How is health a human rights issue for LGBTI persons?
What are the issues and how are they human rights issues?
There is a plethora of issues that affect the health of lesbian, gay, bisexual, transgender and intersex (LGBTI) persons, many of which are issues relating to human rights. Around the world and in all societies, LGBTI persons face discrimination and marginalisation which puts them at risk of not being able to attain the highest attainable standard of health. This chapter does not intend to be comprehensive in its coverage of the human rights issues that affect the health of LGBTI persons – there are simply too many; however, it will provide the reader with an overview and a starting to point to understand some of the human rights issues affecting LGBTI persons’ health.1 The chapter also intends to leave the reader with an understanding that a respect for human rights, which apply equally to all people, can be a strong driver for effecting positive change in health issues of LGBTI persons.
Problems posed by heteronormativity
As a starting point, it is important to understand the problems that are posed by heteronormativity. Most societies are structured around two binary genders, male and female, and only one ‘normal’ sexual orientation, heterosexual. Medical practitioners, health care workers, policy-makers, and educators often fail to talk about, or even consider, those who fall outside of this norm. LGBTI persons are those who are not heterosexual (sexual orientation) and/or those whose identity is not gender conforming by societal norms (gender identity). LGBTI refers to gay, lesbian and/or bisexual persons (sexual orientation) and transgender or intersex persons (gender identity). When the issues of sexual orientation or gender identity are considered, often little or no thought is given to how the right to health of these individuals could be better protected, or is being violated. This invisibility, and associated isolation and marginalization, can have tragic consequences for the health and wellbeing of many members of LGBTI communities.
LGBTI people have long been the victims of violations of their human rights. They have been subjected to direct violations, whereby their physical or mental health is compromised because of their actual or perceived sexual orientation2 or gender identity3. Lesbians, gays, bisexuals, transgender and intersex persons have been attacked,4 arrested,5 tortured,6 killed,7 sentenced to death,8 committed to medical or psychiatric institutions and treated with ‘aversion therapy’ including electroshock therapy or forced rape.9 Intersex individuals, especially those with visibly atypical anatomy, have been subjected to surgery against their will, for example, to ‘correct’ their ‘ambiguous genitalia’.10 LGBTI persons are also indirectly victimized through failures to recognize and consider this diverse group as healthcare recipients with specific needs resulting in denial of access to the full enjoyment of their right to the highest attainable standard of health.
LGBTI persons experience frequent human rights violations based solely upon their LGBTI status, which has major impacts upon the health of LGBTI persons. For example, LGBTI persons often suffer violations of the right to privacy, the right to education, the right to family life, even housing and employment rights, particularly when they are discriminated against on the grounds of their sexual orientation or gender identity.11
This situation is an unacceptable affront to human dignity, particularly given the startling statistics that have been well known for many years: LGBTI people, especially LGBTI youth, are highly susceptible to poor health and health risks.12 Male teenagers who identify as gay are 2-3 times more likely than their peers to attempt suicide (although some studies put this figure as high as 6-30 times more likely13), and suicide attempts amongst LGBTI youth in general are reportedly 3-7 times higher than for heterosexual youth.14 For these young people, family or social pressure to conform to the heterosexual norm makes them highly susceptible to mental health problems and places their personal safety at risk. The rate of suicide and suicide attempts amongst LGBTI adults is also higher than in the heterosexual community.
Studies have also shown that ‘sexual minorities’ have a higher rate of other mental health problems including depression, bipolar disorder, panic attacks, as well as substance abuse including tobacco, alcohol and drug addictions and other ‘unhealthy behaviours’ such as high-risk/unsafe sex, and higher infection rates for HIV/AIDS and other sexually transmitted diseases.15 For example, it has been shown lesbian woman are more likely to smoke, abuse alcohol, weigh more, and suffer stress, than heterosexual women, placing them in a higher risk category for heart disease, stroke, cervical and other forms of cancer.16 Also, lesbians usually have fewer pregnancies and live births than their heterosexual counterparts which results in greater hormone exposure and increases their risk of breast, uterine and ovarian cancer.17
What are LGBTI health rights?
This section reviews some of the human rights that, when respected, can help protect LGBTI persons’ health. It looks at the right to the highest attainable standard of health, the right to be free from discrimination, the right to life and security of the person, and the right to be free from torture or cruel, inhuman or degrading treatment. As noted above, there are many other rights that, when violated can have major impacts on the health of LGBTI persons. Section two of this chapter sets out many more human rights and provides examples of violations of each human right.
The right to the highest attainable standard of health
The human right with the most obvious links to LGBTI health is the right to the enjoyment of the highest attainable standard of physical and mental health (often referred to simply as ‘the right to health’). The right to health is protected under international human rights law through article 25 of the Universal Declaration of Human Rights (UDHR), article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and other international and regional treaties and conventions.18 All of these international legal protections apply to people of all sexual orientations and gender identities because the right to health contained in the UDHR and ICESCR is “the right of everyone to the highest attainable standard of physical and mental health,” not just the right of heterosexual males and females.19
The United Nations Committee on Economic, Social and Cultural Rights (CESCR) explains in General Comment No. 14 on the right to the highest attainable standard of health, that discrimination on any basis, including on the basis of sex and sexual orientation, is contrary to article 2(2) (non-discrimination) and article 3 (equal rights of men and women) of ICESCR.20 CESCR later confirms in General Comment No. 20, that the “other status” listed in ICESCR article 2(2) on non-discrimination, includes sexual orientation and gender identity.21 Therefore ICESCR prohibits discrimination on the basis of sexual orientation or gender identity. This is consistent with the case law of the United Nations Human Rights Committee, which decided in the matter of Toonen v Australia, that the prohibition against discrimination on the basis of ‘sex’ includes discrimination on the basis of sexual orientation.22 The European Court of Human Rights has also confirmed that discrimination in treatment due to a person’s sexual orientation is the “embodi[ment of] a predisposed bias on the part of a heterosexual majority against a homosexual minority, [and] these negative attitudes cannot of themselves be considered by the Court to amount to sufficient justification for the differential treatment any more than similar negative attitudes towards those of a different race, origin or colour”.23
On March 26, 2007, The Yogyakarta Principles on the Application of Human Rights Law in Relation to Sexual Orientation and Gender Identity (the Yogyakarta Principles) were launched. They comprehensively examine the human rights for all persons, regardless of sexual orientation or gender identity and identify the relevant obligations under international human rights law. The preamble states that the Yogyakarta Principles are based on the premise that:
… international human rights law affirms that all persons, regardless of sexual orientation or gender identity, are entitled to the full enjoyment of all human rights, [and] that the application of existing human rights entitlements should take account of the specific situations and experiences of people of diverse sexual orientations and gender identities.24
The Yogyakarta Principles were signed by 29 international human rights experts, after a draft process and workshop organized by the International Commission of Jurists and the International Service for Human Rights.
Principles 17 and 18 address the right to the highest attainable standard of health and protection from medical abuses. Principle 17 of the Yogyakarta Principles states: “Everyone has the right to the highest attainable standard of physical and mental health, without discrimination on the basis of sexual orientation or gender identity. Sexual and reproductive health is a fundamental aspect of this right.” This Principle details nine aspects of state obligations related to this right, including:
- the duty to take legislative and other measures to ensure the right to health and access to healthcare;
- the treatment of medical records with confidentiality;
- the design and development of healthcare resources and programmes to improve the health status of LGBTI people and address discrimination and prejudice;
- the need for informed and empowered decisions regarding medical treatment and care;
- non-discrimination and respect for the diversity of sexual orientations and gender identities in sexual health, education, prevention, care and treatment, including recognition of next of kin;
- facilitating access to gender reassignment treatments; and
- adopting policy-making and education and training programmes for healthcare workers to improve treatment for LGBTI people.
Principle 18, which addresses the need for LGBTI persons to be protected from medical abuses, states:
No person may be forced to undergo any form of medical or psychological treatment, procedure, testing, or be confined to a medical facility, based on sexual orientation or gender identity. Notwithstanding any classifications to the contrary, a person’s sexual orientation and gender identity are not, in and of themselves, medical conditions and are not to be treated, cured or suppressed.
Principle 18 is broken down into a set of five obligations for states, including:
- taking the necessary legislative and other measures to ensure protection against harmful medical practices, including the irreversible alteration of a child’s body through attempts to impose a gender identity;
- establishing child protection mechanisms to reduce risk of medical abuse;
- ensuring LGBTI people are not used to unethically or involuntarily test medical procedures or conduct research, and reversing funding programmes that would enable such abuses; and
- ensuring medical and psychological treatment does not treat sexual orientation and gender identity as a pathology.
These provisions in the Yogyakarta Principles provide guidance on how international human rights law can be applied in the specific context of respecting, protecting and promoting the right to health for LGBTI persons.
The United Nations Special Rapporteur on the right to the highest attainable standard of physical and mental health explained in his 2004 report:
The legal prohibition of same-sex relations in many countries, in conjunction with a widespread lack of support or protection for sexual minorities against violence and discrimination, impedes the enjoyment of sexual and reproductive health by many people with lesbian, gay, bisexual, or transgender identities or conduct.25
It is not only sexual and reproductive health that is impeded – all forms of physical and mental health can be affected by discriminatory policies and practices, and the homophobia or heterosexism of society in general and medical practitioners in particular.
Freedom from discrimination
LGBTI persons experience multiple forms and manifestations of discrimination. For the purpose of illustrating the issue of discrimination, this section will examine homophobia as a form of discrimination that affects the health of LGBTI persons.
LGBTI student activists have described some of the problems they see resulting from heterosexism:26
“Once the heterosexist assumption is made, many gay men feel the necessity to maintain it. If you can’t talk to your doctor about who you have sex with, you won’t get the information you need …”27
“One health challenge is that providers don’t necessarily know the sexual orientation of their patients. This can prevent them from asking certain questions, probing for certain risk behaviors, or looking for indications of a particular illness – which does a disservice to their patients …”28
“There’s another potential barrier to health care … regarding “coming out:” Is your provider friendly? How do you know that what you say to them will be private? What are the implications of whether or not you have privacy? … It’s a greater risk for youth because if you come out to your doctors, are they going to tell your parents or the people you’re living with? With teens coming out at a younger age, the risk of homelessness has skyrocketed for adolescents whose parents aren’t ready for their coming out even if the person is young. That’s a major health concern right there.”29
Sharing your sexual orientation or gender identity with others, by ‘coming out’, is important for positive mental health. A society that discourages coming out, discourages recognition of each individual’s worth and dignity. It also fosters a culture where, from an early age, LGBTI people are unlikely to be able to properly access the full range of health services and health information that should be available to them, because traditional views about sexuality create obstacles to the provision of health services.30 Researchers have found that in health care situations LGBTI patients suffer “ostracism, invasive questioning, rough physical handling, derogatory comments, breaches of confidentiality, shock, embarrassment, unfriendliness, pity, condescension, and fear”.31 They “respond to this mistreatment by delaying medical care or risking potential misdiagnosis by hiding their sexual orientation.”32 Homophobia, ignorance and fear are not just impediments to accessing healthcare, but also to research,33 further perpetuating the cycle of mistreatment.
Homophobic societies also inhibit education and advocacy about safe sex and other health matters. In places where homosexual activities are criminalized, HIV/AIDS education and other forms of preventive health care that should be tailored to LGBTI communities are suppressed. For example, non-governmental organizations (NGOs) such as Human Rights Watch have reported that the crackdown on lesbians and gays in Uganda, prompted by “state homophobia”, is “undermining Uganda’s efforts to combat the spread of HIV/AIDS”.34 Amnesty International reports that the arrest, detention, and compulsory testing of men suspected of having HIV in Egypt “not only violates the most basic rights of people living with HIV … [i]t also threatens public health, by making it dangerous for anyone to seek information about HIV prevention or treatment.”35 Marginalizing LGBTI people undermines public health initiatives, leaving this significant sector of the community underserved and often afraid to seek treatment, even if they could, due to stigmatization or criminalization.36 Other prejudices, such as those associated with HIV/AIDS, may reinforce and exacerbate discrimination on the grounds of sexual orientation or gender identity, or vice versa, making it less likely that those in need access health services, even if such services are available.37
Right to life and security of the person
LGBTI persons are vulnerable to targeted violence on the basis of their sexual orientation or gender identity. Five countries impose the death penalty for same-sex conduct. This is a violation of Article 6 of the ICCPR, which states that a sentence of death may be imposed only for the most serious crimes. The United Nations Office of the High Commissioner for Human Rights (OHCHR) has stated that same-sex conduct does not qualify as a most serious crimes, thus is should not be penalised by death.38
Violence against LGBTI persons is also often perpetrated by non-state actors. Documentation of violence against LGBTI persons because of their LGBTI status has included extrajudicial killings, killings of transgender individuals, “honour killings”39 perpetrated by family or community members, rape and sexual violence and other hate-motivated violence. For example, the Trans Murder Monitoring Project reported in March 2013 that there have been “1,123 reported killings of trans people in 57 countries worldwide from January 1st 2008 to December 31st 2012.”40
With respect to sexual violence, lesbians, bisexual women, and transgender peoples’ risk of rape may be even higher than the risk for heterosexual women because they may be special targets for punitive or corrective rape. Corrective rape is “a phenomenon in which men rape people they presume or know to be lesbians in order to ‘convert’ them to heterosexuality,” and it is a common form of sexual violence against LGBTI women.41
Violence on the basis of sexual orientation or gender identity is usually hate-motivated.42 Under international law, states are obligated to protect individuals from violence and to prosecute those who perpetrate violence against individuals. The ICCPR provides every human being the inherent right to life. Under the ICCPR, State Parties are obligated to protect the right to life (Article 6). The ICCPR also provides everyone the right to liberty and security of person (Article 9). This includes the obligation to investigate all hate crimes and incidence of violence against an individual and to punish each perpetrator.
Freedom from torture or cruel, inhuman or degrading treatment
Actual or perceived LGBTI persons are subjected to torture in many countries, often perpetrated because of stigma associated with LGBTI persons. The OHCHR explains that sexual violence “may constitute torture when it is carried out by, or at the instigation of, or with the consent or acquiescence of public officials.”43 Police and prison guards are often perpetrators of torture against LGBTI persons or are complicit in permitting torture to be perpetrated by others.
Another form of documented torture against LGBTI persons is the use of non-consensual anal or vaginal examinations on suspected LGBTI persons in attempt to obtain physical evidence of suspected sexual behavior. For example, anal and vaginal examinations, dubbed “Tests of Shame” in Lebanon are used to investigate a suspect’s sexual behaviour. These tests constitute a form of torture and—as utilized by law enforcement and the courts—are humiliating and degrading acts.44 Likewise, in Egypt in 2002, Egyptian authorities used forensic anal examinations on 52 men who were arrested for “debauchery” in a nightclub.45 These practices constitute torture and exacerbate discrimination and violence against LGBTI individuals.
The Committee against Torture (CAT) explains that “[t]he 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.”46 The CAT goes on to explain that “insofar as the obligations arising under the Convention are concerned, their laws are in practice applied to all persons, regardless of … sexual orientation.47 The CAT further explains that ensuring the protection of marginalized groups who are especially at risk of torture includes “fully prosecuting and punishing all acts of violence and abuse against these individuals and ensuring implementation of other positive measures of prevention and protection….”48
The Special Rapportuer on torture explains in a recent report with regard to lesbian, gay, bisexual, transgender and intersex persons that:
There is an abundance of accounts and testimonies of persons being denied medical treatment, subjected to verbal abuse and public humiliation, psychiatric evaluation, a variety of forced procedures such as sterilization, State-sponsored forcible anal examinations for the prosecution of suspected homosexual activities, and invasive virginity examinations conducted by health-care providers, hormone therapy and genitalnormalizing surgeries under the guise of so called “reparative therapies”. These procedures are rarely medically necessary, can cause scarring, loss of sexual sensation, pain, incontinence and lifelong depression and have also been criticized as being unscientific, potentially harmful and contributing to stigma.49
The Special Rapporteur further explains that many intersex and transgender persons are subjected to involuntary procedures. Often these procedures are conducted only “because [the individuals] fail to conform to socially constructed gender expectations”50 and that, “[i]ndeed, discrimination on grounds of sexual orientation or gender identity may often contribute to the process of the dehumanization of the victim, which is often a necessary condition for torture and ill-treatment to take place.”51 For example, children with atypical sex characteristics are often subjected to “irreversible sex assignment, involuntary sterilization, involuntary genital normalizing surgery, performed without their informed consent, or that of their parents, ‘in an attempt to fix their sex’.”52 While transgender persons are required to undergo unwanted sterilization surgeries, ‘gender-confirming surgery,’ or ‘gender reassignment surgery,’ “as a prerequisite to enjoy legal recognition of their preferred gender.” 53
What are human rights-based approaches for upholding the health rights of LGBTI persons?
This section provides some examples of human rights-based approaches that can be effective in upholding the health rights of LGBTI persons.
Allow for LGBTI persons to affirm their gender identity in state documents
Allowing people to affirm their gender identity in state documents and other administrative procedures is necessary to achieve the highest attainable standard of health. Upholding a right to privacy in relation to past and present gender identity, and the ability to change legal identity to protect this privacy, also helps to ensure that LGBTI persons are less likely to be subjected to unlawful discrimination, harassment, and psychological harm. The ability to affirm ones’ gender identity in state documents has been questioned in a number of courts, including the European Court of Human Rights. In a variety of cases, the Court has addressed issues that are highly relevant to the enjoyment of the right to the highest attainable standard of health for LGBTI persons, although this has usually been achieved through applying the right to privacy. For example, in the cases of Goodwin v United Kingdom54 and I. v United Kingdom,55 the Court ruled that the United Kingdom (UK) Government’s refusal to recognize the post-operative genders of two transsexual women was discriminatory and a violation of their right to privacy and right to a family.
The Right to Receive Appropriate, Gender-Affirming Health Care
Another aspect of LGBTI health is the right to receive appropriate, gender-affirming health care that is adequately provided for by the State. This includes the freedom to change one’s gender through the use of medical procedures. It is also important when considering what the content of the right to health means for transgender persons. The European Court of Human Rights describes a case about a female-to-male gender re-assignment patient unable to complete his transformation because “there [was] no law regulating full gender reassignment surgery.”56 While the State had passed a Gender Reassignment Bill entitling transsexuals to have civil documents changed after full gender reassignment, there was no enactment of the Bill because no “legal instrument regulated the conditions and procedure for gender reassignment.57 While the patient, having undergone partial surgery, could not access full gender reassignment surgery and therefore, could not change civil-status documents to reflect his change of gender. The patient alleged that:
[H]is continuing inability to complete gender-reassignment surgery left him with a permanent feeling of personal inadequacy and an inability to accept his body, leading to great anguish and frustration. Furthermore, due to the lack of recognition of his perceived, albeit pre-operative, identity, the applicant constantly faced anxiety, fear, embarrassment and humiliation in his daily life. He has had to submit to severe hostility and taunts in the light of the general public’s strong opposition, rooted in traditional Catholicism, to gender disorders. Consequently, he has had to follow an almost underground life-style, avoiding situations in which he might have to disclose his original identity, particularly when having to provide his personal code. This has left him in a permanent state of depression with suicidal tendencies.58
The Court ruled that the lack of implementing legislation violated the applicant’s right to private life. Indeed, the Court ruled that it was necessary for a state, in this instance Lithuania, to make changes to their civil code in order to protect the right to full gender-reassignment surgery, and allocate budgetary measures to facilitate the fulfilment of this right.59
Also, European Court of Human Rights has addressed the issue of providing funding for transition-related procedures. The European Court of Human Rights said that freedom to define one’s own gender identity is “one of the most basic essentials of self-determination.”60 This belief was enumerated in a recent case from 2003, where the Court ruled that Germany had failed to respect the freedom to define one’s gender identity (part of the right to privacy) when its civil courts refused a woman’s appeal against her health insurance company and its rejection of her claim for reimbursement of the costs of her sex-reassignment surgery.61 This could be seen as part of a positive obligation to facilitate the self-determination of gender identity, including through the provision and funding of relevant health care procedures.
Require Full and Informed Consent for Medical Procedures
LGBTI persons are vulnerable to undergoing coerced medical procedures. This is particularly true for intersex and transgender persons, for whom obtaining gender-correct identification is predicated on undergoing specific medical procedures. The Special Rapporteur on torture recently recommended, regarding LGBTI persons specifically, that all States “repeal any law allowing intrusive and irreversible treatments, including forced genital-normalizing surgery, involuntary sterilization, unethical experimentation, medical display, “reparativetherapies” or “conversion therapies”, when enforced or administered without the free and informed consent of the person concerned.”62 The right to informed consent protects the right of the patient to be involved in medical decision-making and requires a voluntary and sufficiently informed decision.63
Take Into Account LGBTI Persons in Health Policy Setting
Another way in which LGBTI persons’ health can be impacted is through a failure to adequately take into account their specific needs, and tailor health care systems, including training for health care practitioners, to be more sensitive to the concerns of the LGBTI community. For example, some health providers and health systems focus on treating the identity of the patient rather than their body. Also, gays and lesbians are “overlooked and underserved” when it comes to their unique health care needs.64 For example, the sexual and reproductive health needs, including fertility, of same-sex practicing couples is often overlooked or misunderstood. Likewise, transgender persons face many obstacles in accessing ‘gender-appropriate services,’65 which may be complicated when insurance refuses to pay for gender-specific services for transgender or intersex patients. Health policy makers simply fail to prioritise this particular group of consumers of health services, along with other LGBTI people.
While national health systems are often poorly designed to serve the needs of ‘sexual minorities’, likewise international health care programming is not effectively targeting these groups in need. For example, in 2007 the International Gay and Lesbian Human Rights Commission (IGLHRC) published a study that analysed how the international funding community, governments, and NGOs are failing LGBTI people because HIV/AIDS programming is not addressing same-sex practicing people, and only leads to denying further LGBTI patients’ access to effective HIV prevention, counselling and testing, treatment, and care.66 “Moving the mountain” is how the group has described the epic struggle to get HIV programmers and policymakers to address how anti-gay discrimination fuels the HIV/AIDS crisis in Africa and elsewhere.67
The failure to protect health rights for LGBTI people is as much a failure of human rights practitioners and the human rights system, as it is a failure of health practitioners and health systems, because “[h]uman rights law has developed … while keeping the issues of sexuality firmly in the closet.”68 Even as human rights law has developed, it has continued to marginalize LGBTI people and it has failed to adequately integrate the rights of LGBTI people.69
Provide LGBTI health education
Health education is an important aspect of the right to health for LGBTI individuals. However, school curricula often fail to address LGBTI health education needs. In many countries, educational materials that address sexual orientation and gender identity issues, or even acknowledge the existence of LGBTI concerns, are banned from schools. In many countries around the world the hetero-norm is reinforced through withholding education about sexual and gender diversity,70 and risking the health of young LGBTI people in the process.71
1 See, Mahon C, “Sexual Orientation, Gender Identity and the Right to Health” in Clapham C et al, eds., Realizing the Right to Health, Swiss Human Rights Book, Vol. 3 (Zurich: Rüffer & Rub, 2009). http://www.swisshumanrightsbook.com/etc/medialib/downloads/edazen/topics/human/srbook.Par.0065.File.tmp/14_453_Mahon.pdf.
2 This chapter draws on the definition of ‘sexual orientation’ used in the Yogyakarta Principles: “‘sexual orientation’ … refer[s] to each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.” Yogyakarta Principles: The Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity (March 2007). http://www.yogyakartaprinciples.org/.
3 This chapter draws on the definition of ‘gender identity’ used in the Yogyakarta Principles: “‘gender identity’ … refer[s] 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 (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms.” Yogyakarta Principles: The Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity (March 2007). http://www.yogyakartaprinciples.org/.
4 See, e.g., UN Committee Against Torture, Conclusions and recommendations of the Committee against Torture: Venezuela, CAT/C/CR/29/2 (December 23, 2002) at para. 10(d).
5 UN Commission on Human Rights, Question of the Human Rights of All Persons Subjected to any Form of Detention or Imprisonment, In Particular: Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: Report of the Special Rapporteur, Mr. Nigel S. Rodley, submitted pursuant to Commission on Human Rights resolution 1992/32, E/CN.4/1995/34 (January 12, 1995).
6 See, UN Committee Against Torture, Conclusions and recommendations of the Committee against Torture: Argentina, CAT/C/CR/33/1 (December 10, 2004) at para. 6(g); UN Committee Against Torture, Conclusions and recommendations of the Committee against Torture: Egypt, CAT/C/CR/29/4 (December 23, 2002) at para. 5(e).
7 UN Commission on Human Rights, Internally displaced persons: Report of the Representative of the Secretary-General, Mr. Francis Deng, submitted pursuant to Commission on Human Rights resolution 1993/95: Addendum: Profiles in displacement: Colombia, E/CN.4/1995/50/Add.1 (October 3, 1994); UN Commission on Human Rights, Joint report of the Special Rapporteur on the question of torture, Mr. Nigel S. Rodley, and the Special Rapporteur on extrajudicial, summary or arbitrary executions, Mr. Bacre Waly Ndiaye, submitted pursuant to Commission on Human Rights resolutions 1994/37 and 1994/82: Visit by the Special Rapporteurs to the Republic of Colombia from 17 to 26 October 1994, E/CN.4/1995/111 (January 16, 1995).
8 UN Commission on Human Rights, Report on the situation of human rights in the Islamic Republic of Iran, prepared by the Special Representative of the Commission on Human Rights, Mr. Maurice Copithorne (Canada), pursuant to Commission resolution 1995/68 of 8 March 1995 and Economic and Social Council decision 1995/279 of 25 July 1995, E/CN.4/1996/59 (March 21, 1996).
9 See, UN Commission on Human Rights, The right of everyone to the enjoyment of the highest attainable standard of physical and mental health: Report of the Special Rapporteur, Paul Hunt, E/CN.4/2004/49 (February 16, 2004) at para. 38; UN General Assembly, Report of the Special Rapporteur on the question of torture and other cruel, inhuman or degrading treatment or punishment, A/56/156 (July 3, 2001); UN Commission on Human Rights, Torture and other cruel, inhuman or degrading treatment or punishment: Report of the Special Rapporteur, Theo van Boven, E/CN.4/2004/56 (December 23, 2003); International Commission of Jurists, Sexual Orientation and Gender Identity in Human Rights Law: References to Jurisprudence and Doctrine of the United Nations Human Rights System (July 2007). http://www.refworld.org/docid/4ad5b83a2.html; Amnesty International, Crimes of Hate, Conspiracy of Silence: Torture and Ill-Treatment based on Sexual Identity, AI Index ACT 40/016/2001 (2001). http://www.amnesty.org/en/library/info/ACT40/016/2001; Amnesty International, Breaking the Silence: Human Rights Violations Based on Sexual Orientation, (London: Amnesty International Publications, 1994); Human Rights Watch, Hated to Death: Homophobia, Violence and Jamaica’s HIV/AIDS Epidemic (November 2004). http://hrw.org/reports/2004/jamaica1104/jamaica1104.pdf; Human Rights Watch and The International Gay and Lesbian Human Rights Commission, More Than A Name: State-Sponsored Homophobia and its Consequences in Southern Africa (2003). http://www.iglhrc.org/sites/default/files/160-1.pdf.
10 O’Flaherty M and Fisher J, “Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles,” 8(2) Human Rights Law Review (2008) 207-248, at 213; Intersex Society of North America, “Frequently Asked Questions,” http://www.isna.org/faq/; Morris E, “The self I will never know,” 364 New Internationalist (2004). http://newint.org/features/2004/02/01/self/.
11 Amnesty International, Breaking the Silence: Human Rights Violations Based on Sexual Orientation, (London: Amnesty International Publications, 1994).
12 See, inter alia, Kroll and Warneke, The Dynamics of Sexual Orientation and Adolescent Suicide: A Comprehensive Review and Development Perspective (Calgary: University of Calgary, 1995).
13 White R, “Growing Up as a Gay Young Person in Ireland – So What’s the Story?” in Rainbow Project, and “Carers are Ignoring Gay Teens,” Irish News, 5 June 1988, both cited in Northern Ireland Human Rights Commission, Enhancing the Rights of Lesbian, Gay and Bisexual People in Northern Ireland (August 2001). http://www.nihrc.org/documents/research-and-investigations/lgbt/enhancing-right-lesbian-gay-people-northern-ireland-2001.pdf.
14 See, Russell ST and Joyner K, “Adolescent Sexual Orientation and Suicide Risk: Evidence From a National Study,” 91 American Journal of Public Health (2001) 1276; Arriola ER, “The Penalties for Puppy Love: Institutionalized Violence Against Lesbian, Gay, Bisexual and Transgendered Youth,” 1 Journal of Gender, Race and Justice (1998) 429, at 439-47; Paul J et al, “Suicide Attempts Among Gay and Bisexual Men: Lifetime Prevalence and Antecedents,” 92 American Journal of Public Health (2002) 1338; Boucai MD, “Legal Remedy for Homophobia: Finding a Cure in the International Right to Health,” 6 Georgia Journal of Gender and Law 21 (2005).
15 Boucai MD, “Legal Remedy for Homophobia: Finding a Cure in the International Right to Health,” 6 Georgia Journal of Gender and Law 21 (2005).
16 University of Washington Women’s Health, “Lesbian Health: Getting the care you deserve.” http://depts.washington.edu/uwcoe/healthtopics/lesbianhealth.html.
17 Mahon C, “Sexual Orientation, Gender Identity and the Right to Health” in Clapham C et al, eds., Realizing the Right to Health, Swiss Human Rights Book, Vol. 3 (Zurich: Rüffer & Rub, 2009). http://www.swisshumanrightsbook.com/etc/medialib/downloads/edazen/topics/human/srbook.Par.0065.File.tmp/14_453_Mahon.pdf. See also, Committee on Lesbian, Gay, Bisexual, and Transgender Health Issues and Research Gaps and Opportunities; Board on the Health of Select Populations, The Health of Lesbian, Gay, Bisexual, and Transgender People: Building a Foundation for Better Understanding (2011).
18 Including, inter alia, the Convention on the Rights of the Child (article 24); the International Convention on the Elimination of All Forms of Racial Discrimination (article 24); the International Convention on the Elimination of all Forms of Discrimination Against Women (article 11); the Convention on the Rights of Persons with Disabilities (article 25); the African Charter on Human and Peoples’ Rights (article 16); the African Charter on the Rights and Welfare of the Child (article 14); the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa; the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (the Protocol of San Salvador) (article 10); the Arab Charter on Human Rights (article 39); and the European Social Charter (common article 11).
19 International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 12(1), emphasis added. See also, International Commission of Jurists (ICJ), Sexual Orientation and Gender Identity: A Practitioner’s Guide (Geneva: ICJ, 2008), in particular ‘Chapter 8: Right to Health’; and Heinze E, Sexual Orientation – A Human Right: An Essay on International Human Rights Law (Dordrecht: Martinus Nijhoff Publishers, 2005).
20 Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 14, E/C.12/2000/4 (August 11, 2000).
21 Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 20, E/C.12/GC/20 (July 2, 2009).
22 UN Human Rights Committee, Toonen v Australia, Communication No. 488/1992, CCPR/C/50/D/488/1992 (March 31, 1994).
23 Case of S.L. v Austria, Application No. 45330/99 (January 1, 2003), at para. 44. http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-60877. This case concerns the differing age of consent for homosexuals and heterosexuals.
24 International Commission of Jurists (ICJ), Yogyakarta Principles: The Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity (March 2007), preambular paragraph 6. http://www.yogyakartaprinciples.org/.
25 UN Commission on Human Rights, The right of everyone to the enjoyment of the highest attainable standard of physical and mental health: Report of the Special Rapporteur, Paul Hunt, E/CN.4/2004/49 (February 16, 2004) at para. 38.
26 Heterosexism refers to the presumption that everyone is heterosexual and that opposite-sex attractions and relationships are the norm.
27 Danni (interview subject), “Sexual Orientation and Other Sexual Minorities,” in Healthy Maine 2010: Opportunity For All, at 62. http://www.maine.gov/dhhs/boh/files/hm2010/oppforall/b10sexor.pdf.
28 Galena R (interview subject), Ibid. at 63.
29 Burns P (interview subject), Ibid. at 62.
30 UN Commission on Human Rights, The right of everyone to the enjoyment of the highest attainable standard of physical and mental health: Report of the Special Rapporteur, Paul Hunt, E/CN.4/2004/49 (February 16, 2004) at para. 14.
31 Stevens PE and Hall JM, as quoted in Gartner N, “Articulating Lesbian Human Rights: The Creation of a Convention on the Elimination of All Forms of Discrimination Against Lesbians,” 14 UCLA Women’s Law Journal (2005) 61, at 82-3. See also, Boucai MD, “Legal Remedy for Homophobia: Finding a Cure in the International Right to Health,”’ 6 Georgia Journal of Gender and Law 21 (2005), at 32.
32 Stevens PE and Hall JM, as quoted in Gartner N, “Articulating Lesbian Human Rights: The Creation of a Convention on the Elimination of All Forms of Discrimination Against Lesbians,” 14 UCLA Women’s Law Journal (2005) 61, at 83.
33 Dean L, et al., ‘Lesbian, Gay, Bisexual and Transgender Health: Findings and Concerns’ 4 Journal of the Gay and Lesbian Medical Association (2000) 101. See also, Boucai MD, “Legal Remedy for Homophobia: Finding a Cure in the International Right to Health,”’ 6 Georgia Journal of Gender and Law 21 (2005).
34 Human Rights Watch, Uganda: State Homophobia Threatens Health and Human Rights: Government Persecution Contributing to HIV Pandemic (August 23, 2007). http://hrw.org/english/docs/2007/08/22/uganda16729.htm.
35 Amnesty International, Egypt: Spreading Crackdown on HIV Endangers Public Health: Rights Violations Drive Those in Need Underground (February 19, 2008). http://www.hrw.org/news/2008/02/14/egypt-spreading-crackdown-hiv-endangers-public-health.
36 Wilets J, “Using International Law to Vindicate the Civil Rights of Gays and Lesbians in United States Courts,” 27 Columbia Human Rights Law Review (1995) 33, 34; Boucai MD, “Legal Remedy for Homophobia: Finding a Cure in the International Right to Health,: 6 Georgia Journal of Gender and Law 21 (2005).
37 UN Commission on Human Rights, The right of everyone to the enjoyment of the highest attainable standard of physical and mental health: Report of the Special Rapporteur, Paul Hunt, E/CN.4/2004/49 (February 16, 2004) at para. 35.
38 See, UN Office of the High Commissioner for Human Rights, Born Free and Equal: Sexual Orientation and Gender Identity in International Human Rights Law, HR/PUB/12/06 (2012) at 34. http://www.ohchr.org/Documents/Publications/BornFreeAndEqualLowRes.pdf.
39 “Honour killings” are murders undertaken by a family or community against an individual who has brought shame on a family through their actions. The murders are thought to purge the family of the dishonor brought upon them by the individuals.
40 TGEU, “More than 1100 murdered trans people reported: TGEU Press Release” (March 2013), http://www.tgeu.org/More_than_1100_trans_murders_reported_in_5_years_TGEU_Press_Release.
41 Human Rights Watch, “We’ll Show You You’re a Woman”: Violence and Discrimination against Black Lesbians and Transgender Men in South Africa (2011). http://www.hrw.org/sites/default/files/reports/southafrica1211.pdf.
42 UN Human Rights Council, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Anand Grover, A/HRC/14/20 (April 27, 2010). http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.20.pdf; UN Office of the High Commissioner for Human Rights, Born Free and Equal: Sexual Orientation and Gender Identity in International Human Rights Law, HR/PUB/12/06 (2012). http://www.ohchr.org/Documents/Publications/BornFreeAndEqualLowRes.pdf.
43 UN Office of the High Commissioner for Human Rights, Born Free and Equal: Sexual Orientation and Gender Identity in International Human Rights Law, HR/PUB/12/06 (2012). http://www.ohchr.org/Documents/Publications/BornFreeAndEqualLowRes.pdf [quoting UN General Assembly, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, A/HRC/7/3 (Jan. 15, 2008)].
44 Human Rights Watch, Lebanon: Stop “Tests of Shame”: Authorities Order Anal Examinations of Men Charged with Homosexuality (August 10, 2012). http://www.hrw.org/news/2012/08/10/lebanon-stop-tests-shame.
45 Human Rights Watch, In a Time of Torture: The Assault on Justice in Egypt’s Crackdown on Homosexual Conduct (March 1, 2004). http://www.hrw.org/reports/2004/02/29/time-torture-0.
46 UN Committee against Torture, General Comment 2, CAT/C/GC/2 (January 24, 2008), para. 21.
49 Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, A/HRC/22/53 (Feb 2013), at para. 76. http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session22/A.HRC.22.53_English.pdf.
50 Ibid. at para. 77, 78.
51 Ibid. at para. 79.
52 Ibid. at para. 77.
53 Ibid. at para. 78.
54 Case of Christine Goodwin v. the United Kingdom, Application No. 28957/95 (July 11, 2002). http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-60596.
55 Case of I. v. the United Kingdom, Application No. 25680/94 (July 11, 2002). http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-60595.
56 Case of L. v Lithuania, Application No. 27527/03 (September 11, 2007). http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-82243.
59 Case of L. v Lithuania, Application No. 27527/03 (September 11, 2007). http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-82243.
60 Case of Van Kück v. Germany, Application No. 35968/97 (June 12, 2003). http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-61142.
62 Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, A/HRC/22/53 (Feb 2013), at para. 88. http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session22/A.HRC.22.53_English.pdf.
63 UN General Assembly, Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, A/64/272 (August 10, 2009).
64 Gartner N, “Articulating Lesbian Human Rights: The Creation of a Convention on the Elimination of All Forms of Discrimination Against Lesbians,” 14 UCLA Women’s Law Journal (2005) 61.
65 O’Flaherty M and Fisher J, “Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles,” 8(2) Human Rights Law Review (2008): 207-248, at 211.
66 International Gay and Lesbian Human Rights Commission (IGLHRC), Off the Map: How HIV/AIDS Programming is Failing Same-Sex Practicing People in Africa (2007). http://www.iglhrc.org/sites/default/files/6-1.pdf.
67 International Gay and Lesbian Human Rights Commission (IGLHRC), “Moving the Mountain: Getting HIV Programmers and Policymakers to Pay Attention to the Needs of Men Who Have Sex with Men in Kenya,” Press Release (March 8, 2007); International Gay and Lesbian Human Rights Commission (IGLHRC), “IGLHRC’s New Study Reveals How Anti-Gay Discrimination Fuels HIV/AIDS Crisis in Africa,” Press Release (March 1, 2007. http://www.iglhrc.org/content/africa-iglhrcs-new-study-reveals-how-anti-gay-discrimination-fuels-hivaids-crisis-africa.
68 Morgan W, “Queering International Human Rights” in Stychin C and Herman D, eds., Law and Sexuality: The Global Arena (Minneapolis: University of Minnesota Press, 2001) at 208, 209.
69 For example, Nadine Gartner writes of how the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) “fails to adequate represent lesbians … [t]he woman who emerges from CEDAW is heterosexual, married, with children, and primarily focused on her home” in Gartner N, “Articulating Lesbian Human Rights: The Creation of a Convention on the Elimination of All Forms of Discrimination Against Lesbians,” 14 UCLA Women’s Law Journal (2005) 61.
70 Armstrong KK, “The Silent Minority Within a Minority: Focusing on the Needs of Gay Youth in our Public Schools,” 24 Golden Gate University Law Review (1994) 67.
71 Pedrioli CA, “Lifting the Pall of Orthodoxy: The Need for Hearing a Multitude of Tongues in and Beyond the Sexual Education curricula at Public High Schools,” 13 UCLA Women’s Law Journal (2005) 209, at 211-2.