The rights of LGBT peoples

I. INTRODUCTION

Homosexuality is assuredly no advantage, but it is nothing to be ashamed of, no vice, no degradation, it cannot be classified as an illness; we consider it to be a variation of the sexual function produced by a certain arrest of sexual development.^[1]

This statement is from one of the world’s most famous neurologist, Sigmund Freud, which developed psychoanalysis in 1935. Despite this statement it took 55 more years until the World Health Organisation (WHO) removed homosexuality from the list of mental disorders. Until 1993, homosexuality was classified as a harm of the body or mind,^[2] with the LGBT rights campaign still a young ‘discipline’, although achieving big successes in recent years. Nevertheless there is still a huge inequality between heterosexuals and LGBT peoples.

Human rights in totality are more of a political issue than a legal issue. Only the collective understanding of human rights makes them universal, with citizens expecting their state to comply with them.^[3] This includes the rights of the LGBT peoples.^[4]

Based on science a percentage, between 5 and 10 percent, of the human population identify as gay,^[5] this issue concerns between 350 to 700 million people. Not included are the estimated percentages of bisexual and transgender people, who also relate to these rights. Regardless of this it is surprisingly that the prosecution, discrimination and ostracism is not hidden, but rather operated in an open and partially aggressive way by religious communities, government bodies and individuals.^[6]

This essay is going to answer firstly whether the LGBT rights could be classified as human rights. Secondly, there will be a discussion of the United Nation (UN) Declaration specifically the LGBT peoples. Thirdly, there is an overview of the global LGBT rights with particular focus on three selected countries: Uganda, Russia and South Africa, as these countries currently attract attention primary due to LGBT rights. Accordingly there is a critique and a conclusion.

II. ARE LGBT RIGHTS HUMAN RIGHTS?

Some have suggested that gay rights and human rights are separate and distinct; but, in fact, they are one and the same. [G]ay rights are human rights, and human rights are gay rights.^[7]

Many countries, especially Muslim cultures, are struggling to accept rights for LGBT peoples.^[8] In the recent years the LGBT rights arise more often as an issue in the bodies of the UN and the question was how the supporter of LGBT rights justify the title to having human rights even though the Bill of Rights does not mention the LGBT peoples and their challenges.^[9]

A. The Universal Declaration Of Human Rights And
Homosexuality

The UN Universal Declaration of Human Rights (UDHR) states no specific rights for LGBT peoples. Neither sexual orientation nor gender identity is mentioned in this declaration.^[10] Nevertheless, Hillary Clinton, in a highly regarded and historical speech at the UN in Geneva,^[11] constituted gay rights as human rights.

The international global community adopted in 1948 the UDHR with universal validity of the basic rights for all people in the world. The important clause is Article 2, which states:

Everyone is entitled to all the rights and freedoms set forth in this Declaration, 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. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

At that time, homosexuality was still defined as an illness and the whole issue was taboo. Thus no one included homosexuality as a possible discrimination element of an offence. In that, the question arises whether these human rights also cover homosexuality even though it is not explicitly mentioned. The current jurisprudence sees sexuality as an integral component in human dignity and privacy. Therefore, the United Nations Human Rights Committee (UNHRC) determined, in the decision Toonen vs Australia,^[12] that rules, which penalise consensual homosexual acts, are incompatible with the human right of privacy. This decision has the effect that there need not be a specific human right for the freedom of sexual orientation because a human right does exist which covers the possible life choices of a human being and this includes sexual orientation.

B. Yogyakarta-Principles

The above-mentioned projection is substantiating by the Yogyakarta Principles. Internationally acknowledged scholars in human rights drew these principles in 2006 in Yogyakarta, Indonesia.^[13] These Principles were adopted to concretise the international human rights law in relation to sexual orientation and gender identity. It contains 29 Principles and Recommendations to governments, civil society and also the UN.^[14] Whereas the International Covenant on Economic, Social and Culture Rights as well as the International Covenant on Civil and Political Rights are legally binding treaties, the UDHR is a declaration defining the meaning of human rights and is morally binding, but not binding as international law, to all member states of the UN.^[15] In contrast, the Yogyakarta Principles specify the existing human rights and apply them to the LGBT peoples.^[16] This paper does not produce new rights and strictly speaking the compliance to these principles is voluntarily for the member states.

III. RECENT DECLARATIONS AND RESOLUTIONS

Hate and force cannot be in just a part of the world without having an effect on the rest of it.^[17]

The fight for equal rights and the cultural shift in acceptance to call for human rights as LGBT peoples began in the late 1960s,^[18] reach the maximum achievements in the last two years. The important bodies of the UN, so the UN General Assembly and the Human Rights Council, have dealt with LGBT rights and there is still a huge discussion. Subsequent measures were recently conducted to enforce and ensure equal rights within the international community.

A. Declaration On Sexual Orientation And Gender Identity

Due to the ‘non-binding Yogyakarta Principles’ the UN drew a special declaration called Declaration on Sexual Orientation and Gender Identity in 2008. Due to the lack of necessary support through a majority of the UN members (only 67 of 192 UN members signed this declaration) the declaration failed as a UN-resolution. But it was the first Declaration covering LGBT rights which called out in front of the UN General Assembly. The signatories were inter alia the European Union (EU) members (under the leadership of France), Australia, Canada, Japan, some African states and later the United States of America (USA), after the change of government under President Obama.^[19]

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^[1] quote of Sigmund Freund in: Jerome A. Winer and James William Anderson, Sigmund Freud and his impact on the modern world (Institute for Psychoanalysis Chicago, Volume XXIX, 2001) 24.

^[2] Linda Goldmann, Coming out, Coming in (Taylor and Francis Group, 2008) 7; Victoria Clarke, Sonja J. Ellis. Elizabeth Peel and Damien W. Riggs, Lesbian, Gay, Bisexual, Trans and Queer Psychology – an introduction (Cambridge University Press, 2010) 13.

^[3] Andrew Clapham, Human rights – a very short introduction (Oxford University Press, 2007) 1.

^[4] See chapter II.

^[5] Ellen E. Pastorino and Susann M. Doyle-Portillo, What is psychology? (Wadsworth Cengage learning, 3rd ed, 2012) 420; Linda Goldmann, Coming out, Coming in (Taylor and Francis Group, 2008) 7.

^[6] See chapter IV.

^[7] Speech of Hillary Clinton, Secretary of State of the USA in Geneva, available at: <http://iipdigital.usembassy.gov/st/english/texttrans/2011/12/20111206180616su0.4842885.html#axzz28m4PermK>

^[8] See chapter IV.

^[9] Sharon Yecies, ‘Sexual Orientation, Discrimination, and the Universal Declaration of Human Rights’ (2011) Chicago Journal of International Law 789, 790.

^[10] Ibid.

^[11] An official video-abstract from the US State Department is available at: <http://iipdigital.usembassy.gov/st/english/video/2011/12/20111219142526aerdna0.5667492.html>

^[12] Toonen v. Australia (1994) CCPR/C/50/D/488/1992.

^[13] Anne-Marie Mooney Cotter, Ask no questions – An international legal analysis on sexual orientation discrimination (Ashgate Publishing Limited, 2010) 15.

^[14] Ibid.; Human Rights Watch, World Report 2008 (Human Rights Watch, 2008) 36.

^[15] Sharon Yecies, ‘Sexual Orientation, Discrimination, and the Universal Declaration of Human Rights’ (2011) Chicago Journal of International Law 789, 796.

^[16] David P. Forsythe, Encyclopedia of Human Rights (Oxford University Press, 2009) 435.

^[17] quote of Eleanor Roosevelt in: Donald Wigal, The Wisdom of Eleanor Roosevelt (Philosophical Library, 2010) 93.

^[18] Sherry Wolf, Sexuality and Socialism – History, Politics, and Theory of LGBT Liberation (Haymarket Books, 2009) 116.

^[19] David W. Austin, Paul E. Johnson and Mark E. Wojcik, ‘Sexual Orientation and Gender Identity’(2010)44 The international Lawyer 547, 547.