Section 4 - Human rights and discrimination on the basis of sexual orientation or gender identity - Addressing sexual orientation and sex and/or gender identity discrimination: Consultation Report (2011)
Addressing sexual orientation
and sex and/or
gender identity
discrimination
Consultation Report
2011
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]
[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).
