Table 6: LGBTI Health and the Right to Privacy
Examples of Human Rights Violations
- A penal code that punishes non-reproductive sex, such as any form of anal or oral sex, or same-sex sexual behaviour.
- Police officials keep lists of “suspected homosexuals” with photographs and fingerprints.
- A newspaper publishes an article condemning the sexual orientation of a teacher or journalist.
- Police or public health officials release the photos of suspected gay men to the media.
Principle 6: Everyone, regardless of sexual orientation or gender identity, is entitled to the enjoyment of privacy without arbitrary or unlawful interference, including with regard to their family, home or correspondence as well as to protection from unlawful attacks on their honour and reputation. The right to privacy ordinarily includes the choice to disclose or not to disclose information relating to one’s sexual orientation or gender identity, as well as decisions and choices regarding both one’s own body and consensual sexual and other relations with others.
• Take all necessary legislative, administrative, and other measures to ensure the right of each person, regardless of sexual orientation or gender identity, to enjoy the private sphere, intimate decisions, and human relations including consensual sexual activity among persons who are over the age of consent, without arbitrary interference;
• Repeal all laws that criminalise consensual sexual activity among person of the same sex who are over the age of consent, and ensure that an equal age of consent applies to both same-same-sex and different-sex sexual activity;
• Ensure the criminal and other legal provisions of general application are not applied to de facto criminalised consensual sexual activity among persons of the same sex who are over the age of consent;
• Repeal any law that prohibits or criminalises the expression of gender identity, including through dress, speech or mannerisms, or that denies to individuals the opportunity to change their bodies as a means of expressing their gender identity;
• Release all those held on remand or on the basis of criminal conviction, if their detention is related to consensual sexual activity among persons who are over the age of consent, or is related to gender identity; and
• Ensure the right of all persons ordinarily to choose when, to whom and how to disclose information pertaining to their sexual orientation or gender identity, and protect all persons from arbitrary or unwanted disclosure, or threat of disclosure of such information by others.
|Human Rights Standards||Treaty Body Interpretation|
|ICCPR 17(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
ICCPR 17(2) Everyone has the right to the protection of the law against such interference or attacks.
|HRC [Jurisprudence]: The penalization of same-sex behaviour is a violation of privacy and non-discrimination under ICCPR articles 2 and 17. Toonen v. Australia, HRC Communication No. 488/1992 (CCPR/C/50/D/488/1992).
HRC: recommending to Togo that it “should decriminalize sexual relations between consenting adults of the same sex” because such “criminalization violates the rights to privacy and to protection against discrimination set out in the Covenant.” CCPR/C/TGO/CO/4 (2011) para 14.
HRC: recommending that “the State party should decriminalize sexual relations between consenting adults of the same sex, and repeal the offense of imitating the opposite sex, in order to bring its legislation in line with the covenant.” Kuwait CCPR/C/KWT/CO/2 (HRC, 2011);
HRC: Explaining to Togo that “As pointed out by the Committee and other international human rights bodies, such criminalization violates the rights to privacy and to protection against discrimination set out in the Covenant.” CCPR/C/TGO/CO/4 (2011) para 14.
|CRC 16 (1) No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence, nor to unlawful attacks on his or her honour and reputation.||CRC General Comment 4: “In order to promote the health and development of adolescents, States parties are encouraged to strictly respect adolescent rights to privacy and confidentiality, including with respect to advice and counselling on health matters (article 16). Health-care providers have an obligation to keep confidential medical information concerning adolescents, bearing in mind the basic principles of the CRC. Such information may only be disclosed with the consent of the adolescent, or in the same situations applying to the violation of an adult’s confidentiality. Adolescents deemed mature enough to receive counselling without the presence of a parent or other person are entitled to privacy and may request confidential services, including treatment.” CRC/GC/2003/4 (2003) at para. 11.
CRC General Comment 4: “The realization of the right to health of adolescents is dependent on the development of youth-sensitive health care, which respects confidentiality and privacy and includes appropriate sexual and reproductive health services.” CRC/GC/2003/4 (2003) at para. 40.
|Human Rights Standards||Case Law|
|ECHR 8(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
ECHR 8(2). There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
|ECtHR: the Court held that the law in Northern Ireland creating criminal liability for homosexual conduct amounts to an unjustified interference with Dudgeon’s right to respect for his private life. Case of Dudgeon v. The United Kingdom, 7525/76 (Oct. 22, 1981).
ECtHR: the Court affirmed that the penalization of same sex behaviour violates the right to privacy (Dudgeon v. UK and later cases), and protected the right to transition from one gender to another, although not to remain between genders. Case of Christine Goodwin v. The United Kingdom, 28957/95 (July 11, 2002).
ECtHR: the defendants were prosecuted and convicted for assault and wounding in the course of consensual sado-masochistic activities between breaches. The applicants argued that this violated their right to privacy under Article 8. The Court held that “the national authorities were entitled to consider that the prosecution and conviction of the applicants were necessary in a democratic society for the protection of health within the meaning of Article 8 para. 2.” Laskey, Jaggard and Brown v. The United Kingdom, 21627/93 (Feb. 19, 1997).
ECtHR: the applicant was born and registered with the civil status register as a male. The applicant now lives as a female and was denied her application to correct the indication of her sex in the civil status register and on her official identity documents. The Court held that the State violated Article 8, because it did not strike a fair balance between the general interest and the interests of the individual. Case of B v. France, 13343/87 (Mar. 25, 1992).
ECtHR: the Court held that the State violated Article 8 because of its investigation into the applicants’ homosexuality and their subsequent discharge from the Royal Air Force. Case of Smith and Grady v. The United Kingdom, 33985/96 (Sep. 27, 1999).
Declaration on the Promotion of Patients’ Rights in Europe Art. 4.1: All information about a patient’s health status … must be kept confidential, even after death. Art. 4.8: Patients admitted to health care establishments have the right to expect physical facilities which ensure privacy.
European Convention on Human Rights and Biomedicine Art 10(1):”Everyone has the right to respect for private life in relation to information about his or her health.”
Explanatory Report, para. 63: “The first paragraph establishes the right to privacy of information in the health field, thereby reaffirming the principle introduced in Article 8 of the European Convention on Human Rights and reiterated in the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data. It should be pointed out that, under Article 6 of the latter Convention, personal data concerning health constitute a special category of data and are as such subject to special rules.”
Explanatory Report, para. 64: “However, certain restrictions to the respect of privacy are possible for one of the reasons and under the conditions provided for in under Article 26.1. For example, a judicial authority may order that a test be carried out in order to identify the author of a crime (exception based on the prevention of a crime) or to determine the filiation link (exception based on the protection of the rights of others).”