Table 10: LGBTI Health and the Right to Marry and Found a Family
Examples of Human Rights Violations
- A government refuses to accord to unmarried same-sex couples the same rights and responsibilities it accords to unmarried different-sex couples.
- A lesbian woman is denied the right to artificial insemination services.
- A single gay man is denied the right to adopt a child.
Applicable Yogyakarta Principle
Principle 24: Everyone has the right to found a family, regardless of sexual orientation or gender identity. Families exist in diverse forms. No family may be subjected to discrimination on the basis of the sexual orientation or gender identity of any of its members.
• Take all necessary legislative, administrative and other measures to ensure the right to found a family, including through access to adoption or assisted procreation (including donor insemination), without discrimination on the basis of sexual orientation or gender identity;
• Ensure that laws and policies recognise the diversity of family forms, including those not defined by descent or marriage, and take all necessary legislative, administrative and other measures to ensure that no family may be subjected to discrimination on the basis of the sexual orientation or gender identity of any of its members, including with regard to family-related social welfare and other public benefits, employment, and immigration;
• Take all necessary legislative, administrative and other measures to ensure that in all actions or decisions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration, and that the sexual orientation or gender identity of the child or of any family member or other person may not be considered incompatible with such best interests;
• In all actions or decisions concerning children, ensure that a child who is capable of forming personal views can exercise the right to express those views freely, and that such views are given due weight in accordance with the age and maturity of the child;
• Take all necessary legislative, administrative and other measures to ensure that in States that recognise same-sex marriages or registered partnerships, any entitlement, privilege, obligation or benefit available to different-sex married or registered partners is equally available to same-sex married or registered partners;
• Take all necessary legislative, administrative and other measures to ensure that any obligation, entitlement, privilege, obligation or benefit available to different-sex unmarried partners is equally available to same-sex unmarried partners;
• Ensure that marriages and other legally-recognised partnerships may be entered into only with the free and full consent of the intending spouses or partners.
|Human Rights Standards||Case Law|
|ECHR 8 Everyone has the right to respect for his private and family life, his home and his correspondence.
ECHR 14 The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
|ECtHR: held Portugal’s denial of custody rights to a biological father in a same-sex relationship violated the right to private life (Art. 8) in conjunction with the right to non-discrimination (Art. 14). Salgueiro Da Silva Mouta v. Portugal, 33290/96 (Dec. 21, 1999).ECtHR: held that the State cannot justify discrimination of unmarried same-sex couples by “protection of traditional family”, thus saying that the State should give same rights to same-sex and different-sex unmarried couples. The Court held that there was a violation of Article 14 (right to non-discrimination) in conjunction with Article 8 (right to privacy). Karner v. Austria, 40016/98 (July 24, 2003).
ECtHR: found that the State’s refusal to grant the applicant authorization to adopt was based upon considerations of the applicant’s sexual orientation. The court held that this violated Article 14 in conjunction with Article 8. Case of E.B. v. France, 43546/02 (Jan. 22, 2008).
ECtHR: the effect of an adoption by the applicant’s mother’s co-habitant partner severed the mother-daughter relationship of the applicant because the mother and her male partner were not married. The Court held that the effect of the adoption violated the applicant’s right to respect for their family life under Article 8. Case of Emonet and Others v. Switzerland, 39051/03 (Dec. 13, 2007).
|ECHR 12 Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.||ECtHR: The applicant is a male-to-female transsexual and wished to marry a man. The Court considered under Art 12, whether the registering of gender at birth is a limitation impairing the right to marriage. The Court found no justification for barring transsexuals from enjoying the right to marriage and that there was a violation of Art. 12. Case of Christine Goodwin v. The United Kingdom, 28957/95 (July 11, 2002).|
|ACHR 5(1) Every person has the right to have his physical, mental, and moral integrity respected.
ACHR 11(1) Everyone has the right to have his honor respected and his dignity recognized.
|IACHR: Concerning a lesbian mother denied custody of her daughters because of her sexual orientation. Caso Atala Riffo y Nias vs.
Chile, Judgment of February 24, 2012. http://corteidh.or.cr/docs/casos/articulos/seriec_239_ing.pdf.
SR Human Rights Defenders, SR Racism, SR Violence against Women, and SR Health: Collectively criticized a Bill in Nigeria that would criminalize persons seeking same sex relationships and marriage, as well as organizations working on or speaking about such issues (2007). HR/07/25 (Feb. 23, 2007). http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=5599&LangID=E