Sexual rights and bodily integrity as human rights

Sexuality is a political struggle and, as one of the authors in this issue reflects, it is caught between “repression and danger on the one hand and exploration, pleasure and agency on the other” (Muhanguzi). Although sexuality can be deemed intimate and personal, it is often subject to power relations in both the private and public domains, and is highly politicised. Human rights standards have been applied by authoritative human rights bodies to a wide range of sexuality and sexual health-related matters to form the content and meaning of sexual rights, and the public health benefits of respecting and fulfilling these rights are indisputable. Yet, political negotiations on matters related to sexuality and sexual health remain contentious and polarised. This issue of RHM focuses on sexuality, sexual rights and sexual politics, offering a wide range of analysis, perspectives and evidence that highlight the nexus between sexual health and human rights and deepen our knowledge about the challenges and opportunities for individuals of any sexual orientation or gender diversity to achieve the highest attainable level of sexual health.

Incremental global recognition of sexual rights

This year, the Millennium Development Goals (MDGs) were superseded by the more ambitious and far-reaching agenda of the Sustainable Development Goals (SDGs). Thanks to the tireless efforts by advocates in recent years, sexual and reproductive health, and to some extent reproductive rights, achieved greater prominence in the health (Goal 3) and gender equality (Goal 5) goals of the SDGs than they had in the MDGs. Building on the outcomes of the 1994 Programme of Action of the International Conference on Population and Development and the 1995 Beijing Platform for Action, the new SDGs have integrated targets relating to family planning, maternal health and HIV/AIDS. But while the inclusive and transparent process of setting these goals has been commended, they have also been criticised for their narrow take on sexual and reproductive health and rights (SRHR).^1,2 One of the most important elements conspicuously absent in this agenda is explicit and progressive language on sexual rights, with respect to many aspects of sexuality and sexual health, including sexual orientation and gender expression, access to comprehensive sexual education or safe and legal abortion.³

The recent report of the World Health Organization (WHO), “Sexual health, human rights and the law”, published earlier this year,⁴ is a progressive effort to address the intersection of sexuality, sexual health and human rights in a comprehensive manner. It emphasises the importance of attainment of sexual health, that is, a pleasurable, fulfilling and safe sexual life without coercion, discrimination and violence, through respect and protection of human rights. Although it shies away from using its own working definition of sexual rights, (Box 1) it shows clearly how restrictive laws that limit consensual adult sexual behaviour – by restricting access to information, education and services; or failing to protect against discrimination, or inequality; or to protect the right to privacy and confidentiality – have a devastating impact on health and well-being, and perpetuate human rights violations. This document calls on states to bring their laws and policies in line with international human rights standards in order to deliver on their obligations to meet the sexual health needs of their citizens.⁵

Box 1 WHO working definition of sexual rights^a

Rights critical to the realization of sexual health include:

•	The rights to life, liberty, autonomy and security of the person
•	The rights to equality and non-discrimination
•	The right to be free from torture or cruel, inhuman or degrading treatment or punishment
•	The right to privacy
•	The rights to the highest attainable standard of health (including sexual health) and social security
•	The right to marry and to found a family and enter into marriage with the free and full consent of the intending spouses, and to equality in and at the dissolution of marriage
•	The right to decide the number and spacing of one's children
•	The rights to information and education
•	The rights to freedom of opinion and expression
•	The right to an effective remedy for violations of their fundamental rights

The application of existing human rights to sexuality and sexual health constitutes sexual rights. Sexual rights protect all people's rights to fulfil and express their sexuality and enjoy sexual health, with due regard to the rights of others, within a framework of protection against discrimination.

^aWHO, 2006a, updated 2010. http://www.who.int/reproductivehealth/topics/sexual_health/sh_definitions/en/

The WHO report is one of many international documents that recognise the human rights aspect of sexuality and sexual health, i.e., sexual rights. Other examples are the recent report of the UN High Commissioner of Human Rights that condemns discrimination and violence on grounds of sexual orientation and gender identity,⁶ and an unprecedented joint statement by several UN agencies calling states to take responsibility to end violence and discrimination against those with non-heteronormative sexual expression, orientation and gender identity.⁷ Other similar efforts are pushing in the same direction; the newly-adopted UNAIDS Strategy puts great emphasis on sexual and reproductive health and rights, acknowledging that ending the HIV epidemic will only be made possible by people fully realizing these rights.⁸ The Brief Sexuality-Related Communication guidelines, released by WHO earlier this year and described by Cooper et al in this issue, aim to encourage a more holistic approach to sexuality and sexual health in primary health care in order to reduce the burden of sexual ill-health and to promote greater enjoyment of sexual health. Similarly, proposed changes to the International Classification of Diseases (11th edition) aim to offer greater attention to matters related to sexuality and sexual health. For example, the proposal to remove “gender identity disorder” from the category of “mental and behavioural disorders” and placing it as “gender incongruence” under a new chapter on “conditions related to sexual health” is an important step towards creating greater recognition of gender expression on a basis of sexual self-determination (see Cottler et al in this issue).

These cases illustrate how UN agencies and other international bodies are taking cautious steps to assert some pressure on member states to recognise, respect and fulfil the human rights related to sexuality and sexual health of all individuals regardless of sexual orientation and gender identity, disability, race, sex and age among other grounds. However, an international consensus on the term “sexual rights” is yet to be realised.

Parallel to the UN’s cautious steps there is a growing call from civil society organisations to respect sexual rights, and promote the recognition of sexuality and sexual health as human rights, above and beyond their role in reproduction. In August this year, for example, at its 32nd International Council meeting, Amnesty International proposed a policy to defend the human rights of sex workers by calling for decriminalisation of consensual adult sex work. Despite public attacks from several fronts and false accusations of playing into the hands of the sex industry, the members of Amnesty International decided that the human rights of one of the most marginalised and discriminated groups in society should move from the margins of international policy debate to its forefront.⁹ This position, advocated by sex workers’ associations, was also supported by a range of human rights organisations and those working in public health with first hand evidence of the harmful consequences of punitive laws, especially the way in which criminalisation hampers HIV prevention efforts.¹⁰

The fact that sex and sexuality are politically contested is the underlying factor for the silence on sexual rights in the SDGs and in the politics of UN agencies, even though these rights are so intertwined with sexual and reproductive health, and embedded in the universally accepted human rights standards. Silva et al take up this critique in their commentary and provide an insight into the realm of contentious international negotiations, illustrating how conservative member states slow down the progress towards a universal consensus on sexual rights. In their commentary, Miller et al offer an in-depth analysis of the arguments made by sexual rights opponents, noting a shift from a moral, cultural and value-based resistance to the use of human rights language which privileges some rights over others. Accompanying their commentary, the authors present a tool to combat the conservative forces that undermine progress in this field with their paper “Sexual rights as human rights: a guide to authoritative sources and principles for applying human rights to sexuality and sexual health”. The Guide walks us through the human rights treaties and their monitoring bodies, decisions of international, regional and national courts, and political declarations that build the foundation of sexual rights.

Progresses and challenges at country level

Inspiring progress has also been made on the ground. Transgender people worldwide are claiming their rights. The adoption of the historic Gender Identity, Gender Expression and Sex Characteristics Act (GIGESCI) in Malta, recognising the rights of self-determination of gender identity, has been an important milestone,¹¹ as GATE’s statement in this issue demonstrates. The law prohibits normalising genital surgeries and sterilisation, which have been a key concern and continue to be mandatory in many countries, and places legally binding obligations on the Maltese state to respect and protect transgender people’s self-determination and human rights. Transgender people’s rights gained recognition in Ireland too when a law was introduced allowing people to choose their legal gender without the need for a medical certificate or other interventions by state authorities, making Ireland the fourth country in the world, after Denmark, Malta and Argentina, to have such a progressive law.¹² The Indian Parliament is also expected to enact a bill to ensure equal protection of transgender people, following a Supreme Court ruling in 2014 which granted them legal status as a third gender,* joining other countries in the region, such as Bangladesh, Pakistan and Nepal, which legally recognise a third gender.^†

People around the world also celebrated the slowly growing number of countries legislating marriage equality in 2015. Ireland was the first country to legalise same sex marriage following a referendum,¹³ and in Mexico and the US, supreme court rulings effectively legalised gay marriage.^14,15

The incremental legal advances in some parts of the world give grounds for guarded optimism. However, the magnitude of sexuality related violence against women and girls, and also against men and boys, as a weapon of war or on grounds of their real or perceived sexual orientation and gender identity and other sexuality related matters, is still a sad reality of our world. Homo- and transphobic laws and policies in many countries, (such as Russian’s anti-gay propaganda law and Uganda’s pending anti-homosexuality bill) continue to fuel stigma and discrimination, and instigate violence against members of the LGBTQI community. During the last seven years, 1,731 transgender and gender-diverse people have been killed,^‡ a figure that is likely to be grossly underestimated.

Female genital mutilation and forced marriages are still widely practised with all the attendant risks to young women's health, well-being, safety and limits on their opportunities for full participation in society. Women’s sexual rights continue to face backlashes. Ireland and Malta, while praised for their progressive laws on sexual orientation and gender identity, continue to limit women’s access to safe and legal abortion, with Malta being the only European country that entirely prohibits abortion. Harmful restrictive abortion laws are enforced in a number of other countries such as Nicaragua and El Salvador, the latter putting even women who miscarry behind bars.¹⁶ At the same time, in many countries (most recently Poland and Spain) legal abortion is constantly under threat. Meanwhile nearly 20 million women seek abortions each year, with thousands dying due to lack of safe and legal procedures, and maternal mortality and morbidity remains a public health concern. (See also papers by Foster et al, Summer et al and Baird in this issue on the SRHR needs of women in different settings.) It is worth reflecting on why same-sex marriage is (rightly) gaining greater recognition, while universal access to safe abortion rights remains an ongoing struggle which reflects a ‘gross asymmetry within and across rights related to sexuality and reproduction’.¹⁷ Katha Politt makes a compelling proposition: that while same-sex marriage is about love and helps reinvigorate a dying institution, abortion concerns the sexual freedom of women, disconnecting sex from reproduction and challenging puritanical orthodoxies.¹⁸

This control of women’s sexuality, and lack of respect for their autonomy and self-determination over their bodies, continues to have detrimental consequences. Women, in particular young women in Sub-Saharan Africa, carry the heavy burden of the HIV epidemic due to persistent gender inequality and harmful gender dynamics.¹⁰ Women and girls, including lesbians, transgender women and sex workers, are subject to rape and sexual and gender-based violence and in some parts of the world continue to be victims of harmful practices such as forced and early marriages, or FGM – which is discussed in a commentary by Berer, who analyses the repercussions of the new anti-FGM law in Great Britain. And while women of reproductive age are more often considered as victims of gender-based and sexual violence, the needs and risks of older women should not be neglected – an important concern raised by Crocket and Cooper in their article in this issue.

Rape continues to be used as a weapon of war. There are well-documented reports of widespread sexual violence during wartime, with tens of thousands of women raped during conflicts in Rwanda, Sierra Leone, Liberia, the former Yugoslavia, Nepal, and the Democratic Republic of the Congo, crimes committed with impunity. More recently, sexual violence and assaults have been reported in South Sudan, Somalia, Nigeria, Afghanistan, Iraq, and Syria, attributed to various perpetrators including brutal and barbaric groups such as Daesh (Islamic State in Iraq and the Levant (ISIL)), Al-Shabaab and Boko Haram but also to military personnel. Sexual violence, also against men and boys, is used as a political weapon in armed conflicts with a devastating impact on their physical, sexual and psychological health.¹⁹ While there have been occasional reports of sexual torture and ill-treatment of men and boys – images of Abu Ghraib are still vivid in my mind – it is grossly overlooked and underreported, in part due to gender stereotypes and conventional constructions of masculinity. A paper in this issue by Weishut records the sexual ill-treatment of Palestinian men by Israeli authorities, contributing to a growing literature that sheds light on the extent and nature of these human rights violations.

Crisis and conflict situations create increased vulnerability to sexual and reproductive ill-health, and men and boys as well as women and girls are at higher risk of sexual violence and ill-treatment, especially when displaced. See also articles in this journal’s issue on SRHR in conflict and crisis settings (Vol 16 Number 31) which includes perspectives and analysis that remain relevant today.^§ With an increasing number of people seeking refuge in Europe, attending to the sexual and reproductive health needs of this population is a matter of urgency. Keygnaert and Guieu highlight the increased vulnerability of refugees and asylum seekers, even after their arrival in Europe, along with the shortcomings of the EU’s legal frameworks in ensuring effective action to prevent sexual violence within EU borders, and in offering care and support for the victims. Provision of comprehensive sexual and reproductive health services is a critical response that needs to be prioritised in crisis and conflict situations.

Sexuality is political but also personal

In this journal issue, while the majority of papers focus on the political aspects of sexual rights and report on the consequences of violations of such rights, two papers, one on Ugandan women’s agency in seeking sexual pleasure by Muhanguzi and the other on black MSM in South Africa by Kiguwa, provide refreshing accounts of sexual power and pleasure in intimate partnerships, highlighting the agency of individual men and women in engaging in sexual acts to fulfil their sexual needs and desires.

However, the friction between the personal, social and political spheres surrounding sexuality cannot be overlooked. In her commentary, “The Arab Bed Spring? Sexual rights in troubled times across the Middle East and North Africa”, El Feki provides an overview of the changing attitudes towards sexuality and non-conforming sexual and gender roles in the Arab World against the backdrop of the recent political and social changes in the region, which have opened new spaces, however tentative.

An enabling political environment and a protective legal framework are key prerequisites for the realisation of sexual rights; however, they are not sufficient on their own. Not only is it crucial that laws and policies are implemented and enforced -- which is a great challenge in itself – but social, religious and cultural values and ideas must be subject to change for the advancement and fulfilment of sexual rights. This is illustrated by several papers in this issue, such as studies by Poteat et al as well as Stahlman et al which present accounts of discrimination and physical and sexual violence against LGBTI people in Lesotho by health care workers, family members and other members of the community, and their detrimental effects on health and well-being, including heightened HIV risks. This high level of stigma persists despite the fact that same-sex acts have been decriminalised in Lesotho since 2012.

Cultural and social transformations are slow processes, which can partly be sought through comprehensive sexuality education of the youth. But sexuality education is often subject to opposition and resistance both by parents and schools as well as states. Paiva and Silva describe the use of a multi-cultural human rights approach to sexuality education, focusing on prevention of unintended pregnancy and HIV in Brazil, in order to tackle resistance to sexuality education against the backdrop of dominant conservative attitudes in the country. Macintyre et al in their paper present the attitudes towards sexuality, sexual diversity and gender equality among adolescents in Santiago, Chile. Although the study shows a greater “acceptance” and “tolerance” of sexual and gender diversity among youth in this setting, it also demonstrates how deep-rooted the traditional values of gender roles and heteronormativity are. Comprehensive sexuality education, within a human rights framework, is key to reinforce the importance of acceptance and endorsement of sexual diversity and of striving for gender equality. It is instrumental in offering a safe and supportive environment for young people to explore their sexual orientation; empowering girls (and boys) to embrace and demand equal respect for their sexual choices, preferences and behaviours, and equal protection from sexual coercion and violence; and finally in helping them to make informed decisions on responsible and healthy sexual relationships.

Next issue

As Richard Parker notes, “the road to sexual health [and reproductive health, I would add] is underpinned by the struggle for sexual rights”.²⁰ This issue of the RHM journal has emphasised the centrality of sexual rights to the achievement of broader health and development. The analysis and perspectives as well as evidence from different parts of the world presented in this issue deepen our understanding of the nexus between sexual health and human rights and underline that “sexuality cannot be understood apart from social, political, and economic structures or without reference to the cultural and ideological discourses that give sexuality meaning”.²⁰

Building on this, the next journal issue will focus on sexual- and gender-based violence as barriers to sexual and reproductive health and rights. We hope submissions will address the widest range of subjects, broadening our knowledge about the root causes and implications of violence against women and shedding further light on under-studied and under-represented issues including violence against trans- and non-gender conforming people, the male experience of surviving sexual violence, and the struggle for bodily integrity and autonomy of intersex people.

Figure 1 Gay pride rally, Lake Victoria, Uganda, 2013.

Acknowledgments

I would like to express my gratitude to Eszter Kismödi, Christina Zampas, Pathika Martin and Lisa Hallgarten for reviewing and providing feedback on this editorial.

Notes

‡ Trans Murder Monitoring (TMM) project.

* http://www.nytimes.com/2014/04/26/opinion/transgender-rights-in-india.html?_r=0.

§ http://www.rhmelsevier.com/issue/S0968-8080(08)X1631-3.

† https://www.hrw.org/news/2015/08/10/dispatches-nepals-transgender-passport-progress.