FINDING
A PLACE IN INTERNATIONAL LAW
By Douglas Sanders, Kurt Krickler &
Rodney Croome (July 20, 1997)
In this comprehensive review the authors
describe developments affecting the lesbian and gay movement in each of the
main international human rights bodies.
#Introduction
#The
European Convention on Human Rights
#The
Council of Europe
#The
European Union
#Organisation
for Security and Co-operation in Europe
#Funding
decisions by European institutions.
#The
United Nations
#The
International Labour Organisation
#The
World Health Organisation
#Regional
treaty-based human rights bodies.
#The
High Commissioner for Refugees
#Support
by states.
#Non-Governmental
Organisations
#CONCLUSIONS
#Select
Bibliography:
Introduction
International human rights law and the
lesbian and gay rights movements have grown up together in the post-war period.
Both are still developing.
The foundational documents of international
human rights law are the United Nations Charter of 1945, the Universal
Declaration of Human Rights.of 1948, the European Convention on
Human Rights of 1950, and the two basic United Nations human rights
treaties of 1966, the International Covenant on Civil and Political
Rights and the International Covenant on Economic, Social and
Cultural Rights. In recent decades the United Nations has drafted
treaties or declarations on women, children, torture, migrant workers and
cultural minorities. While a right to equality is set out in the Covenant
on Civil and Political Rights, none of the United Nations human rights
"instruments", as they are called, make any reference to "sexual
orientation."
The international human rights system is
still quite Western. The most developed regional human rights systems are in
Europe. There are no regional human rights systems in Asia, and only a weak
body in Africa. As of 1995, the International Covenant on Civil and
Political Rights had been signed by less than half the states in Asia.
None of the lesbian and gay human rights
organizations we have pre-date the second World War. Our organizations are
strongest in Western states, and strongest in the northern European States that
have played leadership roles in the development of international human rights
law. We are weak in Asia, Africa and Latin America, though the numbers of
organizations in those regions has been growing, slowly.
Over the last twenty years, western lesbian
and gay activists have worked to gain recognition in international law. We are
no longer strangers in the meetings of inter-governmental organisations.
Progress has been real, but incomplete, uneven, as the material in this chapter
demonstrates.
The European
Convention on Human Rights
The first victory for gay rights in
international human rights law came in the 1981 decision of the European Court of Human Rights in Dudgeon v
United Kingdom.
The United Kingdom had decriminalised gay
male sexual activity in 1967 in England and Wales. Criminal prohibitions were
still in place in Northern Ireland. Jeffrey Dudgeon, an activist with the
Northern Ireland Gay Rights Association, challenged the law. The European Court
of Human Rights ruled that the law violated Dudgeon’s right to respect for his
private life.
The Dudgeon case was a very
good test case. The United Kingdom could not claim that the law was necessary
for the "protection of health or morals", exceptions allowed in the Convention,
when it had repealed the same law in England and Wales. The law was not being
enforced. The law was out of step with the laws in other European states.
Public opinion was evenly divided. The United Kingdom wanted to end the
criminal law prohibitions in Northern Ireland but reform was stalled by the
strong opposition of Protestant fundamentalists. The Court decision made the
reform of the law politically possible.
Since the decision in Dudgeon,
homosexual acts have been decriminalised in Northern Ireland and other areas
under the jurisdiction of the Parliament of the United Kingdom. The Dudgeon
case was followed by the European Court of Human Rights in 1988 in Norris
v Ireland. Ireland reformed its laws in 1993. The Court repeated the
ruling in 1993 in Modinos v Cyprus. Reform has been delayed in
Cyprus and a second case has been filed under the Convention from
Cyprus.
These three decisions struck down criminal
laws aimed at private sexual acts. A right to privacy is an inadequate basis
for lesbian and gay rights. Heterosexual relationships are publicly recognised
and supported in all societies. "Privacy" can be used to keep us in
the closet. The European Commission on Human Rights has ruled that homosexual
relationships do not come within the provision on respect for family life. The Convention
has no general equality provision. Challenges to unequal ages of consent,
discrimination in immigration laws for same-sex partners, exclusion from the
military, and "privacy" for sadomasochistic activity have failed. In
July, 1997, the Labour Government in the United Kingdom stated it would not
contest the Sutherland case, the latest case challenging an
unequal age of consent. The matter would be reconsidered in Parliament, with
the expected result that an equal age of 16 would be established for
heterosexual or homosexual activity.
On transsexual rights, the European Court
has ruled that governments have to make some accommodation to change of name
and change of sexual information on official documentation.
The Council
of Europe
The Council of Europe is a broad political
organisation, responsible for the European Convention on Human Rights
and its machinery. States in central and eastern Europe have seen membership in
the Council as important
...to gain ‘respectability’ within Europe and, perhaps
most importantly, to qualify for certain membership ‘benefits’ as well as for
possible admission to the European Union. Although the process of becoming a
party to the Convention [on Human Rights] is not required to be completed prior
to obtaining membership in the Council, it is generally assumed that the
domestic legislative and other measures required to enable the state to ratify
or accede will be completed within a period of two years.
Because
of the limited recognition of lesbian and gay equality rights under the European
Convention on Human Rights, the International Lesbian and Gay
Association decided in 1990 to press for an additional protocol to the Convention
which would expressly prohibit discrimination on the basis of sexual
orientation. While there has been some support, including a "Motion for a
Recommendation" in the Parliamentary Assembly of the Council of Europe on
7 December, 1990, the proposal has not advanced. ILGA has also been trying to
gain "consultative status" with the Council of Europe. [Consultative
status was granted in late 1997 - see Current actions - Europe - Council of
Europe Consultative Status]
In
1981 Mr. Joop Voogd, Chair of the Committee on Social and Health Questions,
submitted a report to the Parliamentary Assembly of the Council of Europe
entitled "Discrimination Against Homosexuals". The report led to a
set of resolutions (a) calling on the World Health Organisation to remove
homosexuality from its list of diseases (which has occurred), (b) urging member
states to decriminalise homosexual acts and apply equal ages of consent for
homosexual and heterosexual acts, and (c) seeking equal treatment for lesbians
and gay men in employment. In a 1983 resolution on issues of HIV/AIDS the
Parliamentary Assembly voted to
...reaffirm its
unshakeable attachment to the principle that each individual is entitled to
have his privacy respected and to self-determination in sexual matters.
Since
1989 a number of eastern European States have sought admission into the Council
of Europe. Since new member States must agree to ratify the European
Convention on Human Rights, there is consideration whether the domestic
laws of the applicant State are in compliance with the Convention.
Since the Dudgeon case, criminal prohibitions of homosexual
activity are clearly in conflict with the Convention and
applicant States are expected to repeal such laws. In February, 1993, the
Parliamentary Assembly adopted Written Declaration No. 227 stressing the need
to end the practice of discrimination against homosexuals in former Communist
countries. In 1993 Lithuania was admitted to the Council of Europe without
having reformed its laws, but made the change two months later.
Not
all of the new post-communist members proved willing to bring their legislation
into conformity with the standards required by the Council of Europe. On 29
June, 1993, the Parliamentary Assembly adopted Order No. 488 instructing
...its Political
Affairs Committee and Committee on Legal Affairs and Human Rights to monitor
closely the honouring of commitments entered into by the authorities of new
member states and to report to the Bureau at regular six monthly intervals
until all undertakings have been honoured.
This
mandate is important in relation to Romania. The Parliamentary Assembly debated
the admission of Romania on 28 September, 1993, with reports from three
rapporteurs. Two of the rapporteurs, Koenig of Austria (Document 6901) and
Jansson of Finland (Document 6918) noted with concern the total ban on
homosexual acts in Article 200 of the Penal Code. The Parliamentary Assembly
resolution on the admission of Romania, Opinion No. 176, included the following
language:
It expects that Romania
will shortly change its legislation in such a way that: ... ii. Article 200 of
the Penal Code will no longer consider as a criminal offence homosexual acts
perpetrated in private between consenting adults...
The
Parliamentary Assembly also called on Romania to improve prison conditions and
"discontinue the punishment of homosexuals." In 1993 and 1994 men
continued to be arrested and imprisoned under Article 200.
Koenig
and Jansson made an official visit to Romania in March, 1994, and raised the
issue of Article 200. Reform was debated in the Romanian Parliament at the
time. The two rapporteurs paid a second visit in December, 1995. Again they
reported back on the non-compliance of Romania on Article 200.
In
September, 1996, the lower house of the Romanian Parliament voted to keep the
total ban on homosexual acts in the penal code. The vote in the lower house was
immediately protested by ILGA, Amnesty International and the International Gay
and Lesbian Human Rights Commission. The European Parliament condemned the
Romanian action. In response the two chambers agreed on a repeal of the total
ban in favour of a law which prohibits homosexual acts which are committed
"in public or producing a public scandal" and a prohibition on
propaganda or associations that promote homosexuality. Both ILGA and IGLHRC say
that the broad definition of "public scandal" in Romania effectively
means a continuation of criminal prohibitions. In November, 1996, ILGA called
for a boycott of Romania.
ILGA’s
work with the members of the Parliamentary Assembly of the Council of Europe,
the two rapporteurs and its direct lobbying of the Romanian government has been
the longest, most extensive single campaign in ILGA history, a campaign that
continues as of writing. This work has had impact on other states which have
joined the Council of Europe. Albania and Moldova repealed their total bans on
homosexual acts in 1995 before being admitted to the Council of Europe. On its
accession to membership in November 1995 Macedonia promised to introduce a
complete new penal code within one year and repeal the ban on homosexual acts
between consenting adults.
[See
also Council
of Europe]
The European Union
In
1984 a resolution of the European Parliament (a different body than the
Parliamentary Assembly of the Council of Europe) on sexual discrimination in
the workplace specifically condemned discrimination against homosexuals and
called on member states to report any provisions in their laws which
discriminated against homosexuals. The charter on sexual harassment in the
workplace, drafted and adopted by the European Commission passed by the
European Parliament in 1991 and was endorsed by the Council of the European
Community. It expressly includes protections for lesbians and gay men.
The
most significant event in the work of the European Parliament is the 1993 Roth
report. The Committee on Civil Liberties and Internal Affairs of the European
Parliament, chaired by Claudia Roth, a member of the Parliament, reported on
equality issues for lesbians and gay men. In response to the report, the
European Parliament, passed a resolution in February, 1994, which
5. Calls on the Member
States to abolish all legal provisions which criminalize and discriminate
against sexual activities between persons of the same sex;
6. Calls for the same
age of consent to apply to homosexual and heterosexual activities alike.
7. Calls for an end to
the unequal treatment of persons with a homosexual orientation under the legal
and administrative provisions of the social security system and where social
benefits, adoption law, laws on inheritance and housing and criminal law and
all related legal provisions are concerned;
8. Calls on the United
Kingdom to abolish its discriminatory provisions to stem the supposed
propagation of homosexuality and thus to restore freedom of opinion, the press,
information, science and art for homosexual citizens and in relation to the
subject of homosexuality and calls upon all Member States to respect such
rights to freedom of opinion in the future;
9. Calls on the Member
States, together with the national lesbian and homosexual organisations, to
take measures and initiate campaigns against the increasing acts of violence
perpetrated against homosexuals and to ensure prosecution of the perpetrators
of these acts of violence;
10. Calls upon the
Member States, together with the national lesbian and homosexual organisations,
to take measures and initiate campaigns to combat all forms of social
discrimination against homosexuals;
11. Recommends that
Member States take steps to ensure that homosexual women's and men's social and
cultural organisations have access to national funds on the same basis as other
social and cultural organisations, that applications are judged according to
the same criteria as applications from other organisations and that they are
not disadvantaged by the fact that they are organisations for homosexual women
or men;
The
resolution seeks a Recommendation from the Commission of the European Community
on equal rights for lesbians and gay men. The resolution says that the
Recommendation should seek to end
- the barring of
lesbians and homosexual couples from marriage or from an equivalent legal
framework, and should guarantee the full rights and benefits of marriage,
allowing the registration of partnerships,
- any restriction on
the right of lesbians and homosexuals to be parents or to adopt or foster
children.
The
resolution is remarkable in supporting marriage or registered partnerships
(thereby endorsing laws in place at the time in only two European States) and
in calling for equal access to adoption rights. It is also striking in its call
for State recognition and co-operation with lesbian and gay organisations, a
common pattern in northern Europe, but new or unheard of in many parts of the
world.
The
Resolution of February 1994 was reconfirmed by the European Parliament on
September 17th, 1996, in the debate on the annual report on human rights in the
European Union. The Parliament again resolved that all discrimination against
homosexuals be abolished.
In
June, 1997, European leaders agreed to empower the the European Council to act
against discrimination on the basis of sexual orientation. This came after a
long campaign by ILGA members for an expansion of the non-discrimination
provisions in the treaty establishing the European Union. The Treaty of Rome,
the first treaty, stated that men and women should receive equal pay for equal
work. A Council Directive extended the principle to equal treatment for men and
women in access to employment. A couple of decisions of the European Court of
Justice, the court responsible for European Union issues, moved toward the
recognition of unmarried partners and transsexuals. Now the following section
will be a part of the new European Union treaty:
Without prejudice to
the other provisions of this Treaty and within the limits of the powers
conferred by it upon the Community, the Council, acting unanimously on a
proposal from the Commission and after consulting the European Parliament, may
take appropriate action to combat discrimination based on sex, racial or ethnic
origin, religion or belief, disability, age or sexual orientation.
[See
also European
Union]
Organisation for Security and Co-operation in
Europe
One
of the least understood inter-governmental organisations active on human rights
issues, is the Organisation for Security and Cooperation in Europe. It arose
out of the "Helsinki" Accord of 1975, in which representatives of the
two cold-war military alliances, the Warsaw Pact and the North Atlantic Treaty
Organization, agreed to a set of security and human rights provisions. In
recent years the OSCE has created a number of specialized institutions as well
as holding forums on various issues.
Representatives
of ILGA have been active at meetings of the OSCE, beginning when it was still
called a "Conference" not an "Organisation", in 1980.
Official
parallel meetings, organised by lesbian and gay groups, were held at the time
of the Third Meeting of the CSCE Conference on the Human Dimension in Moscow in
1991. ILGA participated in the CSCE meeting itself as a
non-governmental organisation. Three State participants, Canada, Denmark and
Sweden, supported consideration of lesbian and gay rights issues. ILGA also
participated in the CSCE Seminar of Experts on Democratic Institutions in Oslo
in November 1991.
The
first discussion of sexual orientation issues within the CSCE itself occurred
at the Follow-Up Meeting, Helsinki II, in Helsinki in 1992. An official
parallel meeting was organised by the Finnish group SETA, funded by the Finnish
ministry of foreign affairs. The opening speech at the CSCE conference, by
Norwegian foreign affairs minister Thorvald Stoltenberg, mentioned lesbian and
gay rights. Norway introduced a motion asking states "to take steps to prohibit
the promotion of hatred or contempt against homosexuals and their
organisations..." But there was opposition from Spain, the United Kingdom,
the United States, the Holy See and France. Some were concerned with
terminology.
The
United States believed that "hate speech" laws infringed on freedom
of speech. No reference to lesbian and gay issues appeared in the final
resolutions, though a number of government delegations made positive statements
on lesbian and gay rights, including Austria, Finland, Sweden and the United
States.
In
November, 1992, an ILGA representative spoke in the final plenary session of
the CSCE Human Dimension Seminar on Tolerance in Warsaw. In addition, Miriam
Turksma, lesbian and gay issues co-ordinator for the City of Amsterdam and a member
of the Netherlands delegation, spoke on her work. Members of the delegations
from Denmark, Norway, Sweden and the United States referred to lesbian and gay
issues.
In
the fall of 1993 a CSCE Implementation Meeting on Human Dimension Issues held
in Warsaw produced the first formal recognition of lesbian and gay issues.
Representatives of Denmark, the Netherlands, Norway and Sweden spoke on
guaranteeing equality to homosexuals, and references to lesbian and gay issues
were made by representatives of Canada, Ukraine and the United States. ILGA
Secretary-General Hans Hjerpekjon of Norway addressed the plenary session. The
Final Report of the meeting included the following sentences:
Participants point out
to groups which were not "national minorities" but which none the
less suffered discrimination, including women, homosexuals, migrant workers,
and conscientious objectors...
It was pointed out that
CSCE commitments in the area of non-discrimination cover homosexuals as well.
Suggestions were made that discriminatory State policies against homosexuals,
and criminalizing legislation, should be eliminated.
ILGA
continued to participate in CSCE events, including the CSCE Human Dimension
Seminar on Free Media in Warsaw in November 1993, where Tom Lavell presented
written and oral submissions, and the Third Session of the CSCE Parliamentary
Assembly in Vienna in July, 1994. ILGA representatives participated in the CSCE
review conference in Budapest, October to December, 1994, where CSCE became OSCE.
While ILGA representatives received indications of support from the delegations
of Canada, the Netherlands, Norway, Sweden and the United States, no references
to lesbian and gay rights were included in the final document. The Netherlands
and Norway made a joint statement entitled Tolerance and Homosexuality, the
first governmental statement in these meetings devoted exclusively to sexual
orientation issues. In this review conference, ILGA distributed a written
presentation, gave two oral statements in Working Group 3 and continued
lobbying national delegations about the situation in countries such as Albania,
Cyprus, Moldova and Romania.
ILGA
submitted written presentations to both the OSCE Human Dimension Seminar on
"Building Blocks for Civic Society: Freedom of Association and NGOs" in Warsaw in April 1995 and to the second Implementation Meeting on
Human Dimension Issues in Warsaw in October 1995. ILGA made an oral statement
in the joint OSCE/Council of Europe International Seminar on Tolerance held in
Bucharest in May 1995. It made written and oral statements at the OSCE Review
Conference in Vienna in November 1996.
The
Parliamentary Assembly of the OSCE met in Ottawa in July, 1995. The Assembly
passed a declaration which called on member States
...to ensure that all
persons belonging to different segments of their population be accorded equal
respect and consideration in their constitutions, legislation and
administration and that there be no subordination, explicit or implied, on the
basis of ethnicity, race, colour, language, religion, sex, sexual orientation,
national or social origin or belonging to a minority...
The
reference to sexual orientation was included at the initiative of Danish
parliamentarians. It passed by a large majority, over protests from Bulgarian
members.
[See
also A
Short History of ILGA's OSCE Lobbying]
Funding decisions by European institutions.
The
European Commission funded summer courses in lesbian and gay studies in Utrecht
in 1989, in Essex in 1991, and again in Utrecht in 1995. The courses were
organised by a number of European universities, including the Department of Gay
and Lesbian Studies at the University of Utrecht in the Netherlands.
European
Union funding resulted in the production and publication in 1993 of two
significant studies, "Lesbian Visibility" and "Homosexuality: A
European Community Issue".
The
Democracy Programme of the European Union is designed to support economic and
political reform in former eastern-bloc States. In 1994 the Programme funded an
anti-discrimination project of ILGA involving work with seven lesbian and gay
organisations in Estonia, Latvia, Lithuania and the Russian Federation.
A
number of the annual conferences of the International Lesbian and Gay Youth
Organisation have received funding from the European Youth Foundation (Council
of Europe) and the Commission of the European Union.
The
Netherlands has included financial support for lesbian and gay organisations in
its foreign aid policy. It has provided funding to lesbian and gay groups in
Costa Rica, El Salvador, Nicaragua and Zimbabwe, as well as providing funding
for a regional conference in the Caribbean.
The United Nations
(a)
The Commission on Human Rights and the Sub-Commission on Prevention of
Discrimination and Protection of Minorities.
A
1983 study on prostitution, seen as a slavery-like practice, done for the
Sub-Commission on Prevention of Discrimination and Protection of Minorities,
recommended an additional study on male prostitution. The recommendation made
confused references to transvestism, transsexuality and pedophilia.
The
resulting study, on the legal and social problems of sexual minorities
including male prostitution, was completed in 1987. ILGA forwarded information
to Mr. Fernand-Laurent, the special rapporteur, through Minority Rights Group,
an accredited non-governmental organisation. The report contained an odd mix of
stereotypes and misinformation. The analysis was strongly wedded to
conventional ideas of gender roles. The report attracted almost no attention.
Mr. Rhenan-Segura, a member of the Sub-Commission, called the study superficial
and the conclusions dubious. He found the study to be of poor quality and said
it had been received under an inappropriate agenda item, the consideration of
the report of the Working Group on Slavery and Slavery-Like Practices. There
were no follow up resolutions.
On
13 August 1993 Mr. Louis Joinet, the French member of the United Nations
Sub-Commission on Prevention of Discrimination and Protection of Minorities,
proposed that the mandate of a study on new forms of racism and xenophobia be
expanded to include consideration of discrimination on the basis of sexual
orientation. The proposal was not accepted. On August 24, 1995, he proposed an
amendment to a resolution condemning discrimination on the basis of HIV status
or AIDS. The resolution mentioned nine examples of groups "suffering from
disadvantaged economic, social or legal status" who were, as a result of
that marginalization, more vulnerable to the risk of HIV infection. The list
did not include male homosexuals, an obvious category for any such list. Mr.
Joinet moved the addition of that category. The amendment was strongly opposed
by two members, Ms. Warzazi and Ms. Gwanmesia. After a somewhat heated exchange
and an accusation of homophobia, the amendment was passed with ten affirmative
votes, five negative votes and six abstentions. This appears to be the first
resolution of the Commission or Sub-Commission to refer expressly to
homosexuals.
In
August, 1996, representatives of Australia discussed the idea of a study on
sexual orientation discrimination with several members of the Sub-Commission.
There was some support, and an understanding that there would also be
opposition. The matter was not raised in public sessions of the Sub-Commission.
(b)
Criteria for assessing human rights performance.
The
1991 Human Development Report, issued by the United Nations Development
Programme, rated countries according to a "Human Freedom Index",
reflecting the idea that "freedom" strengthens economic growth. The
group of 77 objected to the inclusion of the freedom for homosexual activity as
one of the forty criteria used in constructing the index. Because of the
controversy, the UNDP developed a new "Political Freedom Index" to
replace the broader "Human Freedom Index" and stopped publishing the
ratings of individual States.
A
major study on economic, social and cultural rights by Special Rapporteur
Danilo Turk, received by the Sub-Commission in 1992, addressed the issue of
indicators to be used in assessing State compliance. One approach, the study
said, was to begin with assessing patterns of discrimination. It went on:
To apply discrimination-oriented
criteria, however, it will be necessary to devote increased attention to areas
of discriminatory behaviour generally ignored at the international level, in
particular the grounds of social status, income level, medical status, age, property
and sexual orientation.
(c)
Anti-discrimination concerns at the world conferences on human rights (Vienna)
and women (Beijing).
Three
lesbian and gay organisations were accredited to the United Nations World
Conference on Human Rights, held in Vienna in 1993. This was the first time any
UN event had knowingly accredited lesbians and gay men. ILGA and member
organisations participated in certain of the regional conferences, leading up
to Vienna. Six statements were made on lesbian and gay issues in Vienna, in the
plenary or in the main committee. Five governments made positive references to
lesbian and gay issues at the Conference: Australia, Austria, Canada, Germany
and the Netherlands. The Singapore statement, pointedly called "The Real
World of Human Rights", described most human rights as "still
essentially contested concepts." The statement went on:
Singaporeans, and
people in many other parts of the world do not agree, for instance, that
pornography is an acceptable manifestation of free expression or that
homosexual relationships is just a matter of lifestyle choice. Most of us will
also maintain that the right to marry is confined to those of the opposite sex.
The
draft final statement for the Vienna conference on human rights had an equality
paragraph condemning discrimination on listed grounds. Canada proposed adding
"sexual orientation" to the list. In response the paragraph was
altered to a general, open-ended prohibition of discrimination, without a list.
Again
there were proposals that "sexual orientation" should be referred to
in the final statement of the Fourth World Conference on Women, held in Beijing
in September, 1995. In a preparatory conference in Vienna in October, 1994,
Canada proposed a paragraph addressing discrimination against women on multiple
grounds, such as sex and race, sex and disability, sex and sexual orientation.
This "diversity paragraph", as it came to be known, was included in
the draft text without opposition or discussion. At the New York preparatory
meeting in March-April, 1995, Canada again proposed the paragraph. The idea of
such a paragraph was debated, but not the reference to "sexual
orientation".
The
paragraph along with much of the draft was "bracketed", indicating
that there was no consensus on the wording. At the New York meeting several
delegations, including South Africa, Canada, Israel and the European Union
proposed wording that referred to "sexual orientation".
Lesbians
were highly visible at the Conference in Beijing and at the NGO Forum in Huairou.
At the Forum there was a lesbian venue, the "lesbian tent", and a
large lesbian march on September 5th. Eleven explicitly lesbian or lesbian and
gay organisations were accredited to the conferences.
At
the beginning of the Beijing Conference there were four references to
"sexual orientation" in the draft "Platform of Action". Two
references were in descriptive "diversity" paragraphs. The third
reference called on governments to take action to eliminate discrimination in
employment based on sexual orientation. The fourth called on States to provide
legal safeguards to prevent persecution on the basis of sexual orientation. The
four references were considered together in a drafting committee meeting that
stretched into the early morning of Friday, September 15th, ending after 4
a.m.. After an hour of debate on sexual orientation, the chair, Ms. Patricia
Licuanan, commented that this had been the first substantive discussion of the
subject in any United Nations forum. She said it required much more discussion,
but given the division, the references would be omitted. Thirty-three States
indicated their support for the references. Twenty States indicated opposition.
(d)
United Nations concerns with criminal law.
ILGA
made written and oral submissions to the European regional preparatory meeting
for the 1995 World Congress of the United Nations Commission on Crime
Prevention and Criminal Justice in Vienna in March, 1994. The final report of
the meeting stated a concern with violence against homosexuals and recommended
decriminalisation of homosexual activities between consenting adults. The
report was later adopted by the UN Commission on Crime Prevention and Criminal
Justice in its third session in Vienna in May 1994, where ILGA was represented
again and distributed a written statement.
(e)
The Human Rights Committee
The
Human Rights Committee is established under the provisions of the International
Covenant on Civil and Political Rights. States which have signed the Covenant
are required to make periodic reports to the Committee on their compliance with
the provisions of the Covenant. If the state has signed the Optional
Protocol to the Covenant, then individuals can send
"communications" directly to the Committee, alleging that the state
is in violation of the Covenant. The Committee will consider the
communications, and the submissions of the government, and give a decision.
The
first decision of the Human Rights Committee on lesbians and gay rights
occurred in 1982 in Hertzberg v. Finland. Finnish penal law
prohibited the public encouragement of "indecent behaviour" between
persons of the same sex. This provision led to regulations and policies against
radio and television programs dealing with homosexuality. The communication
argued freedom of expression in the context of particular radio and television
programs. Two had been censored and a third had been prosecuted,
unsuccessfully, under Finnish penal law. Article 19 (3) of the Covenant
on Civil and Political Rights provides that freedom of expression is
...subject to certain
restrictions, but these shall only be such as are provided by law and are
necessary:...(b) For the protection of...public health or morals.
Finland
argued that the restrictions in Finnish law reflected prevailing moral
conceptions. The Committee considered asking for the transcripts of the two
censored programs, noting that only by such an examination could it determine
whether the programs were mainly or exclusively made up of factual information
on issues relating to homosexuality. Apparently willing to assume that the
programs could have been wholly factual, the Committee ruled in favour of
Finland.
It has to be noted,
first, that public morals differ widely. There is no universally applicable
common standard. Consequently, in this respect, a certain margin of discretion
must be accorded to the responsible national authorities.
The Committee finds
that it cannot question the decisions of the responsible organs of the Finnish
Broadcasting Company that radio and TV are not appropriate forums to discuss
issues related to homosexuality, as far as a programme could be judged as
encouraging homosexual behaviour. According to article 19 (3), the exercise of
the rights provided for in article 19 (2) carries with it special duties and
responsibilities for those organs. As far as radio and TV programmes are
concerned, the audience cannot be controlled. In particular, harmful effects on
minors cannot be excluded.
Distinguished
Norwegian academic Torkel Opsahl was joined by two other members of the
Committee, in dissenting from this reasoning:
Under Article 19(2) and
subject to article 19(3), everyone must in principle have the right to impart
information and ideas - positive or negative - about homosexuality and discuss
any problem relating to it freely, through any media of his choice and on his
own responsibility.
Moreover, in my view
the conception and contents of the 'public morals' referred to in article 19(3)
are relative and changing. State-imposed restrictions on freedom of expression
must allow for this fact and should not be applied so as to perpetuate
prejudice or promote intolerance. It is of special importance to protect
freedom of expression as regards minority views, including those that offend,
shock or disturb the majority. Therefore even if such laws as paragraph 9(2) of
chapter 20 of the Finnish Penal Code may reflect prevailing moral conceptions,
this is not in itself sufficient to justify it under article 19(3). It must
also be shown that the application of the restriction is 'necessary'.
Prohibitions
on the promotion or encouragement of homosexuality continue to be part of the
law in Finland and Liechtenstein.
In
1994 the Human Rights Committee decided Toonen v Australia, a
case with strong similarities to Dudgeon v. United Kingdom.
Nicholas Toonen, like Jeffrey Dudgeon, was a gay rights activist. Tasmania,
like Northern Ireland, retained old criminal prohibitions on homosexual
activity. All other Australian jurisdictions had decriminalised. The government
of Australia, like that of the United Kingdom, was critical of such criminal
laws. As in Northern Ireland, the law in Tasmania was not enforced in practice.
As in Northern Ireland opinion in Tasmania was divided on law reform. As in
Northern Ireland, opposition was led by intemperate reactionaries. Elected
representatives were quoted as saying that gay men were "no better than
Saddam Hussein" and that people were "15 times more likely to be
murdered by a homosexual than a heterosexual..."
Toonen
argued privacy rights and equality rights. Article 17 of the International
Covenant on Civil and Political Rights bars "arbitrary or unlawful
interference" with privacy. Article 26 prohibits discrimination
...on any ground such
as race, colour, sex, language, religion, political or other opinion, national
or social origin, property, birth or other status.
There
were two equality arguments. The discrimination was on the basis of
"sexual orientation" which, it was argued, would come within the
phrase "other status". As well the law discriminated on the basis of
"sex" by applying only to male homosexual activity. By ignoring
lesbians, the law followed a criminal law tradition that denied women's
sexuality.
Tasmania,
which was allowed by Australia to make submissions to the Committee, argued
that the law was partly motivated by a concern to check the spread of HIV/AIDS.
But Australia, the World Health Organisation and work done for the United
Nations Commission on Human Rights all agreed that criminal prohibitions aimed
at gay men made it more difficult to organise effective programs to prevent HIV
infection.
Tasmania
also argued a moral basis for the prohibition. Australia conceded that
"domestic social mores may be relevant to the reasonableness of an
interference with privacy", while asserting a general Australian view that
discrimination on the basis of sexual orientation was wrong.
The
Committee followed the rulings in Dudgeon, Norris
and Modinos in finding that the Tasmanian law violated Toonen's
right to privacy. They easily rejected Tasmania's specious arguments on
HIV/AIDS and turned to the issue of a moral justification for the law in a
passage which clearly departs from the spirit of the majority ruling in Hertzberg:
The Committee cannot
accept that for the purposes of article 17 of the Covenant, moral issues are
exclusively a matter of domestic concern, as this would open the door to
withdrawing from the Committee's scrutiny a potentially large number of
statutes interfering with privacy. It further notes that with the exception of Tasmania,
all laws criminalizing homosexuality have been repealed throughout Australia
and that, even in Tasmania, it is apparent that there is no consensus as to
whether Sections 122 and 123 should not also be repealed. Considering further
that these provisions are not currently enforced, which implies that they are
not deemed essential to the protection of morals in Tasmania, the Committee
concludes that the provisions do not meet the "reasonableness" test
in the circumstances of the case, and that they arbitrarily interfere with Mr.
Toonen's right under article 17, paragraph 1.
The
Committee dealt briefly with the issue of equality rights:
The State party has
sought the Committee's guidance as to whether sexual orientation may be
considered an "other status" for the purposes of article 26. The same
issue could arise under article 2, paragraph 1, of the Covenant. The Committee
confines itself to noting, however, that in its view the reference to
"sex" in articles 2, paragraph 1, and 26 is to be taken as including
sexual orientation.
The
Committee was not saying that the exclusive focus on male activity constituted
discrimination on the basis of "sex". Nor did it place "sexual
orientation" within the phrase "other status." The Committee
said that "sex" included "sexual orientation". While
discrimination against homosexuals operates with reference to the sex of
individuals, the idea that discrimination on the basis of "sexual
orientation" is discrimination on the basis of "sex" is a new
and contested idea.
The
Tasmanian government refused to comply with the Committee's decision. The
Australian parliament invoked its "foreign affairs" power and enacted
legislation establishing a right to sexual privacy, intending the legislation
to override the offending provisions in Tasmanian law. Tasmania has refused to
accept that its anti-homosexual laws are "an arbitrary interference with
the right to privacy" within the terms of the national legislation. The
dispute went to the Australian High Court. But before a final decision at that
level, the legislature in Tasmania finally repealed the criminal prohibitions.
Since
the Toonen decision, the Human Rights Committee has included a
concern with anti-homosexual criminal laws in its review of the reports of
States parties on compliance with the Covenant. For example, in their 1995
comments on the report of the United States, the Committee expressed concern
about the
...serious infringement
of private life in some states which classify as a criminal offence sexual
relations between adult consenting partners of the same sex carried out in
private, and the consequences thereof for their enjoyment of other human rights
without discrimination.
The International Labour Organisation
The
International Labour Organisation Convention No. 111, the Convention on
Discrimination in Employment or Occupation does not itself prohibit
discrimination on the basis of sexual orientation, but permits State parties to
add additional grounds. Australia declared sexual preference to be a ground of
discrimination that may be invoked under the Convention and
authorised the Australian Human Rights and Equal Opportunity Commission to
consider allegations of discrimination. This implementation of the Convention
in domestic law played a major role in the decision of Australia to end the bar
on lesbians and gay men in the armed forces in 1992.
Trade
unions have been valuable supporters of lesbian and gay rights in a number of
countries. In Canada unions backed leading court cases on the extension of
benefits to same-sex partners. The U.K. trade union organisation Unison is a
member of ILGA, as is EGALITE, an employee organisation with the European
institutions in Brussels. An International Conference on Trade Unions,
Homosexuality and Work is planned for 1988 in Amsterdam, immediately preceding
the international Gay Games.
The World Health Organisation
The
World Health Organisation’s Global Programme on AIDS was established in 1987.
While the WHO. constantly restates the basic proposition that HIV/AIDS is not a
gay disease, it has pointed out that discriminatory patterns towards gay men,
women and racial minorities create serious problems for effective HIV
prevention programs. ILGA and other lesbian and gay rights organisations have
participated in the various HIV/AIDS conferences organised by the WHO.. ILGA
has co-operated with the Global Program on AIDS in many projects. WHO. has been
represented in ILGA conferences since the 1989 meeting in Vienna, and has
supported and co-sponsored the annual ILGA regional conferences for eastern and
south-eastern Europe since the Prague conference in 1991. ILGA was also one of
the few NGOs invited to participate in the preparations for the World AIDS
Summit in Paris on 1 December, 1994. The World Health Organisation has funded
several research projects at the Department of Gay and Lesbian Studies at the
University of Utrecht.
Regional treaty-based human rights bodies.
In
1992 the refusal of the Government of Argentina to grant legal status to the
non-governmental organisation Comunidad Homosexual Argentina was taken to the
Inter-American Commission of Human Rights. The refusal had been confirmed in a
decision of the Supreme Court of Argentina. Later that year the government
granted legal recognition to the organisation, an act which the Commission
considered an "amicable settlement" of the matter. The same problem
was repeated in 1995 with the refusal of government agencies to register the
Costa Rican group Abraxas and the Association of Honduran Homosexuals Against
Aids. After protest, the Costa Rican organisation has been registered.
In
1995 a petition was submitted to the African Commission on Human Rights asking
it to open an inquiry into Zimbabwe's laws and policies on homosexual conduct.
The communication was withdrawn at the request of the country's largest lesbian
and gay organisation out of concern for possible reprisals by the government.
Later in 1995, a large book fair, annually held in Harare, banned a gay rights
exhibit under pressure from the government. Four organisations boycotted the
fair in protest. President Robert Mugabe in a speech opening the fair denounced
homosexuals, saying "We do not believe they have any rights at all."
Later he called for an international campaign "to oppose those who support
homosexuality." He said that homosexuality was not part of African
culture. The barring of the lesbian and gay group from the book fair was
repeated in 1996.
The High Commissioner for Refugees
Refugees
are defined as individuals who have a well-founded fear of being persecuted for
reasons of race, religion, nationality, membership of a particular social group
or political opinion. The United Nations High Commissioner for Refugees has
interpreted the phrase "social group" to include lesbians and gay
men. This interpretation has been accepted in decisions in many States. The
first cases to gain widespread coverage in Australia, Canada and the United
States involved individuals from Argentina, Brazil and China. The idea that
lesbians or gay men can constitute a "social group" for refugee
status no longer seems controversial and is expressly stated in the 1991
Austrian law on asylum. The issue in individual cases will be proving a well
founded fear of persecution on the part of the individual making the application.
Support by states.
The
following states voted in favour of lesbian and gay rights at the United
Nations or in the Organisation for Security and Co-operation in Europe. The
letters following the names of the states have the following meaning:
"A" means the state supported the accreditation of ILGA as a
non-governmental organization in consultative status, either in the NGO
Committee of the Economic and Social Council or in the Council itself.
"B" means that the state supported wording on lesbian rights at the
Fourth World Conference on Women, held in Beijing in 1995. "C"
indicates the state supported lesbian and gay rights in meetings of the
Organisation for Security and Co-operation in Europe.
Argentina
(A), Australia (A,B,C), Austria (A,B,C), Barbados (B), Belarus (A), Belgium
(A,B), Bolivia (B), Brazil (A,B), Bulgaria (A), Canada (A,B,C), Chile (A,B),
Colombia (B), Cook Islands (B), Costa Rica (A), Cuba (A,B), Denmark (A,B,C),
Finland (B,C), France (A,B), Germany (A,B), Greece (A,B), Israel (B), Italy
(A,B), Ireland (A,B), Jamaica (B), Japan (A), Latvia (B), Luxembourg (B),
Mexico (A), Netherlands (B,C), New Zealand (B), Norway (A,B,C), Peru (A),
Portugal (B), Russian Federation (A), Slovenia (B), South Africa (B), Spain
(A,B), Sweden (A,B,C), Switzerland (B), Ukraine (A,B,C), United Kingdom (A,B),
United States (A,B,C).
This
list has some surprises. Cuba has frequently been criticised for its treatment
of lesbians and gays. Chile is one of the few countries in Latin America to
retain criminal laws against male homosexual acts. Austria, until recently, had
a set of discriminatory laws against homosexuals. Yet these three states have
been supportive at the U.N.. Ireland and Russia were supportive at meetings
which took place before their anti-homosexual criminal laws had been repealed.
India abstained on the vote to accredit ILGA, though Indian criminal law
prohibits male homosexual acts. Domestic laws or policies do not always dictate
state policies in international fora.
Australia
has been the most active state. Australia lobbied for more speaking time for
lesbian and gay organisations at the Vienna World Conference on Human Rights in
1993, as well as urging movement on sexual orientation issues in their major
statement at the conference. Australia has raised lesbian and gay rights in the
U.N. Commission on Human Rights. Australia has moved in domestic law to
implement the Human Rights Committee decision in the Toonen case.
And the change in government in Australia in 1996 has not altered the
government’s position. Prime Minister Howard stated in February, 1996, that the
two coalition parties "strongly oppose discrimination against individuals
or groups on the grounds of race, gender, religion or sexuality." His
Foreign Minister, Alexander Downer stated:
I am strongly committed
to individuals having the freedom to conduct their lives as they wish so long
as that freedom does not impinge upon the freedom of others. I will carry out
this commitment as Foreign Minister by ensuring that in its diplomatic representations
abroad and in multilateral fora, Australia continues to oppose the persecution
against individuals on the basis of religion, ethnic grouping or sexual
preference.
Non-Governmental Organisations
The
first statement by an out lesbian or gay man in a U.N. fora came in 1992 in the
Sub-Commission on Prevention of Discrimination and Protection of Minorities. It
was made by ILGA member, Douglas Sanders, speaking on behalf of Human Rights
Advocates, a San Francisco based human rights non-governmental organisation.
The
International Lesbian and Gay Association was the first lesbian and gay rights
organisation to gain "consultative status" as a non-governmental
organisation at the United Nations. Statements were made in the name of ILGA in
the 1993 and 1994 sessions of the United Nations Sub-Commission on Prevention
of Discrimination and Protection of Minorities and in the 1994 session of the
United Nations Commission on Human Rights. ILGA’s NGO status was suspended in
September, 1994, but, hopefully, will be reinstated. The suspension, with its
association of ILGA with pro-pedophile organisations, has had negative effects.
The Council of Europe has responded to ILGA's long standing request for
consultative status with an inquiry about the reasons for the suspension by the
United Nations. [Consultative status was granted in late 1997 - see Council
of Europe Consultative Status]. The United Nations Aids Program, UNAIDS,
has indicated that it will not give funding to any project linked to ILGA,
because of the controversy.
The
International Gay and Lesbian Human Rights Commission does work comparable to
Amnesty International, in publishing background materials, country studies and
urgent action bulletins. It has been an invaluable source of information in
refugee cases.
The
number of non-governmental organisations that will deal with sexual orientation
issues is slowly increasing. Two recent examples can be noted. In 1996 the Canadian
Inter-Church Committee on Human Rights in Latin America published a report
"Violence Unveiled: Repression against Lesbians and Gay Men in Latin
America." In 1997 War on Want, based in the United Kingdom, published a
report "Pride World-Wide: Sexuality, Development and Human Rights. It has
begun a program of financial support for certain lesbian and gay organisations
in third world countries.
CONCLUSIONS
We
have won some cases: Dudgeon, Norris, Modinos,
Toonen. Those victories are still on the narrow basis of
"privacy" rights trumping criminal laws.
Our
relationships are not recognized. We have been able to get into important
meetings like the Vienna World Conference on Human Rights and the Beijing
Conference on Women. There are now a few States and non-governmental
organisations that speak out in favour of lesbian and gay equality rights. But
ILGA is barred from routine United Nations human rights meetings at the moment.
Refugee law recognizes sexual orientation as a possible basis for fear of
persecution. The strong statements in the European Parliament may now be
translated into positive anti-discrimination measures, with the amendment of
the treaty on the European Union. We have made some progress. There is still a
lot to do.
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