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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

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).