orientation and to abolish penalties for its practice.[3]

The Human Rights Committee, tasked to monitor to the Civil and Political Rights Covenant, recognized in General Comment 19 that the concept and structure of family may differ from state to state and that the right to marry and found a family may be based on diverse definitions of families and relationships.

To state the truth also about the freedom to choose who to have sex with including same-sex, there are many countries allowing same-sex, civil unions, and the like. Same-sex marriages are recognized in Netherlands, Canada, South Africa and even in the predominantly Catholic countries such as Belgium and Spain.[4]

In the Philippines, there is no legal recognition of marriage or partnership with regard to lesbians and bisexual and transgender women. It is significant, however, that women victims of abuse in lesbian relationships are accorded the same protection under the Anti-Violence Against Women and Their Children Act since Sec. 3 includes “any person with whom the woman has or had a sexual dating relationship.”

Cases decided by the Human Rights Committee uphold the right to sexual orientation. In the case of Toonen v. Australia Comm. No. 488/1992 (1994), the Human Rights Committee found that the prohibition of private homosexual behavior is an arbitrary intrusion on privacy rights (Article 17 of the Civil and Political Rights Covenant).

In the case of Young v. Australia (2003) Communication No. 941/2000, the Repatriation Commission denied Young’s application for pension for his war veteran same-sex partner of 38 years. The Human Rights Committee decision found a violation by Australia of article 26 of the Covenant (equality before the law and non-discrimination) and that Mr. Young is entitled to reconsideration of his pension application without discrimination based on his sex or sexual orientation, if necessary through an amendment of the law.

In the 2003 Concluding Observations on the Philippines, the Human Rights Committee urged the Philippine government to “take the necessary steps to adopt legislation explicitly prohibiting discrimination” and “to pursue its efforts to counter all forms of discrimination” pertaining to sexual orientation.[5] The Committee further urged the Philippines to “strengthen human rights education to forestall manifestations of intolerance and de facto discrimination.”[6]

On the issue of change of name and identity, there are cases where the Human Rights Committee found that a petition for change of name should be granted because the right to choose one’s name and identity is covered by the right to privacy under Article 17 of the Civil and Political Rights Covenant.[7]

“The Member States of the UN must uphold the right to sexual orientation at the UPR,” Clara Rita Padilla stressed.


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FOOTNOTES:

[1] On the night of May 10, 2001, the Cairo 52 were arrested and fifty defendants were charged with "obscene behavior" under a law against prostitution (Article 9c of Law No. 10 of 1961 on the Combat of Prostitution) and two were charged, in addition, with "contempt for religion" under Article 98f of the Penal Code. There were reports of torture and ill-treatment of some of the detainees including anal examinations to "prove their homosexuality." The names and pictures of the detained men were published in Egyptian newspapers. See http://www.iglhrc.org/site/iglhrc/section.php?id=5&detail=108

[2]General Recommendation 21, Equality in Marriage and Family Relations, supra note 11, Comment No. 13 on Art. 16 Various forms of family.

[3]CEDAW Concluding Observations on Kyrgyzstan. 27/01/99. CEDAW/C/1999/I/L.1/Add.3, par. 35.

[4]“Homosexuality laws of the world” available at http://en.wikipedia.org/wiki/Homosexuality_laws_of_the_world; Civil Partnerships in United Kingdom, Falkland Islands; Civil Unions in Mexico City, New Zealand, Buenos Aires City, Colombia, Uruguay; registered partnerships in Czech Republic, Denmark, Finland, Germany, Iceland, Luxembourg, Norway, Slovenia, Sweden, Switzerland; Civil Unions, Domestic partnerships, Same-sex marriage in certain states in the US; registered and domestic partnerships in Australia.

[5]Concluding observations of the Human Rights Committee: Philippines : Philippines. 01/12/2003, CCPR/CO/79/PHL, 1 December 2003 available at http://www.unhchr.ch/tbs/doc.nsf/0/5c1a26dde6327ef0c1256df300525589?Opendocument

[6]Id.

[7]Coeriel and Aurik v. The Netherlands (1994); In the case of Goodwin v United Kingdom (2002) and I. v United Kingdom (2002), the European Court of Human Rights considered the cases of two transsexual women who claimed that the United Kingdom’s refusal to change their legal identities and papers to match their postoperative genders constituted discrimination. Reversing a number of its previous decisions — and offering a major victory for transgender people’s rights — the Court held that their right to respect for their private lives, and also their right to marry, had been violated (articles 8 and 12 of the European Convention).