Discrimination Law, Lecture 5
Content
Utech, Faculty of Law Discrimination Law Lecture 5 SEXUAL ORIENTATION
APA Definition • Sexual orientation refers to an enduring pattern of emotional, romantic, and/or sexual attractions to men, women, or both sexes. • Sexual orientation also refers to a person's sense of identity based on those attractions, related behaviors, and membership in a community of others who share those attractions. • Research over several decades has demonstrated that sexual orientation ranges along a continuum, from exclusive attraction to the other sex to exclusive attraction to the same sex. • However, sexual orientation is usually discussed in terms of three categories: – heterosexual (having emotional, romantic, or sexual attractions to members of the other sex), – gay/lesbian (having emotional, romantic, or sexual attractions to members of one's own sex), and – bisexual (having emotional, romantic, or sexual attractions to both men and women).
Can it change (Does it matter?) • There is no consensus among scientists about the exact reasons that an individual develops a heterosexual, bisexual, gay, or lesbian orientation. • Although much research has examined the possible genetic, hormonal, developmental, social, and cultural influences on sexual orientation, no findings have emerged that permit scientists to conclude that sexual orientation is determined by any particular factor or factors. • Many think that nature and nurture both play complex roles; most people experience little or no sense of choice about their sexual orientation.
Sexual Orientation and Religion • If its nature, then must be protected as an immutable characteristic such as race. • If a choice, then, like religion, it must be protected as a personal expression when it causes no harm to others.
What discrimination? • Sexual orientation discrimination takes many forms. Severe antigay prejudice is reflected in the high rate of harassment and violence directed toward lesbian, gay, and bisexual individuals in Jamaican society. • J-FLAG reports since 2009 a near 300% increase in the number of attacks against LGBT. Also, discrimination against LGBT in employment and housing appears to remain widespread. • 2010 Study by Professor Ian Boxill found 82% of Jamaicans identified as homophobic.
Sexual Orientation and HIV & AIDS • The association of HIV and AIDS with gay and bisexual men and the inaccurate belief that some people held that all gay and bisexual men were infected served to further stigmatize lesbian, gay, and bisexual people.
Are gays “abnormal?” • Research has found no inherent association between any of these sexual orientations and psychopathology. Both heterosexual behavior and homosexual behavior are normal aspects of human sexuality. Both have been documented in many different cultures and historical eras. (American Psychological Association)
Can gays change? • All major national mental health organizations have officially expressed concerns about therapies promoted to modify sexual orientation. To date, there has been no scientifically adequate research to show that therapy aimed at changing sexual orientation (sometimes called reparative or conversion therapy) is safe or effective. (APA)
Gays and Parenting • Social science has shown that the concerns often raised about children of lesbian and gay parents' concerns that are generally grounded in prejudice against and stereotypes about gay people' are unfounded. Overall, the research indicates that the children of lesbian and gay parents do not differ markedly from the children of heterosexual parents in their development, adjustment, or overall wellbeing. (APA)
Homosexuality in other Cultures • Africa: – Women in Lesotho engaged in socially sanctioned "long term, erotic relationships" called motsoalle. – The first record of possible homosexual couple in history is commonly regarded as Khnumhotep and Niankjkhnum, an Egyptian male couple, who lived around the 2400 BCE. The pair are portrayed in a nose-kissing position, the most intimate pose in Egyptian art, surrounded by what appear to be their heirs.
Homosexuality in other Cultures • Americas – Two spirited in Native American culture was recognized early in life, given a choice by the parents to follow the path and, if the child accepted the role, raised in the appropriate manner, learning the customs of the gender it had chosen. Two-Spirit individuals were commonly shamans and were revered as having powers beyond those of ordinary shamans. Their sexual life was with the ordinary tribe members of the same sex. – Homosexual and transgender individuals were also common among other pre-conquest civilizations in Latin America, such as the Aztecs, Mayans, Quechuas, Moches, Zapotecs, and the Tupinamba of Brazil.
Homosexuality in Other Cultures • Asia – In China pleasures of the bitten peach, the cut sleeve, or the southern custom, has been recorded since approximately 600 BCE. – In Thailand, kings often had female and female lovers, called “ladyboys”. – In Japan, homosexuality has been a feature of the Buddhist and Samurai tradition for over 1000 years.
Homosexuality in other Cultures • Europe – Ancient Greeks, Romans and Renaissance Europeans practiced it extensively. Henry VIII criminalized the “abominable crime of buggery” at about the same time he was splitting from the Catholic Church.
• Middle East – Some Muslim men have the practice of “men for recreation, women for procreation.”
Homosexuality in other Cultures • South Pacific – The Etoro and Marind-anim for example, even viewed heterosexuality as sinful and celebrated homosexuality instead.
Homosexuality in Nature • A 1999 review by researcher Bruce Bagemihl shows that homosexual behaviour has been observed in close to 1,500 species, ranging from primates to gut worms, and is well documented for 500 of them. • Homosexuality in animals was cited in the US Supreme Court’s decision in Lawrence v Texas which struck down the sodomy laws of 14 states.
Constitutional provisions • South Africa was the first country to enshrine gay rights in its Constitution: – S.9(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.“
Legislation
• Civil Service Staff Orders (Jamaica) – 13.1 POLICY STATEMENT Employees shall be treated fairly and equitably without discrimination based on any of the following grounds: … • 9. Sexual Orientation
Equality before the law s. 13(3)(g) Embraced in Jamaican Public Service Staff Orders 2004: • S. 13(1) Employees shall be treated fairly and equitably without discrimination based on any of the following grounds: … (9) sexual orientation
BUT…
…Deliberately omitted from 2011 Charter of Fundamental Rights and Freedoms S.13(3)(i): • [T]he right to freedom from discrimination on the ground of– (i) being male or female; – (ii) race, place of origin, social class, colour, religion or political opinions; (Reference made to ‘male or female’ instead of ‘sex’ because ‘sex’ has been interpreted, in some jurisdictions, to include ‘sexual orientation’. )
Application for Redress • 19.-(1) If any person alleges that any of the provisions of this Chapter has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the Supreme Court for redress. EXCEPT FOR…
Jamaican Offences Against the Person Act (1864) Unnatural Offences •
76. Whosoever shall be convicted of the abominable crime of buggery, committed either with mankind or with any animal, shall be liable to be imprisoned and kept to hard labour for a term not exceeding ten years.
•
77. Whosoever shall attempt to commit the said abominable crime, or shall be guilty of any assault with intent to commit the same, or of any indecent assault upon any male person, shall be guilty of a misdemeanour, and being convicted thereof, shall be liable to be imprisoned for a term not exceeding seven years, with or without hard labour.
Outrages on Decency •
79. Any male person who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be guilty of a misdemeanour, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for a term not exceeding two years, with or without hard labour.
Constitutional Savings Law Clause • S. 13 (12) ‘Nothing contained in or done under the authority of any law in force immediately before the commencement of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011, relating to – (a) sexual offences; … shall be held to be inconsistent with or in contravention of the provisions of this Chapter.’ (Prevents constitutional challenge to anti-buggery law).
Jamaica’s 2011 Charter of Rights and Freedoms covers all?
Editorial Cartoon in Jamaica Gleaner, Saturday April 2, 2011
Some Caribbean Legal Academics Views • Judicial solution for the buggery law – Anika Gray is an attorney-at-law and tutor in the Faculty of Law, UWI, • http://jamaicagleaner.com/gleaner/20120205/focus/focus6.html
• Caribbean constitutional standards and the rights of sexual minorities – By Tracy Robinson, Senior Lecturer in Law at the Faculty of Law, UWI, and IACHR Commissioner • http://unaidscaribbean.org/node/165
Case Law • Suratt v. AG – Trinidad and Tobago Justice of Appeal, now Chief Justice, Ivor Archie challenged the constitutionality of the Equal Opportunity Act and its deliberate attempt to exclude sexual orientation from the protections it offers against discrimination. • “It is a denial of the protection of the law and of equality of treatment under the law,” Archie wrote. “The fundamental rights are aptly so called because they arise from our inherent dignity and value as human beings.” (He was overruled by the Privy Council)
Case law • Dudgeon v. United Kingdom – Resulted in the Council of Europe requiring that no member state could criminalise male or female homosexual behaviour.
• Lawrence v Texas – Held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment to the US Constitution.
• National Coalition for Gay and Lesbian Equality v. Minister of Justice, South Africa – Struck down laws against consensual adult male same-sex intimacy based on Constitutional protection against discrimination on the grounds of sexual orientation.
Case Law • Nadan & McCoskar v. State – Fiji Bill of Rights to be interpreted in light of “public international law” so criminalization of consenting adult same-sex intimacy was quashed.
• Naz Foundation v. Government of NCT of Delhi and Others – Treating consensual homosexual sex between adults as a crime is a violation of fundamental rights protected by India’s Constitution.
• Toonen v. Australia – UN Human Rights Committee held that sexual orientation was included in the treaty’s antidiscrimination provisions as a protected status.
Case Law
• Edward Young v. Australia
– Denying pension rights to same-sex partner was a violation of ICCPR non-discrimination clause.
• X v Colombia – The Constitutional Court found that same-sex partners should be given the same pension and health benefits as a family is. The court acknowledged that to exclude samesex partners would violate the principle of nondiscrimination and human dignity as the expression of personal autonomy, protected by international law.
• Egan v. Canada (Partners for 32 years applied for pension) – Sexual orientation constitutes a prohibited basis of discrimination under the Canadian Charter.
Case Law
• Corbiere v. Canada
– The Court found that an analogous ground upon which a non-discrimination claim can be based must be immutable, either actually immutable, such as race, or constructively immutable such as religion.
• Harksen v. Lane – Set out the appropriate test to determine when discrimination would be unfair. “Various factors must be considered,” including “the position of the complainants in society and whether theyhave suffered” from past patterns of discrimination; “the nature of the provision or power and the purpose sought to be achieved by it”; as well as “any other relevant factors.”31 Such additional factors include “the extent to which the discrimination has affected the rights or interests of the complainants and whether it has led to an impairment of their fundamental human dignity.”
Age of Consent • Leung v. Secretary for Justice – A 20 year old man got the age of consent for same-sex intimacy equalized in Hong Kong (was 21 for gays and 16 for heterosexuals) as he felt low self-esteem, loneliness, and sense of marginalisation
• Secretary for Justice v. Yau and Another – 19 year old and 30 year old men caught having anal intercourse in parked car in public. Court held they had to be treated equally as heterosexuals.
Marriage • Halpern v. Canada – The common-law definition of marriage, which defined marriage as between one man and one woman, violated the non-discrimination clause of the Canadian Charter of Rights and Freedoms.
• Minister of Home Affairs and Another v Fourie and Another – South African Constitutional Court found that discrimination against same-sex marriage was unconstitutional and gave Parliament a year to pass the Civil Union Act.
• Jamaican Constitution – Section 18 prohibits recognition of any other form of relationship but heterosexual in Jamaica.
UN Bodies Comments on Sexual Orientation Discrimination
• General Comment No. 20, 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 to capture other forms of differential treatment that cannot be reasonably and objectively justified and are of a comparable nature to the expressly recognised grounds in Article 2(2). These additional grounds are commonly recognised when they reflect the experience of social groups that are vulnerable and have suffered and continue to suffer marginalisation.
UN Statements • • • • • • • • • • • •
UN Doc. CCPR/CO/83/KEN, 28 March 2005, at para. 27 (Kenya); UN Doc. CCPR/C/BRB/CO/3, 11 May 2007, at para. 13 (Barbados); UN Doc. CCPR/CO/76/EGY, 28 November 2002, at para. 19 (Egypt); UN Doc. CCPR/C/79/Add.111, 28 July 1999, at para. 16 (Romania); UN Doc. CCPR/C/79/Add.106, 18 April 1999, at para. 13 (Lesotho); UN Doc. CCPR/C/79/Add.104, 30 March 1999, at para. 20 (Chile); UN Doc. C/79/Add.85, 29 July 1997, at para. 8 (Sudan). Concluding Observations on Kyrgyzstan, UN Doc. A/54/38, 20 August 1999, at para. 128. Concluding Observations on Sweden, UN Doc. A/56/38, 31 July 2001, at para. 334; Concluding Observations on Ecuador, UN Doc. CEDAW/C/ECU/CO/7, 2 November 2008, at para. 28. Committee on the Rights of the Child, General Comment 4, UN Doc. CRC/GC/2003/4, 1 July 2003, at para. 6. Committee Against Torture, General Comment 2, UN Doc. CAT/C/GC/2, 24 January 2008, at para. 21.
UN Statements • Committee on Economic, Social and Cultural Rights, General Comment 20, UN Doc. E/C.12/GC/20, 10 June 2009, at para. 32. • See General Comment No. 14, UN Doc. E/C.12/2000/4, 11 August 2000, at para. 18; and General Comment No. 15, UN Doc. E/C.12/2002/11, 20 January 2003, at para. 13. • Judgment of 21 December 1999, Case of Salgueiro da Silva Mouta v. Portugal, Application No. 33290/96, at para. 28. • Communication 245/2002 – Zimbabwe Human Rights NGO Forum/Zimbabwe, 21st Activity Report, EX.CL/322(X), Annexure III at para. 169. • Report of the Working Group on Arbitrary Detention, UN Doc. E/CN.4/2004/3, 15 December 2003, para. 73; • Working Group on Arbitrary Detention, Opinion No. 7/2002 (Egypt), para. 27, • UN Doc. E/CN.4/2003/8/Add.1; Opinion No. 22/2006 (Cameroon), para. 19, • UN Doc. A/HRC/4/40/Add.1.
OAS Resolution 2653 (adopted 2011) •Condemns discrimination on the basis of Sexual Orientation and Gender Identity and urge the eradication of such discrimination. •States now have a positive obligation to address discrimination (especially on the basis of gender identity).
IACHR rulings • Merits Report on the Karen Atala case in 2010 the IACHR set forth that the American Convention on Human Rights prohibited discrimination based on an individual’s sexual orientation. Given that Chile did not comply with the recommendations to repair the damage caused to Atala and her daughters, the Commission filed an application before the Inter-American Court of Human Rights against Chile, for which process is currently pending.
APA Definition • Sexual orientation refers to an enduring pattern of emotional, romantic, and/or sexual attractions to men, women, or both sexes. • Sexual orientation also refers to a person's sense of identity based on those attractions, related behaviors, and membership in a community of others who share those attractions. • Research over several decades has demonstrated that sexual orientation ranges along a continuum, from exclusive attraction to the other sex to exclusive attraction to the same sex. • However, sexual orientation is usually discussed in terms of three categories: – heterosexual (having emotional, romantic, or sexual attractions to members of the other sex), – gay/lesbian (having emotional, romantic, or sexual attractions to members of one's own sex), and – bisexual (having emotional, romantic, or sexual attractions to both men and women).
Can it change (Does it matter?) • There is no consensus among scientists about the exact reasons that an individual develops a heterosexual, bisexual, gay, or lesbian orientation. • Although much research has examined the possible genetic, hormonal, developmental, social, and cultural influences on sexual orientation, no findings have emerged that permit scientists to conclude that sexual orientation is determined by any particular factor or factors. • Many think that nature and nurture both play complex roles; most people experience little or no sense of choice about their sexual orientation.
Sexual Orientation and Religion • If its nature, then must be protected as an immutable characteristic such as race. • If a choice, then, like religion, it must be protected as a personal expression when it causes no harm to others.
What discrimination? • Sexual orientation discrimination takes many forms. Severe antigay prejudice is reflected in the high rate of harassment and violence directed toward lesbian, gay, and bisexual individuals in Jamaican society. • J-FLAG reports since 2009 a near 300% increase in the number of attacks against LGBT. Also, discrimination against LGBT in employment and housing appears to remain widespread. • 2010 Study by Professor Ian Boxill found 82% of Jamaicans identified as homophobic.
Sexual Orientation and HIV & AIDS • The association of HIV and AIDS with gay and bisexual men and the inaccurate belief that some people held that all gay and bisexual men were infected served to further stigmatize lesbian, gay, and bisexual people.
Are gays “abnormal?” • Research has found no inherent association between any of these sexual orientations and psychopathology. Both heterosexual behavior and homosexual behavior are normal aspects of human sexuality. Both have been documented in many different cultures and historical eras. (American Psychological Association)
Can gays change? • All major national mental health organizations have officially expressed concerns about therapies promoted to modify sexual orientation. To date, there has been no scientifically adequate research to show that therapy aimed at changing sexual orientation (sometimes called reparative or conversion therapy) is safe or effective. (APA)
Gays and Parenting • Social science has shown that the concerns often raised about children of lesbian and gay parents' concerns that are generally grounded in prejudice against and stereotypes about gay people' are unfounded. Overall, the research indicates that the children of lesbian and gay parents do not differ markedly from the children of heterosexual parents in their development, adjustment, or overall wellbeing. (APA)
Homosexuality in other Cultures • Africa: – Women in Lesotho engaged in socially sanctioned "long term, erotic relationships" called motsoalle. – The first record of possible homosexual couple in history is commonly regarded as Khnumhotep and Niankjkhnum, an Egyptian male couple, who lived around the 2400 BCE. The pair are portrayed in a nose-kissing position, the most intimate pose in Egyptian art, surrounded by what appear to be their heirs.
Homosexuality in other Cultures • Americas – Two spirited in Native American culture was recognized early in life, given a choice by the parents to follow the path and, if the child accepted the role, raised in the appropriate manner, learning the customs of the gender it had chosen. Two-Spirit individuals were commonly shamans and were revered as having powers beyond those of ordinary shamans. Their sexual life was with the ordinary tribe members of the same sex. – Homosexual and transgender individuals were also common among other pre-conquest civilizations in Latin America, such as the Aztecs, Mayans, Quechuas, Moches, Zapotecs, and the Tupinamba of Brazil.
Homosexuality in Other Cultures • Asia – In China pleasures of the bitten peach, the cut sleeve, or the southern custom, has been recorded since approximately 600 BCE. – In Thailand, kings often had female and female lovers, called “ladyboys”. – In Japan, homosexuality has been a feature of the Buddhist and Samurai tradition for over 1000 years.
Homosexuality in other Cultures • Europe – Ancient Greeks, Romans and Renaissance Europeans practiced it extensively. Henry VIII criminalized the “abominable crime of buggery” at about the same time he was splitting from the Catholic Church.
• Middle East – Some Muslim men have the practice of “men for recreation, women for procreation.”
Homosexuality in other Cultures • South Pacific – The Etoro and Marind-anim for example, even viewed heterosexuality as sinful and celebrated homosexuality instead.
Homosexuality in Nature • A 1999 review by researcher Bruce Bagemihl shows that homosexual behaviour has been observed in close to 1,500 species, ranging from primates to gut worms, and is well documented for 500 of them. • Homosexuality in animals was cited in the US Supreme Court’s decision in Lawrence v Texas which struck down the sodomy laws of 14 states.
Constitutional provisions • South Africa was the first country to enshrine gay rights in its Constitution: – S.9(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.“
Legislation
• Civil Service Staff Orders (Jamaica) – 13.1 POLICY STATEMENT Employees shall be treated fairly and equitably without discrimination based on any of the following grounds: … • 9. Sexual Orientation
Equality before the law s. 13(3)(g) Embraced in Jamaican Public Service Staff Orders 2004: • S. 13(1) Employees shall be treated fairly and equitably without discrimination based on any of the following grounds: … (9) sexual orientation
BUT…
…Deliberately omitted from 2011 Charter of Fundamental Rights and Freedoms S.13(3)(i): • [T]he right to freedom from discrimination on the ground of– (i) being male or female; – (ii) race, place of origin, social class, colour, religion or political opinions; (Reference made to ‘male or female’ instead of ‘sex’ because ‘sex’ has been interpreted, in some jurisdictions, to include ‘sexual orientation’. )
Application for Redress • 19.-(1) If any person alleges that any of the provisions of this Chapter has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the Supreme Court for redress. EXCEPT FOR…
Jamaican Offences Against the Person Act (1864) Unnatural Offences •
76. Whosoever shall be convicted of the abominable crime of buggery, committed either with mankind or with any animal, shall be liable to be imprisoned and kept to hard labour for a term not exceeding ten years.
•
77. Whosoever shall attempt to commit the said abominable crime, or shall be guilty of any assault with intent to commit the same, or of any indecent assault upon any male person, shall be guilty of a misdemeanour, and being convicted thereof, shall be liable to be imprisoned for a term not exceeding seven years, with or without hard labour.
Outrages on Decency •
79. Any male person who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be guilty of a misdemeanour, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for a term not exceeding two years, with or without hard labour.
Constitutional Savings Law Clause • S. 13 (12) ‘Nothing contained in or done under the authority of any law in force immediately before the commencement of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011, relating to – (a) sexual offences; … shall be held to be inconsistent with or in contravention of the provisions of this Chapter.’ (Prevents constitutional challenge to anti-buggery law).
Jamaica’s 2011 Charter of Rights and Freedoms covers all?
Editorial Cartoon in Jamaica Gleaner, Saturday April 2, 2011
Some Caribbean Legal Academics Views • Judicial solution for the buggery law – Anika Gray is an attorney-at-law and tutor in the Faculty of Law, UWI, • http://jamaicagleaner.com/gleaner/20120205/focus/focus6.html
• Caribbean constitutional standards and the rights of sexual minorities – By Tracy Robinson, Senior Lecturer in Law at the Faculty of Law, UWI, and IACHR Commissioner • http://unaidscaribbean.org/node/165
Case Law • Suratt v. AG – Trinidad and Tobago Justice of Appeal, now Chief Justice, Ivor Archie challenged the constitutionality of the Equal Opportunity Act and its deliberate attempt to exclude sexual orientation from the protections it offers against discrimination. • “It is a denial of the protection of the law and of equality of treatment under the law,” Archie wrote. “The fundamental rights are aptly so called because they arise from our inherent dignity and value as human beings.” (He was overruled by the Privy Council)
Case law • Dudgeon v. United Kingdom – Resulted in the Council of Europe requiring that no member state could criminalise male or female homosexual behaviour.
• Lawrence v Texas – Held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment to the US Constitution.
• National Coalition for Gay and Lesbian Equality v. Minister of Justice, South Africa – Struck down laws against consensual adult male same-sex intimacy based on Constitutional protection against discrimination on the grounds of sexual orientation.
Case Law • Nadan & McCoskar v. State – Fiji Bill of Rights to be interpreted in light of “public international law” so criminalization of consenting adult same-sex intimacy was quashed.
• Naz Foundation v. Government of NCT of Delhi and Others – Treating consensual homosexual sex between adults as a crime is a violation of fundamental rights protected by India’s Constitution.
• Toonen v. Australia – UN Human Rights Committee held that sexual orientation was included in the treaty’s antidiscrimination provisions as a protected status.
Case Law
• Edward Young v. Australia
– Denying pension rights to same-sex partner was a violation of ICCPR non-discrimination clause.
• X v Colombia – The Constitutional Court found that same-sex partners should be given the same pension and health benefits as a family is. The court acknowledged that to exclude samesex partners would violate the principle of nondiscrimination and human dignity as the expression of personal autonomy, protected by international law.
• Egan v. Canada (Partners for 32 years applied for pension) – Sexual orientation constitutes a prohibited basis of discrimination under the Canadian Charter.
Case Law
• Corbiere v. Canada
– The Court found that an analogous ground upon which a non-discrimination claim can be based must be immutable, either actually immutable, such as race, or constructively immutable such as religion.
• Harksen v. Lane – Set out the appropriate test to determine when discrimination would be unfair. “Various factors must be considered,” including “the position of the complainants in society and whether theyhave suffered” from past patterns of discrimination; “the nature of the provision or power and the purpose sought to be achieved by it”; as well as “any other relevant factors.”31 Such additional factors include “the extent to which the discrimination has affected the rights or interests of the complainants and whether it has led to an impairment of their fundamental human dignity.”
Age of Consent • Leung v. Secretary for Justice – A 20 year old man got the age of consent for same-sex intimacy equalized in Hong Kong (was 21 for gays and 16 for heterosexuals) as he felt low self-esteem, loneliness, and sense of marginalisation
• Secretary for Justice v. Yau and Another – 19 year old and 30 year old men caught having anal intercourse in parked car in public. Court held they had to be treated equally as heterosexuals.
Marriage • Halpern v. Canada – The common-law definition of marriage, which defined marriage as between one man and one woman, violated the non-discrimination clause of the Canadian Charter of Rights and Freedoms.
• Minister of Home Affairs and Another v Fourie and Another – South African Constitutional Court found that discrimination against same-sex marriage was unconstitutional and gave Parliament a year to pass the Civil Union Act.
• Jamaican Constitution – Section 18 prohibits recognition of any other form of relationship but heterosexual in Jamaica.
UN Bodies Comments on Sexual Orientation Discrimination
• General Comment No. 20, 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 to capture other forms of differential treatment that cannot be reasonably and objectively justified and are of a comparable nature to the expressly recognised grounds in Article 2(2). These additional grounds are commonly recognised when they reflect the experience of social groups that are vulnerable and have suffered and continue to suffer marginalisation.
UN Statements • • • • • • • • • • • •
UN Doc. CCPR/CO/83/KEN, 28 March 2005, at para. 27 (Kenya); UN Doc. CCPR/C/BRB/CO/3, 11 May 2007, at para. 13 (Barbados); UN Doc. CCPR/CO/76/EGY, 28 November 2002, at para. 19 (Egypt); UN Doc. CCPR/C/79/Add.111, 28 July 1999, at para. 16 (Romania); UN Doc. CCPR/C/79/Add.106, 18 April 1999, at para. 13 (Lesotho); UN Doc. CCPR/C/79/Add.104, 30 March 1999, at para. 20 (Chile); UN Doc. C/79/Add.85, 29 July 1997, at para. 8 (Sudan). Concluding Observations on Kyrgyzstan, UN Doc. A/54/38, 20 August 1999, at para. 128. Concluding Observations on Sweden, UN Doc. A/56/38, 31 July 2001, at para. 334; Concluding Observations on Ecuador, UN Doc. CEDAW/C/ECU/CO/7, 2 November 2008, at para. 28. Committee on the Rights of the Child, General Comment 4, UN Doc. CRC/GC/2003/4, 1 July 2003, at para. 6. Committee Against Torture, General Comment 2, UN Doc. CAT/C/GC/2, 24 January 2008, at para. 21.
UN Statements • Committee on Economic, Social and Cultural Rights, General Comment 20, UN Doc. E/C.12/GC/20, 10 June 2009, at para. 32. • See General Comment No. 14, UN Doc. E/C.12/2000/4, 11 August 2000, at para. 18; and General Comment No. 15, UN Doc. E/C.12/2002/11, 20 January 2003, at para. 13. • Judgment of 21 December 1999, Case of Salgueiro da Silva Mouta v. Portugal, Application No. 33290/96, at para. 28. • Communication 245/2002 – Zimbabwe Human Rights NGO Forum/Zimbabwe, 21st Activity Report, EX.CL/322(X), Annexure III at para. 169. • Report of the Working Group on Arbitrary Detention, UN Doc. E/CN.4/2004/3, 15 December 2003, para. 73; • Working Group on Arbitrary Detention, Opinion No. 7/2002 (Egypt), para. 27, • UN Doc. E/CN.4/2003/8/Add.1; Opinion No. 22/2006 (Cameroon), para. 19, • UN Doc. A/HRC/4/40/Add.1.
OAS Resolution 2653 (adopted 2011) •Condemns discrimination on the basis of Sexual Orientation and Gender Identity and urge the eradication of such discrimination. •States now have a positive obligation to address discrimination (especially on the basis of gender identity).
IACHR rulings • Merits Report on the Karen Atala case in 2010 the IACHR set forth that the American Convention on Human Rights prohibited discrimination based on an individual’s sexual orientation. Given that Chile did not comply with the recommendations to repair the damage caused to Atala and her daughters, the Commission filed an application before the Inter-American Court of Human Rights against Chile, for which process is currently pending.
