![Sample our Law journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5942/TOC-Subject-Sample-2021-Law.jpg"})
ABSTRACT
UN treaty bodies have increasingly highlighted the need to end discrimination and violence against lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons. While these recommendations are relevant to children, they take on an adult's perspective and therefore fail to take particular regard to how the situation for children may differ from that of adults. This article provides a children's perspective on LGBTI rights. It presents and discusses relevant articles of the Convention on the Rights of the Child in addition to jurisprudence of the Committee on the Rights of the Child, with a focus on the rights to non-discrimination, identity, self-determination, and health.
Notes
1Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 (CRC).
2Some of what is said below would be relevant to queer and questioning children as well. See M A Fineman, ‘Vulnerability, Resilience, and LGBT Youth’ (2014) 14(292) Legal Studies Research Paper, Emory University School of Law, 101–122.
3 Toonen v Australia Communication No 488/1992 (1994), UN Doc CCPR/C/50/D/488/1992.
4CAT, General Comment No 2 (2008) Implementation of article 2 by States parties, CAT/C/GC/2, para 21.
5CESCR, General Comment No 20 (2009) Non-discrimination in economic, social and cultural rights (art 2, para 2, of the International Covenant on Economic, Social and Cultural Rights) 2 July 2009, E/C.12/GC/20, para 32.
6CEDAW, General recommendation No 28 (2010) on the core obligations of States parties under article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, CEDAW/C/GC/28, para 18.
7See OHCHR (2011) (n 54 below).
8I am indebted to Anders Sondrup for ideas and discussions while I supervised his MA thesis: Sondrup, Anders Skjellerudsveen, Har barnet en rett til rett kjønn? En vurdering av hvorvidt barnet har krav på pubertetsutsettende og femininiserende eller maskuliniserende hormonbehandling ved kjønnsinkongruens [Unofficial English translation: Does the child have a right to the right gender/sex?], master thesis, Faculty of Law, University of Oslo (2015), available at: https://www.duo.uio.no/bitstream/handle/10852/45651/232.pdf?sequence=1&isAllowed=y. The thesis only exists in Norwegian.
9South Sudan and Somalia both ratified the Convention in 2015.
10Optional Protocol to the Convention on the Rights of the Child on a communications procedure, adopted 19 December 2011, entered into force 14 April 2014. UN Doc A/RES/66/138 (3rd Optional Protocol).
11Committee on the Rights of the Child, Treaty-specific guidelines regarding the form and content of periodic reports to be submitted by States parties under article 44 , paragraph 1 (b), of the Convention on the Rights of the Child (rev 2015), 3 March 2015, UN Doc CRC/C/58/Rev.3, paras 23–27.
12 General Comment No 4 (2003) Adolescent health and development in the context of the Convention on the Rights of the Child, 1 July 2003, CRC/GC/2003/4, para 6.
13 General Comment No 3 (2003) HIV/AIDS and the rights of the child, 17 March 2003, CRC/GC/2003/3, para 60.
14Ibid, para 72(g).
15Ibid, para 60.
16 General Comment No 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (art 24), 17 April 2013, CRC/C/GC/15, para 8.
17 General Comment No 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art 3, para 1), 29 May 2013, CRC/C/GC/14, para 55.
18 General Comment No 16 (2013) on State obligations regarding the impact of business on children's rights, 17 April 2013, CRC/C/GC/16.
19 General comment No 17 (2013) on the right of the child to rest, leisure, play, recreational activities, cultural life and the arts (art 31), 17 April 2013, CRC/C/GC/17, paras 48–53.
20UN Committee for the Elimination of All Forms of Discrimination against Women and UN Committee on the Rights of the Child, Joint general recommendation/general comment No 31 of the Committee on the Elimination of Discrimination against Women and No 18 of the Committee on the Rights of the Child on harmful practices, 5 November 2014, CEDAW/C/GC/31-CRC/GC/18, paras 6 and 14.
21UN Committee on the Rights of the Child, Concluding observations: Malaysia, 25 June 2007, CRC/C/MYS/CO/1, para 31.
22UN Committee on the Rights of the Child, Concluding observations: China (including Hong Kong and Macau Special Administrative Regions), 24 November 2005, CRC/C/CHN/CO2, paras 31 and 33.
23 Concluding observations: New Zealand, 11 April 2011, CRC/C/NZL/CO/3–4, para 25.
24In addition to reviewing reports under the CRC itself, the Committee also reviews reports under the two first Optional Protocols, Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict; and Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography.
25 Concluding observations on the combined third, fourth and fifth periodic reports of Hungary, 14 October 2014, CRC/C/HUN/CO/3–5, paras 19–20; Concluding observations on the second periodic report of the Holy See, 25 February 2014, CRC/C/VAT/CO/2, paras 25–26; Concluding observations on the combined fourth and fifth periodic reports of the Russian Federation, 25 February 2014, CRC/C/RUS/CO/4–5, paras 24–25; Concluding observations of the Committee on the Rights of the Child, Kyrgyzstan, 7 July 2014, CRC/C/KGZ/CO/3–4, paras 18–19; Concluding observations on the combined third and fourth periodic report of Portugal, 25 February 2014, CRC/C/PRT/CO/3–4, paras 25–26(a); and Concluding observations on the combined third to fifth periodic reports of the Bolivarian Republic of Venezuela, 13 October 2014, CRC/C/VEN/CO/3–5, paras 27–28(c).
26 Concluding observations: Russia (n 25), para 24.
27Ibid, para 25.
28 Concluding observations: Holy See (n 25), paras 25–26.
29Eg Concluding observations: Kyrgyzstan (n 25), paras 18 and 19.
30UNGA, Strengthening and enhancing the effective functioning of the human rights treaty body system, 9 April 2014, Res 68/268, as a result of the Treaty Body Strengthening process.
31 General Comment No 14 (n 17), para 55.
32Hodgkin and Newell, Implementation Handbook for the Convention on the Rights of the Child, CD-ROM (UNICEF, 2007) 115; Melinda Jones, ‘Adolescent Gender Identity and the Courts', in Michael Freeman (ed), Children's Health and Children's Rights (Martinus Nijhoff Publishers, 2006) 121, 148 at 129 regarding gender identity; and Sondrup (n 1) 39.
33Sondrup (n 8) 39.
34According to Sondrup (n 8) 39, the child's right to identity implies a right to treatment, while the content of that right is to be found in the right to health and to development.
35Constitution of the World Health Organization (entry into force 7 April 1948) 9 UNTS 3, § Preamble.
36 General Comment No 15 (n 16) para 4.
37Ibid, para 23.
38Ibid, para 24.
39Ibid, para 25.
40More in Sondrup (n 8) 42–43, with reference to Peleg, Noam (2012), The Child's Right to Development, A thesis submitted to University College London for the degree of Doctor of Philosophy, November 2012, http://discovery.ucl.ac.uk/1384778/4/1384778_Peleg-The_Child_Right_to_Development.pdf, 95–96 on the connection between article 24 and the right to development under article 6.
41 General Comment No 15 (n 16) para 31.
42 General Comment No 4 (n 12).
43 General Comment No 14 (n 17) para 94.
44Ibid and Sondrup (n 8) 68–78.
45L Brinkmann, K Schuetzmann and H Richter-Appelt, ‘Gender Assignment and Medical History of Individuals with Different Forms of Intersexuality: Evaluation of Medical Records and the Patients’ Perspective’ (2007) 4(4) J of Sexual Med, 964–980; UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Report to the General Assembly (on informed consent and right to health) 2009, A/64/272, para 49; Swiss National Advisory Commission on Biomedical Ethics NEK-CNE, On the Management of Differences of Sex Development: Ethical Issues Relating to ‘Intersexuality' (Berne, 2012) 8 and 13; WHO, ‘Sexual Health, Human Rights and the Law' (2015), last accessed 2 December 2015 at http://apps.who.int/iris/bitstream/10665/175556/1/9789241564984_eng.pdf, 26, para 3.4.9; Council of Europe, ‘Human Rights and Intersex People', Issue paper published by the Council of Europe Commissioner for Human Rights (2015), last accessed 2 December 2015 at https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=2768767&SecMode=1&DocId=2282716&Usage=2, 20–22; UNFE, ‘Free and Equal, United Nations for LGBT Equality, Fact Sheet Intersex' (undated) last accessed 2 December 2015 at https://www.unfe.org/system/unfe-65-Intersex_Factsheet_ENGLISH.pdf; Swiss NGO Report 2014: Intersex Genital Mutilations. Human Rights Violations of Children with Variations of Sex Anatomy, compiled by: Zwischengeschlecht.org (Human Rights NGO), Intersex.ch (Peer Support Group) and Verein SI Selbsthilfe Intersexualität (Parents Peer Support Group), the Report was submitted as a shadow report to the CRC in 2014; and Katrina Karkazis and Wilma C Rossi, ‘Ethics for the Pediatrician: Disorders of Sex Development: Optimizing Care' (2010) 31 Pediatr. Rev, e82–e85, e84, 1st column.
46Jones (n 32); and Swiss National Advisory Commission (n 45) 14. See also other references in previous footnote.
47The Committee could have raised this issue with Germany in January 2014 based on the report from the German Institute for Human Rights: Suggested topics to be taken into account for the preparation of a list of issues by the Committee on the Rights of the Child on the implementation of the Convention on the Rights of the Child in Germany (2013), last accessed 2 December 2015 at http://tbinternet.ohchr.org/Treaties/CRC/Shared%20Documents/DEU/INT_CRC_IFN_DEU_15945_E.pdf, para 2(b). However, the issue was overlooked, for which the Committee has later been rightfully criticised by the Institute (oral exchange).
48CRC Committee, Concluding observations on the combined second to fourth periodic reports of Switzerland, 26 February 2015, CRC/C/CHE/CO/2–4, para 42(b).
49Ibid, para 43(b).
50 Concluding observations of the Committee on the Elimination of Discrimination against Women: Germany, 12 February 2009, CEDAW/C/DEU/CO/6, para 61.
51 Concluding observations of the Committee on the Elimination of Discrimination against Women: Costa Rica, 2 August 2011, CEDAW/C/CRI/CO/5–6; Concluding observations to Costa Rica, para 40.
52 Concluding observations of the Committee against Torture: Germany, 12 December 2011, CAT/C/DEU/CO/5, para 20.
53 Concluding observations to Switzerland (n 48), para 43(b).
54OHCHR, Report of the Office of the United Nations High Commissioner for Human Rights on violence and discrimination against individuals based on their sexual orientation and gender identity (2011) A/HRC/19/41; and OHCHR, Report of the Office of the United Nations High Commissioner for Human Rights on discrimination and violence against individuals based on their sexual orientation and gender identity (2015) A/HRC/29/23.
55UNFE (n 45).
56OHCHR (2015) (n 54), para 6.
57Joint statement Discriminated and made vulnerable: Young LGBT and intersex people need recognition and protection of their rights by the Committee and other UN and regional bodies for the International Day against Homophobia, Biphobia and Transphobia, 17 May 2015, http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15941&LangID=E#sthash.aiEvQmvg.dpu
58OHCHR (2011) (n 54), para 57.
59OHCHR (2015) (n 54), para 54.
60Joint statement (n 57).