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Addressing sexual orientation and sex and/or gender identity discrimination: Consultation Report (2011)

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Section 4 - Human rights and discrimination on the basis of sexual orientation or gender identity

• 4.1 International Covenant on Civil and Political Rights
• 4.2 Other international human rights agreements
• 4.3 UN statements on sexual orientation and gender identity
• 4.4 The Yogyakarta Principles

There is no separate international human rights agreement that deals specifically with sexual orientation or gender identity. However, all people have the same human rights regardless of their sexual orientation or gender identity.

Some participants in the consultation argued that one of the benefits of federal laws prohibiting discrimination on the basis of sexual orientation or gender identity would be the fulfilment of Australia’s international legal obligations.^[9] For example, the Victorian Bar and the Victorian Equal Opportunity and Human Rights Commission both referred to articles 2 and 26 of the International Covenant on Civil and Political Rights,^[10] (ICCPR) which require Australia to ensure that all persons are treated equally and not subjected to discrimination on the basis of status.^[11]

Below is an outline of how international human rights agreements have been interpreted to apply to people of all sexual orientations and sex and/or gender identities.

4.1 International Covenant on Civil and Political Rights

The ICCPR enshrines the rights of all people to non-discrimination and equality before the law. Australia has committed to uphold these standards.

Article 2(1) of the ICCPR sets out the principle of non-discrimination:

Each State Party to the present Covenant undertakes to respect and to ensure all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 26 of the ICCPR sets out the principle of equality:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Other relevant rights set out in the ICCPR include the right to privacy (article 17) and the right to marry and found a family (article 23).

The ICCPR does not specifically refer to sexual orientation. However, the United Nations Human Rights Committee has found that the treaty includes to an obligation to prevent discrimination on the basis of sexual orientation.

In Toonen v Australia, the Human Rights Committee held that the reference to ‘sex’ (ICCPR article 2) and the right to privacy (ICCPR article 17) include sexual orientation.^[12] The Committee has also held (in Young v Australia) that distinctions made between same sex couples and opposite sex couples in relation to veterans entitlements were discriminatory, in breach of article 26 of the ICCPR.^[13]

As noted by the Law Council of Australia, it is likely that the principles of the ICCPR would extend to gender identity under its ‘other status’ grounds.^[14] The Human Rights Committee has, for instance, placed emphasis on the need to protect trans communities from violence, torture and harassment^[15] and to recognise the right of trans people to change their gender by permitting the issuing of new birth certificates.^[16]

4.2 Other international human rights agreements

United Nations Committees have recognised the right to non-discrimination on the basis of sexual orientation under the following international human rights agreements:

• International Covenant on Economic, Social and Cultural Rights^[17]
• Convention on the Rights of the Child^[18]
• Convention on the Elimination of All Forms of Discrimination against Women.^[19]

As noted by the Law Council of Australia, the Committee on Economic, Social and Cultural Rights has specifically stated that gender identity is recognised as a prohibited ground of discrimination.^[20]

The Committee on the Rights of the Child has commented on the rights of young people who are ‘transsexual’ and recommended that the United Kingdom government provide adequate information and support to homosexual and transsexual young people.^[21]

The Committee is concerned that homosexual and transsexual young people do not have access to the appropriate information, support, and necessary protection to enable them to live their sexual orientation.^[22]

The Committee on the Elimination of Discrimination against Women has recognised that discrimination experienced by women is connected to discrimination on the basis of sexual orientation and gender identity.

The discrimination of women based on sex and gender is inextricably linked with other factors that affect women, such as race, ethnicity, religion or belief, health status, age, class, caste, and sexual orientation and gender identity.^[23]

Australia has also agreed to be bound by the International Labour Organization Convention No. 111 (ILO 111). This international agreement prohibits discrimination in employment on the grounds of race, colour, sex, religion, political opinion, national extraction and social origin. Parties to this convention can include additional grounds for domestic purposes, and in 1989 Australia added several grounds including ‘sexual preference’.^[24]

4.3 UN statements on sexual orientation and gender identity

Support for the view that international human rights standards apply to people of all sexual orientations and gender identities is found in several United Nations statements.

On 22 March 2011, the UN Human Rights Council issued a Joint Statement on Sexual Orientation and Gender Identity that was supported by 85 countries.^[25] This builds on earlier statements in 2006 (supported by 54 countries) and in 2007 (supported by 66 countries).^[26] These statements demonstrate the growing international support for and recognition of the rights of all people regardless of their sexual orientation or gender identity.

4.4 The Yogyakarta Principles

An interpretation of international human rights agreements and how they apply to people of all sexual orientations and gender identities is found in the Yogyakarta Principles, developed in March 2007 by a group of human rights experts.^[27]

The Yogyakarta Principles are not legally binding themselves, but are persuasive in shaping our understanding of how human rights obligations apply and relate to people of all sexual orientations and gender identities.

The Yogyakarta Principles reaffirm the rights of all people to equality before the law and the equal protection of the law without discrimination.^[28] They also set out the actions that countries should take to implement these rights, including:

• embodying the principles of equality and non-discrimination on the basis of sexual orientation and gender identity into national constitutions or other appropriate legislation
• adopting appropriate legislative and other measures to prohibit and eliminate discrimination in the public and private spheres on the basis of sexual orientation and gender identity.^[29]

The Preamble recognises the historical human rights violations faced by people who are lesbian, gay, bisexual, trans or intersex. However, the Principles themselves do not use these terms. Instead, the Yogyakarta Principles are phrased in neutral language that aims to recognise the rights of all peoples.^[30]

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^[9] See, for example, Melbourne consultation on sexual orientation, 9 November 2010; Victorian Bar, Comment 148; Victorian Equal Opportunity and Human Rights Commission, Comment 121.
^[10] International Covenant on Civil and Political Rights (ICCPR), opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
^[11] Victorian Bar, Comment 148; Victorian Equal Opportunity and Human Rights Commission, Comment 121. See also ICCPR, arts 2 and 26.
^[12] Human Rights Committee, Toonen v Australia, Communication No. 488/1992, UN Doc CCPR/C/50/D/488/92 (1992).
^[13] Human Rights Committee, Young v Australia, Communication No. 941/2000, UN Doc CCPR/C/78/D/941/2000 (2003). Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2005), p 623. 
^[14] Law Council of Australia, Comment 132. See also Michael O’Flaherty and John Fisher, ‘Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles’ (2008) 8(2) Human Rights Law Review 207. 
^[15] See, for example, Human Rights Committee, Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant: Concluding Observations of the Human Rights Committee, Russian Federation, 24 November 2009, UN Doc CCPR/C/RUS/CO/6; Human Rights Committee, Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant: Concluding Observations of the Human Rights Committee, Colombia, 4 August 2010, UN Doc CCPR/C/CO/6.
^[16] See, for example, Human Rights Committee, Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant: Concluding Observations of the Human Rights Committee, Ireland, 30 July 2008, UN Doc CCPR/C/IRL/CO/3.
^[17] See, for example, Committee on Economic, Social and Cultural Rights, General Comment No. 20 – Non-Discrimination in Economic, Social and Cultural Rights, UN Doc E/C.12/GC/20 (2009).
^[18] See, for example, Committee on the Rights of the Child, General Comment No. 4: Adolescent health and development in the context of the Convention on the Rights of the Child, 1 July 2003, UN Doc CRC/GC.2003/4.
^[19] See, for example, Committee on the Elimination of Discrimination Against Women, Concluding Observations of the Committee on the Elimination of Discrimination Against Women regarding Kyrgyzstan, 5 February 1999, UN Doc A/54/38.
^[20] Law Council of Australia, Comment 132.
^[21] See, for example, Committee on Economic, Social and Cultural Rights, General Comment No. 20 – Non-Discrimination in Economic, Social and Cultural Rights, UN Doc E/C.12/GC/20 (2009); Committee on the Rights of the Child, Concluding Observations of the Committee on the Rights of the Child regarding the United Kingdom, 9 October 2002, UN Doc CRC/C/15/Add.188.
^[22] Committee on the Rights of the Child, Concluding Observations of the Committee on the Rights of the Child regarding the United Kingdom, 9 October 2002, UN Doc CRC/C/15/Add.188, p 11.
^[23] Committee on the Elimination of Discrimination Against Women, General Recommendation No. 28 on the Core Obligations of State Parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, 19 October 2010, UN Doc CEDAW/C/2010/47/GC.2.
^[24] Australian Human Rights Commission Act 1986 (Cth), Schedule 1. 
^[25] International Service for Human Rights, Ground-breaking statement on sexual orientation and gender identity by record number of 85 States, 24 March 2011. At: http://www.ishr.ch/council/1033-ground-breaking-statement-on-sexual-orientation-and-gender-identity-by-record-number-of-85-states?utm_source=ISHR+Publications+and+News&utm_campaign=279226daf8-RSS_Email_Campaign_Council&utm_medium=email (viewed 25 March 2011).
^[26] See statements at International Lesbian, Gay, Bisexual Trans and Intersex Association, UN Gen. Assembly Statement Affirms Rights for all, 19 December 2008 (at: http://ilga.org/ilga/en/article/1211, viewed 6 April 2011) and United Nations Department of Public Information, ‘General Assembly Adopts 52 Resolutions, 6 Decisions Recommended by Third Committee on Wide Range of Human Rights, Social and Humanitarian Issues’ (Media Release, 18 December 2008) (at: http://www.un.org/News/Press/docs/2008/ga10801.doc.htm, viewed 25 March 2011).
^[27] The Yogyakarta Principles: Principles on the application of international human rights law in relation to sexual orientation and gender identity (2007). At: http://www.yogyakartaprinciples.org/ (viewed 21 September 2010). 
^[28] Above, Principle 2. 
^[29] Above.
^[30] Sheila Quinn, ARC International and International Commission of Jurists, An Activists Guide to the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (2010). At: http://www.ypinaction.org/content/activists_guide (viewed 25 March 2011).