Gender Orientation in General Antidiscrimination Statutes

Pages121-123

Page 121

The Issue

Men who have sex with men (MSM) are at high risk of contracting HIV, but their opportunities for protection from infection may be reduced by societal discrimination. MSM may hide their sexual orientation, fearing discrimination from their community, government, employers, insurers, and others. As a result, they are less likely to seek HIV prevention, diagnosis, and treatment services. Improving protections from discrimination on the basis of sexual orientation may alleviate the need for secrecy and make it easier to reach the MSM population with HIV prevention efforts.

Legal and Policy Considerations

Legal antidiscrimination protections for persons on the basis of their sexual orientation vary internationally in theory and practice. Some countries (e.g., South Africa, Australia, and countries in the EU-see below) provide such protections via constitutional or statutory laws. These laws are consistent with human rights norms. Several international human rights documents, such as the International Covenant on Civil and Political Rights (ICCPR), mention or have been interpreted to include antidiscrimination protections based on sexual orientation. The Supreme Court of India has ruled that in the absence of appropriate national legislation, international treaties signed by India (including the ICCPR) have the force of law. In India and other countries with similar rulings, the ICCPR and other human rights documents may thus provide antidiscrimination protections for individuals with respect to gender orientation and their HIV-positive status. Still many countries do not provide substantive legal protections from discrimination based on sexual orientation. As well, human rights norms in many countries may not be applied so as to result in meaningful protections.

Practice Examples

The 1994 case, Toonen vs. Australia, led the U.N. Human Rights Committee (now the U.N. Human Rights Council) to conclude that the references to "sex" in Articles 2, paragraph 1, (nondiscrimination) and 26 (equality before the law) of the 1966 International Covenant on Civil and Political Rights (ICCPR) should be interpreted to include sexual orientation:

Article 2- (1) Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the...

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