By
Tanusmita Debnath, II year of B.B.A.,LL.B. from IFIM Law School, Bengaluru, Karnataka
INTRODUCTION
Discrimination depending on sexual orientation and gender identity is a major human rights issue that is recognized worldwide nowadays. People are being discriminated against based on their sexual orientations in markets, workplaces, educational institutions and hospitals. These acts range from daily segregation and discrimination to the most atrocious acts, comprising torture and arbitrary killings. For instance, in 2001, 88 homosexual men, 41 transvestites, and 3 lesbians were reportedly murdered in Brazil.
WHAT IS SEXUAL ORIENTATION DISCRIMINATION?
Sexual orientation implies a lasting relationship of emotional, romantic, or sexual attractions to men, women, or both sexes. There are four types of orientations: heterosexual, homosexual, bisexual and asexual orientations. Sexual orientation constitutes a basis of discrimination at workplaces, educational institutions, medical care, and other social places in various regions of the world.[1]Sexual orientation discrimination refers to a nature of discrimination where an individual faces derogatory treatment, negative employment action, harassment, or a denial of benefits based on his or her sexuality.
TYPES OF DISCRIMINATION BASED ON SEXUAL ORIENTATION:
DIRECT DISCRIMINATION
When an individual is treated less favourably than others depending on their sexual orientation, it is referred to as direct discrimination. It also refers to the unfair treatment of an individual based on what one observes their sexual orientation to be.
INDIRECT DISCRIMINATION
[2]Indirect discrimination occurs when the provisions, criteria, practices or rules of any organization or institution applies equally to everyone, however, might put people of a specific sexual orientation at a disadvantage.
HARASSMENT
Harassment refers to unwanted conduct towards an individual based on his or her sexual orientation. It violates one's dignity or creates an abusive, degrading, humiliating, intimidating, offensive, and hostile environment for them.
VICTIMISATION
Victimisation occurs when one makes a claim or gives evidence in support of being illicitly discriminated or harassed based on sexual orientation and is, in turn, treated less favourably in retaliation for the complaint, or the evidence that was given.
INTERNATIONAL AND REGIONAL TREATIES
UNITED NATIONS
On June 30, 2016, the Protection against violence and discrimination based on sexual orientation, and gender identity resolution was adopted by the United Nations Human Rights Council, in a delineating vote. This resolution is built atop two previous resolutions adopted by the Council in 2011 and 2014. This text is jointly presented by the Core Group of seven Latin American countries and 41 othercountries. Mexico, Netherlands, France, UK, Belgium, Switzerl and Portugal, Cuba, Germany, Venezuela, Republic of Korea, Mongolia, Ecuador, Bolivia, Latvia, Albania, Slovenia, Panama, Georgia, Vietnam, Macedonia Paraguay and Salvador voted in support of the resolution. while Russia, China, Indonesia, Saudi Arabia, UAE, Maldives, Bangladesh, Kenya, Qatar, Nigeria, Algeria, Ethiopia, Congo, Togo, Morocco, Côte d’Ivoire, Kyrgyzstan and Burundi voted against it and South Africa Ghana, Botswana, Namibia, India, and the Philippines remained neutral about it.
[3]The ILO Convention on Discrimination in Employment or Occupation, 1958 treaty of the International Labour Organization doesn’t itself exclude sexual orientation discrimination but authorises state parties to add additional grounds. The International Covenant on Civil and Political Rights, 1966 was important because of the [4]Toonen v. Australia, 1994 case. The United Nations Human Rights Committee held that the allusions of "sex" in Article 2, paragraph 1 and Article 26 of the ICCPR should include sexual orientation. This became a landmark case in the UN human rights system in addressing discrimination based on sexual orientation. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 treaty is not limited only to the state governments due to the broad definition of torture in Article 1. This shows the intention of addressing cases falling within the scope of this treaty when a state doesn’t prevent or investigate them.
Article 2 of the Convention on the Rights of the Child, 1989 treaty forbids discrimination and governments are required to ensure protection against discrimination. This treaty could be applicable in addressing sexual orientation discrimination. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1981 treaty could be applicable in discrimination against bisexual, lesbian, and transgender women cases. The United Nations High Commissioner for Refugees has recognized that gays and lesbians are qualified as members of a particular social group in several Advisory Opinions for the 1951 Convention and the 1967 Protocol Relating to the Refugees status since April 1993. The UN non-treaty-based mechanisms are also particularly useful during emergencies.
COUNCIL OF EUROPE
The Council of Europe promotes respect for human rights amongst its member states. Sexual orientation isn’t mentioned in any of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms. The relevance of the Convention was established in a series of cases. In [5]Dudgeon v. UK, 1981, [6]Norris v. Ireland, 1988, [7]Modinos v. Cyprus, 1993, the European Court of Human Rights (ECHR) found that discrimination in the criminal law about consensual relations between adults in private is contrary to the right to respect for private life. In [8]Lustig-Prean and Beckett v. UK, 2000, ECHR held that the prohibition on homosexuals in the military was a breach of its Article 8. TheECHR also observed that a homosexual father cannot be denied custody of his child based on his homosexual orientation in [9]Salgueiro da Silva Mouta v. Portugal, 1999. the European Social Charter (1949) treaty protects economic and social rights. Its European Committee of Social Rights assesses the human rights record of states.
It can hear opinions only from groups that have a consultative status within the Council of Europe. The Commissioner for Human Rights was assigned by the Council of Europe in 1999 can receive individual complaints. He has addressed sexual orientation issues in his reports from visits to the member states. The Parliamentary Assembly of the Council of Europe plays a significant part in monitoring the human rights situation in the member states and the states seeking membership with the Council of Europe.
EUROPEAN UNION (EU)
The human rights issues in the EU are addressed by the European Court of Justice through its legislative and judicial body, and the European Parliament. The founding treaties of the EU were revised in the Treaty of Amsterdam to empower the EU to fight against sexual orientation discrimination. The EU Charter of Fundamental Rights currently is a non-binding document but is important since it expresses the EU’s vision on human rights. It is important for lesbians, gays, and bisexuals because of the obvious non-discrimination provision in Article 21 (1) that prohibits any discrimination based on race, colour, ethnic origin, language, religion, genetic features, political opinion, membership of a national minority, property, birth, disability, age, sex, or sexual orientation. Several non-binding resolutions on human rights and sexual orientation have passed by the European Parliament (EP).
ORGANISATION FOR SECURITY AND COOPERATION IN EUROPE (OSCE)
This is the largest regional security organisation in the earth with 55 member States from North America Europe and Central Asia. In 1995 the Parliamentary Assembly of the OSCE passed a pronouncement in Ottawa beckoning the member states to provide equal protection against discrimination for all, specifically based on sexual orientation.
ORGANIZATIONS OF AMERICAN STATES (OAS)
The OAS has sanctioned the Inter-American Convention against Racism, Racial Discrimination and Related Forms of Intolerance which for the first time in the region comprises sexual orientation and gender identity and expression in an international human rights mechanism.
AFRICAN UNION
The African Charter on Human and Peoples' Rights, 1986 treaty was adopted by the African Union and is the most extensively acknowledged regional human rights instrument, having been approved by over 50 countries. It censures discrimination and provides for certain rights but so far it is a monitoring and enforcing body.
COUNTRIES WHICH ARE DEPRIVED of HUMAN RIGHTS SECTIONS REGARDING SEXUAL ORIENTATION DISCRIMINATION
In the U.S. only 21 states have laws that specifically ban sexual orientation and gender identity discrimination in lodging, public accommodations, and employment as of April 2020.[10]In 2017, a new Penal Code was signed by Chad’s president that forbids consensual same-sex relations. Any individual who commits an “act of serious indecency” is punished with 16 years of imprisonment and any individual who perpetrates “buggery” with life imprisonment under chapter 154 of the 1992 Sexual Offences Act, in Barbados.Article 431 of Grenada's Criminal Code, 1987 punishes “unnatural relation” with10 year’s imprisonment. Article 430 of outlines “any grossly indecent act” as an offence. Civil unions and same-sex marriages are not recognized by law in Bolivia. In Canada, Bill C-66 was passed by the Senate in June, 2018which obliterates the details of those who were prosecuted due to their sexual orientation when same-sex conduct was criminalized.
A bill was presented by the Bachelet administration of Chile in August, 2017to decriminalise same-sex marriages and allow the couples access reproductive options and adoption, has been pending in the Senate for over three years, however, the Constitutional Commission of the Senate concurred to discuss it in January 2020. Under Section 16 of the Sexual Offences Act, 1998 of Dominica, same-sex conduct between two consenting adults is punished with 10 years of imprisonment. In El Salvador, the LGBT individuals are targeted with homophobic and transphobic violence even by the police.
According to COMCAVISTrans, a civil society group, at least 20 trans women were murdered between 2017 and 2019 in El Salvador. Two anti-LGBT bills were passed by the Haitian Senate in 2017which were considered by the Chamber of Deputies as of November 2018. Sexual relations between men are criminalised and same-sex conduct is punished with 10 years in prison or hard labour under Sections 76, 77, and 79 of Jamaica’s Offences Against the Person Act, 1864. A new penal code was adopted by Afghanistan in February, 2018 which openly criminalises consensual same sex relations. Same-sex relations are punished up to life imprisonment under Section 377 of the Bangladeshi penal code.
On January, 2019 a bill to criminalise same-sex conduct was introduced in the upper house of Parliament in Bhutan. Sexual conduct between women is punishable with up to 40 strokes with whips and imprisonment of up to 10 years in Brunei. China still lacks legislations to protect people from discrimination based on sexual orientation or gender identity. Japanese national law also does not prohibit discrimination based on sexual orientation and gender identity. Consensual same-sex conduct is criminalised underSections 365 and 365A of Sri Lanka’s penal code. The South Korean government education directives on sexual education discriminate against LGBT youth by skipping any reference of sexual minorities. Homosexual acts are punished with up to 15 years imprisonment by Ethiopia’s criminal code. Consensual adult same-sex conduct is punished with up to life imprisonment under Tanzania’s Sexual Offenses Special Provisions Act, 1998. LGBT people also face discrimination, harassment, and violence in Armenia, Kazakhstan, Kyrgyzstan, Tajikistan, Nigeria and so on.
CONCLUSION
Discrimination based on sexual orientation is very demeaning. There are still a limited number of countries and non-governmental organisations who speaks up in support of lesbian and gay equality rights in the international fora. International law can only develop when there have been reforms at the domestic level legislative systems.
[1] Sexual orientation discrimination, Equality and Human Rights Commission (November 21, 2020, 16:37 PM) https://www.equalityhumanrights.com/en/advice-and-guidance/sexual-orientation-discrimination.
[2]Sexual orientation discrimination, My Lawyer (November 21, 2020, 16:40 PM) https://www.mylawyer.co.uk/sexual-orientation-discrimination-a-A76018D77138/.
[3]Sexual Orientation and Human Rights, Human Rights Library, University of Minnesota (November 21, 2020, 9:23 Am)http://hrlibrary.umn.edu/edumat/studyguides/sexualorientation.html.
[4]Toonen v. Australia, CCPR/C/50/D/488/1992, UN Human Rights Committee (HRC), 4 April 1994.
[5]Dudgeon v. UK, 7525/76, [1981] 4 EHRR 149, [1981] ECHR 5.
[6]Norris v. Ireland, Application no. 10581/83, ECHR, 26 October, 1988.
[7]Modinos v. Cyprus, 7/1992/352/426, ECHR, 23 March, 1993.
[8]Lustig-Prean and Beckett v. UK, 31417/96; 32377/96, ECHR, 25 July 2000.
[9]Salgueiro da Silva Mouta v. Portugal, 33290/96, ECHR, 21 December 1999.
[10] Human Rights Watch Country Profiles: Sexual Orientation and Gender Identity, HUMAN RIGHTS WATCH(November 20, 2020, 15:56 pm)https://www.hrw.org/video-photos/interactive/2020/06/22/human-rights-watch-country-profiles-sexual-orientation-and.