Table 5: LGBTI Health and the Right to the Highest Attainable Standard of Health

Examples of Human Rights Violations

  • A national health system fails to provide anti-retroviral treatment to LGBTI people while making it accessible to others.
  • Perceived LGBTI persons are treated with stigma and judgmental attitudes in the health system and therefore are not providing equal levels of health.
  • Because of stigma in the health system LGBTI individuals do not feel comfortable accessing health care facilities.
  • Men who have sex with men (MSM) and other marginalized populations are regularly left out of national health and budget plans, thereby ensuring that services are not funded and available. Because of stigma in the health system, LGBTI individuals do not feel comfortable.

Yogyakarta Principle

Principle 17: 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.

States shall:

• Take all legislative, administrative and other measures to ensure enjoyment of the right and to ensure all persons have access to healthcare facilities, goods and services, and to their own medical records;

• Ensure healthcare facilities, goods and services are designed to improve the health status of, and respond to the needs of all persons without discrimination on the basis of, and taking into account, sexual orientation and gender identify;

• Develop and implement programmes to address discrimination, prejudicial and social factors which undermine the health of persons because of their sexual orientation and gender identity;

• Ensure all persons are informed and empowered to make their own decisions regarding medical treatment and care, on the basis of genuinely informed consent;

• Ensure that all sexual and reproductive health, education, prevention, care and treatment programmes and services respect the diversity of sexual orientations and gender identities, and are equally available to all without discrimination;

• Facilitate access by those seeking body modifications related to gender reassignment to competent, non-discriminatory treatment, care and support;

• Ensure that all health service providers treat clients and their partners without discrimination on the basis of sexual orientation or gender identity, including with regard to recognition as next of kin; and

• Adopt policies, and programmes of education and training, necessary to enable persons working in the healthcare sector to deliver the highest attainable standard of healthcare to all persons, with full respect for each person’s sexual orientation and gender identity.

Human Rights Standards Treaty Body Interpretation
ICESCR 12(1) The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

ICESCR 12(2) The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: . . . (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases.

CESCR General Comment 14: The right to health is not to be understood as a right to be healthy. The right to health contains both freedoms and entitlements. The freedoms include the right to control one’s health and body, including sexual and reproductive freedom, and the right to be free from interference, such as the right to be free form torture, non-consensual medical treatment and experimentation. By contrast, the entitlements include the right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable standard of health. E/C.12/2000/4 (2000) at para. 8.

CESCR General Comment 14: It is prohibited to discriminate against access to health care and the underlying determinants of health, as well as to means and entitlements for their procurement, on the grounds of sexual orientation.  E/C.12/2000/4 (2000) at para. 18.

CESCR: States have an immediate obligation to ensure the right of access to health facilities, goods and services on a non-discriminatory basis, especially for vulnerable or marginalised groups. E/C.12/2000/4 (2000) at para. 43(a).

Other Interpretations

SR Health: “Criminal laws concerning consensual same-sex conduct, sexual orientation and gender identity often infringe on various human rights, including the right to health. These laws are generally inherently discriminatory and, as such, breach the requirements of a right-to-health approach, which requires equality in access for all people. The health related impact of discrimination based on sexual conduct and orientation is far-reaching, and prevents affected individuals from gaining access to other economic, social and cultural rights. In turn, the infringement of other human rights impacts on the realization of the right to health, such as by impeding access to employment or housing.” Report of the SR on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, A/HRC/14/20 (2010) at para. 6.

The Declaration on the Promotion of Patients’ Rights in Europe: Patients have the right to a quality of care which is marked both by high technical standards and by a humane relationship between the patient and health care provider.

WHO 1978 Declaration of Alma-Ata: The Conference strongly reaffirms that health, which is a state of complete physical, mental and social wellbeing, and not merely the absence of disease or infirmity, is a fundamental human right and that the attainment of the highest possible level of health is a most important world-wide social goal, which requires the action of many other social and economic sectors in addition to the health sector to be fully realized.

World Health Organization Constitution, Preamble: The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.

Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (1988) (“Protocol of San Salvador”), Art. 10(1): Everyone shall have the right to health, understood to mean the enjoyment of the highest level of physical, mental and social well-being.

European Convention on Social and Medical Assistance (1953), Art. 1: Each of the Contracted Parties undertake to ensure that nationals of the other Contracting Parties who are lawfully present in any part of its territory to which the Convention applies, and who are without sufficient resources, shall be entitled equally with its own nationals and on the same conditions to social and medical assistance . . . provided by the legislation in force from time to time in that part of its territory.

Charter of Fundamental Rights of the European Union, Art. 35: Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities.