HUMAN RIGHTS AND SEXUAL ORIENTATION IN INTERNATIONAL LAW

ABSTRACT

International law attention to lesbians, gay men and transgendered individuals begins with the decision of the European Court of Human Rights striking down the sodomy law in Northern Ireland in the Dudgeon case in 1981. Since that time the decisions of the European Court of Human Rights have all focused on the right to “respect for private life”, though the Lustig-Prean decision of 1999 used that right to prohibit employment discrimination in the military.

While the rulings of the separate European Court of Justice have been slow to evolve, there have been significant developments in the Council of Europe and the European Union, notably the provision in the Treaty of Amsterdam which has led to the requirement of anti-discrimination laws among member States.

In the United Nations system the decision of the U.N. Human Rights Committee in Toonen v. Australia was the same kind of breakthrough, in an almost identical case, as was the Dudgeon decision. Additionally it ruled that discrimination on the basis of “sexual orientation” was a form of discrimination on the basis of sex. The decision has resulted in the Human Rights Committee questioning various states, including the United States, about their criminal laws and their provisions against discrimination. In the Charter bodies of the United Nations, such as the Commission on Human Rights, there has been no real progress. In the large human rights conferences, issues of sexual orientation were raised at the Vienna World Conference on Human Rights, in the IV World Conference on Women in Beijing and in the Beijing+5 meeting at the General Assembly in 2000.

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