Table 7: LGBTI Health and Freedom from Arbitrary Arrest and Detention
Examples of Human Rights Violations
- A gay man is arrested without charge by undercover police officers.
- A lesbian adolescent is detained without charge after her parents discover her sexual orientation and call the police.
- A transgender is detained at a border for “suspicious behavior.”
- A transgender person suffers from illegal profiling.
Principle 7: No one shall be subjected to arbitrary arrest or detention. Arrest or detention on the basis of sexual orientation or gender identity, whether pursuant to a court order or otherwise, is arbitrary. All persons under arrest, regardless of their sexual orientation or gender identity, are entitled, on the basis of equality, to be informed of the reasons for arrest and the nature of any charges against them, to be brought promptly before a judicial officer and to bring court proceedings to determine the lawfulness of detention, whether or not charged with any offence.
• Take all necessary legislative, administrative and other measures to ensure that sexual orientation or gender identity may under no circumstances be the basis for arrest or detention, including the elimination of vaguely worded criminal law provisions that invite discriminatory application or otherwise provide scope for arrests based on prejudice;
• Take all necessary legislative, administrative and other measures to ensure that all persons under arrest, regardless of their sexual orientation or gender identity, are entitled, on the basis of equality, to be informed of the reasons for arrest and the nature of any charges against them, and whether charged or not, to be brought promptly before a judicial officer and to bring court proceedings to determine the lawfulness of detention;
• Undertake programmes of training and awareness-raising to educate police and other law enforcement personnel regarding the arbitrariness of arrest and detention based on a person’s sexual orientation or gender identity; and
• Maintain accurate and up to date records of all arrests and detentions, indicating the date, location and reason for detention, and ensure independent oversight of all places of detention by bodies that are adequately mandated and equipped to identify arrests and detentions that may be motivated by the sexual orientation or gender identity of a person.
WG Arbitrary Detention: The arrest and detention of men on the grounds that, by their sexual orientation, they incited ‘social dissention’ constitutes an arbitrary deprivation of liberty. The detention of people on the basis of their sexual orientation, even when the laws under which they are detained to not refer to homosexual conduct, violates human rights. E/CN.4/2003/8/Add.1, Opinion No. 7/2002 on Egypt, pg. 68.
Code of Conduct for Law Enforcement Officials (1979)
Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990)
Arab Charter on Human Rights, art. 14(1). Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest, search or detention without a legal warrant.