The right to sexuality incorporates the right to express one's sexuality and to be free from discrimination on the grounds of sexual orientation. In specific, it relates to the human rights of people of diverse sexual orientations, including lesbian, gay, bisexual and transgender (LGBT) people, and the protection of those rights, although it is equally applicable to heterosexuality. The right to sexuality and freedom from discrimination on the grounds of sexual orientation is based on the universality of human rights and the inalienable nature of rights belonging to every person by virtue of being human.
No right to sexuality exists explicitly in international human rights law; rather, it is found in a number of international human rights instruments including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
The concept of the right to sexuality is difficult to define, as it comprises various rights from within the framework of international human rights law.
Sexual orientation is defined in the Preamble to the Yogyakarta Principles as "each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender".
Freedom from discrimination on the grounds of sexual orientation is found in the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR).
The UDHR provides for non-discrimination in Article 2, which states that:
"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."
Sexual orientation can be read into Article 2 as "other status" or alternatively as falling under "sex".
In the ICCPR, Article 2 sets out a similar provision for non-discrimination:
"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."
In Toonen v Australia the United Nations Human Rights Committee (UNHRC) found that the reference to "sex" in Article 2 of the ICCPR included sexual orientation, thereby making sexual orientation prohibited grounds of distinction in respect of the enjoyment of rights under the ICCPR.
The right to be free from discrimination is the basis of the right to sexuality, but it is closely related to the exercise and protection of other fundamental human rights.
Individuals of diverse sexual orientation have been discriminated against historically and continue to be a "vulnerable" group in society today. Forms of discrimination experienced by people of diverse sexual orientation include the denial of the right to life, the right to work and the right to privacy, non-recognition of personal and family relationships, interference with human dignity, interference with security of the person, violations of the right to be free from torture, discrimination in access to economic, social and cultural rights, including housing, health and education, and pressure to remain silent and invisible.
Seventy-eight countries maintain laws that make same-sex consensual sex between adults a criminal offence, and seven countries (or parts thereof) impose the death penalty for same-sex consensual sex. They are Iran, Saudi Arabia, Yemen, Mauritania, Sudan, the twelve northern states of Nigeria, and the southern parts of Somalia.
The right to sexuality has only relatively recently become the subject of international concern, with the regulation of sexuality traditionally falling within the jurisdiction of the nation state.Today numerous international non-governmental organisations and intergovernmental organisations are engaged in the protection of the rights of people of diverse sexual orientation as it is increasingly recognised that discrimination on grounds of sexual orientation is widespread and an unacceptable violation of human rights.
Acts of violence against LGBT people are often especially vicious compared to other bias-motivated crimesand include killings, kidnappings, beatings, rape, and psychological violence, including threats, coercion and arbitrary depravations of liberty.
Examples of violent acts against people of diverse sexual orientation are too numerous to account here, and they occur in all parts of the world. A particularly distressing example is the sexual assault and murder of fifteen lesbians in Thailand in March 2012. In that example, two lesbian couples were killed by men who objected to their relationship and who were embarrassed when they were unable to convince the women into heterosexual relationships with themselves.
Often acts of violence against people of diverse sexual orientation are perpetrated by the victim's own family. In a case in Zimbabwe, the multiple rape of a lesbian was organised by her own family in an attempt to "cure" her of homosexuality.
In those cases, as in many other cases of violence against people of diverse sexual orientation, State law enforcement authorities are complicit in human rights abuses for failing to persecute violators of rights.
The right to privacy is a protected freedom under the UDHR,and the ICCPR which reflects the "widespread, if not universal, human need to pursue certain activities within an intimate sphere, free of outside interference. The possibility to do so is fundamental to personhood." Intimate relationships, whether between two people of the same sex or of different sexes, are among those activities that are subject to a right of privacy.
It has been successfully argued in a number of cases that criminalization of homosexual relationships is an interference with the right to privacy, including decisions in the European Court of Human Rights and the UNHRC.
The freedom to decide on one's own consensual adult relationships, including the gender of that person, without the interference of the State is a fundamental human right. To prohibit the relationships of people of diverse sexual orientation is a breach of the right to sexuality and the right to privacy.
Every person, by virtue of their individual autonomy, is free to express themselves, assemble and join in association with others. Freedom of expression is a protected human right under Article 19 of the UDHR and Article 19 of the ICCPR, as is the right to freedom of assembly under Article 20 of the UDHR and Article 21 of the ICCPR.
LGBT people are discriminated against in respect of their ability to defend and promote their rights. Gay pride marches, peaceful demonstrations and other events promoting LGBT rights are often banned by State governments.
In 2011 gay pride marches were banned in Serbiaand another march in Moscow was broken up by police, who arrested thirty leading gay rights activists.
In 2005, twenty-nine experts undertook the drafting of the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity.The document was intended to set out experiences of human rights violations against people of diverse sexual orientation and transgender people, the application of international human rights law to those experiences and the nature of obligations on States in respect of those experiences.
The Principles can be broadly categorised into the following:
The Yogyakarta Principles is an instrument of soft law and is therefore not binding. But it does provide an important standard for States in their obligation to protect the rights of individuals of diverse sexual orientation.
On June 17, 2011 the United Nations Human Rights Council in a Resolution on Human Rights, Sexual Orientation and Gender Identity, adopted by a vote of 23 in favour, 19 against, and 3 abstentions, requested the commission of a study to document discriminatory laws and acts of violence against people based on their sexual orientation and gender identity.
The 2011 Resolution was intended to shed light on how international human rights could be used to prevent acts of violence and discrimination against people of diverse sexual orientation.
On 15 December 2011 the first Report on human rights of LGBT people was released by the Office of the United Nations High Commissioner for Human Rights.
The Report made the following recommendations. In order to prevent such acts of violence occurring, United Nations Member States are recommended to:
Further action is yet to be taken by the United Nations, although a proposed declaration on sexual orientation and gender identity was brought before the United Nations General Assembly in 2008. However, that declaration has not been officially adopted by the General Assembly and remains open for signatories.
Gender expression, or gender presentation, is a person's behavior, mannerisms, interests, and appearance that are associated with gender in a particular cultural context, specifically with the categories of femininity or masculinity. This also includes gender roles. These categories rely on stereotypes about gender.
Lesbian, gay, bisexual, and transgender (LGBT) persons in Ghana face legal and societal challenges not experienced by non-LGBT citizens.
Lesbian, gay, bisexual, and transgender (LGBT) rights in Canada are some of the most advanced in the Americas and in the world. Same-sex sexual activity has been lawful in Canada since June 27, 1969, when the Criminal Law Amendment Act came into force upon royal assent.
Lesbian, gay, bisexual, and transgender (LGBT) persons in Cambodia face legal challenges not experienced by non-LGBT residents. Same-sex sexual activity is legal in Cambodia. While traditional cultural mores tend to be tolerant in this area, even expressly providing support for people of an intermediate or third gender, LGBT rights legislation has not yet been enacted by the ruling Cambodian People's Party.
Lesbian, gay, bisexual, and transgender (LGBT) persons in Cyprus may face legal challenges not experienced by non-LGBT residents. Both male and female same-sex sexual activity are legal in Cyprus, and civil unions which grant several of the rights and benefits of marriage have been legal since December 2015.
OutRight Action International (OutRight) is a LGBTIQ human rights non-governmental organization that addresses human rights violations and abuses against lesbian, gay, bisexual, transgender and intersex people. OutRight Action International documents human rights discrimination and abuses based on their sexual orientation, gender identity, gender expression and sex characteristics in partnership with activists, advocates, media, NGOs and allies on a local, regional, national and international level. OutRight Action International holds consultative status with ECOSOC.
The Declaration of Montreal on Lesbian, Gay, Bisexual, and Transgender Human Rights is a document adopted in Montreal, Quebec, Canada, on July 29, 2006, by the International Conference on LGBT Human Rights which formed part of the first World Outgames. The Declaration outlines a number of rights and freedoms pertaining to LGBT and intersex people that it is proposed be universally guaranteed. It encompasses all aspects of human rights, from the guarantee of fundamental freedoms to the prevention of discrimination against LGBT people in healthcare, education and immigration. The Declaration also addresses various issues that impinge on the global promotion of LGBT rights and intersex human rights. Intended as a starting point in listing the demands of the international LGBT movement, it will ultimately be submitted to the United Nations.
Lesbian, gay, bisexual, and transgender (LGBT) rights in Armenia are not legislated in both the legal and social spheres.
Lesbian, gay, bisexual, and transgender (LGBT) persons in Botswana face legal issues not experienced by non-LGBT citizens. Both female and male same-sex sexual acts have been legal in Botswana since 11 June 2019 after a unanimous ruling by the High Court of Botswana. However, the ruling is being appealed to the Court of Appeal.
Lesbian, gay, bisexual, and transgender (LGBT) persons in Nicaragua may face legal challenges not experienced by non-LGBT residents. Both male and female same-sex sexual activity are legal in Nicaragua. Discrimination based on sexual orientation is banned in certain areas, including in employment and access to health services.
Lesbian, gay, bisexual, and transgender (LGBT) people in Indonesia face legal challenges and prejudices not experienced by non-LGBT residents. Traditional mores disapprove of homosexuality and cross-dressing, which impacts public policy. Indonesian same-sex couples and households headed by same-sex couples are not eligible for any of the legal protections available to opposite-sex married couples. Most parts of Indonesia do not have a sodomy law and do not currently criminalise private, non-commercial gay acts among consenting adults, yet Indonesian law does not protect the LGBT community against discrimination and hate crimes. In Aceh, and for Muslims in the city of Palembang, homosexuality is illegal under Islamic Sharia law, and punishable by flogging. Indonesia does not recognise same-sex marriage. In July 2015, the Minister of Religious Affairs stated that it is unacceptable in Indonesia because firmly held religious norms speak strongly against it. The importance in Indonesia for social harmony leads to duties rather than rights to be emphasised, which means that human rights broadly, including LGBT rights, are very fragile. Despite this, the LGBT community in Indonesia has steadily become more visible and politically active.
Lesbian, gay, bisexual, and transgender (LGBT) persons in Dominica face legal challenges not experienced by non-LGBT residents. Sodomy, also known as "buggery", is illegal for both heterosexuals and homosexuals. Dominica provides no recognition to same-sex unions, whether in the form of marriage or civil unions, and no law prohibits discrimination on the basis of sexual orientation or gender identity.
Lesbian, gay, bisexual, and transgender (LGBT) rights in Eswatini are limited. LGBT people face legal challenges not experienced by non-LGBT residents. According to Rock of Hope, a Swati LGBT advocacy group, "there is no legislation recognising LGBTIs or protecting the right to a non-heterosexual orientation and gender identity and as a result [LGBT people] cannot be open about their orientation or gender identity for fear of rejection and discrimination". Homosexuality is illegal in Eswatini, though this law is in practice unenforced.
Lesbian, gay, bisexual and transgender (LGBT) rights in Nepal are among the most progressive in Asia. The Nepalese Constitution recognizes LGBT rights as fundamental rights.
Lesbian, gay, bisexual, and transgender (LGBT) persons in Senegal face legal challenges not experienced by non-LGBT residents. Senegal specifically outlaws same-sex sexual acts and, in the past, has prosecuted men accused of homosexuality. LGBT persons face routine discrimination in society.
Discussions of LGBT rights at the United Nations have included resolutions and joint statements in the United Nations General Assembly and the United Nations Human Rights Council (UNHRC), attention to the expert-led human rights mechanisms, as well as by the UN Agencies.
Lesbian, gay, bisexual, and transgender (LGBT) persons in Vanuatu may face legal challenges not experienced by non-LGBT residents. Same-sex sexual activity has been legal since 2007, but households headed by same-sex couples are not eligible for the same legal protections available to opposite-sex married couples.
The Yogyakarta Principles is a document about human rights in the areas of sexual orientation and gender identity, published as the outcome of an international meeting of human rights groups in Yogyakarta, Indonesia, in November 2006. The Principles were supplemented in 2017, expanding to include new grounds of gender expression and sex characteristics, and a number of new principles.
Lesbian, gay, bisexual and transgender (LGBT) people in Samoa face legal challenges not faced by non-LGBT people. Same-sex sexual acts are illegal, punishable by up to 7 years imprisonment, but the law is not enforced.
The following outline offers an overview and guide to LGBT topics.