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Home > Impact of International Human Rights Law on National SOGI Rights

Impact of International Human Rights Law on National SOGI Rights

Contributed by: 
Sahar Moazami - UN Program Officer

International human rights law (IHRL) creates a set of legal responsibilities for states in their treatment of individuals within their state boundaries. States, however, voluntarily agree to these limitations on their sovereignty in order to uphold these globally held ideals. The main sources of IHRL are:

  1. treaties, which are legally binding agreements between states;
  2. customary law, which includes consistent conduct of states due to the belief that the conduct is legally required;
  3. general principles of law which are found in most state domestic legal systems; and
  4. decisions made by judicial bodies. IHRL serves as the way in which individuals and states can ensure that certain fundamental rights are respected and upheld by state governments.

International human rights law (IHRL) has played an important role in cementing and upholding sexual orientation, gender identity and expression, and sex characteristics (SOGIESC) rights found in national level domestic law. A number of domestic courts have used international human rights instruments when deciding cases that directly impact the status of SOGIESC within the national framework. The most commonly used instruments include the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights. Even though explicit reference to SOGIESC is not found within these documents, courts have understood their implicit protection through various interpretations of the specific instruments Articles.

International Human Rights law has proved to be a vital source of protection for SOGIESC rights within national case law. Even though the use of international law within domestic jurisprudence remains fairly limited, the increasing frequency of such use and finding of SOGIESC protections within already established IHRL supports the importance of continued advocacy for SOGIESC rights in IHRL. With continued support from both the public and private spheres for SOGIESC protections within IHRL, domestic caselaw is sure to continue to transform to include such protections and the use of international law within domestic court findings.

Examples of successful usage of IHRL in country level cases include:

In Trinity Western University et Al. v. Law Society of Upper Canada, the Court of Appeals for Ontario explicitly used IHRL to uphold the denial of accreditation for Trinity Western’s Law School. In this case, Trinity Western, and evangelical christian private university, proposed to establish a law school where it required students to sign and adhere to an agreement that prohibited sexual intimacy except when it came to heterosexual married couples. The applicants in the case included a Trinity Western graduate who argued that the denial of accreditation infringed on his freedom of religion under the Canadian Charter. The Court, however, used IHRL to explain how freedom of religion does come with certain limitations. Specifically, the court found that the Law Society was reasonable in its decision to deny accreditation in that freedom of religion was subject to the limitation of upholding the fundamental rights and freedoms of others. The court found that the agreement used by Trinity Western discriminated against LGBTQ persons as it required them to renounce their dignity and self-respect in order to obtain a legal degree.

In Leung TC William Roy v. Secretary for Justice, a Hong Kong domestic decision, a 20-year-old gayman brought a case against the national government arguing against provisions within Hong Kong’s criminal law. The provisions prohibited sexual intercourse for gay males until the age of 21 and went as far to completely prohibit certain public displays of affection between gay men, such as touching and kissing, regardless of age. In striking down the provisions of the criminal law, the court found that those specific sections relating to physical expressions of sexual orientation explicitly violate Hong Kong’s Basic Law. Specifically, the court found that Article 25 of the Basic Law provides all Hong Kong residents equality before the law and Article 39 gives recognition to international treaties that do so as well. The court explicitly used the ICCPR as it explained how it was incorporated into domestic law through the Hong Kong Bill of Rights and further elaborates that the treaty body for the ICCPR, in Toonen v. Australia, held that reference to the word ‘sex’ in the ICCPR included sexual orientation. Therefore, the court rooted its argument for striking down the provisions of the criminal law through the equal rights provision of its Basic Law as well as the incorporation of the ICCPR within its domestic law which provided for protections for sexual orientation.

Another important domestic case for SOGIESC rights that used IHRL is found in the National Legal Services Authority v. Union of India and others case. In this case, members of the transgender community within India sought recognition of their gender identity and not simply recognition of the sex assigned to them, male or female, at birth. Specifically, the community argued that the non-recognition of their gender identity violated Article 14 and 21 of the Constitution of India which provided them the right of equality before the law and the fundamental right to liberty. The Supreme Court of India through this case declared transgender people to be a third gender and gave them the legal right to self-identify their gender as male, female, or third gender. In reaching this conclusion, the court delved deeply into international law by analyzing different UN body interpretations on gender identity and sexual orientation including the Universal Declaration of Human Rights, the ICCPR, and the Yogyakarta Principle.

Published on April 12, 2017       | OutRight Action International an LGBT human rights organization

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