Table 2: LGBTI Health and Freedom from Torture or Cruel, Inhuman, or Degrading Treatment

Examples of Human Rights Violations

  • A psychiatrist provides “treatment” to an LGBTI person with electric shock or hormone therapy without consent.
  • A gay man in prison is denied a bed and repeatedly assaulted and raped by cell mates, with the complicity or inaction of prison guards and correctional officials.
  • Police torture a lesbian couple, because of their sexual orientation, and there is a failure to investigate the actions of the police officers.

Yogyakarta Principle

Principle 10:  Everyone has the right to be free from torture and from cruel, inhuman or degrading treatment or punishment, including for reasons relating to sexual orientation or gender identity.

States shall:

• Take all necessary legislative, administrative and other measure to prevent and provide protection from torture and cruel, inhuman or degrading treatment or punishment, perpetrated for reasons relating to the sexual orientation or gender identity of the victim, as we as the incitement of such acts;

• Take all reasonable steps to identify victims of torture and cruel, inhuman or degrading treatment or punishment, perpetrated for reasons relating to sexual orientation or gender identity, and offer appropriate remedies including redress and reparation and, where appropriate, medical and psychological support;

• Undertake programmes of training and awareness-raising for police, prison personnel and all other officials in the public and private sector who are in a position to perpetrate or to prevent such acts.

Human Rights Standards Treaty Body Interpretation
ICCPR 7 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation. HRC General Comment No. 31: The failure to investigate and bring to justice perpetrators of torture or ill treatment in and of itself can give rise to a separate breach of international law. CCPR/C/21/Rev.1/Add.13 (2004) at para 18.

HRC: recommending that Ecuador “should take preventive and protective measures to ensure that persons of a different sexual orientation are not detained in private clinics or rehabilitation centres in order to be subjected to ‘sexual reorientation’ treatments” and “investigate the alleged detentions and torture and adopt the necessary remedial measures in accordance with the Constitution.” CCPR/C/ECU/CO/5 (2009) at para. 12.

Human Rights Standards Treaty Body Interpretation
CAT 2(1) Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. CAT General Comment 2: “The 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. States parties must ensure that … their laws are in practice applied to all persons, regardless of … gender, sexual orientation, transgender identity… States parties should ensure the protection of members of groups especially at risk of being tortured, by fully prosecuting and punishing all acts of violence and abuse against these individuals and ensuring implementation of other positive measures of prevention and protection, including but not limited to those outlined above.” CAT/C/GC/2 (2008) at para. 21.

CAT: expressing concern that in the United States “that there are numerous reports of sexual violence perpetrated by detainees on one another, and that persons of differing sexual orientation are particularly vulnerable” and recommending that it “design and implement appropriate measures to prevent all sexual violence in all their detention centres.”  CAT/C/USA/Co/2 (2006) at paras. 32.

CAT: recommending that the United States “ensure that reports of brutality and ill-treatment of members of vulnerable groups by its law-enforcement personnel are independently, promptly and thoroughly investigated and that perpetrators are prosecuted and appropriately punished.”  CAT/C/USA/Co/2 (2006) at paras. 37.

CAT: recommending to Egypt that it “remove all ambiguity in legislation which might underpin the persecution of individuals because of their sexual orientation. Steps should also be taken to prevent all degrading treatment during of body searches.”  Here the Committee is referring to use of anal exams to ‘prove’ homosexuality as degrading treatment. CAT/C/CR/29/4 (2002) at para. 6(k).

CAT: expressing concern to Argentina at “[a]llegations of torture and ill-treatment of certain other vulnerable groups, such as members of the indigenous communities, sexual minorities and women.” CAT/C/CR/33/1, para 6(g).

CAT: recommending that Mongolia “establish a comprehensive legal framework to combat discrimination, including hate crimes and speech. The State party should take measures to bring perpetrators of such crimes to justice. The State party should ensure the protection of vulnerable groups such as sexual minorities, persons living with HIV/AIDS, and some foreigners. The State party should establish effective policing, enforcement and complaints mechanisms with a view to ensuring prompt, thorough and impartial investigations into allegations of attacks against persons on the basis of their sexual orientation or gender identity in line with the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity.” CAT/C/MNG/CO/1, para. 25.

CAT: recommending that Kuwait “investigate crimes related to discrimination directed towards all vulnerable groups and pursue ways in which hate crimes can be prevented and punished. The Committee is concerned at reports that vulnerable groups such as lesbian, gay, bisexual and transgender (LGBT) persons are subjected to discrimination and ill-treatment, including sexual violence, both in public and domestic settings. (arts. 2 and 16).” CAT/C/KWT/CO/2, para. 25.

Human Rights Standards Case Law
ECHR 3 No one shall be subjected to torture or to inhuman or degrading treatment or punishment. ECtHR: finding discharge from the armed services on account of applicant’s sexuality “undoubtedly distressing and humiliating [,]” but not a violation of Art. 3. Smith and Grady v. The United Kingdom, 33985/96 (Sep. 27,1999), emphasis added.

Other Interpretations

SR Torture: Has expressed concern at torture and cruel, inhuman or degrading treatment directed at persons because of their sexual orientation or gender identity or expression, noting that torture and cruel, inhuman or degrading treatment protections apply in criminal detention as well as to health and immigration facilities.

WG on Arbitrary Detention: “…. Forced anal examinations contravene the prohibition of torture and other cruel, inhuman and degrading treatment, whether if, like in the present cases, they are employed with a purpose to punish, to coerce a confession, or to further discrimination.”  WG on Arbitrary Detention, A/HRC/16/47/Add.1, Opinion No. 25/2009 on Egypt at paras. 23, 28-29.

Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. http://www.ohchr.org/Documents/Publications/training8Rev1en.pdf.

Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 37/194, UN Doc. No. A/RES/37/194 (Dec. 18, 1982). http://www2.ohchr.org/english/law/medicalethics.htm.

Code of Conduct for Law Enforcement Officials, G.A. Res. 34/169, UN Doc. A/RES/34/169 (Dec. 17, 1979). http://www2.ohchr.org/english/ codeofconduct.pdf law/pdf/.

Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Declaration Against Torture”), adopted by consensus by the UN Assembly (UN G.A. Res. 3452 [XXX] (Dec. 9, 1975)).

Vienna Declaration and Programme of Action, Para. 56: “[U]nder human rights law and international humanitarian law, freedom from torture is a right which must be protected under all circumstances, including in times of internal or international disturbance or armed conflicts.”

European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, opened for signature Nov. 26, 1987, E.T.S. No. 126 (entered into force Jan. 2, 1989). Available at http://www.cpt.coe.int/en/documents/ecpt.htm

Inter-American Convention to Prevent and Punish Torture (1985)

Inter-American Commission on Human Rights, press release (August 15, 2013). http://oas.org/en/iachr/media_center/PReleases/2013/060.asp.

The Inter-American Commission recalls that it is the States’ obligation to investigate killings and other acts of violence against LGTBI persons and sanction those responsible. The IACHR urges the States to open lines of investigation that take into account whether these murders and acts of violence were committed because of the gender identity, gender expression and/or sexual orientation of the victims. In general terms, the Commission notes that there are problems in the investigation of these crimes. In this regard, the Inter-American Commission reiterates that the ineffectiveness of the state’s response fosters high rates of impunity, which in turn lead to the chronic repetition of such crimes, leaving the victims and their families defenseless.