Table 12: LGBTI Health and the Right to Work

Examples of Human Rights Violations 

  • LGBTI individuals are not able to challenge employment decisions based on their sexual orientation and gender identity.
  • An LGBTI individual is dismissed, harassed or denied promotion as a result of their sexual orientation or gender identity.
  • The right to work with equal opportunities is denied to LGBTI persons because of their sexual orientation or gender identity.

Yogyakarta Principle

Principle 12: Everyone has the right to decent and productive work, to just and favourable conditions of work and to protection against unemployment, without discrimination on the basis of sexual orientation or gender identity.

States shall:

• Take all necessary legislative, administrative and other measures to eliminate and prohibit discrimination on the basis of sexual orientation and gender identity in public and private employment, including in relation to vocational training, recruitment, promotion, dismissal, conditions of employment and remuneration;

• Eliminate any discrimination on the basis of sexual orientation or gender identity to ensure equal employment and advancement opportunities in all areas of public service, including all levels of government service and employment in public functions, including serving in the police and military, and provide appropriate training and awareness-raising programmes to counter discriminatory attitudes.

Human Rights Standards Treaty Body Interpretation
ICESCR 6 State Parties are to recognize the right to work, which includes the right of everyone to the opportunity to gain a living by work that he freely chooses or accepts. CESCR General Comment No.18: “The exercise of work in all its forms and at all levels requires direct consideration by each State party to the following: (1) Accessibility – The labour market must be open to everyone under its’ States’ jurisdiction.  Under article 2(2) and article 3, the Covenant prohibits any discrimination in access to and maintenance of employment on sexual orientation status, which has the intention or effect of impairing or nullifying exercise of the right to work on basis of equality.” E/C.12/GC/18 (2006).
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.

(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: Two of the applicants were employees of the Royal Navy and both were dismissed after their sexual orientation was made known to their employers. The applicants were dismissed pursuant to the Ministry of Defence’s policy against homosexuals serving in the armed forces. The Court stated their dismissals constituted direct interferences with the applicants’ right to respect for their private life. The status of the applicants’ sexual orientation should not interfere with their right to work and be equal to others in employment. The Court concluded there was a violation of the ECHR article 8 in regard to each applicant.  Perkins and R. v. The United Kingdom, 43208/98 and 44875/98 (October 22, 2002).

Other Interpretations

European Council, Council Directive establishing a General Framework for Equal Treatment in Employment and Occupation [Equality Employment Framework Directive], 2000/78/EC (November 27, 2000).
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0078:en:HTML.

(11) Discrimination based on religion or belief, disability, age or sexual orientation may undermine the achievement of the objectives of the EC Treaty, in particular the attainment of a high level of employment and social protection, raising the standard of living and the quality of life, economic and social cohesion and solidarity, and the free movement of persons.

(12) To this end, any direct or indirect discrimination based on religion or belief, disability, age or sexual orientation as regards the areas covered by this Directive should be prohibited throughout the Community. …

(26) The prohibition of discrimination should be without prejudice to the maintenance or adoption of measures intended to prevent or compensate for disadvantages suffered by a group of persons of a particular religion or belief, disability, age or sexual orientation, and such measures may permit organisations of persons of a particular religion or belief, disability, age or sexual orientation where their main object is the promotion of the special needs of those persons.