BORN FREE

AND EQUAL
Sexual Orientation, Gender Identity
and Sex Characteristics
in International Human Rights Law
Second Edition
© 2019 United Nations
Second edition: HR/PUB/12/06/Rev.1

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First edition: HR/PUB/12/06

© 2012 United Nations
All worldwide rights reserved
Second Edition

New York and Geneva, 2019

CONTENTS

FOREWORD............................................................................................... vii
INTRODUCTION.......................................................................................... 1
DEFINITIONS............................................................................................... 5
SUMMARY OF RECOMMENDATIONS............................................................ 7
CORE LEGAL OBLIGATIONS OF STATES WITH RESPECT TO
PROTECTING THE HUMAN RIGHTS OF LGBTI PERSONS.................................. 9

I. PROTECT INDIVIDUALS FROM VIOLENCE............................................. 12

A. POSITIONS TAKEN BY UNITED NATIONS HUMAN RIGHTS
MECHANISMS................................................................................. 13
B. TARGETED KILLINGS.......................................................................... 14
C. OTHER VIOLENCE, INCLUDING SEXUAL VIOLENCE............................ 17
D. INCITEMENT TO VIOLENCE AND HATE SPEECH................................. 21
E. ASYLUM CLAIMS.............................................................................. 23
F. CONCLUSION................................................................................. 25

II. PREVENT TORTURE AND CRUEL, INHUMAN AND DEGRADING

TREATMENT OR PUNISHMENT............................................................ 26
A. POSITIONS TAKEN BY UNITED NATIONS HUMAN RIGHTS
MECHANISMS................................................................................. 27
B. ARREST AND DETENTION................................................................. 28
Physical and sexual violence............................................................... 29
Anal examinations............................................................................. 31
Solitary confinement.......................................................................... 32
Respecting the identity of transgender persons in detention..................... 33
Monitoring and oversight................................................................... 33
C. MEDICAL SETTINGS.......................................................................... 34
Surgery and other interventions on intersex children and adults.............. 35
Forced and otherwise involuntary sterilization and treatment of
transgender people........................................................................... 37
So-called “conversion therapies”......................................................... 38
D. CONCLUSION................................................................................. 39

Sexual Orientation, Gender Identity and Sex Characteristics iii

III. REPEAL DISCRIMINATORY LAWS......................................................... 40
A. POSITIONS TAKEN BY UNITED NATIONS HUMAN RIGHTS
MECHANISMS................................................................................. 41
B. CRIMINALIZATION OF SAME-SEX RELATIONS..................................... 42
C. DEATH PENALTY............................................................................... 46
D. CRIMINALIZATION OF LESBIAN AND BISEXUAL WOMEN................... 48
E. CRIMINALIZATION OF TRANSGENDER PEOPLE................................... 48
F. LAWS ON “DEBAUCHERY”, “VAGRANCY” AND SEX WORK USED
TO TARGET LGBT PEOPLE.................................................................. 50
G. CONCLUSION................................................................................. 51

IV. PROHIBIT AND ADDRESS DISCRIMINATION.......................................... 52

A. POSITIONS TAKEN BY UNITED NATIONS HUMAN RIGHTS
MECHANISMS................................................................................. 54
B. PARTICULAR AREAS OF CONCERN.................................................... 55
C. DISCRIMINATION ON MULTIPLE GROUNDS....................................... 56
D. HEALTH............................................................................................ 56
E. PATHOLOGIZATION.......................................................................... 60
F. EDUCATION..................................................................................... 61
G. EMPLOYMENT.................................................................................. 63
H. HOUSING........................................................................................ 65
I. RECOGNITION OF GENDER IDENTITY............................................... 67
J. ACCESS TO JUSTICE AND REMEDY................................................... 69
K. FAMILIES AND COMMUNITY............................................................. 72
L. RECOGNITION OF RELATIONSHIPS................................................... 73
M. POLITICAL PARTICIPATION AND CONSULTATION................................ 75
N. CONCLUSION................................................................................. 77

iv BORN FREE AND EQUAL

V. RESPECT FREEDOM OF EXPRESSION, PEACEFUL ASSEMBLY AND
ASSOCIATION.................................................................................. 78
A. POSITIONS TAKEN BY UNITED NATIONS HUMAN RIGHTS
MECHANISMS................................................................................. 79
B. LEGAL RESTRICTIONS ON FREEDOM OF EXPRESSION,
ASSOCIATION AND PEACEFUL ASSEMBLY......................................... 79
C. OTHER DISCRIMINATORY RESTRICTIONS........................................... 81
D. PROTECTION FROM ATTACKS AND THREATS..................................... 83
E. ONLINE RESTRICTIONS..................................................................... 85
F. RESTRICTIONS ON FUNDING OF CIVIL SOCIETY ORGANIZATIONS.... 86
G. CONCLUSION................................................................................. 87

VI. CONCLUSION.................................................................................. 89

ADDITIONAL UNITED NATIONS HUMAN RIGHTS RESOURCES........... 90

Sexual Orientation, Gender Identity and Sex Characteristics v

FOREWORD

“All human beings are born free and equal in dignity and rights.” This affirmation
in the Universal Declaration of Human Rights is the cornerstone of international
human rights law, and at the heart of the mission of the United Nations.

Simply put, human rights are for everyone, without exception: lesbian, gay,
bisexual, trans and intersex (LGBTI) people are just as entitled to protection,
respect and fulfilment of their human rights as everyone else, including protection
from discrimination, violence and torture.

Despite these universal standards, for more than twenty-five years the United
Nations, and regional and national human rights bodies, have documented
widespread violations and abuses targeting LGBTI people in all regions of the
world. Such instances include brutal beatings, sexual violence and killings,
incitement to hatred, criminalization, arbitrary detention and imprisonment,
abuses in detention and medical settings, widespread stigma, harassment,
bullying and discrimination at work and at home, as well as in education,
health, housing, and accessing public services.

These horrific human rights violations must end. All United Nations Member
States have committed to upholding universal human rights standards, including
through ratifying legally binding treaties. The United Nations Human Rights
Council has expressed concern over violence and discrimination based on
sexual orientation and gender identity multiple times and in 2016 appointed an
Independent Expert to investigate and report on the issue. A sizeable majority
of Member States have also made specific commitments to combat violence and
discrimination against LGBTI people as part of the Universal Periodic Review.

Recent years have seen uneven progress – advances for lesbian, gay and
bisexual persons in a growing number of countries, more limited progress on
the rights of trans people, increased awareness but few concrete measures
to protect the rights of intersex people. In some countries there have been
worrying setbacks, including increases in hate speech, expanded discriminatory
legislation, and an expansion of arbitrary arrests, violence and discrimination.

Sexual Orientation, Gender Identity and Sex Characteristics vii

The first edition of this publication was issued in 2012, at a time of growing
awareness across the United Nations and among its Member States of human
rights violations against LGBT persons. This revised and updated edition takes
into account developments since 2012, including decisions by the United
Nations, and regional and national human rights bodies. It sets out the source
and scope of the legal obligations of Member States in respect of the rights
of LGBTI people, with reference to international human rights standards and
guidance issued by authoritative bodies. It also integrates, for the first time,
recommendations in respect of the rights of intersex persons.

I am confident that this revised edition will assist States, as well as national
human rights institutions, civil society organizations and other stakeholders in
joining forces to end violence and discrimination based on sexual orientation,
gender identity and sex characteristics.

Michelle Bachelet
United Nations High Commissioner
for Human Rights

viii BORN FREE AND EQUAL

INTRODUCTION

“So long as people face criminalization, bias and violence based on

their sexual orientation, gender identity or sex characteristics, we must
redouble our efforts to end these violations.”
United Nations Secretary-General António Guterres,
25 September 2018

The struggle to bring greater international scrutiny to the human rights plight
of lesbian, gay, bisexual and transgender (LGBT1) people reached a landmark
moment in 2016 with the decision of the United Nations Human Rights Council
to create a dedicated special procedures mandate – an Independent Expert
on protection from violence and discrimination based on sexual orientation
and gender identity. The Independent Expert has many tasks, including
investigating and reporting on human rights violations against LGBT people,
assessing compliance with applicable international human rights instruments in
this context, and making recommendations to States and other stakeholders as
appropriate.2 The mandate builds on the work of existing United Nations human
rights mechanisms, including special procedures and treaty bodies, the majority
of which have addressed these issues to some extent in the context of their own,
respective mandates.

The establishment of this mandate follows several years of increasing interest

across the United Nations human rights system on the issue of human rights,
sexual orientation and gender identity. In 2011 and 2014, the Human Rights
Council passed resolutions in which it expressed concern regarding violence
and discrimination against LGBT persons and requested reports from the
High Commissioner for Human Rights. The High Commissioner’s two reports,
published in 2012 and 2015 respectively,3 pointed to a pattern of systematic
1
The terms lesbian, gay, bisexual and transgender, often abbreviated to ‘LGBT’, are used throughout the
publication. These terms have global resonance, though, across cultures and languages, other terms
(including queer, hijra, meti, lala, skesana, motsoalle, mithli, kuchu, kawein, travesti, muxé, fa’afafine,
fakaleiti, hamjensgara, and Two-Spirit) are also used to describe non-heterosexual behaviour, expressions,
identities or relationships, and gender identities and expressions that differ from the sex assigned at birth,
as well as non-binary gender expressions and identities.
2
See Human Rights Council resolution 32/2 on protection against violence and discrimination based on
sexual orientation and gender identity, 2016, para. 3 and
www.ohchr.org/en/issues/sexualorientationgender/pages/index.aspx.
3
See reports of the United Nations High Commissioner for Human Rights on “Discriminatory Laws and
Practices and Acts of Violence against Individuals Based on their Sexual Orientation and Gender Identity”
(A/HRC/19/41), 2011, and “Discrimination and violence against individuals based on their sexual
orientation and gender identity” (A/HRC/29/23), 2015.

Sexual Orientation, Gender Identity and Sex Characteristics 1

violence and discrimination directed at LGBTI4 people in all regions – from
discrimination in employment, health care and education, to criminalization and
targeted physical attacks, even killings. The reports contain recommendations
addressed to States designed to strengthen protection of the human rights of
LGBTI persons.

There has been an increase in awareness and attention paid to the human rights of
intersex people over the last few years. A milestone was celebrated in September
2015, with the first United Nations Expert meeting on ending human rights violations
against intersex persons, and a joint call by United Nations and regional human
rights experts in October 2016 for governments to prohibit human rights violations
committed against intersex children.5 The United Nations special procedures and
treaty bodies are increasingly raising concerns about abuses against intersex
people, and recommending that States address these issues.

The legal obligations of States to safeguard the human rights of LGBTI people
are well established in international human rights law on the basis of the
Universal Declaration of Human Rights, international human rights treaties,
and customary international law. All people, irrespective of sexual orientation,
gender identity or sex characteristics,6 are entitled to enjoy the protections
provided by international human rights law, including rights to life, security
of person and privacy, the right to be free from torture, arbitrary arrest and
detention, the right to be free from discrimination, equality before the law, and
the right to freedom of expression, association and peaceful assembly.

The purpose of this publication is to set out the core obligations that States have
towards LGBTI persons, and to describe how United Nations mechanisms have
applied international law in these contexts. For more than two decades, United
Nations human rights treaty bodies and special procedures have documented
violations of the human rights of LGBT, and more recently, intersex people, and
analysed State compliance with international human rights law. The sections that
follow summarize their findings and advice to help States take the necessary
steps to meet their fundamental human rights obligations.
4
This publication uses both the abbreviations LGBT and LGBTI as accurately as possible, depending on
the specific references. The abbreviation LGBTI has been avoided where it would not be applicable or
accurate to use in reference to intersex people.
5
United Nations and regional human rights experts, “End violence and harmful medical practices on intersex
children and adults,” 24 October 2016, available at
www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20739&LangID=E.
6
Member States, United Nations entities, regional mechanisms and civil society organizations use different
terms to describe the ground of discrimination on the basis of which intersex persons face human rights
violations, including “sex characteristics”, “intersex status” and “bodily diversity”. This publication
generally uses the term “sex characteristics”.

2 BORN FREE AND EQUAL

The publication consists of five core sections based on issues that have appeared
most frequently in the work of United Nations human rights experts to date. Each
section sets forth a State obligation, the relevant international human rights law,
and the views of human rights treaty bodies and special procedures. Excerpts
from their reporting give examples of the kinds of abuses experienced and
paint a broad picture of widespread conditions of violence and discrimination.
Each section concludes with a summary of recommendations to States.

This is a revised edition, updated to take into account developments in the

jurisprudence and recommendations of United Nations human rights mechanisms
since the publication of the first edition by the Office of the United Nations High
Commissioner for Human Rights (OHCHR) in 2012. A sister publication, Living
Free and Equal, examines State practices in the implementation of the human
rights of LGBTI people.7

The protection of people on the bases of sexual orientation, gender identity and
sex characteristics does not require the establishment of new or special rights
for LGBTI people. Rather, it requires enforcement of existing rights, including the
universally applicable guarantee of non-discrimination. The prohibition against
discrimination on the bases of sexual orientation, gender identity and sex
characteristics is not limited to international human rights law. Courts in many
countries have frequently held that such discrimination also violates domestic law.

These issues have been taken up by most United Nations agencies8 and
regional human rights systems, including the Inter-American Commission on
Human Rights, the African Commission on Human and Peoples’ Rights, and the
Council of Europe. This has resulted in increased collaboration between United
Nations and regional experts on this topic, emphasizing common normative
approaches, and sharing good practices on how to promote and protect the
human rights of LGBTI people.9 Addressing these concerns is not only a legal
obligation – more than one hundred and fifteen States, a significant majority
of the membership of the United Nations, have made voluntary commitments to
address violence and discrimination based on sexual orientation and gender
identity in the context of the Universal Periodic Review.
7
OHCHR, Living Free and Equal: What States are doing to tackle violence and discrimination against
lesbian, gay, bisexual, transgender and intersex people (New York and Geneva, United Nations, 2016).
Available from: www.ohchr.org/Documents/Publications/LivingFreeAndEqual.pdf.
8
Joint United Nations statement on ending violence and discrimination against LGBTI persons, 2015,
available from: www.ohchr.org/EN/Issues/Discrimination/Pages/JointLGBTIstatement.aspx.
9
See, for example, “Ending violence and other human rights violations based on sexual orientation and
gender identity: A joint dialogue of the African Commission on Human and Peoples’ Rights, Inter-American
Commission on Human Rights, and United Nations”, 2016, available at www.ohchr.org/Documents/
Issues/Discrimination/Endingviolence_ACHPR_IACHR_UN_SOGI_dialogue_EN.pdf.

Sexual Orientation, Gender Identity and Sex Characteristics 3

The principle of non-discrimination is cross-cutting and the obligations on the
part of States are immediate and inescapable. Simply put, people may not
be discriminated against in the enjoyment of rights on the bases of sexual
orientation, gender identity or sex characteristics. As the High Commissioner
has stated, “The struggle for the rights of LGBTI people is a core part of the
human rights struggle.”10

10
Remarks by Michelle Bachelet, United Nations High Commissioner for Human Rights, to the LGBTI
Core Group High-level Event on Violence against LGBTI Persons, United Nations Headquarters,
25 September 2018.

4 BORN FREE AND EQUAL

DEFINITIONS11

Gender identity

Gender identity reflects a deeply felt and experienced sense of one’s own
gender. Most people have a gender identity, which is part of their overall
identity. A person’s gender identity may or may not be aligned with the
sex assigned to them at birth. Trans and transgender are both umbrella
terms used to describe people with a wide range of gender expressions
and identities – including transsexual people, people who cross-dress,
people who identify as third gender, people who identify outside of the
male/female binary, and others whose appearance and characteristics
are perceived as gender atypical and whose sense of their own gender
is different to the sex that they were assigned at birth. Some transgender
people seek surgery or take hormones to bring their body into alignment
with their gender identity; others do not. Trans people may have any sexual
orientation and sex characteristics. Cisgender (sometimes shortened to
“cis”) is a term used to describe people whose sense of their own gender is
aligned with the sex that they were assigned at birth. Some people identify
as agender and/or reject the idea of a fixed gender identity.

Gender expression

Gender expression is the way in which we express our gender through

actions and appearance, including dress, speech and mannerisms.
A person’s gender expression is not always linked to the person’s
biological sex, gender identity or sexual orientation.

Intersex/Sex characteristics

Sex characteristics refer to each person’s physical characteristics

relating to sex, including genitalia and other reproductive anatomy,
chromosomes and hormones, and secondary physical characteristics
emerging from puberty. Intersex people are born with physical sex
characteristics that do not fit the normative definitions for male or female
bodies. For some intersex people, these are apparent at birth, while for
others they emerge later in life, often at puberty. Intersex persons may
have any sexual orientation and gender identity.

11
Adapted from the United Nations Free & Equal campaign website and factsheets (see “Additional United
Nations Human Rights Resources” in this publication).

Sexual Orientation, Gender Identity and Sex Characteristics 5

Sexual orientation

Sexual orientation refers to a person’s physical, romantic and/or

emotional attraction towards other people. Most people have a sexual
orientation, which is part of their identity. Gay men and lesbian women
are attracted to individuals of the same sex as themselves. Heterosexual
people are attracted to individuals of a different sex from themselves.
Bisexual (sometimes shortened to “bi”) people may be attracted to
individuals of the same or different sex. Lesbian, gay and bisexual
people may have any gender identity or sex characteristics.

Sexual orientation, gender identity and sex characteristics are not the same.
They are each distinct, but intersecting aspects of a person. It is important to
respect people’s choice of terms, names and pronouns to refer to themselves.

While this publication predominantly uses the terms lesbian, gay, bisexual,
transgender and intersex, many of the practices, gaps and challenges
highlighted herein are also relevant to addressing violence and discrimination
on the basis of sexual orientation, gender identity and sex characteristics
against people who identify with or use other terms.

While lesbian, gay, bisexual, transgender and intersex people face different
challenges, they share a common risk of human rights violations because
they have identities, expressions, behaviours or bodies that are perceived to
transgress dominant gender norms and roles, including the binary system of
male/female. This publication addresses their situations together.

Lesbian, gay, bisexual, trans and intersex people are diverse populations that
not only must contend with human rights violations on the basis of their sexual
orientation, gender identity and/or sex characteristics, but also face multiple
and intersecting discrimination and violence based on skin colour, ethnic
origin, sex, gender, disability, age, migratory status, family status, nationality,
religion, health status, income level, and other grounds. Indeed, abuse,
violence and discrimination become more rife where such factors interplay and
are compounded.

6 BORN FREE AND EQUAL

SUMMARY OF RECOMMENDATIONS
— Five Steps —

1. Protect LGBTI people from violence. Include sexual orientation, gender identity, and
sex characteristics as protected grounds in laws on hate crime and incitement to
violence. Ensure violent acts are properly recorded and investigated, perpetrators
prosecuted and victims provided with redress. Recognize that persecution on account
of one’s sexual orientation, gender identity, or sex characteristics may be a valid
basis for an asylum claim.

2. Prevent the torture and ill treatment of LGBTI persons, including degrading physical
examinations, so-called “conversion” therapy, forced or coerced sterilization of
transgender persons, and medically unnecessary procedures performed on intersex
children and adults without their consent. Prohibit and investigate all such acts, punish
perpetrators and provide redress to victims. Ensure places of deprivation of liberty
are regularly monitored by independent bodies. Provide appropriate training to
healthcare providers and law enforcement officers.

3. Repeal laws that criminalize LGBT persons, including laws criminalizing consensual
same-sex relations and expression of gender identity, and other laws used to harass,
arbitrarily detain, prosecute and discriminate against persons on the basis of their
actual or perceived gender identity or expression or sexual orientation. Ensure that
individuals are not arrested or detained on the basis of their sexual orientation or
gender identity or expression.

4. Prohibit and address discrimination on the basis of sexual orientation, gender identity
and sex characteristics by enacting relevant comprehensive legislation and policies.
Legally recognize same-sex couples and their children, without discrimination, and
ensure that transgender persons can obtain legal recognition of their gender identity
through a simple administrative process without abusive requirements. Ensure non-
discriminatory access to basic services, education, employment, housing and health
care. Reform outdated medical classifications that brand LGBTI people as ill or
disordered. Combat stigma and discrimination, including through training, education
and awareness-raising activities for public officials and the general public. Consult
LGBTI people on legislation and policies that affect their rights.

5. Safeguard freedom of expression, peaceful assembly and association for LGBTI

people. Any limitations on these rights must be compatible with international human
rights law, including on non-discrimination. Protect individuals who exercise their
rights to freedom of expression, and freedom of peaceful assembly and association,
including human rights defenders, from acts of violence and discrimination by public
officials and private parties and prosecute such acts when they occur.

Sexual Orientation, Gender Identity and Sex Characteristics 7

© Photo by Oliver Cole on Unsplash

8
BORN FREE AND EQUAL
CORE LEGAL OBLIGATIONS OF STATES
WITH RESPECT TO PROTECTING THE
HUMAN RIGHTS OF LGBTI PERSONS

The application of international human rights law is guided by the fundamental

principles of universality, equality and non-discrimination, as framed by Article
1 of the Universal Declaration of Human Rights, which states: “All human beings
are born free and equal in dignity and rights.”12 These core principles are
reaffirmed through international human rights covenants and treaties, many of
which contain open-ended provisions against discrimination,13 and have been
interpreted to include discrimination on the basis of sexual orientation, gender
identity, and sex characteristics.14

States are obliged to respect, protect and fulfil the human rights of all persons
within their jurisdiction, including LGBTI persons. These obligations extend to
refraining from interference in the enjoyment of rights; preventing abuses by
State agencies and officials, private corporations and individuals; monitoring,
investigating and combating such abuses when they occur; and providing
remedy to victims. States must also proactively tackle barriers to the enjoyment of
human rights, including violence and discriminatory attitudes and practices. In
this context, States should take steps to address stigma and prejudice, including
through education, training and public information campaigns. States should
also collect, analyse and publish data on violence and discrimination against
LGBTI individuals, and consult with relevant organizations representative of
LGBTI communities in shaping policy responses.

United Nations human rights experts, including a wide range of treaty

monitoring bodies and special procedures, have repeatedly drawn attention
to infringements of the rights of LGBTI persons, and provided recommendations
12
Universal Declaration of Human Rights, art. 1.
13
See, for example, International Covenant on Civil and Political Rights, art. 2(1); International Covenant on
Economic, Social and Cultural Rights, art. 2; Convention on the Rights of the Child, art. 2, International
Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, arts. 1 and 7.
14
See, for example, Committee on Economic, Social and Cultural Rights, General Comments No. 20 (E/C.12/
GC/20), 2009, para. 27, and No. 22 (E/C.12/GC/22), 2016, at paras. 9, 23; Toonen v. Australia, Human
Rights Committee, Communication No. 499/1992 (CCPR/C/50/D/499/1992), para. 8.7; Committee on
the Rights of the Child, General Comments No. 4 (CRC/GC/2003/4), 2003, para. 6, and No. 9 (CRC/C/
GC/9), 2007, para. 8; Committee against Torture, General Comments No. 2 (CAT/C/GC/2), 2008,
para. 21, and No. 3 (CAT/C/GC/3), 2012, paras. 32, 39.

Sexual Orientation, Gender Identity and Sex Characteristics 9

on how States can fulfil obligations under international human rights law in
this area.15 For example, in numerous concluding observations, the Human
Rights Committee – the body of United Nations experts tasked by States with
monitoring compliance with the International Covenant on Civil and Political
Rights – has repeatedly urged States Parties to guarantee equal rights to
all individuals, as established in the Covenant, regardless of their sexual
orientation and gender identity, and called on States to address violence and
discrimination against LGBTI people.16 The Committee on Economic, Social and
Cultural Rights, which monitors compliance with the International Covenant on
Economic, Social and Cultural Rights, has affirmed that the non-discrimination
guarantee of the Covenant includes sexual orientation and gender identity and
intersex status.17 It has reflected this in general comments relating to the rights
to sexual and reproductive health, work, water, social security, and health, as
well as in a general comment on the general meaning of the non-discrimination
guarantee.18 The Committee on the Rights of the Child also interprets the
right to non-discrimination in Article 2 of the Convention on the Rights of the
Child to include sexual orientation19, gender identity20 and intersex status21/
sex characteristics22 and has regularly addressed violations of the rights of
children who are or who are perceived to be LGBTI.23 The Committee against

15
See, for example, Committee on Economic, Social and Cultural Rights, General Comment No. 20 (E/C.12/
GC/20), 2009, para. 32; Young v. Australia, Human Rights Committee, Communication No. 941/2000
(CCPR/C/78/D/941/2000), para. 10.4; X v. Colombia, Human Rights Committee, Communication
No. 1361/2005 (CCPR/C/89/D/1361/2005), at para. 9; Committee on the Rights of the Child, General
Comment No. 13 (CRC/C/GC/13), 2011, paras. 60 and 72(g); Committee against Torture, General
Comments No. 2 (CAT/C/GC/2), 2008, para. 21, and No. 3 (CAT/C/GC/3), 2012, paras. 32 and
39; Committee on the Elimination of Discrimination against Women, General Recommendation No. 33
(CEDAW/C/GC/33), 2015, para. 8.
16
See for example, Human Rights Committee, Concluding Observations on Ecuador (CCPR/C/ECU/CO/6)
2016, paras. 11-12; Venezuela (CCPR/C/VEN/CO/4), 2015, para. 8; Austria (CCPR/C/AUT/CO/5),
2015, paras. 11-12; Republic of Korea (CCPR/C/KOR/CO/4), 2015, para. 13; Iraq (CCPR/C/IRQ/
CO/5), 2013, para. 12(d); Chile (CCPR/C/CHL/CO/5), 2009, at para. 16.
17
As indicated in the introduction, different terms are used to describe the ground of discrimination on the
basis of which intersex persons face human rights violations. This publication generally uses the term
“sex characteristics”. The Committee on Economic, Social and Cultural Rights has used the term “intersex
status” in its recent General Comments.
18
Committee on Economic, Social and Cultural Rights, General Comments No. 23 (E/C.12/GC/23), 2016,
paras. 11, 48, 65(a); No. 22 (E/C.12/GC/22), 2016, at para. 23; No. 20 (E/C.12/GC/20), 2009,
para. 32; No. 19 (E/C.12/GC/19), para. 29; No. 18 (E/C.12/GC/18), 2006, para. 12(b); No. 15
(E/C.12/2002/11), 2003, para. 13; No. 14 (E/C.12/2000/4), 2000, para. 18.
19
Committee on the Rights of the Child, General Comments No. 4 (CRC/GC/2003/4), 2003, para. 6; and
No. 3 (CRC/GC/2003/3), 2003, para. 8.
20
Committee on the Rights of the Child, General Comment No. 13 (CRC/C/GC/13), 2011, paras. 60 and
72(g); and No. 15 (CRC/C/GC/15), 2013, at para. 8.
21
Committee on the Rights of the Child, General Comment No. 20 (CRC/C/GC/20), 2016, para. 34.
22
Joint statement of United Nations and regional human rights experts, “End violence and harmful
medical practices on intersex children and adults”, 24 October 2016, available at www.ohchr.org/EN/
NewsEvents/Pages/DisplayNews.aspx?NewsID=20739&LangID=E
23
Ibid.

10 BORN FREE AND EQUAL

Torture has also underscored that State obligations under the Convention
against Torture apply to all persons regardless of sexual orientation, gender
identity or sex characteristics and reaffirmed the obligation of States to prevent
and address torture and ill-treatment against LGBTI people.24 The Committee
on the Elimination of Discrimination against Women has emphasized the
intersectionality of all forms of discrimination and has addressed human rights
violations against lesbian, bi, trans and intersex women.25 The Committee on
Migrant Workers has expressed concern about violence targeting LGBT people
and discriminatory migration provisions based on sexual orientation and
gender identity.26 The Committee on the Rights of Persons with Disabilities has
expressed concern about discrimination against LGBTI people with disabilities
and sterilization and other procedures on intersex children.27 The Committee on
the Elimination of Racial Discrimination has expressed concern with regard to
discrimination faced by LGBTI people of African descent.28

State obligations to respect, protect and fulfil the human rights of LGBTI persons
do not only derive from treaties; some of these obligations also derive from
customary international law. This includes peremptory norms of international
law, such as the absolute prohibition against torture and other acts of cruel,
inhuman, or degrading treatment or punishment.29 A number of United Nations
and other human rights experts have also elaborated the Yogyakarta Principles
on the application of international human rights law in relation to sexual
orientation, gender identity, gender expression and sex characteristics.30

The next chapters examine in greater detail the five core obligations of States
to protect, respect and fulfil the human rights of LGBTI people on the basis of
existing international human rights norms and standards.
24
Ibid. See also, Committee against Torture, General Comment No. 2 (CAT/C/GC/2), 2008, para. 21; and
General Comment No.3 (CAT/C/GC/3), 2012, paras. 32, 39.
25
Committee on the Elimination of Discrimination against Women, General Recommendations No. 28
(CEDAW/C/GC/28), 2010, para. 18, and No. 33 (CEDAW/C/GC/33), 2015, para. 8. See also Committee
on the Elimination of Discrimination against Women, Concluding Observations on Kyrgyzstan (CEDAW/C/
KGZ/CO/4), 2015; on Ecuador (CEDAW/C/ECU/CO/8-9), 2015; on Denmark (CEDAW/C/DNK/CO/8),
2015; on India (CEDAW/C/IND/CO/4-5), 2014; on Cameroon (CEDAW/C/CMR/CO/4-5), 2014.
26
See, for example, Committee on Migrant Workers, Concluding Observations on Jamaica (CMW/C/JAM/
CO/1), 2017, para. 62 and Concluding Observations on Belize (CMW/C/BLZ/CO/1), 2014, paras. 18-19.
27
See, for example, Committee on the Rights of Persons with Disabilities, Concluding Observations on
Canada (CRPD/C/CAN/CO/1), 2017, para. 19, Lithuania (CRPD/C/LTU/CO/1), 2016, paras. 15-16,
Uganda (CRPD/C/UGA/CO/1), 2016, paras. 8-9, Chile (CRPD/C/CHL/CO/1), 2016, para. 42.
28
See, for example, Committee on the Elimination of Racial Discrimination, Concluding Observations on
Uruguay (CERD/C/URY/CO/21-23), 2017, para. 27; Concluding Observations on Germany (CERD/C/
DEU/CO/19-22), 2015, para. 16.
29
See for example, Committee against Torture, General Comment No. 2 (CAT/C/GC/2), 2008, para. 1
and Report of the Special Rapporteur on torture (A/HRC/25/60), 2014, at para. 40.
30
Yogyakarta Principles, 2006 and Yogyakarta Principles plus 10, 2017.

Sexual Orientation, Gender Identity and Sex Characteristics 11

 I. PROTECT INDIVIDUALS FROM
VIOLENCE

Hate-motivated violence against LGBTI people is perpetrated by both

State and non-State actors whether police, private individuals, families,
organized groups, or extremist organizations. Failure by State authorities
to investigate and punish this kind of violence is a breach of States’
obligation to protect everyone’s right to life, liberty and security of person,
as guaranteed by international human rights norms and standards,
including the non-exhaustive list below. Use of the death penalty and
violence, which is tantamount to torture or ill-treatment, is dealt with in
following chapters.

Universal Declaration of Human Rights

Article 3: Everyone has the right to life, liberty and security of person.
Article 14(1): Everyone has the right to seek and to enjoy in other countries
asylum from persecution.

International Covenant on Civil and Political Rights

Article 6: Every human being has the inherent right to life. This right shall be
protected by law. No one shall be arbitrarily deprived of his life.
Article 9: Everyone has the right to liberty and security of person.

Convention on the Rights of the Child

Article 19(1): States Parties shall take all appropriate legislative, administrative,
social and educational measures to protect the child from all forms of physical
or mental violence, injury or abuse, neglect or negligent treatment, maltreatment
or exploitation, including sexual abuse, while in the care of parent(s), legal
guardian(s) or any other person who has the care of the child.

Convention against Torture

Article 3(1): No State Party shall expel, return (“refouler”) or extradite a person
to another State where there are substantial grounds for believing that he would
be in danger of being subjected to torture.

12 BORN FREE AND EQUAL

Convention relating to the Status of Refugees
Article 33(1): No Contracting State shall expel or return (refouler) a refugee in
any manner whatsoever to the frontiers of territories where his life or freedom
would be threatened on account of his race, religion, nationality, membership
of a particular social group or political opinion.

Declaration on the Elimination of Violence against Women

Article 4: States should condemn violence against women and should not invoke
any custom, tradition or religious consideration to avoid their obligations with
respect to its elimination. States should pursue by all appropriate means and
without delay a policy of eliminating violence against women.31

A. POSITIONS TAKEN BY UNITED NATIONS HUMAN RIGHTS

MECHANISMS
The United Nations Human Rights Committee has emphasized that States have
an obligation to take appropriate measures to prevent and respond to acts of
violence, as well as to protect individuals from foreseeable threats to life or
bodily integrity proceeding from State or private actors.32 LGBTI individuals in
all regions are at particular risk of targeted violence at the hands of private
actors. Such violence may be physical or psychological (including murder,
beatings, kidnappings, rape and sexual assault, threats, coercion and arbitrary
deprivations of liberty).33 Violence against LGBTI persons extends into the family
sphere and includes physical assault and sexual violence by family members and
violence committed in the name of culture, religion and tradition.34 These attacks
constitute a form of gender-based violence, driven by a desire to punish those
seen as defying gender norms. LGBTI people also face violence and ill treatment
in medical settings and in detention settings (see Chapter II).

31
United Nations Declaration on the Elimination of Violence against Women (A/RES/48/104), 1993,
article 4.
32
Human Rights Committee, General Comment No. 35 (CCPR/C/GC/35), 2014, at para. 9.
33
Article 2 of the Declaration on the Elimination of Violence against Women notes that violence against
women encompasses violence within the family, within the community, and physical, sexual or
psychological violence perpetrated and condoned by the State, wherever it occurs.
34
Report of the United Nations High Commissioner for Human Rights on discrimination and violence against
individuals based on their sexual orientation and gender identity (A/HRC/29/23), 2015, para. 66;
Report of the Special Rapporteur on freedom of religion or belief (A/68/290), 2013, para. 38; Report of
the Special Rapporteur on violence against women (A/HRC/20/16/Add.4), 2012, para. 20; Report of
the Special Rapporteur on human rights in the Islamic Republic of Iran (A/HRC/22/56), 2013, para. 70;
Report of the Special Rapporteur on the human rights of migrants, on a mission to Qatar (A/HRC/26/35/
Add.1), 2014, para. 19.

Sexual Orientation, Gender Identity and Sex Characteristics 13

B. TARGETED KILLINGS
The State obligation to protect life requires that the State exercise due diligence
in preventing, punishing and redressing deprivations of life, by public and
private parties, including in instances where the victim has been targeted
on grounds of their sexual orientation, gender identity or expression, or sex
characteristics.35 States have obligations under international law to prevent
extrajudicial executions, investigate such killings and bring those responsible to
justice. The United Nations General Assembly has called on States “to ensure
the protection of the right to life of all persons under their jurisdiction” and
investigate promptly and thoroughly all killings, including those motivated
by the victim’s sexual orientation or gender identity.36 Any failure of a State
to exercise due diligence in this regard is a breach of its obligations under
international law.

Murders of individuals targeted because of their sexual orientation or gender

identity are well documented by human rights treaty bodies and special
procedures.37 For example, in the case of Uruguay, the Human Rights Committee
expressed:

... consternation at the violent death of at least five transsexual women

in 2012 under circumstances that could be regarded as indicative of a
pattern of violence based on gender identity.38

In a report focused on gender-related killings, the Special Rapporteur on

violence against women reported that LGBTI persons “are especially vulnerable
to many kinds of violent crime, from killings in private homes to killings in public
spaces known as ‘social cleansing.’”39 The Special Rapporteur on extrajudicial,
summary or arbitrary executions has regularly drawn attention to persons being

35
Human Rights Committee, General Comments No. 6, 1982, and No. 31, 2004, at para. 8.
36
General Assembly resolutions on extrajudicial executions: resolution 57/214, 2002, at para. 6; resolution
61/173, 2006, at para. 5(b); resolution 63/182, 2008, at para. 6(b); resolution 65/208, 2010, at
para. 6(b); resolution 67/168, 2012, at para. 6(b); resolution 69/182, 2014, at para. 6(b); resolution
71/198, 2016, at para. 6(b).
37
Concluding Observations of the Human Rights Committee on Poland (CCPR/CO/82/POL), 2004, at
para. 18; and El Salvador (CCPR/CO/78/SLV), 2003, at para. 16; Report of the Special Rapporteur
on extrajudicial, summary or arbitrary executions, (A/HRC/14/24/Add.2), 2010, at para. 74, on her
mission to Mexico (E/CN.4/2000/3/Add.3), 2000, at paras. 91-92; Report of the Special Rapporteur
on violence against women on her mission to El Salvador (A/HRC/17/26/Add.2), 2011, at para. 28;
Report of the Special Rapporteur on human rights defenders on her mission to Colombia (A/HRC/13/22/
Add.3), 2010, at para. 50; Committee on the Elimination of Discrimination against Women, Concluding
Observations on South Africa (CEDAW/C/ZAF/CO/4), 2011, at para. 39.
38
Human Rights Committee, Concluding Observations on Uruguay (CCPR/C/URY/CO/5), 2013, at
para. 12.
39
Report of the Special Rapporteur on violence against women, (A/HRC/20/16), 2012, para. 72.

14 BORN FREE AND EQUAL

subjected to death threats or killed because of sexual orientation and gender
identity.40 In the 2014 report on his mission to Mexico, the Special Rapporteur
on executions stated that he:

... was alerted to an alarming pattern of grotesque homicides of

lesbian, gay, bisexual and transgender (LGBT) individuals and
broad impunity for their perpetration, sometimes with the suspected
complicity of investigative authorities. Several interlocutors stated
that between 2005 and March 2013, 555 homicides targeting the
sexual orientation or gender identity of the victim were recorded.
Sharp weapons are apparently used to kill in many of the cases, and
the victims’ bodies often show deep cuts and further signs of torture
including anal rape and genital mutilation.41

The United Nations has drawn attention to the particularly intense and brutal
nature of violence exercised against transgender persons,42 noting that killings
of transgender persons are “inflicted with severe violence and [are] charged
with a strong emotional component of anger or rage.”43

United Nations human rights experts have also documented lethal attacks
against defenders of the human rights of LGBTI persons in different regions (see
also Chapter V).44

LGBTI people are among the victims of killings committed in the name of culture,
tradition or religion, carried out against those seen by family or community
members as having brought “shame” or “dishonour” on a family, often for
being perceived to transgress gender norms, for sexual behaviour including

40
See reports of the Special Rapporteur on extrajudicial, summary or arbitrary executions: (E/CN.4/
1999/39), 1999, at para. 76; (E/CN.4/2000/3), 2000, at para. 54; (E/CN.4/2001/9), 2001, at
para. 48; (E/CN.4/2002/74), 2002, at para. 62; (A/57/138), 2002, at para. 38; (E/CN.4/2003/3),
2003, at para. 66; (A/59/319), 2004, at para. 60; (A/HRC/4/20 and Add.1), 2007; (A/HRC/11/2/
Add.7), 2009; (A/HRC/14/24/Add.2) at paras. 74, 2010; and (A/HRC/17/28/Add.1), 2011;
(A/HRC/23/47/Add.2) at paras. 47, 2013; (A/HRC/26/36/Add.1), 2014; (A/HRC/35/23) 2017.
41
Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions on his mission to
Mexico (A/HRC/26/36/Add.1), 2014, at paras. 85-88.
42
Reports of the Special Rapporteur on extrajudicial, summary or arbitrary executions: (E/CN.4/2000/3),
2000, at para. 54; (E/CN.4/2001/9), 2001, at para. 49; (E/CN.4/2003/3/Add.2), 2003 at para. 68;
(E/CN.4/2003/3), 2003, at para. 66; (A/HRC/17/28/Add.1), 2011, para. 31.
43
OHCHR and UN Women, Latin American Model Protocol for the investigation of gender-related killings
of women, 2014, para. 155.
44
See for example, A/67/357 (2012) para. 27; A/HRC/23/47/Add.5 (2013; JAL 28/06/2012, Case
No. ZAF 2/2012, Alleged killing of a LGBTI rights defender); JAL 2/08/2013, Case No. HTI 1/2003;
Committee on the Elimination of Discrimination against Women, Concluding Observations on Argentina
(CEDAW/C/ARG/CO/7), 2016, para. 20(e).

Sexual Orientation, Gender Identity and Sex Characteristics 15

actual or assumed same-sex sexual activity, or based on sex characteristics.45
While women are generally the targets of this sort of punishment, these attacks
can be directed at individuals of any gender or sex.46 The Special Rapporteur
on torture has noted that in some cases, taboo and stigma lead to the killing of
intersex infants.47

The United Nations Security Council, the High Commissioner for Human Rights,
the Committee on the Rights of the Child and the Independent Commission of
Inquiry on Syria have all expressed alarm at the targeted killing of LGBTI people
by terrorist and armed groups operating in conflict-affected areas. 48 In August
2015, the Security Council held a special meeting to discuss extrajudicial
executions of LGBTI individuals by Islamic State (also known as Daesh, IS,
ISIS and ISIL), and, in June 2016, the Council issued a statement condemning
the mass shooting at the Pulse Club in Orlando (United States), noting that
individuals were “targeted as a result of their sexual orientation.”49

The Special Rapporteur on extrajudicial executions has encouraged

governments to renew efforts to protect the security and right to life of LGBTI
persons and to thoroughly, promptly, effectively and impartially investigate
acts of murder and death threats, without discrimination.50

45
See for example, United Nations High Commissioner for Refugees (UNHCR), “The Protection of Lesbian,
Gay, Bisexual, Transgender and Intersex Asylum-Seekers and Refugees”, 2010 at para. 53.
46
See Report of the Secretary-General on Violence against Women (A/61/122/Add.1), 2006, para. 124.
Reports of the Special Rapporteur on violence against women: (E/CN.4/2002/83), 2002, paras. 27-
28; (A/HRC/4/34/Add.2), 2007, para. 19, and (A/HRC/4/34/Add.3), 2007, para. 34; Report of the
Special Rapporteur on torture (A/HRC/31/57), 2016, at paras. 59-60.
47
Report of the Special Rapporteur on torture (A/HRC/31/57), 2016, at para. 50.
48
Committee on the Rights of the Child, Concluding Observations on Iraq (CRC/C/IRQ/CO/2-4), 2015,
paras. 27-28, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic
(A/HRC/31/68), 2016, paras. 106, 113, OHCHR, press briefing notes on ISIL/Iraq, 20 January 2015.
49
Security Council Press Statement on Terrorist Attack in Orlando, Florida, www.un.org/press/en/2016/
sc12399.doc.htm.
50
Reports of the Special Rapporteur on extrajudicial executions, (A/HRC/35/23), 2017, at paras. 57, 100,
110, (A/HRC/32/39/Add.2), 2016, at para. 45, (E/CN.4/2000/3), 2000, at para. 116.

16 BORN FREE AND EQUAL

C. OTHER VIOLENCE, INCLUDING SEXUAL VIOLENCE
United Nations experts continue to express their alarm at violence directed at
individuals on the grounds of their sexual orientation or gender identity.51 Examples
include cases of gay men who have been kidnapped, beaten and humiliated, with
film clips of their abuse shared on social media;52 transgender people harassed,
beaten and sexually abused;53 and lesbians assaulted and raped.54 Concerns
have also been expressed about the risk of violence against children who are
perceived to transgress gender norms.55 In addition to “street” violence and other
spontaneous attacks in public settings, those perceived as LGBT may be targets
of more organized abuse, including by religious extremists, paramilitary groups,
neo-Nazis and extreme nationalists.56 Cases in which violence and ill treatment
against LGBTI people, including in medical, detention and related settings, may
be deemed to constitute torture are addressed in Chapter II.

Human rights defenders, including women human rights defenders, have faced
violence and reprisals for their work to uphold the rights of LGBT persons (see
also Chapter V).57

Lesbians and transgender people are at particular risk of violence because of

gender inequality and power imbalances within families and wider society.58
The Committee on the Elimination of Discrimination against Women has
expressed grave concern about reported sexual violence committed against

51
Report of the Special Rapporteur on violence against women on her mission to Kyrgyzstan
(A/HRC/14/22/Add.2), 2010, at paras. 37-38.
52
Report of the Special Rapporteur on racism (A/HRC/26/50), 2014, para. 14.
53
See for example, Special Rapporteur on freedom of opinion and expression, report on communications
(E/CN.4/2005/64/Add.1), 2005, para. 648; Special Rapporteur on violence against women, reports
on communications (E/CN.4/2005/72/Add.1), 2005, para. 232, (E/CN.4/2006/61/Add.1), 2006,
para. 131, (A/HRC/4/34/Add.1), 2007 (para. 448-454).
54
See Committee on the Elimination of Discrimination against Women, Concluding Observations on
Guyana (CEDAW/C/GUY/CO/7-8), 2012, para. 22; Report of the Special Rapporteur on violence
against women (A/HRC/20/16), 2012, paras. 55, 71, 73, 76.
55
See for example, Committee on the Rights of the Child, Concluding Observations on Sweden (CRC/C/
SWE/CO/5), 2015, para. 15(d); on the Dominican Republic (CRC/C/DOM/CO/3-5), 2015, para. 17(d);
on Colombia (CRC/C/COL/CO/4-5), 2015, para. 19(a).
56
Report of the Special Rapporteur on racism (A/HRC/29/47), 2015, para. 13; joint letter of allegation,
IDN 2/2016, 19/4/2016.
57
See Special Rapporteur on human rights defenders, report on communications with governments
(A/HRC/25/55/Add.3), 2014, paras. 433-435, 480-482; thematic report (A/HRC/31/55), 2016,
paras. 27, 38, 48; Report of the Secretary-General on Cooperation with the United Nations, its
representatives and mechanisms in the field of human rights (A/HRC/39/41) para. 81 and Annex I,
paras. 7-8.
58
Report of the United Nations High Commissioner for Human Rights on “Discriminatory laws and practices and
acts of violence against individuals based on their sexual orientation and gender identity” (A/HRC/19/41),
2011, para. 21.

Sexual Orientation, Gender Identity and Sex Characteristics 17

women on account of their sexual orientation.59 The Special Rapporteur on
violence against women has reported alleged incidents of gang rapes,
family violence and murder experienced by lesbian and bisexual women and
transgender people in India, Azerbaijan, Honduras, El Salvador, Kyrgyzstan
and South Africa,60 where the Rapporteur noted that “lesbian women face an
increased risk of becoming victims of violence, especially rape, because of
widely held prejudices and myths”, including “for instance, that lesbian women
would change their sexual orientation if they are raped by a man”.61

In addition to physical trauma, the mental pain and suffering inflicted on victims
of rape and other forms of sexual violence is often exacerbated and prolonged
due, inter alia, to subsequent stigmatization and isolation.62 This is particularly
true in cases where the victim is shunned or formally banished from the family or
community.63 The Special Rapporteur on torture has noted that rape constitutes
torture when it is carried out by, at the instigation of, or with the consent or
acquiescence of public officials (see Chapter II).64 States are responsible for the
acts of private actors when they fail to exercise due diligence to prevent, stop
or sanction them, or to provide reparations to victims.65

Young LGBT people who are seen to be transgressing social norms are more
likely to be exposed to violence, including within the family, community, and
particularly at school.66 UNESCO has documented a high prevalence of physical,
psychological, and sexual violence, as well as bullying and cyberbullying,
against students, based on sexual orientation and gender identity/expression
(see also Chapter IV, section on education).67 The Committee on the Rights of the
59
Committee on the Elimination of Discrimination against Women, Concluding Observations on South
Africa (CEDAW/C/ZAF/CO/4), 2015, paras. 39-40.
60
See reports of the Special Rapporteur on violence against women, on communications (A/HRC/11/6/
Add.1) 2009, paras. 239-241; on a mission to Azerbaijan (A/HRC/26/38/Add.3), 2014, para. 79; on a
mission to Honduras (A/HRC/29/27/Add.1), 2015, paras. 17, 38; on a mission to Kyrgyzstan
(A/HRC/14/22/Add.2), 2010, paras. 37-38, and on a follow-up mission to El Salvador (A/HRC/17/26/
Add.2), 2011, paras. 28-29.
61
Report of the Special Rapporteur on violence against women, on communications with governments
(A/HRC/4/34/Add.1), 2007, paras. 632-633; on her mission to Kyrgyzstan (A/HRC/14/22/Add.2),
2010, para. 38. See also Committee on the Elimination of Discrimination against Women, Concluding
Observations on South Africa (CEDAW/C/ZAF/CO/4), 2011, para. 39.
62
Reports of the Special Rapporteur on torture (A/HRC/7/3), 2008, para. 34, (A/HRC/31/57), 2016,
para. 51.
63
Ibid., 2008, and Ibid., 2016, para. 51.
64
Ibid., 2016, para. 51.
65
See, Committee against Torture, General Comment No. 2 (CAT/C/GC/2), 2008, paras. 17-18.
66
Committee on the Rights of the Child, General Comment No. 13 (CRC/C/GC/13), 2011, para. 72(g) and
UNESCO, “Out in the Open: Education sector responses to violence based on sexual orientation and
gender identity/expression”, 2016.
67
UNESCO, 2016.

18 BORN FREE AND EQUAL

Child has recommended that States take all necessary measures to protect LGBT
children and children demonstrating any kind of non-conformist behaviour from
violence.68 Treaty bodies have also condemned violence and harmful practices
against intersex children in medical settings including medically unnecessary
surgery and treatment without their consent (see Chapter II).69

The High Commissioner for Human Rights has noted that lesbian, bisexual and
transgender women may be at greater risk and may experience particularly
severe forms of online violence, which includes online threats and harassment and
gross and demeaning breaches of privacy, such as “revenge pornography”.70

Discriminatory laws and practices, including pathologization, can legitimize

such violence and create a climate in which perpetrators go unpunished (see
Chapter III).71 When lodging complaints of violence by third parties, LGBT people
have reportedly been subject to further victimization by the police, including
verbal, physical and sexual assault, including rape (see Chapter II).72 Silencing
through shame or threat by law enforcement officials may keep a considerable
number of victims from reporting abuses.73 Laws on sexual violence that only
consider women victims, or that restrict the definition of sexual violence only to
penile penetration, can leave survivors of other forms of sexual violence, as well
as victims who are not women or who are not legally recognized as women,
with no access to recourse.74 Quantifying violence is further complicated by
68
See for example, Committee on the Rights of the Child, Concluding Observations on Iraq (CRC/C/IRQ/
CO/2-4), 2015, para. 28.
69
See, for example, Committee on the Rights of the Child, Concluding Observations on Nepal (CRC/C/
NPL/CO/3-5), 2016, paras. 41, 42; South Africa (CRC/C/ZAF/CO/2), 2016, paras. 37, 38; Chile
(CRC/C/CHL/CO/4-5), 2015, paras. 48-49; Committee on the Elimination of Discrimination against
Women, Concluding Observations on the Netherlands (CEDAW/C/NDL/CO/6), 2016, para. 21(e);
Committee against Torture, Concluding Observations on Denmark (CAT/C/DNK/CO/6-7), 2016.
70
Report of the United Nations High Commissioner for Human Rights on “Promotion, protection and
enjoyment of human rights on the Internet: ways to bridge the gender digital divide from a human rights
perspective”, (A/HRC/35/9), 2017, paras. 35-36.
71
See, for example, Report of the Special Rapporteur on health (A/HRC/32/32), 2016, paras. 38-41,
94, 113(e). See also joint statement of United Nations and regional experts, “Pathologization – Being
lesbian, gay, bisexual and/or trans is not an illness”, 12 May 2016, available at www.ohchr.org/EN/
NewsEvents/Pages/DisplayNews.aspx?NewsID=19956&LangID=E.
72
See, for example, OHCHR Press Briefing Note on Turkey (14 July 2015), available at www.ohchr.org/
EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16233.
73
Committee against Torture, Concluding Observations on Tunisia (CAT/C/TUN/CO/3), 2016, para. 41;
Committee on the Elimination of Discrimination against Women, Concluding Observations on Ecuador
(CEDAW/C/ECU/CO/8-9), 2015, para. 20; Report of the Special Rapporteur on human rights defenders
on a mission to Burundi (A/HRC/31/55/Add.2), 2015, para. 56; Report of the Special Rapporteur on
extrajudicial, summary or arbitrary executions, on communications (A/HRC/29/37/Add.5) 2015,
para. 57; Report of the Special Rapporteur on torture (A/56/156), 2001, paras. 18, 21.
74
See, for example, UNHCR study, “Sexual Violence against Men and Boys in the Syria Crisis” by Dr.
Sarah Chynoweth, Geneva, October 2017. Available from: https://data2.unhcr.org/en/documents/
download/60864.

Sexual Orientation, Gender Identity and Sex Characteristics 19

the fact that few States have systems in place for monitoring, recording and
reporting incidents of violence against LGBTI people. Even where systems exist,
incidents may go unreported or are misreported because victims distrust the
police, are afraid of reprisals or threats to privacy, are reluctant or unable to
identify themselves as LGBT, or because those responsible for registering the
incidents fail to recognize the motives of the perpetrators.75

United Nations human rights mechanisms have urged States to ensure that
violence against LGBTI persons is thoroughly investigated, that perpetrators
are prosecuted and, if convicted, punished with appropriate sanctions.76
The sexual orientation, gender identity or sex characteristics of the victim
should never be accepted as a mitigating circumstance.77 Victims should be
adequately compensated and protected against reprisals for reporting acts
of violence.78 Redress and support to victims should include referral to legal
support, specialist medical and psychological services, and shelters and safe
houses, as necessary.79 Human rights defenders who advocate for protection of
the human rights of LGBTI people should be protected from violence and other
reprisals for their work.80

States should ensure that law enforcement officials recognize, accurately

register (in a disaggregated manner) and respond to reports of such crimes.
They should institute training programmes for law enforcement officials for this
purpose, to sensitize them to bias-motivated violence against LGBTI persons.81

75
Report of the United Nations High Commissioner for Human Rights on discrimination and violence based
on sexual orientation and gender identity (A/HRC/19/41), 2011, para. 23.
76
See Human Rights Committee, Concluding Observations on the former Yugoslav Republic of Macedonia
(CCPR/C/MKD/CO/3), 2015, para. 7; on Latvia (CCPR/C/LVA/CO/3), 2014, para. 19; on Kazakhstan
(CCPR/C/KAZ/CO/2), 2016, para. 10; Committee against Torture, Concluding Observations on Iraq
(CAT/C/IRQ/CO/1), 2015, para. 25; on Macedonia (CAT/C/MKD/CO/3), 2015, para. 13.
77
See for example, Committee on the Rights of the Child, Concluding Observations on Iraq (CRC/C/IRQ/
CO/2-4), 2015, para. 28.
78
Report of the Special Rapporteur on the human right to safe drinking water and sanitation (A/HRC/33/49),
2016, para. 77(d); Human Rights Committee, Concluding Observations on Kyrgyzstan (CCPR/C/KGZ/
CO/2), 2014, para. 9.
79
OHCHR, Living Free and Equal: What States are doing to tackle violence and discrimination against
lesbian, gay, bisexual, transgender and intersex people, 2016, p. 34, available at: www.ohchr.org/
Documents/Publications/LivingFreeAndEqual.pdf.
80
Report of the Secretary-General on Cooperation with the United Nations, its representatives and
mechanisms in the field of human rights (A/HRC/39/41) para. 81.
81
Committee on Economic, Social and Cultural Rights, Concluding Observations on the former Yugoslav
Republic of Macedonia (E/C.12/MKD/CO/2-4), 2016, para. 26; Committee against Torture, Concluding
Observations on Uruguay (CAT/C/URY/CO/3), 2014, para. 21(c). See also, OHCHR, Living Free and
Equal, sections 1.4, 1.8 and 1.9.

20 BORN FREE AND EQUAL

D. INCITEMENT TO VIOLENCE AND HATE SPEECH
Human rights mechanisms continue to express concern at rhetoric used to incite
homophobic and transphobic hatred and related violence.82 Such language
is used by some political, community and religious leaders to promote negative
stereotypes, stir up prejudice and harass particular individuals, especially during
electoral periods, and during periods of political tension and armed conflict. The
High Commissioner has expressed concern at inflammatory rhetoric used in Belarus,
the Gambia, Malawi and Honduras.83 The Committee on the Rights of the Child
has criticized statements by the Holy See as contributing to the stigmatization of,
and violence against LGBT adolescents and children raised by same-sex couples,84
and about the impact of hate speech on LGBTI people in Switzerland.85 Impunity
for incitement to violence by authorities, or community or religious leaders, can
encourage threats and attacks by both State officials and private individuals.

The Special Rapporteur on freedom of opinion and expression has analysed

the different kinds of hate speech and clarified the corresponding obligations
of States to address these through legal and/or non-legal measures, in line with
international norms and standards that place limits on how and when States
may restrict freedom of expression.86

The Special Rapporteur on human rights defenders has expressed concern

about the media reproducing and reinforcing patterns of inequality and
marginalization, noting that LGBTI activists and women defenders are sometimes
targeted in social media smear campaigns and vilified by mainstream media
outlets.87 The media can combat negative stereotyping by inter alia undertaking
proactive training about the rights of LGBTI persons, expressing stronger support
for defenders working on these issues, reporting in a factual and sensitive
manner and raising awareness of discrimination and negative stereotyping.88

82
See Human Rights Committee, Concluding Observations on Ukraine (CCPR/C/UKR/CO/7), 2013,
para. 10; Report of the Special Rapporteur on freedom of opinion and expression (A/67/357), 2012,
para. 75; see also judgment by the European Court of Human Rights, case of Vejdeland and others v.
Sweden, No. 1813/07, 2012.
83
Pillay, N., “Prejudice fuels the denial of rights for LGBT people”, Jakarta Post, 30 April 2014; Report of the
Special Rapporteur on human rights defenders on a mission to Honduras (A/HRC/22/47/Add.1), 2013,
para. 91; see also OHCHR Press Briefing Note on Malawi, 22 January 2016, available at www.ohchr.
org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=16985&LangID=E.
84
Committee on the Rights of the Child, Concluding Observations on the Holy See (CRC/C/VAT/CO/2),
2014, para. 25.
85
Committee on the Rights of the Child, Concluding Observations on Switzerland (CRC/C/CHE/CO/2-4),
2015, para. 24.
86
Report of the Special Rapporteur on freedom of opinion and expression (A/67/357), 2012. See also
Rabat Plan of Action (A/HRC/22/17/Add.4), 2013 and Chapter V of this publication.
87
Report of the Special Rapporteur on human rights defenders (A/HRC/31/55), 2016, para. 80.
88
Ibid. See also OHCHR, Rabat Plan of Action (A/HRC/22/17/Add.4), 2013, para. 58.

Sexual Orientation, Gender Identity and Sex Characteristics 21

States have an obligation to enact legislation that addresses homophobic
and transphobic incitement to violence.89 In the case of Poland, the Human
Rights Committee noted “with concern a significant rise in manifestations of
hate speech and intolerance directed at lesbian, gay, bisexual and transgender
people,” and recommended that the authorities: “amend the Penal Code to
define hate speech and hate crimes based on sexual orientation or gender identity
among the categories of punishable offences; and intensify awareness-raising
activities aimed at the police force and wider public.”90

In Concluding Observations on Norway, the Committee Against Torture urged

the government to ensure that hate speech, including against LGBT persons, is
“systematically investigated, prosecuted and the alleged perpetrators prosecuted,
if found guilty, convicted and sanctioned with penalties commensurate with the
gravity of the offence”91

POSITIVE PRACTICE
United Kingdom: College of Policing – Hate Crime Operational Guidance
Manual
In 2014, the College of Policing of the United Kingdom released a set of
guidelines for police officers responding to incidences of hate crime. The
guidelines were intended to improve the overall quality of police responses
and reduce under-reporting by building public confidence in the capacity of
the police force to respond to homophobic and transphobic hate crimes. The
guidance covers legislation and case studies that reflect recent developments
in law, policy and practice in the realm of hate crimes, including those
committed against LGBT persons. The Manual was produced in consultation
with a range of stakeholders, including civil society organizations and the
victims of hate crimes themselves, with the objective of building trust between
the police and the population groups targeted by hate crime.92

89
Concluding Observations of the Human Rights Committee on the United States of America (CCPR/C/
USA/CO/3), 2006, at para. 25; Uzbekistan (CCPR/C/UZB/CO/3), 2010, at para. 22; Committee
against Torture, Concluding Observations on Poland (CAT/C/POL/CO/4), 2013, at para. 19; Mongolia
(CAT/C/MNG/CO/1), 2011, at para. 25; Republic of Moldova (CAT/C/MDA/CO/2), 2010, at
para. 27; Reports of the Special Rapporteur on violence against women on missions to Kyrgyzstan (A/
HRC/14/22/Add.2), 2010, at para. 92; to El Salvador (A/HRC/17/26/Add.2), 2011, at paras. 28-29,
77; Report of the Special Rapporteur on the human rights of migrants on his mission to South Africa (A/
HRC/17/33/Add.4), 2011, at para. 77(a); Report of the Special Rapporteur on racism (A/HRC/29/47),
2015, para. 45.
90
Human Rights Committee, Concluding Observations on Poland (CCPR/C/POL/CO/6), 2010, at para. 8.
91
Committee against Torture, Concluding Observations on Norway (CAT/C/NOR/CO/6-7), 2012,
para. 21.
92
OHCHR, Living Free and Equal: What States are doing to tackle violence and discrimination against
lesbian, gay, bisexual, transgender and intersex people, 2016, p. 38, available at www.ohchr.org/
Documents/Publications/LivingFreeAndEqual.pdf.

22 BORN FREE AND EQUAL

E. ASYLUM CLAIMS
Under Article 14(a) of the Universal Declaration for Human Rights, everyone has
the right to seek and to enjoy in other countries asylum from persecution. Signatory
States to the 1951 Refugee Convention have a duty to provide safe refuge to LGBTI
individuals fleeing persecution,93 including on grounds of actual or perceived
sexual orientation, gender identity or sex characteristics.94 In addition, all States
are prohibited from expelling, returning or extraditing a person to another State
where there are substantial grounds for believing that they would be in danger
of being subjected to torture.95 The Special Rapporteur on torture has affirmed
that gender, sexual orientation, and other grounds should be taken into account
in such determinations, and noted that gender non-conforming persons are
particularly at risk of physical abuse and/or imprisonment or institutionalization
in unsafe conditions upon return to their country of origin.96 The United Nations
High Commissioner for Refugees (UNHCR) estimates that 37 States have granted
asylum to individuals with a well-founded fear of persecution owing to perceived
sexual orientation and/or gender identity.97
Asylum laws and policies should recognize persecution on account of one’s
actual or perceived sexual orientation, gender identity, gender expression or
sex characteristics as a valid basis for an asylum claim,98 and LGBTI asylum-
seekers and refugees should be treated with respect.99 UNHCR has published
detailed guidance for States on this issue.100
93
Universal Declaration of Human Rights, art. 14(1); Convention Relating to the Status of Refugees,
art. 33(1); Convention Against Torture, art. 3(1); UNHCR, “Resettlement Assessment Tool: Lesbian, Gay,
Bisexual, Transgender and Intersex Refugees”, 2013, p. 7.
94
Convention Relating to the Status of Refugees, art.1. (Documents published by UNHCR refer to “LGBTI people”,
and grounds of “intersex status” and “bodily diversity”. OHCHR uses “sex characteristics” to refer to the ground
of protection of/discrimination against intersex people, although other terms including “intersex status” and
“bodily integrity” are sometimes used by other stakeholders). See also, International Commission of Jurists,
“Refugee Status Claims Based on Sexual Orientation and Gender Identity: A Practitioners’ Guide”, 2016, p. 20;
UNHCR, Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation
and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol
relating to the Status of Refugees (HCR/GIP/12/01), 23 October 2012, available at: www.refworld.org/
docid/50348afc2.html.
95
Convention against Torture, article 3(1).
96
Reports of the Special Rapporteur on torture (A/59/324), 2004, para. 39; communication with the United
States of America (A/HRC/31/57/Add.1), 2016, paras. 666-669.
97
UNHCR Brazil, Information Booklet on the Protection of LGBTI Refugees and Asylum Seekers, 2017.
98
Convention Relating to the Status of Refugees, art. 1; UNHCR, Guidelines on International Protection
No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context
of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees
(HCR/GIP/12/01), 2012.
99
UNHCR, Guidelines on International Protection No. 9, 2012; UNHCR, “Working With Lesbian, Gay,
Bisexual, Transgender and Intersex Persons in Forced Displacement”, 2011, p. 9.
100
UNHCR, Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual
Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its
1967 Protocol relating to the Status of Refugees (HCR/GIP/12/01), 2012.

Sexual Orientation, Gender Identity and Sex Characteristics 23

UNHCR notes that past persecution is not a prerequisite to refugee status and
that applicants do not need to show that the authorities knew about their sexual
orientation and/or gender identity before they left the country of origin.101
UNHCR further stresses that the possibility of applicants avoiding persecution
by concealing or by being “discreet” about their identity, or having done so
previously, is not a valid reason to deny refugee status, and may also result in
significant psychological and other harm102 – LGBTI people are as much entitled
to freedom of expression and association as others (see Chapter V).103 Indeed,
previous discretion or suppression of such fundamental aspects and expression
of identity is indicative of a fear of persecution, and can be taken as evidence
of an applicant’s well-founded fear of persecution.104

Even in countries that recognize these grounds for asylum, practices and
procedures often fall short of international standards. Review of applications
is sometimes arbitrary and inconsistent. Officials may have little knowledge
about or sensitivity towards conditions facing LGBTI people,105 and may impose
intrusive, humiliating and inappropriate requirements to establish the credibility
of their claim.106 LGBTI refugees and asylum-seekers are sometimes subjected to
violence and discrimination while in detention facilities; in countries of asylum,
including in refugee camps, they may continue to experience additional risks
related to their sexuality, gender identity or sex characteristics.107 United Nations
experts have expressed concern with regard to homophobic, biphobic and
transphobic behaviour by employees at asylum facilities, questioning by civil
servants about sexual acts, harassment by fellow detainees and refoulement of
asylum seekers fearing persecution because of their sexual orientation.108

UNHCR has called on States and other actors to incorporate LGBTI-sensitive

measures into their asylum determination practice, including sensitivity training
101
Ibid. para. 18.
102
Ibid. paras. 31, 33; UNHCR, “Resettlement Assessment Tool: Lesbian, Gay, Bisexual, Transgender and
Intersex Refugees”, 2013, p. 3.
103
UNHCR Guidelines, supra note 77, para. 31.
104
International Commission of Jurists, “Refugee Claims Based on Sexual Orientation and Gender Identity:
A Practitioner’s Guide”, 2016, p. 60.
105
UNHCR, Guidelines on International Protection No. 9, 2012.
106
UNHCR, Guidelines on International Protection No. 9; UNHCR, “Working With Lesbian, Gay, Bisexual,
Transgender and Intersex Persons in Forced Displacement”, 2011, p. 10; UNHCR, “The Protection of
Lesbian, Gay, Bisexual, Transgender and Intersex Asylum-Seekers and Refugees”, 2010, para. 33;
International Commission of Jurists, “Refugee Status Claims Based on Sexual Orientation and Gender
Identity: A Practitioners’ Guide”, 2016, p. 35.
107
UNHCR, “Resettlement Assessment Tool: Lesbian, Gay, Bisexual, Transgender and Intersex Refugees”,
2013, p. 3.
108
See for example, Committee on the Elimination of Racial Discrimination, Concluding Observations on The
Netherlands (CERD/C/NLD/CO/19-21), 2015, para. 33.

24 BORN FREE AND EQUAL

for those involved in the decision-making process, and guidelines on assessment
procedures to ensure that claims are reviewed in an objective and sensitive manner,
unhindered by stereotyping and cultural bias.109 In addition, the Committee on
the Elimination of Discrimination against Women has recommended that States
address the specific risks and particular needs of internally displaced and refugee
women who are subjected to multiple and intersecting forms of discrimination,
including women belonging to sexual minorities.110

F. CONCLUSION
In order to respect and protect the right to life and security of person guaranteed
under international law, States must exercise due diligence to effectively
investigate, prosecute and punish perpetrators responsible for violence against
LGBTI persons, and enact hate crime laws that protect individuals from violence
on the bases of sexual orientation, gender identity and sex characteristics, as
well as provide redress to victims. Effective systems should be established for
recording and reporting hate-motivated acts of violence, while providing for the
security of those reporting. States must also take steps to combat incitement to
violence against LGBTI people, including through adopting appropriate laws
and non-legal measures and holding to account those who incite violence.
Law enforcement personnel and judges should be trained in gender-sensitive
approaches to addressing violations against LGBTI persons. States should
establish comprehensive policies to prevent and address violence on the bases
of sexual orientation, gender identity and sex characteristics in schools and
other education settings, including through training teachers and other staff, and
providing access to accurate and non-judgemental information on these issues.
Asylum laws and policies should recognize that persecution on account of one’s
actual or perceived sexual orientation, gender identity or sex characteristics
may be a valid basis for an asylum claim; ensure that no one fleeing persecution
is returned to a territory where his or her life or freedom would be threatened;
eliminate intrusive, inappropriate questioning; and sensitize officials.

109
See for example, UNHCR, Guidelines on International Protection No. 9; UNHCR, “Working With
Lesbian, Gay, Bisexual, Transgender and Intersex Persons in Forced Displacement”, 2011, pp. 7-11 (“The
privacy of LGBTI refugees should be respected at all times, and a person’s sexual orientation, gender
identity or bodily status should be recorded in a manner that respects this.”); UNHCR, “Resettlement
Assessment Tool: Lesbian, Gay, Bisexual, Transgender and Intersex Refugees”, 2013, pp. 8-9
110
Committee on the Elimination of Discrimination against Women, General Recommendation No. 32
(CEDAW/C/GC/32) 2014, para. 38, General Recommendation No. 30 (CEDAW/C/GC/30), 2013,
para. 57(b).

Sexual Orientation, Gender Identity and Sex Characteristics 25

II. PREVENT TORTURE AND CRUEL,
INHUMAN AND DEGRADING
TREATMENT OR PUNISHMENT

States have an obligation under international law to protect all individuals,

including LGBTI people, from torture and other cruel, inhuman or degrading
treatment or punishment. This includes the obligation to prohibit torture and other
forms of ill-treatment, and to provide redress for such acts. The failure to investigate
and bring to justice perpetrators of torture is itself a breach of international human
rights law. These rights are guaranteed by various international human rights
instruments, including the non-exhaustive list below. The absolute prohibition of
torture and other acts of cruel, inhuman, or degrading treatment or punishment is
binding on all States as a peremptory norm of international law.

Universal Declaration of Human Rights

Article 5: No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment.

International Covenant on Civil and Political Rights

Article 7: No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment. In particular, no one shall be subjected without his free
consent to medical or scientific experimentation.

Convention against Torture

Article 1(1): For the purposes of this Convention, the term “torture” means any
act by which severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from him or a third person
information or a confession, punishing him for an act he or a third person has
committed or is suspected of having committed, or intimidating or coercing him
or a third person, or for any reason based on discrimination of any kind, when
such pain or suffering is inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity.
It does not include pain or suffering arising only from, inherent in or incidental
to lawful sanctions.
Article 2(1): Each State Party shall take effective legislative, administrative, judicial
or other measures to prevent acts of torture in any territory under its jurisdiction.

26 BORN FREE AND EQUAL

Convention on the Rights of the Child
Article 37(a): No child shall be subjected to torture or other cruel, inhuman
or degrading treatment or punishment. Neither capital punishment nor life
imprisonment without possibility of release shall be imposed for offences
committed by persons below eighteen years of age.

Convention on the Rights of Persons with Disabilities

Article 15: 1. No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment. In particular, no one shall be subjected
without his or her free consent to medical or scientific experimentation.
2. States Parties shall take all effective legislative, administrative, judicial or other
measures to prevent persons with disabilities, on an equal basis with others, from
being subjected to torture or cruel, inhuman or degrading treatment or punishment.

A. POSITIONS TAKEN BY UNITED NATIONS HUMAN RIGHTS

MECHANISMS
The Committee against Torture, the Special Rapporteur on torture, and other
human rights bodies and mechanisms, have documented substantial evidence of
abuse and mistreatment of LGBTI individuals in police stations, prisons, military,
juvenile and migration detention facilities and other places of detention, as well
as in hospitals and other medical settings.111

The Committee against Torture has highlighted that individuals “may be subject
to violations of the Convention on the basis of their actual or perceived non-
conformity with socially determined gender roles.”112 The Special Rapporteur
111
Committee against Torture, General Comment No. 2 (CAT/C/GC/2), 2008, para. 21; Committee against
Torture, Concluding Observations on Hong Kong, China (CAT/C/CHN-HKG/CO/5), 2016, paras. 28-
29; Austria (CAT/C/AUT/CO/6), 2016, paras. 44-45; the United States of America (CAT/C/USA/CO/3-
5), 2014, paras. 21, 26; Paraguay (CAT/C/PRY/CO/4-6), 2011, para. 19; Germany (CAT/C/DEU/
CO/5), 2011, para. 20; Ecuador (CAT/C/ECU/CO/3), 2006, para. 17; Argentina (CAT/C/CR/33/1),
2004, para. 6(g); Egypt (CAT/C/CR/29/4), 2002, para. 5(e). Human Rights Committee, Concluding
Observations on the United States of America (CCPR/C/USA/CO/3), 2006, para. 25. Ninth annual
report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (CAT/C/57/4), 2016, paras. 49, 60. Reports of the Special Rapporteur on torture (A/
HRC/31/57), 2016, paras. 13, 34-36, and section D; (A/HRC/22/53) 2013, paras. 76-79. Committee on
the Elimination of Discrimination against Women, Concluding Observations on Costa Rica (CEDAW/C/
CRI/CO/5-6), 2011, para. 40. Committee on the Rights of the Child, Concluding Observations on
Switzerland (CRC/C/CHE/CO/2-4), 2015, paras. 42-43. Reports of the Special Rapporteur on
violence against women, on a mission to Italy (A/HRC/20/16/Add.6), 2012, para. 98; on incarceration
(A/68/340), 2013, para. 58. See also, joint statement of the United Nations Subcommittee on Prevention
of Torture, the United Nations Committee against Torture, the United Nations Special Rapporteur on
torture, and the Board of Trustees of the United Nations Voluntary Fund for Victims of Torture, “Targeted
and tortured: United Nations experts urge greater protection for LGBTI people in detention”, June 2016,
available at www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20165&LangID=E.
112
Committee against Torture, General Comment No. 2 (CAT/C/GC/2), 2008, at para. 22; General
Comment No. 3 (CAT/C/GC/3) 2012, at paras. 32, 39.

Sexual Orientation, Gender Identity and Sex Characteristics 27

on torture has emphasized that States fail in their duty to prevent torture and ill-
treatment whenever their laws, policies or practices perpetuate harmful gender
stereotypes in a manner that enables or authorizes, explicitly or implicitly,
prohibited acts to be performed with impunity. States are also complicit in
violence against lesbian, gay, bisexual and transgender persons whenever
they create and implement discriminatory laws and practices that trap them in
abusive circumstances or foster a climate in which such violence by both State
and non-State actors is condoned and met with impunity,113 or where LGBTI
victims are dehumanized, which is often a necessary condition for torture and
ill-treatment to take place.114

Under international law, States have the obligation to prohibit, prevent and
provide redress for torture and ill treatment in all contexts of State custody or
control, investigate such acts and bring perpetrators to justice.115 The prohibition
of torture is absolute, non-derogable, and constitutes jus cogens – a peremptory
norm of international law that is binding on all States.116

B. ARREST AND DETENTION

A joint report of the Association for the Prevention of Torture and Penal Reform
International has identified eight risk factors and situations for human rights
abuse of LGBT persons in detention: targeted arrest and violence in police
custody; abusive interrogations; allocation of transgender detainees; humiliating
and abusive body searches; violence from fellow inmates; abuse by prison
personnel; isolation and solitary confinement as an alleged protective measure;
and discrimination in accessing services and benefits.117

113
Report of the United Nations High Commissioner for Human Rights on discrimination and violence based
on sexual orientation and gender identity (A/HRC/29/23), 2015; Report of the Special Rapporteur on
torture (A/HRC/31/57), 2016, paras. 10, 15.
114
Report of the Special Rapporteur on torture (A/HRC/22/53), 2013, paras. 77-79; Report of the
Subcommittee on Prevention of Torture (CAT/C/57/4), 2016, para. 48.
115
Committee against Torture, General Comment No. 2 (CAT/C/GC/2), 2008, at para. 15, Human Rights
Committee, General Comment No. 31 (CCPR/C/21/Rev.1/Add.13), 2004 at para. 18.
116
See for example, Committee against Torture, General Comment No. 2 (CAT/C/GC/2), 2008, para. 1
and report of the Special Rapporteur on torture (A/HRC/25/60), 2014, at para. 40.
117
See Association for the Prevention of Torture, “Towards the effective protection of LGBT persons deprived
of liberty: a monitoring guide”, 2018; Association for the Prevention of Torture, outcome report of the 2015
Jean-Jacques Gautier Symposium: “Addressing situations of vulnerability of LGBT persons in detention”,
2015, available from www.apt.ch/content/files_res/report-jjg-symposium-2015-en.pdf; Association for
the Prevention of Torture and Penal Reform International, “LGBTI persons deprived of their liberty: a
framework for preventive monitoring”, London: 2015.

28 BORN FREE AND EQUAL

 © Photo by Esther Sweeney on Unsplash
Physical and sexual violence
United Nations human rights mechanisms have repeatedly raised serious
concerns about sexual, physical and psychological abuse of LGBT persons
in detention, that it is often motivated by discrimination, including by law
enforcement authorities, prison staff, immigration staff and other detainees.118
Sexual violence may constitute torture when it is carried out by, or at the
instigation of, or with the consent or acquiescence of public officials.119

For example, a group of United Nations experts condemned the abduction

and arbitrary detention of men perceived to be gay in Chechnya (Russian
Federation), with reports of local militia and local security forces subjecting them
to torture including with electric shocks, beatings, insults and humiliations.120

118
Committee against Torture, Concluding Observations on Costa Rica (CAT/C/CRI/CO/2), 2008, para. 18;
Tunisia (CAT/C/TUN/CO/3) 2016, para. 41; United States of America (CAT/C/USA/CO/2), 2006, at
para. 32. Committee on the Elimination of Discrimination against Women, Concluding Observations on
Ecuador (CEDAW/C/ECU/CO/8-9) 2015, para. 20. Report of the United Nations High Commissioner
for Human Rights on discrimination and violence based on sexual orientation and gender identity (A/
HRC/29/23), 2015, paras. 34-36. Reports of the Special Rapporteur on torture: (A/HRC/31/57), 2016,
para. 35; (E/CN.4/2005/62/Add.1), 2005, at paras. 1019, 1161; (E/CN.4/2004/56/Add.1), 2004, at
para. 1327; (E/CN.4/2003/68/Add.1), 2003, at paras. 446, 463-465; (E/CN.4/2003/68/Add.2),
2003 at para. 42; (E/CN.4/2002/76), 2002, at Annex III; (E/CN.4/2002/76/Add.1), 2002, at
paras. 16, 507-508, 829, 1709-1716; (A/56/156), 2001, at paras. 21, 23; (E/CN.4/2001/66/Add.2),
2001, at paras. 199, 1171; (E/CN.4/2000/9), 2000, at paras. 145, 151, 726. Report of the Special
Rapporteur on violence against women (A/HRC/14/22/Add.1), 2010, at para. 17.
119
Reports of the Special Rapporteur on torture (A/HRC/7/3), 2008, at para. 34; (A/HRC/31/57), 2016,
para. 51.
120
“End abuse and detention of gay men in Chechnya, United Nations human rights experts tell Russia”, 13
April 2017, available at www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21501.

Sexual Orientation, Gender Identity and Sex Characteristics 29

In its concluding observations on the United States of America, the Committee
against Torture expressed concern about law enforcement officials’ brutality and
use of excessive force, including against persons of different sexual orientation,
as well as assaults by fellow detainees, and lack of adequate investigations. The
Committee recommended that the State ensure “its law enforcement personnel
are independently, promptly and thoroughly investigated and that perpetrators
are prosecuted and appropriately punished.”121

Special rapporteurs have regularly reported allegations of mistreatment of

LGBT detainees at the hands of police, prison and other officials. Examples
include reports of “metis”122 in Nepal being beaten by police, who allegedly
demanded money and sex123; a lesbian couple in Brazil being beaten at a
police station, verbally abused, and forced to perform oral sex;124 and a human
rights defender in Uzbekistan, charged with homosexuality, being beaten and
threatened with rape by police.125 In a communication with the United States
in 2013, the Special Rapporteur on torture expressed concern that immigration
detention facility staff subjected 16 gay and transgender individuals to “solitary
confinement, torture and ill-treatment, including sexual assault.”126

The Subcommittee on Prevention of Torture and other Cruel, Inhuman or

Degrading Treatment or Punishment has reported that transgender detainees
were “beaten and forced to enact sex scenes in front of fellow inmates, practices
that are often sponsored by guards who charge for viewings.”127 Trans detainees
were also required to shower in the presence of persons of the opposite gender,
were patted down by officers of the opposite gender, and groped with the sole
purpose of determining the nature of their genitalia.128 The Subcommittee noted
the deaths of transgender women in custody, including an occurrence of death
after anal rape with a club.129
121
Committee against Torture, Concluding Observations on the United States of America (CAT/C/USA/
CO/2), 2006 at paras. 32, 37.
122
“Meti” is a term used in Nepal to describe people who have been assigned a male gender at birth and
who have a feminine gender identity/gender expression.
123
Reports of the Special Rapporteur on violence against women, (E/CN.4/2006/61/Add.1), 2006, at
paras. 1 and 2, (A/HRC/4/34/Add.1), 2007, at paras. 448-454.
124
Report of the Special Rapporteur on torture, on a mission to Brazil (E/CN.4/2001/66/Add.2), 2001 at
para. 199.
125
Report of the Special Rapporteur on torture, on communications with governments (E/CN.4/2004/56/
Add.1), 2004, at paras. 1878, 1899.
126
Report of the Special Rapporteur on torture, on communications with governments (A/HRC/22/53/
Add.4), 2013, para. 178 on joint urgent action, Case No. USA 15/11, 19/08/2011.
127
Ninth annual report of the United Nations Subcommittee on Prevention of Torture (CAT/OP/C/57/4),
2016 para. 66.
128
Ibid.
129
Ibid.

30 BORN FREE AND EQUAL

The Special Rapporteur on violence against women has expressed concern
about female prisoners whom guards view as “masculine” in appearance being
subjected to harassment, physical abuse and “forced feminization.”130

Torture and ill-treatment of persons on the basis of actual or perceived sexual

orientation or gender identity has also been documented in armed conflict and
perpetrated by State and non-State actors alike, with rape and other forms of
sexual violence sometimes being carried out to terrorize lesbian, gay, bisexual
and transgender persons and violently enforce societal gender norms.131 For
example, the Independent International Commission of Inquiry on the Syrian
Arab Republic reported that men were “tortured and raped on the grounds of
their sexual orientation at government checkpoints”, and “six homosexual men
were beaten viciously with electric cables by security agents and threatened
with rape.”132

Anal examinations
The practice of subjecting cisgender men and transgender women who are
arrested on homosexuality-related charges to anal examinations that are
intended to obtain physical evidence for prosecution has been condemned
by the Committee against Torture, the Working Group on Arbitrary Detention,
and the Special Rapporteur on torture, who has also criticized it as “medically
worthless”.133 The Special Rapporteur on torture has described such invasive
forensic examinations as being intrusive and degrading with the potential to
amount to torture or ill-treatment.134 The Working Group on Arbitrary Detention
has stated that “forced anal examinations contravene the prohibition of torture
and other cruel, inhumane and degrading treatment.”135

130
Report of the Special Rapporteur on violence against women (A/68/340), 2013, para. 59
131
Report of the Secretary-General on conflict-related sexual violence (S/2015/203), 2015 para. 20;
Report of the Commission of Inquiry on the situation in the Syrian Arab Republic (A/HRC/25/65), 2014,
para. 67.
132
Report of the Commission of Inquiry on the situation in the Syrian Arab Republic (A/HRC/25/65), 2014,
para. 67.
133
See for example, Committee against Torture, Concluding Observations on Tunisia (CAT/C/TUN/CO/3),
2016, paras. 41-42, and on Egypt (CAT/C/CR/29/4), 2002, at paras. 5-6; Reports of the Special
Rapporteur on Torture (A/HRC/22/53), 2013, paras. 76, 79; report on communications (A/HRC/31/57/
Add.1), 2016, paras. 118-119, 713-714. See also Human Rights Watch, “Dignity Debased: Forced Anal
Examinations in Homosexuality Prosecutions”, 2016.
134
Reports of the Special Rapporteur on torture (A/56/156), 2001, at para. 24; on communications
(A/HRC/31/57/Add.1), 2016, paras. 713-714, (A/HRC/10/44/Add.4), 2009, at para. 61,
(A/HRC/4/33/Add.1), 2007, at para. 317, and (A/HRC/16/52/Add.1), 2011.
135
Working Group on Arbitrary Detention Opinion No. 25/2009 on Egypt (A/HRC/16/47/Add.1), 2011,
at paras. 23, 28-29.

Sexual Orientation, Gender Identity and Sex Characteristics 31

 © Photo by Morgan Basham on Unsplash
Solitary confinement
The Special Rapporteur on torture has highlighted that the placement of LGBT
people “in solitary confinement or administrative segregation for ‘protection’
can constitute an infringement of the prohibition of torture and ill-treatment,”136
and that “although segregation of such individuals may be necessary for their
safety, lesbian, gay, bisexual and transgender status does not justify limitations
on their social regime, e.g., access to recreation, reading materials, legal
counsel or medical doctors.”137 The revised United Nations Standard Minimum
Rules for the Treatment of Prisoners (the “Mandela Rules”) stress that indefinite
and prolonged solitary confinement must be prohibited,138 and that “solitary
confinement shall only be used in exceptional cases as a last resort, for as
short a time as possible”.139 Authorities have a responsibility to take reasonable
measures to prevent and combat violence against LGBT detainees by other
detainees, without subjecting them to solitary confinement or other restrictions.140

136
Report of the Special Rapporteur on torture (A/HRC/31/57), 2016, para. 35.
137
Report of the Special Rapporteur on torture (A/66/268), 2011, para. 69.
138
General Assembly resolution 70/175 on the United Nations Standard Minimum Rules for the Treatment of
Prisoners (the Nelson Mandela Rules), 17 December 2015, Rule 43.
139
General Assembly resolution 70/175 on the United Nations Standard Minimum Rules for the Treatment of
Prisoners (the Nelson Mandela Rules), 17 December 2015, Rule 45.
140
Report of the Special Rapporteur on torture (A/HRC/31/57), 2016, para. 35.

32 BORN FREE AND EQUAL

Respecting the identity of transgender persons in detention
Transgender prisoners, specifically, face unique and particularly harsh
circumstances in prison systems, including lack of respect for their gender identity
when being placed, administrative segregation, barriers to the accessibility
of hormone treatment, and higher instances of abuse and discriminatory
treatment.141 The Mandela Rules specify that the identity and self-perceived
gender of prisoners should be respected in the prisoner file management
system.142 All transgender detainees, regardless of whether they have changed
gender on legal documents or undergone surgery, should be treated on the
basis of their self-identified gender, including in the context of placement, dress
and appearance, access to health services, search and other procedures,
and decisions on allocation should be made on a case-by-case basis and in
consultation with the detainee.143 The Special Rapporteur on extrajudicial,
summary or arbitrary executions has called on States to ensure “that judicial
and prison authorities, when deciding allocation of transgender person to either
a male or female prison, do so in consultation with the prisoner concerned and
on a case-by-case basis. Safety considerations and the wishes of the individual
must be paramount.”144 The Special Rapporteur has also drawn attention to
the denial of life-saving medical treatment and access to essential services for
transgender women in detention, sometimes with fatal consequences.145

Monitoring and oversight

Fear of reprisals and a lack of trust in complaints mechanisms frequently prevent
LGBT persons in custody from reporting abuses.146 In some prison systems,
complaints by LGBTI prisoners about sexual abuse and rape are less likely
to receive a response from prison administrations, leading to impunity and
continued abuse.147

141
Report of the Special Rapporteur on violence against women (A/68/340), 2013, para. 63; Report of the
Special Rapporteur on torture (A/56/156), 2001, para. 23; Report of the Special Rapporteur on torture
(A/HRC/31/57), 2016, para. 34.
142
General Assembly resolution 70/175 on the United Nations Standard Minimum Rules for the Treatment of
Prisoners (the Nelson Mandela Rules), 17 December 2015, Rule 7(a).
143
Ibid. See also, OHCHR, Living Free and Equal: What States are doing to tackle violence and discrimination
against lesbian, gay, bisexual, transgender and intersex people, 2016, p. 43, 128.
144
Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions on a gender-sensitive
approach to arbitrary killings, A/HRC/35/23, 2017, para. 110.
145
Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions on a gender-sensitive
approach to arbitrary killings, A/HRC/35/23, 2017, para. 46.
146
Report of the Special Rapporteur on torture (A/HRC/31/57), 2016, para. 35.
147
Report of the Special Rapporteur on violence against women (A/68/340), 2013, para. 58.

Sexual Orientation, Gender Identity and Sex Characteristics 33

The Special Rapporteur on torture has called on States to ensure that “all places
of detention are subjected to effective oversight and inspection and unannounced
visits by independent bodies established in conformity with the Optional
Protocol to the Convention against Torture, as well as by civil society monitors;
and ensure the inclusion of lesbian, gay, bisexual and transgender persons
and other minority representation on monitoring bodies.”148 The Committee
against Torture has recommended training and awareness programmes for
police officers, border guards and prison personnel to prevent abuse of LGBT
people.149

POSITIVE PRACTICE
Nepal: Nepalese National Human Rights Commission Monitoring of
Detention Facilities and Prisons
The National Human Rights Commission (NHRC) of Nepal has a mandate
that enables it to freely monitor alleged human rights abuses and conduct
independent investigations. The Commission can visit any prison, detention
centre or government institution and make recommendations for conditions
to be brought in line with international human rights standards.
In this capacity, the NHRC has identified a number of human rights violations
experienced by LGBT people in police custody and detention, including
cases of LGBT individuals arrested on allegations of being involved in sex
work. The Commission has received complaints relating to illegal detention,
discrimination and ill-treatment amounting to torture of LGBT persons at the
hands of staff who run detention facilities. In response to one such complaint,
the Commission issued an order to the Nepal Police to investigate and
prosecute security personnel involved in a serious case of torture, inhuman
and degrading treatment.

C. MEDICAL SETTINGS150
United Nations human rights mechanisms and agencies have increasingly
drawn attention to the treatment of LGBTI persons in medical and related
settings, including so-called “conversion therapy”, forced and otherwise
involuntary treatment, including sterilization and coerced gender reassignment
interventions, as well as medically unnecessary interventions performed on

148
Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment, A/HRC/31/57, 5 January 2016, para. 70 (y).
149
Committee against Torture, Concluding Observations on Costa Rica (CAT/C/CRI/CO/2), 2008, at
para. 11, 18.
150
See also sections on access to healthcare and pathologization in Chapter IV.

34 BORN FREE AND EQUAL

intersex children without informed consent by the affected person.151 The failure
by States to take effective steps to prevent third parties from carrying out such
practices is a violation of their obligation to protect human rights.152 As noted
by the Special Rapporteur on torture, “medical care that causes severe suffering
for no justifiable reason can be considered cruel, inhuman or degrading
treatment or punishment, and if there is State involvement and specific intent,
it is torture.”153

Surgery and other interventions on intersex children and adults

Many intersex children, born with bodies that differ from normative definitions
of female or male, are subjected to medically unnecessary surgery and other
interventions, performed without their informed consent, in an attempt to
force their physical appearance to align with binary sex stereotypes. Such
procedures are typically irreversible and can cause severe, long-term physical
and psychological suffering, affecting children’s rights to physical integrity, to
health, privacy and autonomy and may constitute torture or ill-treatment.154

United Nations and regional human rights experts, including the Committee
on the Rights of the Child, the Committee against Torture, the Subcommittee on
Prevention of Torture and the Special Rapporteur on torture, have indicated that
States must urgently prohibit medically unnecessary surgery and procedures
151
Report of the High Commissioner for Human Rights on discrimination and violence based on sexual
orientation and gender identity (A/HRC/29/23), 2015, paras. 14, 38. See also, Joint United Nations
statement on ending violence and discrimination against LGBTI persons, 2015, available from: www.
ohchr.org/EN/Issues/Discrimination/Pages/JointLGBTIstatement.aspx and Joint United Nations
Statement on Ending Discrimination in Health Care Settings, 2017, available at www.unaids.org/sites/
default/files/media_asset/ending-discrimination-healthcare-settings_en.pdf.
152
Committee on Economic, Social and Cultural Rights, General Comment No. 22 (E/C.12/GC/22), 2016,
at para. 59.
153
Report of the United Nations Special Rapporteur on torture (A/HRC/22/53), 2013, para. 39.
154
See for example, Committee on Economic, Social and Cultural Rights, General Comment No. 22 (E/C.12/
GC/22), 2016, para. 59; Committee on the Rights of the Child, Concluding Observations on Nepal
(CRC/C/NPL/CO/3-5), 2016, paras. 41, 42; on South Africa (CRC/C/ZAF/CO/2), 2016, paras. 37,
38; on New Zealand (CRC/C/NZL/CO/5), 2016, para. 25; Committee on the Rights of Persons with
Disabilities, Concluding Observations on Chile (CRPD/C/CHL/CO/1), 2016, para. 42; on Germany
(CRPD/C/DEU/CO/1), 2015, paras. 37, 38; Committee against Torture, Concluding Observations on
France (CAT/C/FRA/CO/7), 2016, para. 34, 35; on Hong Kong, China (CAT/C/CHN-HKG/CO/5),
2016, paras. 28, 29; Report of the High Commissioner for Human Rights on discrimination and violence
based on sexual orientation and gender identity (A/HRC/29/23), 2015, para. 53; Reports of the Special
Rapporteur on torture (A/HRC/22/53), 2013, paras. 77, 88, (A/HRC/31/57), 2016, paras. 50, 72;
Reports of the Special Rapporteur on health, (A/HRC/32/32), 2016, paras. 85, 94; (A/70/213), 2015,
paras. 84-86, (A/64/272), 2009, para. 49. See also, joint statement of international and regional human
rights experts, “End violence and harmful medical practices on intersex children and adults”, 2016,
available at www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20739&LangID=E,
and Committee on Bioethics of the Council of Europe, “The Rights of Children in Biomedicine: Challenges
Posed by Scientific Advances and Uncertainties,” Council of Europe, January 16, 2017, www.coe.int/en/
web/children/-/study-on-the-rights-of-children-in-biomedicine.

Sexual Orientation, Gender Identity and Sex Characteristics 35

on intersex children.155 United Nations human rights experts have called on
States to “uphold the autonomy of intersex adults and children and their rights
to health, to physical and mental integrity, to live free from violence and harmful
practices and to be free from torture and ill-treatment.”156

Intersex children and adults should be the only ones who decide whether
they wish to modify the appearance of their own bodies – in the case of
children, when they are old or mature enough to make an informed decision
for themselves.157 States should ensure that intersex people have access to
psycho-social and peer support as well as to medical services that respond to
their specific health needs and that are based on non-discrimination, informed
consent and respect for their fundamental rights.158 In addition, States should
educate medical and psychological professionals about bodily diversity and
intersex traits, as well as about the consequences of unnecessary surgical and
other medical interventions on intersex children and adults.159

POSITIVE PRACTICE
In 2015, Malta adopted a law prohibiting surgery and medical interventions
on the sex characteristics of minors without their consent, in particular when
driven by social factors, being the first State in the world to protect the rights
of intersex children to bodily integrity in this way. A court in Germany has
awarded damages to an intersex person whose reproductive organs were
removed by a surgeon without consent or prior notification.160

155
See joint statement of international and regional human rights experts, “End violence and harmful medical
practices on intersex children and adults”, 2016, available at http://ohchr.org/EN/NewsEvents/Pages/
DisplayNews.aspx?NewsID=20739&LangID=E.
156
Ibid. See also OHCHR, UN Women, UNAIDS, UNDP, UNFPA, UNICEF and WHO, “Eliminating forced,
coercive and otherwise involuntary sterilization: an interagency statement”, 2014.
157
See, for example, Committee on the Rights of the Child, Concluding Observations on New Zealand
(CRC/C/NZL/CO/5), 2016, para. 25; on Switzerland (CRC/C/CHE/CO/2-4), 2015, para. 43; on
Nepal (CRC/C/NPL/CO/3-5), 2016, para. 42; Committee against Torture, Concluding Observations on
Denmark (CAT/C/DNK/CO/6-7), 2016, para. 43; and on Austria (CAT/C/AUT/CO/6), 2016, para. 45.
158
See for example, Committee on the Rights of the Child, Concluding Observations on France (CRC/C/FRA/
CO/5), 2016, para. 48; on Chile (CRC/C/CHL/CO/4-5), 2015, para. 49; Committee against Torture,
Concluding Observations on Hong Kong, China (CAT/C/CHN-HKG/CO/5), 2016, para. 29; Committee
on the Elimination of Discrimination against Women, Concluding Observations on France (CEDAW/C/
FRA/CO/7-8), 2016, para. 18; Committtee on the Rights of Persons with Disabilities, Concluding
Observations on Chile (CRPD/C/CHL/CO/1), 2016, para. 42. Lee et al., “Consensus Statement on
Management of Intersex Disorders”; Lee et al., “Global Disorders of Sex Development Update Since
2006: Perceptions, Approach and Care”; United Nations World Health Organization (WHO), “Genomic
Resource Center: Patient Support Groups”, www.who.int/genomics/public/patientsupport/en/.
159
Committee on the Rights of the Child, Concluding Observations on New Zealand (CRC/C/NZL/CO/5),
2016, para. 25; and on Ireland (CRC/C/IRL/CO/3-4), 2016, para. 40.
160
OHCHR, Living Free and Equal: What States are doing to tackle violence and discrimination against
lesbian, gay, bisexual, transgender and intersex people, 2016, p. 47.

36 BORN FREE AND EQUAL

Forced and otherwise involuntary sterilization and treatment of
transgender people
Transgender people are often forced or coerced to undergo sterilization, gender
reassignment surgery, other medical procedures and medical certification
in violation of international human rights standards, including as abusive
requirements for recognition of gender identity.161 The Special Rapporteur on
torture has indicated that such practices are unlawful, noting that “not only does
enforced surgery result in permanent sterility and irreversible changes to the
body, and interfere in family and reproductive life, it also amounts to a severe
and irreversible intrusion into a person’s physical integrity.”162

United Nations human rights mechanisms have affirmed the right to legal
recognition of gender identity and modification of gender markers on official
documents without requirements of psychological assessment, diagnosis,
surgery or sterilization (see also Chapter IV).163 In a 2014 review of Belgium,
for example, the Committee on the Elimination of Discrimination against
Women called on the authorities to abolish the requirements for a psychiatric
assessment, sterilization and surgery for transgender women who wish to
obtain legal recognition of their gender.164

States should respect the physical and psychological integrity of transgender

persons by removing all requirements of sterilization, forced surgery and
treatment, medical diagnosis or certification from laws, policies and regulations
relating to legal gender recognition, reform outdated medical classifications
regarding transgender identities (see Chapter IV), and ensure accountability for
such practices and remedy for victims.

161
Committee on Economic, Social and Cultural Rights, General Comment No. 22 (E/C.12/GC/22), 2016,
para. 58; Report of the Independent Expert on protection against violence and discrimination based
on sexual orientation and gender identity (A/73/152), para. 28; Report of the United Nations High
Commissioner for Human Rights on discrimination and violence based on sexual orientation and gender
identity (A/HRC/29/23), 2015, para. 70; Human Rights Committee, Concluding Observations on
Ukraine (CCPR/C/UKR/CO/7), para. 10; Report of the Special Rapporteur on torture (A/HRC/22/53),
2013, para. 88; and the joint statement by OHCHR, UN-Women, UNAIDS, UNDP, UNFPA, UNICEF and
WHO, “Eliminating forced, coercive and otherwise involuntary sterilization”, 2014.
162
Report of the Special Rapporteur on torture (A/HRC/22/53), 2013, paras. 36-38, 76-79, 88.
163
See for example: Human Rights Committee, Concluding Observations on Ireland (CCPR/C/IRL/CO/3),
2008, para. 8, and on Ukraine (CCPR/C/UKR/CO/7), 2013, para. 10; Committee on the Elimination of
Discrimination against Women, Concluding Observations on the Netherlands (CEDAW/C/NLD/CO/5),
2010, paras. 46-47, and on Belgium (CEDAW/C/BEL/CO/7), 2014, para. 45; Committee on Economic,
Social and Cultural Rights, Concluding Observations on Germany (E/C.12/DEU/CO/5), 2011, para. 26.
164
Committee on the Elimination of Discrimination against Women, Concluding Observations on Belgium
(CEDAW/C/BEL/CO/7), 2014, para. 45.

Sexual Orientation, Gender Identity and Sex Characteristics 37

So-called “conversion therapies”
United Nations experts have expressed concern about so-called “conversion
therapies” intended to change same-sex attraction or transgender identity.165
Such therapies have been found to be unethical, unscientific and ineffective
and, in some instances, tantamount to torture – leading to successful legal
challenges and bans in several countries.166 The Committee against Torture
and the Special Rapporteur on torture have expressed concern about forced
treatment to change sexual orientation or gender identity, including through
involuntary confinement in psychiatric and other institutions, the administration
of electroshocks, and other “aversion therapy”, which could result in physical
and psychological harm.167

As an example, in Ecuador, concerns have been raised by civil society and

the government has taken measures to close so-called “rehabilitation clinics”,
where gay, lesbian and transgender youths have been forcibly detained with the
collusion of family members and subjected to torture, including sexual abuse.168

States should take the necessary legislative, administrative and other measures
to guarantee respect for the autonomy and physical and personal integrity
of LGBT persons and prohibit the practice of “conversion therapy” and other
forced, involuntary or otherwise coercive or abusive treatments performed on
them.169 In addition, States should ensure that health professionals and public
officials receive training in respecting the human rights of LGBTI persons.170

165
Report of the United Nations High Commissioner for Human Rights on discrimination and violence
based on sexual orientation and gender identity (A/HRC/29/23), 2015, paras. 14, 38, 52; Pan-
American Health Organization, “Cures for an illness that does not exist”, available at www.paho.org/
hq/?option=com_docman&task=doc_view&gid=17703&Itemid=270.
166
Report of the United Nations High Commissioner for Human Rights on discrimination and violence based
on sexual orientation and gender identity (A/HRC/29/23), 2015, para. 52.
167
Committee against Torture, Concluding Observations on China (CAT/C/CHN/CO/5), 2016, para. 55;
Human Rights Committee, Concluding Observations on Ukraine (CCPR/C/UKR/CO/7), 2013, para. 10;
Report of the Special Rapporteur on torture (A/56/156), 2001 at para. 24.
168
Human Rights Committee, Concluding Observations on Ecuador (CCPR/C/ECU/CO/5), 2009, para. 12;
See also, Inter-American Commission on Human Rights, Press Release: “IACHR expresses concern about
violence and discrimination against LGBTI persons, particularly youth, in the Americas”, 15 August 2013,
available at www.oas.org/en/iachr/media_center/PReleases/2013/060.asp.
169
Committee against Torture, Concluding Observations on China (CAT/C/CHN/CO/5), 2016, para. 56;
Human Rights Committee, Concluding Observations on Korea (CCPR/C/KOR/CO/4), 2015, para. 15;
Report of the Special Rapporteur on torture (A/HRC/22/53), 2013, para. 88; Report of the United
Nations High Commissioner for Human Rights on discrimination and violence based on sexual orientation
and gender identity (A/HRC/29/23), 2015, para. 78(g).
170
Ibid. See also, Human Rights Committee, Concluding Observations on Korea (CCPR/C/KOR/CO/4),
2015, para. 15.

38 BORN FREE AND EQUAL

 © Photo by Nick Fewings on Unsplash
D. CONCLUSION
All individuals, including LGBTI persons, must be protected from torture and
cruel, inhuman or degrading treatment or punishment. Under international law,
States must prohibit, investigate and punish acts of torture and ill-treatment –
including in detention, medical and other settings.171 This means that a State
must define torture and ill-treatment as offences under domestic criminal law,
and must ensure that all such acts are independently, promptly and thoroughly
investigated, and that those responsible are brought to justice, regardless of
the sexual orientation, gender identity or expression, or sex characteristics of
the victims. States must provide victims of such acts with adequate redress,
including compensation. States are also under an obligation to take preventive
measures, such as monitoring places of detention, prohibiting abusive medical
procedures through law and regulation, training law enforcement officers and
health care providers, and repealing abusive preconditions for legal gender
recognition, such as sterilization, forced treatment and medical certification.

171
Human Rights Committee, General Comment No. 20, 1992; Committee against Torture, General
Comment No. 2. (CAT/C/GC/2), 2008.

Sexual Orientation, Gender Identity and Sex Characteristics 39

III. REPEAL DISCRIMINATORY LAWS

Laws that criminalize consensual same-sex relations and expression of gender

identity, and other vague and discriminatory laws that are used to punish LGBT
individuals, give rise to a number of separate but interrelated human rights
violations. Such laws violate, inter alia, an individual’s right to be free from
discrimination (see also Chapter IV), equality before the law, equal protection
of the law, as well as the rights to be protected against arbitrary detention and
unreasonable interference with privacy. Imposition of the death penalty for sexual
conduct additionally violates the right to life. All such laws, even if they are never
enforced, breach State obligations under international human rights norms and
standards, including the non-exhaustive list below. Legal restrictions on freedoms
of expression, association and assembly are addressed in Chapter V.

Universal Declaration of Human Rights

Article 2: Everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth, or
other status.
Article 7: All are equal before the law and are entitled without any discrimination
to equal protection of the law. All are entitled to equal protection against any
discrimination in violation of this Declaration and against any incitement to such
discrimination.
Article 9: No one shall be subjected to arbitrary arrest, detention or exile.
Article 12: No one shall be subjected to arbitrary interference with his privacy,
family, home or correspondence, nor to attacks upon his honour and reputation.

International Covenant on Civil and Political Rights

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 present Covenant, without distinction of any kind, such
as race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.
Article 6(2): In countries which have not abolished the death penalty, sentence
of death may be imposed only for the most serious crimes in accordance with
the law in force at the time of the commission of the crime and not contrary to

40 BORN FREE AND EQUAL

the provisions of the present Covenant and to the Convention on the Prevention
and Punishment of the Crime of Genocide. This penalty can only be carried out
pursuant to a final judgement rendered by a competent court.
Article 9: Everyone has the right to liberty and security of person. No one shall
be subjected to arbitrary arrest or detention. No one shall be deprived of his
liberty except on such grounds and in accordance with such procedure as are
established by law.
Article 17: No one shall be subjected to arbitrary or unlawful interference with
his privacy, family, home or correspondence, nor to unlawful attacks on his
honour and reputation.
Article 26: All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law shall
prohibit any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as race, colour, sex,
language, religion, political or other opinion, national or social origin, property,
birth or other status.

A. POSITIONS TAKEN BY UNITED NATIONS HUMAN RIGHTS

MECHANISMS
United Nations human rights treaty bodies and special procedures have
repeatedly emphasized the obligation of States under international law to
repeal laws that criminalize private, consensual sexual relationships between
persons of the same sex, laws that criminalize transgender people based on
their gender expression, and other laws that are used to criminalize, prosecute,
harass and otherwise discriminate against people based on their actual or
perceived sexual orientation and gender identity.172 In a 2016 report, the
Special Rapporteur on torture wrote:

States are complicit in violence against women and lesbian, gay,

bisexual and transgender persons whenever they create and implement
discriminatory laws that trap them in abusive circumstances.173

172
See, for example, Toonen v. Australia, Human Rights Committee, Communication No. 488/1992
(CCPR/C/50/D/488/1992), 1994, paras. 8.3-10; Human Rights Committee, Concluding Observations
on Kuwait (CCPR/C/KWT/CO/2), 2011, para. 30; Committee on Economic, Social and Cultural Rights,
Concluding Observations on the Islamic Republic of Iran (E/C.12/IRN/CO/2), 2013, para. 7; Committee
on the Elimination of Discrimination against Women, Concluding Observations on Uganda (CEDAW/C/
UGA/CO/7), 2010, paras. 43-44; Committee on the Rights of the Child, Concluding Observations on
the Gambia (CRC/C/GMB/CO/2-3), 2015, paras. 29-30; Report of the Special Rapporteur on the right
to health (A/HRC/14/20), 2010, paras. 17-26; Report of the Independent Expert on protection against
violence and discrimination based on sexual orientation and gender identity (A/HRC/38/43), 2018,
paras. 50-56 and 90-91.
173
Report of the Special Rapporteur on torture (A/HRC/31/57), 2016, para. 10.

Sexual Orientation, Gender Identity and Sex Characteristics 41

The United Nations Independent Expert on protection against violence
and discrimination based on sexual orientation and gender identity has
recognized that such laws “are part of the background environment that
leads to violence and discrimination” and that “there is thus a need to move
towards decriminalization.”174 United Nations agencies have also called for
the decriminalization of same-sex consensual conduct, cross-dressing and other
forms of gender expression, and the repeal of other discriminatory laws.175
Discriminatory laws restricting freedoms of expression, association and
assembly are addressed in Chapter V.

B. CRIMINALIZATION OF SAME-SEX RELATIONS

At the time of publication, 69 countries have laws in effect that are used to
criminalize private, consensual sexual relationships between persons of the same
sex.176 Such laws typically prohibit either certain types of sexual activity or any
intimacy or sexual activity between persons of the same sex, though they are also
frequently used to penalize trans people, regardless of their sexual orientation. In
some cases, the language used refers to vague and undefined concepts, such as
“crimes against the order of nature”, “morality”, “debauchery” or “vagrancy”,
many of which date back to colonial era provisions.177 The criminalization of
consensual relations, sexual or affective, between persons of the same gender
or sex breaches a State’s obligations under international law, including the
obligations to guarantee equality, non-discrimination and privacy.178

This has been the consistent position of United Nations human rights experts
since 1994, when the Human Rights Committee found in Toonen v. Australia
that “consensual sexual activity in private is covered by the concept of
‘privacy’” and concluded that the laws in Tasmania were neither proportional
nor necessary, that they did not achieve the aim of protecting public health, and
174
Report of the Independent Expert on protection against violence and discrimination based on sexual
orientation and gender identity (A/HRC/35/36), 19 April 2017, paras. 52-54.
175
See Joint United Nations statement on ending violence and discrimination against LGBTI persons, 2015,
and Joint United Nations statement on ending discrimination in health care settings, 2017
176
Number updated by OHCHR as at July 2019. See also International Lesbian, Gay, Bisexual, Trans
and Intersex Association: Lucas Ramon Mendos, State-Sponsored Homophobia 2019 (Geneva; ILGA,
March 2019).
177
See reports of the United Nations High Commissioner for Human Rights on discrimination and violence
based on sexual orientation and gender identity (A/HRC/29/23), 2015, paras. 43-49; (A/HRC/19/41),
2011, para. 40; Report of the Working Group on Arbitrary Detention on a mission to Colombia
(A/HRC/10/21/Add.3), 2009, paras. 56-58; Human Rights Committee, Concluding Observations on the
Russian Federation (CCPR/C/RUS/CO/7) , 2015, para. 10; Report of the Special Rapporteur on health
(A/HRC/14/20), 2010, para. 8; Report of the Special Rapporteur on the Islamic Republic of Iran
(A/HRC/31/69), 2016, para. 14.
178
See for example, Committee on Economic, Social and Cultural Rights, General Comment No. 22 (E/C.12/
GC/22), 2016, para. 40.

42 BORN FREE AND EQUAL

 © Photo by Sharon McCutcheon on Unsplash
that they were not necessary to protect public morals.179 United Nations human
rights treaty bodies have repeatedly urged States to reform laws criminalizing
same-sex relations and have welcomed the legislative or judicial repeal of such
laws.180 An individual’s rights are violated even if the law in question is never
enforced.181

The trend over the past decades has been towards decriminalization.182 Since
the decision of the Human Rights Committee in the Toonen case in 1994, more
than 40 countries have decriminalized consensual same-sex relations, either
through legislation or through the courts. Between 2012 and mid-2018, seven
countries did so: Belize, India, Mozambique, Palau, Sao Tome and Principe,
179
Toonen v. Australia, Human Rights Committee, Communication No. 488/1992 (CCPR/C/50/D/488/1992),
1994, paras. 8.5 and 8.6.
180
Human Rights Committee, Concluding Observations on Grenada (CCPR/C/GRC/CO/1), 2015, at
para. 21; United Republic of Tanzania (CCPR/C/TZA/CO/4), 2015, at para. 22; Togo (CCPR/C/TGO/
CO/4), 2011, at para. 14; Uzbekistan (CCPR/C/UZB/CO/3), 2010, at para. 22; Botswana (CCPR/C/
BWA/CO/1), 2008, at para. 22: St. Vincent and the Grenadines (CCPR/C/VCT/CO/2), 2008; Algeria
(CCPR/C/DZA/CO/3), 2007, at para. 26; Chile (CCPR/C/CHL/CO/5), 2007, at para. 16; Barbados
(CCPR/C/BRB/CO/3), 2007, at para. 13; United States of America (CCPR/C/USA/CO/3), 2006, at
para. 9; Kenya (CCPR/C/CO/83/KEN), 2005, at para. 27; Egypt (CCPR/CO/76/EGY), 2002, at
para. 19; Romania (CCPR/C/79/Add.111), 1999, at para. 16. Committee on Economic, Social and
Cultural Rights, Concluding Observations on Kyrgyzstan (E/C.12/Add.49), 2000, at paras. 17, 30;
Cyprus (E/C.12/1/Add.28), 1998, at para. 7. Committee on the Elimination of Discrimination against
Women, Concluding Observations on Uganda (CEDAW/C/UGA/CO/7), 2010, at paras. 43-44;
Kyrgyzstan (A/54/38), 1999, at paras. 127, 128. Committee on the Rights of the Child, Concluding
Observations on Chile (CRC/C/CHL/CO/3), 2007, at para. 29.
181
Toonen v. Australia, Human Rights Committee, Communication No. 488/1992 (CCPR/
C/50/D/488/1992), 1994, at para. 8.2, Concluding Observations of the Human Rights Committee on
Ethiopia (CCPR/C/ETH/CO/1), 2011, para. 12.
182
OHCHR, Living Free and Equal: What States are doing to tackle violence and discrimination against
lesbian, gay, bisexual, transgender and intersex people, 2016, pp. 54-58.

Sexual Orientation, Gender Identity and Sex Characteristics 43

the Seychelles, and Trinidad and Tobago.183 The decision of the Supreme Court
of India to overturn that country’s colonial-era law criminalizing consensual
same-sex conduct is an especially important milestone – lifting the threat of
criminalization from millions of people in the world’s second most populous
country, and potentially setting an example for courts in other countries that had
similar laws imposed by British colonial authorities.

Even so, while there has been progress in some countries, there has also been a
hardening of attitudes in others and, in a few cases, moves to strengthen existing
criminal penalties for same-sex relations. The United Nations High Commissioner
for Human Rights and United Nations mechanisms have expressed concern about
States considering and adopting laws broadening the scope of criminalization
and/or increasing penalties, and even creating criminal sanctions where these
did not exist before.184 In the case of Burundi, special procedures emphasized
that a draft law criminalizing consensual sexual acts between persons of the same
sex was not only contrary to international human rights law, but would also have
a negative effect on efforts to combat HIV/AIDS, and would place human rights
defenders in a vulnerable position as potential targets for attacks and intimidation
by both the authorities and the public.185

United Nations human rights mechanisms and agencies have frequently called
attention to the ways in which criminalization of consensual, same-sex relations
legitimizes prejudice and exposes people to hate crimes, police abuse,
harassment, intimidation, blackmail, torture and family violence (see Chapters I
and II),186 and perpetuates discrimination in the enjoyment of various human
rights (see Chapter IV).187
183
For an overview of longer-term trends, visit the United Nations Free & Equal campaign website and access
the campaign’s interactive map at www.unfe.org/the-history-of-the-right-to-love-if-youre-gay/.
184
See, for example, OHCHR press statements, “United Nations human rights chief denounces new anti-
homosexuality law in Nigeria”, Geneva, 14 January 2014; “Anti-Homosexuality law in Uganda violates
human rights and endangers LGBT people – Pillay”, Geneva, 24 February 2014; “The Gambia: Zeid
criticizes harsh legal amendment, violence and arrests targeting gay men and lesbians”, Geneva, 20
November 2014; “Kyrgyzstan: ‘Don’t condemn LGBT people to silence’ – United Nations rights experts
urge Parliament to withdraw anti-gay bill”, 26 November 2014. Committee on Economic, Social and
Cultural Rights, Concluding Observations on Uganda (E/C.12/UGA/CO/1), 2015, para. 16.
185
Report of the Special Rapporteur on human rights defenders (A/HRC/10/12/Add.1), 2009, at para. 353.
186
See, for example, the report of the Special Representative of the Secretary-General on human rights
defenders (E/CN.4/2002/16/Add.1), 2002, at para. 154; Report of the Special Rapporteur on violence
against women (E/CN.4/1999/68), 1999, at para. 15. See also, reports of the Special Rapporteur on
torture: (C/CN.4/2002/76), 2002, and (A/56/156), 2001. at paras. 18-25.
187
See, for example, Concluding Observations of the Human Rights Committee on Jamaica (E/C.12/
JAM/CO/3-4), 2013, at para. 9. See also, Joint United Nations statement on ending violence and
discrimination against LGBTI persons, 2015, available at www.ohchr.org/EN/Issues/Discrimination/
Pages/JointLGBTIstatement.aspx, and Joint United Nations Statement on Ending Discrimination in
Health Care Settings, 2017, available at www.unaids.org/sites/default/files/media_asset/ending-
discrimination-healthcare-settings_en.pdf.

44 BORN FREE AND EQUAL

The Special Rapporteur on extrajudicial, summary or arbitrary executions has
noted that the criminalization of “matters of sexual orientation” increases social
stigmatization and makes people “more vulnerable to violence and human
rights abuses, including death threats and violations of the right to life, which
are often committed in a climate of impunity.”188

Even when based on national laws, arrest or detention on discriminatory

grounds such as sexual orientation or gender identity is in principle arbitrary
and prohibited under international law, as affirmed on many occasions by the
Human Rights Committee and the Working Group on Arbitrary Detention.189
The Working Group found the arrest of 11 men in Cameroon under article 347
bis of the Criminal Code, which criminalizes sexual relations between persons
of the same sex, to be arbitrary.190 On the arrest and subsequent conviction
of four men on charges of so-called “debauchery” in Egypt, it stated: “The
vilification and persecution of persons for their sexuality violate the principles of
international human rights law.”191 The Human Rights Committee has likewise
called on the Islamic Republic of Iran to “ensure that anyone held solely on
account of freely and mutually agreed sexual activities or sexual orientation
should be released immediately and unconditionally.”192

In some countries, there are different ages of sexual consent for same-sex and
different-sex relationships.193 This also constitutes discrimination on the basis of
sexual orientation.194 International standards require that the age of consent is
the same, regardless of gender or sexual orientation.195

188
Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions (A/57/138), 2002, at
para. 37.
189
Human Rights Committee, General Comment No. 35 (CCPR/C/GC/35), 2014, para. 17, Working Group
on Arbitrary Detention, Opinion No. 42/2008 on Egypt (A/HRC/13/30/Add.1, 2010); and No. 25/2009
on Egypt (A/HRC/16/47/Add.1, 2011). See also, report of the Working Group on Arbitrary Detention (A/
HRC/16/47, 2011), at Annex para. 8(e).
190
Working Group on Arbitrary Detention, Opinion No. 22/2006 on Cameroon (A/HRC/4/40/Add.1,
2007), at para. 19.
191
Working Group on Arbitrary Detention, Opinion No. 42/2008 on Egypt (A/HRC/13/30/Add.1, 2010)
at para. 25.
192
Concluding Observations of the Human Rights Committee on the Islamic Republic of Iran (CCPR/C/IRN/
CO/3), 2011, at para. 10.
193
ILGA: Carroll, A., and Mendos, L.R., “State-Sponsored Homophobia 2017” (May 2017).
194
Concluding Observations of the Committee on the Rights of the Child on Chile (CRC/C/CHL/CO/3)
2007, at para. 29; Isle of Man, United Kingdom (CRC/C/15/Add.134), 2000, at para. 22; Austria
(CCPR/C/79/Add.103), 1998, at para. 13.
195
Convention on the Rights of the Child, Article 2; Report of the United Nations High Commissioner for
Human Rights on discriminatory laws and practices and acts of violence against individuals based on their
sexual orientation and gender identity (A/HRC/19/41) 2011, para. 84(d).

Sexual Orientation, Gender Identity and Sex Characteristics 45

 POSITIVE PRACTICE
Mozambique: Decriminalizing same-sex relationships
Mozambique’s criminal code prior to 2015 included provisions dating
from the colonial era allowing for “security measures” against those who
“habitually engage in vices against nature”. While not explicitly referencing
same-sex relations, the vague language echoed legal provisions in other
countries used to criminalize lesbian, gay and bisexual people. In June
2015, the new penal code of Mozambique entered into effect, dropping
these provisions, ensuring that same-sex relations are not criminalized.196

C. DEATH PENALTY
Six countries that criminalize consensual same-sex relations, as well as some
regions of at least two other countries, apply and/or have penal code provisions
for the death penalty for “offences” relating to same-sex conduct.197 The
imposition of the death penalty gives rise to additional and separate violations
under article 6 of the International Covenant on Civil and Political Rights and
article 3 of the Universal Declaration of Human Rights. Article 6 provides that
in countries which have not abolished the death penalty, a “sentence of death
may be imposed only for the most serious crimes.” International human rights
law stipulates that same-sex sexual conduct should not be criminalized at all,
meaning that it most certainly cannot be considered as one of “the most serious
crimes”, the latter being restricted to “intentional killings.”198 Resolutions of the
Human Rights Council have called on States to ensure that the death penalty is
not imposed as a sanction for consensual same-sex relations.199

196
OHCHR, Living Free and Equal: What States are doing to tackle violence and discrimination against
lesbian, gay, bisexual, transgender and intersex people, 2016, pp. 58-59.
197
These are Brunei, the Islamic Republic of Iran, Mauritania, Saudi Arabia, the Sudan and Yemen, plus
regions of Nigeria and Somalia. In Afghanistan, some interpretations of Shari’a law include the possibility
of applying the death penalty for consensual same-sex relations, though other interpretations differ, and
there is no information that this has been applied in recent years. See Report of the United Nations
High Commissioner for Human Rights, on discrimination and violence against individuals based on their
sexual orientation and gender identity (A/HRC/29/23), 2015, para. 46. See also ILGA: Carroll, A., and
Mendos, L.R., “State-Sponsored Homophobia 2017” (May 2017).
198
See for example, report of the United Nations Secretary General on capital punishment and the
implementation of the safeguards guaranteeing protection of the rights of those facing the death penalty
(A/HRC/30/18), 2015, para. 16.
199
Human Rights Council Resolution A/HRC/RES/36/17, 2017.

46 BORN FREE AND EQUAL

 © Photo by Tim Marshall on Unsplash
Treaty bodies and special procedures have reaffirmed this.200 The Human Rights
Committee has stated that the imposition of the death penalty for offences which
cannot be characterized as the most serious, including same-sex relations, is
incompatible with article 6 of the Covenant.201 In her 2000 report, the Special
Rapporteur on extrajudicial, summary or arbitrary executions expressed:

… great concern that in some States homosexual relationships are still

punishable by death. It must be recalled that under article 6 of the
International Covenant on Civil and Political Rights death sentences
may only be imposed for the most serious crimes, a stipulation which
clearly excludes matters of sexual orientation.202

The Special Rapporteur has further emphasized that “the ‘mere possibility’ that
[the death penalty] can be applied threatens the accused for years, and is a
form of cruel, inhuman or degrading treatment or punishment. Its status as a law
justifies persecution by vigilante groups, and invites abuse.”203

200
Concluding Observations of the Human Rights Committee on the Sudan (CCPR/C/79/Add.85), 1997, at
para. 8. Reports of the Special Rapporteur on extrajudicial, summar y or arbitrar y executions
(A/HRC/14/24/Add.1), 2010, at paras. 450-451; (E/CN.4/2006/53/Add.2), 2006, at para. 2;
(E/CN.4/2006/53/Add.4), 20116, at paras. 26, 35, 37, 104; (E/CN.4/2002/74), 2002, at para. 65.
201
Concluding Observations of the Human Rights Committee on the Sudan (CCPR/C/SDN/CO/3), 2007, at
para. 19.
202
Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions (E/CN.4/2000/3),
2000, at para. 57. See also report of the Special Rapporteur on extrajudicial, summary or arbitrary
executions (E/CN.4/2006/53/Add.4), 2006, at para. 37.
203
Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions (A/HRC/8/3/Add.3),
2008, at para. 76.

Sexual Orientation, Gender Identity and Sex Characteristics 47

D. CRIMINALIZATION OF LESBIAN AND BISEXUAL WOMEN
Of the 69 countries which criminalize consensual same-sex sexual relations, at
least 44 criminalize same-sex conduct between women.204 Even in jurisdictions
that do not criminalize them, lesbian and bisexual women have been subjected
to arrest or threat of arrest on the basis of sexual orientation.205 Lesbian and
bisexual women can be particularly vulnerable to certain forms of control
and abuse given that women continue to be subordinated by male-dominated
societies.206 Patriarchal attitudes and entrenched gender norms contribute to
economic deprivation, family control and a loss of sexual autonomy, which can
result in lesbian and bisexual women being forced into marriages, where they
will be subject to “a lifetime of invisible, undocumented rape.”207 Crucially,
the existence of laws which criminalize consensual same-sex relations between
women only serve to compound these difficulties, perpetuating stigma and
denying lesbian women the protection of the law.208

E. CRIMINALIZATION OF TRANSGENDER PEOPLE

In addition to transgender people facing sanctions under laws prohibiting
same-sex relations in several countries,209 some laws also specifically target
transgender people on the basis of their gender identity or expression.210
At least six countries criminalize so-called “cross-dressing”.211 In many more
countries, transgender people face arrest and prosecution on the basis of other,
often vaguely defined laws.212 In a report on Malaysia, the Special Rapporteur
204
Number updated by OHCHR as at July 2019. See also: International Lesbian, Gay, Bisexual, Trans and
Intersex Association: Lucas Ramon Mendos, State-Sponsored Homophobia 2019 (Geneva; ILGA, March
2019) Human Dignity Trust, Breaking the Silence: Criminalisation of Lesbians and Bisexual Women and
Its Impacts (May 2016), p. 4.
205
See, for example, judgment of the South African High Court in National Coalition for Gay and Lesbian
Equality v. Minister of Justice, 6 BHRC 127 (CC, 1998); 1998 (12) BCLR 1517 (CC), para. 109. Also,
Inter-American Commission on Human Rights, Report on the Situation of Human Rights in Jamaica, OEA/
Ser.L/V/II.144 Doc. 12, 10 August 2012, para. 271.
206
Human Dignity Trust, Breaking the Silence: Criminalisation of Lesbians and Bisexual Women and Its
Impacts (May 2016), pp. 15-16.
207
Ibid., pp. 23-28.
208
Committee on the Elimination of Discrimination against Women, General Recommendation No. 33 on
women’s access to justice (CEDAW/C/GC/33) 2015, paras. 8-10.
209
See, for example, opinion adopted by the Working Group on Arbitrary Detention, No. 7/2002, on Egypt
(E/CN.4/2003/8/Add.1), 2003.
210
OHCHR, Living Free and Equal: What States are doing to tackle violence and discrimination against
lesbian, gay, bisexual, transgender and intersex people, 2016, p. 57; UNAIDS, “The Gap Report”, 2014,
p. 223.
211
Human Rights Watch, “’I’m Scared to Be a Woman’ – Human Rights Abuses Against Transgender People
in Malaysia”, 2014, footnote 12.
212
Transgender Europe, Trans Respect versus Transphobia project: Criminalisation and prosecution of trans
people, 2016. Available from http://transrespect.org/.

48 BORN FREE AND EQUAL

on the right to health stated that the criminalization of different forms of gender
identity and expression:

… has reinforced negative societal attitudes and has led to serious

human rights violations of the rights of this group of the population,
including significant barriers in access to health care. Law enforcement
officials arrest transgender women and subject them to various abuses,
including humiliation in the media, and physical and verbal abuse.213

United Nations special procedures and treaty bodies have called for such laws
to be repealed.214 For example, the Human Rights Committee called on Kuwait to
repeal penal code provisions on so-called “imitation of the opposite sex” in order
to bring its legislation in line with the Covenant.215 The Human Rights Committee
has further expressed concern regarding the arbitrary arrest and detention of
transgender persons, and has called on States to put an end to such practices,
to investigate all instances of ill-treatment, and hold perpetrators accountable.216

POSITIVE PRACTICE
Samoa: Decriminalizing so-called “cross-dressing”
In Samoa, the fa’afafine are people who are predominantly assigned as male
at birth, express a range of gender expressions, including feminine ones,
and are considered by many as a third gender. While the fa’afafine form
an integral part of Samoan society and culture, the previous criminal code
issued in 1961 included a discriminatory provision (58N) that specifically
criminalized the so-called “impersonation of females” by males. In the context
of reform of the criminal code, the Samoa Law Reform Commission held
hearings and received submissions relating to this provision, including from the
Samoa Fa’afafine Association. The Commission’s final report recommended
the repeal of the provision. This recommendation was taken up and the new
penal code, adopted in 2013, no longer contains the provision.217

213
Report of the Special Rapporteur on health, on a visit to Malaysia (A/HRC/29/33/Add.1), 2015,
para. 86.
214
See for example, Committee on the Elimination of Discrimination against Women, General Recommendation
No. 35 (CEDAW/C/GC/35), 2017, para. 31(a); Report of the Special Rapporteur on health, on a visit to
Malaysia (A/HRC/29/33/Add.1), 2015, paras. 84-89, 111; Committee on Economic, Social and Cultural
Rights, Concluding Observations on Guyana (E/C.12/GUY/CO/2-4), 2015, paras. 24-25; Human Rights
Committee, Concluding Observations on Kuwait (CCPR/C/KWT/CO/2), 2011, para. 30.
215
Human Rights Committee, Concluding Observations on Kuwait (CCPR/C/KWT/CO/2), 2011, para. 30.
216
Human Rights Committee, Concluding Observations on Suriname (CCPR/C/SUR/CO/3), 2015,
paras. 27-28.
217
OHCHR, Living Free and Equal: What States are doing to tackle violence and discrimination against
lesbian, gay, bisexual, transgender and intersex people, 2016, p. 59.

Sexual Orientation, Gender Identity and Sex Characteristics 49

F. LAWS ON “DEBAUCHERY”, “VAGRANCY” AND SEX WORK
USED TO TARGET LGBT PEOPLE
Laws on “debauchery”, “vagrancy” and other laws used to penalize sex work
are often systematically applied in a discriminatory manner to target people
based on their perceived sexual orientation and gender identity, regardless
of whether or not the individuals detained are LGBT and/or engaged in
sex work.218 The wording of such laws is often vague, giving authorities
considerable leeway in determining the type of conduct deemed to fall within
the ambit of the related offence. People have been profiled and arrested
under these laws based on stereotypes about sexual orientation or gender
identity, perceived mannerisms, gender expression, style of dress, or for having
condoms in their possession.219 In addition to the repeal of other discriminatory
laws (see preceding sections), United Nations human rights experts, including
the Committee on the Elimination of Discrimination against Women220 and the
United Nations Special Rapporteur on health221, as well as United Nations
agencies222 have repeatedly emphasized that States should repeal laws that
criminalize sex workers.

Where sex work is criminalized, there have been reports of violence against
transgender sex workers not being reported or monitored and, instead of being
offered legal protection, trans sex workers being subject to police harassment,
particularly in the forms of sexual abuse, extortion and discrimination.223 There
is also reliable evidence that the criminalization of adult consensual sex work
218
See Human Rights Committee, Concluding Observations on the Philippines (CCPR/C/PHL/CO/4),
2012, para. 10; Report of the Working Group on Arbitrary Detention (A/HRC/10/21/Add.3), 2009,
para. 56; Report of the Independent Expert on protection against violence and discrimination based on
sexual orientation and gender identity (A/72/172), 2017, para. 34; OHCHR press release, “Azerbaijan:
United Nations rights experts alarmed by reports of persecution of people perceived to be gay or trans”,
Geneva 13 October 2017; OHCHR press briefing on Azerbaijan, Egypt and Indonesia/LGBT, Geneva,
13 October 2017; UNAIDS, The Gap Report, 2014, pp. 192, 217.
219
See, for example, Report of the Independent Expert on protection against violence and discrimination
based on sexual orientation and gender identity (A/HRC/38/43), 2018, para. 54; OHCHR press
statement, “Azerbaijan: United Nations rights experts alarmed by reports of persecution of people
perceived to be gay or trans”, 17 October 2017; OHCHR press briefing on Cameroon, 16 November
2012; Global Commission on HIV and the Law, Risks, Rights and Health, July 2012, p. 47
220
Committee on the Elimination of Discrimination against Women, Concluding Observations on Fiji
(CEDAW/C/FJI/CO/4), 2010, paras. 22-23 and Committee on the Elimination of Discrimination against
Women, General Recommendation No. 35 (CEDAW/C/GC/35), 2017, para. 31(a).
221
See, reports of the Special Rapporteur on Health (A/HRC/23/41), 2013, para. 60; (A/HRC/14/20),
2010, para. 76(b); report on a mission to Ghana (A/HRC/20/15/Add.1), 2012, para. 60(b).
222
Joint United Nations Statement on Ending Discrimination in Health Care Settings, July 2017 www.ohchr.
org/Documents/Issues/ESCR/InterAgencyStatementDiscriminationHealthCare.pdf.
223
Report of the Special Rapporteur on Health (A/HRC/14/20), 2010, para. 42; Committee on the
Elimination of Discrimination against Women, Concluding Observations on Kyrgyzstan (CEDAW/C/
KGZ/CO/3), 2008, para. 43; UNAIDS, The Gap Report, 2014, p. 192; UNDP, Global Commission on
HIV and the Law, “Risks, rights & health”, 2012, pp. 36-37.

50 BORN FREE AND EQUAL

increases vulnerability to HIV and other sexually transmitted infections,224
and contributes to discrimination in accessing health care,225 and stigma and
discrimination more broadly226, all of which is likely to have a disproportionate
impact on LGBT people in countries where they are targeted on grounds of
“debauchery”, “vagrancy” and other laws used to penalize sex work.

G. CONCLUSION
The discriminatory laws described here violate State obligations under
international law to uphold rights to inter alia equality, non-discrimination,
privacy, liberty and security of the person, and freedom of expression,
association and assembly, and give rise to a number of separate but interrelated
violations. The application of the death penalty for consensual sexual conduct
is furthermore in violation of the right to life. Arresting or detaining individuals
on discriminatory grounds, including on the basis of their sexual orientation or
gender identity and expression, is likewise prohibited by the guarantee against
arbitrary detention. Even if never enforced, such laws are in breach of State
obligations under international human rights law. States should immediately
repeal all laws criminalizing private, consensual same-sex conduct, so-called
“cross-dressing”, laws criminalizing sex workers, other discriminatory laws
used to arbitrarily arrest, harass and discriminate against LGBT people, and
discriminatory laws restricting freedom of expression, association and peaceful
assembly, including so-called “anti-propaganda laws” (see Chapter V).

224
WHO, UNFPA, UNAIDS, Global Network of Sex Work Projects. “Prevention and treatment of
HIV and other sexually transmitted infections for sex workers in low- and middle-income countries:
Recommendations for a public health approach”, 2012, p. 16; UNAIDS, “We can remove punitive laws,
policies, practices, stigma and discrimination that block effective responses to HIV”, 2010, p. 7; Report of
the Special Rapporteur on violence against women (E/CN.4/2000/68/Add.5), 2000, para. 51.
225
Committee on Economic, Social and Cultural Rights, Concluding Observations on Kyrgyzstan (E/C.12/
KGZ/CO/2-3), 2015, para. 22(a)
226
See joint United Nations statement on ending discrimination in health care settings, 2017, available at
http://www.unaids.org/sites/default/files/media_asset/ending-discrimination-healthcare-settings_en.pdf;
Report of the Working Group on discrimination against women (A/HRC/32/44), 2016, para. 76.

Sexual Orientation, Gender Identity and Sex Characteristics 51

IV. PROHIBIT AND ADDRESS
DISCRIMINATION

Everyone is entitled to enjoy all human rights without discrimination, including

on the basis of sexual orientation, gender identity and expression, and sex
characteristics. This right is protected by the provisions of the Universal
Declaration of Human Rights and core international human rights treaties on
non-discrimination, equality before the law and equal protection of the law,
including the non-exhaustive list below.

Universal Declaration of Human Rights

Article 2: Everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth, or
other status.
Article 7: All are equal before the law and are entitled without any discrimination
to equal protection of the law. All are entitled to equal protection against any
discrimination in violation of this Declaration and against any incitement to such
discrimination.

International Covenant on Civil and Political Rights

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 present Covenant, without distinction of any kind, such
as race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.
Article 26: All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law shall
prohibit any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as race, colour, sex,
language, religion, political or other opinion, national or social origin, property,
birth or other status.

52 BORN FREE AND EQUAL

International Covenant on Economic, Social and Cultural Rights
Article 2: The States Parties to the present Covenant undertake to guarantee
that the rights enunciated in the present Covenant will be exercised without
discrimination of any kind as to race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or other status.
Convention on the Rights of the Child
Article 2: States Parties shall respect and ensure the rights set forth in the present
Convention to each child within their jurisdiction without discrimination of any
kind, irrespective of the child’s or his or her parent’s or legal guardian’s race,
colour, sex, language, religion, political or other opinion, national, ethnic or
social origin, property, disability, birth or other status.

Convention on the Elimination of All Forms of Discrimination

against Women
Article 2(f): States Parties condemn discrimination against women in all its forms,
agree to pursue by all appropriate means and without delay a policy of eliminating
discrimination against women and, to this end, undertake: to take all appropriate
measures, including legislation, to modify or abolish existing laws, regulations,
customs and practices which constitute discrimination against women.

© AJP/Shutterstock.com

Sexual Orientation, Gender Identity and Sex Characteristics 53

A. POSITIONS TAKEN BY UNITED NATIONS HUMAN RIGHTS
MECHANISMS
In addition to the discriminatory laws outlined in Chapter III, LGBTI persons also
experience discrimination in practice, in the form of social stigma, exclusion, and
bias in public and private life, at work, at home, at school and in health care
institutions. Yet, international human rights law prohibits discrimination on grounds of
sexual orientation, gender identity and sex characteristics; in the same way as race,
sex, colour, or religion, they are not permissible reasons for making distinctions.
International law defines discrimination as any distinction, exclusion, restriction
or preference, or other differential treatment, that is directly or indirectly based
on a prohibited ground of discrimination and that has the intention or effect
of nullifying or impairing the recognition, enjoyment or exercise, on an equal
footing, of rights guaranteed under international law.227 Differences in treatment
based on prohibited grounds are considered discriminatory, unless a State can
show that there is a justification for the difference in treatment that is reasonable,
objective, necessary and proportionate, and if the difference in treatment is
otherwise compatible with international human rights law.228
The Universal Declaration of Human Rights, the International Covenant on Civil and
Political Rights, the International Covenant on Economic, Social and Cultural Rights,
and the Convention on the Rights of the Child all include lists of prohibited grounds
of discrimination in their non-discrimination guarantees. These lists all commence with
the words “such as” and/or conclude with the words “other status”, emphasizing that
they are open-ended, illustrative and not limited to the grounds explicitly listed in
the treaties. According to the Committee on Economic, Social and Cultural Rights:
The nature of discrimination varies according to context and evolves
over time. A flexible approach to the ground of “other status” is
thus needed in order to capture other forms of differential treatment
that cannot be reasonably and objectively justified and are of a
comparable nature to the expressly recognized grounds in article 2,
paragraph 2. These additional grounds are commonly recognized
when they reflect the experience of social groups that are vulnerable
and have suffered and continue to suffer marginalization.229

227
See the International Convention on the Elimination of All Forms of Racial Discrimination, art. 1; the
Convention on the Elimination of All Forms of Discrimination against Women, art. 1; and the Convention
on the Rights of Persons with Disabilities, art. 2; Human Rights Committee, General Comment No. 18,
1989, para. 7; Committee on Economic, Social and Cultural Rights, General Comment No. 20 (E/C.12/
GC/20), 2009, para. 7.
228
See for example, Committee on Economic, Social and Cultural Rights, General Comment No. 20 (E/C.12/
GC/20), 2009, para. 13; Human Rights Committee, General Comment No. 18, 1989, para. 13.
229
Committee on Economic, Social and Cultural Rights, General Comment No. 20 (E/C.12/GC/20), 2009,
para. 27.

54 BORN FREE AND EQUAL

In their jurisprudence, general comments, concluding observations, reports and
communications, United Nations treaty bodies and special procedures have
repeatedly held that sexual orientation, gender identity and sex characteristics are
prohibited grounds of discrimination under international law (see section on core
legal obligations of States). All lists of prohibited grounds of discrimination in treaties
include “sex”, which the Human Rights Committee has interpreted as including
sexual orientation, and also contain reference to “other status”, which treaty bodies
have interpreted as including sexual orientation and gender identity.230 Treaty
bodies have called on States to adopt anti-discrimination legislation that explicitly
includes sexual orientation, gender identity and sex characteristics as grounds for
protection and have welcomed enactment of such legislation.231

B. PARTICULAR AREAS OF CONCERN

The right to be protected against discrimination on the basis of sexual
orientation, gender identity and sex characteristics applies to the enjoyment
of all civil, political, economic, social and cultural rights. Particular areas of
concern – including discrimination on multiple grounds, health, pathologization,
education, employment, housing, recognition of gender identity, access to
justice, discrimination within the family and community, relationship recognition
and political participation and consultation – are discussed below. Treaty
bodies and special procedures have also noted discrimination in access to
other basic services, such as access to social benefits.232
230
See, for example, Human Rights Committee, Toonen v. Australia, Communication No. 499/1992 (CCPR/
C/50/D/499/1992), paras. 8.7; Committee on Economic, Social and Cultural Rights, General Comments
No. 20 (E/C.12/GC/20), 2009, paras. 32; Committee on the Rights of the Child, General Comments No. 13
(CRC/C/GC/13), 2011, paras. 60, 72(g); Committee against Torture, General Comments No. 2 (CAT/C/
GC/2), 2008, para. 21, and No. 3 (CAT/C/GC/3), 2012, paras. 32, 39; Committee on the Elimination of
Discrimination against Women, General Recommendation No. 28 (CEDAW/C/GC/28), 2010, para. 18.
231
Committee on the Rights of the Child, Concluding Observations on Poland (CRC/C/POL/CO/3-4), 2015,
at para. 16(c); Guyana (CRC/C/GUY/CO/2-4), 2013, at para. 24; Australia (CRC/C/AUS/CO/4),
2012, at para. 29; New Zealand (CRC/C/NZL/CO/3-4), 2011, at para. 25; Slovakia (CRC/C/SVK/
CO/2), 2007, at para. 27; Malaysia (CRC/C/MYS/CO/1), 2007, at para. 31; China (CRC/C/CHN/
CO/2), 2005, at para. 31; Isle of Man, United Kingdom (CRC/C/15/Add.134), 2000, at para. 22.
Human Rights Committee, Concluding Observations on Sweden (CCPR/C/SWE/CO/7), 2016, at
para. 3; Greece (CCPR/CO/83/GRC), 2005, at para. 5; Denmark (CCPR/C/DNK/CO/5), 2008, at
para. 4; France (CCPR/C/FRA/CO/4), 2008; Committee on the Elimination of Discrimination against
Women, Concluding Observations on Montenegro (CEDAW/C/MNE/CO/1), 2014, at para. 4(b). Also
see joint statement of United Nations and international human rights experts, “End violence and harmful
medical practices on intersex children and adults”, 24 October 2016.
232
Human Rights Committee, Concluding Observations on the Russian Federation (CCPR/C/RUS/CO/6),
2009, at para. 27; Japan (CCPR/C/JPN/CO/5), 2008, at para. 29; Committee on Economic, Social
and Cultural Rights, General Comment No. 20 (E/C.12/GC/20), 2009, at para. 32; Reports of the
Special Rapporteur on housing (A/HRC/10/7/Add.3), 2009, at para. 50; (A/HRC/7/16), 2008; (A/
HRC/4/18/Add.2), 2007, at para. 125; (E/CN.4/2006/118), 2006, at para. 30; (E/CN.4/2005/43),
2005, at para. 63; Reports of the Special Rapporteur on health, (E/CN.4/2004/49), 2004, at para. 38;
(E/CN.4/2003/58), 2003, at para. 68; Reports of the Special Rapporteur on the right to education (E/
CN.4/2006/45), 2006, at para. 113; (E/CN.4/2001/52), 2001, at para. 75; Report of the Special
Rapporteur on violence against women (E/CN.4/2005/72/Add.1), 2005, at paras. 232-234.
Sexual Orientation, Gender Identity and Sex Characteristics 55
C. DISCRIMINATION ON MULTIPLE GROUNDS
A wide range of United Nations human rights bodies have recognised that
discrimination based on sexual orientation, gender identity and/or sex
characteristics is commonly compounded by discrimination on other grounds,
including gender, race, age, religion, disability, health, immigration status and
economic status.233

For example, the Special Rapporteur on violence against women has noted this
in relation to the murders of black lesbian women,234 as well as violence against
women with disabilities:

Lesbians and other sexual minorities who identify as female and who
have disabilities confront social barriers, isolation, exclusion and
violence due to both sexual minority status and disability.235

In its General Comment No. 28, the Committee on the Elimination of

Discrimination against Women has called on States to integrate within anti-
discrimination legislation intersecting forms of discrimination, including on
grounds of sex, gender, race, ethnicity, religion or belief, health, status, age,
class, caste, sexual orientation and gender identity, and to implement policies
and programmes designed to eliminate such occurrences.236

D. HEALTH
LGBTI people face a variety of impediments in exercising the right to the highest
attainable standard of health, a right guaranteed inter alia by article 12(1) of
the International Covenant on Economic, Social and Cultural Rights, and article
24 of the Convention on the Rights of the Child. In its General Comment on
article 12, the Committee on Economic, Social and Cultural Rights stated:

233
Report of the High Commissioner for Human Rights on discrimination and violence based on sexual
orientation and gender identity (A/HRC/29/23), 2015, at para. 42; Committee on Economic, Social and
Cultural Rights, General Comment No. 22 (E/C.12/GC/22), 2016, para. 2; Report of the Special
Rapporteur on extrajudicial executions (A/HRC/35/23), 2017, paras. 20-23, 96(c); Committee on
Migrant Workers, Concluding Observations on Jamaica (CMW/C/JAM/CO/1), 2017, para. 62 and
Concluding Observations on Belize (CMW/C/BLZ/CO/1), 2014, paras. 18-19; Committee on the
Rights of Persons with Disabilities, Concluding Observations on Lithuania (CRPD/C/LTU/CO/1), 2016,
paras. 15-16 and Concluding Observations on Uganda (CRPD/C/UGA/CO/1), 2016, paras. 8-9; CERD,
Concluding Observations on Uruguay (CERD/C/URY/CO/21-23), 2017, para. 27, and Concluding
Observations on Germany (CERD/C/DEU/CO/19-22), 2015, para. 16.
234
Report of the Special Rapporteur on violence against women (A/HRC/20/16), 2012, para. 73.
235
Report of the Special Rapporteur on violence against women (A/67/227), 2012, at para. 27.
236
Committee on the Elimination of Discrimination against Women, General Comment No. 28 (CEDAW/C/
GC/28), 2010, at para. 18.

56 BORN FREE AND EQUAL

 © Gender Spectrum Collection/Zackary Drucker
The right to health contains both freedoms and entitlements. The
freedoms include the right to control one’s health and body, including
sexual and reproductive freedom, and the right to be free from
interference, such as the right to be free from torture, non-consensual
medical treatment and experimentation. By contrast, the entitlements
include the right to a system of health protection which provides
equality of opportunity for people to enjoy the highest attainable level
of health.237 (See also Chapter II)

In its General Comments, the Committee on Economic, Social and Cultural

Rights has stated that the Covenant proscribes any discrimination in access
to health care on the grounds of sexual orientation and gender identity.238
Ensuring the “right of access to health facilities, goods and services on a non-
discriminatory basis, especially for vulnerable or marginalized groups” is an
immediate obligation of States.239 The Committee on the Rights of the Child has
also highlighted the obligation of States to ensure that children’s health is not
undermined as a result of discrimination on grounds of a child’s, parent’s or
legal guardian’s sexual orientation and gender identity.240

The criminalization of consensual same-sex sexual conduct, so-called “cross-

dressing” and other discriminatory laws (see Chapter III) has a negative effect
on the right to health of LGBT persons. It leads to poorer health outcomes as
237
Committee on Economic, Social and Cultural Rights, General Comment No. 14 (E/C.12/2000/4), 2000,
at para. 8.
238
Ibid., at para. 18 and Committee on Economic, Social and Cultural Rights, General Comment No. 20
(E/C.12/GC/20), at para. 32.
239
Committee on Economic, Social and Cultural Rights, General Comment No. 14 (E/C.12/2000/4), 2000,
at para. 43(a).
240
Committee on the Rights of the Child, General Comment No. 15 (CRC/C/GC/15), 2013, para 8.

Sexual Orientation, Gender Identity and Sex Characteristics 57

a result of violence and abuse, stigma, denial of access to health services,
discriminatory attitudes on the part of health professionals, and because it deters
individuals from seeking health care out of fear that they may be reported to
law enforcement officials and face prosecution.241

Criminalization also perpetuates stigma by reinforcing existing prejudices and

stereotypes, which in turn prevents legislative and policy-making institutions
from adequately addressing health-related matters in vulnerable communities.242
States must repeal these discriminatory laws in order to meet core obligations of
the right to health, including creating an enabling environment, facilitating the
exchange of information and reducing fear and stigma.243

Discriminatory laws also have a negative impact on public health campaigns

against HIV/AIDS.244 The World Health Organization and UNAIDS have
further stressed that laws that penalize possession of condoms and lubricants
negatively impact the prevention of HIV transmission and HIV incidence for key
populations, including men who have sex with men and transgender women.245

LGBTI people also commonly face discrimination in accessing health services

and information, sometimes in contexts where they do not face penal sanctions.
For example, the Committee on the Rights of the Child has expressed concern
that “young people do not have access to the appropriate information, support
and necessary protection to enable them to live their sexual orientation.”246

The World Health Organization has noted that transgender and gender
non-conforming people worldwide experience substantial health disparities
and barriers in accessing appropriate health services.247 Such obstacles are
prevalent in access to general health services, as well as access to gender-
affirming care. Health-care professionals are often insensitive to the needs of

241
Report of the Special Rapporteur on health (A/HRC/14/20), 2010, at paras. 6-26.
242
Ibid., at paras. 22-23, 39-40.
243
Ibid., at paras. 26, 76; See also, report of the Special Rapporteur on health (A/HRC/23/41), 2013 at
para. 60.
244
Concluding Observations of the Human Rights Committee on Cameroon (CCPR/C/CMR/CO/4), 2010, at
para. 12; Jamaica (CCPR/C/JAM/CO/3), 2011, at para. 9. See also, UNAIDS, The Gap Report, 2014,
pp. 191-193, 217-255; Toonen v. Australia, Communication No. 488/1992 (CCPR/C/50/D/488/1992),
1994, at para. 8.5.
245
UNAIDS, “Guidance note: Condom and lubricant programming in high HIV prevalence countries”, 2014,
p. 8; WHO, “Brief sexuality-related communication: recommendations for a public health approach”,
2015.
246
Committee on the Rights of the Child, Concluding Observations on the United Kingdom (CRC/C/15/
Add.188), 2002, para. 43.
247
WHO, “Sexual Health, Human Rights and the Law”, 2015, p. 24.

58 BORN FREE AND EQUAL

transgender persons and lack the necessary professional training.248 Effective
procedures are also needed to ensure patient privacy and confidentiality. This is
especially important for LGBTI people, for whom a breach of confidentiality can
greatly increase risk of exposure to violence and discrimination.249

Many trans people do not fit easily within binary sex-segregated categories of health
services targeted at cisgender women and men. For example, trans women may
require prostate examinations and trans men may require cervical smears. Trans
people have died after being denied access to these and other life-saving services.250

Gender-affirming services, where available, are often prohibitively expensive

and State funding or insurance coverage is rarely available. As a result, trans
people may be forced into unsafe alternatives.251 In some States, transgender
people are forced or coerced to undergo psychological assessment, diagnosis,
surgery or sterilization as a prerequisite to legal recognition of their gender,
which infringes rights guaranteed under international law (see Chapter II, and
section below on recognition of gender identity).

Trans people also often face unique, discriminatory barriers in accessing

bathroom facilities. The Special Rapporteur on the human right to safe drinking
water and sanitation has documented evidence of transgender and gender
non-conforming persons facing exclusion, denial of access, verbal harassment,
physical abuse and even arrest when using bathrooms.252 He has stressed that
States must take all necessary measures to remove such barriers and ensure
that everyone is able to use the toilet corresponding to their gender identity,
without discrimination.253 As the Committee on Economic, Social and Cultural
Rights has noted, the right to sanitation, while being a distinct right,254 is also
integrally related to the right to health.255

248
Council of Europe Commissioner for Human Rights, “Human Rights and Gender Identity”, 2009, para. 3.3;
WHO, “Prevention and treatment of HIV and other sexually transmitted infections”, 2011 pp. 30-31.
249
WHO, “Sexual Health, Human Rights and the Law”, p. 16; UNDP, “Discussion paper: trans health and
human rights”, 2013, p. 17; report of the Special Rapporteur on Health (A/HRC/14/20), 2010,
para. 21.
250
UNDP, “Discussion paper: trans health and human rights”, 2013, p. 17.
251
Ibid., p. 21.
252
Repor ts of the Sp e cial Rappor teur on the human right to safe drinking water and sanitation
(A/HRC/21/42) 2012, at para. 40; (A/HRC/33/49) 2016, para. 30.
253
Report of the Special Rapporteur on the human right to safe drinking water and sanitation (A/HRC/33/49)
2016, paras. 9, 31 and 48.
254
General Assembly resolution on the human right to water and sanitation (A/RES/64/292).
255
Committee on Economic, Social and Cultural Rights, Statement on the right to sanitation, (E/C.12/2010/1),
2011, para. 7.

Sexual Orientation, Gender Identity and Sex Characteristics 59

Because of the shame and trauma inflicted through their early encounters with
medical providers, sometimes involving non-consensual surgery and treatment,
intersex people often avoid accessing healthcare altogether.256 The medical field’s
intense focus on early irreversible interventions effectively limits the care that is
available for intersex adults.257 In addition to prohibiting medically unnecessary
surgery and procedures on intersex children (see Chapter II), and discrimination
against intersex people, United Nations human rights experts have also called on
States to ensure that intersex children and adults have access to “medical services
that respond to their specific health needs and that are based on non-discrimination,
informed consent and respect for their fundamental rights”, and have emphasized
that “it is critical to strengthen the integration of these human rights principles in
standards and protocols issued by regulatory and professional bodies.”258

E. PATHOLOGIZATION
International and regional human rights experts have noted that medical
classifications that pathologize LGBTI people – i.e. label them as ill, disordered,
malformed or abnormal on the basis of their sexual orientation, gender identity/
expression or sex characteristics – are one of the root causes of the violence,
discrimination and stigma they face.259 In some contexts, legislation that criminalizes
LGBT people, as well as violence and ill-treatment of LGBTI people in medical and
other settings, has been justified on the basis of such outdated classifications (see
also Chapter II). These classifications can also create significant barriers for LGBTI
people in accessing services that address their actual health needs, and in some
countries pose a grave obstacle to legal recognition of gender identity.260

In almost all countries, transgender persons are treated as ill or disordered, and
intersex people as malformed or defective, based on existing international and
national medical classifications.261 Although the World Health Organization

256
Human Rights Watch, “Medically Unnecessary Surgeries on Intersex Children in the US”, July 2017.
257
Ibid.
258
See joint statement of United Nations and international human rights experts, “End violence and harmful
medical practices on intersex children and adults”, 24 October 2016.
259
OHCHR, Living Free and Equal: What States are doing to tackle violence and discrimination against
lesbian, gay, bisexual, transgender and intersex people, 2016, pp. 74-75; Joint statement of United
Nations and regional human rights experts, “Pathologization – Being lesbian, gay, bisexual and/or trans
is not an illness”, 17 May 2016; Report of the Independent Expert on protection against violence and
discrimination based on sexual orientation and gender identity, (A/73/152), 2018, paras. 10-16.
260
Report of the Special Rapporteur on health (A/HRC/35/21), 2017, para. 48; Council of Europe
Commissioner for Human Rights, Issue Paper: Human Rights and Gender Identity, 2009, available at
https://rm.coe.int/16806da753.
261
See UNDP, “Trans health and human rights”, 2013, pp. 20-21; UN Free and Equal Fact Sheet: Intersex;
Committee on Economic, Social and Cultural Rights, Concluding Observations on Germany (E/C.12/
DEU/CO/5), 2011, para. 26.

60 BORN FREE AND EQUAL

removed homosexuality from its classification of diseases in 1990, a number of
countries still classify homosexuality as an illness.

United Nations and regional human rights mechanisms have called for the
reform of outdated medical classifications that pathologize LGBTI persons, in
particular transgender and intersex adults, adolescents and children, and for
measures to ensure that LGBTI people can access health services, including
gender-affirming healthcare for trans people, based on informed consent and
free from stigma, pathologization and discrimination.262

F. EDUCATION
United Nations treaty bodies have expressed concern about the impact of
discrimination in schools and other educational settings on the ability of young
LGBT, intersex and gender non-conforming people to enjoy their right to
education.263 In some cases, education authorities and schools have actively
discriminated against, refused admission to, or expelled young people because of
their sexual orientation or gender identity or expression, in violation of children’s
and adolescents’ rights to education, to non-discrimination and to respect for
gender identity.264 LGBTI youth frequently experience bullying, violence and
harassment in school from classmates and teachers (see also the Chapter I, section
on other violence).265 They may also be subject to “implicit” violence in education
policies, regulations, curricula, teaching materials and teaching practices.266

262
Joint statements of international and regional human rights experts, “Pathologization – Being lesbian, gay,
bisexual and/or trans is not an illness”, 17 May 2016, and “End violence and harmful medical practices
on intersex children and adults”, 24 October 2016. See also Council of Europe Commissioner for Human
Rights, “Issue Paper: Human rights and intersex people”, 2015.
263
See, for example, Human Rights Committee, Concluding Observations on Mexico (CCPR/C/MEX/
CO/5), 2010, para. 21; Committee on Economic, Social and Cultural Rights, Concluding Observations
on Poland (E/C.12/POL/CO/5), 2009, paras. 12-13; Committee on the Rights of the Child, General
Comment No. 3 (CRC/GC/2003/3), 2003, para. 8; No. 13 (CRC/C/GC/13), 2011, paras. 60 and
72 (g); No. 20 (CRC/C/GC/20), 2016, paras. 33-34; Committee on the Rights of the Child, Concluding
Observations on New Zealand (CRC/C/NZL/CO/3-4), 2011, para. 25; Slovakia (CRC/C/SVK/CO/2),
2007, paras. 27-28; and Malaysia (CRC/C/MYS/CO/1), 2007, para. 31.
264
Report of the Special Rapporteur on the right to education (E/CN.4/2006/45), 2006, para. 113;
Human Rights Committee, Concluding Observations on Mexico (CCPR/C/MEX/CO/5), 2010, para. 21;
Committee on Economic, Social and Cultural Rights, Concluding Observations on Poland (E/C.12/POL/
CO/5), 2009, para. 32. Committee on the Rights of the Child, General Comment No. 20 emphasizes the
right of adolescents to respect for their gender identity – see (CRC/C/GC/20), 2016, at para.34.
265
See, for example, Reports of the Special Rapporteur on the right to education (E/CN.4/2001/52),
para. 75, and (E/CN.4/2006/45), 2006, para. 113; Human Rights Committee, Concluding Observations
on Mexico (CCPR/C/MEX/CO/5), 2010, para. 21; Report of the independent expert for the United
Nations study on violence against children (A/61/299), 2006, para. 52.
266
UNESCO, “Education sector responses to violence based on sexual orientation and gender identity/
expression”, 2016, p. 25.

Sexual Orientation, Gender Identity and Sex Characteristics 61

 © UN Cabo Verde/Yanick
Discrimination in education can have a life-long impact, for example by
excluding LGBTI people from accessing gainful employment.267 In its General
Comment No. 20, the Committee on the Rights of the Child called on States
to “take effective action to protect all lesbian, gay, bisexual, transgender and
intersex adolescents from all forms of violence, discrimination or bullying by
raising public awareness and implementing safety and support measures.”268

Isolation and stigma may generate low self-esteem and depression, and contribute
to truancy, absenteeism, children being forced out of school and, in extreme cases,
suicide.269 A study from New Zealand, in 2014, showed that lesbian, gay and
bisexual students were three times more likely to be bullied than their heterosexual
peers, and transgender students were five times more likely to be bullied than non-
transgender students.270 Research undertaken in Australia revealed that 18% of
people with intersex variations had only had a primary school education – nine
times the level in the general Australian population (2%).271

267
International Labour Organization, Results of the ILO’s PRIDE Project, “Gender Identity and Sexual
Orientation: Promoting Rights, Diversity and Equality in the World of Work”, 2016, p. 2.
268
Ibid.
269
See, for example, report of the Special Rapporteur on the right to education (E/CN.4/2006/45), 2006,
para. 113; Report of the Special Rapporteur on violence against women (E/CN.4/2003/75/Add.1),
2003, para. 1508; Committee on the Rights of the Child, General Comment No. 20 (CRC/C/GC/20),
2016, para. 33.
270
UNESCO, “Out in the Open: Education Sector Responses to Violence Based on Sexual Orientation and
Gender Identity/Expression”, 2016, p. 23.
271
UNESCO, “From Insult to Inclusion: Asia-Pacific report on school bullying, violence and discrimination on
the basis of sexual orientation and gender identity”, 2015, p. 38.

62 BORN FREE AND EQUAL

The right to education includes the right to receive comprehensive, accurate
and age-appropriate information regarding sexuality, in order to ensure young
people can lead healthy lives, make informed decisions and protect themselves
and others from sexually transmitted infections.272 In order to be comprehensive,
sexuality education must pay special attention to diverse sexual orientations,
gender identities and sex characteristics.273 In a 2014 report, the Special
Rapporteur on freedom of opinion and expression expressed concern that, in
some countries, child protection arguments were being used to block access to
information on LGBTI issues, or to provide negatively biased information (see
also Chapter V).274

Confronting prejudice and bullying against young LGBTI people in education

requires authorities and schools to actively combat discrimination and ensure
school curricula integrate diversity positively. The United Nations study on
violence against children recommended that States “encourage schools to
adopt and implement codes of conduct applicable to all staff and students that
confront all forms of violence, taking into account gender-based stereotypes
and behaviour and other forms of discrimination,” and “specific programmes
which address the whole school environment including through … implementing
anti-bullying policies and promoting respect for all members of the school
community”.275

G. EMPLOYMENT
The Committee on Economic, Social and Cultural Rights has stated that the
International Covenant on Economic, Cultural and Social Rights requires States,
as a minimum core obligation, to “guarantee through law the exercise of the
right [to work] without discrimination of any kind as to … sexual orientation,

272
See Committee on the Rights of the Child, General Comment No. 4 (CRC/GC/2003/4), 2003, paras. 26
and 28 and Committee on the Elimination of Discrimination against Women, General Comment
No. 36 (CEDAW/C/GC/36), 2017, paras 68-69. See also International Conference on Population and
Development, Programme of Action, para. 7.47; Commission on Population and Development resolution
2009/1, para. 7; UNESCO International Technical Guidance on Sexuality Education, sections. 2.3 and
3.4; Human Rights Committee, Concluding Observations on the Republic of Korea (CCPR/C/KOR/CO/4)
2015, para. 15.
273
Report of the Special Rapporteur on the right to education (A/65/162), 2010, para. 23. See also UNFPA,
Comprehensive sexuality education, at www.unfpa.org/comprehensive-sexuality-education; and World
Health Organization Regional Office for Europe and the Federal Centre for Health Education “Standards
for Sexuality Education in Europe”, 2010, incl. p. 27.
274
Report of the Special Rapporteur on the right to freedom of opinion and expression (A/69/335), 2014,
paras. 39, 43, 44, 53.
275
Report of the independent expert for the United Nations study on violence against children (A/61/299),
2006, para. 111.

Sexual Orientation, Gender Identity and Sex Characteristics 63

gender identity, intersex status.”276 This obligation includes refraining from
denying or limiting access to decent work, especially for “disadvantaged and
marginalized groups and individuals”277 and ensuring that hiring, promotion
and termination are not discriminatory against LGBTI persons.278 Furthermore,
relevant legislation should criminalize and punish sexual and other forms of
harassment in the workplace, with explicit reference to harassment on the basis
of sexual orientation, gender identity and sex characteristics.279

Two International Labour Organization (ILO) recommendations explicitly refer

to discrimination on the basis of sexual orientation,280 in addition to the more
general prohibition contained in the Discrimination (Employment and Occupation)
Convention. Research undertaken by the ILO in Argentina, Costa Rica, France,
Hungary, India, Indonesia, Montenegro, South Africa and Thailand points to the
prevalence of discrimination against LGBT people in the workplace on the basis of
their sexual orientation and/or gender identity, both in relation to hiring practices281
and throughout the employment cycle.282 In extreme cases, this may “result in LGBT
workers being bullied, mobbed, and sexually or physically assaulted.”283 Lesbian,
gay and bisexual people reported facing stereotyping and invasive questioning in
the workplace regarding their sexuality, as well as pressure to conform to stereotyped
masculine or feminine dress and mannerisms.284 Transgender people reported
276
Committee on Economic, Social and Cultural Rights, General Comment No. 23 (E/C.12/GC/23), 2016,
at para. 65(a); and General Comment No. 18 (E/C.12/GC/18), 2006, para. 12(b)(1).
277
Committee on Economic, Social and Cultural Rights, General Comment No. 18 (E/C.12/GC/18), 2006,
at para. 23.
278
Committee on Economic, Social and Cultural Rights, General Comment No. 23 (E/C.12/GC/23), 2016,
at para. 31.
279
Ibid., at para. 48. See also Human Rights Committee, Concluding Observations on United States of
America (CCPR/C/USA/CO/3/Rev.1), 2006; on Cambodia (CCPR/C/KHM/CO/2), 2015, para. 9;
Committee on Economic, Social and Cultural Rights, Concluding Observations on Guatemala (E/C.12/
GTM/CO/3), 2014, para. 9; Report of the Independent Expert on the enjoyment of all human
rights by older persons, mission to Austria (A/HRC/30/43/Add.2), 2015, paras. 18, 100.
280
Paragraph 9 of the Private Employment Agencies Recommendation, 1997 (No. 188) includes the
ground of “sexual orientation”. Paragraph 14 of the HIV and AIDS Recommendation, 2010 (No. 200)
recommends that “[m]easures should be taken in or through the workplace to reduce the transmission
of HIV and alleviate its impact by […] (e) promoting the involvement and empowerment of all workers
regardless of their sexual orientation and whether or not they belong to a vulnerable group”.
281
See, for example, “PRIDE at work: A study on discrimination at work on the basis of sexual orientation
and gender identity in Thailand”, ILO, 2015, p.30; “ORGULLO (PRIDE) en el trabajo - Un estudio sobre
la discriminación en el trabajo por motivos de orientación sexual e identidad de género en Argentina”,
ILO, 2015, pp. 28-29.
282
International Labour Organization, Results of the ILO’s PRIDE Project, “Gender Identity and Sexual
Orientation: Promoting Rights, Diversity and Equality in the World of Work”, 2016, p. 2, available at
www.ilo.org/wcmsp5/groups/public/---dgreports/---gender/documents/briefingnote/wcms_481575.pdf.
See also ILO, Final report on Meeting of Experts on Violence against Women and Men in the World of
Work (MEVWM/2016/7), 2016, p. 40 at para. 12.
283
Ibid.
284
See, for example, International Labour Organization, “PRIDE at work: a study on discrimination at work
on the basis of sexual orientation and gender identity in South Africa”, ILO, 2016, pp.14, 17-19.

64 BORN FREE AND EQUAL

high rates of exclusion from formal employment, discrimination and harassment
in the workplace, and discouragement from using bathrooms appropriate to their
gender.285 This is exacerbated for trans people whose documentation does not match
their identity.286 Discrimination and exclusion from the formal economy leave many
with no option but to work in the informal economy and unregulated sectors,287 which
increases the risk of exploitation and abuse. A survey of intersex people revealed
higher unemployment levels and lower average income than for non-intersex people,
as well as instances of stigma, harassment and discrimination at work.288 In 2016,
67 States afforded protection against discrimination in employment based on sexual
orientation, whereas only 20 protected against discrimination based on gender
identity/expression, and only three protected intersex people from discrimination.289

H. HOUSING
The International Covenant on Economic, Cultural and Social Rights enshrines the
right of everyone to adequate housing, without discrimination, and requires States
parties to immediately adopt the necessary measures to prevent, diminish and
eliminate the conditions and attitudes which cause or perpetuate substantive or
de facto discrimination in access to housing.290 This includes legislation to ensure
that individuals and entities in the private sphere do not discriminate on prohibited
grounds, 291 including sexual orientation, gender identity and sex characteristics.

LGBT people experience discrimination in access to housing as a result of unfair

treatment by public and private landlords. Concerns include LGBT individuals
and same-sex couples denied leases, harassed by neighbours and evicted or
forced out of their homes, including in public housing.292 More research needs

285
See, for example, International Labour Organization, “Fierté (PRIDE) au travail: une étude sur la
discrimination au travail pour motifs d’orientation sexuelle et d’identité de genre (en France)”, ILO, 2016,
pp. 47, 49; “PRIDE at work: A study on discrimination at work on the basis of sexual orientation and
gender identity in Thailand”, ILO, 2015, pp. 30-33; “PRIDE at work: a study on discrimination at work on
the basis of sexual orientation and gender identity in Indonesia”, ILO, 2016, p. 23.
286
International Labour Organization, “Discrimination at work on the basis of sexual orientation and gender
identity: Results of the ILO’s PRIDE Project”, 2015, p. 1.
287
International Labour Organization, “Discrimination at work on the basis of sexual orientation and gender
identity: Results of the ILO’s PRIDE Project”, 2015, p. 2.
288
Jones, Carpenter et al, “Intersex: stories and statistics from Australia”, Open Book Publishers, 2016.
289
OHCHR, Living Free and Equal: What States are doing to tackle violence and discrimination against
lesbian, gay, bisexual, transgender and intersex people, 2016, p. 67.
290
International Covenant on Economic, Social and Cultural Rights article 11(1), Committee on Economic,
Social and Cultural Rights, General Comment No. 7 (E/1992/23), 1992 and General Comment No. 20
(E/C.12/GC/20), 2009, para. 8.
291
Committee on Economic, Social and Cultural Rights, General Comment No. 20 (E/C.12/GC/20), 2009,
para. 11.
292
Report of the Special Rapporteur on the right to housing (A/70/270), 2015, para. 49. See also European
Union Agency for Fundamental Rights, EU LGBT Survey: Results at a Glance, 2014, p. 18.

Sexual Orientation, Gender Identity and Sex Characteristics 65

 © Photo by Mick De Paola on Unsplash
to be undertaken to assess the level of discrimination faced by intersex people in
accessing housing.

The Special Rapporteur on housing has noted that individuals facing discrimination
on the basis of sexual orientation or gender identity are at greater risk of
homelessness.293 In a 2015 report, she also noted that LGBTI young people face
stigmatization and social exclusion from their families and communities, are more
vulnerable to violence and are more likely to be turned away from shelters.294 The
Special Rapporteur on water and sanitation has drawn attention to research from
India indicating that transgender persons face difficulties in finding rental housing
and are often forced to live in remote slum areas.295

A 2012 survey of 354 support agencies in the United States suggested that
some 40 per cent of homeless youth identify as LGBT, with family rejection the
leading cause of homelessness among this group.296

293
Reports of the Special Rapporteur on the right to housing (A/HRC/31/54), 2015, paras. 39, 44, 87;
(A/HRC/31/54/Add.2) 2016, para. 52; (A/70/270) 2015, para. 49; (A/69/274), 2014, para. 12;
(A/HRC/19/53), 2011, paras. 50, 51, 63.
294
Report of the Special Rapporteur on the right to housing (A/HRC/31/54) 2015, para. 44.
295
Report of the Special Rapporteur on water and sanitation (A/HRC/33/49) 2016, para. 30.
296
See “Serving Our Youth”, Williams Institute, True Colors Fund and the Palette Fund, 2012, p. 3; Report of
the United Nations High Commissioner for Human Rights on discrimination and violence based on sexual
orientation and gender identity (A/HRC/29/23), 2015 para. 59.
66 BORN FREE AND EQUAL
I. RECOGNITION OF GENDER IDENTITY
Everyone has the right to recognition as a person before the law, including
persons of diverse gender identities.297 Each person’s self-defined gender
identity is integral to their personality and is one of the most basic aspects of self-
determination, dignity and freedom.298 Legal recognition of the gender identity
of transgender persons is also important in relation to protection from violence,
torture and ill-treatment, discrimination, rights to health, education, employment
and housing, access to social security, political participation and freedom of
movement.299 This includes persons who have non-binary gender identities.300

In spite of recent advances, in most countries transgender persons are generally still
unable to obtain legal recognition of their gender identity, including changes to their
recorded sex and first name on State-issued identity documents.301 Most States that
do have procedures for trans people to change the name and/or gender recorded
on their documents often impose lengthy and costly court proceedings, and abusive
requirements, as a precondition of recognition of gender identity – for example,
by requiring that applicants be unmarried (or obtain divorce) and undergo forced
or coerced sterilization, gender reassignment surgery, other medical procedures,
diagnosis or medical certification, in violation of international human rights
standards.302 This contributes to and exacerbates the many other rights abuses faced
by trans people, including in education, employment, health, housing, applying for
bank credit or State benefits, or when travelling abroad.303

297
Universal Declaration of Human Rights, art. 6; International Covenant on Civil and Political Rights, art. 16;
Convention on the Elimination of All Forms of Discrimination against Women, art. 15; Convention on the
Rights of the Child, art. 8.
298
Yogyakarta Principles on the application of international human rights law in relation to sexual orientation
and gender identity, Principle 3.
299
See Report of the United Nations High Commissioner for Human Rights, on discrimination and violence
based on sexual orientation and gender identity (A/HRC/29/23), 2015 paras. 69-70; Report of the
United Nations Special Rapporteur on the right of everyone to the enjoyment of the highest attainable
standard of physical and mental health, on a visit to Malaysia (A/HRC/29/33/Add.1), 2015, para. 84.
300
Around the world, a significant number of people identify with a wide diversity of gender identities,
including hijra, third gender, khwaja sira, two-spirit, fa’afafine, genderqueer, muxe, waria and meti.
301
Transgender Europe, Trans Respect versus Transphobia project: Legal Gender Recognition, 2017; ILGA:
Chiam, Z., Duffy, S. and González Gil, M., Trans Legal Mapping Report 2017: Recognition before the law
(November 2017); UNDP, APTN, Legal Gender Recognition: A Multi-country Legal and Policy Review, 2017.
302
Report of the Independent Expert on protection against violence and discrimination based on sexual
orientation and gender identity, (A/73/152), 2018, paras. 28-32; Report of the United Nations High
Commissioner for Human Rights on discrimination and violence based on sexual orientation and gender
identity (A/HRC/29/23), 2015, para. 70; Human Rights Committee, Concluding Observations on Ireland
(CCPR/C/IRL/CO/4), 2014, para. 7; on Ukraine (CCPR/C/UKR/CO/7), 2013, para. 10; Report of the
Special Rapporteur on torture (A/HRC/22/53), 2013, para. 88; also OHCHR, UN-Women, UNAIDS,
UNDP, UNFPA, UNICEF and WHO, “Eliminating forced, coercive and otherwise involuntary sterilization:
an interagency statement”, 2014.
303
Report of the United Nations High Commissioner for Human Rights on discrimination and violence based
on sexual orientation and gender identity (A/HRC/29/23), 2015, para. 69.
Sexual Orientation, Gender Identity and Sex Characteristics 67
 © UNFPA Brazil/Webertda Cruz
United Nations human rights mechanisms have stressed that in order to fulfil
international human rights obligations, States should respect the physical and
psychological integrity of transgender persons and legally recognize their
self-identified gender without additional requirements that may violate human
rights.304 States should provide for a simple administrative process, allow for
recognition of non-binary identities, and give minors access to recognition of
their gender identity.305

304
Report of the United Nations High Commissioner for Human Rights on discrimination and violence based
on sexual orientation and gender identity (A/HRC/29/23), 2015, para. 79 (i); Human Rights Committee,
Concluding Observations on Ireland (CCPR/C/IRL/CO/4), 2011, para. 7, (CCPR/C/IRL/CO/4), 2014,
para. 7; on Ukraine (CCPR/C/UKR/CO/7), 2013, para. 10; on the Republic of Korea (CCPR/C/KOR/
CO/4), 2015, paras. 14-15; Committee on the Elimination of Discrimination against Women Concluding
Observations on the Netherlands (CEDAW/C/NLD/CO/5), 2010, paras. 46-47; Committee against
Torture, Concluding Observations on Hong Kong, China (CAT/C/CHN-HKG/CO/5), 2016, para. 29(a).
305
OHCHR, Living Free and Equal: What States are doing to tackle violence and discrimination against
lesbian, gay, bisexual, transgender and intersex people, 2016, p. 95.

68 BORN FREE AND EQUAL

 POSITIVE PRACTICE
Argentina – Gender Identity Law
In 2012, Argentina adopted pioneering legislation which established the right
of all persons to legal recognition of their gender identity. It establishes a
simple and free administrative process through the Civil Registry to correct
gender markers, names and photos on identity documents and in public
records when they are not aligned with a person’s self-identified gender
identity. The law specifically prohibits any requirements with regards to
surgery or psychological or medical treatment to obtain such recognition. It
also enshrines the right to be treated with dignity, and stipulates that all public
and private actors must respect a person’s gender identity, including their
self-identified name, regardless of whether this aligns with the information on
their national identity document. The law also establishes the right of all adults
to access, should they wish to, partial or comprehensive hormonal treatment
and surgery to adjust their bodies, in line with their gender identity, as part of
their right to comprehensive health, and on the basis of their informed consent.
Such procedures are mandated to be included in the basic national public
health insurance scheme.

The law establishes the right of minors to have their gender identity legally
recognized through their legal representative, on the basis of the express
consent of the minor, taking into account the evolving capacities and best
interests of the child, in line with the provisions of the Convention on the Rights
of the Child.306

J. ACCESS TO JUSTICE AND REMEDY

International human rights law contains guarantees of equal access to the law
and equal protection before the law without discrimination of any kind, as
well as equal access to remedy for violations of rights.307 As outlined by the
Committee on the Elimination of Discrimination against Women, “the right to
access to justice is multidimensional. It encompasses justiciability, availability,
accessibility, good-quality and accountability of justice systems, and provision of
remedies for victims”.308 The Committee has recognized that the obstacles and
306
Ibid., pp. 114-115.
307
See, for example, Universal Declaration on Human Rights, art. 7; International Covenant on Civil and
Political Rights, arts. 26 and 2(3a); Human Rights Committee, General Comment No. 20, 1992; Committee
against Torture, General Comment No. 2 (CAT/C/GC/2), 2008; United Nations Basic Principles and
Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International
Human Rights Law and Serious Violations of International Humanitarian Law (A/RES/60/147), 2005.
308
Committee on the Elimination of Discrimination against Women, General Comment No. 33 (CEDAW/C/
GC/33), 2015, para. 1.

Sexual Orientation, Gender Identity and Sex Characteristics 69

restrictions to realizing the right of access to justice “occur in a structural context
of discrimination and inequality, due to factors such as gender stereotyping,
discriminatory laws, intersecting or compounded discrimination, procedural
and evidentiary requirements and practices, and a failure to systematically
ensure that judicial mechanisms are physically, economically, socially and
culturally accessible to all”.309 Previous chapters have raised issues affecting
LGBTI people’s access to justice, including discriminatory laws, arbitrary arrest
and detention, torture and ill-treatment, the right to a fair trial, and effective
remedy, redress and compensation.310

Discrimination, harassment, and violence on the part of law enforcement

officials deter victims of crimes from reporting abuses.311 For example, following
an attack against a human rights defender working on the rights of transgender
people and sex workers in Turkey, OHCHR expressed deep concern that “police
officers trivialized the attack, used discriminatory language, tried to dissuade
the victim from filing a complaint, and did not provide protection from additional
threats by the alleged perpetrators”.312 The Committee on the Elimination of
Discrimination against Women has expressed concern about “mistreatment by
the police, and the absence of official statistics on complaints and cases brought
to the criminal justice system” in relation to cases of violence against lesbian,
bisexual and transgender women in Ecuador.313 The Special Rapporteur on
extrajudicial executions has expressed concern that “investigations into deaths
of lesbian, gay, bisexual and transgender persons in Honduras continue to be
influenced by discriminatory stereotypes, and that only a small fraction (20.6
per cent) of murder cases appear to lead to prosecutions”.314

In the case of Atala Riffo and Daughters v. Chile, the Inter-American Court of Human
Rights found that, in denying a lesbian woman custody of her children based inter

309
Committee on the Elimination of Discrimination against Women, General Comment No. 33 (CEDAW/C/
GC/33), 2015, para. 3.
310
See Chapters II and III of this publication and Human Rights Committee, Concluding Observations on
Costa Rica (CCPR/C/CRI/CO/6), 2016, paras. 11-12; Committee Against Torture, General Comment
No. 3 (CAT/C/GC/3), 2012, para. 32; Committee on the Elimination of Discrimination against Women,
General Recommendation No. 33 (CEDAW/C/GC/33), 2015, para. 8; report of the Special Rapporteur
on human rights defenders, (A/70/217) 2017, para. 66, and report on a mission to India (A/HRC/19/55/
Add.1), 2012, para. 122.
311
Report of the Special Rapporteur on human rights defenders (A/HRC/31/55/Add.2) 2015, para. 56; Committee
on the Elimination of Discrimination against Women, Concluding Observations on Ecuador (CEDAW/C/ECU/
CO/8-9) 2015, para. 20(f); Report of the Special Rapporteur on torture (A/56/156) 2001, paras. 18, 21.
312
OHCHR, Press briefing note on Turkey, 14 July 2015, available at www.ohchr.org/EN/NewsEvents/
Pages/DisplayNews.aspx?NewsID=16233
313
Committee on the Elimination of Discrimination against Women, Concluding Observations on Ecuador
(CEDAW/C/ECU/CO/8-9) 2015, para. 20(f).
314
Report of the Special Rapporteur on extrajudicial executions on a visit to Honduras (A/HRC/35/23/
Add.1), 2017, para. 41.

70 BORN FREE AND EQUAL

alia on her sexual orientation, Chilean courts violated guarantees of impartiality
and non-discrimination.315 The Court, in particular, ruled that “considerations
based on stereotypes of sexual orientation […] are not admissible” and ordered
the State to undertake training of judicial officials to overcome such stereotypes,
as part of the measures of redress and non-repetition.316

The Human Rights Committee has expressed concern about the lack of effective
investigation and prosecution for acts of violence committed against LGBT
people,317 has called for perpetrators, including State officials, to be brought
to justice and punished appropriately,318 and has stressed that remedies should
take account of the special vulnerability of certain categories of person.319 The
Committee on the Rights of the Child has expressed concern about the lack
of redress and compensation in cases of medically unnecessary procedures
on intersex children.320 The Committee against Torture has expressed concern
regarding the lack of adequate redress and compensation in cases of forced,
involuntary or otherwise coercive or abusive treatments of LGBTI persons,321
and has noted that States are required to ensure that “access to justice, and
to mechanisms for seeking and obtaining redress are readily available and
that positive measures ensure that redress is equally accessible to all persons
regardless of … sexual orientation, gender identity”.322 The Committee on the
Elimination of Discrimination against Women has noted that being lesbian,
bisexual, transgender or intersex are among intersecting factors that make it
more difficult to gain access to justice.323

States must ensure that torture, ill-treatment and violence against LGBTI
people are prohibited by domestic laws; and must include sexual orientation,
gender identity and sex characteristics as protected grounds in laws against
discrimination and hate crimes.324 States have a duty to address impunity for

315
Atala Riffo and Daughters v. Chile, Inter-Am. Comm. HR, Case 12.502, 2012.
316
Ibid, paras. 111 and 271.
317
Human Rights Committee, Concluding Observations on Croatia (CCPR/C/HRV/CO/3), 2015, para. 10.
318
Ibid. See also Human Rights Committee, Concluding Observations on Costa Rica (CCPR/C/CRI/CO/6),
2016, paras. 11-12.
319
Human Rights Committee, General Comment No. 31 (CCPR/C/21/Rev.1/Add.1326), 2004, para. 15.
320
Committee on the Rights of the Child, Concluding Observations on Ireland (CRC/C/IRL/CO/3-4), 2016,
para. 39.
321
Committee against Torture, Concluding Observations on Germany (CAT/C/DEU/CO/5), 2011, para. 20,
and on China (CAT/C/CHN/CO/5), 2015, para. 56.
322
Committee against Torture, General Comment No. 3 (CAT/C/GC/3), 2012, paras. 32, 39.
323
Committee on the Elimination of Discrimination against Women, General Comment No. 33 (CEDAW/C/
GC/33), 2015, para. 8.
324
Report of the United Nations High Commissioner for Human Rights on discrimination and violence based
on sexual orientation and gender identity (A/HRC/29/23), 2015, para. 78; Human Rights Committee,
Concluding Observations on Jamaica (CCPR/C/JAM/CO/3), 2011, para. 8.

Sexual Orientation, Gender Identity and Sex Characteristics 71

abuses, including by repealing all laws or policies that allow, justify or condone
violence and discrimination against LGBTI people.325 States must also exercise
due diligence and independently, promptly and thoroughly investigate all forms
of abuse by State and non-State actors and bring perpetrators to justice.326
States have an obligation to construct a legal and institutional framework,
and procedures, which facilitate access to independent and effective judicial
mechanisms and ensure a fair outcome for those seeking redress, without
discrimination of any kind.327

POSITIVE PRACTICE
Mexico – Protocol for Judicial Actors on Sexual Orientation and Gender
Identity
In 2014, the Supreme Court of Mexico issued a protocol that offers
clarification and guiding principles to judges and other judicial officials for
the adjudication of cases involving sexual orientation and gender identity,
and to some extent also bodily diversity. The protocol, while not legally
binding, is a strong affirmation from the highest level of the judiciary of the
legal protection available to LGBTI people. It identifies common harmful
stereotypes and misconceptions, which may hinder access to justice in various
sectors, including gender identity recognition, family life and relationships,
employment, the criminal system, health, education, deprivation of liberty, and
freedom of expression and association.328

K. FAMILIES AND COMMUNITY

States’ responsibility to protect individuals from discrimination extends to the
family sphere, where rejection and discriminatory treatment of LGBTI family
members can have serious negative consequences for the enjoyment of human
rights.329 Examples include individuals being excluded from family homes,
disinherited, prevented from going to school, sent to psychiatric institutions,
forced to marry, forced to give up custody of their children, punished for human
rights work and subjected to aggressive attacks on personal reputation.330
325
Report of the Special Rapporteur on extrajudicial executions (A/HRC/35/23), 2017, para. 110(b).
326
See for example, Committee against Torture, Concluding Observations on Peru (CAT/C/PER/CO/5-6),
2013; Human Rights Committee, Concluding Observations on Guatemala (CCPR/C/GTM/CO/3), 2012,
para. 11; on Jamaica, (CCPR/C/JAM/CO/3), 2011, para. 8.
327
Report of the Special Rapporteur on extreme poverty (A/67/278), 2012, para. 11.
328
OHCHR, Living Free and Equal: What States are doing to tackle violence and discrimination against
lesbian, gay, bisexual, transgender and intersex people, 2016, p. 116.
329
Report of the United Nations High Commissioner for Human Rights on discrimination and violence based
on sexual orientation and gender identity (A/HRC/29/23), 2015, para. 66.
330
Ibid.

72 BORN FREE AND EQUAL

United Nations human rights experts have drawn attention to the many violations
of human rights to which discrimination in family settings can give rise, and
have highlighted the particular vulnerability of lesbians, bisexual women and
transgender persons in this context, in the light of underlying gender inequalities
and restrictions on women’s autonomy in respect of their sexuality, reproduction
and family life choices. 331 They have urged States to review policies and
implement awareness-raising initiatives in a bid to address the issue.332

L. RECOGNITION OF RELATIONSHIPS
States have a positive obligation to provide legal recognition to couples,
regardless of sexual orientation, gender identity and sex characteristics, as well
as to their children. Legal recognition may take various forms, ranging from civil
unions and civil partnership s to marriage. Regardless of the form of relationship
recognition, States are obliged to address discrimination in this area by,
inter alia, ensuring that benefits traditionally accorded to married partners –
including those related to benefits, pensions, and taxation and inheritance – are
accorded on a non-discriminatory basis.333 States should ensure the right to
legal recognition of gender without the requirement of dissolution of marriage
or civil partnership.334 Legislation and procedures regulating marriage and civil
unions should not be based on the sex assigned to a person at birth and States
should also remove other restrictions on relationship recognition, parenting or
adoption on the basis of a person’s sex, gender identity or expression, including
for persons who are transgender, intersex and/or non-binary.335

In many countries, the State provides benefits to married and unmarried

heterosexual couples but denies these benefits to same-sex couples. Examples
include pension entitlements, the ability to leave property to a surviving partner,
the opportunity to remain in public housing following a partner’s death, or the
331
See Report of the Special Rapporteur on freedom of religion or belief (A/68/290), 2013, para. 38; Report
of the Special Rapporteur on violence against women (A/HRC/20/16/Add.4), 2012, para. 20; Report of
the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran (A/HRC/22/56),
2013, para. 70; Report of the Special Rapporteur on the human rights of migrants, on a mission to Qatar
(A/HRC/26/38/Add.1), 2014, para. 19; Report of the Working Group on the issue of discrimination
against women in law and in practice (A/HRC/29/40), 2015, at para. 21.
332
See, for example, Committee on the Elimination of Discrimination against Women, Concluding
Observations on Fiji (CEDAW/C/FJI/CO/5), 2018, para. 51.
333
Report of the United Nations High Commissioner for Human Rights on discrimination and violence based
on sexual orientation and gender identity (A/HRC/29/23), 2015, para. 79(h); Young v. Australia, Human
Rights Committee, Communication No. 941/2000 (CCPR/C/78/D/941/2000), paras. 10.4; OHCHR,
Living Free and Equal: What States are doing to tackle violence and discrimination against lesbian, gay,
bisexual, transgender and intersex people, 2016, p. 75.
334
Human Rights Committee, Concluding Observations on Ireland (CCPR/C/IRL/CO/4), 2014, para. 7.
335
OHCHR, Living Free and Equal, 2016, p. 76.

Sexual Orientation, Gender Identity and Sex Characteristics 73

© Mongolia II pride parade/Pedro Souza

chance to secure residency for a foreign partner.336 Lack of official recognition

of same-sex relationships and absence of legal prohibition on discrimination
can also result in same-sex partners being discriminated against by private
companies, organizations or individuals, including health-care providers
and insurance companies.337 The United Nations Children’s Fund (UNICEF),
the Committee on the Rights of the Child and the Inter-American Court of
Human Rights have expressed concern at discrimination against, and the lack
of legal protection of, children of same-sex couples.338 Some States require
married transgender persons to divorce as a requirement for legal gender
recognition, while others exclude trans and intersex persons from marriage
by only recognising sex assigned at birth.339 States that define marriage and

336
Young v. Australia, Human Rights Committee, Communication No. 941/2000 (CCPR/C/78/D/941/2000),
at para. 10.4; X v. Colombia, Human Rights Committee, Communication No. 1361/2005 (CCPR/
C/89/D/1361/2005), at para. 7.2.
337
Report of the United Nations High Commissioner for Human Rights on discriminatory laws and practices
and acts of violence based on their sexual orientation and gender identity (A/HRC/19/41), 2011,
para. 69.
338
See report of the United Nations High Commissioner for Human Rights on discrimination and violence
based on sexual orientation and gender identity (A/HRC/29/23), 2015, para. 122; Committee on the
Rights of the Child, General Comment No.15 (CRC/C/GC/15), 2013, para. 8; Committee on the Rights
of the Child, Concluding Observations on the Gambia (CRC/C/GAM/CO/2-3), 2015, paras. 29-30; and
UNICEF, Position Paper No. 9: Eliminating discrimination against children and parents based on sexual
orientation and/or gender identity, 2014.
339
Transgender Europe, Trans Respect versus Transphobia project: Legal Gender Recognition, 2017. Available
from http://transrespect.org/en/map/pathologization-requirement/?submap=marriage-divorce#; UNDP,
APTN, Legal Gender Recognition: A Multi-country Legal and Policy Review, 2017, Malawi Marriage,
Divorce and Family Relations Act 2015.

74 BORN FREE AND EQUAL

other legally recognized relationships as exclusively between men and women
further exclude non-binary persons who identify as neither.340

In the case of G. v. Australia, the Human Rights Committee found that Australia’s
refusal for a trans woman to change the sex marker on her birth certificate to
align with her gender identity, unless she divorced from her spouse, constituted
arbitrary or unlawful interference with her privacy and family, as well as
discrimination on the basis of marital and transgender status.341

The Committee on Economic, Social and Cultural Rights has called on States
to ensure that individuals in same-sex unions are entitled to equal enjoyment
of their economic, social and cultural rights,342 including by undertaking
a comprehensive review of legislation to ensure de jure equality between
de facto and official unions, to legally recognize same-sex couples and to
regulate the financial effects of such relationships.343 When States have
legally recognized same-sex marriage, it has been welcomed by various
United Nations entities.344

M. POLITICAL PARTICIPATION AND CONSULTATION

The right to participate on a basis of equality in public and political life345 is
a crucial factor in ensuring inclusive democratic governance, the rule of law,
social inclusion, economic development and the advancement of broader
human rights. It is important in empowering individuals and groups, and is one
of the core elements of human rights-based approaches aimed at eliminating
marginalization and discrimination.346
340
Byrne J., License to be yourself: Marriage and Forced Divorce, Brief 1 of 4, Legal gender recognition issue
briefs, Open Society Foundations, 2015.
341
G. v. Australia, Human Rights Committee, Communication No. 2172/2012 (CCPR/C/119/D/2172/2012),
2017, paras. 7.10 and 7.15.
342
See, for example, Committee on Economic, Social and Cultural Rights, Concluding Observations on Italy
(E/C.12/ITA/CO/5), 2015, para. 17.
343
See Committee on Economic, Social and Cultural Rights, Concluding Observations on Bulgaria (E/C.12/
BGR/CO/4-5), 2012, para. 17; and on the former Yugoslav Republic of Macedonia (E/C.12/MKD/CO/2-
4), 2016, paras. 25-26.
344
Human Rights Committee, Concluding Observations on France (CCPR/C/FRA/CO/5), 2015, para. 3(e);
on Canada (CCPR/C/CAN/CO/6), 2015, para. 3(b); on the United Kingdom (CCPR/C/GBR/CO/7),
2015, para. 3(f); on New Zealand (CCPR/C/NZL/CO/6), 2016, para. 3(g); Report of the High
Commissioner for Human Rights on discrimination and violence based on sexual orientation and gender
identity (A/HRC/29/23), 2015.
345
Universal Declaration of Human Rights, art. 21; International Covenant on Civil and Political Rights, art. 25;
International Convention on the Elimination of All Forms of Racial Discrimination, art. 5(c); Convention on
the Elimination of All Forms of Discrimination against Women, art. 7; Convention on the Rights of Persons
with Disabilities, art. 29.
346
Report of the Office of the United Nations High Commissioner for Human Rights on “Factors that impede
equal political participation and steps to overcome those challenges” (A/HRC/27/29), 2014, at para. 2.

Sexual Orientation, Gender Identity and Sex Characteristics 75

Effective participation in public and political life is limited or prevented by
formal and substantive discrimination.347 Such discrimination may be overt –
for example, restrictions on freedom of expression related to sexual orientation
and gender identity, banning LGBT pride marches and political rallies, shutting
down LGBT advocacy organizations and online networks, and using so-called
“anti-propaganda laws” to exclude LGBT voices from public policy debates;348
or it may be more indirect – for example promoting crude, negative stereotypes
of LGBTI people in an attempt to discredit LGBTI advocates and dismiss their
concerns. See, also, Chapter V.

The Working Group on Discrimination against Women and Girls has noted that
women who belong to vulnerable groups “are effectively barred from political
and public life based on multiple stereotyping”, in respect of inter alia sexual
orientation and gender identity. 349 Discrimination has also been observed in
relation to candidates for elective office who advocate for the rights of lesbian,
gay, bisexual, transgender and intersex persons.350

States should not only take preventative measures to protect individuals from
discrimination in this area, but should also, in line with international human
rights law and the Sustainable Development Goals, encourage and promote
effective public, public-private and civil society partnerships.351 In this context, it
is critical that authorities consult and partner with LGBTI people and civil society
organizations in all initiatives and policy-making processes that affect the rights
of LGBTI people. Proactive involvement of civil society in the drafting and review
of legislation and policy can strengthen the legitimacy of the process, and lead
to more inclusive, informed and comprehensive outcomes.352

347
Ibid., para. 41.
348
Report of the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of
association (A/HRC/26/29), 2014, at paras. 27-78; Report of the United Nations High Commissioner for
Human Rights on “Promotion, protection and enjoyment of human rights on the Internet: ways to bridge
the gender digital divide from a human rights perspective,” (A/HRC/35/9), 2017, para. 10.
349
Report of the Working Group on the issues of discrimination against women in law and practice
(A/HRC/23/50), 2013, at para. 70.
350
Report of the Office of the United Nations High Commissioner for Human Rights on “Factors that
impede equal political participation and steps to overcome those challenges” (A/HRC/27/29), 2014,
at para. 15.
351
Sustainable Development Goals, 17.17.
352
Report of the United Nations High Commissioner for Human Rights on a safe and enabling environment
for civil society (A/HRC/32/20), 2016, para. 59.

76 BORN FREE AND EQUAL

 POSITIVE PRACTICE
Malta: Consultative Body on the Rights of Lesbian, Gay, Bisexual,
Transgender, Intersex and Queer People
In 2013, the Minister for Social Dialogue and Consumer Affairs of Malta
established the LGBTIQ Consultative Council, an independent consultative
body tasked with advising the government on matters relating to the rights
of LGBTIQ people, including through putting forward legislation, policies
and other measures to advance the rights of LGBTIQ people. A key feature
of the Council is that it is comprised of representatives of local civil society
organizations that work specifically on the rights of LGBTIQ persons, which
facilitates the engagement of key stakeholders in the policy-making process,
ensuring that those most affected are able to input into policy development.353

N. CONCLUSION
States are required to guarantee non-discrimination in the exercise of all
human rights for everyone, regardless of sexual orientation, gender identity
or sex characteristics. This is an immediate and cross-cutting obligation under
international human rights law. States should enact comprehensive legislation
that prohibits discrimination on the grounds of sexual orientation, gender
identity and sex characteristics in both the public and private sphere, including
in the areas highlighted in this chapter. Such legislation should ensure remedies
for victims of discrimination and the right to equal and effective access to
justice. States should also adopt awareness-raising campaigns and training
programmes to prevent and combat discrimination, and tackle discriminatory
social attitudes and other root causes of discrimination.

353
OHCHR, “Living Free and Equal: What States are doing to tackle violence and discrimination against
lesbian, gay, bisexual, transgender and intersex people”, 2016, p. 117.

Sexual Orientation, Gender Identity and Sex Characteristics 77

V. RESPECT FREEDOM OF
EXPRESSION, PEACEFUL ASSEMBLY
AND ASSOCIATION

States have an obligation to guarantee to everyone the rights to freedom

of expression, association and peaceful assembly, without discrimination.
Limitations on these rights that are based on sexual orientation, gender identity
or expression or sex characteristics violate international human rights norms
and standards, including the non-exhaustive list below. Any restrictions on these
rights must comply with strict safeguards in international human rights law,
including non-discrimination provisions.

Universal Declaration of Human Rights

Article 19: Everyone has the right to freedom of thought and expression; this
right includes freedom to hold opinions without interference and to seek, receive
and impart information and ideas.
Article 20(1): Everyone has the right to freedom of peaceful assembly and association.

International Covenant on Civil and Political Rights

Article 19(2): Everyone shall have the right to freedom of expression; this right
shall include freedom to seek, receive and impart information and ideas of all
kinds, regardless of frontiers, either orally, in writing or in print, in the form of
art, or through any other media of his choice.
Article 21: The right of peaceful assembly shall be recognized. No restrictions
may be placed on the exercise of this right other than those imposed in conformity
with the law and which are necessary in a democratic society in the interests of
national security or public safety, public order (ordre public), the protection of
public health or morals or the protection of the rights and freedoms of others.
Article 22(1): Everyone shall have the right to freedom of association with others,
including the right to form and join trade unions for the protection of his interests.

Declaration on Human Rights Defenders

Article 1: Everyone has the right, individually and in association with others,
to promote and to strive for the protection and realization of human rights and
fundamental freedoms at the national and international levels.

78 BORN FREE AND EQUAL

A. POSITIONS TAKEN BY UNITED NATIONS HUMAN RIGHTS
MECHANISMS
The Universal Declaration of Human Rights and the International Covenant on
Civil and Political Rights guarantee to everyone the rights to freedom of opinion
and expression, peaceful assembly, and association. Freedom of expression
includes the right to seek, receive and impart information and ideas of all kinds. It
is integral to the enjoyment of the rights of association and assembly. Freedom of
association involves individuals joining together to collectively express, promote,
pursue and defend common interests. Freedom of assembly refers to any kind of
meeting, in public or private, including demonstrations, marches and parades.
These rights apply to everyone, without discrimination, and are at the heart of
an active civil society and a functioning democracy.354 Under the International
Covenant on Civil and Political Rights, strict safeguards apply to the possibility
of States constraining these rights: restrictions must be provided for by law,
be necessary in a democratic society and be for the protection of a legitimate
purpose listed in articles 19, 21 and 22 of the Covenant (including protecting
national security, public order, public health, morals, and the rights, freedoms
or reputations of others), with the Human Rights Committee issuing authoritative
guidance and interpretation of these provisions. Laws restricting these rights
“must themselves be compatible with the provisions, aims and objectives of
the Covenant” and must “not violate the non-discrimination provisions of the
Covenant.”355 Such safeguards apply equally online and offline.356

B. LEGAL RESTRICTIONS ON FREEDOM OF EXPRESSION,

ASSOCIATION AND PEACEFUL ASSEMBLY
In recent years, laws have been enacted or proposed in several States that seek
to prohibit or restrict public discussion of sexual orientation and gender identity,
the work of human rights defenders and civil society organizations working on
the human rights of LGBT people and events related to these issues, often under
the guise of “protecting minors”.357 They are frequently vaguely worded and
354
See, for example, General Assembly resolution 59/20, and “Guidance Note of the Secretary-General
on Democracy”, accessible at www.un.org/democracyfund/sites/www.un.org.democracyfund/files/
un_sg_guidance_note_on_democracy.pdf.
355
Human Rights Committee, General Comment No. 34 (CCPR/C/GC/34), 2011, at para. 26; see also,
General Comment No. 22, 1994, at para. 8.
356
Human Rights Committee, General Comment No. 34 (CCPR/C/GC/34), 2011, para. 43; Report of the
Special Rapporteur on freedom of expression (A/HRC/17/27), 2011.
357
Report of the United Nations High Commissioner for Human Rights on discrimination and violence based
on sexual orientation and gender identity (A/HRC/29/23), 2015, para. 48; Committee on the Elimination
of Discrimination against Women, Concluding Observations on Kyrgyzstan (CEDAW/C/KGZ/CO/4),
2015, paras. 9, 10.

Sexual Orientation, Gender Identity and Sex Characteristics 79

arbitrarily restrict the rights to freedom of expression, peaceful assembly and
association, as well as the right to information, enshrined in international law.358
They often also criminalize the legitimate work of human rights defenders and
contribute to a broader climate of shrinking civil society space and the ongoing
persecution of members of the LGBT community, including young persons who
identify or are perceived as LGBT.359

United Nations treaty bodies and special procedures have systematically

rejected such restrictions as not meeting the aforementioned strict safeguards
in international human rights law, finding that such restrictions were, inter
alia, not based on any credible evidence, were not necessary, were not
proportionate, were discriminatory, and amounted to violations of rights
enshrined in international law. For example, special procedures have expressed
concerns about restrictions introduced under laws that have also expanded
criminalization of consensual same-sex relations (see also Chapter III), as in
Nigeria and Uganda, as well as through specific so-called “anti-propaganda”
laws and related developments in Kyrgyzstan, the Republic of Moldova, the
Russian Federation and Ukraine.360 In the case of Fedotova v. Russia, the
Human Rights Committee decided that a conviction for so-called “propaganda
of homosexuality among minors” amounted to a violation of the right to freedom
of expression and equal protection of the law.361 Regarding the Same Sex
Marriage (Prohibition) Act in Nigeria, a group of special procedures expressed
concern with regards to the multiple and far-reaching discriminatory provisions
of the law – including the negative impact on organizations that “provide
psycho-social support to LGBT people, those who advocate for human rights for
all without discrimination, and those working to prevent transmission of HIV”.362

The Committee on the Rights of the Child has highlighted how, far from
protecting minors, such legislation in fact “encourages stigmatization of and

358
Inter alia, ICCPR articles 2, 19, 21, 22, 26 and Committee on the Rights of the Child articles 2, 13, 15, 16, 17.
359
Report of the United Nations High Commissioner for Human Rights on discrimination and violence based
on sexual orientation and gender identity (A/HRC/29/23), 2015, para. 48; Irina Fedotova v. Russian
Federation, Human Rights Committee, Communication No. 1932/2010 (CCPR/C/106/D/1932/2010),
2012, para. 10.8; Human Rights Committee, Concluding Observations on Lithuania (CCPR/C/LTU/
CO/3), 2012, para. 8.
360
See report of the United Nations High Commissioner for Human Rights on discrimination and violence
based on sexual orientation and gender identity (A/HRC/29/23), 2015, para. 48; Communications
reports of special procedures (A/HRC/23/51), 2013, UKR 3/2012, p. 31, (A/HRC/25/74), 2014, MDA
4/2013, p. 51, RUS 3/2013, p. 23, RUS 4/2013, p. 40, (A/HRC/26/21), 2014, NGA 1/2014, p. 40,
UGA 1/2014, p. 53, UGA 1/2013; p. 23, (A/HRC/27/72), 2014, KGZ 1/2014, p. 55.
361
Irina Fedotova v. Russian Federation, Human Rights Committee, Communication No. 1932/2010 (CCPR/
C/106/D/1932/2010), 2012, para. 10.8.
362
Joint letter of allegation to Nigeria, NGA 1/2014, (A/HRC/26/21), 2014, p. 40.

80 BORN FREE AND EQUAL

 © Shutterstock.com/Paul Prescott
discrimination against LGBTI persons, including children, and children of LGBTI
families” and “leads to the targeting and ongoing persecution of the country’s
LGBTI community, including abuse and violence, in particular against underage
LGBTI rights activists”.363

C. OTHER DISCRIMINATORY RESTRICTIONS

In addition to legal restrictions, States have also sometimes tried to invoke
“public morals”, “protecting the rights of children” and “public order” to try to
justify other limitations on the rights to freedom of association, expression and
assembly of individuals and organizations speaking, meeting or organizing to
protect the human rights of LGBT people.

United Nations human rights experts have rejected such justifications and
expressed similar concerns as they have with regards to discriminatory legislation
(see previous section and Chapter III).364 In a joint statement on freedom of
expression and association, United Nations and regional human rights experts
363
Committee on the Rights of the Child, Concluding Observations on the Russian Federation (CRC/C/RUS/
CO/4-5), 2014, paras. 24-25.
364
See, for example, Human Rights Committee, Concluding Observations on Georgia (CCPR/C/GEO/
CO/4), 2014, para. 8; Nikolai Alekseev v. Russian Federation, Communication No. 1873/2009 (CCPR/
C/109/D/1873/2009) 2013; Report of the Special Rapporteur on the rights to freedom of peaceful
assembly and of association (A/HRC/26/29), 2014, paras. 10, 27, 28, 30, 31, 44, 46, 55, 64; Reports
of the Special Rapporteur on human rights defenders, on communications (A/HRC/31/55/Add.1),
2016, para. 109; Report of the Special Rapporteur on violence against women (A/HRC/4/34/Add.1),
paras. 28, 29; Reports of the Special Rapporteur on freedom of expression and opinion, (A/71/373),
2016, para. 47, (A/HRC/29/32), 2015, paras. 1, 12; Report of the Special Rapporteur on
torture (E/CN.4/2001/66), 2001, para. 1153.

Sexual Orientation, Gender Identity and Sex Characteristics 81

stated that they “categorically reject arguments that such restrictions to the rights
of LGBTI people are necessary to protect public morals, health or the well-being
of vulnerable people”.365 The Human Rights Committee has found that a ban on
a gathering to advocate for the rights of sexual minorities “was not necessary
in a democratic society in the interest of public safety, and violated article 21
of the Covenant”.366

Concerns include direct censorship, bans on dissemination of information and

restrictions on advocacy, the work of human rights defenders and civil society
organizations and peaceful assemblies.367 LGBT organizations continue to
have registration applications rejected, reviews delayed and legal registration
revoked on discriminatory grounds.368 Permission to hold meetings, workshops
and cultural events have been denied in an attempt to suppress political and
artistic expression.369 Police officers have raided the offices of LGBT groups,
arrested and harassed staff and volunteers, and confiscated materials,
sometimes putting the privacy and safety of staff and supporters at risk.370

After LGBT pride marches were banned in Moscow, the Human Rights Committee
expressed concern about such infringements and urged the Russian Federation
to “take all necessary measures to guarantee the exercise in practice of the right
to peaceful association and assembly for the LGBT community”.371 In a letter of
allegation regarding undue delays in the registration process of a non-governmental
organization working on LGBT, intersex and sex worker issues in Zambia, the
Special Rapporteur on freedom of association and assembly expressed:
365
Joint statement of international and regional human rights experts, “Free expression and association key to
eliminating Homophobia and Transphobia” (May 2014), available at www.ohchr.org/EN/NewsEvents/
Pages/DisplayNews.aspx?NewsID=14602&LangID=E.
366
Nikolai Alekseev v. Russian Federation, Communication No. 1873/2009 (CCPR/C/109/D/1873/2009)
2013, para. 9.6.
367
Report of the United Nations High Commissioner for Human Rights on discrimination and violence
based on sexual orientation and gender identity (A/HRC/29/23), 2015, para. 60; Report of the Special
Rapporteur on extrajudicial, summary or arbitrary executions (A/HRC/20/22/Add.2), 2012, para. 55;
Report of the Special Rapporteur on the promotion and protection of human rights and fundamental
freedoms while countering terrorism (A/64/211), 2009, paras. 21-27.
368
Report of the Special Rapporteur on Belarus (A/69/307), 2014, para. 30; Report of the United Nations
High Commissioner for Human Rights, on discrimination and violence based on sexual orientation and
gender identity (A/HRC/29/23), 2015, para. 61.
369
Report of the Special Rapporteur in the field of cultural rights, on a mission to the Russian Federation
(A/HRC/23/34/Add.1), 2013, paras. 101-103; Report of the United Nations High Commissioner for
Human Rights, on discrimination and violence based on sexual orientation and gender identity
(A/HRC/29/23), 2015, para. 61.
370
Report of the Special Rapporteur on torture (A/HRC/22/53/Add.4), 2013, para. 162; Report of the
United Nations High Commissioner for Human Rights, on discrimination and violence based on sexual
orientation and gender identity (A/HRC/29/23), 2015, para. 61.
371
Concluding Observations of the Human Rights Committee on the Russian Federation (CCPR/C/RUS/
CO/6), 2009, at para. 27.

82 BORN FREE AND EQUAL

 concern at the reportedly undue delays in reviewing the application for
registration of the Engender Rights Centre for Justice and the subsequent
refusal to register it for reasons that could be related to the organization’s
peaceful activities in advocating and speaking out against discrimination
and defending the rights of LGBTI persons in Zambia.372

A supportive legal framework for civil society actors is integral to rights

protection. Courts must be able to review, in a timely manner, sanctions by State
authorities against civil society organizations to assess whether such measures
are legitimate, necessary and proportionate and otherwise compliant with
international human rights norms and standards.373

D. PROTECTION FROM ATTACKS AND THREATS

In addition to legal and other discriminatory restrictions, LGBTI defenders and
those working on related issues also face sexual violence, physical attacks,
threats, arrests, torture and ill-treatment, and, in some cases, murder in
retaliation for speaking out (see also Chapters I, II and III).374 In some cases,
inaction by authorities in relation to such abuses prevents individuals and
groups from exercising their right to freedoms of expression, association and
peaceful assembly. The Secretary-General has expressed concern at reprisals
and intimidation against human rights defenders and their families for their
advocacy at the United Nations to protect the human rights of LGBT people.375

The offices of LGBT organizations have been targets of vandalism, burglary and
arson,376 and such incidents are seldom investigated promptly.377 For example, in
372
Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association
(A/HRC/32/36/Add.3), 2016, para. 137.
373
Report of the United Nations High Commissioner for Human Rights on a safe and enabling environment
for civil society (A/HRC/32/20), 2016, para. 22.
374
Reports of the Special Rapporteur on human rights defenders, (A/HRC/16/44), 2011, at paras. 37, 43, 85;
(A/HRC/13/22/Add.3), 2010, at paras. 49-51.; (A/HRC/13/22), 2010, at para. 49; (A/HRC/10/12),
2009, at paras. 21, 65, 72, 74, 82. Reports of the Special Rapporteur on freedom of expression and
opinion, (A/HRC/17/27/Add.1), 2011, at paras. 1654-1659, and 2228-2231; (A/HRC/14/23/Add.1),
2010, at paras. 485-505, 1018-1048, 2483-2489, and 2093-2113;
375
Report of the Secretary-General on Cooperation with the United Nations, its representatives and
mechanisms in the field of human rights (A/HRC/39/41), para. 81.
376
Communications report of special procedures (A/HRC/25/74) 2014, see MKD 2/2013; (A/HRC/23/51),
2013, see CRI 2/2012; Report of the United Nations High Commissioner for Human Rights on discrimination
and violence based on sexual orientation and gender identity (A/HRC/29/23), 2015, para. 61.
377
Report of the Special Rapporteur on human rights in Belarus (A/69/307), 2014, para. 86; Report of the
Special Rapporteur on torture (A/HRC/22/53/Add.4), 2013, para. 162; Report of the independent expert
on the situation of human rights in Haiti (A/HRC/25/71), 2014, para. 55; Report of the Independent
Expert on the situation of human rights in Côte d’Ivoire (A/HRC/26/52), 2014, para. 33; Report of the
United Nations High Commissioner for Human Rights on discrimination and violence based on sexual
orientation and gender identity (A/HRC/29/23), 2015, para. 61.

Sexual Orientation, Gender Identity and Sex Characteristics 83

 © UN Human Rights Monitoring Mission in Ukraine/Andrew Kravchenko
Bosnia and Herzegovina, unidentified individuals violently disrupted LGBTI events
in 2008 and 2014. In both cases, the police failed to provide protection to the
organizers and participants.378 The Human Rights Committee has emphasized that
States parties have a duty to protect participants in a demonstration advocating
for the rights of LGBT people from violence by others.379

The Special Rapporteur on freedom of association and assembly has

recommended that States ensure that administrative and law enforcement officials
are adequately trained in relation to respect of the rights of individuals belonging
to groups most at risk where freedom of peaceful assembly and association are
concerned, in particular in relation to their specific protection needs.380

The Special Rapporteur on Human Rights Defenders has noted that defenders
who challenge social and cultural norms, do not fit stereotypes and prescribed
roles, or who challenge power structures in society – including human rights
defenders working on issues of sexual orientation or gender identity – are
often stigmatized and subjected to threats and attacks from members of society
because of who they are or what they do.381 The obligation of States to protect
human rights defenders against threats by others must be adapted to the specific
needs and situation of defenders of the rights of LGBTI persons.382
378
Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association
(A/HRC/26/29), 2014, para. 46.
379
Nikolai Alekseev v. Russian Federation, Communication No. 1873/2009 (CCPR/C/109/D/1873/2009)
2013, para. 9.6.
380
Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association
(A/HRC/26/29), 2014, para. 74.
381
Reports of the Special Rapporteur on the situation of human rights defenders (A/HRC/31/55) 2016,
para. 27; see also, (A/70/217) 2017, paras. 65-67.
382
Ibid.

84 BORN FREE AND EQUAL

 POSITIVE PRACTICE
Botswana – The Case of LEGABIBO
The civil society organization Lesbians, Gays and Bisexuals of Botswana
(LEGABIBO) was refused its request to register by the Ministry of Labour
and Home Affairs on grounds that the organization would, according to
the Ministry, be “likely to be used for any unlawful purpose or any purpose
prejudicial to, or incompatible with peace, welfare or good order” and
because, according to the authorities, “the Constitution of Botswana does
not recognize homosexuals”. The High Court and the Court of Appeal in
Botswana rejected these arguments as unfounded and established that the
denial of registration was illegal and unconstitutional. The Court of Appeal
found that the refusal to allow LEGABIBO to register violated the rights of
lesbian, gay and bisexual people to freedom of assembly and association
protected by the Constitution of Botswana.8

E. ONLINE RESTRICTIONS
State obligations to uphold and protect the rights to freedom of expression,
association and assembly apply in all contexts – including online. The Special
Rapporteur on freedom of expression has expressed concern with regard to
online censorship, mass and targeted surveillance and data-collection, digital
attacks on civil society and repression resulting from online expression.383 This
has specific impacts on LGBT people: for example, the Special Rapporteur
has highlighted that surveillance has a disproportionate impact on gender and
sexual minorities, amongst other groups. The Rapporteur has also emphasized
the importance of encryption and anonymity to allow those persecuted because
of their sexual orientation or gender identity to exercise the rights to freedom
of opinion and expression, including for online security, protection of privacy,
and to browse, read, develop and share opinions and information without
interference.384 The ability to search the web, develop ideas and communicate
securely may be the only way in which many can explore basic aspects of
identity, such as their gender, religion, ethnicity, national origin or sexuality.385
Blocking, filtering, and other online restrictions must comply with the same
safeguards in international law as offline restrictions386 (see also sections in this
chapter on legal and other restrictions) – which precludes any discriminatory
measures that specifically block or restrict content based on sexual orientation
or gender identity or related to the human rights of LGBTI people.

383
Report of the Special Rapporteur on freedom of expression and opinion, (A/HRC/29/32), 2015, para. 1.
384
Report of the Special Rapporteur on freedom of expression and opinion (A/HRC/29/32), 2015, para. 1
and (A/HRC/32/38), 2016, para. 57.
385
Ibid., at para. 12.
386
Human Rights Committee, General Comment No. 34 (CCPR/C/GC/34), 2011, para. 43.

Sexual Orientation, Gender Identity and Sex Characteristics 85

F. RESTRICTIONS ON FUNDING OF CIVIL SOCIETY
ORGANIZATIONS
In addition to the restrictions mentioned in previous sections, some States have also
adopted bans on non-governmental organizations receiving funding from abroad,
allegedly in order to curb the influence of so-called “foreign agents”.387 The ability
of associations to access funding and resources is an integral and vital part of the
right to freedom of association, while predictability of core funding is fundamental
if civil society organizations are to work effectively and independently, undertake
long-term planning and adapt to evolving situations.388 Stigmatization and undue
restrictions on access to funding and resources for civil society organizations often
constitute attempts to undermine the right to freedom of association, stifle any form
of criticism and deny accountability for human rights violations.389

States have a positive duty to strengthen the resources and capacities of civil
society, including through human rights education and training, funding and
access to information technology.390 In some cases, funding to non-governmental
organizations (NGOs) working on LGBT issues has been restricted, whether
through specific bans on funding work on these issues or laws that restrict
foreign funding.391 In some cases, such restrictions may not be formally
enshrined in the laws regulating the establishment and functioning of NGOs,
but in administrative practices related to their application.

As noted by the Special Rapporteur on freedom of peaceful assembly and

association, all associations, registered or unregistered, should have the
right to seek, secure and use funding and resources from domestic, foreign,
and international entities, including individuals, businesses, civil society
organizations, governments and international organizations as part of the right

387
Report of the United Nations High Commissioner for Human Rights on discrimination and violence based
on sexual orientation and gender identity (A/HRC/29/23), 2015, para. 49; communications report of
special procedures (A/HRC/25/74) 2014, see RUS 3/2013 at p. 23.
388
Report of the Special Rapporteur on freedom of peaceful assembly and of association (A/HRC/20/27),
2012, paras. 67-68; Report of the United Nations High Commissioner for Human Rights on a safe and
enabling environment for civil society (A/HRC/32/20), 2016, para. 72.
389
See observations on communications transmitted to governments and replies received in the report of the
Special Rapporteur on freedom of peaceful assembly and association (A/HRC/20/27/Add.3), 2012.
390
Report of the Special Rapporteur on human rights defenders (A/HRC/31/55), 2016, para. 43; Report
of the United Nations High Commissioner for Human Rights on a safe and enabling environment for civil
society (A/HRC/32/20), 2016, para. 64.
391
Report of the United Nations High Commissioner for Human Rights on discrimination and violence based
on sexual orientation and gender identity (A/HRC/29/23), 2015 para. 49; communications report of
special procedures (A/HRC/25/74), 2014, see RUS 3/2013; Report of the Special Rapporteur on health
(A/HRC/14/20/Add.1), 2010, para. 344.

86 BORN FREE AND EQUAL

to freedom of association.392 The Human Rights Committee has also expressed
concern at domestic legislation that limits the ability of NGOs to seek foreign
funding, stating its inconsistency with the International Covenant on Civil and
Political Rights, and the Human Rights Council has unanimously called on States
to “ensure that they do not discriminatorily impose restrictions on potential
sources of funding aimed at supporting the work of human rights defenders”
and that “no law should criminalize or delegitimize activities in defence of
human rights on account of the origin of funding thereto”.393

G. CONCLUSION
States must guarantee the rights to freedom of opinion and expression, peaceful
assembly and association to everyone, regardless of sexual orientation, gender
identity or expression or sex characteristics, including human rights defenders
working on these issues, and must ensure that any restrictions on these rights
are not discriminatory and comply with all safeguards in international law.
These same rights apply online as offline. States must repeal legal restrictions
on these rights, remove or cease applying other restrictions and protect these
rights, including by preventing or effectively investigating and punishing acts of
violence, threats and intimidation that impinge on the exercise of these rights.
The State bears an obligation to provide effective and prompt remedy to those
whose rights to freedoms of expression, assembly and association have been
violated.394

392
Report of the Special Rapporteur on freedom of peaceful assembly and of association (A/HRC/20/27),
2012, paras. 67-68 and (A/HRC/23/39), 2013, para. 8.
393
See for example, Human Rights Committee, Concluding Observations on Azerbaijan (CCPR/C/AZE/
CO/4), 2016, para. 40; on Venezuela (CCPR/C/VEN/CO/4), 2015, para. 20; on the Russian Federation
(CCPR/C/RUS/CO/7), 2015, para. 22; and on Israel (CCPR/C/ISR/CO/4), 2014, para. 22; Human
Rights Council resolution 22/6.
394
See Human Rights Committee, General Comment No. 31, para. 15.

Sexual Orientation, Gender Identity and Sex Characteristics 87

VI. CONCLUSION
As the preceding chapters show, protecting LGBTI people from violence and
discrimination does not require the establishment of new rights, nor does it
require the establishment of new international human rights standards. For all
the heat and complexity of the political debate about sexual orientation and
gender identity at the United Nations, from a legal perspective the issues are
straightforward. The obligations that States have to protect LGBTI persons from
violations of their human rights are already well established and are binding on
all United Nations Member States.

This publication seeks to explain the source and scope of those legal obligations
with reference to the substantial body of decisions, recommendations and
guidance issued by United Nations human rights mechanisms. It breaks down
State responsibilities into five core areas where national action is most urgently
needed: protection from violence, prevention of torture, repealing discriminatory
laws, prohibiting and combating discrimination, and respect for freedom of
expression, association and peaceful assembly.

As highlighted in Living Free and Equal, the companion to this publication, many
States have made a determined effort to strengthen human rights protection in
each of these areas. An array of new laws and policies have been adopted,
including laws banning discrimination, penalizing hate crimes, providing
simple administrative procedures for legal recognition of the gender identity
of transgender people, and granting recognition of same-sex relationships.
Training programmes have been developed for police, prison staff, teachers,
social workers and other personnel, and anti-bullying initiatives have been
implemented in many schools.

Nevertheless, attention to the rights of some populations, including intersex people,

transgender people, lesbian and bisexual women, and LGBTI people facing multiple
forms of discrimination are lagging behind and need urgent, additional focus.
The grounds of sexual orientation, gender identity and sex characteristics must be
addressed as distinct but intersecting grounds of discrimination and violence. In
the coming years, much more needs to be done to confront prejudice and protect
LGBTI people in all countries from violence and discrimination. OHCHR hopes that
this publication can help contribute to this end, by providing a practical resource for
all those working for change, whether from the perspective of the United Nations,
regional organizations, governments, parliaments, the judiciary, national human
rights institutions or civil society.

Sexual Orientation, Gender Identity and Sex Characteristics 89

ADDITIONAL UNITED NATIONS
HUMAN RIGHTS RESOURCES

u OHCHR website on combating violence and discrimination based on sexual

orientation and gender identity. Available from: www.ohchr.org/EN/Issues/
Discrimination/Pages/LGBT.aspx.

u United Nations Independent Expert on protection against violence and

discrimination based on sexual orientation and gender identity: www.ohchr.
org/EN/Issues/SexualOrientationGender/Pages/Index.aspx.

u United Nations High Commissioner for Human Rights reports to the Human
Rights Council on discrimination and violence against individuals based on
their sexual orientation and gender identity. Available from: www.ohchr.
org/EN/Issues/Discrimination/Pages/LGBTUNReports.aspx.

u United Nations Human Rights Council resolutions on human rights, sexual

orientation and gender identity. Available from: www.ohchr.org/EN/Issues/
Discrimination/Pages/LGBTUNResolutions.aspx.

u OHCHR Expert Meeting on Ending Human Rights Violations against

Intersex Persons and Factsheet on the Human Rights of Intersex Persons,
September 2015. Available from: www.ohchr.org/EN/NewsEvents/Pages/
Astepforwardforintersexvisibility.aspx and www.unfe.org/learn-more/.

u Joint United Nations statement on ending violence and discrimination

against LGBTI persons. September 2015. Available from: www.ohchr.org/
EN/Issues/Discrimination/Pages/JointLGBTIstatement.aspx.

u The Role of the United Nations in Combatting Discrimination and Violence

against Individuals Based on Sexual Orientation and Gender Identity –
A Programmatic Overview of the work of United Nations entities (updated
annually). Available from: www.ohchr.org/EN/Issues/Discrimination/Pages/
LGBTUNSystem.aspx.

u Living Free and Equal: What States are doing to tackle violence and
discrimination against lesbian, gay, bisexual, transgender and intersex
people. October 2016. Available from: www.ohchr.org/EN/Issues/
Discrimination/Pages/LivingFreeEqual.aspx.

u United Nations Free & Equal campaign. Available from: www.unfe.org.

u United Nations Free & Equal campaign factsheets, Available from: www.unfe.
org/learn-more/.

90 BORN FREE AND EQUAL

Office of the United Nations High Commissioner for Human Rights (OHCHR)

Palais des Nations

CH 1211 Geneva – Switzerland
Telephone: +41 (0) 22 917 92 20
Email: InfoDesk@ohchr.org
Website: www.ohchr.org