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Linking LGBTI Health and Human Rights

What are Human Rights?

Right
- Something owed to a person because of a just claim that they have
Human Rights
- The rights and freedoms given to all human beings, without distinction of any kind, based on the recognition that all humans are born equal and with inherent dignity

Human Rights Framework

  • International Bill of Rights
  • Other International treaties on genocide, race, women, children, disability, migrants etc.
  • UN bodies such as the Human Rights Council and Treaty bodies such as the Human Rights Committee and Committee on Economic, Social and Cultural Rights
  • Regional bodies such as ECHR, IACHR

Civil and Political Rights

  • Right to life Art 6
  • Right to liberty and security of person Art 9
  • Right to a fair trial Art 14
  • Right to privacy Art 17
  • Right to freedom of assembly Art 21
  • Right to freedom of association Art 22

Economic, Social and Cultural

  • Right to work Art 6
  • Right to adequate standard of living, including adequate food, clothing and housing Art 11
  • Right to highest attainable standard of physical and mental health Art 12
  • Right to education Art 13

Non-Discrimination and Equality

" Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized 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 " Art 2, ICCPR " 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 "Art 26, ICCPR

What About Sexual Orientation?

" The Committee confines itself to noting, however, that in its view the reference to "sex" in articles 2, paragraph 1, and 26 [of the ICCPR] is to be taken as including sexual orientation" Toonen v Australia (1994)

  • Same result in Young v Australia (2003) and X v Colombia (2007)

Other References

  • Right to work, right to water, right to heath Committee on Economic, Social and Cultural Rights
  • Right to non-discrimination in relation to adolescents' sexual orientation Committee on the right of the child
  • Supportive comments from
    • Committee on the elimination of racial discrimination
    • Committee against torture
    • Committee on the elimination of discrimination against women

Yogyakarta Principles

  • A groundbreaking set of principles on the application of international human rights law in relation to sexual orientation and gender identity
  • Project led by International Commission of Jurists and International Service for Human Rights, the Principles were developed based on input from 29 human rights experts from 25 countries
  • The Principles were adopted by these experts at Gadjah Mada University in Yogyakarta, Indonesia on 6-9 November 2006
  • Signatories to the Principle include:
    • Elizabeth Evatt (Aust) former chair of UN Committee on Elimination of Disc. Against Women
    • Mary Robinson (Ireland) former UN High Commissioner for Human Rights
    • Paul Hunt (NZ) UN Special Rapporteur on the right to the highest attainable standard of health
    • Yakin Erturk (Turk) UN Special Rapporteur on Violence against Women
    • Manfred Nowak (Au) UN Special Rapporteur on torture and other cruel, inhumane or degrading treatment
    • Rudi Mohammed Rizki (Indon) UN Special Rapporteur on international solidarity
    • Miloon Kothari (Ind) UN Special Rapporteur on the right to adequate housing
    • Vitit Muntarbhorn (Thai) UN Special Rapporteur on hr situation in North Korea
    • Martin Scheinin (Fin) UN Special Rapporteur on human rights and counter-terrorism
    • Sunil Pant (Nep) President of Blue Diamond Society
  • The principles cover both civil and political, as well as economic, social and cultural rights
  • Each principle is accompanied by detailed recommendations to States, as well as non-state actors.
  • The English version is the authoritative text. There are translations in a range of other languages.

Find out more about the Yogyakarta Principles

Principle 4

"Everyone has the right to life. No one shall be arbitrarily deprived of life, including by reference to considerations of sexual orientation or gender identity. The death penalty shall not be imposed on any person on the basis of consensual sexual activity among persons who are over the age of consent or on the basis of sexual orientation or gender identity"

States shall:
A. Repeal all forms of crime that have the purpose or effect of prohibiting consensual sexual activity among persons of the same sex who are over the age of consent and, until such provisions are repealed, never impose the death penalty on any person convicted under them…

The Right to Health

" The States Parties… recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health" Art 12(1) ICESCR

  • Not a right to be healthy, but to certain rights and freedoms to enjoy highest standard of health.
  • Includes - right to control one's health and body, free from non-consensual interference, right to an equal opportunity to a system of health protection etc.

" By virtue of article 2.2 and 3, the Covenant proscribes any discrimination in access to health care and underlying determinants of health, as well as means and entitlements for their procurement, on the grounds of …health status (including HIV/AIDS), sexual orientation…or other status, which has the effect of nullifying or impairing the equal enjoyment or exercise of the right to health" General Comment 14 (2000), Committee on Economic, Social and Cultural Rights

The Right to Health and LGBTI Health

  • Recognises sexual orientation and other status (which may include sex and gender identity)
  • Increasing recognition of the social determinants of health, such as discrimination and isolation.
  • Evidence shows that the poorer health outcomes that LGBTI people have are largely due to the discrimination and social isolation that they face
  • Discrimination and abuse lead to higher drug use, mental health issues, and other risky behaviour
  • Discrimination prevents LGBTI from accessing mainstream health services
  • Discrimination means that governments have overall failed to adequately respond to LGBTI health needs
  • Therefore, government laws such as criminalisation and policies such as not recognising same-sex families not only lead to civil rights claims such as right to privacy, but also right to health

  • Illustrates the multiple human rights claims that LGBTI people have as a result of homophobia and heterosexism.

Current Human Rights Initiatives

In the first half of 2009 the Government has conducted a national consultation on human rights and ways to protect and promote them in Australia in the future. Find out more

The Australian Human Rights Commission has launched the concluding paper for the sex and gender diversity project, Sex Files: The legal recognition of sex in documents and government records. The paper contains 15 recommendations for improving the current system for legally recognizing sex and gender identity. Find out more