Law and Policy

In recent years, violence and discrimination against lesbian, gay, bisexual, and transgender (LGBT) persons has garnered increased attention from non-governmental organizations (NGOs) and governing bodies. The European Union (EU) has adopted directives that oblige member states to create anti-discrimination laws in employment and has funded campaigns committed to combating employment discrimination.[1] The EU has also published a toolkit which lists primary areas of focus in LGBT rights and encourages greater EU involvement in the promotion of human rights for LGBT people.[2] Both the Parliamentary Assembly and the Committee of Ministers of the Council of Europe have made recommendations to states encouraging the elimination of discrimination and the progress towards equal rights.[3]

The United Nations (UN) was fairly quiet on issues of sexual orientation and gender identity until the introduction of the Brazilian Resolution in 2003, which called on states to “promote and protect the human rights of all persons regardless of their sexual orientation.” However, consideration of the resolution was postponed by the Commission on Human Rights.[4][5] A joint statement condemning human rights violations against LGBT people and urging states to protect LGBT people and human rights workers was signed by more than sixty UN member states in 2008[6] and in 2011, the UN passed its first resolution recognizing the human rights violations endured by LGBT people around the world and commissioned a study to document discriminatory laws and violence in all regions of the world.[7]

In 2007, the Yogyakarta Principles were drafted by a group of human rights experts, many of whom were associated with UN human rights bodies.[8] These principles apply accepted human rights principles to all sexual orientations and gender identities, including the right to equality, life, privacy, and adequate standards of living.[9] The Principles address violence against LGBT people specifically in Principle 5, which encourages states to impose criminal penalties for all violence against LGBT people, including familial violence.[10] While the Yogyakarta Principles have been criticized by activists as incomplete, the document has the potential to influence future UN resolutions and legislation in many countries.[11] The Principles have been presented to many diplomatic representatives and have been cited by a number of countries, UN officials, and Council of Europe reports.[12]

LGBT persons are often subjected to discriminatory policies as punishment for their sexual orientations or gender identity. Transgender prostituted people are targeted by police with arbitrary fines for infractions such as “obstructing traffic,” even in countries where prostitution is legal.[13] A Turkish police document reviewed by Amnesty International allowed police officers to search any transgender person they saw, even when no crime had been committed. The police were authorized to “prevent inconvenience caused by people identified as transvestites.”[14] In Turkey, transgender prostituted women are sometimes victims of police violence. Human Rights Watch reported cases of transgender prostitutes violently forced to perform sexual acts upon police officers posing as clients.[15]

[1] ILGA Europe, European Union and LGBT Rights (last visited Aug. 1, 2011); Council Decision No 1672/2006/EC Establishing a Community Programme for Employment and Social Solidarity Progress, 2006 O.J. (L 315).

[2] Toolkit to Promote and Protect the Enjoyment of All Human Rights by Lesbian, Gay, Bisexual and Transgender (LGBT) People, Council of the European Union (2010).

[3] See, for example, Council of Europe Commissioner for Human Rights, Human Rights and Gender Identity at 44-45 (2009) (PDF, 52 pages); EUR. CONSULT. ASS., Resolution 1728, (2010); EUR. CONSULT. ASS., Resolution 1915, (2010).

[4] Commission on Human Rights Draft Resolution, U.N. Doc. E/CN.4/2003/L.92 (Apr. 17, 2003).

[5] Commission on Human Rights Decision 2003/118 (Apr. 25, 2003).

[6] Joint Statement on Sexual Orientation, Gender Identity and Human Rights at United Nations, (2008).

[7] Human Rights Council Draft Resolution, U.N. Doc. A/HRC/17/L.9/Rev.1 (June 15, 2011).

[8] Michael O’Flaherty & John Fisher, Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogykarta Principles, 8:2 HUM. RTS. L. REV. 207, 233, (2008) (PDF, 42 pages).

[9] The Yogyakarta Principles.

[10] Id.

[11] Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogykarta Principles, 8:2 HUM. RTS. L. REV. 207, 235-236 (2008).

[12] Id. at 6.

[13] See, for example, Amnesty International, Not an Illness Nor a Crime: Lesbian, Gay, Bisexual and Transgender People in Turkey Demand Equality at 14-15(2011) (PDF, 50 pages).

[14] Id. at 15.

[15] Human Rights Watch, We Need a Law for Liberation: Gender, Sexuality, and Human Rights in a Changing Turkey at 7 (2008).