Are LGBT rights human rights? Recent developments at the United Nations
By Juneau Gary and Neal S. Rubin, PhD
With the increased global media attention on violent acts of persecution inflicted on Lesbian, Gay, Bisexual & Transgender (LGBT) persons, a crucial question before the world community today is whether gay rights are included under our basic human rights. At the United Nations, this question is slowly taking center stage, but it is not at all clear what the U.N. deliberations will yield from the linkage between gay rights and human rights. Foundational U.N. documents appear to provide guidance. For example, the Charter of the United Nations (1945)1 encourages "respect for human rights and for fundamental freedoms for all without distinction‖ in Chapter I, Article 1, #3. Similarly, the Universal Declaration of Human Rights (1945)2 states in Article 2: "Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind." Regardless, among a substantial percentage of Member States that have sworn to protect the human rights of their citizens, same sex relations remain illegal. This article will outline recent developments at the United Nations and discuss the progress that has been made with regards to including gay rights under the legal protections of human rights.
Human Rights Day, December 2010 & 2011: Marking the occasion of Human Rights Day on December 9, 2010, U.N. Secretary-General Ban Ki-moon spoke at a Ford Foundation event in New York City entitled, "Speak Up, Stop Discrimination." The event honored human rights defenders — those courageous women and men who strive to make human rights a reality for everyone, everywhere. In this speech, Mr. Ban called for individuals to stand up for the rights of all and specifically referred to defending the rights of people jailed for their sexual orientation. This statement clearly identified his advocacy for the issue of gay rights in the context of human rights, and in so doing, placed this issue on the agenda of the United Nations.
The following year, in a Human Rights Day address to the United Nations in Geneva, Switzerland on Dec. 6, 2011, the United States Secretary of State, Hillary Clinton, stated that one of the remaining human rights challenges before the world today is guaranteeing the equality and dignity of members of the LGBT community.4 She spoke of this "invisible minority," whose human rights were in jeopardy throughout the world, and in this way, she called for greater protection of LGBT persons. She asserted that gay rights and human rights are not distinct, as some have argued, and referred to the Universal Declaration of Human Rights as a foundational U.N. document guaranteeing gay rights as human rights. She outlined how violence against the LGBT community in any form is a violation of human rights, including the withholding of life-saving care or the denial of access to equal justice. Finally, Ms. Clinton argued that, despite the due respect for cultural and religious traditions, these traditions do not trump human rights and therefore should not serve as a pretext for denying fundamental rights to citizens based on sexual orientation or gender identity.
A few days later, Mr. Ban offered his own Human Rights Day message at U.N. Headquarters in New York City, focusing on homophobic bullying.5 On Dec. 8, 2011, he identified homophobic bullying as a form of violence endangering the human rights of LGBT persons and encouraged Member Nations to protect their citizens from discrimination based on sexual orientation. Mr. Ban articulated the profound psychological suffering that ensues from bullying, including depression and suicide. He also underscored the responsibility of local communities — including individual citizens, community leaders, teachers, religious and public figures — to share in the challenge of ending violence against LGBT persons and protecting their own neighbors from persecution.
The United Nations Speaks Out, April 2011In April 2011, the U.N. Office for the High Commissioner for Human Rights (OHCHR), the U.N. Development Programme (UNDP), the Joint U.N. Programme on HIV/AIDS (UNAIDS), and the World Health Organization (WHO) collaboratively published a brochure titled "The United Nations Speaks Out: Tackling Discrimination on Grounds of Sexual Orientation and Gender Identity." This brochure cites statements that have been made by U.N. senior officials and human rights experts regarding LGBT rights — including statements from the U.N. Secretary General and the U.N. High Commissioner on Human Rights. The quote from Mr. Ban followed his 2010 Human Rights Day speech and avers: "But let there be no confusion: where there is tension between cultural attitudes and universal human rights, rights must carry the day."6 The U.N. High Commissioner, Navi Pillay, was quoted on February 2011: "Laws criminalizing homosexuality pose a serious threat to the fundamental rights of lesbian, gay, bisexual and transgender individuals."6 These statements strongly and clearly advocate in favor of human rights protections for LGBT individuals. By jointly issuing this brochure, OHCHR, UNDP, UNAIDS, and WHO showed that the United Nations partners speak together on this matter. The brochure can be found on the OHCHR website.
UNHCR report, December 2011
On December 15, 2011 OHCHR released its first report on the human rights of LGBT persons.7 This report details the worldwide manifestations of discrimination based on sexual orientation, noting that violence against LGBT persons has a history of hate-motivated violence, such as discrimination in work, health care, education, detention and torture. The publication of this report followed two historic developments of the Human Rights Council. First, 85 countries signed on to a statement calling for the decriminalization of homosexuality in March 2011. Subsequently, a resolution initiated by South Africa was passed in June 2011 and became the first U.N. resolution calling for support of gay rights.
Concurrent with the OHCHR report, Navi Pillay of South Africa, the U.N. High Commissioner for Human Rights, appealed to U.N. Member States to decriminalize homosexuality and enact comprehensive anti-discrimination laws. The OHCHR report documents that same-sex relationships are illegal in 76 countries, and the death penalty may be invoked as punishment in at least 5 countries. The report carefully links antihomosexuality laws with the legitimacy of violence against nations¡¥ citizens based on sexual orientation and gender identity. When persons are formally and legally devalued, it follows that designating their status as second rate may lead to "acceptable" persecution. The OHCHR report encourages nations to institute public information campaigns to educate citizens about ensuring the rights of LGBT persons. Additionally, those sworn to protect individual rights, such as police and law enforcement officers and public officials, should receive appropriate training in this subject. The report emphasizes the shared community responsibility in combating homophobia and transphobia, and to that end, calls on nations to:
- repeal laws that criminalize homosexuality,
- abolish the death penalty for offenses involving consensual sexual relations,
- enact comprehensive anti-discrimination laws,
- standardize the age of consent for homosexual and heterosexual conduct,
- investigate all killings or serious violence against sexual orientation or gender identity,
- ensure that asylum laws recognize sexual orientation and gender identity as a basis for claiming persecution and
- enable LGBT persons fleeing persecution to avoid returning to countries or territories where their freedom is threatened.
Human Rights Council, March 2012
The OHCHR report was released in anticipation of a Human Rights Council meeting scheduled for March 2012. Ban Ki-moon opened the Council meeting by stating: The High Commissioner's report documents disturbing abuses in all regions. We see a pattern of violence and discrimination directed at people just because they are gay, lesbian, bisexual or transgender. There is widespread bias at jobs, schools and hospitals, and appalling violent attacks, including sexual assault. People have been imprisoned, tortured, even killed. This is a monumental tragedy for those affected ― and a stain on our collective conscience. It is also a violation of international law. You, as members of the Human Rights Council, must respond.
To those who are lesbian, gay, bisexual or transgender, let me say: You are not alone. Your struggle for an end to violence and discrimination is a shared struggle. Any attack on you is an attack on the universal values of the United Nations I have sworn to defend and uphold. Today, I stand with you, and I call upon all countries and people to stand with you, too.8
The United Nations has been working with Member States to reject discrimination and criminalization based on homophobia and transphobia. While the denial of human rights for LGBT persons persists throughout the world today, over 30 countries have decriminalized homosexuality in the past 20 years. In the face of resistance, determined efforts from the U.N., associated NGOs, and representatives of Member States to guarantee the human rights of LGBT persons have been gaining momentum. Today, under the leadership of Secretary-General Ban Ki-moon, there is no doubt that the U.N. is making progress toward the global inclusion of LGBT rights in our basic human rights.
1United Nations. (1945). Charter of the United Nations. New York, NY: UN Department of Public Information. Retrieved from www.un.org/en/documents/charter/ index.shtml
2United Nations. (1948). Universal Declaration of Human Rights. New York, NY: UN Department of Public Information. Retrieved from www.un.org/en/documents/udhr
3United Nations. (2010). Secretary-General SG/SM/133309 HR/5042 OBV/951. Retrieved from www.un.org/News/Press/docs/2010/sgsm13309.doc.htm
4Clinton, H. (2011, Dec. 8). Remarks in recognition of Human Rights Day. Washington, DC: United States Department of State. Retrieved from www.state.gov/ secretary/rm/2011/12/178368.htm
5United Nations. (2011). Secretary-General SG/SM/14008 HR/5080. Retrieved from www.un.org/News/Press/ docs/2011/sgsm14008.doc.htm
6United Nations. (2011). The United Nations Speaks Out: Tackling Discrimination on Grounds of Sexual Orientation and Gender Identity. [Brochure]. Retrieved from www.ohchr.org/EN/Issues/Discrimination/Pages/LGBTBrochure.aspx
7United Nations Office for the High Commissioner for Human Rights (OHCHR). (2011). Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation. Geneva, Switzerland: United Nations. Retrieved from www2.ohchr.org/english/bodies/hrcouncil/docs/19session/A.HRC.19.41_English.pdf
8United Nations. (2012). Secretary-General SG/SM/14145 HRC/13. Retrieved from www.un.org/News/Press/docs/2012/ sgsm14145.doc.htm
About the Co-Editors
Juneau Gary, PsyD, (main representative to DPI) is professor in the Department of Counselor Education at Kean University in New Jersey, and Neal S. Rubin, PhD, ABPP, (representative to DPI) is Professor at the Illinois School of Professional Psychology of Argosy University in Chicago. Both are associated with the United Nations Department of Public Information and are co-editors of this column.