Table 4: LGBTI Health and the Right to Non-discrimination

Table 4: LGBTI Health and the Right to Non-discrimination

Examples of Human Rights Violations 

  • A person is denied a job, housing, health care, education, or access to goods and services because of sexual orientation, gender identity or gender expression.
  • A TV program is prohibited by authorities because it features a same-sex kiss while allowing different-sex kisses to be aired regularly.
  • An organization for boys (e.g, Boy Scouts) denies membership to LGBTI people.

Yogyakarta Principle

Principle 2: Everyone is entitled to enjoy all human rights without discrimination on the basis of sexual orientation or gender identity. Everyone is entitled to equality before the law and the equal protection of the law without any such discrimination whether or not the enjoyment of another human right is also affected. The law shall prohibit any such discrimination and guarantee to all persons equal and effective protection against any such discrimination.

Discrimination on the basis of sexual orientation or gender identity includes any distinction, exclusion, restriction or preference based on sexual orientation or gender identity which has the purpose or effect of nullifying or impairing equality before the law or the equal protection of the law, or the recognition, enjoyment or exercise, on an equal basis, of all human rights and fundamental freedoms. Discrimination based on sexual orientation or gender identity may be, and commonly is, compounded by discrimination on other grounds including gender, race, age, religion, disability, health and economic status.

States shall:

• Embody the principles of equality and non-discrimination on the basis of sexual orientation and gender identity in national constitutions or other appropriate legislation;

• Repeal legal provisions that have the effect of prohibiting consensual sexual activity between people of the same sex who are over the age of consent, and to ensure that an equal age of consent applies to all, regardless of their sexual orientation or gender identity;

• Adopt legislation and other measures to prohibit and eliminate discrimination on the basis of sexual orientation and gender identity;

• Take appropriate measures to secure adequate advancement of persons of diverse sexual orientation and gender identities as may be necessary to ensure such groups have equal enjoyment of human rights;

• When responding to discrimination based on sexual orientation and gender identity, take into account the manner in which such discrimination intersects with other forms of discrimination; and

• Take all appropriate action to achieve elimination of prejudicial or discriminatory attitudes or behaviours related to the idea of inferiority or superiority of any sexual orientation or gender identity.

Human Rights Standards Treaty Body Interpretation
ICCPR 2(1) Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. HRC: expressing concern to Chile “about the discrimination to which some people are subject because of their sexual orientation, for instance, before the courts and in access to health care” and recommending that it “guarantee equal rights to all individuals, as established in the Covenant, regardless of their sexual orientation, including equality before the law and in access to health care. CCPR/C/CHL/CO/5 (2007) at para. 16.

HRC: expressing concern to Ireland that it “has not recognized a change of gender by transgender persons by permitting birth certificates to be issued for these persons” and recommending that Ireland “should recognize the right of transgender persons to a change of gender by permitting the issuance of new birth certificates.”  Birth certificates provide legal recognition to changes of an individual’s gender identity. CCPR/C/IRL/CO/3 (2008) at para. 8.

HRC: recommending that Iran “should also take all necessary legislative, administrative and other measures to eliminate and prohibit discrimination on the basis of sexual orientation, including with respect to access to employment, housing, education and health care, and to ensure that individuals of different sexual orientation or gender identity are protected from violence and social exclusion within the community.”  CCPR/C/IRN/CO/3 (2011) at para. 10.

HRC [Jurisprudence]: Has recognized the right to non-discrimination on the basis of sexual orientation in relation to privacy (Toonen v. Australia, HRC Communication No. 488/1992 (CCPR/C/50/D/488/1992)), and access to benefits (Young v. Australia, HRC Communication No. 941/2000 (CCPR/C/78/0/941/2000), but not access to marriage (Joslin v. New Zealand, HRC Communication No. 902/1999 (CCPR/C/75/D/902/1999).

HRC: expressing concern to Poland that “discriminatory acts and attitudes against persons on the ground of sexual orientation are not adequately investigated and punished” and recommending that Poland “should provide appropriate training to law enforcement and judicial officials in order to sensitize them to the rights of sexual minorities.”  CCPR/CO/82/POL (2004) at para. 18.

HRC: recommended that the United States “acknowledge legal obligation under articles 2 and 26 to ensure to everyone rights recognized by ICCPR, as well as equality before law and equal protection of law, without discrimination on basis of sexual orientation [and] ensure that its hate crime legislation, both at federal and state levels, address sexual orientation-related violence and that federal and state employment legislation outlaw discrimination on basis of sexual orientation.” CCPR/C/USA/CO/3 (HRC, 2006)

HRC: recommended that Mongolia “should ensure that LGBT persons have access to justice, and that all allegations of attacks and threats against individuals targeted because of their sexual orientation or gender identity are thoroughly investigated.” CCPR/C/MNG/CO/5 (HRC, 2011)

ICESCR 2(2) The States Parties to the present Covenant undertake to guarantee the rights enunciated in the present Covenant shall be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, birth or other status. CESCR General Comment No. 20: The prohibited grounds of discrimination in ICESCR Article 2(2) includes ‘other status’.  In General Comment 20, CESCR establishes that ‘other status’ includes sexual orientation and gender identity.  Therefore, sexual orientation and gender identity are prohibited grounds of discrimination under ICESCR.  E/C.12/GC/20 (2009) at para 32.

CESCR: urging Germany to “step up measures, legislative or otherwise, on the identity and the health of transsexual and inter-sex persons with a view to ensuring that they are no longer discriminated against and that their personal integrity and sexual and reproductive health rights are respected. The Committee calls on the State party to fully consult transsexual and inter-sexed persons for this purpose.” E/C.12/DEU/CO/5 (2011) at para. 26.

CESCR: recommending to Poland that it should adopt legislative and other measures to eliminate and prohibit discrimination against LGBTI persons in the enjoyment of their economic, social and cultural rights.  E/C.12/POL/CO/5 (2009) at para. 12.

CRC 2(1) States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

CRC 2(2) States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.

CRC General Comment No. 13: explaining that “States parties must address discrimination against vulnerable or marginalized groups of children … and make proactive efforts to ensure that such children are assured their right to protection on an equal basis with all other children.”  Explaining that vulnerable children includes children “who are lesbian, gay, transgender or transsexual.”  CRC/C/GC/13 (2011) at paras. 60 and 72(g).

CRC General Comment No. 4: “States parties have the obligation to ensure that all human beings below 18 enjoy all the rights set forth in the Convention without discrimination (art. 2), including with regard to “race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status”. These grounds also cover adolescents’ sexual orientation and health status (including HIV/AIDS and mental health). Adolescents who are subject to discrimination are more vulnerable to abuse, other types of violence and exploitation, and their health and development are put at greater risk. They are therefore entitled to special attention and protection from all segments of society.” CRC/GC/2003/4 (2003) at para. 6.

CRC Committee: recommending that the United Kingdom of Great Britain and Northern Island should strengthen its “awareness-raising and other preventative activities against discrimination and, if necessary, taking affirmative actions” for LGBTI children.  CRC/C/GBR/CP/4 at paras. 24-25.

CRC Committee:  expressing concern to Chile “that homosexual relations, including those of persons under 18 years old, continue to be criminalized, indicating discrimination on the basis of sexual orientation.” CRC/C/CHL/CO/3

CAT 1(1) For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person…for any reason based on discrimination of any kind… CAT General Comment No. 2: States must ensure that their laws are in practice applied to all persons, regardless of their sexual orientation or transgender identity.  CAT/C/GC/2 (2007) at para. 21.
CEDAW 2 States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women… CEDAW General Recommendation No. 28: “The discrimination of women based on sex and gender is inextricably linked with other factors that affect women, such as…sexual orientation and gender identity…States parties must legally recognise such intersecting forms of discrimination and their compounded negative impact on the women concerned and prohibit them.”  CEDAW/C/GC/28 (2010), at para. 18.

CEDAW: recommending that Uganda “decriminalize homosexual behaviour and to provide effective protection from violence and discrimination against women based on their sexual orientation and gender identity, in particular through the enactment of comprehensive anti-discrimination legislation that would include the prohibition of multiple forms of discrimination against women on all grounds, including on the grounds of sexual orientation and gender identity.” CEDAW/C/UGA/CO/7

Other Interpretations

Inter-American Convention Against All Forms of Discrimination and Intolerance, AG/RES. 2804 (XLIII-O/13), (June 6, 2013).

Article 1(1) Discrimination shall mean any distinction, exclusion, restriction, or preference, in any area of public or private life, the purpose or effect of which is to nullify or curtail the equal recognition, enjoyment, or exercise of one or more human rights and fundamental freedoms enshrined in the international instruments applicable to the States Parties. Discrimination may be based on nationality; age; sex; sexual orientation; gender identity and expression; language; religion; cultural identity; political opinions or opinions of any kind; social origin; socioeconomic status; educational level; migrant, refugee, repatriate, stateless or internally displaced status; disability; genetic trait; mental or physical health condition, including infectious-contagious condition and debilitating psychological condition; or any other condition.

Charter of Fundamental Rights of the European Union (“European Charter”) 21(1): Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age, or sexual orientation shall be prohibited.

Lisbon Treaty:  In defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

Inter-American Commission on Human Rights, press release (August 15, 2013).

The Inter-American Commission urges States to take all necessary measures to apply due diligence in preventing, investigating and sanctioning violence against LGTBI persons, regardless of whether it occurs in the family, the community, or the public sphere, including education and health facilities. This includes the adoption of policies and public campaigns to promote awareness and respect for the human rights of LGTBI persons, in all sectors, including the educational and family settings, as a means to combat the prejudices that underlie violence related to sexual orientation and gender identity and expression. Finally, the Commission urges States to take action to prevent and respond to these human rights violations and to ensure that LGTBI persons can effectively enjoy their right to a life free from discrimination and violence.