The global fight to end discrimination based on sexual orientation and gender identity (SOGI) often relies on the international human rights legal framework. This framework stems from decades of work by governments, civil society, and international organizations to develop a comprehensive legal basis for human rights protections, starting with the 1948 Universal Declaration of Human Rights (UDHR). The UDHR and the nine other core human rights treaties do not directly mention sexual orientation, gender identity, or LGBTI persons, but many of the texts have been interpreted to include SOGI rights in positive ways.
Every country has its own way of applying international human rights within its borders, which can lead to wide discrepancies across nations and regions. Without specific references to SOGI rights, the human rights framework leaves the door open for governments to not only avoid defending these fights but also violate them. A lack of specific reference makes it even harder for SOGI rights advocates across the world to hold governments accountable.
However, a small number of countries have taken the bold and important step of incorporating protections for LGBTI people in their constitutions, which builds on the international human rights framework and contextualizes it within national laws. Human rights for everyone are strengthened when national law is in sync with international standards. In this case, SOGI rights within constitutions goes beyond the international standards and offers a hopeful example of progress for human rights.
As of May 2014, ten constitutions specifically guarantee equality or prohibit discrimination on the basis of sexual orientation. Five of these ten constitutions go even further to include gender identity. All of the protections included in these constitutions were added and came into effect during the 1990s or later. Unfortunately, no constitutions from South Asian countries or from the Middle East and North Africa include protections based on sexual orientation and gender identity.
Constitutions which include sexual orientation:
Bolivia, Ecuador, México
Malta, Portugal, Sweden, United Kingdom
East Asia and the Pacific:
Fiji, New Zealand
Constitutions which include gender identity:
- the United Kingdom
In 1996, South Africa became the first national jurisdiction to include sexual orientation protections in its constitution. Sexual orientation was included in the listing of distinctions on which the state cannot discriminate.
The sexual orientation or gender identity protections of Bolivia, Ecuador, Fiji, and South Africa were adopted along with the constitution in its entirety. Those of Mexico, Malta, Portugal, and Sweden were included via amendments to a pre-existing constitutional framework. The United Kingdom and New Zealand do not have constitutions written in a centralized text, so their protections stem from national level laws that prohibit discrimination based on sexual orientation, with the United Kingdom including gender identity under those protections.
As with any law, activists must ensure that these ten governments are held accountable and that they turn their written laws into action. The constitutional inclusion of sexual orientation and/or gender identity is significant but only so much as governments enforce laws and uphold the rights of those who face discrimination based on sexual orientation and gender identity. Intersex rights are notably missing from these constitutions. With time and continued advocacy from civil society, governments can strive to include all aspects of sexual orientation, gender identity and expression, and sex characteristics in their constitutional protections.
Examples of specific references:
Article 14: Every human being, without distinction, has legal status and capacity under the law and enjoys the rights recognized in this Constitution. The State prohibits and punishes all forms of discrimination based on sex, color, age, sexual orientation, gender identity, origin, culture, nationality, citizenship, language, religious belief, ideology, political affiliation or philosophy, civil status, economic or social condition, type of occupation, level of education, disability, pregnancy, and any other discrimination that attempts to or results in the annulment of or harm.
Ecuador: 1998 sexual orientation, 2008 gender identity
Article 11: The exercise of rights shall be governed by the following principles:
2) All persons are equal and shall enjoy the same rights, duties and opportunities. No one shall be discriminated against for reasons of ethnic belonging, place of birth, age, sex, gender identity, cultural identity, civil status, language, religion, ideology, political affiliation, legal record, socio-economic condition, migratory status, sexual orientation, health status, HIV carrier, disability, physical difference or any other distinguishing feature, whether personal or collective, temporary or permanent, which might be aimed at or result in the diminishment or annulment of recognition, enjoyment or exercise of rights. All forms of discrimination are punishable by law. The State shall adopt affirmative action measures that promote real equality for the benefit of the rights-bearers who are in a situation of inequality.
Article 13: Principle of equality
1) Every citizen shall possess the same social dignity and shall be equal before the law.
2) No one shall be privileged, favoured, prejudiced, deprived of any right or exempted from any duty on the basis of ancestry, sex, race, language, place of origin, religion, political or ideological beliefs, education, economic situation, social circumstances or sexual orientation.
South Africa: 1996
Article 9(3): The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
Raub, Amy, Adèle Cassola, Isabel Latz, and Jody Heymann. "Protections of Equal Rights Across Sexual Orientation and Gender Identity: An Analysis of 193 National Constitutions." Yale Journal of Law & Feminism 18.149 (2016): 149-69. Web. http://www.worldpolicycenter.org/sites/default/files/WORLD_Constitutions_SOGI.pdf.
Published on April 6, 2017 | OutRight Action International an LGBT human rights organization