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					ACJ Reference:
Human Rights,
Sexual Orientation and
Gender Identity
Background paper




APF 15
15th Annual Meeting of the Asia Pacific Forum
of National Human Rights Institutions
Bali, Indonesia, 3–5 August 2010
The Asia Pacific Forum of National Human Rights Institutions
The Asia Pacific Forum of National Human Rights Institutions (APF) is a regional
membership based organisation. It supports, through cooperation, the establishment and
strengthening of national human rights institutions that protect and promote the human rights
of the peoples of the region. The APF plays a unique role in developing a regional human
rights dialogue, networks and practical programmes of support. Through its member NHRIs,
it is well positioned to directly influence the development of human rights law and practice in
the Asia Pacific.



The Advisory Council of Jurists
The Advisory Council of Jurists (ACJ) advises the APF on the interpretation and application
of international human rights standards. The establishment of the ACJ reflects the Forum
Council’s recognition of: the need for independent, authoritative advice on international
human rights questions; and, the value in developing regional jurisprudence relating to the
interpretation and application of international human rights standards.

The ACJ has considered eight references: human rights and transnational corporations
(2008) environment (2007), education (2006); torture (2005); anti-terrorism legislation and
the rule of law (2004); trafficking of women and children (2002); death penalty (2000); and
the regulation of child pornography on the internet (2000).

The ACJ is comprised of eminent jurists who have held high judicial office or senior
academic or human rights appointments.



Acknowledgements
This Background Paper has been prepared by the Alternative Law Forum as consultants to
the Asia Pacific Forum of National Human Rights Institutions.

The principal authors, Arvind Narrain and Siddharth Narrain, were assisted in their task by
Manish, (National Law School of India University, Bangalore), Danish Sheikh, Vaishali
Sharma & Kavya Susan (National Academy of Legal Education and Research, Hyderabad)
and Megan Hjelle (Brooklyn Law School, New York). The authors would like to acknowledge
their excellent and detailed work, without which this report was not possible.

In addition, contributors from across the region commented on drafts and took the time and
effort to give feedback and send material which was not available online. The authors would
like to thank Anara Nyamdorj in Mongolia; Aarthi Dharmadasa and Rosanna Flamer-Caldera
in Sri Lanka; Sunil Babu Pant in Nepal; Dede Oetemo in Indonesia, Angela Kuga Thas in
Malaysia; Jonas Bagas in The Philippines, Professor Douglas Sanders in Thailand and
Allison Jernow from the International Commission of Jurists.

The authors were also supported by colleagues at the Alternative Law Forum, Bangalore.




Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity       2
Contents

Background to the ACJ Reference...................................................................................... 5
Notes on terminology........................................................................................................... 7
Executive summary .............................................................................................................. 8
    International Human Rights Law ........................................................................................ 8
        The Yogyakarta Principles............................................................................................ 9

    Regional/National Analysis ................................................................................................ 9
    Recommendations ........................................................................................................... 10
Chapter I: Introduction ....................................................................................................... 11
Chapter II: International Law Norms on Sexual Orientation and Gender Identity .......... 15
    Treaty Bodies: Non-discrimination on grounds of sexual orientation ................................ 15
    The UN Special Procedures............................................................................................. 18
    UN Human Rights Council ............................................................................................... 19
    UN General Assembly ..................................................................................................... 20
    European Court of Human Rights .................................................................................... 21
    Other Regional Human Rights Mechanisms .................................................................... 23
    The Yogyakarta Principles on the Application of International Human Rights Law in
    Relation to Sexual Orientation and Gender Identity (2006) .............................................. 23
    Rights in International Law pertaining to Sexual Orientation and Gender Identity: Regional
    Resonances ..................................................................................................................... 24
    Right to universal human rights ...................................................................................25
    Right to Privacy ...........................................................................................................26
    Right to Equality and the Right to Non-Discrimination .................................................27
    Freedom from arbitrary detention ................................................................................29
    Freedom from torture ..................................................................................................30
    The Right to Health .....................................................................................................31
    The Right to Recognition before the Law.....................................................................32
    The Right to Freedom of Opinion and Expression .......................................................33
Chapter III: The application of International Law to Domestic Jurisdictions ................. 35
    Afghanistan...................................................................................................................... 35
    Australia........................................................................................................................... 36
    India................................................................................................................................. 41
    Indonesia ......................................................................................................................... 47
    Jordan ............................................................................................................................. 50
    Malaysia .......................................................................................................................... 52
    Maldives .......................................................................................................................... 55
    Mongolia .......................................................................................................................... 57
    Nepal ............................................................................................................................... 59



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                                     3
    New Zealand ................................................................................................................... 62
    Palestine .......................................................................................................................... 68
    Qatar ............................................................................................................................... 69
    Republic of Korea ............................................................................................................ 71
    Sri Lanka ......................................................................................................................... 74
    Thailand ........................................................................................................................... 76
    Timor Leste...................................................................................................................... 79
    The Philippines ................................................................................................................ 80
Chapter IV: Conclusions .................................................................................................... 85
    Challenges in the Asia Pacific region in addressing LGBT Rights: ................................... 85
    Best Practices in the Asia-Pacific Region with respect to protecting LGBT rights ............. 87
Chapter V: Recommendations .......................................................................................... 90
    General Recommendations ............................................................................................. 90
    Country Specific Recommendations ................................................................................ 92
     Afghanistan .................................................................................................................92
     Australia ......................................................................................................................92
     India ............................................................................................................................93
     Indonesia ....................................................................................................................93
     Jordan .........................................................................................................................93
     Malaysia ......................................................................................................................94
     Maldives ......................................................................................................................94
     Mongolia .....................................................................................................................94
     Nepal...........................................................................................................................95
     New Zealand ...............................................................................................................95
     Palestine .....................................................................................................................95
     Qatar ...........................................................................................................................96
     South Korea ................................................................................................................96
     Sri Lanka .....................................................................................................................96
     Thailand ......................................................................................................................97
     The Philippines ............................................................................................................97
     Timor Leste .................................................................................................................97
Table of Abbreviations ....................................................................................................... 99
Table of Cases .................................................................................................................. 101
Table of International Treaties and Conventions ........................................................... 103
Table of Constitutions and Domestic Legislation .......................................................... 104
Annexure 1: Table of criminalisation of same sex conduct and anti-discrimination
legislation ......................................................................................................................... 106
Annexure 2: Table of laws permitting change of gender ............................................... 109
Annexure 3: Conclusions of the Workshop on the Role of National Human Rights
Institutions in the Promotion and Implementation of the Yogyakarta Principles ........ 111




Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                                    4
Background to the ACJ Reference
Discrimination and violence against people of diverse sexual orientation and gender identity
is a serious problem in many countries across the Asia Pacific. People of diverse sexual
orientation and gender identity, whether actual or perceived, face execution or extra-judicial
killing, torture, rape, arbitrary detention, unfair trials and, in the case of women, forced
pregnancy and forced marriage.

These human rights violations occur at the hands of State officials and authorities and at the
hands of non-State actors, often with the actual or implied complicity of State actors and
often with impunity.

In 2006, in response to well-documented patterns of abuse, a distinguished group of
international human rights experts outlined a set of international standards relating to sexual
orientation and gender identity. Addressing a broad range of human rights issues, including
torture and violence, extrajudicial killing, privacy, freedom from discrimination, access to
justice, freedom of expression and assembly, health, access to employment and education,
the experts adopted 29 ‘Principles on the Application of International Human Rights Law in
relation to Sexual Orientation and Gender Identity’, (the Yogyakarta Principles), which
specify existing international human rights standards with which all States must comply,
while also recommending to the State and other stakeholders the actions they can undertake
to promote compliance.1

In highlighting that all members of society and of the international community have
responsibilities regarding the realisation of human rights, the Expert Group requested that
NHRIs promote respect for the Yogyakarta Principles by State and non-State actors, and
integrate into their work the promotion and protection of the human rights of persons of
diverse sexual orientations or gender identities.2

In May 2009, in response to this recommendation, the APF brought together member NHRIs
to discuss their role in promoting implementation of the Yogyakarta Principles. They
considered practical ways that NHRIs could use their functions and powers – including
investigating complaints, reviewing laws and policies, holding national inquiries and public
education – to better protect and promote the rights of gay, lesbian, bisexual and
transgender people. Relevant Workshop recommendations are included in Chapter V –
Recommendations, while the Workshop Conclusions are attached in Annex 3.3

Workshop participants also requested the APF’s Advisory Council of Jurists to provide advice
and recommendations on the question of the consistency or inconsistency with international
human rights law of certain laws in the Asia Pacific region in relation to sexual orientation
and gender identity. Specifically, the ACJ was asked to comment, in relation to each State of
a member institution of the Asia Pacific Forum, on:

       (i) Whether, and in what respects, that State’s criminal law is consistent with international
       human rights law in its application to and effect on persons on the basis of sexual
       orientation and gender identity;




1 In addition to States, the recommendations are also directed to the United Nations and its relevant agencies, regional
intergovernmental institutions, national human rights institutions, civil society etc.
2 Additional Recommendations (L). The Yogyakarta Principles. Available at: http://www.yogyakartaprinciples.org/ Last accessed
14 June 2010.
3 Conclusions of the Workshop on the role of National Human Rights Institutions in the promotion and implementation of the
Yogyakarta Principles. Refer to Box 1, page: Action by National Human Rights Institutions, and Annex 3: Complete Conclusions
of the Workshop.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                     5
      (ii) Whether, and in what respects, that State’s anti-discrimination law applies to protect
      the human rights of persons on the basis of sexual orientation and gender identity and
      the adequacy of that protection;

      (iii) Whether, and in what respects, that State’s laws enable the official recognition of
      changes of gender identity from that assigned to a person at birth and the consistency of
      those laws with international human rights law;

      (iv) Whether, in the course of undertaking the reference, the ACJ has identified other
      laws, policies, acts or practices that impact adversely persons on the basis of sexual
      orientation and gender identity, and, if so, the extent to which those laws, policies, acts or
      practices are inconsistent with international human rights law and the nature of the
      inconsistency; and

      (v) Whether the law, policy and practice in a State is adequate to ensure the protection of
      the rights of persons and organisations that defend the human rights of persons of
      diverse sexual orientation and gender identity.

This background paper is intended to assist the ACJ in considering the terms of reference.




Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                 6
Notes on terminology
The terms gender identity and sexual orientation have been defined by the Yogyakarta
Principles on the Application of International Human Rights Law in Relation to Sexual
Orientation and Gender Identity as follows:

      ‘Sexual orientation’ refers to each person’s capacity for profound emotional, affectional
      and sexual attraction to, and intimate and sexual relations with, individuals of a different
      gender or the same gender or more than one gender;

      ‘Gender identity’ refers to each person’s deeply felt internal and individual experience of
      gender, which may or may not correspond with the sex assigned at birth, including the
      personal sense of the body (which may involve, if freely chosen, modification of bodily
      appearance or function by medical, surgical or other means) and other expressions of
      gender, including dress, speech and mannerisms;

While sexual orientation and gender identity are the two terms which have the broadest legal
acceptance it might be useful to also indicate the other terms which have been used to
describe those who do suffer discrimination on grounds of sexual orientation and gender
identity.

Bisexual – a person who is attracted romantically/emotionally/sexually to both men and
women.

Gay – a man who is attracted to men emotionally/sexually/physically.

Lesbian – a woman who is attracted to women emotionally/sexually/romantically.

Transgender – a person born anatomically with a certain sex, but who is more comfortable
with a different gender/sexual identity.

Intersex – “Intersex” is a general term used for a variety of conditions in which a person is
born with a reproductive or sexual anatomy that does not fit typical definitions of female or
male.

LGBT – an acronym for ‘lesbian, gay, bisexual and transgender’. This acronym is taken to
include intersex people.

MSM – an acronym for ‘Men who have Sex with Men’. This term is used in the HIV/AIDS
sector to denote a vulnerable population of men who have sex with men but may not identify
as homosexual or bisexual.

Sexuality minorities – people discriminated against due to their sexual identity/orientation
or gender identity. This includes gays, lesbians, bisexuals, transgender and other traditional
gender identities from around the world like hijras, kothis, warias, katoye, berdache etc. This
study will follow the use of the terms sexual orientation and gender identity and will also use
the terms LGBT as and when applicable and appropriate.




Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity               7
Executive summary
This study pursues three broad lines of inquiry.

   First, it traces the evolution of protections in international law and their application to
    those whose rights are being violated on grounds of sexual orientation and gender
    identity;

   Second, it focuses on laws in the 17 countries of APF member institutions to examine
    their conformity with international human rights law outlined above;

   Third, it makes general and specific recommendations regarding potential action to be
    undertaken by NHRIs in the Asia Pacific region.



International Human Rights Law
The major international law instruments are silent on specific recognition of sexual orientation
and gender identity. This silence is perhaps surprising when one recalls that the origin of
modern human rights norms can be traced to the horrors of the Second World War and in
particular the holocaust in which an entire community of homosexuals was systematically
exterminated.

Though there is a strong ethical case for the protection of LGBT (Lesbian, Gay, Bisexual and
Transgender) persons in human rights law, it is only belatedly that this case is being
translated into the norms of international human rights law

The first breakthrough in the United Nations system came with the decision of the United
Nations (UN) Human Rights Committee in Toonen vs. Australia, almost half a century after
the end of the Second World War. In 1994 the UN Human Rights Committee declared that
the anti-sodomy law in Tasmania violated the right to non-discrimination and the right to
privacy. This was followed by other decisions of the UN Human Rights Committee as well as
General Comments which interpreted the non-discrimination guarantee in the Convention on
the Rights of the Child (CRC), the International Covenant on Economic, Social and Cultural
Rights (ICESCR) and the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, (CAT) respectively.

What runs through the decisions of the various Treaty Bodies in their referencing of sexual
orientation is that they have determined discrimination on the grounds of sexual orientation to
be a violation of the principle of non-discrimination, by reading sexual orientation into the
category of 'other status'.

The UN Special Procedures are also beginning to reference concerns around sexual
orientation and gender identity. The UN Working Group on Arbitrary Detention, in expressing
its views on the detention and imprisonment of persons on the basis of sexual orientation,
stated that such detention is arbitrary because it violates Articles 2(1) and 26 of the ICCPR
which guarantees equality before the law and the right to equal legal protection against all
forms of discrimination, including that based on sex.

Charter based bodies such as the UN Human Rights Council have also begun to reference
concerns around sexual orientation and gender identity, most notably with the Norwegian
authored statement on human rights violations based on sexual orientation and gender
identity in December 2006. This was followed by a statement on human rights, sexual



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity        8
orientation and gender identity, issued by Argentina on behalf of 66 countries, and made to
the UN General Assembly in December 2008.4

The above developments reveal that while the terms sexual orientation and gender identity
are no strangers to discussions on the rights to privacy and freedom from discrimination, and
are slowly being recognized as integral to human identity, their status and meaning in
international law is yet to be clearly defined. That said, in addition to non-discrimination and
privacy, this survey indicates that torture, extra judicial executions, arbitrary treatment on the
basis of sexual orientation or gender identity are all prohibited under existing human rights
norms.


The Yogyakarta Principles
Until 2006, anyone wanting to find clear guidance on the application of international law to
sexual orientation and gender identity would be required to traverse the myriad sources of
international law, since there is no one place where developments in this area had been
concisely and clearly stated. It is this gap that the Yogyakarta Principles on the application of
international human rights law in relation to sexual orientation and gender identity sought to
address. In 2006, a group of 26 eminent experts from across the globe met in Indonesia to
reflect upon the existing state of international human rights law in relation to issues of sexual
orientation and gender identity. The resultant Yogyakarta Principles provide an authoritative
statement on the application of existing international human rights standards to issues of
sexual orientation and gender identity in 29 areas. Furthermore, the principles provide
guidance to States on the action that may be undertaken to ensure the enjoyment of human
rights in relation to persons of diverse sexual orientation and gender identity.



Regional/National Analysis
Within the Asia Pacific region, the rights which have found a contemporary resonance in
regional jurisprudence pertaining to LGBT persons are:

   Right to universal human rights
   Right to non-discrimination
   Freedom from arbitrary detention
   Freedom from torture
   Right to health
   Right to privacy
   Right to recognition before the law
   Right to freedom of opinion and expression

While it is difficult to generalise about the varying country experiences, what can be said is
that the core rights which are most subject to violation are those mentioned above. Some of
the core challenges in terms of human rights of LGBT persons in these jurisdictions are the
continued existence of criminal sanctions against same-sex relationships between
consenting adults, the lack of laws to facilitate change of gender identity, of the imposition of
cruel, inhuman or degrading treatment of LGBT persons, discriminatory access to a range of
services including health.

There are also examples of best practices which can be emulated by different NHRI's around
the region. In particular one should draw attention to the work of the New Zealand Human


4 Refer to discussion in Chapter 1, pages 15–17.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity          9
Rights Commission, which is the first NHRI in the world to commission and complete a study
of the human rights of its transgender community. Further examples of best practices include
noteworthy decisions by the Superior Courts in the Asia Pacific region and the protection and
promotion activities of certain States. These provide guidance to those committed to future
action

Further information on these issues is provided in the section on Rights in International Law
pertaining to Sexual Orientation and Gender Identity: Regional Resonances at page 21.



Recommendations
Among the key general recommendations made in this context are:

   Enacting non-discriminatory laws which specifically mention sexual orientation and
    gender identity

   Decriminalising same sex sexual conduct between consenting adults

   Providing for legal change of gender identity

   Responding to cases of torture, ill treatment and abuse of LGBT persons

   Promoting consistency of cultural and religious based laws and practices with
    international human rights law

   Narrowly interpreting applicable limitation on human rights, in line with the Siracusa
    Principles on the Limitation and Derogation of Provisions in the International Covenant on
    Civil and Political Rights.




Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity      10
Chapter I: Introduction
Human rights movements as an international basis for mobilisation and resistance to
oppression emerged after the Second World War with the International Bill of Rights.5

The period since has been characterised as “the age of human rights” with the assertion that
“no preceding century in human history has been privileged to witness such a profusion of
human rights enunciations on a global scale”.6

There have however been extraordinary silences, one of which is the silence on the rights of
those who are stigmatised on grounds of their sexual orientation or gender identity. This finds
no express mention in either the International Bill of Rights or regional human rights
conventions.7

The silence has gradually been broken with the emergence of international human rights law
norms on sexual orientation and gender identity, and decisions of regional human rights
mechanisms and national courts.8

In 1998, the South African Supreme Court in its decision invalidating sodomy laws, held:

        In the case of gays, history and experience teach us that the scarring comes not from
        poverty or powerlessness, but from invisibility. It is the tainting of desire, it is the
        attribution of perversity and shame to spontaneous bodily affection, it is the prohibition of
        the expression of love, it is the denial of full moral citizenship in society because you are
                                                                                 9
        what you are, that impinges on the dignity and self-worth of a group.

In 2003, the US Supreme Court in invalidating anti-sodomy laws in the USA held:

        Liberty protects the person from unwarranted government intrusions into a dwelling or
        other private places. In our tradition the State is not omnipresent in the home. And there
        are other spheres of our lives and existence, outside the home, where the State should
        not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes
        an autonomy of self that includes freedom of thought, belief, expression, and certain
        intimate conduct. The instant case involves liberty of the person both in its spatial and
                                         10
        more transcendent dimensions.

In 2005, the Fijian High Court found the anti-sodomy law of Fiji unconstitutional and in so
doing ruled that,

        What the Constitution requires is that the Law acknowledges difference, affirms dignity
        and allows equal respect to every citizen as they are. The acceptance of difference


5 The Universal Declaration of Human Rights, The International Covenant on Civil and Political Rights and The International
Covenant on Social and Economic Rights make up the International Bill of Rights.
6 Upendra Baxi, The Future of Human Rights, Oxford University Press, New Delhi, 2002, p. 1.
7 This is all the more extraordinary when one takes into account that it was the horror of the holocaust which triggered the
development of international human rights law. Yet what is ignored in this telling of history is that thousands of homosexuals
were persecuted by the Nazis and thousands of gay men died in concentration camps . Persecution on the basis of sexual
orientation did not produce acceptance of the rights of gays and lesbians. Indeed in subsequent years, the Stalinist state
persecuted homosexuals and denounced homosexuality, ignoring completely the Nazi perpetrated genocide of homosexuals.
For further background see Mark Blasius et al., eds., We Are Everywhere: A Historical Sourcebook of Gay and Lesbian Politics,
Routledge, New York, 1997, p. 214.
8 The breaking of the legal silence has occurred primarily due to the increasingly activism and articulation of the rights of
Lesbian, Gay, Bisexual and Transgender People (LGBT), both at a national and global level, The grassroots pressure from
LGBT activism has resulted in tremendous changes. Today the global trend is really one of increasing recognition of the
application of human rights norms in the context of sexual orientation and gender identity.
9 National Coalition for Gay and Lesbian Equality v. Minister of Justice, [1998] {12} PCLR 1517.
10 Lawrence v. Texas, 539 U.S. 558 (2003).



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                     11
        celebrates diversity. The affirmation of individual dignity offers respect to the whole of
        society. The promotion of equality can be a source of interactive vitality. The State that
        embraces difference, dignity and equality does not encourage citizens without a sense of
        good or evil but rather creates a strong society built on tolerant relationships with a
                                            11
        healthy regard for the rule of law.

In 2005, the High Court of Hong Kong considered criminal provisions specifically targeted
homosexual sex in public. The Court held the provision to be discriminatory and
unconstitutional. In noting the absence of an equivalent statutory offence criminalizing
heterosexual sex in public, the Court stated that the provision:

        ‘singles out male homosexuals as a class of persons and imposes a social and moral
        stigma which does not apply to anyone else’. J. Hong Tang went on to note, ‘I can see no
        justification for Section 118 F... It stigmatizes homosexuality and distinguishes it from
                                           12
        other acts of indecency in public.’

In 2007, the Nepali Supreme Court in its judgement recognising the third gender as a legal
identity noted:

        The fundamental rights comprised under Part III of the Constitution are enforceable
        fundamental human rights guaranteed to the citizens against the state. For this reason,
        the fundamental rights stipulated in Part III are the rights similarly vested in the third
        gender people as human beings. The homosexuals and third gender people are also
        human beings as other men and women are, and they are the citizen of this country as
        well.... Thus, the people other than ‘men’ and ‘women’ including the people of ‘third
                                                                             13
        gender’ cannot be discriminated on the ground of sexual orientation.

In 2009, the Delhi High Court invalidated India’s colonial era law criminalising same sex
relationships:

        Where society can display inclusiveness and understanding, such persons can be
        assured of a life of dignity and non-discrimination. This was the ‘spirit behind the
        Resolution’ of which Nehru spoke so passionately. In our view, Indian Constitutional law
        does not permit the statutory criminal law to be held captive by the popular
        misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is
        antithesis of equality and that it is the recognition of equality which will foster the dignity of
                          14
        every individual.

In 2009, the Pakistani Supreme Court passed an order, recognising the eunuch community:

        It is to be noted that this class (eunuchs) has been neglected merely on account of
        gender disorder in their bodies, otherwise they are entitled to enjoy all the rights granted
        to them by the Constitution being its subject including their rights in inherited property
        because normally to deprive them from their legitimate rights some times families
        disowned them. As far as existing laws are concerned, there are no provisions on the
                                                                                                15
        basis of which they can be deprived from their legitimate rights to inherit properties.

Fiji16, South Africa17, and Portugal18 have gone further and explicitly prohibited discrimination
on grounds of sexual orientation in their Constitutions. Ecuador and Bolivia have gone further


11 Dhirendra Nadan and another v. State, HAA 85 &86 Of 2005.
12 Leung T C William Roy v. Secretary for Justice, CACV 317/2005.
13 Sunil Babu Pant and others v. Nepal Government and others, http://www.gaylawnet.com/laws/cases/PantvNepal.pdf
accessed on 26 April 2010.
14 Naz Foundation vs. NCT Delhi and others, (2009) 160 DLT 277. Para 131.
15 Mohammad Aslam Khaki vs S.S.P (Operations) Rawalpindi and others, Constitution Petition No. 43 of 2009.
16 The Fijian Constitution, Section 38(2) reads:
A person must not be unfairly discriminated against, directly or indirectly, on the ground of his or her:



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                       12
still prohibiting discrimination based on both sexual orientation and gender identity in their
constitutions.19

With respect to civil laws Portugal, Netherlands, Canada, Norway, Sweden, Spain and South
Africa recognize same sex marriage. France, the United Kingdom and many other countries
recognise variants of same sex partnerships.20

The countries cited above are from every region of the world thereby indicating that legal
systems and cultures around the world are beginning to adopt an inclusive and pluralistic
ethos towards LGBT persons.

However, while there are dramatic changes in the global treatment of LGBT persons that
hopefully capture a global trend towards protecting the rights of LGBT persons, much of the
world remains impervious to change. Even as of today, over eighty countries around the
world apply criminal sanctions to same sex sexual conduct between consenting adults.21

The existence of these laws serves to perpetuate gross human rights violations, which are
now increasingly documented by human rights organisations.22 On such example,
documented in the Naz case, is illustrative of such abuse and harassment:




    (a) actual or supposed personal characteristics of circumstances, including race, ethnic origin, colour, place of origin,
    gender, sexual orientation, birth, primary language, economic status, age or disability; or
    (b) opinions or beliefs, except to the extent that those opinions or beliefs involve harm to others or the diminution of the
    rights or freedoms of others; or
    (c) on any other ground prohibited by this Constitution.
17 The South African Constitution Section 9(3) reads: 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.
18 Article 13 of the Portuguese Constitution (Constitutional Law no. 1/2004) now officially states that:
    1. All citizens have the same social rank and are equal before the law.
    2. No one shall be privileged or favoured, or discriminated against, or deprived of any right or exempted from any duty, by
    reason of his or her ancestry, sex, race, language, territory of origin, religion, political or ideological convictions, education,
    economic situation, social circumstances or sexual orientation. http://ilga.org/ilga/en/article/289 accessed on 21 May 2010.
19 The new Ecuadorean Political Constitution was passed by a referendum in October 2008, replacing the Political Constitution
of 1998 that incorporated 34 out of 36 proposals submitted by women’s and feminist groups.
    Article 11.2 of the Constitution states that “All persons are equal and will enjoy the same rights, duties and opportunities.
    Nobody can be discriminated against on the basis of her or his ethnicity, birthplace, age, sex, gender identity, cultural
    identity, marital status, language, religion, ideology, political affiliation, judicial records, socio-economic status, migratory
    status, sexual orientation, health status, HIV status, disability, physical difference, or any other personal or collective,
    temporary or permanent distinction, that aims at or results in a detriment or nullification of the recognition, enjoyment or
    exercise of rights. The law will punish all forms of discrimination. The State will adopt affirmative action measures to
    promote substantive equality in favour of those right bears that are placed in an unequal situation.”(Emphasis added)
Natalia Marcos & Tatiana Cordero, Taller de Comunicación Mujer, “Situation of Lesbian and Trans Women in Ecuador, Global
Rights & IGLHRC Shadow Report, International Covenant on Civil and Political Rights,” September 2009,
http://www2.ohchr.org/english/bodies/hrc/docs/ngos/JointStatement_Ecuador97.pdf (accessed on 20 April 2010)
The Bolivian Constitution of 2009 prohibits discrimination based on sexual orientation and gender identity. Article 14, Paragraph
2 reads: “The State prohibits and punishes any form of discrimination based on sex, color, age, sexual orientation, gender
identity, origin, culture, nationality, citizenship, language, religious creed, ideology, political affiliation or philosophical beliefs,
marital status, economic or social status, type of occupation, education level, disability, pregnancy or other factors that have the
purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, the rights of everyone.”
See       Edson       Hurtado,     “Bolivia’s    Gay        Community         Receives       Constitutional    Recognition”,
http://www.infosurhoy.com/cocoon/saii/xhtml/en_GB/features/saii/features/society/2010/03/17/feature-02 (accessed on 10 June
2010)
Also see http://www.hrw.org/en/node/87510 (accesed on 10 June 2010).
20 Daniel Ottosson, State Sponsored Homophobia, ILGA, 2009,
http://trans.ilga.org/trans/welcome_to_the_ilga_trans_secretariat/library/ilga_s_files/publications/state_homophobia_2009/report
_state_sponsored_homophobia_2009 accessed on 27 April 2010.
21 Ibid.
22 http://www.hrw.org/en/category/topic/lgbt-rights accessed on 4 May 2010.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                               13
        The victim of the torture was a hijra (eunuch) from Bangalore, who was at a public place
        dressed in female clothing. The person was subjected to gang rape, forced to have oral
        and anal sex by a group of hooligans. He was later taken to police station where he was
        stripped naked, handcuffed to the window, grossly abused and tortured merely because
                                23
        of his sexual identity.

Similarly in the National Coalition case, the court noted that when everything associated with
homosexuality is treated as bent, queer, repugnant, the whole gay and lesbian community is
marked with deviance and perversity. They are subject to extensive prejudice because of
what they are perceived to be. The result is that a significant group of the population is,
because of its sexual non-conformity, persecuted, marginalised and turned in on itself.24

What the judicial pronouncements cited in the two preceding paragraphs capture is the
violence, prejudice and stigma faced by LGBT persons are still treated around the world. The
Naz judgment is merely illustrative of the fact that brutal attacks on bodily integrity are still the
norm in many jurisdictions around the world, particularly those beset with anti-sodomy laws.
The National Coalition judgment illustrates that the anti-sodomy laws do not just encourage
attacks on bodily integrity but in fact go on to mould social prejudices and discriminatory
attitudes by treating homosexuality as deviant.

However, while reform of these outdated laws is a necessary first step towards ensuring that
the basic rights of LGBT persons are protected, the absence of these laws is itself no
guarantee of a society free from homophobia. Commentators highlight the example of South
Africa, which though including non-discrimination in the constitution, still reports brutal
violence against lesbians while the perpetrators go unpunished.25

With particular reference to the 17 countries of the Asia Pacific Region, which is the focus of
this study, seven countries still have laws criminalising same sex relationships, and 11
countries do not recognise change of gender identity.

Stigma and discrimination on the basis of sexual orientation is a documented experience of
LGBT persons in all countries the subject of this study. As such there is a need to ensure the
enjoyment of basic human rights by LGBT persons so as to ensure that the promise of
‘universal human rights’ remains more than just an unredeemed pledge.

In subsequent chapters, this paper will:

    trace the evolution of protections in international law to those whose rights are being
     violated on grounds of sexual orientation and gender identity;
    analyse laws in the 17 countries of APF member institutions to examine their conformity
     with international human rights law outlined above;
    make general and specific recommendations regarding potential action to be undertaken
     by National Human Rights Institutions (NHRIs) in the Asia Pacific region.




23 Naz Foundation v. NCT Delhi (2009) 160 DLT 277. Para 22.
24 National Coalition for Gay and Lesbian Equality v. Minister of Justice, [1998] {12} PCLR 1517.
25 Ines Gontek, Sexual violence against lesbian women in South Africa,
http://ilga.org/ilga/static/images/oldsite/SexualViolenceAgainstLesbianWomeninSouthAfricabyInesGontek.pdf accessed on 10
May 2010.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                               14
Chapter II: International Law Norms on Sexual
Orientation and Gender Identity
This section analyses the development of human rights norms protecting the human rights of
persons of diverse gender identity and sexual orientation.

The jurisprudence of the Treaty Bodies and the Special Procedures, and statements from the
Human Rights Council and the UN General Assembly have increasingly referenced
discrimination on grounds of sexual orientation and gender identity as contrary to
international human rights law. At the regional level, the European Court of Human Rights
(ECHR), amongst other regional human rights mechanisms, has led the development of
jurisprudence on sexual orientation and gender identity.

What brought sustained international attention to the history of discrimination suffered by
LGBT persons was the articulation in 2006 of the Yogyakarta Principles. These Principles
succeeded in gathering the scattered jurisprudence on sexual orientation and gender identity
into a coherent statement of the application of human rights law in this area.

Following an analysis of the development of international jurisprudence, this section will
examine eight core rights which are of great relevance to the enjoyment of fundamental
rights by persons of diverse sexual orientation or gender identity, particularly in the Asia
Pacific region.



Treaty Bodies: Non-discrimination on grounds of sexual
orientation
The first acknowledgement that international human rights law does indeed apply to those
who face discrimination on grounds of sexual orientation was the decision of the UN Human
Rights Committee in Toonen vs. Australia.26 In this case, Nicholas Toonen challenged an
anti-sodomy law as being in violation of Article 2(1), Article 17 and Article 26 of the ICCPR.

The Human Rights Committee held that the anti-sodomy statute violated Toonen’s right to
privacy guaranteed under Art. 17. The Committee also held that the reference to the word
‘sex’ in Article 2(1) and Art.26 is to be taken as including sexual orientation.

        The Committee cannot accept either that for the purposes of article 17 of the Covenant,
        moral issues are exclusively a matter of domestic concern, as this would open the door to
        withdrawing from the Committee’s scrutiny a potentially large number of statutes
        interfering with privacy. It further notes that with the exception of Tasmania, all laws
        criminalizing homosexuality have been repealed throughout Australia and that, even in
        Tasmania, it is apparent that there is no consensus as to whether sections 122 and 123
        should not also be repealed. Considering further that these provisions are not currently
        enforced, which implies that they are not deemed essential to the protection of morals in
        Tasmania, the Committee concludes that the provisions do not meet the
        “reasonableness” test in the circumstances of the case, and that they arbitrarily interfere
                                                               27
        with Mr. Toonen’s right under article 17, paragraph 1.




26 Communication No.488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994). http://hrlibrary.ngo.ru/undocs/html/vws488.htm
accessed on 26 April 2010.
27 Ibid. Para 8.6.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                         15
The Committee held that Art. 2(1) was also violated but refused to rule on a violation of Art.
26 (the non-discrimination clause).28

This 1992 interpretation of the applicability of international human rights law to those who
faced persecution on grounds of sexual orientation was further buttressed by other decisions
of the UN Human Rights Committee. In Young vs. Australia29 it ruled that denying a same-
sex partner army pension benefits only on grounds of sexual orientation amounted to a
violation of the non discrimination clause embedded in Article 26 of the ICCPR.

        The Committee recalls its constant jurisprudence that not every distinction amounts to
        prohibited discrimination under the Covenant, as long as it is based on reasonable and
        objective criteria. The State party provides no arguments on how this distinction between
        same-sex partners, who are excluded from pension benefits under law, and unmarried
        heterosexual partners, who are granted such benefits, is reasonable and objective, and
        no evidence which would point to the existence of factors justifying such a distinction has
        been advanced. In this context, the Committee finds that the State party has violated
        article 26 of the Covenant by denying the author a pension on the basis of his sex or
                            30
        sexual orientation .

The application of Article 26 to discrimination based on sexual orientation was again
reiterated in X vs. Columbia, the UN Human Rights Committee finding that

        The Committee finds that the State party has put forward no argument that might
        demonstrate that such a distinction between same-sex partners, who are not entitled to
        pension benefits, and unmarried heterosexual partners, who are so entitled, is
        reasonable and objective. Nor has the State party adduced any evidence of the existence
        of factors that might justify making such a distinction. In this context, the Committee finds
        that the State party has violated article 26 of the Covenant by denying the author’s right
                                                                              31
        to his life partner’s pension on the basis of his sexual orientation.

The Committee on Economic Social and Cultural Rights (CESCR) has stated that,

        By virtue of Article 2.2 and Article 3 [the Covenant] proscribes any discrimination in
        access to health care and underlying determinants of health, as well as to means and
        entitlements for their procurement on the grounds of [..] health status, (including
        HIV/AIDS) as well as to means and entitlements for their procurement, on the grounds of
        [....] health status (including HIV/AIDS), sexual orientation [....] which has the intention or
                                                                                                  32
        effect of nullifying or impairing the equal enjoyment or exercise of the right to health.

In General Comments Nos. 18 of 2005 (on the right to work)33, 15 of 2002 (on the right to
water)34 the CESCR has highlighted a prohibition on any discrimination on the basis of, inter-
alia, sex and sexual orientation ‘that has the intention or effect of nullifying or impairing the
equal enjoyment or exercise of [the right at issue]’.

In General Comment No. 20 the CESCR built on existing jurisprudence to note:


28 Ibid. Para 8.7.
29 Communication No. 941/2000, http://www.unhchr.ch/tbs/doc.nsf/0/3c839cb2ae3bef6fc1256dac002b3034?Opendocument
accessed on 1 May 2010.
30 Ibid. Para 10.4.
31 X v. Columbia, Communication No. 1361 of 2005,
http://www.unhchr.ch/tbs/doc.nsf/0/51537efd406147c3c125730600464373?Opendocument accessed on 1 May 2010.
32 Committee on Economic, Social and Cultural Rights, General Comment No. 14: The right to the highest attainable standard
of health (Article 12), para 18.
33 Committee on Economic, Social and Cultural Rights, General Comment No. 18: The right to work, E/C.12/GC/18, 24
November 2005 para 12
34 Committee on Economic, Social and Cultural Rights, General Comment No. 15: The right to water, E/C.12/2002/11, 26
November 2002, para 13.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                 16
                                                                                                 35
         “Other status” as recognized in article 2(2) includes sexual orientation. States parties
        should ensure that a person’s sexual orientation is not a barrier to realising Covenant
        rights, for example, in accessing survivor’s pension rights. In addition, gender identity is
        recognized as among the prohibited grounds of discrimination; for example, persons who
        are transgender, transsexual or intersex often face serious human rights violations, such
                                                        36
        as harassment in schools or in the work place.

The CESCR also specifically referenced the Yogyakarta Principles on the Application of
International Human Rights Law in relation to Sexual Orientation and Gender Identity, (see
discussion below).

The Committee Against Torture determined that the sexual orientation is one of the
prohibited grounds included in the principle of non-discrimination.37

The Committee on the Rights of the Child has listed sexual orientation among the prohibited
grounds of discrimination in its General Comments regarding adolescent health and
HIV/AIDs, noting:

        ‘State parties have the obligation to ensure that all human beings enjoy all the rights set
        forth in the Convention [on the Rights of the Child] without discrimination (Article 2),
        including with regard to ‘‘race, colour, sex, language, religion, political or other opinion,
        national, ethnic or social origin, property, disability, birth or other status’. These grounds
                                                     38
        also cover [inter alia] sexual orientation’.

The various treaty body interpretations unequivocally show that the idea of protecting those
who face discrimination on grounds of sexual orientation has become a part of international
law. The authoritative pronouncements of the UN Human Rights Committee in particular
demonstrate how anti-sodomy laws violate Article 17 of the ICCPR and are a violation of the
prohibition against discrimination in Article 2.39 The decisions also make out a strong case for
how disparate treatment on grounds of sexual orientation is in violation of the non
discrimination clause in Article 26.40 Though sexual orientation is not specifically enumerated
the UN Human Rights Committee has chosen to read sexual orientation into the phrase,
‘other status’.

What runs through the decisions of the various Treaty Bodies is an acknowledgment that
discrimination on grounds of sexual orientation and gender identity is in violation of the
principle of non-discrimination. In so doing, they have also chosen to disregard the radical
positivist assertion that sexual orientation or gender identity can never be protected simply
because they are not ‘expressly’ mention in the international treaties.41




35 See General Comments No. 14 and 15.
36 Committee on Economic, Social and Cultural Rights, General Comment No. 20: Non-Discrimination in Economic, Social and
Cultural Rights (art. 2, para. 2).
37 Committee Against Torture, General Comment No.2: Implementation of Article 2 by State parties, paras 21 and 22.
38 Committed on the Rights of the Child, General Comment No.4: Adolescent Health, para 6 and General Comment No. 3,
HIV/AIDS and the rights of the child, para 8.
39 See Toonen v. Australia, Op. cit.
40 See X v. Columbia, Op. Cit. and Young vs Australia, Op. cit.
41 International Commission of Jurists, Sexual Orientation, Gender Identity and International Human Rights Law, 2009.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                  17
The UN Special Procedures
The UN Special Procedures on Human Rights have also pronounced on the rights of non
discrimination and equality before the law in relation to sexual orientation.42 The UN Working
Group on Arbitrary Detention, in expressing its views on homosexuals who are detained or
given prison sentences solely because of their sexual orientation opined that, ‘detention [is]
arbitrary because it violate[s] Articles 2(1) and 26 of the ICCPR which guarantee[s] equality
before the law and the right to equal legal protection against all forms of discrimination,
including that based on sex.’43

In a decision concerning 55 persons arrested on the grounds of their sexual orientation in
Egypt, the Working Group on Arbitrary Detention considered that the detention and
prosecution of persons on the grounds that their sexual orientation incites ‘social dissention’
and constitutes an arbitrary deprivation of liberty in contravention of the provisions of Article
2, paragraph 1 and 26 of the ICCPR.’44

In a later decision regarding 11 persons in Cameroon who were detained and prosecuted
under an anti-sodomy law, the Working Group stated that since the UN Human Rights
Committee decision in Toonen (7/2002):

       the existence of laws criminalising homosexual behaviour between consenting adults in
       private and the application of criminal penalties against persons accused of such
       behaviour violate the rights to privacy and freedom from discrimination set forth in the
       International Covenant on Civil and Political Rights. Consequently, the Working Group
       considers the criminalization of homosexuality in Cameroonian law incompatible with
       Articles 17 and 26 of the International Covenant on Civil and Political Rights, which
                                         45
       instrument Cameroon has ratified.

In addition the following Special Rapporteurs have referenced the issue of persecution on
grounds of sexual orientation:

    Special Rapporteur on violence against women, its causes and consequences46
    Special Rapporteur on extrajudicial, summary or arbitrary executions47
    Special Representative of the Secretary General on Human Rights Defenders48


42 “Special procedures” is the general name given to the mechanisms established by the Commission on Human Rights and
assumed by the Human Rights Council to address either specific country situations or thematic issues in all parts of the world.
Currently, there are 31 thematic and 8 mandates. The Office of the High Commissioner for Human Rights provides these
mechanisms with personnel, policy, research and logistical support for the discharge of their mandates.
Special procedures’ mandates usually call on mandate holders to examine, monitor, advise and publicly report on human rights
situations in specific countries or territories, known as country mandates, or on major phenomena of human rights violations
worldwide, known as thematic mandates. Various activities are undertaken by special procedures, including responding to
individual complaints, conducting studies, providing advice on technical cooperation at the country level, and engaging in
general promotional activities.
See http://www2.ohchr.org/english/bodies/chr/special/index.htm accessed on 30 May 2010.
43 Report of the Working Group on Arbitrary Detention, UN Doc.E/CN.4/2004/3, of 15 December 2003, para 73.
44 Working Group on Arbitrary Detention, Opinion No7/2002 (Egypt) of 21 June 2002, para 28, in UN Doc.
E/CN.4/2003/8/Add.1, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G03/105/53/PDF/G0310553.pdf?Op accessed on 1 May
2010.
45 Opinion No22/2006 (Cameroon) of 31 August 2006, para 19, in UN Doc. A/HRC/4/40/Add.1.
46 ‘Sexual assault and coercion can occur at all stages of a woman’s life, whether in the context of marriage, between close
family or extended family members, between acquaintances or total strangers. Cases of lesbian women being targeted for rape
specifically because of their sexual orientation in order for the aggressor to “prove [the victim’s] womanhood” have also been
documented’, Report E/CN.4/2005/72 (para. 27).
47 ‘Reports have been received of serious human rights violations committed in Afghanistan during the Taliban period, including
reports of persons suspected to be homosexuals being buried alive.’ Report E/CN.4/2003/3 (paras 66–67).
48 The Special Representative noted that ‘Greater risks are faced by defenders of the rights of certain groups as their work
challenges social structures, traditional practices and interpretations of religious precepts that may have been used over long
periods of time to condone and justify violation of the human rights of members of such groups. Of special importance will be
women’s human rights groups and those who are active on issues of sexuality, especially sexual orientation and reproductive



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                      18
    Special Rapporteur on the Independence of Judges and Lawyers49
    Special Rapporteur on Torture50
    Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography51
    Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable
     Standard of Physical and Mental Health52



UN Human Rights Council
Until recently, the UN Human Rights Council has generally been traditionally silent on the
issue of rights violation based on sexual orientation and gender identity53. The silence was
however broken in 2006, when Norway authored a statement on behalf of 54 States raising
concerns about human rights violations based on sexual orientation and gender identity54.

        At its recent session, the Human Rights Council received extensive evidence of human
        rights violations based on sexual orientation and gender identity, including deprivation of
        the rights to life, freedom from violence and torture. We commend the attention paid to
        these issues by the Special Procedures, treaty bodies and civil society. We call upon all
        Special Procedures and treaty bodies to continue to integrate consideration of human
        rights violations based on sexual orientation and gender identity within their relevant
        mandates. We express deep concern at these ongoing human rights violations. The
        principles of universality and non-discrimination require that these issues be addressed.
        We therefore urge the Human Rights Council to pay due attention to human rights
        violations based on sexual orientation and gender identity, and request the President of




rights. These groups are often very vulnerable to prejudice, to marginalization and to public repudiation, not only by State forces
but by other social actors.’ Report E/CN.4/2001/94 (para.24).
49 The Special Rapporteur noted that, ‘Transvestites, transsexuals and homosexuals are also frequently the victims of violence
and discrimination. When they turn to the judicial system, they are often confronted with the same prejudices and stereotypes
they face in society at large.’ Report E/CN.4/2005/60/Add.3 (para.28) See also paras 24–29.
50 The Special Rapporteur has received information according to which members of sexual minorities have been subject to
cruel, inhuman or degrading treatment in non-penal institutions. In a number of countries, members of sexual minorities are said
to have been involuntarily confined to state medical institutions where they were allegedly subjected to forced treatment on
grounds of their sexual orientation or gender identity, including electric shock therapy and other “aversion therapy”, reportedly
causing psychological and physical harm. The Special Rapporteur notes, in particular, that the World Health Organization
removed homosexuality from its International Classification of Diseases-10 (ICD-10) in 1992. The Special Rapporteur has
received information according to which, in a number of countries, persons suspected of homosexuality have been subjected to
compulsory, intrusive and degrading medical examinations of anus and penis in order to determine whether penetration had
taken place, inter alia, within the context of enlistment for military service.’ Report A/56/156 (para 24) Also see (paras 17–25).
See also E/CN.4/2002/76 (pag.11).
51 Transgender youth may be especially vulnerable to entering into prostitution because of adverse reactions to their gender
and sexuality on the part of family and peers that may leave them alone and unsupported. The levels of discrimination
experienced by young transgender people when trying to find accommodation, obtain an education, get a job and access health
services generally leaves them among the most vulnerable and marginalized young people in society. Report E/CN.4/2004/9
(See Para 123). Also see paras 118–125.
52 As has been noted, discrimination on the grounds of sexual orientation is impermissible under international human rights law.
The legal prohibition of same-sex relations in many countries, in conjunction with a widespread lack of support or protection for
sexual minorities against violence and discrimination, impedes the enjoyment of sexual and reproductive health by many people
with lesbian, gay, bisexual and transgender identities or conduct. Report E/CN.4/2004/49 (para38). Also See paras 32 and 54.
http://www2.ohchr.org/english/bodies/chr/special/sexualorientation.htm accessed on 1 May 2010.
53 Brazil attempted to move a resolution on sexual orientation in the 2003 then Council of Human Rights, but withdrew the
resolution in the face of strong opposition. See http://ilga.org/ilga/en/article/406 accessed on 1 May 2010.
54 Countries: Albania, Andorra, Argentina, Australia, Austria, Belgium, Bosnia and Herzegovina, Brazil, Bulgaria, Canada,
Chile, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Guatemala, Hungary, Iceland,
Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Mexico, Montenegro, Netherlands, New Zealand, Panama,
Peru, Poland, Portugal, the former Yugoslav republic of Macedonia, the Republic of Korea, the Republic of Moldova, Romania,
Serbia, Spain, Slovakia, Slovenia, Sweden, Switzerland, Timor-Leste, Ukraine, the United Kingdom, the United States of
America, Uruguay, and Norway.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                          19
       the Council to provide an opportunity, at an appropriate future session of the Council, for
                                                          55
       a discussion of these important human rights issues .

The issue of sexual orientation and gender identity has also been raised in the course of the
Universal Periodic Review, with the rights to non-discrimination and privacy of LGBT persons
being stressed in the context of the review of individual States.56



UN General Assembly
The General Assembly has passed resolutions on a proliferating series of human rights but it
too has however generally been silent on issues of sexual orientation and gender identity.
The only UN General Assembly Resolution to have referred to sexual orientation was the
resolution on extrajudicial, summary or arbitrary executions. The Resolution urges all States
to:

       To ensure the effective protection of the right to life of all persons under their jurisdiction
       and to investigate promptly and thoroughly all killings, including those targeted at specific
       groups of persons, such as racially motivated violence leading to the death of the victim,
       killings of persons belonging to national or ethnic, religious and linguistic minorities, of
       refugees, internally displaced persons, migrants, street children or members of
       indigenous communities, killings of persons for reasons related to their activities as
       human rights defenders, lawyers, journalists or demonstrators, killings committed in the
       name of passion or in the name of honour, all killings committed for any discriminatory
       reason, including sexual orientation, as well as all other cases where a person’s right to
       life has been violated, and to bring those responsible to justice before a competent,
       independent and impartial judiciary at the national or, where appropriate, international
       level, and to ensure that such killings, including those committed by security forces,
       police and law enforcement agents, paramilitary groups or private forces, are neither
                                                                   57
       condoned nor sanctioned by State officials or personnel.

This Resolution was followed by a more broad ranging statement on Human Rights, Sexual
Orientation and Gender Identity issued by Argentina in December 2008 on behalf of 66
countries. It states:

       1 – We reaffirm the principle of universality of human rights, as enshrined in the Universal
       Declaration of Human Rights whose 60th anniversary is celebrated this year, Article 1 of
       which proclaims that “all human beings are born free and equal in dignity and rights”;




55 Norwegian joint statement on human rights violations based on sexual orientation and gender identity, Human Rights
Council, 3rd session, Geneva, 1 December 2006, available at: http://uklgig.org.uk/docs/Norwegian_Joint_Statement-
UNHRC_06.doc. 5 February 2008.
56 http://www.upr-info.org/-UPR-Process-.html accessed on 12 May 2010.
57 The draft resolution on extrajudicial summary or arbitrary executions (document A/63/430/Add.2) was adopted by a recorded
vote of 127 in favour to none against, with 58 abstentions. The votes in favour of the Resolution were: Afghanistan, Albania,
Algeria, Andorra, Angola, Antigua and Barbuda, Argentina, Armenia, Australia, Austria, Azerbaijan, Barbados, Belarus, Belgium,
Belize, Bhutan, Bolivia, Bosnia and Herzegovina, Botswana, Brazil, Bulgaria, Burundi, Cambodia, Cameroon, Canada, Cape
Verde, Chad, Chile, Colombia, Comoros, Congo, Costa Rica, Croatia, Cuba, Cyprus, Czech Republic, Denmark, Dominica,
Dominican Republic, Ecuador, El Salvador, Eritrea, Estonia, Ethiopia, Fiji, Finland, France, Gabon, Georgia, Germany, Ghana,
Greece, Grenada, Guatemala, Guinea, Guinea-Bissau, Guyana, Haiti, Honduras, Hungary, Iceland, India, Ireland, Italy,
Jamaica, Japan, Jordan, Kazakhstan, Kyrgyzstan, Latvia, Lesotho, Liechtenstein, Lithuania, Luxembourg, Maldives, Mali, Malta,
Mauritania, Mauritius, Mexico, Micronesia (Federated States of), Monaco, Mongolia, Montenegro, Morocco, Mozambique,
Nepal, Netherlands, New Zealand, Nicaragua, Norway, Panama, Papua New Guinea, Paraguay, Peru, Philippines, Poland,
Portugal, Republic of Korea, Republic of Moldova, Romania, Samoa, San Marino, Sao Tome and Principe, Serbia, Singapore,
Slovakia, Slovenia, Somalia, South Africa, Spain, Suriname, Sweden, Switzerland, Tajikistan, Thailand, The former Yugoslav
Republic of Macedonia, Timor-Leste, Togo, Tonga, Tunisia, Ukraine, United Kingdom, Uruguay, Uzbekistan, Vanuatu,
Venezuela. http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N08/634/73/PDF/N0863473.pdf?OpenElement accessed on 1 May
2010.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                     20
       2 – We reaffirm that everyone is entitled to the enjoyment of human rights 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, as set out in Article 2 of
       the Universal Declaration of Human Rights and Article 2 of the International Covenants
       on Civil and Political, Economic, Social and Cultural Rights, as well as in article 26 of the
       International Covenant on Civil and Political Rights;

       3 – We reaffirm the principle of non-discrimination, which requires that human rights
       apply equally to every human being regardless of sexual orientation or gender identity;

       4 – We are deeply concerned by violations of human rights and fundamental freedoms
       based on sexual orientation or gender identity;

       5 – We are also disturbed that violence, harassment, discrimination, exclusion,
       stigmatisation and prejudice are directed against persons in all countries in the world
       because of sexual orientation or gender identity, and that these practices undermine the
       integrity and dignity of those subjected to these abuses;

       6 – We condemn the human rights violations based on sexual orientation or gender
       identity wherever they occur, in particular the use of the death penalty on this ground,
       extrajudicial, summary or arbitrary executions, the practice of torture and other cruel,
       inhuman and degrading treatment or punishment, arbitrary arrest or detention and
                                                                                         58
       deprivation of economic, social and cultural rights, including the right to health ;

While the Argentinean joint statement was not a formal resolution, it is important to note that
it does not seek to create new rights but rather to provide an authoritative interpretation of
‘existing’ human rights law. In that regard, the cross regional support from Europe, South
America, North America, Asia, the Pacific and Africa is noteworthy.59



European Court of Human Rights
At the regional level, the European Court of Human Rights (ECHR) has the most well
developed human rights jurisprudence regarding sexual orientation and gender identity.

In Dudgeon vs. United Kingdom, the criminalisation of such practices was deemed a violation
of the privacy protection in Article 8 of the ECHR. In this case the ECHR held:

       maintenance in force of the impugned legislation constitutes a continuing interference
       with the applicant’s right to respect for his private life (which includes his sexual life)
       within the meaning of Article 8 para 1 (art.8-1). In the personal circumstances of the
       applicant, the very existence of this legislation continuously and directly affects his private
             60
       life,

In the subsequent case of Norris vs. Ireland the ECHR stated:

       [o]ne of the effects of criminal sanctions against homosexual acts is to reinforce the
       misapprehension and general prejudice of the public and increase the anxiety and guilt



58 Albania, Andorra, Argentina, Armenia, Australia, Austria, Belgium, Bolivia, Bosnia and Herzegovina, Brazil, Bulgaria,
Canada, Cape Verde, Central African Republic, Chile, Colombia, Croatia, Cuba, Cyprus, Czech Republic, Denmark, Ecuador,
Estonia, Finland, France, Gabon, Georgia, Germany, Greece, Guinea-Bissau, Hungary, Iceland, Ireland, Israel, Italy, Japan,
Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Mauritius, Mexico, Montenegro, Nepal, Netherlands, New Zealand,
Nicaragua, Norway, Paraguay, Poland, Portugal, Romania, San Marino, Sao Tome and Principe, Serbia, Slovakia, Slovenia,
Spain, Sweden, Switzerland, the former Yugoslav Republic of Macedonia, Timor-Leste, United Kingdom, Uruguay, and
Venezuela. http://ilga.org/ilga/en/article/1211 accessed on 15 May 2010
59 See discussion above on Treaty Bodies and UN Special Procedures.
60 Dudgeon v. UK A 45 (1981); (1982) 4 EHRR 149.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                 21
        feelings of homosexuals leading, on occasion, to depression and the serious
                                       61
        consequences which can follow.

In Modinos vs. Cyprus the ECHR again held that such a law violated the right to privacy, and
maintained that even a ‘consistent policy’ of not bringing prosecutions under the law was no
substitute for full repeal.62 Privacy arguments were also successfully invoked in cases
concerning a ban on recruitment to the military of homosexuals.63

The ECHR has also recognised the application of Article 8 of the Convention for the
Protection of Human Rights and Fundamental Freedoms in to transsexual persons. In
Goodwin vs. United Kingdom64 and I. vs. United Kingdom65 the ECHR considered the cases
of two transsexual women who claimed that the United Kingdom’s refusal to change their
legal identities and papers to match their post-operative genders constituted discrimination.
Reversing a number of its previous decisions, the ECHR held that their right to respect for
their private lives, and also their right to marry, had been violated (Articles 8 and 12 of the
ECHR).

In Van Kuck vs. Germany the ECHR considered the case of a transsexual woman whose
health-insurance company had denied her reimbursement for costs associated with sex-
reassignment surgery and who had unsuccessfully sought redress in the domestic courts.66 It
found violations of the right to a fair hearing (Article 6(1) of the ECHR) and of the right to
private life, holding that the German civil courts had failed to respect ‘the applicant’s freedom
to define herself as a female person, one of the most basic essentials of self-determination’.
In a powerful statement of the entitlement to an autonomous gender identity, the ECHR
spoke of ‘the very essence of the ECHR being respect for human dignity and human
freedom, [and that] protection is given to the right of transsexuals to personal development
and to physical and moral security’67.

In L. vs. Lithuania the ECHR considered that the State was required to legislate for the
provision of full gender-reassignment surgery whereby a person in the ‘limbo’ of partial
reassignment could complete the process and be registered with the new gender identity.68

The ECHR has also applied the non discrimination protection to other areas.

    In Salgueiro da Silva Mouta vs. Portugal it held that a judge’s denial of child custody to a
     homosexual father on the grounds of his sexual orientation was discriminatory;69
    In Karner vs. Austria it held was of the view that the failure of Austria to permit a
     homosexual man to continue occupying his deceased partner’s flat was discriminatory,
     since this right, enjoyed by other family members under Austrian law, did not apply to
     same-sex partners. Although the government claimed that excluding homosexuals aimed
     to protect ‘the family in the traditional sense’, the ECHR held Austria had not
     demonstrated how the exclusion was necessary to that aim;70



61 Norris v. Ireland A 142 (1988); (1988) 13 EHRR 186.
62 Modinos v. Cyprus A 259 (1993); (1993) 16 EHRR 485.
63 Smith and Grady vs. United Kingdom 1999-VI 45; (1999) 29 EHRR 493, Lustig-Prean and Beckett vs. United Kingdom
(1999) 29 EHRR 548.
64 (2002) 35 EHRR 18.
65 (2003) 36 EHRR 53.
66 Van Kuck v. Germany 2003-VII 1; (2003) 37 EHRR 51.
67 Ibid., at para 69.
68 L. v. Lithuania Application No. 27527/03, Judgment of 11 September 2007.
69 Salgueiro da Silva Mouta v. Portugal 1999-IX 309; (1999) 31 EHRR 1055.
70 Karner v. Austria, Supra n. 61 at paras 39, 41.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                        22
   In L. and V. vs. Austria71 and S.L. vs. Austria72 it held that Austria’s differing age of
    consent for heterosexual and homosexual relations was discriminatory; in that it
    ‘embodied a predisposed bias on the part of a heterosexual majority against a
    homosexual minority’, which could not ‘amount to sufficient justification for the differential
    treatment any more than similar negative attitudes towards those of a different race,
    origin or colour’.
   In Kozak v. Poland it ruled that that Polish authorities unlawfully discriminated against a
    man on the basis of his sexual orientation by denying him the right to succeed to the
    tenancy of his deceased partner’s apartment.73


Other Regional Human Rights Mechanisms
The Inter-American Human Rights System is only just beginning to respond to cases of
discrimination on grounds of sexual orientation.74 The Organisation of American States
(OAS) is also beginning to recognize the gravity of violations based on sexual orientation and
gender identity in the form of two resolutions which express concern and ‘condemn acts of
violence and related human rights violations committed against individuals because of their
sexual orientation and gender identity’.75

With respect to the African Charter on Human and People’s Rights, while there is no explicit
mention of discrimination on grounds of sexual orientation, experts contend that the non
discrimination clause in the African Charter is broad enough to encompass protection against
discrimination on grounds of sexual orientation and gender identity.76



The Yogyakarta Principles on the Application of International
Human Rights Law in Relation to Sexual Orientation and
Gender Identity (2006)
The above survey of international law reveals that while the terms sexual orientation and
gender identity are slowly becoming recognised as fundamental aspects of human identity,
there is no single place where these proliferating developments in international law are
concisely and clearly stated.

It is this gap about which the former High Commissioner for Human Rights, Louse Arbour
expressed concern, and called for a more comprehensive articulation of these rights in
international law.77




71 L. and V. v. Austria 2003-I 29; (2003) 36 EHRR 55.
72 S.L. v. Austria 2003-I 71; (2003) 37 EHRR 3.9.
73 [2010] ECHR 280 (2 March 2010).
74 See Marta Lucia Alvarez Giraldo vs. Colombia, Case number 11.656, Report No. 71/99( Admissibility) of 4 May 1999, para
21. Also see Karen Atala and Daughters v. Chile, Case 1271-04, Report No. 42/08, Inter-Am. C.H.R., OEA/Ser.L/V/II.130 Doc.
22, rev. 1 (2008).
75 AG/RES. 2435 (XXXVIII-O/08) and AG/RES. 2435 (XXXVIII-O/08).
76 Rachel Murray and Franz Viljoen, Towards Non-Discrimination on the Basis of Sexual Orientation: The Normative Basis and
Procedural Possibilities before the African Commission on Human and Peoples’ Rights and the African Union, 29 Hum. Rts. Q.
86 2007.
77 Presentation of the United Nations High Commissioner for Human Rights Ms Louise Arbour to the International Conference
on Lesbian, Gay, Bisexual, and Transgender Rights, Montreal, 26 July 2006, cf. Michael O’ Flaherthy and John Fisher, Sexual
Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles,
http://www.yogyakartaprinciples.org/yogyakarta-article-human-rights-law-review.pdf.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                  23
It is in this context of inconsistency, gaps and opportunities that the Yogyakarta Principles on
the application of international human rights law in relation to sexual orientation and gender
identity (the Yogyakarta Principles) were conceived.

The Yogyakarta Principles address the broad range of human rights standards and their
application to issues of sexual orientation and gender identity, including extrajudicial
executions, violence and torture, access to justice, privacy, non-discrimination, rights to
freedom of expression and assembly, employment, health, education, immigration and
refugee issues, public participation, and a variety of other rights.

The Principles were developed and unanimously adopted by a distinguished group of human
rights experts, from diverse regions and backgrounds, including judges, academics, a former
UN High Commissioner for Human Rights, UN Special Procedures, members of treaty
bodies, NGOs and others.

The Principles affirm the primary obligation of States to implement human rights, with each
Principle accompanied by detailed recommendations to States. The Principles also
emphasise that all actors have responsibilities to promote and protect human rights.
Additional recommendations are therefore addressed to the UN human rights system,
national human rights institutions, the media, non-governmental organisations, and others.

The signatories to the Yogyakarta Principles themselves noted that they were intended to
reflect the existing state of international human rights law in relation to issues of sexual
orientation and gender identity, noting also that States may incur additional obligations as
human rights law continues to evolve.78

This restatement of international law as it currently applies to issues of sexual orientation and
gender identity has been enormously powerful in crystallising concerns around human rights
violations based on sexual orientation and gender identity.

Although a relatively short period of time has elapsed since the launch of the Principles on
2006, a number of States have already cited them in Human Rights Council proceedings.
Within days of the Geneva launch, more than 30 States made positive interventions on
sexual orientation and gender identity issues, with seven States specifically referring to the
Yogyakarta Principles.79

The Yogyakarta Principles have also been cited in decisions of the Delhi High Court in
decriminalising homosexuality,80 and the Nepali Supreme Court in affirming positive rights for
the third gender.81



Rights in International Law pertaining to Sexual Orientation and
Gender Identity: Regional Resonances
Some of the core rights in international law which have contemporary resonance in the Asia
Pacific region include:

    Right to universal human rights
    Right to non-discrimination


78 http://www.yogyakartaprinciples.org/principles_en.pdf, accessed on 1 May 2010.
79 Michael O Flaherty and John Fisher, op. cit.
80 Naz Foundation v. NCT Delhi (2009) 160 DLT 277. at paras 43 and 44.
81 See Sunil Babu Pant v. Nepal Government, op. cit.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity        24
   Right to privacy
   Freedom from arbitrary detention
   Freedom from torture
   Right to health
   Right to recognition before the law
   Right to freedom of opinion and expression


Right to universal human rights
As a consequence of the stigma attached to issues surrounding sexual orientation and
gender identity, violence against LGBT persons is frequently unreported, undocumented and
ultimately goes unpunished. Rarely does it provoke public debate and outrage. This silence
is the ultimate rejection of the fundamental principle of universality of rights.82 However,
neither the existence of national laws, nor the prevalence of custom can justify the abuse,
attacks, torture, and indeed the killing of LGBT persons, simply because of who they are or
are perceived to be.

As has been noted by Louise Arbour, the most egregious violation with respect to LGBT
persons is that of the principle of universality of rights. The principle of universality of human
rights undoubtedly forms the bedrock of human rights law. The Universal Declaration of
Human Rights in its recognition of the inherent dignity and the equal and inalienable rights of
all members of the human family embeds universality of human rights as an inviolable
principle.

That principle was affirmed by the World Conference on Human Rights in its Vienna
Declaration, with signatories acknowledging the obligation of all States to:

       fulfil their obligations to promote universal respect for, and observance and protection of,
       all human rights and fundamental freedoms for all in accordance with the Charter of the
       United Nations, other instruments relating to human rights, and international law. The
                                                                           83
       universal nature of these rights and freedoms is beyond question.

A clue as to why this principle often finds no application when it comes to LGBT persons is
afforded by the Report of the Special Rapporteur on the Independence of the Judiciary, who
noted:

       Transvestites, transsexuals and homosexuals are also frequently the victims of violence
       and discrimination. When they turn to the judicial system, they are often confronted with
                                                                          84
       the same prejudices and stereotypes they face in society at large.

What the report highlights is a fundamental challenge to operationalizing universal human
rights for all. While human rights protections theoretically apply to all, the social prejudices
and stereotypes which characterise perceptions of LGBT persons operate to limit their
access to fundamental rights protections.




82 Louise Arbour, Former UN High Commissioner for Human Rights, Presentation at an International Conference on LGBT
Human Rights, Montreal, 26 July 2006,
http://www.unhchr.ch/huricane/huricane.nsf/view01/B91AE52651D33F0DC12571BE002F172C?opendocument accessed on 3
May 2010.
83 Vienna Declaration and Programme of Action, as adopted by the World Conference on Human Rights on 25 June 1993,
http://www.unhchr.ch/huridocda/huridoca.nsf/%28symbol%29/a.conf.157.23.en accessed on 3 May 2010.
84 Report of the Special Rapporteur on the independence of judges and lawyers, Mr. Leandro Despouy, http://daccess-dds-
ny.un.org/doc/UNDOC/GEN/G05/111/67/PDF/G0511167.pdf?OpenElement accessed on 3 May 2010.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                              25
Notwithstanding such reports, the idea of universal human rights has found a regional
resonance in the language of inclusivity used by both the Delhi High Court and the Supreme
Court of Nepal.85


Right to Privacy
The right to privacy is clearly recognised in international human rights law and it has been
the subject of significant jurisprudence in international and regional human rights fora,
particularly in the context of criminal law, which often seeks to criminalise the intimate
choices made by LGBT persons.86

In the case of Toonen vs. Australia, the Human Rights Committee considered whether the
existence of laws criminalising same-sex sexual activity, though unenforced, were in breach
of the applicants right to privacy. It held:

        Considering further that these provisions are not currently enforced, which implies that
        they are not deemed essential to the protection of morals in Tasmania, the Committee
        concludes that the provisions do not meet the “reasonableness” test in the circumstances
        of the case, and that they arbitrarily interfere with Mr. Toonen’s right under article 17,
                    87
        paragraph 1 .

This development has been strengthened by further decisions on the UN Treaty Bodies and
by regional jurisprudence, most notably decisions of the European Court of Human Rights
which held in three cases that sodomy laws violate the privacy right embedded in the
European Charter of Human Rights and Fundamental Freedoms.88

Within the region, the privacy norm has been used to invalidate laws which criminalise same
sex sexual conduct between consenting adults. In addition to the Toonen case mentioned
above, there are also decisions of the Delhi High Court89, the Nepali Supreme Court90 and
the Fiji High Court91.

The Delhi High Court in invalidating Section 377 of the Indian Penal Code (IPC) ruled:

        The privacy recognises that we all have a right to a sphere of private intimacy and
        autonomy which allows us to establish and nurture human relationships without
        interference from the outside community. The way in which one gives expression to one’s
        sexuality is at the core of this area of private intimacy. If, in expressing one’s sexuality,
        one acts consensually and without harming the other, invasion of that precinct will be a
                          92
        breach of privacy

The Nepali Supreme Court in its decriminalisation ruling noted:



85 Naz Foundation v. NCT Delhi, op. cit. Para 130 and Sunil Babu Pant and others v. Nepal Government and others,
http://www.gaylawnet.com/laws/cases/PantvNepal.pdf accessed on 26 April 2010. respectively.
86 Article 17 of the ICCPR reads:
    1. 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.
    2. Everyone has the right to the protection of the law against such interference or attacks.
87 Ibid. Para 8.6.
88 Dudgeon v. UK A 45 (1981); (1982) 4 EHRR 149: Norris v. Ireland A 142 (1988); (1988) 13 EHRR 186; Modinos v. Cyprus A
259 (1993); (1993) 16 EHRR 485.
89 (2009) 160 DLT 277.
90 Sunil Babu Pant v. Nepal Government Op cit.
91 Dhirendra Nadan v. State, Criminal Appeal Case Nos. HAA 85 and 86 of 2005.
92 See Naz Foundation v. NCT Delhi, op. cit., para 40.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                      26
        In some countries, sexual relationships between same-sex consenting adults or
        “unnatural behaviour”, such as the manifestation of transgender behaviours, are
        criminalized under “sodomy laws” or under the abuse of morality laws, which violate the
        right to privacy and the equal protection of the law without discrimination. Such
        criminalization reinforces attitudes of discrimination between persons on the basis of
                           93
        sexual orientation

The High Court of Fiji, in invalidating the anti-sodomy law, held:

        In my view, the Court should adopt a broad and purposive construction of privacy that is
        consistent with the recognition in international law that the right to privacy extends
        beyond the negative conception of privacy as freedom from unwarranted state intrusion
        into one’s private life to include the positive right to establish and nurture human
                                                                     94
        relationships free of criminal or indeed community sanction.

The decisions above indicate that while public opinion and the sway of religious sentiment
may motivate legislative action, such motivations cannot justify the infringement of the right
to privacy. The right to privacy is construed as much more than just the right to be left alone.
It also embodies related concepts of autonomy and dignity.

As Louise Arbour succinctly put it,

        I suggest that even when States assert a duty to promote moral, religious or cultural
        values, they must exercise considerable restraint in doing so through the use of the
                                 95
        criminal justice system.

The right to privacy is also being interpreted in the context of discrimination pertaining to
gender identity, particularly by the ECHR.96


Right to Equality and the Right to Non-Discrimination
It can be argued that while privacy as a principle has been fashioned by both international
and regional judicial forums to invalidate egregious anti-sodomy laws, the principle which is
of widest relevance to LGBT persons is the principle of equality and non-discrimination.

The importance of non-discrimination protections has been consistently stressed by human
rights commentators:

        The heavy emphasis on non-discrimination in the ICCPR is appropriate; discrimination is
                                                          97
        at the root of virtually all human rights abuses.

The UN Human Rights Committee has defined discrimination in a very broad ranging
manner:

        The Committee believes that the term ‘discrimination’ as used in the Covenant should be
        understood to imply any distinction, exclusion, restriction or preference which is based on
        any ground such as race, colour, language, religion, political or other opinion, national or
        social origin, property, birth or other status, and which has the purpose or effect of




93 See Sunil Babu Pant v. Nepal Government, op. cit.
94 See Dhirendra Nadan v. State, op. cit.
95 See Louise Arbour, op. cit.
96 See the section on Regional Human Rights Mechanisms above.
97 Sarah Joseph, Jenny Shultz and Melissa Castan. The International Covenant on Civil and Political Rights, Oxford University
Press, New York, 2005. p.680.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                    27
        nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal
                                             98
        footing, of all rights and freedoms.

The interpretations of the Human Rights Committee, CESCR and CRC have reinforced that
protection from discrimination extends to those who experience differential treatment on
grounds of sexual orientation.99

The UN Human Rights Committee has repeatedly clarified this interpretation in its exposition
on Article 2 para 1:100 In Toonen vs. Australia it noted that:

the reference to “sex” in Articles 2 paragraph 1, and 26 is to be taken as including sexual
orientation.101

In X vs. Columbia it further noted that:

        pursuant to article 2A of the Covenant, the State party has undertaken to ensure to all
        individuals within its territory and subject to its jurisdiction the rights recognized in the
        Covenant and to provide an effective and enforceable remedy when a violation has been
                       102
        established...

This understanding of non-discrimination law as it applies to concerns of sexual orientation
and gender identity has also found its way into regional jurisprudence of the Asia Pacific
region. The Naz Foundation v. NCT Delhi in its interpretation of the non-discrimination
provision, Article 15 of the Indian Constitution held:

        We hold that sexual orientation is a ground analogous to sex and that discrimination on
        the basis of sexual orientation is not permitted by Article 15. Further, Article 15(2)
        incorporates the notion of horizontal application of rights. In other words, it even prohibits
        discrimination of one citizen by another in matters of access to public spaces. In our view,
        discrimination on the ground of sexual orientation is impermissible even on the horizontal
                                                             103
        application of the right enshrined under Article 15.

The Supreme Court of Nepal held:

        LGBTI should be allowed to enjoy the rights guaranteed by the Nepalese law without
        discrimination and with their own identity like other individuals. Therefore, this directive
        order is hereby issued to the Government of Nepal to make necessary arrangements


98 ICCPR, General Comment No. 18.
99 See discussion under Treaty Bodies: Non-Discrimination on Grounds of Sexual Orientation above.
100 Article 2: 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.
101 Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994), para 8.7.
http://hrlibrary.ngo.ru/undocs/html/vws488.htm accessed on 26.04.10.
102 X v. Columbia, Communication No. 1361 of 2005, para 10,
http://www.unhchr.ch/tbs/doc.nsf/0/51537efd406147c3c125730600464373?Opendocument accessed on 1 May 2010.
103 Article 15 Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
    (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of
    them.
    (2) No citizen shall, on ground only of religion, race, caste, sex, place of birth or any of them, be subject to any disability,
    liability, restriction or condition with regard to –
        (a) access to shops, public restaurants, hotels and places of public entertainment; or
        (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained whole or partly out of State funds
        or dedicated to the use of general public.
    (3) Nothing in this article shall prevent the State from making any special provision for women and children.
    (4) Nothing in this article or in clause (2) or article 29 shall prevent the State from making any special provision for the
    advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled
    Tribes.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                            28
        towards making appropriate law or amending existing law for ensuring the legal
        provisions which allow the people of different gender identity and sexual orientation in
        enjoying their rights as other people without any discrimination following the completion of
                                        104
        necessary study in this regard.

With possibly major implications, the Supreme Court of Nepal has also noted the importance
of an explicit Constitutional guarantee against discrimination on grounds of sexual orientation
and gender identity:

        We all should take note that the terms ‘men’ and ‘women’ are mentioned here instead of
        the term ‘sex’, whereas in the Constitution instead of the terms ‘men’ and ‘women’, the
        term ‘sex’ is mentioned which may be construed to include the people of third gender as
        well besides ‘men’ and ‘women’. As the term ‘sex’ refers not only to men and women but
        also the people of third gender, this judicial comment is hereby made as it looks
        necessary to keep a clear provision in the new Constitution to be made by the
        Constituent Assembly, guaranteeing non-discrimination on the ground of ‘gender identity’
        and the ‘sexual orientation’ besides ‘sex’ in line with the Bill of Rights of the Constitution
                         105
        of South Africa.


Freedom from arbitrary detention
One of the key issues facing LGBT persons is the continued existence of anti-sodomy laws
in 87 countries around the world. A predominant majority of these countries come from the
continents of Asia and Africa. These laws represent the gravest challenge to the human
rights of LGBT persons because they authorise a searching scrutiny of their private lives and
impinge upon their right to live with dignity. Such laws threaten the right to freedom from
arbitrary detention, and make difficult, if not impossible, further progress on the rights of
LGBT persons.

The right to freedom from arbitrary detention under Article 9 of the ICCPR has been
interpreted widely by academic commentators:

        There are two permissible limitations to one’s right to liberty under Article 9. First the
        deprivation of liberty must be ‘in accordance with procedures as are established by law’.
        Hence, arrest and subsequent detention must be specifically authorised and sufficiently
        circumscribed by law. Secondly the law itself and the enforcement of that law must not be
        arbitrary. As in other contexts under the ICCPR, the prohibition of ‘arbitrary’ deprivation of
        liberty goes further than the prohibition of ‘unlawful’ deprivations as ‘arbitrariness’ is a
                                                    106
        principle above rather than within the law.

The UN Working Group on Arbitrary Detention has ruled that the use of law criminalising
same sex conduct in both Egypt and the Cameroons is in violation of the privacy and non-
discrimination guarantees under the ICCPR. With regard to the Cameroon, arrests under
anti-sodomy laws were considered to constitute a ‘deprivation of liberty [that was] arbitrary
regardless of the fact that they were ultimately released.’107

Regional jurisprudence has also been explicit on the inherent arbitrariness of anti-sodomy
laws. The Delhi High Court in Naz Foundation vs. NCR Delhi noted that

        Section 377 IPC does not take into account relevant factors such as consent, age and the
        nature of the act or the absence of harm caused to anybody. Public animus and disgust


104 See Sunil Babu Pant v. Nepal Government, op. cit.
105 Ibid.
106 Sarah Joseph et al., Op. cit. p.680.
107 Opinions adopted by the Working Group on Arbitrary Detention, A/HRC/4/40/Add.1,2 February 2007.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                   29
        towards a particular social group or vulnerable minority is not a valid ground for
        classification under Article 14. Section 377 IPC targets the homosexual community as a
                                                                                     108
        class and is motivated by an animus towards this vulnerable class of people.


Freedom from torture
One of the well documented experiences of LBGT persons has been torture and ill treatment
both at the hands of state authorities as well as non state actors.

Both Articles 7109 and 10110 of the ICCPR are of relevance to LGBT persons due to the range
of abuse they suffer, aspects of which amount to torture, cruel, inhumane or degrading
treatment or punishment that violate the inherent dignity of the human person.

The relevance of these provisions to LGBT persons has been repeatedly highlighted in
matter brought to the attention of the UN Special Procedures.

        Many people think that torture is primarily the fate of political and other ´high ranking´
        prisoners. In reality, most of the victims of arbitrary detention, torture and inhuman
        conditions of detention are usually ordinary people who belong to the poorest and most
        disadvantaged sectors of society, including those belonging to the lowest classes,
        children, persons with disabilities and diseases, gays, lesbians, bisexuals, transgender
        persons, drug addicts, aliens and members of ethnic and religious minorities or
                                 111
        indigenous communities.

The issue of torture has also been highlighted with specific reference to the Asia Pacific
region. A complaint transmitted to the Indonesian government stated:

        On 22 January 2007, Mr. H. and his partner were assaulted by approximately 16 civilians
        while they were at their home. On 23 January, they were taken to the Bandaraya Aceh
        Sector Police at about 12:30 a.m., where they were severely beaten and sexually abused
        by police officers. During the trial, the judge did not examine the perpetrated acts of
        torture but rather focussed on the sexual orientation of Mr. H. He gave the impression
        that the accused should be allowed to beat and assault the victim on the grounds of his
                                      112
        different sexual orientation.

A complaint transmitted to the government of Nepal stated:

        The two young women, who commenced living together in the beginning of 2006, have
        been hiding in different places since their respective families do not approve. In October
        2006, Ms Dukhani Choudhary and Ms. Sarita Choudhary were abducted and held in the
        Maoist camp in Lochani village in Morang District. At the camp, the Maoists called the
        couple derogatory names for homosexuals including ´chakka´ and ´hijara´ and ordered
        the girls to join the Maoist party and undergo the training for the Maoist militia. As the
        young women refused to join the Maoist party and carry weapons, they were beaten,
        verbally abused and deprived of food almost everyday. After being detained for almost
                                                                                  113
        one month, they managed to escape from the camp and went into hiding.



108 Naz Foundation v. NCT Delhi, op. cit. Para 91.
109 Art 7 reads: 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.
110 Art10 (1) reads: All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity
of the human person.
111 Interim Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment,
A/64/215, 3 August 2009.
112 Ibid. Summary of information, including individual cases transmitted to Governments and Replies received,
A/HRC/10/44/Add.4,17 February 2009.
113 Ibid.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                          30
The gravity and seriousness of these forms of rights violations against LGBT persons has
also been recognised by regional jurisprudence. In Naz Foundation vs. NCR Delhi114, the
Court listed out instances of harassment and ill treatment of LGBT persons by the law
enforcement officials and went on to note:

       The criminalisation of homosexuality condemns in perpetuity a sizable section of society
       and forces them to live their lives in the shadow of harassment, exploitation, humiliation,
       cruel and degrading treatment at the hands of the law enforcement machinery. The
       Government of India estimates the MSM number at around 25 lakhs. The number of
       lesbians and transgenders is said to be several lakhs as well. This vast majority
       (borrowing the language of the South African Constitutional Court) is denied “moral full
                     115
       citizenship”.


The Right to Health
The right to health becomes a core concern of LGBT persons both in the context of the
spread of HIV/AIDS as well as in the broader context of ensuring that LGBT persons are able
to access health services and facilities without being subject to discrimination. Certain
population groups have been recognised by bodies as the UN World Health Organisation
and the Joint UN Program on HIV/AIDS (UNAIDS) as being vulnerable to the spread of
HIV/AIDS.

Among the population groups which are especially vulnerable to the spread of HIV/AIDS are
the MSM (Men having sex with Men) community. Having recognised the special vulnerability
of this group to HIV/AIDS, national health agencies across the world have been formulating
policies and laws to work with the MSM community. One of the major impediments which
those seeking to control the spread of HIV/AIDS face are anti-sodomy laws since these drive
vulnerable community underground and impede HIV/AIDS intervention efforts.

The UN Human Rights Committee in the matter of Toonen vs. Australia noted:

       As far as the public health argument of the Tasmanian authorities is concerned, the
       Committee notes that the criminalization of homosexual practices cannot be considered a
       reasonable means or proportionate measure to achieve the aim of preventing the spread
       of HIV/AIDS. The Government of Australia observes that statutes criminalizing
       homosexual activity tend to impede public health programmes “by driving underground
       many of the people at the risk of infection”. Criminalization of homosexual activity thus
       would appear to run counter to the implementation of effective education programmes in
       respect of the HIV/AIDS prevention. Secondly, the Committee notes that no link has been
       shown between the continued criminalization of homosexual activity and the effective
                                                    116
       control of the spread of the HIV/AIDS virus.

The CESCR has, in its General Comments, recognized that sexual orientation can be a
ground on which persons might be denied access to health services:

       By virtue of Article 2.2 and Article 3( IECSR) proscribes any discrimination in access to
       health care and underlying determinants of health, as well as to means and entitlements
       for their procurement on the grounds of [..] health status, (including HIV/AIDS) as well as
       to means and entitlements for their procurement, on the grounds of [....] health status




114 Naz Foundation v. NCT Delhi, op. cit. Paras 20–22.
115 See Naz Foundation v. NCT Delhi, op. cit. Para 52.
116 Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994), Para 8.5
http://hrlibrary.ngo.ru/undocs/html/vws488.htm accessed on 26 April 2010.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity               31
        (including HIV/AIDS), sexual orientation[....] which has the intention or effect of nullifying
                                                                            117
        or impairing the equal enjoyment or exercise of the right to health

At the national level, the barrier that such laws erect regarding enjoyment of the right to
health has also been recognized. In Naz Foundation vs. NCR Delhi, the Delhi High Court
held:

        Article 12 of the International Covenant on Economic, Social and Cultural Rights makes it
        obligatory on the “State to fulfil everyone’s right to the highest attainable standard of
        health.” The Supreme Court of India interpreting Article 21 of the Indian Constitution in
        the light of Article 12 of the Covenant held that the right to health inhered in the
        fundamental right to life under Article 21… The NACO views it imperative that the MSM
        and gay community have the ability to be safely visible through which HIV/AIDS
        prevention may be successfully conducted. Clearly, the main impediment is that the
        sexual practices of the MSM and gay community are hidden because they are subject to
                           118
        criminal sanction.

If the principle of equality in access to health services is of vital import and if ‘health services
must be equally accessible to everyone, with due attention assigned to the position of
vulnerable groups in society’119, then it is important to consider how discriminatory practices
can nullify the right to health of the LGBT community.


The Right to Recognition before the Law
One of the key issues faced by the transgender community is the lack of legal recognition of
their chosen gender. Very few States recognize change of gender and in most cases
transgender people are forced to formally retain the gender assigned at birth,
notwithstanding personally having transitioned to another gender.

This failure by most States to recognize the change of gender, in effect means that
transgender persons are effectively invisible in the context of the chosen gender.

Recognition before the law is a fundamental key to accessing the range of rights and
entitlements guaranteed by law, and is expressly stated in Article 16 of the ICCPR.120 Legal
commentators have noted that:

        Article 16 guarantees one a basic human right to be legally recognized as a person. If
        one´s humanity is not legally recognized, one will lose legal recognition of, and therefore
        be effectively denied one´s other human rights. For example, Jews in Nazi Germany were
        deprived of legal recognition; this denial was a precursor to denial of all of their other
                                                           121
        human rights. Article 16 is a non-derogable right.

The Yogyakarta Principles, by applying the content of Article 16 to concerns of sexual
orientation and gender identity in Principle 3,122 reiterate the significance of Article 16. In


117 Committee on Economic, Social and Cultural Rights, General Comment No. 14: The right to the highest attainable standard
of health (Article 12), Para 18.
118 See Naz Foundation v. NCT Delhi, op. cit. Para 61.
119 Asbjorn Eide, Catarina Krause and Allan Rosas, Economic, Social and Cultural Rights, Martinus Nijhoff Publications,
Boston, 2001, p. 178.
120 Everyone shall have the right to recognition everywhere as a person before the law.
121 Sarah Joseph, et al, op. cit., p.299.
122 Everyone has the right to recognition everywhere as a person before the law. Persons of diverse sexual orientations and
gender identities shall enjoy legal capacity in all aspects of life. Each person’s self-defined sexual orientation and gender identity
is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom. No one shall be
forced to undergo medical procedures, including sex reassignment surgery, sterilisation or hormonal therapy, as a requirement
for legal recognition of their gender identity. No status, such as marriage or parenthood, may be invoked as such to prevent the



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                             32
particular the content of Principle 3 stresses how the refusal to recognise changes to gender
identity is a block to accessing the most basic of human rights, the right to be recognised as
a person before the law. It enjoins States to take all ´necessary legislative, administrative,
and other measures to fully respect and legally recognise each persons self defined gender
identity.´ It is also important to note that Principle 3 has an important aspirational dimension
when it states that 'medical procedures, including sex reassignment surgery, sterilisation or
hormonal therapy, cannot be ‘a requirement for legal recognition of their gender identity’

Progressive regional jurisprudence, including the decision of the Korean Supreme Court to
review its rules regarding sex reassignment before recognizing change of gender identity,
suggests some developments in this regard.123 This is reinforced by the New Zealand Human
Rights Commission which has suggested a move away from the requirement of ‘physical
conformity’ to a standard that states that the said person should have taken decisive steps to
live fully and permanently in the gender identity of their nominated sex.124

In regional jurisprudence, the Nepali Supreme Court has gone the furthest in giving content
to Principle 3 of the Yogyakarta Principles and Article 16 of the ICCPR. One should note that
the Nepali Supreme Court does not lay down any medical steps to be followed for a person
to be recognised as being of the third gender, thereby conforming to Principle 3 of the
Yogyakarta Principles. The Court noted

        the people other than ‘men’ and ‘women’ including the people of ‘third gender’ cannot be
        discriminated on the ground of sexual orientation. The State should recognize the
        existence of all natural persons including the people of third gender other than the men
        and women. And it cannot deprive the people of third gender from enjoying the
                                                                     125
        fundamental rights provided by Part III of the Constitution.

The decision of the Pakistani Supreme Court recognizing the eunuch community is also
indicative of developments in this regard. In Mohammad Aslam Khaki vs. S.S.P (Operations)
Rawalpindi and others:

        It is to be noted that this class( eunuchs) has been neglected merely on account of
        gender disorder in their bodies, otherwise they are entitled to enjoy all the rights granted
        to them by the Constitution being its subject including their rights in inherited property
        because normally to deprive them from their legitimate rights some times families
        disowned them. As far as existing laws are concerned, there are no provisions on the
                                                                                                126
        basis of which they can be deprived from their legitimate rights to inherit properties.


The Right to Freedom of Opinion and Expression
The right to freedom of opinion and expression is vital to the lives of LGBT persons
especially since information that is vital to their individual self fulfilment, personhood and
health is often censored by governments under various laws, including anti-obscenity


legal recognition of person’s identity. No one shall be subjected to pressure to conceal, suppress, or deny their sexual
orientation or gender identity.
123 In South Korea, the Supreme Court ruled that a person can access identity documents in a gender other than their gender
of birth, stating that “gender should be decided by not only physical appearance but also the person’s mentality and psychology,
and society’s attitude to that person . . . This means that gender is decided by diverse factors, and that a person’s mental and
social gender, which he or she did not recognize at birth, can be found during his or her social life”. In re Change of Name and
Family Register, 2004 Seu 24 (s.Kor., June 22, 2006)). National Human Rights Commission of Korea (NHRCK) activities in
relation to sexual orientation and gender identity available at http://www.asiapacificforum.net/issues/sexual_orientation
accessed on 20 May 2010.
124 http://www.hrc.co.nz/home/hrc/humanrightsenvironment/actiononthetransgenderinquiry/actiononthetransgenderinquiry.php
accessed on 21 May 2010.
125 Sunil Babu Pant vs State of Nepal, op. cit.
126 Mohammad Aslam Khaki vs. S.S.P (Operations) Rawalpindi and others. Constitution Petition No. 43 of 2009..



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                       33
legislation. Laws also routinely censor the very expression of LGBT persons, thereby
attacking their very personhood.

Article 19 of the ICCPR recognises and protects the right to freedom of speech and
expression and the right to hold opinions.127 The Yogyakarta Principles, while applying this
right to sexual orientation and gender identity, extends the meaning of the right to
encompass forms of expression of identity or personhood through speech, deportment,
dress, bodily characteristics, and choice of name.128

While freedom of opinion and expression as guaranteed by the ICCPR is not absolute,
restrictions of this right to protect public health and public morality cannot be used to justify
discrimination or criminalisation of sexual orientation and gender identity.129 Such domestic
limitation clauses must be read in the light of the Siracusa Principles on the Limitation and
Derogation of Provisions in the International Covenant on Civil and Political Rights.130 Thus, it
can be argued that since laws criminalising consensual sex between adults in private are not
“essential to the maintenance of respect for fundamental values for the community” and
further that the “margin of discretion” permitted States, does not apply to discriminatory laws
such as those criminalising consenting relationships between those of the same sex.

Regional jurisprudence, including the Naz decision, have squarely addressed the argument
of public morality, stating clearly that moral indignation, howsoever strong, is not a valid basis
for overriding the fundamental rights of dignity and privacy of LGBT persons.131 The Naz
decision, drawing on the National Coalition case in South Africa, recognised the link between
the right to privacy and liberty of LGBT persons and their right to self expression:

        The way in which one gives expression to one’s sexuality is at the core of this area of
        private intimacy. If, in expressing one’s sexuality, one acts consensually and without
                                                                                  132
        harming the other, invasion of that precinct will be a breach of privacy.




127 19 (1) Everyone shall have the right to hold opinions without interference
(2) Everyone shall have the freedom of speech and expression; and this right shall include the freedom to seek, receive and
impart 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.
(3) The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may
therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
    a) For respect of the rights or reputations of others;
    b) For the protection of national security or of public order, or of public health or morals.
128 Principle 9 of the Yogyakarta Principles:
    Everyone has the right to freedom of opinion and expression, regardless of sexual orientation or gender identity. This
    includes the expression of identity or personhood through speech, deportment, dress, bodily characteristics, choice of
    name, or any other means, as well as the freedom to seek, receive and impart information and ideas of all kinds, including
    with regard to human rights, sexual orientation and gender identity, through any medium and regardless of frontiers.
129 Toonen v. Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994).
130 The relevant principles are:
    (27) Since public morality varies over time and from one culture to another, a state which invokes public morality as a
    ground for restricting human rights, while enjoying a certain margin of discretion, shall demonstrate that the limitation in
    question is essential to the maintenance of respect for fundamental values of the community.
    (28) The margin of discretion left to states does not apply to the rule of non-discrimination as defined in the Covenant.
    Annex, UN Doc E/CN.4/1984/4 (1984).
131 Naz Foundation v. NCT Delhi, op cit, Para 79.
132 Naz Foundation v. NCT Delhi, op cit, Para 40.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                                34
Chapter III: The application of International Law to
Domestic Jurisdictions
This section will examine the international law norms as outlined in Chapter II and their
specific application to the domestic jurisdictions of the seventeen countries of the Asia Pacific
region which form a part of this study. To do so, this section will examine criminal law
provisions as well as other laws and practices and their conformity with both constitutional
law as well as international law relevant to concerns of sexual orientation and gender
identity.



Afghanistan
Afghanistan has acceded to the ICCPR, ICESCR, CAT, CERD, CEDAW and CRC.

The Constitution of Afghanistan recognises the following rights which are relevant to LGBT
persons.

      Article 22: Any kind of discrimination and privilege between the citizens of Afghanistan
      are prohibited. The citizens of Afghanistan – whether man or woman – have equal rights
      and duties before the law.

      Article 24: Liberty is the natural right of human beings. This right has no limits unless
      affecting the rights of others or public interests, which are regulated by law.
      (2) Liberty and dignity of human beings are inviolable.
      (3) The state has the duty to respect and protect the liberty and dignity of human beings.

      Article 34: Freedom of expression is inviolable.
      Every Afghan has the right to express his thought through speech, writing, or illustration
      or other means, by observing the provisions stated in this Constitution.
      Every Afghan has the right to print or publish topics without prior submission to the state
      authorities in accordance with the law.
      Directives related to printing house, radio, television, press, and other mass media, will
      be regulated by the law.

The application of these rights to LGBT persons however depends on the manner in which
clauses which prescribe the Islamic character of the Afghan state are interpreted. In this
regard it should be noted that Article 3 of the Constitution states:

      no law can be contrary to the beliefs and provisions of the sacred religion of Islam.

Afghanistan continues to criminalise same sex sexual conduct between consenting adults.
Article 427 of the Afghan Penal Code 1976 punishes Adultery, Pederasty, and Violations of
Honour, providing

      A person who commits adultery or pederasty shall be sentenced to long imprisonment.




Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity              35
Pederasty refers to intercourse between males regardless of age, and Sharia law is applied
together with the codified Penal law such that homosexual acts are punishable by a
maximum sentence of death.133

During the Taliban regime there are documented instances of the use of death penalty as
punishment for those engaging in homosexual acts.134 The transition of regimes in recent
years has not led to an improved legal environment for LGBT persons. On July 23, 2009,
President Hamid Karzai signed the “Laws Governing Personal Affairs of the Shiites” bill into
law.135 Article 93 of the law nullifies aspects of a matrimonial relationship as a consequence
of an act of sodomy. The law can be enforced by any court but is only applicable to the Shiite
citizens of the Islamic Republic of Afghanistan.

There are currently no provisions in Afghan law that allow for recognition of a third gender or
for changing gender.



Australia
Australia is a party to the ICCPR, ICESCR, CAT, CERD, CEDAW, CRC and CRPD.

The Australian Constitution does not contain an expressly enumerated Bill of Rights, nor
does it have a specific non-discrimination clause.

Australia has decriminalized sexual relationships between those of the same sex.136 In 1997
Tasmania became the last Australian state to decriminalize sex between consenting adult
men in private.137 This followed the decision of the UN Human Rights Committee in Toonen v
Tasmania that Tasmanian laws criminalising consensual sex between adult males in private
were a violation of the right to privacy. Toonen had appealed to the Human Rights
Committee, following the prescribed procedure under the First Optional Protocol to the
ICCPR.138




133 In an article titled “Prison Sentence in Islam,” posted on the Justice Ministry’s website, it is argued that according to the
fatwa by Imam Mohammad Hanafi (the founder of the Hanafi school of Jurisprudence in Islam), the punishment for sodomy is
life in prison, while the Shiite school of Jurisprudence says that the punishment for sodomy is death. Ref:
http://www.moj.gov.af/?lang=da&p=magazines&nid=287. In its November 30, 2007 report, the Independent Human Rights
Commission of Afghanistan also mentioned the existence of inmates in an Afghan prison in Khan Abad, who are charged with
sodomy. This was verified by the report of the Ministry of Justice on the status of prisons in Afghanistan (dated December 20,
2007), the government acknowledging that some inmates had been detained on charges of sodomy. Their report, however,
does not specify the number of sodomy-related arrests.
134 http://www.glapn.org/sodomylaws/world/afghanistan/afnews006.htm accessed on 27 April 2010.
135 The full text of the law is available as a pdf file on this website: http://www.moj.gov.af/?lang=da&p=lable56. Documentation
provided by International Gay and Lesbian Human Rights Commission’s Hossein Alizadeh.
136 In 1972 South Australia became the first Australian jurisdiction to decriminalize homosexual acts. Further reforms were
achieved in 1975 and 1976 in the same state. In 1976 and 1980 respectively the Australian Capital Territory and Victoria
decriminalized homosexual acts. The Northern Territory followed suit in 1983, with New South Wales joining in 1984, closely
followed by Western Australia. The legislations though differing have a common feature of decriminalization homosexual acts
between consenting adults in private. In Queensland, the Fitzgerald Report recommended that the Criminal Justice commission
review the laws governing voluntary sexual behaviour. As a result on 21 November 1990 Criminal Law (Sexual Offences) Act
and criminal code were amended.
137 Melissa Bull and Susan Pinto, et al., Homosexual Law Reform In Australia, ISSN 0817-8542, ISBN 0 642 158827, January
1991, http://www.aic.gov.au accessed on 15 May 2010.
138 By ratifying the Optional ProtocoI to the ICCPR and the International Labour Organisation Discrimination (Employment and
Occupation) Convention 1958, Australia has undertaken to prohibit discrimination and to provide effective remedies against
discrimination including on the basis of sexual orientation and trans-gender identity See Melissa Bull and Susan Pinto, et al.,
Homosexual Law Reform In Australia, ISSN 0817-8542, ISBN 0 642 158827, January 1991, http://www.aic.gov.au accessed
on15 May 2010.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                        36
While the age of consent for sexual activity differs across the various States and Territories
throughout Australia, in each State or Territory the age of consent is the same for
heterosexual and homosexual relationships.139

LGBT persons enjoy a wide degree of protection in Australia. Homosexual relationships are
legal, with the Human Rights (Sexual Conduct) Act 1994 providing that sexual conduct
involving consenting adults (18 years or over) acting in private would not be subject to
arbitrary interference by law enforcement officials.140

Despite widespread acceptance in some parts of Australian society, LGBT persons still
experience homophobia and transphobia.141


Anti-Discrimination Legislation
There is no legislation at the Federal level providing protection based on sexual orientation or
gender identity. State level anti-discriminatory legislation includes the Australian Capital
Territory Discrimination Act 1991 (ACT),142 the New South Wales Anti-Discrimination Act
1977 (NSW),143 the Northern Territory Anti-Discrimination Act 1996 (NT),144 Queensland Anti-
Discrimination Act 1991 (QLD),145 the South Australia Equal Opportunity Act 1984 (SA),146
the Tasmania Anti-Discrimination Act 1998 (TAS),147 Victoria Equal Opportunity Act 1995
(VIC),148 and the Western Australia Equal Opportunity Act 1984 (WA).149



139 “Age of Consent for Sexual Relations in Australia”, National                            Children’s    and    Youth     Laws    Centre,
www.childwise.net/downloads/Age_of_consent.pdf (accessed on 27 June 2010).
140 Overview of Australian Human Rights Commission activities to protect and promote the rights of gay, lesbian, bisexual,
transgender and intersex people, prepared for the Asia-Pacific Forum of National Human Rights Institutions and KomnasHAM
workshop     on    the    implementation    and     promotion    of   the   Yogyakarta  Principles,     5–7    May   2009,
http://www.asiapacificforum.net/issues/sexual_orientation accessed on 15 May 2010.
141 Examples of this include hate mail, attacks by thugs, sexual harassment at the workplace, physical harassment and attacks
that LGBT children face in schools, and hate speech Same-Sex: Same Entitlements (SSSE) Report, National Inquiry into
Discrimination against People in Same Sex Relationships: Financial and Work-Related Entitlements and Benefits, May 2007,
http://www.humanrights.gov.au/human_rights/samesex/report/index.html accessed on 26 May 2010.
142 Australian Capital Territory Discrimination Act 1991 (ACT): Grounds of unlawful discrimination – Sex, sexual harassment,
sexuality, transexuality, age, profession, trade, occupation or calling, relationship status, status as a parent or carer, pregnancy,
race, racial vilification, religious or political conviction, impairment, membership or non-membership of association of employers
or employees, breastfeeding, spent convictions, disability, religious practice in employment, having had one of the enumerated
attributes in the past, or association with person with an above attribute.
143 New South Wales Anti-Discrimination Act 1977 (NSW): Grounds of unlawful discrimination – Race, (including colour,
nationality and national or ethnic origin), sex (including pregnancy), marital status, disability, homosexuality, age (compulsory
retirement only), transgender, carer’s responsibility.
144 Northern Territory Anti-Discrimination Act 1996 (NT): Grounds of unlawful discrimination – Race, sex, sexuality, age, marital
status, pregnancy, parenthood, breastfeeding, impairment, trade union or employer association activity, religious belief or
activity, irrelevant criminal record, political opinion, affiliation or activity, irrelevant medical record, or association with person with
an above attribute.
145 Queensland Anti-Discrimination Act 1991 (QLD): Grounds of unlawful discrimination – Sex, relationship status, pregnancy,
parental status, breast feeding (goods and services only), race, age, physical impairment, religion, political belief or activity,
trade union activity, lawful sexual activity, gender identity, sexuality, family responsibilities, or association with a person who has
any of these attributes.
146 South Australia Equal Opportunity Act 1984 (SA): Grounds of unlawful discrimination – Sex, sexuality, marital status,
pregnancy, race, age, physical and intellectual impairment (but does not include mental illness).
147 Tasmania Anti-Discrimination Act 1998 (TAS): Grounds of unlawful discrimination – Age, breastfeeding, disability, family
responsibilities, gender, industrial activity, irrelevant criminal record, irrelevant medical record, lawful sexual activity, marital
status, relationship status, parental status, political activity, political belief or affiliation, pregnancy, race, religious activity,
religious beliefs or affiliation, sexual orientation, association with a person who has, or is believed to have any of these
attributes. Other unlawful conduct – Sexual harassment; inciting hatred on the basis of race, disability, sexual orientation or
religion.
148 Victoria Equal Opportunity Act 1995 (VIC): Grounds of unlawful discrimination – Sex, sexual orientation, gender identity,
pregnancy, breastfeeding, marital status, status as a carer, age, race (including colour, nationality, ethnic or national origin),
parental status, physical features, childless or a de facto spouse, lawful religious or political belief or activity, impairment
(including physical impairment, mental illness, mental retardation), industrial activity, lawful sexual activity, or personal
association with persons having any of the above attributes.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                                  37
The Human Rights and Equal Opportunity Commission (HREOC) Act established the
HREOC in 1986, (now called the Australian Human Rights Commission) which empowers it
to investigate complaints of discrimination in employment and occupation on various
grounds, including sexual orientation, and to resolve such complaints by conciliation. If it
cannot be conciliated, the Commission prepares a report to the federal Attorney-General who
then tables the report in Parliament. The Commission’s recommendations are not
enforceable in a court of law.150

Same-sex marriage is not permitted in Australia, In August 2009, a same-sex marriage bill
was introduced by a member of the Australian Greens. This bill was defeated in the
Australian Senate or upper house by a vote of 45-5, with only the Greens voting in favour.151

In June 2006, the Australian Government invalidated the ACT Civil Union Act, 2006, resulting
in the removal of legal rights given to homosexual couples in a civil union. 152 The legal
reason for the invalidation was that the law substantially interfered with the Commonwealth’s
marriage laws. The ACT Civil Union Act extended property, economic and social rights to
homosexual partners in civil unions insofar as to establish equality with married couples.153

Despite same sex marriage and civil unions not being recognised federally in Australia, same
sex couples enjoy a wide range of entitlements as de facto, domestic or common law
partners in all States and federally. In 2008, the Australian (Federal) Government passed the
Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform)
Act that resulted in the amendment of 84 federal laws so as to remove discrimination against
same-sex couples and their children in a wide range of areas, including social security,
taxation, Medicare, veteran’s affairs, workers’ compensation, educational assistance,
citizenship, immigration, Aged care, Veteran’s affairs, superannuation, family law and child
support.154 This measure by the Australian government was largely based on a National
Inquiry report by the Australian Human Rights Commission in 2007 that identified a set of
laws that required amendment to prevent discrimination against same sex couples and their
children.155

The UN Human Rights Committee in Young v. Australia156 ruled that denying a same-sex
partner army pension benefits only on grounds of sexual orientation amounted to a violation
of the non discrimination clause embedded in Article 26 of the ICCPR. This case involved


149 Western Australia Equal Opportunity Act 1984 (WA): Grounds of unlawful discrimination – Sex, sexual orientation, marital
status, pregnancy, race, religious or political conviction, age, racial harassment, impairment, family responsibility or family
status, gender history.
150 Overview of Australian Human Rights Commission activities to protect and promote the rights of gay, lesbian, bisexual,
transgender and intersex people, prepared for the Asia-Pacific Forum of National Human Rights Institutions and KomnasHAM
workshop     on    the    implementation    and     promotion    of   the    Yogyakarta   Principles,   5–7    May  2009,
http://www.asiapacificforum.net/issues/sexual_orientation/downloads/apf-regional-workshop-may-2009/Australia.doc accessed
on 27 May 2010.
151 http://www.abc.net.au/news/stories/2010/02/25/2830454.htm?site=news, accessed on 12 May 2010.
152 http://www.legislation.act.gov.au/a/2006-22/default.asp accessed on 28 May 2010.
153 http://www.actnow.com.au/Opinion/ACT_Civil_Union_Act.aspx accessed on 27 May 2010.
154 http://www.ag.gov.au/www/agd/agd.nsf/Page/Humanrightsandantidiscrimination_SameSexReform accessed on 28 May
2010. Some of these measures came into force in 2009. See also Overview of Australian Human Rights Commission activities
to protect and promote the rights of gay, lesbian, bisexual, transgender and intersex people, prepared for the Asia-Pacific Forum
of National Human Rights Institutions and KomnasHAM workshop on the implementation and promotion of the Yogyakarta
Principles, 5–7 May 2009, available at http://www.asiapacificforum.net/issues/sexual_orientation.
155 Same-Sex: Same Entitlements (SSSE) Report, National Inquiry into Discrimination against People in Same Sex
Relationships:      Financial        and      Work-Related     Entitlements    and     Benefits,     May       2007,
http://www.humanrights.gov.au/human_rights/samesex/report/index.html accessed on 26 May 2010. The Australian Human
Rights Commissioner attended community meetings and public discussions across the country to hear about the impact of
discriminatory laws on same sex couples and their children. The Commission also received 680 submissions describing
financial and the emotional strain on same sex couples.
156 Communication No. 941/2000, http://www.unhchr.ch/tbs/doc.nsf/0/3c839cb2ae3bef6fc1256dac002b3034?Opendocument
accessed on 1 May 2010.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                        38
Edward Young, an Australian citizen residing in New South Wales who was in a same-sex
relationship with a Mr. C for 38 years. Mr. C was a war veteran, for whom the author cared in
the last years of his life. Mr. C died on 20 December 1998, at the age of 73. On 1 March
1999, Young applied for a pension under section 13 of the Veteran’s Entitlement Act (“VEA”)
as a veteran’s dependant. On 12 March 1999, the Repatriation Commission denied the
author’s application in that he was not a dependant as defined by the Act.157

Adoption by same sex couples is not allowed in most Australian States.158 Recommendations
by a New South Wales (NSW) Parliamentary Committee to allow same-sex adoptions were
rejected by the State Government after opposition from conservative religious groups.159 In
Tasmania, de facto couples, including same sex couples can adopt, but only if they have a
registered relationship. Recommendations by a NSW Parliamentary Committee to allow
same-sex adoptions were rejected by the State Government. The Victorian Law Reform
Commission has recommended that adoption be changed to allow for same sex adoptions
but this has not yet occurred. In Western Australia, same sex couples are able to adopt, due
to the definition of de facto relationship, since the Western Australian Adoption Act 1994
allows for adoption when a step-parent of the child has been married to, or in a de facto
relationship with, a parent of the child for at least three years. The country’s only documented
same sex adoption occurred in Western Australia (WA).160


Transgender and Intersex Rights
Transgender persons (including transsexual persons) and intersex persons face
discrimination at various levels in Australian society. These include discrimination in
accessing health care facilities and Medicare rebates, aged care services, and travel
documentation including passports.161 Transgender persons can obtain passports in the
gender of their choice, only if they can show that they have undergone sex reassignment
surgery.162

State and territorial laws that facilitate legal recognition of a transgender person’s chosen sex
requires that the individual be unmarried.163 Western Australia and South Australia are the
only States that allow specific gender reassignment, without the requirement for the
transgender person to show that he/she is unmarried (or in the case of Queensland, that if
you were married that you have been married overseas).164

The most important case on this point is The Attorney-General for the Commonwealth vs.
“Kevin and Jennifer” & Human Rights and Equal Opportunity Commission.165 This case
involved a female to male transsexual, Kevin.166 Kevin and his fiancée Jennifer found a
marriage celebrant willing to perform the ceremony and were subsequently married in August
1999. In October 1999 the couple sought a declaration of validity for their marriage from the




157 http://www.unhchr.ch/tbs/doc.nsf/0/3c839cb2ae3bef6fc1256dac002b3034?Opendocument accessed on 16 June 2010.
158 http://lgbtlawblog.blogspot.com/search/label/Adoption, accessed on 20 May 2010.
159 http://www.greenleft.org.au/node/43080 accessed on 27 May 2010.
160 While same sex adoption is not allowed under the Queensland Adoption Act of 2009, there seems to be a legal ambiguity
since the previous 1964 Act preserved the inherent jurisdiction of the Supreme Court which may have allowed these adoptions.
It is unclear whether that inherent jurisdiction remains.
161 Same-Sex: Same Entitlements (SSSE) Report, Op cit, pp. 365–368.
162 Ibid.
163 Same-Sex: Same Entitlements (SSSE) Report, Op cit, pp. 365–368.
164 http://lgbtlawblog.blogspot.com/search/label/Gender%20Reassignment, accessed on 20 May 2010.
165 [2003] FamCA 94 (21 February 2003).
166 http://www.nswccl.org.au/unswccl/issues/transexual.php, accessed on 20 May 2010.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                   39
Family Court of Australia. The Commonwealth Attorney-General intervened to oppose the
application. While declaring the marriage valid in this case, the Family Court held

        For the purpose of ascertaining the validity of a marriage under Australian law, the
        question whether a person is a man or a woman is to be determined as at the date of the
        marriage, not as at birth;

        In Australian law, the terms ‘man’ and ‘woman’ include transsexuals in accordance with
        their sexual reassignment.

The decision laid down a list of relevant matters to be considered when determining the
gender of a person at the time of marriage:

    The person’s biological and physical characteristics at birth (including gonads, genitals
     and chromosomes);

    The person’s life experiences, including the sex in which he or she is brought up and the
     person’s attitude to it;

    The person’s self-perception as a man or woman;

    The extent to which the person has functioned in society as a man or a woman;

    Any hormonal, surgical or other medical sex reassignment treatments the person has
     undergone, and the consequences of such treatment; and,

    The person’s biological, psychological and physical characteristics at the time of the
     marriage, including (if they can be identified) any biological features of the person’s brain
     that are associated with a particular sex.


Refugee Law
Australia acceded to the Refugee Convention on 21 January 1954 and acceded to the
Refugee Protocol on 13 December 1973. Article 33 (1). The Refugee Convention provides
that no 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”.167 There
have been many cases where the Federal Court of Australia has recognized implicitly and
explicitly that gay men and lesbians may constitute a particular social group for the purposes
of the Refugee Convention 1951.168

The Australian Migration Act transforms Australia’s obligations under the Convention into
domestic law. Australian courts also use case law from other jurisdictions. A crucial question
that has arisen is whether the applicant is really homosexual. As one Refugee Review
Tribunal (RRT) member put it, ‘the claim of being homosexual is in many ways an easy one
to make and a difficult one to dispute’.169 Some cases have turned solely on the applicant’s



167 Savitri Taylor, The Meaning of ‘Social Group’: The Federal Court’s Failure to Think Beyond Social Significance, 19 Monash
U. L. Rev. 325 1993.
168 Minister for Immigration and Multicultural Affairs v. Guo Ping Gui [1999] FCA 1496 (29 Oct. 1999) (explicit); MMM v.
Minister for Immigration and Multicultural Affairs [1998] 1664 FCA (22 Dec. 1998) (implicit); Bhattachan v. Minister for
Immigration and Multicultural Affairs [1999] FCA 547 (27 April. 1999) (implicit); F v. Minister for Immigration and Multicultural
Affairs [1999] FCA 947 (explicit); Hossain v. Minister for Immigration and Multicultural Affairs [1999] FCA 957 (implicit).
169 Kristen L. Walker, ‘Sexuality and Refugee Status in Australia’, 12 Int’l J. Refugee L. 175 2000.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                        40
credibility.170 The RRT has rejected the use of medical evidence like psychiatric assessment,
‘penile plethysmography’, or an internal examination in assessing sexuality and this is a
positive feature of the Australian approach.171

Transsexuals are also accepted as a ‘particular social group’ by Australian courts in
considering refugee applications, but they have marked a clear distinction in law between
transgendered people who have and who have not undergone sex reassignment surgery.172

The other essential element when it comes to determining refugee status is persecution, i.e.
what constitutes persecution, different aspects like discrimination as persecution, prosecution
as persecution, harassment and violence by police, discretion to avoid persecution have to
be taken into account. While the RRT and the Federal Court have accepted that extortion
does amount to serious harm, they have held that it is not persecution ‘for reasons of’
membership of the social group constituted by the homosexuals.173

As for persecution by non-state actors, the RRT has accepted that it may fall under the terms
of the Convention where the State is unable or unwilling to protect the claimant from
persecution. But in the case of private problems such as rejection by families, pressure to
marry, employment discrimination and social ostracism, a finding of persecution is unlikely174.

Australian courts and tribunals have, in several cases, held that the applicant is gay and that
‘overt’ homosexuals face a real risk of persecution in the applicant’s country of origin.
However, in some cases, they have held that it is not unreasonable to expect the applicant to
be discreet in his/her behaviour upon return to the applicant’s home country, unless the
applicant is already ‘out’ or is in a long term sexual relationship so that discretion would be
impossible.175 The acceptance of the ‘discretion requirement’ by some Australian courts and
tribunals shows their reluctance to accept LGBT persons’ right to express their sexuality
publicly.

Australia has Pride Parades in almost all its major cities including the Sydney Gay and
Lesbian Mardi Gras which attracts thousands of people from all over the world every year.



India
India is a party to the ICCPR, ICESCR, CERD, CEDAW, CRC and CRPD.



170 In the case of V97/06483 (5 Jan. 1988); N98/23086 (8 Jul. 1998), et al.
171 Kristen L. Walker, ‘Sexuality and Refugee Status in Australia’, 12 Int’l J. Refugee L. 175 2000.
172 The Canadian Immigration and Refugee Board held that as a transsexual has a gender identity of a female and a sexual
orientation towards those she considers of the opposite sex. Both of these are innate and unchangeable characteristics, which
satisfy the first outlined category in Ward. Therefore transsexuals were seen as particular social group. R v. Harris and
McGuiness (1988) 17 NSWLR158; Department of Social Security v. SRA (1993) 118 ALR 467.
173 There is no bright line test to distinguish discrimination from persecution, if it can be shown that as a class they are being
selectively harassed, then the protection would be granted. In the context of criminal law, prosecution, conviction and
punishment for consensual, private same sex sexual activity constitutes persecution under the Convention. This applies even
when the laws have not been used against the applicant till that date. However when the individuals are persecuted for
engaging in same sex sexual activity in ‘public’ like parked cars, public toilets, parks etc., the status conduct distinction has been
used by the courts and it may not amount to persecution. See R v. Harris and McGuiness (1988) 17 NSWLR158; Department of
Social Security v. SRA (1993) 118 ALR 467.
174 McHugh J. stated in Applicant A(1997) 142 ALR 331, 354: “Ordinarily the persecution will be manifested by a series of
discriminatory acts directed at members of a race, religion, nationality or particular social group or at those who hold certain
political opinions in a way that shows that, as a class, they are being selectively harassed.” In one case RRT stated:”
Discrimination likely to be endured by the Applicant in the general community be systematic and persistent and of such a
degree as to amount to serious harm. It is apparent that the State is powerless to intervene and protect the applicant.”[1998]
1664 FCA (22 Dec. 1998).
175 Kristen L. Walker Op cit.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                             41
In terms of its criminal law, until the decision of the Delhi High Court in Naz Foundation vs.
NCT Delhi in 2009176, same sex consensual relationships were a criminal offence under
Section 377 of the Indian Penal Code meriting a maximum punishment of life imprisonment.
The said provision violated Article 17 and Article 2(1) of the ICCPR177. The Naz decision has
now brought Indian jurisprudence into conformity with international law by decriminalising all
consensual same sex activity between adults. As the Court noted:

       In our view, Indian Constitutional law does not permit the statutory criminal law to be held
       captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that
       discrimination is antithesis of equality and that it is the recognition of equality which will
                                               178
       foster the dignity of every individual.

The importance of the Naz decision was that it gave a new interpretation to the existing
framework of Constitutional Rights. India has a well established framework of fundamental
rights embedded in the Indian Constitution. The four important provisions from the point of
view of LGBT rights are:

       Article 14. The State shall not deny to any person equality before the law or the equal
       protection of the laws within the territory of India.

       Article 15. The State shall not discriminate against any citizen on grounds only of religion,
       race, caste, sex, place of birth or any of them

       Article 19 All citizens shall have the right–
       (a) to freedom of speech and expression;
       (b) to assemble peaceably and without arms;
       (c) to form associations or unions;
       (d) to move freely throughout the territory of India;
       (e) to reside and settle in any part of the territory of India; and
       (g) to practise any profession, or to carry on any occupation, trade or business.

       Article 21. No person shall be deprived of his life or personal liberty except according to
       procedure established by law.

These four provisions are the heart of the Fundamental Rights Chapter. Prior to the Naz
decision it was never seen fit to apply these provisions to LGBT persons. What the Naz
decision did was to apply the understanding of Constitutional rights to a minority which had
never been deemed worthy of rights protection or judicial consideration. As the Naz Court
observed, invoking Jawaharlal Nehru:

       ‘If there is one constitutional tenet that can be said to be underlying theme of the Indian
       Constitution, it is that of ‘inclusiveness’. This Court believes that Indian Constitution
       reflects this value deeply ingrained in Indian society, nurtured over several generations.
       The inclusiveness that Indian society traditionally displayed, literally in every aspect of
       life, is manifest in recognising a role in society for everyone. Those perceived by the
                                                                                            179
       majority as “deviants” or “different” are not on that score excluded or ostracised’.




176 Naz Foundation vs. NCT Delhi (2009) 160 DLT 277.
177 See Toonen v. Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994). Para 8.6 and para 8.7
for the interpretation of the ICCPR that anti-sodomy laws violated both the right to privacy clause and the non discrimination
clause. http://hrlibrary.ngo.ru/undocs/html/vws488.htm accessed on 26 April 2010.
178 Naz Foundation v. NCT Delhi, op. cit., Para 131.
179 Naz Foundation v. NCT Delhi, op. cit., See Para 130.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                     42
The Naz decision interpreted Article 21 to include protection for both zonal and decisional
privacy of individuals as well as the dignity of LGBT individuals. As the Court noted,

       ‘In the Indian Constitution, the right to live with dignity and the right of privacy both are
       recognised as dimensions of Article 21. Section 377 IPC denies a person’s dignity and
       criminalises his or her core identity solely on account of his or her sexuality and thus
       violates Article 21 of the Constitution. As it stands, Section 377 IPC denies a gay person
       a right to full personhood which is implicit in notion of life under Article 21 of the
                     180
       Constitution.’

With respect to Article 14, the Naz decision held that,

       The criminalisation of private sexual relations between consenting adults absent any
       evidence of serious harm deems the provision’s objective both arbitrary and
       unreasonable. The state interest “must be legitimate and relevant” for the legislation to be
       non-arbitrary and must be proportionate towards achieving the state interest. If the
       objective is irrational, unjust and unfair, necessarily the classification will have to be held
       as unreasonable. The nature of the provision of Section 377 IPC and its purpose is to
                                                                                                   181
       criminalise private conduct of consenting adults which causes no harm to anyone else.

In an extension of equality doctrine, the Naz decision also found Section 377 to be violative
of the non discrimination provision in Article 15, stating:

       We hold that sexual orientation is a ground analogous to sex and that discrimination on
       the basis of sexual orientation is not permitted by Article 15. Further, Article 15(2)
       incorporates the notion of horizontal application of rights. In other words, it even prohibits
       discrimination of one citizen by another in matters of access to public spaces. In our view,
       discrimination on the ground of sexual orientation is impermissible even on the horizontal
                                                            182
       application of the right enshrined under Article 15.

Legal commentators have pointed to the far reaching significance of this aspect of the ruling
as it implies that non discrimination provision will have to be read to include sexual
orientation and thereby provide protection to LGBT persons183. Some other commentators
have observed that the contrast to the judgments decriminalising sodomy of the South
African Supreme Court and the US Supreme Court which only referred to gay men, in the
Naz decision, the judges have extensively referred to the LGBT population and in particular
the transgender community. Hence one can implicitly read gender identity to be a prohibited
marker of discrimination.184 However the gap in Indian law is a specific non discrimination
statute which includes both sexual orientation and gender identity.

The Court in the Naz Foundation case refused to go into the merits of the argument on
Article 19 preferring to hold Section 377 unconstitutional on grounds of Article 14, 15 and 21.
However some of the observations under Article 21 can be read as a way in which the Article
19 protections have been read into Article 21, the Naz decision stating:

       For every individual, whether homosexual or not, the sense of gender and sexual
       orientation of the person are so embedded in the individual that the individual carries this




180 Naz Foundation v. NCT Delhi, op. cit., See para 41.
181 Ibid. See para 92.
182 Ibid. See para 104.
183 Tarunabh Khaitan, Reading Swaraj into Article 15: A New Deal for all Minorities, 2 NUJS L. Rev. (2009) 419.
184 Siddharth Narrain, Crystallizing Queer Politics: The Naz Foundation Case and its Implications for India’s Transgender
Communities, 2 NUJS L. Rev. (2009) 455.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                43
        aspect of his or her identity wherever he or she goes. A person cannot leave behind his
                                                      185
        sense of gender or sexual orientation at home .

The judges were also cognizant of emerging international law on sexual orientation and
gender identity and in particular refer to the Yogyakarta Principles on the Application of
Human Rights Law in Relation to Sexual Orientation and Gender Identity. They state that,

        “the principles are intended as a coherent and comprehensive identification of the
        obligation of States to respect, protect and fulfil the human rights of all persons
        regardless of their sexual orientation or gender identity”.

In particular they note that the Principles recognise:

        Human beings of all sexual orientation and gender identities are entitled to the full
        enjoyment of all human rights;

        All persons are entitled to enjoy the right to privacy, regardless of sexual orientation or
        gender identity;

        Every citizen has a right to take part in the conduct of public affairs including the right to
        stand for elected office, to participate in the formulation of policies affecting their welfare,
        and to have equal access to all levels of public service and employment in public
                                                                                                    186
        functions, without discrimination on the basis of sexual orientation and gender identity .

The Judges also refer to the ‘Declaration of Principles of Equality’ issued by the Equal Rights
Trust in April, 2008, which can be described as current international understanding of
Principles on Equality. They draw upon these principles to elucidate the notion of ‘indirect
discrimination’.187

The Naz judgment removed the criminal law from the backs of LGBT persons and provided a
legal basis to continue to combat discrimination against LGBT persons. The struggle against
discrimination has taken the form of a struggle for a civil identity. Among the instruments by
which the Indian state defines civil personhood, sexual (gender) identity is a crucial and
unavoidable category. These identification documents like a birth certificate, passport or
ration card, are a predicate for the ability to enter into a variety of relationships in civil and
official society – for obtaining driver’s licenses, for accessing legal service, employment
opportunities, university admissions and essential benefits including health care.
Identification has traditionally been on the basis of sex within the binaries of male and
female. The Indian state’s policy has traditionally been towards recognizing only two sexes
and refusing to recognize hijras as women, or as a third sex.

Transgender persons are not protected by the provisions that deal with rape in the Indian
Penal Code. The current government proposals related to sexual assault188 do not aim to




185 Naz Foundation v. NCT Delhi, op. cit., Para 47.
186 Ibid. Para 44.
187 Indirect discrimination occurs when a provision, criterion or practice would put persons having a status or a characteristic
associated with one or more prohibited grounds at a particular disadvantage compared with other persons, unless that
provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate
and necessary. Harassment constitutes discrimination when unwanted conduct related to any prohibited ground takes place
with the purpose or effect of violating the dignity of a person or of creating an intimidating, hostile, degrading, humiliating or
offensive environment. Ibid. Para 93.
188 Draft Criminal Law Amendment Bill (2010),
http://www.prsindia.org/uploads/media/draft/Draft%20Criminal%20Law%20(Amendment)%20Bill%202010.pdf accessed on 19
April 2010.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                         44
protect transgender victims despite documented evidence of horrific cases of violence and
sexual assault against transgender persons in police stations and by private gangs.189

However there have been some major inroads into this rigid gender classification. The
passport form recognises that transgender persons can apply for a passport in a sex/gender
category referred to as ‘Other’.190 Similarly, for the purposes of securing an Election ID card,
persons can use the category called ‘Other’191. The recognition of transgenders as other is
also being contemplated in new identity documents such as the Unique Identification Number
with the gender category including male, female and transgender192. In the southern state of
Tamil Nadu, the Government has set up a Transgender Welfare Board which looks into
issues pertaining to the transgender community.193

Also when it comes to contesting elections as women, it must be noted that openly
transgender persons have contested elections as women in India. The Madhya Pradesh
High Court in a ruling in Kamala Jaans’ case ruled that hijras are not women and are not
entitled to contest elections within the category of seats reserved for women.194 However in
2009, Veena S contested elections for the Bangalore Municipality.195 Veena herself was not
the first transgender person to contest local elections with at least eleven transgender
persons before Veena taking the electoral plunge and winning the elections.196

Despite these many dramatic changes in recent times, India still has a long way to go before
policies and practices are brought in line with international human rights law with respect to
sexual orientation and gender identity. A recent incident which brought this fact into stark
relief was the suspension of Professor Siras of the Aligarh Muslim University on the ground
that having consensual homosexual sex within the privacy of his home was an act of moral
turpitude.197 This action, while initially supported by students and faculty in the largely
conservative university, drew flak from the national media and from rights activists across the
country. Media reports and the fact-finding teams noted that the University has a history of
policing sexuality on campus and had hired a team to snoop on its students and faculty. 198
The police in Aligarh initially refused to file a First Information Report despite the widespread
media coverage of the case. Professor Siras then decided to challenge his suspension. The
Allahabad High Court on 1 April 2010 ordered that his suspension be stayed and the
University was asked to take him back. The Court said in its order that the right of privacy is
a fundamental right, which needs to be protected. The order also stated that unless the
conduct of a person, even if he is a teacher, is going to affect and has substantial nexus with
his employment, it may not be treated as misconduct. The lawyer in this case, Anand Grover,
had argued that the Naz judgement had shown that Siras’s sexual orientation could not be
used to dismiss him.


189 See People’s Union for Civil Liberties (Karnataka) Report, Human Rights Violation Against the Transgender Community,
2nd Ed., 2005, http://ai.eecs.umich.edu/people/conway/TS/PUCL/PUCL%20Report.html accessed on 21 May 2010.
190 http://passport.gov.in/cpv/ppapp1.pdf accessed on 29 April 2010.
191 During months of hearings, the election commission heard written and oral testimony (or “representations”) from “various
individuals and interest groups”, according to TOI. Election commissioner S Y Qureishi explained, “When the representation
came, we readily agreed. Why should a section of the population be left out? The decision will help in mainstreaming a section
of the population. I am sure even government would like to do the same” http://lgbtqnews.com/gaynews/eunuchs-transsexuals-
given-third-gender-option-india-election-forms_BYN.aspx accessed on 28 April 2010.
192 See Demographic Data Standards and Verification procedure (DDSVP) Committee Report, Unique Identification Authority
of India, December 2009.
193 http://www.tn.gov.in/pressrelease/archives/pr2008/pr260508/pr260508c.htm accessed on 28 April 2010.
194 http://ai.eecs.umich.edu/people/conway/TS/PUCL/PUCL%20Report.pdf at p. 53.
195 http://bangalore.citizenmatters.in/articles/view/1851-praja-rajakiya-vedike-bbmp-elections-candidates accessed on 28 April
2010.
196 Table of successful candidates on file with the Alternative Law Forum.
197 http://altlawforum.org/news/Amumoralpolicingfinal10.03.pdf (accessed on 28 April 2010)
198 Policing Morality at Anuran Independent Fact-Finding Report, March 2010,
http://altlawforum.org/news/Amumoralpolicingfinal10.03.pdf (accessed on 12 April 2010).



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                     45
On 6 April, 2010, barely a week after this remarkable decision, Siras was found dead in his
room in Aligarh. Mystery still shrouds the reason behind his death, with the post-mortem
results awaited. The Aligarh police, on 19 April, filed cases against the journalists who had
conducted the sting operation that had cost Siras his job, and ultimately his life. The police
have also registered cases of criminal intimidation, assault, trespass and wrongful
confinement against the university authorities who have been named in Siras’s First
Information Report. Civil society organisations have demanded a fair and impartial probe into
Siras’s death.199

What can be concluded is that, despite the decision of the Delhi High Court decriminalising
consensual sex between adults in private, there are still a range of laws which can be used
against LGBT persons. These range from local public nuisance laws under the Police Acts to
the public nuisance provisions in the Indian Penal Code and in the Immoral Traffic
Prevention Act, 1956.200

The lesbian community in India faces its own challenges as it has technically never been
covered by the anti-sodomy law in India. There have been a spate of reports throughout the
country, especially in smaller towns and villages of “lesbian suicides” where either both, or
one of the partners have committed suicide when their families and relatives have tried to
separate them.201 The limited research specifically related to lesbians indicates that the main
issues that they face include a lack of community space and public spaces that they can
access. This is compounded by the fact that public spaces are generally hostile spaces for
women in India. Further, the pressure to get married is very high in Indian society and many
women are married off against their will in arranged marriages, once they reach adulthood.
While gay men do face similar pressures, they enjoy a much higher degree of freedom to
move around and interact with their friends and lovers outside of the home, and in public
spaces. The partners in a lesbian relationship are often faced with charges of kidnapping
under the Indian Penal Code. These charges are usually levelled by parents or relatives of
one of the partners. Again, this is a reflection of Indian society at large, where inter-caste,
inter-religious, and inter-community marriages often face attacks from the families of the
partners involved. While there are a number of organisations that work specifically for the
rights of lesbians in the larger cities in India, the situation is very different in smaller towns
and villages, where assistance, information and resources are often unavailable.202

The need for reforms in relation to marriage, divorce, inheritance, labour and insurance are
also overdue. To access benefits under any of these civil transactions one has to be
heterosexual. Thus for example, a gay or lesbian partner would not be entitled to inherit
property on his partner’s death or be entitled to any labour law benefits or benefits from
insurance.203

In summary, there is an urgent necessity for an anti-discrimination law which includes
grounds such as sexual orientation and gender identity such that it can be used to combat all
the forms of discrimination outlined above. It is also important for the NHRC to engage on the
issue of LGBT rights and begin to both promote and protect the rights of LGBT persons.204



199 Urvashi Sarkar, “Impartial Probe Sought Into Death of AMU Professor”, The Hindu,
http://beta.thehindu.com/news/cities/Delhi/article395733.ece (accessed on 12 May 2010).
200 See People’s Union for Civil Liberties (Karnataka), “Human Rights Violations Against the Transgender Community”, 2003.
http://ai.eecs.umich.edu/people/conway/TS/PUCL/PUCL%20Report.pdf (accessed on 28 April 2010).
201 Deepa Vasudevan, “Lesbian Suicides and Kerala Women’s Movement”, Paper presented at South Indian Young Feminists’
Conference, 29 September 2001.
202 Maya Sharma, “Loving Women: Being Lesbian in Unprivileged India,” Yoda Press, 2006, New Delhi.
203 Mihir Desai, Civil Laws affecting Gays and Lesbians cf. Bina Fernandez, Ed., Humjinsi, Combat Law Publications, 1999.
204 Criticisms of the NHRC have focussed on inaction in relation to lesbians, gays, bisexuals and transgender rights, one
commentator referring to informal conversations with the then Chairman of the NHRC which revealed that the NHRC believed



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                      46
Recent examples of societal opposition to same-sex “marriages” in different parts of the
country show that discrimination against LGBT persons continues to be a serious issue. 205
There must be a serious effort to translate gains made through legal challenges to make
change at the level of societal attitudes. A spate of same-sex “marriages” immediately after
the Naz decision led to conservative religious leaders from across the spectrum (Hindu, Sikh,
Muslim and Christian) condemning these incidents. The religious body governing the Sikhs,
the Akal Takht went as far as to ban Sikh priests from conducting same-sex marriages after
a spate of public same marriages (not legally valid) were highlighted by the media.206

The more conservative religious leaders from across the spectrum have publicly opposed the
Naz decision and some religious groups have appealed the Naz decision in the Supreme
Court, arguing that the decision will lead to a breakdown of the moral fabric of society. 207.
Some Christian religious leaders have taken a slightly divergent view in which they said they
did not support criminalising homosexuality, but did not believe that homosexuality was
natural. Only a handful of religious leaders supported the Naz decision. These were mostly
progressive religious leaders involved in social activism or with a wider spectrum of human
rights issues.




Indonesia
Indonesia is a party to the ICCPR, ICESCR, CAT, CERD, CEDAW and CRC.

The relevant provisions of the Indonesian Constitution guaranteeing equality and freedom of
expression are:

       Article 27: (1) All citizens shall be equal before the law and the government and shall be
       required to respect the law and the government, with no exceptions.

       Article 28D: (1) Every person shall have the right of recognition, guarantees, protection
       and certainty before a just law, and of equal treatment before the law.
       (2) Every person shall have the right to work and to receive fair and proper remuneration
       and treatment in employment.
       (3) Every citizen shall have the right to obtain equal opportunities in government.




that until Sec 377 was repealed nothing could be done particularly in the absence of any real grassroots support. According to
another NHRC source, “homosexuality is an offence under IPC, isn’t it? So, do you want us to take cognisance of something
that is an offence”. Arvind Narrain, Queer: Despised Sexualities, Law and Social Change, Books for Change, Bangalore, 2004,
p. 55.
205 While these are not legally valid marriages they reflect a desire of same sex couples to be publicly recognised. See
Iboyaima    Laithangbam,      “Same      Sex      Marriage     in    Public    in   Manipur,”    27      March     2010,
www.thehindu.com/2010/03/27/stories/2010032755872600.htm (accessed on 25 May 2010).
206 “Akal Takht Bans Gay Marriages in Gurudwaras”, 9 July 2009, http://www.unp.co.in/f46/akal-takht-bars-gay-marriages-in-
gurdwaras-51652/ (accessed on 20 May 2010).
207 Mihir Srivastava, “Religious Leaders Oppose High Court Judgement,” India Today, 2 July 2009.
http://indiatoday.intoday.in/site/story?sId=49736&secid=4 (accessed on 23 May 2009). Samar Halarnkar, “Clash over Gay
Rights in Supreme Court set to Snowball”, Live Mint, http://www.livemint.com/2010/02/21102248/Clash-over-gay-rights-in-SC-
se.html (accessed on 25 May 2010).



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                     47
        Article 28I (2): Every person shall have the right to be free from discriminative treatment
        based upon any grounds whatsoever and shall have the right to protection from such
        discriminative treatment

These provisions confer a right to equality, and right to freedom from discrimination. The
non-discrimination clause is framed very widely as protection from discrimination “on any
grounds whatsoever”.

Indonesian criminal law is codified in the Penal Code of Indonesia. Inherited from the Dutch,
it does not contain any provisions criminalising same-sex activity.208 However, despite a
general level of societal tolerance in Indonesia, LGBT individuals are subject of attacks and
censure by religious fundamentalists.209

In 2009, the province of Aceh passed legislation applying Sharia law to the province in
matters of criminal law, thereby criminalising homosexuality with a sentence of up to eight
years in prison and 100 lashes.210 Indonesian LGBT activists say that there is talk of this
legislation having been cancelled recently by the Minister of the Interior, but they have not
been able to obtain written evidence of the same.211

The Constitution of Indonesia provides the right of equality before law, and subsequent to its
fourth amendment in 2002, incorporates a bill of human rights, as part of harmonising
domestic legislation with international human rights instruments.212 The right to have a family
has been recognised only up to the extent of procreation and no protection or legal
recognition is granted to same-sex couples.213 Change of gender after reassignment surgery
can apparently be legally effected by a district court, based on jurisprudence after the case of
Iwan Rubianto/ Vivian Rubianto at the South Jakarta District Court in 1973.214

LGBT persons in Indonesia continue to face discrimination at various levels. “Out’ or visible
homosexual men and waria (transgenders) are particularly at risk by the laws that target
sexworkers. According to the IGLHRC Universal Periodic Review Submission on LGBT
rights in Indonesia, the Indonesian police regularly interpret laws related to prostitution as
applying to homosexuals and transgender persons.215

This association between LGBT persons and prostitution is further evidenced by local laws
like the regional regulation of Palembang (South Sumatra) that includes in its definition of
prostitution the terms homosexual sex, lesbianism and sodomy.216 Local prostitution laws in a
number of areas are used against LGBT persons.217



208 Gazette No. 732 of 1915. The Dutch decriminalised homosexuality in Netherlands in the 18th century upon adopting the
Napoleanic Code.
209 “LGBT groups focus on human rights after ‘repressive’ actions”, The Jakarta Post, 29 March, 2010, available at
http://www.thejakartapost.com/news/2010/03/29/lgbt-groups-focus-human-rights-after-%E2%80%98repressive%E2%80%99-
actions.html accessed on 5 May 2010.
210 Michael A. Jones, “In Indonesia, Homosexuality Equals 100 Lashes”, Gay Rights, 15 September, 2009, available at
http://gayrights.change.org/blog/view/in_indonesia_homosexuality_equals_100_lashes accessed on 5 May 2010.
211 Email exchange with LGBT activist Dede Oetomo, 26 May 2010.
212 Compilation on Indonesia, p. 2, UNGA Human Rights Council Working Group on the Universal Periodic Review, First
session (Geneva, April 2008).
213 The relevant provisions of the Indonesian Constitution guaranteeing the right to family life are:
    Article 28B: (1) Every person shall have the right to establish a family and to procreate based upon lawful marriage.
    Constitution of the Republic of Indonesia, 1945, Art. 28B.
214 Email conversation with Indonesian LGBT activist Dede Oetemo.
215 Human Rights Abuses against Sexual Minorities in Indonesia, International Gay and Lesbian Human Rights Commission,
November 2007. This report was submitted by IGLHRC to the UN Human Rights Council for its 2007 Universal Periodic Review
on 19 November, 2007. The Report is available at www.iglhrc.org/binary-data/ATTACHMENT/file/000/.../124-1.pdf accessed on
May 20, 2009.
216 Id. Regional Regulation of the City of Palembang (South Sumatra); No.2/2004: re. Eradication of Prostitution.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                48
The IGLHRC report documents human rights violations that take place regularly against the
warias. These include arbitrary detention, custodial rape and violence, discrimination at the
workplace, schools, medical centres, and within the family.218 In addition, civil law does not
recognize the problems that warias face regarding legal recognition in the chosen gender.
Since most warias do not have official documents in the gender of their choice, they struggle
to obtain a range of entitlements and benefits. The RUU Adminduk (Civil Administration Law)
does not take into account these concerns resulting in further disadvantage to the waria
community when it comes to employment opportunities.219

In November 2008 the Indonesian Parliament passed the controversial Pornography Bill
ignoring protests from more moderate provinces like Bali and from civil society organisations.
The Pornography Law specifically mentions or defines “homosexual and lesbian sex” as
“deviant sexual intercourse,” but is silent on sex with transgendered persons. The
Pornography Law criminalizes the production and sale of materials depicting sexual
intercourse, not the intercourse itself.220 The Bill was challenged in the Constitutional Court
by secular parties, artists and minorities. However, the court upheld the constitutional validity




    Articles 8, Paragraph (1) – included in the definition of the act of prostitution are:
        a. Homosexual sex
        b. Lesbianism
        c. Sodomy
        d. Sexual abuse
        e. Other pornographic acts
217 Id. Regional Regulation of Indramayu District (West Java) No.4/2001: First Amendment to the Regional Regulation
No.7/1999 re. Prostitution.
    Article 6 – any person who exhibits a behaviour that raises the suspicion of being a prostitute is forbidden to be on the
    street, public squares, pension houses, hotels, boarding houses, private houses, rented houses, movie houses,
    food/drinking stalls, quiet street corners or underpasses, either by sauntering or riding on a vehicle.
Regional Regulation of the City of Tangerang (West Java); No.8/2005: re. Prohibition of Prostitution.
    Article 4, paragraph (1) – any person who exhibits a behaviour that raises the suspicion of being a prostitute is forbidden to
    be on the street, public squares, pension houses, hotels, boarding houses, private houses, rented houses, movie houses,
    food/drinking stalls, quiet street corners, underpasses or in other places within the region.
Regional Regulation of the City of Palembang (South Sumatra); No.2/2004: re. Eradication of Prostitution.
    Article 9 – it is forbidden for any person or group to form and/or to organize a gathering that intends to engage in immoral
    acts and that is incompatible with the local culture.
Regional Regulation of the District of Padang Pariaman (West Sumatra) No.2/2004 re. Prevention, Handling and Eradication of
Sinful Acts (maksiat).
    Chapter II: Immoral Acts
        Article 5, Paragraph (1) – any person is forbidden to be in public places if he/she has the intention to prostitute
        him/herself either for his/her own gratification or for remuneration.
Draft Local Regulation of the City of Mataram, Nusa Tenggara Barat (Lombok Island) re. Prevention of Sinful Acts (maksiat)
Chapter III: Prevention of Sinful Acts.
    Article 4, Paragraph (1)
        All citizens and/or law enforcers are obliged to prevent any act that generates (sexual) urges either by certain
        movements or displaying sensitive body parts.
    Article 6, Paragraph (1) Any person who exhibits a behaviour that leads to the assumption of being a prostitute is forbidden
    to be, to walk or to drive in a private vehicle or on public transportation—on the street, near pension houses, restaurants,
    and other public places.
218 The Role and Authority of National Commission on Human Rights, Komnas Ham and Its Efforts in Promoting and
Protecting LGBT Rights, Hesti Armiwulan, http://www.asiapacificforum.net/issues/sexual_orientation accessed on 20 May 2010.
219 Rido Triawan “Is there room for minorities in the proposed RUU                                 Adminduk?”,     available    at
www.aruspelangi.or.id/statement/minorities_and_ruuadminduk.pdf accessed on 20 May 2010.
220 While we have not been able to get hold of a version of the final Bill in English, blog reports indicate that the preliminary
versions that were circulated did have specific references to “lesbian and homosexual sex”. See
http://www.indonesiamatters.com/2474/porn-laws/ accessed on 20 May, 2010. Indonesian LGBT activist Dede Oetemo, in an
email exchange (26 May 2010), confirmed that the final version of the Bill did retain these references.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                         49
of the legislation with one dissenting voice – that of the only woman judge on the eight-
member panel, who referred to the ambiguity in the law.221

The absence of protection for human rights defenders in Indonesia has been a matter of
concern, with reports of increasing pressure on and harassment of human rights
defenders.222 In particular, the Special Representative of the United Nations Secretary-
General on Human Rights Defenders expressed concern over the lack of protection afforded
to human rights defenders engaged with the rights of LGBT individuals, the violence and
intimidation they face, and the complicity of the state machinery.223 A particularly shocking
instance was the forced cancellation of an LGBT human rights conference in the city of
Surabaya in March 2010, ostensibly at the insistence of religious fundamentalist groups, who
pressured the police and the local administration to withdraw permission granted for the
conference and subsequently intimidated and attacked delegates who had arrived for the
conference.224 Much needs to be done in this regard in order for Indonesia to achieve
acceptable international standards as far as the protection of LGBT rights and their
defenders are concerned.



Jordan
Jordan is a party to the ICCPR, ICESCR, CAT, CERD, CEDAW and CRC.

Jordan is a Constitutional monarchy, and the Constitution of Jordan guarantees protection of
certain civil, political, economic, social and cultural rights and freedoms.225

The relevant provisions of the Jordanian Constitution guaranteeing equality and freedom of
expression are:

       Article 7: (i) Jordanians shall be equal before the law. There shall be no discrimination
       between them as regards to their rights and duties on grounds of race, language or
       religion.

       The Government shall ensure work and education within the limits of its possibilities, and
       it shall ensure a state of tranquillity and equal opportunities to all Jordanians.

       Article 15: (i) The State shall guarantee freedom of opinion. Every Jordanian shall be free
       to express his opinion by speech, in writing, or by means of photographic representation
       and other forms of expression, provided that such does not violate the law.




221 The Bill was used to sentence four female dancers, their coordinator and a cafe manager in Bandung, West Java, to two
months in prison for “erotic dancing” at a New Year’s eve celebration in early 2010. See “A Chilling New Anti-Obscenity Law in
Indonesia, Asia Sentinel, 3 November, 2008 available at
http://www.asiasentinel.com/index.php?Itemid=175&id=1517&option=com_content&task=view.
See Also “Indonesia’s Constitutional Court defends Pornography Law”, Reuteurs, available at
http://www.reuters.com/article/idUSTRE62O28R20100325 accessed on 20 May 2010.
While we have not been able to get hold of a version of the final Bill in English, blog reports indicate that the preliminary
versions that were circulated did have specific references to “lesbian and homosexual sex”. See
http://www.indonesiamatters.com/2474/porn-laws/ accessed on 20 May 2010.
222 “Human Rights Defenders in Indonesia”, Human Rights First, available at
http://www.humanrightsfirst.org/defenders/hrd_indonesia/hrd_indonesia.aspx?c=i5.
223 “Mission to Indonesia”, Report of the Special Representative of the Secretary-General on the situation of human rights
defenders, p. 19 UNGA Human Rights Council, Seventh Session (January 2008).
224 Gloria Careaga, “LGBT Rights trampled in Surabaya: A chronology of a tragedy”, International Gay and Lesbian Human
Rights Commission, 9 April, 2010, available at http://ilga.org/ilga/en/article/mn8fXAD1Ao, accessed on 15 May 2010.
225 National Report on Jordan, p. 2, UNGA Human Rights Council Working Group on the Universal Periodic Review, Fourth
session (Geneva, February 2009).



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                     50
Although these provisions guarantee substantive rights to citizens, they do not contain any
specific clause protecting the rights of LGBT individuals. Furthermore, the definition of Islam
as the state religion in Article 2 has meant that traditional interpretations of Islam as
condemning homosexuality and cross-dressing have resulted in a hostile public environment
for LGBT individuals. This is reinforced by negative Arabic cultural stereotypes about
homosexuality, resulting in general non-acceptance of LGBT individuals by society, as well
as outright discrimination in certain cases.226

Additionally, though freedom of speech and press is guaranteed in Article 15, it is subject to
a number of restrictions, and the freedom of press is controlled rather rigidly by the state. 227
The country’s press law gives the state powers to impose draconian punishments for even
minor offences, and several human rights defenders have been jailed or otherwise subject to
state sanction.228

Jordanian criminal law is codified in the Criminal Code and there is no express provision
criminalising same-sex sexual conduct between consenting adults.229 Jordanian law at
present does not recognise changes in an individual’s gender identity from that assigned at
birth.

Social support is usually not available to LGBT individuals, but the absence of a criminal
prohibition on homosexual activity has allowed for the emergence of LGBT-specific clubs and
magazines.230 The Government has created some space, in particular for MSM issues with
the Ministry of Health creating a hotline to spread awareness about AIDS and STDs, as well
as distributing condoms free of cost. There is no restriction on blood donation irrespective of
one’s sexual orientation.231 In addition, no specific laws exist to protect the rights of LGBT
individuals in matters of marriage or property. Social opposition to LGBT individuals runs
high, while honour killings are permitted by law and frequently occur.232

In one of the few reported instances of homophobia, Saad Manisir, the military governor of
Asaam is reported to have declared that he will eradicate any trace of male homosexuals in
his jurisdiction as a part of a social cleansing campaign.233 Following this campaign, four



226 Lyndon Barnett, “Gay and Muslim in Jordan”, The Sydney Star Observer, dated 11 February 2009, available at
http://www.starobserver.com.au/community/2009/02/11/gay-and-muslim-in-jordan/4169 accessed on 13 May 2010.
227 The relevant provisions of the Jordanian Constitution regarding freedom of speech and press are:
   Article 15:
   (i) (...)
   (ii) Freedom of the press and publications shall be ensured within the limits of the law.
   (iii) Newspapers shall not be suspended from publication nor shall their permits be revoked except in accordance with the
   provisions of the law.
   (iv) In the event of the declaration of martial law or a state of emergency, a limited censorship on newspapers, publications,
   books and broadcasts in matters affecting public safety and national defence may be imposed by law.
   (2) Control of the resources of newspaper shall be regulated by law.
   Constitution of the Hashemite Kingdom of Jordan, 1952, Art. 15.
228 “Human Rights Defenders in Jordan: Government Undoing a Decade of Reform”, Human Rights First, available at
http://www.humanrightsfirst.org/middle_east/jordan/hrd_jordan.htm.
229 Law No. 1487 of 1960.
230 Adam Lichtenheld, “Report about GLBT life in Jordan”, Gay Middle East, dated April 4, 2009, available at
http://www.gaymiddleeast.com/news/news%20168.htm accessed on 13 May 2010.
231 Ammar Majali, “OC Magazine Article on Homosexuality in Jordan”, Gay Middle East, dated December 20, 2009, available at
http://www.gaymiddleeast.com/news/news%20187.htm accessed on 13 May 2010.
232 Adam Lichtenheld, “Report about GLBT life in Jordan”, Gay Middle East, dated April 4, 2009, available at
http://www.gaymiddleeast.com/news/news%20168.htm accessed on 13 May 2010.
233 Originally published by al-Ghad Daily in Jordan, 27 October 2008; subsequently released by various English-language
online sources; see, for example, Menassat’s report: http://www.menassat.com/?q=en/news-articles/5059-military-governor-
says-there-can-be-no-homosexuality-jordan accessed on 20.05.10



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                        51
homosexual Jordanian men were imprisoned on the charge of prostitution and denied bail
until they renounced their homosexuality.234



Malaysia
Malaysia is a party to the CEDAW, CRC and CRPD. It is not however a party to the ICCPR,
ICESCR, CAT or their optional protocols. The Malaysian Government has stated that the
UDHR would be applied only in so far as it was not inconsistent with the country’s
Constitution and domestic laws, and courts have upheld this position of the UDHR as a non-
binding instrument.235

The provisions of the Malaysian Constitution of relevance to concerns around sexual
orientation and gender identity are:

          Article 8: (1) All persons are equal before the law and entitled to the equal protection of
          the law.

          (2) Except as expressly authorized by this Constitution, there shall be no discrimination
          against citizens on the ground only of religion, race, descent, place of birth or gender in
          any law or in the appointment to any office or employment under a public authority or in
          the administration of any law relating to the acquisition, holding or disposition of property
          or the establishing or carrying on of any trade, business, profession, vocation or
          employment.

          (...)

          (5) This Article does not invalidate or prohibit –
              (a) any provision regulating personal law;
              (b) any provision or practice restricting office or employment connected with the affairs
              of any religion or of an institution managed by a group professing any religion, to
              persons professing that religion.

Equality before law is guaranteed to all citizens, however there is no express provision
prohibiting discrimination on the basis of sexual orientation or gender identity.

Malaysian criminal law is codified in the Penal Code inherited from the British,236 and
contains specific provisions that adversely affect the rights of LGBT individuals. These
include:237

          Section 377A: Any person who has sexual connection with another person by the
          introduction of the penis into the anus or mouth of the other person is said to commit
          carnal intercourse against the order of nature.

          Explanation – Penetration is sufficient to constitute the sexual connection necessary to
          the offence described in this section.

          Section 377 B: Whoever voluntarily commits carnal intercourse against the order of
          nature shall be punished with imprisonment for a term which may extend to twenty years,
          and shall also be liable to whipping.


234 Id.
235 Summary of Submissions on Malaysia, p. 2, UNGA Human Rights Council Working Group on the Universal Periodic
Review, Fourth session (Geneva, February 2009).
236 Act 574 of 1997.
237 Ibid.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                      52
       Section 377D: Any person who, in public or private, commits, or abets the commission of,
       or procures or attempts to procure the commission by any person of, any act of gross
       indecency with another person, shall be punished with imprisonment for a term which
       may extend to two years. (Emphasis supplied)

Section 21 of the Minor Offences Act 1955 provides for the offence of indecent behaviour,
which includes cross-dressing. Those found guilty can be fined anywhere between RM25 to
RM50.238

Shari’ah law is also applied in Malaysia to Muslims only, and lesbians, although not covered
by the federal criminal law, are often punished under Shari’ah with fines, imprisonment and
whipping.239

Shari’ah laws criminalise homosexuality and homosexual acts. It denies Muslims (the
majority of whom are Malays) the freedoms of expression, thought, conscience, religion or
belief. Shari’ah laws also criminalise zina (sexual intercourse with a person who is not your
legal spouse), and men cross-dressing as women. They could be charged under the various
Shari’ah criminal offence enactments, which provide for penalties ranging from RM800 to
RM3000 and/or imprisonment. 240 In one case, Ayu, a transgender individual, was beaten and
detained by the Melaka Islamic Religious Affairs Department (JAIM). She was hospitalized
but later she was charged for having violated Shari’ah dress code (Section 72) and fined
RM1,000 (US$288).241

The most prominent case where the anti-sodomy law was used was in the trial of a
prominent political leader, the then Deputy Prime Minister, Anwar Ibrahim, in 1998. Mr.
Ibrahim was convicted and sentenced to nine years in prison, before being acquitted by a
superior court in 2004. It is widely believed that the prosecution of Ibrahim at that time was to
prevent his political rise to power.242 Subsequent to his release, Mr. Ibrahim expressed the
need for laws protecting individual sexual privacy.243

There is no specific anti-discrimination law in force in the country. The Constitution of
Malaysia provides the right to equality before law, but this right is subject to customary laws
and other personal law based on religious policies. Consequently, LGBT individuals are
openly discriminated against in matters of public employment and freedom of expression,
with the navy prohibiting homosexuals from serving.244 LGBT expatriates may be denied
entry into the country and face the threat of deportation upon entry.245 Prominent political
leaders have also spoken out against homosexuals holding public office.246



238 Submission by the Coalition of Malaysian NGOs (COMANGO)                     in   the     UPR   Process,   February   2009,
www.wao.org.my/Documents/COMANGO-Final.pdf accessed on 26 May 2010.
239 Grace Poore, “In This Country, An Accusation of Sodomy Is Defamation of Character”, International Gay and Lesbian
Human Rights Commission, dated 7 March, 2008, available at
http://www.iglhrc.org/cgi-bin/iowa/article/takeaction/resourcecenter/238.html accessed on 15 May 2010.
240 Submission by the Coalition of Malaysian NGOs (COMANGO) in the UPR Process, February 2009
www.wao.org.my/Documents/COMANGO-Final.pdf accessed on 26 May 2010.
241 “Transsexual: I Was Treated Like A Hardcore Criminal,” Malaysiankini, August 10, 2007.
http://www.malaysiakini.com/news/70572 accessed on 20 May 2010
242 Mark Colvin, “Anwar Ibrahim Freed after Sodomy Sentence Overturned”, Australian Broadcasting Corporation, 2
September, 2004, http://www.abc.net.au/pm/content/2004/s1190999.htm accessed on 15 May 2010.
243 “Anwar Seeks Privacy Provision in Malaysia Gay Laws”, International Herald Tribune, dated 11 November 2004,
http://www.sodomylaws.org/world/malaysia/mynews068.htm accessed on 15 May 2009.
244 “No Homosexuals in Malaysian Navy, says Chief”, Today, 25 February, 2005,
www.glapn.org/sodomylaws/world/malaysia/mynews072.htm, accessed on 17 May 2010.
245 “Malaysia Won’t Welcome Gay Officials”, The Advocate, November, 2001,
http://www.sodomylaws.org/world/malaysia/mynews054.htm, 17 May 2010 accessed on 15 May 2010.
246 S. Kanaraju, “Former PM says gays should not rule mostly Muslim Malaysia”, The Advocate, 9 January, 2007,
http://www.advocate.com/article.aspx?id=38649, accessed on 15 May 2010.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                     53
As a consequence, societal acceptance and tolerance of homosexuality is low, and LGBT
individuals have to contend with societal stigma and discrimination, which is often justified by
citing religious values.247 Homosexuals and the trans-gendered are routinely harassed and
persecuted.248 There have been a number of police raids on known gay businesses and
events, which often arise as a consequence of complaints filed by members of the public,
and sometimes from business operators themselves.249

During the UPR review process in response to questions around discrimination pertaining to
discrimination based on sexual orientation, the Malaysian delegation noted that

        it was correct to say that currently the Malaysian Penal Code criminalized consensual
        and non consensual oral and anal sex. Such sexual conduct was not only against the
        tenets of Islam, which was is the religion of the Federation of Malaysia, but also the other
                                                                              250
        major religions in Malaysia such as the Christian and Buddhist faith.

The recommendations on decriminalisation of sexual orientation were thus rejected by
Malaysia.251

Changes in gender identity of an individual from that assigned at birth are not recognised by
Malaysian law, and Muslims are explicitly prohibited from changing their gender under
Shari’ah law. In 1983, the Conference of Rulers in Malaysia decided that a fatwa prohibiting
sex change operations should be imposed on all Muslims, with the exception of
hermaphrodites. Cross-dressing is also prohibited. Thus, Muslim mak nyahs (male to female
transsexuals) are considered to violate the tenets of Islam, and are consequently non-entities
in Malaysian society. They could be charged in under Shari’ah law for violating the tenets of
Islam.252 In October 2008, the Malaysian National Fatwa Council passed an additional fatwa
dealing with ‘tomboys’. Such developments have severely limited the social acceptance of
transgender persons and have increased discrimination against them.253 Besides problems
getting employment, they are teased and called derogatory names, have problems renting,
accessing financial services and adopting children.254

Non-Muslim mak nyahs who are non-Muslim are not covered by Shari’ah law. They may
however be caught by the police for cross-dressing, and charged with indecent behaviour
under section 21 of the Minor Offences Act 1955.255



247 J.J. Ray, “Stigma Persists for Gay Community”, Malaysiakini, 24 January, 2005,
http://www.glapn.org/sodomylaws/world/malaysia/myeditorials002.htm accessed on 17 May, 2010.
248 Submission by the Coalition of Malaysian NGOs (COMANGO) in the UPR Process, February 2009
www.wao.org.my/Documents/COMANGO-Final.pdf accessed on 26 May 2010. A study conducted by Dr. Teh Yik Koon in 2001
of over 500 male-to-female trans-sexual community members showed that about 50% of the interviewees had been arrested by
the police at least once, and at least five% had been arrested ten times or more.
249 Email exchange with Malaysian rights activist Angela Kuga Thas, 26 May 2010.
250 Report of the Working Group on the Universal Periodic Review Malaysia, A/HRC/11/30,
http://www.upr-info.org/-Malaysia-.html accessed on 20 May 2010.
251 Responses to Recommendations, Malaysia, Ibid.
252 Ibid.
253 “In Malaysia, fatwa condemns tomboys,” Asia News.it, 24 October 2008,
http://www.asianews.it/index.php?l=en&art=13569&size=A accessed on 24 May 2010. The fatwa states: “Women who have the
appearance, mannerisms and sexual orientation similar to men are haram in Islam. We urge parents and the Muslim community
to pay serious attention to this problem. Emphasis should be on teaching and guiding young girls, especially on the aspects of
their clothing, behaviour and appearance, so that this problem may be avoided because it runs counter to their fitrah [the innate
natural sexual inclination that each human is born with and which does not change. In Islam, if a person is born male, he is
masculine and is sexually attracted to women; and if a person is born female, she is feminine and sexually attracted to men] and
Allah’s way.”
254 903346 [2010] RRTA 41 (5 February 2010), http://www.austlii.edu.au/cgibin/sinodisp/au/cases/cth/rrt/2010/41.html
accessed on 27 May 2010.
255 903346 [2010] RRTA 41 (5 February 2010), http://www.austlii.edu.au/cgibin/sinodisp/au/cases/cth/rrt/2010/41.html
accessed on 27 May 2010.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                        54
The mak nyahs who have had a sex change operation cannot change their names and
gender on their national identity cards to that of females. They may add their new female
names beside their original ones on their identity cards, but their gender remains the same.
The lack of a genuine, official gender status creates problems for them; they cannot
purchase health insurance because they have female organs, while their identity cards state
that they are males. They also have problems at the immigration as they look female, but
their documentation states that they are male. Transgender persons find it difficult to get
suitable work and are unable to go to school or places of higher learning or avail themselves
of housing opportunities without fear of persecution. The impact has negatively affected the
quality of life of this community.256 The judiciary, while recognising the problem, has
expressed its inability to rectify the same, stating that it was a matter for Parliament. 257
Attempts to get suitable legislation passed have remained stalled in Parliament.258

The issue of LGBT rights seems to be tied in to the wider human rights situation in Malaysia.
The United Nations Special Rapporteur of the Commission of Human Rights and other
officials have expressed concern over the prosecution of human rights defenders in Malaysia
and the general lack of respect for rights to freedom of opinion and expression and the right
and responsibility to defend human rights.259



Maldives
Maldives is a party to the ICCPR, ICESCR, CAT, CERD, CEDAW, CRC and CRPD.

The Maldives Constitution includes a chapter on Fundamental Rights. Those of relevance to
LGBT persons are:

        Article 17: (a) Everyone is entitled to the rights and freedoms included in this Chapter
        without discrimination of any kind, including race, national origin, colour, sex, age, mental
        or physical disability, political or other opinion, property, birth or other status, or native
        island.

        Article 20: Every individual is equal before and under the law, and has the right to the
        equal protection and equal benefit of the law.

        Article 21: Everyone has the right to life, liberty and security of the person, and the right
        not be deprived thereof to any extent except pursuant to a law made in accordance with
        Article 16 of this Constitution.




256 Liau Y-Sing, “Malaysia’s Muslim Transsexuals Battle Sex Change Woes”, Reuters, 2 September, 2007,
http://www.reuters.com/article/idUSKLR29014720070903 (accessed on 12 May 2010) See Also 903346 [2010] RRTA 41 (5
February 2010),
http://www.austlii.edu.au/cgibin/sinodisp/au/cases/cth/rrt/2010/41.html (accessed on 27 May 2010)
257 Wong Chiou Yong v. Pendaftar Besar, [2005] 1 CLJ 622. The High Court stated that “Although the applicant and the
transsexuals cannot be left to live in legal limbo but however the remedy for registration as to their current gender is with
Parliament and not the courts as any fact changed in the registration of transsexuals must be introduced by Act of Parliament
and cannot probably be made by judicial pronouncement”, thereby adopting a hands-off approach to the issue instead of playing
a proactive role in granting rights to deprived classes of citizens, in sharp contrast to the general norm with courts around the
world.
258 Jeffrey Jessie, “Recognising Transsexuals”, The Malaysian Bar, dated 17 February 2005,
http://www.malaysianbar.org.my/gender_issues/jeffrey_jessie_recognising_transexuals_by_honey_tan_lay_ean.html (accessed
on 17 May 2010)
259 “United Nations Human Rights Experts express concern over the conviction of human rights defender in Malaysia”, United
Nations: Office of the High Commissioner for Human Rights, press release,
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=5693&LangID=E accessed on 30 April 2010.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                        55
       Article 24: Everyone has the right to respect for his private and family life, his home and
       his private communications. Every person must respect these rights with respect to
       others.

However what serves as a potential limiting clause on the rights and liberties conferred by
the Maldivian Constitution is the mandate under Article 10.

       (a) The religion of the State of the Maldives is Islam. Islam shall be the one of the basis of
       all the laws of the Maldives

       (b) No law contrary to any tenet of Islam shall be enacted in the Maldives

The fact that fundamental rights are subject to the tenets of Islam is made explicit in Article
16 which states:

       Article 16: (a) This Constitution guarantees to all persons, in a manner that is not contrary
       to any tenet of Islam, the rights and freedoms contained within this Chapter, subject only
       to such reasonable limits prescribed by a law enacted by the People’s Majlis in a manner
       that is not contrary to this Constitution.

Further limitations are expressly enacted in the Constitution in terms of Article 19 and 27:

       A citizen is free to engage in any conduct or activity that is not expressly prohibited by
       Islamic Shari’ah or by law. No control or restraint may be exercised against any person
       unless it is expressly authorised by law.

       Article 27: Everyone has the right to freedom of thought and the freedom to communicate
       opinions and expression in a manner that is not contrary to any tenet of Islam.

These limitation have potentially adverse consequences for LGBT persons because of
arguments that homosexuality is against the ‘tenets of Islam’.

Notably, the right to equality (Article 26 of the ICCPR), the right against non discrimination
(Article 2 of the ICCPR) and the right to privacy (Article 17 of the ICCPR) do not envisage
any limitations in their scheme. As such Article 16(a) of the Maldivian Constitution may
conflict with Articles 2, 26 and 17 of the ICCPR.

The limitations in the Constitutional scheme when it comes to protecting LGBT persons are
further exacerbated in provisions of the criminal law. Sexual acts between men and between
women are prohibited by Shari’ah law applicable in Maldives alongside civil law, but with
penalties decided by Shari’ah courts. For men the punishment is banishment for nine months
to one year or a whipping of 10 to 30 strokes, while the punishment for women is house
arrest for nine months to one year.260 There have been reports of women being sentenced to
a whipping for lesbian acts.261

The fragility of the guarantee of rights when it comes to LGBT persons is further underlined
in the recently reported incident, wherein the Islamic Affairs Ministry asked the Ministry of
Tourism and Arts to take steps against Minivan News website for publishing a letter about
legalizing homosexuality on its website. Mohamed Shaheem Ali Saeed, State Minister for the
Islamic Ministry, is reported to have said that even foreigners have to respect our religion and
that otherwise they should not be given the opportunity to stay in the country. The letter


260 http://www.state.gov/g/drl/rls/hrrpt/2005/61708.htm accessed on 28 April 2010.
261 Daniel Ottosson, State Sponsored Homophobia, ILGA, 2007,
http://ilga.org/Statehomophobia/State_sponsored_homophobia_ILGA_07.pdf accessed on 27 April 2010.
Also see http://minivannews.com/society/2009/12/07/six-men-and-an-imam-arrested-for-homosexual-activity/ accessed on 27
April 2010 for an incident of the arrest of homosexuals under penal provisions.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                              56
published on Minivan News website was from an anonymous source and addressed to the
editor. The letter said that the biggest reason homosexuality was not accepted in Maldivian
society was because it was a Muslim country.262

It should be noted that there are no provisions in the Maldivian law which allow for
recognition of a third gender or for changes to gender.



Mongolia
Mongolia is a party to the ICCPR, ICESCR, CAT, CERD, CEDAW, CRC and CRPD.

The provisions of the Mongolian Constitution relevant to human rights concern around sexual
orientation and gender identity are:

       Article 14
       All persons lawfully residing within Mongolia are equal before the law and the courts.
       (2) No person may be discriminated on the basis of ethnic origin, language, race, age,
       sex, social origin or status, property, occupation or post, religion, opinion, or education.
       Everyone is a person before the law.

       Article 16
       The citizens of Mongolia are enjoying the following rights and freedoms:
       13) The right to personal liberty and safety. No one may be searched, arrested, detained,
       persecuted, or restricted of liberty save in accordance with procedures and on grounds
       determined by law. No one may be subjected to torture, inhuman, cruel, or degrading
       treatment. Where a person is arrested his or her family and counsel shall be notified
       within a period of time established by law of the reasons for the arrest. Privacy of citizens,
       their families, correspondence, and homes, are protected by law.
       16) Freedom of thought, opinion, expression, speech, press, and peaceful assembly.
       Procedures for organizing demonstrations and other assemblies are determined by law.

It should be noted that these provisions have yet to be applied in the context of sexual
orientation or gender identity.

Until 2002, section 112 of the Mongolian Penal Code effectively prohibited same sex sexual
conduct through the crime of ‘satisfaction of sexual desire in unnatural manner’. In 2002,
amendments effectively removed this provision but they were reinstated in 2008.263 The
provision now reads:

       Section 125.Unnatural satisfaction of sexual desire

       125.1. Imprisonment of two to five years will be the punishment for satisfying the sexual
       desire in unnatural way through using force, or through threatening to use force, or
       through using the inability of the victim to self-defend and through the abuse of the victim.

       125.2. Imprisonment of five to ten years will be the punishment for the repeat offence, for
       committing the crime by many, for the heavy damages because of the crime or for the
       crime committed against a minor.




262 www.haveeru.com.mv/english/details/28209/Islamic_Affairs_Ministry_seeking_legal_action_againstMinivan_News_website
accessed on 28 April 2010.
263 The 2008 amendments have not yet been translated into English. Personal Communication by email from Anaaraa
Nyamdorj, who is with the LGBT Center, Mongolia.



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While the High Court of Mongolia interpreted ‘unnatural way’ to be restricted to situations of
force, the gay male community still reports instances of police harassment and arbitrary
detention with the police quoting this “unnatural ways” section:

        Testimonies gathered from the Mongolian LGBT community suggest widespread and
        pervasive harassment and persecution of LGBT persons by the General Police
        Department and the General Intelligence Agency. This includes covert surveillance of
        known LGBT persons, keeping files on known LGBT persons, monitoring LGBT social
        events and photographing/filming those in attendance, phone-tapping, arbitrary arrests,
        intimidation, threats, and physical and sexual assaults on LGBT persons while in
                264
        custody .

Activists have contended that:

        There is nothing in the way of comprehensive documented evidence to support the
        negative experiences of Mongolia’s LBT persons, and thus most evidence is anecdotal,
        as told to other members of the LBT community and as reported to organisations like the
        now-defunct Mongolian Lesbian Information Centre. Indeed, it could be argued that the
        lack of such documentation itself points to the extent of the violence and social
        intolerance towards LBT persons, whereby the victims themselves are unable to report
        crimes against them as they are unwilling to disclose the grounds on which they were
                  265
        attacked.

The struggle of the Mongolian LGBT Center to get registration as an LGBT organisation is
indicative of the degree of social intolerance and how it can affect the ability of LGBT
persons to access rights under the Mongolian Constitution:

        The submitting NGO, the Mongolian LGBT Centre, first filed for registration as a non-
        governmental organisation with a mandate to work for the human and civil rights of LGBT
        persons in Mongolia with the Ministry of Justice and Home Affairs in February 2007.
        However the application was not received because of the NGO’s name, LGBT Centre.
        The refusal to accept the documentation was verbally explained to be because the words
        ‘lesbian,’ ‘gay,’ ‘bisexual’ and ‘transgender’ were not Mongolian and needed to be
        approved by the Linguistics Institute of the Mongolian Academy of Sciences, despite the
        submission of a letter together with the documentation that ‘lesbian,’ ‘gay,’ ‘bisexual’ and
        ‘transgender’ were internationally accepted terminology. The LGBT Centre again applied
        for registration in early 2009, at which time the registration of NGOs was no longer under
        the mandate of the Ministry of Justice and Home Affairs but with the Legal Entities
        Registration Authority. The LERA officially denied the NGO’s registration on 23 June
        2009 in a letter that said: ‘The name “Lesbian, Gay, Bisexual and Transgender Centre”
        has a meaning that conflicts with Mongolian customs and traditions and has the potential
        to set the wrong example for youth and adolescents.’ The LGBT Centre was eventually
        registered on December 16, 2009, after interventions from the Office of the President of
                                                                             266
        Mongolia and the National Human Rights Commission of Mongolia.

Documentation by the LGBT Centre, including a recent film called the Lies of Liberty in 2009,
show that discrimination based on sexual orientation is endemic in Mongolia, extending to
the public, private and non-governmental sectors and encompassing media, police and
judiciary, health care services, education and housing sector. The emergence of ultra
nationalist groups with a racist and hetero-normative agenda that operate like an army has
become one of the gravest problems for LGBT persons and activism in Mongolia,


264 Email communication from Anaara Nyamdorj a LGBT rights activist from Mongolia working with the Mongolian LGBT Centre
NGO. Report on Mongolia – Ninth Round of the Universal Periodic Review (2010), Mongolian LGBT Centre and the Sexual
Rights Initiative.
265 Report on Mongolia – Ninth Round of the Universal Periodic Review (2010) Mongolian LGBT Centre NGO and the Sexual
Rights Initiative.
266 Ibid.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                               58
endangering the lives of those who speak up for LGBT rights. The recent attack on the three
members of the LGBT centre for making the film “Lies of Liberty” shows that these groups
function with a degree of impunity.267 There is an absence of any public discourse regarding
concerns of rights violation on grounds of gender identity.

Mongolian law makes no provision for transition from one gender to another and does not
recognize sex reassignment.



Nepal
Nepal is a party to the ICCPR, ICESCR, CAT, CERD, CEDAW, CRC and CRPD. The
judiciary specifically recognises international law, once ratified as part of domestic law and
often references international law as part of domestic law in its judgments.

Nepal is governed under the Interim Constitution of Nepal, 2007 and the Constitution has a
Chapter on Fundamental Rights. The two relevant articles from the point of view of LGBT
persons are

       Article 12: Right to freedom
       (1) Every person shall have the right to live with dignity, and no law which provides for
       capital punishment shall be made.
       (2) Except as provided for by law no person shall be deprived of his/her personal liberty.
       (3) Every citizen shall have the following freedoms
       (a) Freedom of opinion and expression;
       (b) Freedom to assemble peaceably and without arms;
       (c) Freedom to form political party;
       (d) Freedom to form unions and associations;
       (e) Freedom to move and reside in any part of Nepal; and
       (f) Freedom to engage in any occupation or be engaged in employment, industry and
       trade.

       Article 13: Right to equality
       (1) All citizens shall be equal before the law. No person shall be denied the equal
       protection of the laws.
       (2) There shall be no discrimination against any citizen in the application of general laws
       on grounds of religion, race, gender, caste, tribe, origin, language or ideological
       conviction or any of these.

The most important advance to protecting LGBT rights in Nepal has been the judgment in
Sunil Babu Pant and Others vs. Nepal Government and others.268

Prior to this judgement same sex sexual conduct between consenting adults was arguably
covered under criminal provisions dealing with “unnatural sex”. The said provision in Part 4,
Chapter 16 of Nepal’s Country Code reads:



267 Sylvia Tan, “Mongolia’s LGBTs face Hate Crimes and Discrimination”, Fridae.Com,
http://www.fridae.com/newsfeatures/2010/07/08/10121.mongolias-lgbts-face-hate-crimes-and-discrimination?n=sec, (accessed
on 12 July 2010).
268 Accessed on 26 April 2010.



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              “Sex with animals
              No 1: No one may penetrate an animal or make an animal penetrate him/her or may do
              or make another person do any kind of unnatural sex.
              No 2: If someone penetrates a cow among female animals one may be sentenced to two
              years jail and if not the cow then one year jail or 500 Nrs fine.
              No 3: If a woman makes an animal penetrate her, she may be sentenced to one-year jail
              or 500 Nrs fine.
              No 4: In this chapter, not mentioned in other sections, anyone who does or makes
              someone practice unnatural sex may be sentenced to one-year jail or 5000 Nrs fine.
              No 5: All the cases related to the law written in this chapter need to be reported within
                                                 269
              one year of the act taking place.”

The judgment in Sunil Babu Pant invokes provisions of the Nepali Constitution including
Article 12 and Article 13 as well as references to a range of provisions of international law.
The Court particularly referenced Articles 10 and Articles 17 of the ICESR, Articles 2, 16, 17
and 23 of the ICCPR and also references the Yogyakarta Principles on Sexual Orientation
and Gender Identity, with the potential for clause 4 of the law pertaining to unnatural sex
being used to target LGBT persons. The judges observed that,

              The right to privacy is a fundamental right of an individual. The issue of sexual activity
              falls under the definition of privacy. No one has the right to question how do two adults
              perform the sexual intercourse and whether this intercourse is natural or unnatural. In the
              way the right to privacy is secured to two heterosexual individuals in sexual intercourse, it
              is equally secured to the people of third gender who have different gender identity and
              sexual orientation. In such a situation, therefore, gender identity and sexual orientation of
              the third gender and homosexuals cannot be ignored by treating the sexual intercourse
                                           270
              among them as unnatural.’

The Sunil Babu Pant judgement like the Naz judgment invokes the principle of inclusivity of
the nation. The judges noting:

              All human beings including the child, the aged, women, men, disabled, incapacitated,
              third genders etc. are Nepali citizens. All the territory of this country including all citizens
              collectively constitutes the nation. The third genders among the population are also part
                                                      271
              of the Nepalese population as a whole.

The judgment goes on to assert that:

              Thus, the people other than ‘men’ and ‘women’ including the people of ‘third gender’
              cannot be discriminated on the ground of sexual orientation. The State should recognize
              the existence of all natural persons including the people of third gender other than the
              men and women. And it cannot deprive the people of third gender from enjoying the
                                                                           272
              fundamental rights provided by Part III of the Constitution.

In a sweeping conclusion, the judges note that:

              If any legal provisions exist that restrict the people of third gender from enjoying
              fundamental rights and other human rights provided by Part III of the Constitution and


269
    Nepal’s Muluki Ain (or Country Code), includes criminal law provisions and creates an offence of ‘unnatural’sexual
intercourse. Ref. http://www.iglhrc.org/binary-data/ATTACHMENT/file/000/000/111-1.pdf accessed on 24 April 2010.
270
   Sunil Babu Pant and others v. Nepal Government and others, http://www.gaylawnet.com/laws/cases/PantvNepal.pdf
accessed on 26 April 2010.
271
   Sunil Babu Pant and others v. Nepal Government and others, http://www.gaylawnet.com/laws/cases/PantvNepal.pdf
accessed on 26 April 2010.
272
      Ibid.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                             60
            international conventions relating to the human rights which Nepal has already ratified
            and applied as national laws, with their own identity, such provisions shall be considered
            as arbitrary, unreasonable and discriminatory. Similarly, the action of the state that
            enforces such laws shall also be considered as arbitrary, unreasonable and
                           273
            discriminatory .

While mandating that the state treat third gender people as full citizens in all aspects, the
Nepali Court makes another important recommendation with respect to same sex marriage.
The Court in particular invokes Article 10 and 23 of ICESCR to make the case that LGBT
people have the right to found a family through forming relationships which are recognised as
marriage.

The Court notes that,

            Another claim of the petitioners pertains to the protection of the fundamental right of the
            lesbians, gays and bisexual people by the state though appropriate legal provisions
            which, by granting them legal and social recognition from the state and society on the
            basis of their sexual orientation, ensures a life of freedom as other heterosexual people
            have. In reality, this claim is specific in regard to the issue of same sex marriage or co-
            habitation of such couple. Looking at the issue of same sex marriage, we hold that it is an
            inherent right of an adult to have marital relation with another adult with her/his free
            consent and according to her/his will. The same sex marriage should be viewed from the
            view point of interest and rights of the concerned people as well as that of the society,
            family and all others. It seems appropriate to reach a conclusion after studying the legal
            provisions and practices of other countries regarding gay and lesbian marriage . . . The
            Government of Nepal has hereby been directed to form a committee as mentioned below
                                                                              274
            in order to undertake the study on over all issues in this regard .

While the decision has definitely changed the public mood and climate in Nepal, in terms of
acceptance of Nepali third gender people there still is a long way to go in terms of effective
implementation of the far reaching judgement of the Nepal Supreme Court.

As Sunil Babu Pant himself noted,

            ‘In many districts many third genders are denied Citizenship ID as the officer tells us: “We
            can only issue Citizenship ID to men and women and you are neither man nor woman but
            third genders and we have no authority from the home ministry to issue citizenship ID to
            third genders”. As a result many third genders remain without any recognition as a citizen
                      275
            of Nepal.’

Despite the Home Ministry’s reluctance to implement the Supreme Court ruling to issue
citizenship IDs to third genders, five citizenship IDs have been issued at the District level
denoting applicants as ‘third genders’, the district officials indicating that Supreme Court
orders would be followed as law.276

While there is a history of violence and in some extreme cases, murder of transgender
persons (metis) in Nepal, incidents of violence have reduced dramatically.277 Civil society
organisations like the Blue Diamond Society have been advocating the rights of metis and


273
      Id.
274 Sunil Babu Pant and others v. Nepal Government and others, http://www.gaylawnet.com/laws/cases/PantvNepal.pdf
accessed on 26 April 2010.
275 http://www.iglhrc.org/cgi-bin/iowa/article/takeaction/partners/234.html accessed on 28 April 2010.
276 Email exchange with Sunil Babu Pant, 25 May 2010.
277 ILGA Asia, “Homophobic Violence in Nepal”, http://ilga.org/ilga/en/article/288 accessed on 21 May 2010. See also Human
Rights Watch. “Nepal Police on Sexual Cleansing Drive”, http://www.hrw.org/english/docs/2006/01/12/nepal12422.htm
accessed on 21 May 2010.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                 61
attempting to tackle issues through advocacy and enforcement of recent case law. The first
Maoist government (2007) made provisions for a support programme for the country’s sexual
and gender minorities in the country’s budget.278

The nomination of Sunil Babu Pant as Nepal’s first openly gay Member of Parliament is also
a remarkable development. Mr. Pant was nominated by the Communist Party (United) (CPN-
U), which has five members in the 601-seat Nepal Assembly.

Lesbians and female-to-male transgenders in the Nepali Army report facing discrimination,
as a result of which many live in fear. In July 2007, two soldiers were kept in solitary
confinement on the suspicion of being lesbians. They were subsequently court marshalled on
the basis of ‘lacking discipline’. In a similar case in 2008, a member of the armed forces was
transferred from Nagarkot Army post (North-east hills of Kathmandu valley) to Surketh (mid
west region in Nepal) on the suspicion of being a lesbian. In May 2010, another member was
transferred from Dang-Post to Surkhet-Post for similar reasons.279



New Zealand
New Zealand is a party to the ICCPR, ICESCR, CAT, CERD, CEDAW, CRC and CRPD.

New Zealand’s Constitution is not codified in one document: It comprises a collection of
Statutes, Treaties, Judicial pronouncements, Letters Patent and unwritten Constitutional
Provisions. The New Zealand Bill of Rights Act, 1990 sets out the fundamental rights and
freedoms of citizens. Relevant amongst these for LGBT persons are:

       Section 14: Freedom of expression
       Everyone has the right to freedom of expression, including the freedom to seek, receive,
       and impart information and opinions of any kind in any form.

       Section 19: Freedom from discrimination
       (1) Everyone has the right to freedom from discrimination on the grounds of
                                                     280
       discrimination in the Human Rights Act, 1993.
       (2) Measures taken in good faith for the purpose of assisting or advancing persons or
       groups of persons disadvantaged because of discrimination that is unlawful by virtue of
       Part 2 of the Human Rights Act, 1993 do not constitute discrimination.

In 1893, the colonial (British) anti-sodomy law was broadened to outlaw any sexual activity
among men.281 The first major change in law came with the Homosexual Law Reform Bill,
introduced as a private members bill in March 1986.282 The introduction sparked a national
debate with strong lobbying for and against the Bill. The Bill had two substantive sections.
The first dealt with the decriminalisation of sexual offences between men as well as the
decriminalisation of consensual heterosexual anal intercourse, while providing protection for
minors of both sexes. The second part proposed to make it illegal to discriminate on the
grounds of sexual orientation in the areas of employment, accommodation and the supply of



278 Nepal’s Gay MP Crusades for India’s Sexual Minorities, http://www.thaindian.com/newsportal/south-asia/nepals-gay-mp-
crusades-for-indias-sexual-minorities_100116549.html accessed on 21 May 2010.
279 Email exchange with Sunil Babu Pant, 31 May 2010.
280 This Act in turn contains an entire section on unlawful discrimination. Prohibited grounds of discrimination include
orientation under Article 21.
281 http://www.nzhistory.net.nz/culture/homosexual-law-reform/reforming-the-law, accessed on 20 May 2010.
282 See Generally Laurie Guy, Worlds in Collision: The Gay Debate in New Zealand, 1960–1986, Victoria University Press,
Wellington, 2002.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                               62
goods and services.283 The first part of the proposed bill was passed and consequently on
August 8, 1986, the Homosexual Law Reform Act 1986 replaced relevant provisions in the
Crimes Act 1961.284 The Bill retained the age of consent for homosexual acts at 16, the same
age as for heterosexual sex.285 However, the second part of the Bill, which would have
outlawed discrimination against homosexuality, was rejected. Opponents of the Bill based
their arguments on moral and religious grounds.

Between 2005 and 2009, Lesbian, gay and bisexual persons raised with the Human Rights
Commission more than 270 human rights issues. The major areas of complaint related to
discrimination included safety in schools (including bullying), lack of official sexual orientation
data, the inability of same sex couples to legally adopt or marry, and the situation of gay and
lesbian clergy.286


Anti-Discrimination Legislation
In 1993 the Human Rights Act was passed. This law outlaws discrimination on grounds of
sexual orientation, defined as heterosexual, homosexual, bisexual or lesbian orientation.287
The Act set up the New Zealand Human Rights Commission, giving it powers to tackle
complaints of discrimination.288

The Property (Relationships) Amendment Act 2001 substantively amended the Matrimonial
Property Act 1976 and renamed it the Property (Relationships) Act 1976. The Amendment
Act provided that de facto couples, whether opposite or same sex, the same property rights
as existed since 1976 for married couples on the break-up of a relationship.

Same sex marriage is not permitted under the Marriage Act 1955, which has been
interpreted by the New Zealand Court of Appeal as prohibiting marriages of two persons of
the same sex.289 However, the passing of the Civil Union Act 2004 established the institution
of civil unions for same-sex and opposite-sex couples. The Act is very similar to the Marriage
Act with “marriage” replaced by “civil union”.290

Since 2004, 1876 civil unions have been registered. In 2009, 312 civil unions were registered
with 78 per cent being same sex unions. The Civil Unions Recognised Overseas
Relationships Regulations 2005 recognise civil unions registered in Finland, Germany, the



283 http://www.nzhistory.net.nz/culture/homosexual-law-reform/reforming-the-law accessed on 27 May 2010.
284 http://www.globalgayz.com/country/New%20Zealand/view/NZL/gay-new-zealand accessed on 20 May 2010.
285 The Homosexual Law Reform Act, (Public Act 1986 No 33), www.austlii.edu.au/nz/legis/consol_act/hlra1986246.pdf
accessed on 17 May 2010.
286 Interview with Commissioner Joy Liddicoat, New Zealand Human Rights Commission, August 2010.
287 Section 21 (1) (m), http://www.legislation.govt.nz/act/public/1993/0082/latest/DLM304475.html#DLM304475, accessed on
27 May 2010.
288 www.hrc.co.nz/home/hrc/humanrightsenvironment/aboutthehumanrightscommission/aboutthehumanrightscommission.php
accessed on 27 May 2010.
289 Quilter v Attorney-General. [1998] 1 NZLR 523. The Court of Appeal held that the Marriage Act 1955 applies to marriage
between a man and a woman only and that this does not constitute discrimination. In 1998, two lesbian couples from New
Zealand challenged the decision of the Registrar of Births, Deaths and Marriages rejecting their application for a marriage
license under the Marriage Act of 1955, before the UN Human Rights Committee. The couples had unsuccessfully challenged
their order before the High Court and the Court of Appeal. The couples argued before the UN Human Rights Committee that the
failure of the Marriage Act to recognise homosexual marriage amounted to discrimination under Article 26 of the ICCPR, and
discriminated against them directly on the basis of sex, and indirectly on the basis of sexual orientation. They also claimed a
violation of their right to dignity under Article 16 and a violation of their right to family and privacy under Article 17. They also
claimed a violation under Article 2 read with Article 23 that required recognition of families to take place in a non-discriminatory
manner. After considering the matter, the Committee held in 2000, that the rejection of the claim of the two couples did not
amount to discrimination. Joslin v New Zealand, Communication No. 902/1999, 17 July 2002, CCPR/C/75/D/902/1999, Avaiable
at: www.bayefsky.com/pdf/newzealand_t5_iccpr_902_1999.pdf accessed on 15 June, 2010.
290
      xxx



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                            63
United Kingdom, New Jersey and Vermont (U.S.A.). In 2009, 58 such civil unions were
recognised.291

Notwithstanding these developments, there have been attempts to curtail the rights of same
sex couples. In 2005, the Marriage (Gender Identity) Bill was introduced into Parliament.
The private members bill sought to add a provision to the Marriage Act, 1955, clarifying that
marriage means a union between a man and a woman and not between two persons of the
same sex. The Bill also sought to amend the New Zealand Bill of Rights Act to specify that
measures taken in good faith for the purposes of assisting or advancing marriage do not
constitute discrimination. The Bill was defeated in its first reading by 73 votes to 47.292

In 2005, the Relationships (Statutory References) Act was passed giving the same legal
rights and responsibilities to married, de facto (whether opposite or same sex), and civil
union relationships.293 However, the Act did not allow for same sex adoption which continues
to be governed by the New Zealand Adoption Act, 1955.294 Many preliminary New Zealand
Law Commission Reports and white papers have raised the issue already,295 and Metiria
Turei, a Green Party of New Zealand List MP raised the issue in late May 2006. 296 Family
Court acting head judge Paul von Dadelszen has made a call for gay, lesbian and unmarried
couples to be allowed to adopt children. This proposal has been opposed by a group of
Catholic Bishops in New Zealand.297

The Adoption Act, 2005 provides that “two spouses” (without mention of their sexual
orientation) are eligible to adopt in New Zealand. The Act did not explicitly allow for same sex
couples to make joint applications to adopt, a matter which continues to be governed by the
Adoption Act 1955. In June 2010, the High Court had to consider whether the expression
‘spouses’ in section 3 of the Adoption Act, 1955, could include a man and a women who
were unmarried but in a stable and committed relationship. The Court held that reading
“spouses” to mean only married couples could adopt appeared to discriminate against other
types of relationships that were commonplace in New Zealand. However, the Court limited its
consideration of the issue to heterosexual opposite sex couples as the applicants in that
particular case were such a couple.298 Subsequent cases have affirmed the broader
interpretation of spouses to cover ‘de facto couples.299

New Zealand case law reinforces the fact that the sexual orientation of parents is immaterial
when it comes to custody cases. The determining issues are good parenting and the best
interests of the child. Similar case law does not exist when it comes to transgender and
intersex children. Complaints received by the Human Rights Commission indicate that


291 Interview with Commissioner Joy Liddicoat, New Zealand Human Rights Commission, August 2010.
292 Interview with Commissioner Joy Liddicoat, New Zealand Human Rights Commission, August 2010.
293 http://www.justice.govt.nz/publications/global-publications/c/civil-union-bill-relationships-statutory-references-bill/
relationships-statutory-references-bill accessed on 26 May 2010.
294 http://www.legislation.govt.nz/act/public/1955/0093/latest/DLM292661.html accessed on 24 May 2010.
295 See for instance, http://www.lawcom.govt.nz/UploadFiles/Publications/Publication_72_144_R65.pdf accessed on 27 May
2010.
296 http://www.stuff.co.nz/national/politics/2770562/Open-adoption-to-gay-lesbian-and-unmarried-couples-judge accessed on
20 May 2010. See also http://www.pinknews.co.uk/news/articles/2005-1944.html/ accessed on 26 May 2010.
297 ‘Call to Widen Adoption Rules’, http://www.stuff.co.nz/national/politics/2770562/Open-adoption-to-gay-lesbian-and-
unmarried-couples-judge accessed on 26 May 2010. See also Family Judge Urges Adoption Rules for Gays, Otago Daily
Times, http://www.odt.co.nz/news/national/70613/family-judge-urges-adoption-rights-gays accessed on 26 May 2010.
298 In the matter of AMM and KJO (CIV 2010-485-328 HC 24 June 2010). Interview with Joy Liddicoat, New Zealand Human
Rights Commission, August 2010.
299 In Re Application by AMM and KJO, the High Court held that the word “spouses” in the Act (only spouses can make joint
applications for adoption) could be extended to de facto couples, in order to ensure a consistent reading with the New Zealand
Bill of Rights Act 1990. The High Court noted that under the current legislation, a civil union is not recognised as a basis for a
joint application. The High Court did not consider whether the term ‘spouses’ would encompass same-sex partners. Re
Application by AMM and KJO [2010] NZFLR 629 (HC).



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                         64
transgender parents can face significant barriers in Family Court hearings, including in expert
reports which suggest that children will be negatively impacted by their parent’s gender
identity. 300

Incidents of discrimination faced by homosexuals in New Zealand include the refusal by
sperm banks of donations from gay men. Heterosexual men may also prevent use of their
donations by lesbian women. However, this is slowly changing with one of the largest fertility
clinics in New Zealand having accepted donations from gay men. The service made the
changes after a gay man was barred from donating sperm and complained to the
organisation and the Human Rights Commission.301

In addition to these legal measures to ensure equal access to human rights, a Gay, Lesbian,
Bisexual, Transgender and Intersex policy desk has been established within the Ministry of
Social Development.302 The Royal New Zealand Navy and the Airforce are amongst many
government agencies to have undergone anti-homophobia training.303


Transgender and Intersex Rights
New Zealand occupies a pioneering place with respect to transgender and intersex rights
mainly because of a remarkable inquiry into transgender rights conducted by the New
Zealand Human Rights Commission.

The inquiry found that transgender people in New Zealand faced discrimination in relation to
employment, education, housing, access to goods and services, participation in sports,
access to public places and when interacting with the justice system. They also experienced
difficulties with public health services (including primary and secondary health services)
which included the quality of general health services and the availability of specific health
services related to gender reassignment services.304 Hence they found it difficult to legally
change their sex on a birth certificate and therefore have their gender identity recognised. In
addition, the inquiry found that they faced inappropriate, unnecessary or unauthorised
disclosure of information about their gender identity or sex.

Following the Inquiry, the Human Rights Commission released its report, “To Be Who I Am”
in May 2009. The report highlighted four main areas for immediate attention: increasing
participation of trans people in decisions that affect them, strengthening legal protections and
making discrimination against trans people unlawful, improving access to health services,
including gender reassignment services, and simplifying requirements for change of sex on a
birth certificate, passport and other documents.305

The Inquiry also attempted to shed light on perhaps the most marginalised of the LGBT
community, namely the intersex community. The report documented the silence and secrecy
that has marked this community, as well as the impact of surgical intervention (at times




300 Interview with Commissioner Joy Liddicoat, New Zealand Human Rights Commission, August 2010.
301 Danny McCoy, New Zealand Clinics Legalise Gay Sperm Donation, http://www.pinknews.co.uk/news/articles/2005-
779.html/ accessed on 25 May 2010.
302 New Zealand Human Rights Commission’s Work on Sexual Orientation and Gender Identity,
http://www.asiapacificforum.net/issues/sexual_orientation/downloads/apf-regional-workshop-may-2009/New_Zealand.doc
accessed on 27 May 2010.
303 http://www.hrc.co.nz/report/chapters/chapter20/hredu03.html accessed on 27 May 2010.
304 http://www.hrc.co.nz/home/hrc/humanrightsenvironment/actiononthetransgenderinquiry/faq.php accessed on 21 May 2010.
305 http://www.hrc.co.nz/home/hrc/humanrightsenvironment/actiononthetransgenderinquiry/resources/transgenderinquiry
summaryofsubmissions/transgenderinquirysummaryofsubmissions.php accessed on 21 May 2010.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                65
without consent). The Report suggests more light must be shed on the needs and issues of
this particular subsection of the LGBT community.306

The legal position of transgender persons in existing New Zealand law is that New Zealand
recognizes the rights of transgender people to change legal gender status. Transgender
people are able to obtain a passport that identifies their sex as corresponding to their gender
identity (regardless of whether the person has had gender reassignment surgery). This was
decided in the Re Michael case (June 2008 Family Court decision) which determined how
Section 28 of the Births, Deaths and Marriages Registration Act 1995 should be interpreted
and applied in future.307 In Re Michael, a transsexual man was able to obtain a declaration
that he is male based on expert medical evidence verifying the permanent impact of his
hormone treatment and chest surgery.

The Re Michael case clarifies the criteria for someone to obtain a Family Court declaration
changing their sex details. The Department of Internal Affairs has confirmed that someone
who has received such a declaration will be able to apply to have those sex details on their
passport. This updates the Passports Office’s previous policy, which required full gender
reassignment surgery before a transsexual woman could obtain a female passport or a
transsexual man could obtain a male passport.

However it has to be noted that the Human Rights Commission has recommended a change
from the physical conformity requirement as laid down in Re Michael with a standard that
states that the said person should have taken decisive steps to live fully and permanently in
the gender identity of the nominated sex.308

In 1994, the New Zealand High Court ruled that post-operative transsexuals could marry as
their new sex. This was laid down in the case of Attorney-General v Otahuhu Family Court309
The court found, as a matter of social justice and public policy, that if a transsexual has
willing undergone therapy and surgery to change his or her genitalia, then the law should
accept the gender re-assignment.310

In 2009, the Act was renamed the Births, Deaths, Marriages and Relationships Act 1955
(BDMRRA). Section 30 (2) of the BDMRRA prevents a transgender person who is already
married and who subsequently completes physical transition from changing sex details on
their birth certificate. The result is that the transgender person is effectively required to take
the preliminary step of dissolving their marriage or changing to a civil union. However, the
Department of Internal Affairs has clarified that if a married transgender person has a Family
Court declaration amending their sex details, this can be used to update those details on a
passport.311




306 Ibid.
307 Micheal v. Registrar-General of Births, Deaths and Marriages: judgement of Judge A J Fitzegerald: a declaration as to sex
(Family Court, Auckland 2009)
http://www.hrc.co.nz/home/hrc/humanrightsenvironment/actiononthetransgenderinquiry/actiononthetransgenderinquiry.php
accessed on 21 May 2010.
308 Id.
309 [1995] 1 NZLR 603
310 http://www.nswccl.org.au/unswccl/issues/transexual.php accessed on 20 May 2010.
311 M v. M [1991] NZFLR 337 and Attorney General v. Family Court at Olahuhu [1995] NZLR 603 Interview with Joy Liddicoat,
New Zealand Human Rights Commission, August 2010.



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In 2008, a Wellington Family Court has ruled that a birth certificate can be amended in the
case of an intersex person whose sex at birth should have been recorded as ‘indeterminate’
under the Births, Deaths and Marriages Registration Act 1951.312

There have been concerns that there is a lack of appropriate data about the status of sexual
minorities in New Zealand. In 2010, the absence of a sexual orientation question in the New
Zealand Health Survey resulted in submissions expressing concern at the lack of appropriate
data collection. The Status Report on Human Rights in New Zealand (2004) had noted that
the lack of official data collection, including a question on sexual orientation in the census,
was a serious impediment to progress and that sexual gender minorities experience
violations of their right to security and social limitations on their right to be who they are.313

The absence of sexual orientation in the census has also resulted in a complaint before the
Human Rights Commission under the Human Rights Act. Statistics New Zealand has
however, expressed concern that homophobia and discrimination may result in negative
reactions to a sexual orientation question, resulting in resistance to the question and
undermining the veracity of the data. In 2009, transgender persons raised their concerns with
Statistics New Zealand pointing out that the statistical standard for sex required them to
respond to questions based on their biological sex. The New Zealand Human Rights
Commission and some transgender persons also submitted a third category – ‘indeterminate’
– to be added to the standard. Currently, this is the option only of a limited number of
administrative data sets including the Department of Internal Affairs, Register of Births. The
classification of ‘indeterminate sex’ may also be added to death and civil union (but not
marriage) register entries.314


Refugee Law and Policy
New Zealand generally recognizes sexual orientation as a basis for asylum. Cases
recognizing sexual orientation as a basis for asylum suggest that ‘persecution’ may be found
as long as the consequences extend beyond ostracism and shunning.315 The Refugee Status
Appeals Authority (“RSAA”) points to the risk of losing one’s employment and the real chance
that the applicant will experience violence at the hands of police or vigilante groups as
examples of harm rising to the level of persecution.316 Indeed, Re RBJA suggests that even
the existence of laws prohibiting homosexual acts, if not enforced, may actually not amount
to persecution.317

In determining whether an applicant is part of a relevant group for Convention purposes, the
RSAA has taken the approach that homosexuals may be considered so, concluding in Re GJ
that “sexual orientation can, in an appropriate fact situation, be accepted as a basis for
finding a social group for the purposes of the Refugee Convention”.318

Although there do not seem to have been cases setting forth the opinion that homosexuals
could escape persecution in their country of origin by hiding their sexuality, in a 1997 case,
Re RBJA, the RSAA denied asylum to a Malaysian lesbian.319 Her claim was denied because


312 R. v. The Registrar General, Births, Deaths and Marriages (unreported, Wellington, October 2008) Interview with Joy
Liddicoat, New Zealand Human Rights Commission, August 2010.
313 Human Rights Commission (2004) Status Report on Human Rights in New Zealand Today, Wellington: Human Rights
Commission, Chapter 19, quoted in Interview with Joy Liddicoat, New Zealand Human Rights Commission, August 2010.
314 Interview with Commissioner Joy Liddicoat, New Zealand Human Rights Commission, August 2010.
315 Refugee Appeal # 76152, http://www.unhcr.org/refworld/docid/47bd93cf2.html, (accessed on 2 June 2010).
316 Ibid.
317 Re RBJA, Refugee Appeal # 2151/94, http://www.refugee.org.nz/rsaa/text/docs/2151-94.htm (accessed 2 June 2010).
318 Ibid.
319 Re RBJA, Refugee Appeal #2151/94, http://www.refugee.org.nz/rsaa/text/docs/2151-94.htm (accessed on 2 June 2010).



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                  67
no evidence of prosecutions for lesbianism was produced, despite statutory and Shari’a laws
prohibiting lesbian acts and because the RSAA opined that the applicant could simply
maintain the level of privacy with which she had always conducted herself without
persecution.320

However, in the 2003 case, Refugee Appeal # 74665, the RSAA stated that it is “difficult to
see what value human rights would have in any context if the individual was required to
surrender those rights in the face of discrimination”321 and calls the view that “voluntary but
protected action is identified as an issue relevant to the question of risk” as “erroneous.”322

However, questions remain as to the prospects of asylum for transgender applicants.
Documentation of transgender refugees thus far is sparse.323 The ICCPR and the Convention
prohibit discrimination on the basis of sex, but sexual orientation has been rooted in different
locations – either in “sex” or in “other status,”324 therefore it is unclear where “transgender”
might be placed conceptually.


Tokelau
Though the Pacific island of Tokelau is a part of New Zealand, homosexuality was only
legalized in Tokelau since 2007. Civil Unions are not recognized in Tokelau. The age of
consent in Tokelau is the same for homosexuals and heterosexuals.325



Palestine
The Palestinian National Authority has committed to ratifying all international human rights
instruments upon receiving statehood.

Article 10(2) of the Basic Law stipulates:

        The Palestinian National Authority shall work without delay to join regional and
        international declarations and covenants which protect human rights. The Palestinian
        Basic Law is to function as a temporary constitution for the Palestinian Authority until the
        establishment of an independent state and a permanent constitution for Palestine can be
        achieved. The Basic Law was passed by the Palestinian Legislative Council in 1997 and
                                                     326
        ratified by President Yasser Arafat in 2002.

Provisions in the basic law relevant to LGBT persons are:

        Article 9: Palestinians shall be equal before the law and the judiciary, without distinction
        based upon race, sex, color, religion, political views or disability.

        Article 10: Basic human rights and liberties shall be protected and respected. The
        Palestinian National Authority shall work without delay to become a party to regional and
        international declarations and covenants that protect human rights.



320 Ibid.
321 Refugee Appeal #74665, http://www.refugee.org.nz/Fulltext/74665-03.html, (accessed on 2 June 2010).
322 Ibid.
323 Bernard Lane, “Transsexual Who Feared Prison at Home Qualifies for Refugee Status”, The Australian, 3 March, 2010,
http://www.theaustralian.com.au/news/nation/transsexual-who-feared-prison-at-home-qualifies-for-refugee-status/story-e6frg6nf-
1225836280527 (accessed on 3 June 2010).
324 Re GJ, Refugee Appeal # 1312/93, http://www.refugee.org.nz/rsaa/text/docs/1312-93.htm (accessed 2 June 2010).
325 http://ilga.org/ilga/en/countries/TOKELAU/Articles accessed on 26 May 2010.
326 http://www.palestinianbasiclaw.org/2003-amended-basic-law, accessed 18-05-2010.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                     68
       Article 19: Freedom of opinion may not be prejudiced. Every person shall have the right
       to express his opinion and to circulate it orally, in writing or in any form of expression or
       art, with due consideration to the provisions of the law.

Homosexual sex is criminalized in the Gaza Strip pursuant to section 152 of the Criminal
Code Ordinance of 1936, which states:

       Anyone who:
       – commits sexual intercourse with another person against the order of nature,
       – or commits sexual intercourse with an animal,
       – or permits or allows the above mentioned acts
       is considered to have committed a felony punishable by imprisonment for a term of ten
       years.

Interestingly, the law is not in force in the West Bank, which means that homosexuality is not
a crime in that part of the Palestinian Territories.327 The draft Basic Law under the Palestinian
National Authority provides that “the principles of Islamic Shari’ah are a principal source of
legislation” (Art. 4/2) and that “matters of personal status are to be dealt with by Shari’ah and
religious courts” (Art.92/1).

The Web site of ASWAT, an organization of Palestinian gay women based in Haifa, Israel,
says Palestinian society “has no mercy for sexual diversity and/or any expression of
‘otherness’ away from the societal norms.328 The social taboo that Palestinian LGBT persons
face has led many to move to Israel or other countries.329

While Israel remains the most obvious escape route, this often leaves them trapped in an
administrative no-man’s-land with little hope of getting a proper job in Israel and constantly at
risk of arrest and deportation.330 In addition, they are then subjected to other forms of
discrimination on the basis of their ethnicity.331 Furthermore, having a more gay-friendly
Israel at such proximity has not really helped the case of LGBT Palestinians. Highlighting
Israel’s more tolerant approach to gay rights, peculiar only to that nation in the region, has
made life more difficult for LGBT people, adding grist to the popular notion that
homosexuality is a “disease” spread by foreigners.332

Finally, it must be acknowledged that any progress in the enjoyment of rights by LGBT
persons is made more difficult by the current humanitarian crisis in Palestine, where public
discussion and debate tends to focus on those commonly experienced forms of hardship.333



Qatar
Qatar is a party to the CAT, CERD, CEDAW, CRC and CRPD.334



327 http://typo3.lsvd.de/fileadmin/pics/Dokumente/Homosexualitaet/World_legal_wrap_up_survey._November2006.pdf,
accessed on 20 May 2010.
328 http://www.aswatgroup.org/english/about.php?category=24 (accessed on 14 May 2010)
329 http://www.sodomylaws.org/ (accessed on 14 May 2010)
330 http://www.aswatgroup.org/english/about.php?category=24 (accessed on 14 May 2010)
331 Haneen Maikie & Jason Ritchie, “James Kirchick’s ‘Queers for Palestine”,
http://www.aswatgroup.org/english/gallery.php?article=386 (accessed on 14 June 2010)
332 http://www.guardian.co.uk/world/2006/oct/02/israel.gayrights (accessed on 14 May 2010)
333 Nisreen & Dayna, “Palestinian Gays Under the Hijab”, http://www.aswatgroup.org/english/gallery.php?article=422
(accessed on 15 June, 2010)



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                               69
The relevant provisions of the Qatari Constitution guaranteeing equality before law are:

       Article 35: All persons are equal before the law and there shall be no discrimination
       whatsoever on grounds of sex, race, language, or religion.

       Article 37: The sanctity of human privacy shall be inviolable, and therefore interference
       into privacy of a person, family affairs, home of residence, correspondence, or any other
       act of interference that may demean or defame a person may not be allowed save as
       limited by the provisions of the law stipulated therein.

       Article 44: The right of the citizens to assemble is guaranteed in accordance with the
       provisions of the law.

       Article 45: The right of citizens to establish association is guaranteed in accordance with
       the conditions and circumstances set forth in the law.

       Article 47: Freedom of expression of opinion and scientific research is guaranteed in
       accordance with the conditions and circumstances set forth in the law.

Qatari criminal law is codified in the Penal Code and contains specific provisions that
adversely affect the rights of LGBT individuals.335 These include:

       Article 285: Anyone who copulates with a male above sixteen without compulsion, duress
       or ruse is convicted to no more than seven years in prison. The same penalty is imposed
       on the male for his consent.

       Article 294: Anyone who instigates debauchery, dissipation or adultery in public by words,
       gestures or any other means is convicted to no less than six months and no more than
       three years in prison.

       Article 296: One is convicted to no less than a year and no more than three years in
       prison in case of:
           1– Leading a female to commit adultery.
           2– Instigating, inducing, seducing a female anyhow to commit adultery or frequenting
           a brothel in order to commit debauchery whether inside or outside the country.
           3– Leading, instigating or seducing a male anyhow for sodomy or dissipation.
           4– Inducing or seducing a male or a female anyhow to commit illegal or immoral
           actions.
           5– Bringing, exposing or accepting a male or a female in the purpose of sexual
           exploitation.

There is no anti-discrimination law in Qatar, and while the Constitution of Qatar provides for
equality before the law for all citizens, there is no specific provision protecting the rights of
LGBT individuals.

The application of Sharia law in Qatar is restricted to Muslims. Any sexual act by a married
person outside of marriage is punishable by death, while sexual acts by non-married persons
are punishable by flogging.336




334 Qatar acceded to the CAT on 11 January 2000, with reservations on Articles 21 and 22.
335 Law No. 11 of 2004.
336 Summary of Submissions on Qatar, p. 7, UNGA Human Rights Council Working Group on the Universal Periodic Review,
Seventh session (Geneva, February 2010).



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                           70
For non Muslims (and foreign workers), provisions of the criminal code apply.337 In 1997
Qatar introduced a policy preventing the recruitment of foreign workers who identify as
homosexual.338

Qatari law does not recognise changes in an individual’s gender identity from that assigned
at birth. There do not seem to be any reported cases in this regard.

Freedom of speech and expression is guaranteed by the Qatari Constitution, but are subject
to regulation by law.

Legal regulation of the press in Qatar is strict, and information about defenders of LGBT
rights in the country is scarce and restricted. Police and bureaucratic harassment of LGBT
individuals as well as defenders of LGBT rights have been reported.339 As a result, defenders
report they are unable to effectively articulate their concerns, thereby making progress on
lesbians, gays, bisexuals and transgender rights difficult.

In the UPR process, Sweden recommended that Qatar ensure that,

       LGBT persons are not discriminated against and, as an immediate step, to amend the
       provisions of the penal code criminalizing consensual sexual activity among persons of
       the same sex and to ensure that no one is punished for such activity under Sharia law

Qatar did not accept this recommendation.340



Republic of Korea
The Republic of Korea is a party to the ICCPR, ICESCR, CAT, CERD, CEDAW, CRC and
CRPD.

The provisions of the South Korean Constitution of relevance to human rights concerns
around gender identity and sexual orientation are:

       Article 10:
       All citizens shall be assured of human worth and dignity and have the right to pursue
       happiness. It shall be the duty of the State to confirm and guarantee the fundamental and
       inviolable human rights of individuals.

       Article 11 (1):
       All citizens shall be equal before the law, and there shall be no discrimination in political,
       economic, social or cultural life on account of sex, religion or social status.

       Article 12 (1):
       All citizens enjoy personal liberty. No person shall be arrested, detained, searched,
       seized or interrogated except as provided by law. No person shall be punished, placed




337 Freda Ready, “Qatar’s Gay Rights Policy Under Scrutiny”, The Cornell Daily Sun, dated December 4, 2002, available at
http://www.glapn.org/sodomylaws/world/qatar/qanews05.htm accessed on 13 May 2010.
338   “Gay    Workers   Banned     in   Qatar”,  the   Philippine  Star,   30       November,     1997,      available    at
www.glapn.org/sodomylaws/world/qatar/qanews04.htm accessed on 13 May 2010.
339 “Interview with a Gay Who Was Arrested in Qatar”, Gay Middle                  East,   11 July,   2003,    available   at
www.glapn.org/sodomylaws/world/qatar/qanews02.htm accessed on 12 May 2010.
340 Report of the Working Group on the Universal Periodic Review: Qatar, A/HRC/14/2, http://www.upr-info.org/-Qatar-.html
accessed on 10 May 2010.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                    71
        under preventive restrictions or subject to involuntary labour except as provided by law
        and through lawful procedures.

        Article 21 (1) All citizens shall enjoy freedom of speech and the press, and freedom of
        assembly and association.

The Ministry of Justice proposed a draft anti-discrimination law which had sexual orientation
as a specific ground of non discrimination. Following strong religious opposition, ‘sexual
orientation’ was removed as a ground of prohibited discrimination. However despite sexual
orientation not being explicitly covered, the Government contends that the omnibus clause
‘other status’ does indeed cover sexual orientation.

The law establishing the National Human Rights Commission of Korea is more explicit in its
protection. The 2001 law provides that individuals or organizations could file complaints
about discrimination on the basis of:

        …sex, religion, disability, age, social status, birthplace, nationality, ethnicity, physical
        condition, marriage status, family origin, race, ideology, sexual orientation, and health
        condition. (Emphasis added)

The Korean Human Rights Commission has also established a working relationship with
Korean LGBT organizations and even provided financial support to two such organizations to
do work on rights pertaining to discrimination based on sexual orientation and gender
identity.341 There were gay and lesbian NGOs in place to file complaints and work with the
Commission, and their existence is acknowledged on the website of the Commission.

The Commission has investigated LGBT issues and proposed reforms in at least five cases.
The Commission for example gave its recommendations with respect to the Healthy Families
Basic Act. This law limited the social services relevant to families to those families based on
marriage, blood ties or adoption. The Commission concluded that this could result in
“discrimination in society in which the number of diverse types of families is on the rise.” The
Commission asked that the law be revised and the title changed, for it implied that some
families were ‘unhealthy families.’342

The Youth Protection Act of 1997 was designed to check the distribution of harmful media
materials and drugs to young people under nineteen. Under the law, a list of “harmful”
matters included

        …things promoting perverted sexual acts such as bestiality, group sex, incest,
        homosexuality, sado-masochism . . . This provision was used by the Government to block
        access to a number of gay and lesbian websites for schools, libraries, state offices and
        cybercafés.

On 2 April 2003, based upon a petition before it, the NHRCK held that the banning of the gay
and lesbian websites was a discriminatory act. It concluded that the banning was a violation
of three provisions in the Constitution, Article 10 Right to Pursue Happiness), Article 11
(Right to Equality) and Article 21 (Freedom of Expression).343




341 On 25 April 2003, Kukmin Daily reported that the National Human Rights Commission had entered into contracts with Kiri
Kiri and Dong In Ryun. Kiri Kiri was to receive around US$5,000 for a program to instil self-pride in lesbians. Dong In Ryun was
to receive slightly more for a program of human rights seminars or workshops on university and college campuses on sexual
orientation issues. See Douglas Sanders, Mujigae Korea, http://www.thegrandnarrative.files.wordpress.com/2009/08/mujigae-
korea.doc accessed on May 1, 2010.
342 Ibid.
343 Ibid.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                       72
Many human rights groups opposed the censorship of gay and lesbian websites. Amnesty
International, for example, contended that, ‘the censorship also violates freedom of
expression guaranteed under Article 19 of the ICCPR to which the South Korean government
is a signatory. Moreover it violates freedom from discrimination guaranteed under Article 2 of
the ICCPR’.344

The government subsequently removed homosexuality from its categories of harm under the
Youth Protection Act.

In 2006, the Commission heard a complaint from a member of the military who alleged that
officers responsible for the management of personal information had widely disseminated
information about his homosexuality. The Commission found that the petitioner’s privacy had
been violated and that the petitioner was discriminated against based on his sexual
orientation. The Commission thus recommended that the Defense Minister formulate human
rights guidelines regarding the treatment of homosexual members of the military and provide
human rights training in order to prevent sexual harassment in military camps.345

A series of actions by governmental authorities also underscores the need for anti-
discrimination legislation specifically covering sexual orientation and gender identity.

    the film censor censorship board retains a category excluding ‘no excessive
     representation of homosexuality’346
    In 2003 the Seoul High Court ruled against a lesbian plaintiff indicating that cohabitation
     of same-sex couples could not be regarded as a virtual marriage for the purpose of
     orders on the division of property and alimony.347
    Notwithstanding significant changes to relevant laws and policies, under the military
     penal code, soldiers who engage in gay sex face imprisonment of up to one year, a
     provision that is currently being challenged in the Korean Supreme Court.348

The National Human Rights Commission of Korea appears conscious of the need for
changes in this area and has proposed the enactment of a general anti-discrimination law
covering employment and services. The term ‘sexual orientation’ was removed from the Bill
pending before the National Assembly because of mounting opposition to this proposal. 349
Gender Identity was not included in the original draft.

With respect to concerns around gender identity, the Korean Supreme Court has ruled that
one can access identity documents in the gender other than the sex in which one was born.
The Korean Supreme Court’s administrative Guideline 716 allows only for persons who have
undergone sex reassignment surgery, reached a legal age, and have no children, to change
their official documentation to reflect the sex with which they identify.350

The Court held:



344 Amnesty International Report Summary of Concerns and Recommendations to Candidates for the Presidential Elections in
December, 2002, cf., Ibid.
345 National Human Rights Commission of Korea (NHRCK) activities in relation to sexual orientation and gender identity
available at http://www.asiapacificforum.net/issues/sexual_orientation accessed on 20 May 2010.
346 Ibid.
347 Chang Yeojean, Korean society disavows same-sex marriages, The Korea Herald, August 18, 2004, Ibid.
348     Korea     Moves      to    Ease   Gay   Military   Restrictions, April  4,   2006,  365Gay.com,  Ibid.
http://www.thefreelibrary.com/South+Korea%27s+Gay+Military+Ban+Under+Review-a01611722178 accessed on 25 April,
2010.
349 http://www.upr-info.org/database/ accessed on 16 May 2010.
350 National Human Rights Commission of Korea (NHRCK) activities in relation to sexual orientation and gender identity
available at http://www.asiapacificforum.net/issues/sexual_orientation accessed on 20 May 2010.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                               73
        Gender should be decided by not only physical appearance but also the person’s
        mentality and psychology, and society’s attitude to that person . . . This means that
        gender is decided by diverse factors, and that a person’s mental and social gender, which
                                                                                          351
        he or she did not recognize at birth, can be found during his or her social life.

The court also held:

        Bureaucrats should look at five criteria before changing a record. The person needs to
        have felt that he or she belonged to the opposite sex through adulthood, must have
        undergone counselling and surgery, needs to be living biologically and socially as a
        member of the new gender, and must be recognized as such by family and friends. When
        these conditions are met, the registry will be modified and the individual will obtain all
        rights and obligations of the new gender, including, in the case of female-to-male
        transsexuals. However, any legal obligations acquired prior to the change in status will
        persist. A married man with children who becomes a woman will still legally be a husband
                                                   352
        and father to her (his) wife and children.

LGBT activists have organized pride marches in Korea for the last ten years, with the first
march held in Seoul in 2000.353



Sri Lanka
Sri Lanka is a party to the ICCPR, ICESCR, CAT, CERD, CEDAW and CRC.354

The Sri Lankan Constitutional provisions do not directly mention sexual orientation or gender
identity. However the provisions which are relevant to LGBT persons are:

        Article 12:
        (1) All persons are equal before the law and are entitled to the equal protection of the law.
        No citizen shall be discriminated against on the grounds of race, religion, language,
        caste, sex, political opinion, place of birth or any such grounds:

        Article 13:
        (1) No person shall be arrested except according to procedure established by law. Any
        person arrested shall be informed of the reason for his arrest.

        Article 14:
        (1) Every citizen is entitled to –
            (a) the freedom of speech and expression including publication;
            (b) the freedom of peaceful assembly;
            (c) the freedom of association;
            (d) the freedom to form and join a trade union;




351 Ibid.
352 Ibid.
353 Michael Sollis, Pride Parade and Prejudice in Korea,
http://english.ohmynews.com/articleview/article_view.asp?no=382735&rel_no=1, accessed on 14 June, 2010.
354 The Supreme Court of Sri Lanka in Nallaratnam Singarasa vs. The Hon. Attorney General has held that domestic
implementation of international treaties is a pre-condition to their application at the domestic level. Nallaratnam Singarasa vs.
The Hon. Attorney General. S.C. SpL(LA) No. 182/99 available at: http://www.alrc.net/doc/mainfile.php/un_cases/423/
accessed on 20 November 2010.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                        74
Same sex sexual conduct between consenting adults is criminalised under the Sri Lankan
Penal Code.

Article 365 provides:

          Voluntary carnal intercourse with man, woman or animal against the order of nature:
          imprisonment for a term which may extend to ten years.

In addition, Article 365A provides:

          Any 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 person of any act of gross
          indecency with another person, shall be guilty of an offence and shall be punished with
          imprisonment of either description for a term which may extend to two years or with a
          fine, or with both and where the offence is committed by a person over 18 years of age in
          respect of any person under 16 years of age shall be punished worth rigorous
          imprisonment for a term not less than 10 years and not exceeding 20 years and with a
          fine and shall also be ordered to pay compensation of amount determined by court to the
          person in respect of whom the offence was committed for the injuries caused to such a
          person.

These provisions prevent LGBT persons from accessing their Constitutional rights under Arts
12, 13 and 14. Their repeal, and the implementation of a wider framework of non-
discrimination on grounds of sexual orientation and gender identity, are necessary for LGBT
people to enjoy the full range of human rights.

The Sri Lankan LGBT organisation Equal Ground’s submission to the Sri Lanka Universal
Periodic Review in 2008 highlights police atrocities against those perceived to be LGBT
persons including threats of blackmail and extortion.355 The report indicates that in many
cases, the police beat, sometimes rape, and incarcerate LGBT persons to frighten them.

    In 2006, a 24-year old from the University of Colombo was physically abused and left
     dead on the railway tracks because of his sexual orientation. The perpetrators were not
     punished showing high levels of impunity for crimes against LGBT persons.356

    In 2008, the police arrested a Sri Lankan man and a European man in a guesthouse in
     Nigombo and after planting fingerprints on condoms, they charged them under section
     365A of the Penal Code.357

    In August 2009, two young Tamil girls employed as domestic workers were found dead in
     a canal. It is widely believe that they were in a relationship and were murdered as a
     result.358

Besides the Penal Code, a regulation called the Vagrants Ordinance, gives authorities the
power to detain people who are considered ‘idle’ in public, including when it is determined
that such a ‘vagrant’ could solicit another person for sexual intercourse. Section 9 of this
Ordinance is aimed at the punishment of certain classes of “incorrigible rogues” which
includes persons who “systematically procure persons for the purpose of illicit or unnatural
intercourse”.359 The punishment under this section is imprisonment for up to two years and


355 Equal Ground Submission to the Universal Periodic Review, 2008. See also Equal Ground Submission to the Human
Rights Report to the U.S State Department, 2009.
356 Ibid.
357 Id.
358 Id.
359 An Ordinance to Amend and Consolidate the Law relating to Vagrants, 1842.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                        75
for males, an additional punishment of whipping may be ordered.360 It is alleged that this law
has been used by the police to wrongfully detain countless people. In most of these cases it
is those of lower socio-economic status who prove most vulnerable to such detention. In
order to win their freedom, such detainees are often forced to resort to bribes for offences not
committed.361

Following her visit to Sri Lanka in January 2008, then High Commissioner for Human Rights
Louise Arbour pointed out that several broader human rights issues on the island were often
eclipsed by issues related to then ongoing ethnic conflict. Among the issues she underlined
were discrimination, exclusion and gender inequalities.362

The civil war in Sri Lanka had fuelled further intolerance and persecution against LGBT
persons in Sri Lanka, whether it was in the LTTE controlled North and East, the Muslim
majority areas or the Sinhala dominated south. In the North and East, Tamil and Muslim
separatists had established an unofficial death penalty for LGBT persons making it
impossible for LGBT organisations to function there. This was in the period when the LTTE
controlled much of the North and the East.363

Discrimination against LGBT persons from within minority communities in Sri Lanka is also a
significant problem and is associated with one of the highest rates of suicide in the world.

Sri Lankan laws do not provide for change of gender from that assigned at birth.

Human rights defenders advocating the rights of LGBT persons in Sri Lanka faced
harassment, threat and violence in the North and East at the time of the conflict. The post-
war situation in Sri Lanka has not seen any significant progress on LGBT rights. This
situation has increased post war with the new government clearly aligning itself with more
conservative factions that are intolerant to views, practices and identities that are seen as
‘different’ and ‘western’. The threat, and use of the criminal law, the lack of the right to
privacy in the Sri Lankan constitution, as well as the increased importance of conservative
groups leaves LGBT persons and human rights defenders particularly vulnerable to
harassment, verbal and physical attacks.364




Thailand
Thailand is a party to the ICCPR, ICESCR, CAT, CERD, CEDAW, CRC and CPRD.

The relevant articles in the Constitution relevant to LGBT persons are:

          Section 30:


360 Section 9(i) and (ii) Id.
361 “Vagrant Voices”, Fernando, M.(Marini), Himal Magazine, March 2008,
http://www.himalmag.com/Vagrant-voices_nw2138.html accessed on 20 May, 2010.
362 Id.
363 Equal Ground Submission to the Universal Periodic Review, 2008. See also Equal Ground Submission to the Human
Rights Report to the U.S State Department, 2009. Equal Ground has documented cases of gay men from the East who have
faced death threats from Muslim extremists and religious leaders in the East. Two such persons eventually sought asylum in the
Czech Republic and in the U.K. Between January and July 2009, members of Equal Ground faced death threats from Jamathe
Islami, an Islamic extremist group operating in the Eastern Province.
364 Ibid.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                     76
       All persons are equal before the law and shall enjoy equal protection under the law. Men
       and women shall enjoy equal rights. Unjust discrimination against a person on the
       grounds of the difference in origin, race, language, sex, age, disability, physical or health
       condition, personal status, economic or social standing, religious belief, education or
       constitutionally political view, shall not be permitted.

       Section 45:
       A person shall enjoy the liberty to express his opinion, make speech, write, print,
       publicise, and make expression by other means.

Same sex sexual conduct between consenting adults is not criminalised under the Thai
Criminal Code.365 The Age of consent stands at fifteen for all persons irrespective of sexual
orientation.366 There exists no form of legal recognition for same-sex relationships.

In the 2007 Constitution Drafting Process, the National Human Rights Commission of
Thailand (NHRCT) proposed a provision that would address discrimination related to “sexual
diversity” and thus address both sexual orientation and gender identity. However, this
proposal was not accepted. Soon after, the proposal was reintroduced with the term “sexual
identity” instead of “sexual diversity.” This too was defeated very narrowly. The Constitutional
Drafting Assembly subsequently issued a document, titled “Intentions of the Constitution of
the Kingdom of Thailand”. In explaining clause 3 of Article 30 (the provision on equality that
had been the subject of the “diverse sexualities” and “sexual identity” amendments) the
Intentions document uses the term “phet”, a Thai word that is used variously to mean the
differences between men and women, and also the differences between individuals in sexual
identity or gender or sexual diversity. Commentators have therefore argued that sexual
orientation and gender identity need not be specifically listed in Section 30 because the word
phet already denotes the above meanings. If accepted, this interpretation would suggest that
LGBT persons may receive protection from Article 30(3).367

This interpretation of the constitutional provisions was tested in February 2010, when the
Governor of Chiang Mai province, an official appointed by the Central Government, banned
attire that expressed “sexual deviance” in the floats that were participating at the annual
Flower Festival. While the prohibition did not expressly refer to the transgender community
‘kathoey’, the ban was aimed at preventing them from participating.368 When the ban was
challenged by two gay rights activists, the Chiang Mai administrative court passed an
injunction against the Governor holding that the ban violated the constitution.369 While the
Court does not refer specifically to the CDA’s “intention” document, legal scholars have
pointed out that the reference to “sexual diversity”370 in the decision shows that they have
been influenced by the CDA’s document.

The history of the legal battle by Thai LGBT organisations can be traced back to 1996 when
the Rajabhat Institutes, the national system of teacher training colleges, had announced a


365 The Criminal Code contained a provision criminalizing same-sex sexual relations which was repealed in 1957 as part of a
general revision that dropped sections with no history of enforcement.
366 Criminal Code, 1956, Sections 277–278.
367 Douglas Sanders, “The Rainbow Lobby: The Sexual Diversity Network and the Military-Installed Regime in Thailand” (paper
emailed to authors by Professor Sanders). An audio recording of the paper presented by Professor Sanders at the Third ILGA
Conference in Changmai in 2008 is available at http://isiswomen.org/downloads/ILGA3/Douglas%20Sanders.mp3, (accessed
on June 18, 2010).
368 Douglas Sanders, “Kathoeys Have Rights: The Chang Mai Flower Festival Case”, June 4, 2010, document emailed by
Professor Sanders.
369 Douglas Sanders, “Kathoeys Have Rights: The Chang Mai Flower Festival Case”, op cit.
370 The decision says “…the disputed Announcement is an order that directly limits the rights of persons in certain kinds of
attire to participate in the activity, which is a competition and a show arranged in a public place by a state body, has a broad
impact, and exhibits a non-acceptance of equal rights of persons who have sexual diversity, differing from the born sex of those
persons.” Douglas Sanders, “Kathoeys Have Rights: The Chang Mai Flower Festival Case”, op cit.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                       77
ban on homosexual students. The ban was aimed at effeminate males, but it was phrased in
broader terms of “gender/sex deviance” (khwam-biang-ben thang-phet). A lesbian
organisation, Anjaree, led the fight against this ban bringing together prominent academics
and medical professionals to speak at a public forum. The English-language newspapers
supported the campaign. After public controversy the ban was rescinded.371 Notwithstanding
such developments, the persecution of lesbians, gays, bisexuals and transgender people
continues. Amnesty International’s 2004 report highlighted the plight of a young Burmese
lesbian living and working in a factory in Mae Sod, Thailand. Returning home at night, she
was raped by several men who worked at the same factory in order to “cure” her. While the
assault was apparently common knowledge, no one came to her defence.372

Thai attitudes towards transgender persons, or kathoey, are generally mixed. On the one
hand, kathoey are seen as glamorous, featuring in Las Vegas style musical revues. On the
other hand, kathoey are depicted on television and in film as ridiculous, ugly, comic
figures.373

While homosexuality has not been a basis for exclusion or expulsion from military service in
Thailand, historically the Thai armed services have barred male-to-female transgenders and
transsexuals. The military rejected kathoeys called up for Thailand’s annual conscription of
able-bodied 20-year-old males on the basis that they suffered from a “mental disease” or a
“permanent mental disorder.” This language appeared on their military conscription
exemption documents, which are routinely shown to potential employers. The NHRC worked
on the issue with Thai LGBT organisations Sapaan, Rainbow Sky, Bangkok Rainbow and the
Thai military. The military ceased using the phrases in April, 2006, and announced a new
policy, which was reported as follows:

        “The military would respect the human dignity of transvestites by running physical check-
        ups on them in specially provided rooms and not requiring them to expose their bare
        breasts in public. However, only those who had had breast enlargements or sex change
        operations, not those who simply looked or acted like women, would be exempted [from
                            374
        military service].”

In 2007, proposals were made in the National Legislative Assembly to pass a law permitting
transsexuals to change their gender, but these were mostly unsuccessful.375 These
proposals were included with a more general clause that would have enabled married
women to use their maiden name, and the title ‘Ms’. The clause that dealt with transsexuals
was dropped in the final version on the basis that men might be ‘tricked into marriage’ with a
transsexual.376

Until 2007, kathoeys were excluded from the legal definition of rape under section 276 of the
Penal Code because they were not recognised as women, even after reassignment surgery.


371 Douglas Sanders, “The Rainbow Lobby”, op cit.
372 Amnesty International, “Human Rights and Sexual Orientation and Gender Identity,” March 2004.
373 Email interview with Professor Douglas Sanders, June 5, 2010. In June 2007, a nightclub in the Novotel Hotel in the Siam
Square shopping area in Bangkok barred Sutthirat Simsiriwong from entering after checking her identity card, which listed her
sex as “male.” Simsiriwong was a kathoey and the local brand manager for a French cosmetic firm. She filed a human rights
complaint with the NHRCT. An LGBT group called Bangkok Rainbow launched a sophisticated media campaign against
Novotel, calling for a gay boycott of all Accor chain hotels, of which Novotel is one section. A campaign logo, with the slogan
“Novotel / No Homo” and a “no entry” design, was reprinted in The Nation newspaper, which gave the story front page coverage
two days in a row.373 Novotel Bangkok initially tried to downplay the incident, saying that barring kathoey was against hotel
policy. But in July 2007, in the presence of media, the Manager of the Hotel, Gerald Hougardy, publicly apologised to Sutthirat.
Sutthirat accepted the public apology and said she would ask her supporters to end calls for the boycott of Accor hotels
374 Douglas Sanders, “The Rainbow Lobby”, op cit. Wassana Nanuam, Military scraps offending label against gays, Bangkok
Post, 2 April 2006, 3. cited in Douglas Sanders, “The Rainbow Lobby”, op cit.
375 Wannapa Phetdee, “Miss’ proposed for transsexuals. Transvestites”, The                       Nation,   28   August    2007,
http://nationmultimedia.com/2007/08/28/national_30046773.php (accessed on 20 April 2010).
376 Interview with Paisarn Likhitpreechakul, Foundation for Sexual Diversity, Thailand.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                       78
In 2007, the rape law was rewritten under the military-appointed interim government to
recognise rape within marriage. This revised version of the rape law extended the definition
of rape to include male and transgender victims, thus acceding to the demand that LGBT
groups were making.377 However, there is now a renewed attempt from the Ministry of Social
Development and Human Security to reclassify the offence, by citing examples of judges
who have stated that that this law was too difficult to implement.378

In 2009, regulations were introduced to require male-to-female transgender people to live as
women and receive hormone therapy for one year and consult a psychiatrist before a sex
change operation. These new regulations ban sex change operations for under-18s and
require 18-20 year olds to have parental permission.379

The National Human Rights Commission of Thailand identifies the following lacunae in the
rights of LGBT persons:

    Lack of educational opportunity and prejudice in certain circumstances

    Limitation in Applying for Jobs, Less Choices of Occupation and Less Progress in Career
     Paths

    No diverse sexual orientation and gender identity sensitivity in Public Health Service and
     almost all officials are not sensitized the issue of transgender person

    Lack of the protection and remedial measures for transgender person

    Lack of public transgender toilet ( There is only one school in the North-East of Thailand
     which provides the toilet for transgender boys with understanding)

    Some hotels and entertainment places refuse their accesses.

    Some Life Insurance Companies refused to indemnify this group

    Lack of specific prison for transgender inmates.

    Spousal and inheritance rights.380



Timor Leste
Timor Leste is a party to the ICCPR, ICESCR, CAT, CERD, CEDAW and CRC. 381

The provisions of the Constitution relevant to sexual orientation and gender identity are:

        Section 16
        1. All citizens are equal before the law, shall exercise the same rights and shall be
        subject to the same duties.


377 Douglas Sanders, “The Rainbow Lobby”, op cit.
378 Interview with Paisarn Likhitpreechakul, Foundation for Sexual Diversity, Thailand.
379 http://www.nationmultimedia.com/2009/10/28/national/national_30115353.php, (accessed on 20 May 2010)
380 Section 5 of the Civil Code regarding the family and inherited stipulated that only person with legal marital status can be
considered as legal heir. The transgender and the same-sex practicing persons do not constitute a legal marital status
according to the laws, thus they are not entitled to spouse’s benefits as provided by the State, such as, social security benefits.
Id.
381 Timor Leste acceded to the CAT on 16 April 2003.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                          79
       2. No one shall be discriminated against on grounds of colour, race, marital status,
       gender, ethnic origin, language, social or economic status, political or ideological
       convictions, religion, education and physical or mental condition.

       Section 63
       1. Direct and active participation by men and women in political life is a requirement of,
       and a fundamental instrument for consolidating, the democratic system.
       2. The law shall promote equality in the exercise of civil and political rights and non-
       discrimination on the basis of gender for access to political positions

Section 16 does not protect against discrimination on the basis of sexual orientation. The
original draft of this provision included sexual orientation, however parliamentary members
voted to remove that protection from the draft.382 One of the members of the assembly is
quoted as having called homosexuality “an illness” and “an anomaly” and said protecting
gays would create “social chaos”. Another member said the only homosexuals in East Timor
are foreigners. Pressure from the Church seems to be one of the factors on which this
decision was based.383

Same sex sexual conduct between consenting adults is not criminalised under East
Timorese law. However the subject as such is widely considered taboo and there is
pervasive bias against homosexuals that keeps nearly all LGBT persons closeted. 384
Discussion in the public domain has led to the persecution of gay men and women, in part
through the condemnation of the Roman Catholic Church.385

This form of social discrimination and ostracism has resulted in homosexuals being excluded
from the HIV/AIDS policy in East Timor, an unfortunate development given the vulnerability
of the MSM community and the need for an effective HIV/AIDS strategy. 386

In a strange anomaly from the otherwise marginal status of LGBT persons in East Timor, the
Labour Code protects against discrimination on the basis of sexual orientation and HIV
status.387



The Philippines
The Philippines is a party to the ICCPR, ICESCR, CAT, CERD, CEDAW, CRC and CRPD.

The relevant provisions regarding equality before law for all citizens are to be found in the Bill
of Rights of the Constitution of The Philippines.

       Article III Section 1: No person shall be deprived of life, liberty, or property without due
       process of law, nor shall any person be denied the equal protection of the laws.




382 The Role of Constitution Building Processes in Democratization, East Timor: A Case Study, http://www.idea.int/conflict/cbp/,
accessed on May 14, 2010.
383 http://gaytimor.blogspot.com/2009/09/timor-leste-red-cross-exludes.html accessed on 28 May 2010.
384 East Timor and Indonesia Action Network (ETAN) and West Papua Advocacy Team (WPAT) Comments on the U.S.
Department of State Country reports on Human Rights Practices for 2008, http://etan.org/news/2009/03statehr.htm, accessed
on 24 May 2010.
385 East Timor Law and Justice Bulletin, http://easttimorlegal.blogspot.com/2009/04/homosexuality-in-east-timor.html,
accessed on 14 May 2010.
386 http://gaytimor.blogspot.com/2009/09/timor-leste-red-cross-exludes.html accessed on 28 May 2010.
387 The Labour Code of the Democratic Republic of Timor-Leste, 2005-10, Ministry of Labour and Community Reinsertion,
Timor-Leste, http://www.ilo.org/dyn/natlex/docs/MONOGRAPH/72879/74294/F1403331772/TMP72879.pdf accessed on 14 May
2010.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                       80
In addition, the rights of women to equality and non-discrimination are also specifically
elaborated in the Republic Act No. 9710. Discrimination on the grounds of sex, sexual
orientation and other status are specifically listed in section 3.388

However, while the Constitution guarantees equality before law to all citizens, there is no
anti-discrimination legislation, LGBT persons remain unprotected.389

Criminal law in the Philippines is codified in the Revised Penal Code and there are no
provisions criminalising same-sex activity.390

The Philippines does not have any laws that specifically recognise the change of gender
identity of an individual from that assigned at birth. However, in a landmark case in 2008, the
Philippines Supreme Court permitted an intersex individual to alter his birth certificate and
change his gender from female to male, as well as his name. In a unanimous judgment
delivered by a five-judge bench, the Court observed:

        In deciding this case, we consider the compassionate calls for recognition of the various
        degrees of intersex as variations which should not be subject to outright denial. “It has
        been suggested that there is some middle ground between the sexes, a ‘no-man’s land’
        for those individuals who are neither truly ‘male’ nor truly ‘female’.” The current state of
        Philippine statutes apparently compels that a person be classified either as a male or as
        a female, but this Court is not controlled by mere appearances when nature itself
        fundamentally negates such rigid classification.

        (...)

        Ultimately, we are of the view that where the person is biologically or naturally intersex
        the determining factor in his gender classification would be what the individual, like
        respondent, having reached the age of majority, with good reason thinks of his/her sex.
        Respondent here thinks of himself as a male and considering that his body produces high
        levels of male hormones (androgen) there is preponderant biological support for
        considering him as being male. Sexual development in cases of intersex persons makes
        the gender classification at birth inconclusive. It is at maturity that the gender of such
                                                                 391
        persons, like respondent, is fixed. (emphasis supplied).



Upholding the value of individual autonomy, privacy and dignity, the Court further observed:

        Respondent here has simply let nature take its course and has not taken unnatural steps
        to arrest or interfere with what he was born with. And accordingly, he has already ordered
        his life to that of a male.

        (...)




388 Section 3, which is explanatory in nature, reads “All individuals are equal as human beings by virtue of the inherent dignity
of each human person. No one, therefore, should suffer discrimination on the basis of ethnicity, gender, age, language, sexual
orientation, race, color, religion, political, or other opinion, national, social, or geographical origin, disability, property, birth, or
other status as established by human rights standards.”
389 Summary of Submissions on the Philippines, p. 3, UNGA Human Rights Council Working Group on the Universal Periodic
Review, First session (Geneva, April 2008).
390 Act No. 3815 of 1930.
391 Republic of the Philippines v. Jennifer B. Cagandahan, G.R. No.166676 (September 12, 2008). See also Leila Salaverria,
“Call him Jeff, says SC; he used to be called Jennifer”, Philippine Daily Inquirer, dated September 17, 2008, available at
http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20080917-161148/Call-him-Jeff-says-SC-he-used-to-be-called-Jennifer
accessed on 11 May 2010.




Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                                81
          In the absence of a law on the matter, the Court will not dictate on respondent concerning
          a matter so innately private as one’s sexuality and lifestyle preferences, much less on
          whether or not to undergo medical treatment to reverse the male tendency due to CAH.
          The Court will not consider respondent as having erred in not choosing to undergo
          treatment in order to become or remain as a female. Neither will the Court force
          respondent to undergo treatment and to take medication in order to fit the mould of a
          female, as society commonly currently knows this gender of the human species.
          Respondent is the one who has to live with his intersex anatomy. To him belongs the
          human right to the pursuit of happiness and of health. Thus, to him should belong the
          primordial choice of what courses of action to take along the path of his sexual
          development and maturation. In the absence of evidence that respondent is an
          “incompetent” and in the absence of evidence to show that classifying respondent as a
          male will harm other members of society who are equally entitled to protection under the
          law, the Court affirms as valid and justified the respondent’s position and his personal
          judgment of being a male.

          In so ruling we do no more than give respect to (1) the diversity of nature; and (2) how an
          individual deals with what nature has handed out. In other words, we respect
          respondent’s congenital condition and his mature decision to be a male. Life is already
          difficult for the ordinary person. We cannot but respect how respondent deals with his
          unordinary state and thus help make his life easier, considering the unique circumstances
                                             392
          in this case. (emphasis supplied).

In this judgement, the court also held that transgender persons can have their name changed
through an administrative process rather than having to go to court, but also noted that
transgender persons cannot alter their names in official documents since there is no law that
provides for such a change.393

There are positive trends in this direction on the legislative and executive front as well: Bills
on anti-discrimination and reproductive rights, which will confer specific rights on the LGBT
community, are pending in the Philippine Parliament.394

In May 2010, for the first time, a political party representing LGBT interests was recognised
and permitted to contest the elections.395 Its application, initially refused by the Philippines’
Commission on Election (COMELEC) on “moral and religious grounds” was challenged in the
Supreme Court. The Court held

          “As such, we hold that moral disapproval, without more, is not a sufficient governmental
          interest to justify exclusion of homosexuals from participation in the party-list system. The
          denial of Ang Ladlad’s registration on purely moral grounds amounts more to a statement
          of dislike and disapproval of homosexuals, rather than a tool to further any substantial
          public interest. Respondent’s blanket justifications give rise to the inevitable conclusion
          that the COMELEC targets homosexuals themselves as a class, not because of any
                                                 396
          particular morally reprehensible act.”

          “..From the standpoint of the political process, the lesbian, gay, bisexual, and transgender
          have the same interest in participating in the party-list system on the same basis as other
          political parties similarly situated. State intrusion in this case is equally burdensome.



392 Ibid
393 Email exchange with Jonas Bogas, 30 May 2010.
394 Ige Ramos, “Is the Philippines Ready for (Gay) Marriage?” Philippine Daily Inquirer, 5 January, 2010, available at
http://showbizandstyle.inquirer.net/sim/sim/view/20100501-267533/Is-the-Philippines-Ready-for-Gay-Marriage accessed on 11
May 2010.
395 “Philippine LGBT Political Party List “ANG LADLAD” will Participate in Elections for the First Time”, International Gay and
Lesbian Human Rights Commission, dated 15 May, 2010, available at http://ilga.org/ilga/en/article/mqkkDYO1hH accessed on
11 May 2010.
396 Id.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                      82
          Hence, laws of general application should apply with equal force to LGBTs, and they
          deserve to participate in the party-list system on the same basis as other marginalized
                                          397
          and under-represented sectors.”

The Court held that COMELEC’s decision had violated Ang Ladlad’s fundamental rights to
freedom of expression and association.398 The Court said it had recognised international law
principle of non-discrimination as it related to electoral participation while arriving at its
decision.399

In his separate concurring decision in the Ang Ladlad case, Chief Justice Reynato Puno
referred to documented histories of violence and discrimination perpetrated against the
LGBT community in The Philippines.400 The examples that Puno cited were those of:
effeminate or gay youth being beaten up by parents or guardians to ensure gender
conformity; fathers allowing their butch lesbian daughters to be raped to cure them into
becoming ‘straight’; discrimination faced by LGBT persons in schools and employment; the
use of anti-kidnapping law to break up consensual LGBT partnerships above the age of
majority; exorcism and religious cures performed on LGBT persons to cure them; forced
psychiatric therapy and counselling used to ‘cure’ young gays and lesbians; male-to-female
transgenders being denied entry into restaurants and establishments; and several cases of
murders of gay men between 2003 and 2006 that the police refused to acknowledge as hate
crime or acts of bigotry.401

Chief Justice Puno also referred to a May 2009 US asylum case of Philip Belarmino, where
he testified that as a young gay person in the Philippines he was subjected to a variety of
sexual abuse and violence, including repeated rapes which he could not report to the police
or speak of to his own parents.402

While there has never been any specific policy that banned LGBT persons in the military, in
2009, top officials in the military announced that lesbians and gay persons (and not cross-
dressers) would be permitted to serve in the armed forces. However, there are no guidelines
in place to put this policy in place and LGBT persons in the military and police are still not
legally protected from discrimination or abuse.403

There were efforts made to remove the country’s notorious Anti-Vagrancy Laws that were
used to target a variety of citizens including the homeless, beggars, sexworkers and LGBT
persons.404 The Philippines Senate approved a Bill striking the anti-vagrancy provisions of



397 http://sc.judiciary.gov.ph/jurisprudence/2010/april2010/190582.htm accessed on 30 May 2010.
398 Id.
399 Id.
400 http://sc.judiciary.gov.ph/jurisprudence/2010/april2010/190582_puno.htm (accessed on 30 May 2010)
401 Ibid.
402 Id.
403 Jennifer Vanasco, “Philippines ends ban on gays in Military”, 365 Gay, dated March 3, 2009, available at
http://www.365gay.com/news/philippines-ends-ban-on-gays-in-military/ accessed on 11 May 2010. Also see Email exchange
with Jonas Bagas, 30 May 2010.
404 Philippine Penal Code 1930 – Art. 202. Vagrants and prostitutes; penalty. – The following are vagrants:
    1. Any person having no apparent means of subsistence, who has the physical ability to work and who neglects to apply
    himself or herself to some lawful calling;
    2. Any person found loitering about public or semi-public buildings or places or trampling or wandering about the country or
    the streets without visible means of support;
    3. Any idle or dissolute person who ledges in houses of ill fame; ruffians or pimps and those who habitually associate with
    prostitutes;
    4. Any person who, not being included in the provisions of other articles of this Code, shall be found loitering in any
    inhabited or uninhabited place belonging to another without any lawful or justifiable purpose;
    5. Prostitutes.



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the statute books since they were anti–poor and violated the rights of citizens.405 However,
the House of Representatives is yet to pass this legislation. Local City Counsellors however
continue to talk about banning vagrants.406

An anti-obscenity and pornography law introduced in the House of Representatives in
Congress in 2008 has drawn strong criticism from the artist community and those advocating
the right to free speech.407

Bills have also been introduced to amend provisions dealing with marriage in order to
exclude same sex marriage and marriage by transgender persons. The Bills would also
exclude domestic recognition of such marriages conducted overseas.408

The Philippines has a long history of LGBT activism and groups working for LGBT rights, and
public LGBT intellectuals, authors and columnists who write in the media about LGBT issues.




   For the purposes of this article, women who, for money or profit, habitually indulge in sexual intercourse or lascivious
   conduct are deemed to be prostitutes.
   Any person found guilty of any of the offenses covered by this articles shall be punished by arresto menor or a fine not
   exceeding 200 pesos, and in case of recidivism, by arresto mayor in its medium period to prision correccional in its minimum
   period or a fine ranging from 200 to 2,000 pesos, or both, in the discretion of the court.
405 http://bloggista.org/2716-senate-passes-bill-deleting-vagrancy-from-list-of-crimes.html accessed on 11 May 2010.
406 http://67.225.139.201/baguio/anti-vagrancy-measure-eyed accessed on 11 May 2010.
407 An act prohibiting and penalizing the production, printing, publication, importation, sale, distribution and exhibition of
obscene and pornographic materials and the exhibition of live sexual acts, amending for the purpose article 201 of the revised
penal code, as amended, http://www.senate.gov.ph/lis/bill_res.aspx?congress=14&q=SBN-2464 accessed on 11 May 2010.
408 Interview with Angee Umbac, Rainbow Rights Project, Manila. Information on Bills no. Bills No. 894, 897, 898, and 1117, is
available at http://www.anwaraidc.com/2010/09/progay-sexual-minorities-proposed-marriage-legislation.html



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Chapter IV: Conclusions
The survey of the policies, laws and constitutional provisions of the 17 countries in the Asia
Pacific region leads to the conclusion that there are tremendous challenges to protecting the
rights of persons of diverse sexual orientation and gender identity.



Challenges in the Asia Pacific region in addressing LGBT
Rights:

Discriminatory practices and laws
As has been noted above, non-discrimination guarantees form the heart of a universal
regime of rights. The fact that non-discrimination laws have in most cases not explicitly
included sexual orientation or gender identity has meant that LGBT persons in most parts of
the Asia Pacific region have been strangers to the very guarantee of equality.

Reports from all 17 countries included in this study refer to varying levels of discrimination
towards LGBT persons. This emphasises the need for strong anti-discrimination legislation
with the specific inclusion of non-discrimination on grounds of sexual orientation and gender
identity.

Of the 17 countries of the Asia Pacific region surveyed, 15 have no anti-discrimination
legislation specifically covering grounds of sexual orientation and gender identity. Only
Australia and New Zealand have such laws, with the former only at the state rather than
federal level, and the latter explicitly covering ‘sexual orientation’ and ‘sexuality’.


The existence of laws criminalising same sex sexual conduct
Perhaps the most egregious violation of the rights of those who are discriminated on grounds
of their sexual orientation or gender identity occurs through the existence of laws
criminalising same sex sexual conduct between consenting adults in seven countries. These
laws are an invasion of the rights of privacy, dignity, equality, non-discrimination and right to
freedom of expression. They also express a profound contempt for the fundamental
principles that rights are inherent in all human beings and are inalienable. As noted in this
study, any improvement in the human rights situation of LGBT persons is really premised on
the repeal of these laws, since they encourage violence against LGBT persons and set in
place a culture of impunity towards those who violate the basic rights of LGBT persons.
Furthermore, basic socio-economic rights such as the right to health are often rendered out
of reach. The seven countries in the Asia Pacific region with such laws are: Sri Lanka,
Maldives, Afghanistan, Malaysia, Palestine, Qatar and Mongolia. Several other countries
continue to have discriminatory provisions on their statute books, though these have been
successfully challenged through the courts. Until their repeal, such provisions also remain of
concern.


Lack of legal provisions for change of gender identity from that
assigned at birth
12 of the 17 countries provide no comprehensive legal recourse to the specific problems
affecting transgender persons. If one is born in a particular gender and chooses to transit to
another gender, then there is no provision which enables the law to capture that change. In


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effect the transgender person is rendered invisible and denied the right to recognition by the
law in their chosen gender.


Continuing practices of cruel, inhuman and degrading treatment
against LGBT persons
The existence of laws criminalising same sex sexual conduct between consenting adults,
combined with the failure to ensure freedom from discrimination, contributes to an
environment where LGBT persons are subject to torture, and to cruel, inhuman and
degrading treatment. These practices, by both state and non state actors, demand urgent
attention.


Lack of access to basic health care by LGBT persons
There is a very important public health dimension to the issue of protecting the rights of
LGBT persons. In particular, the spread of the HIV/AIDS epidemic has resulted in recognition
at the domestic and international levels that the protection of the rights of MSM is
fundamental to controlling the spread of this disease. UN agencies such as UNAIDS have
repeatedly stressed that the repeal of laws criminalising same sex sexual conduct between
consenting adults, as well as attention to the health needs of the MSM and broader LGBT
community, is a key public health strategy.


Use of arguments based on religion and culture to negate LGBT
rights
While the above document some of the legal changes which are necessary to bring laws and
practices in domestic jurisdictions into conformity with existing international human rights law
norms regarding sexual orientation and gender identity, it is also important to address why
changes in law have proved to be very difficult in domestic contexts.

One of the hardest challenges faced by LGBT rights advocates is the argument that the
enjoyment of rights by LGBT persons is antithetical to an existing religious or cultural
traditions or practices. This argument becomes particularly difficult to surmount when the
Constitution recognises religion and explicitly declares the State to be based on religious
norms.

It is important to recognise is that one cannot presume that basic norms such as the right to
life, to equality and recognition before the law, and freedom from torture, discrimination and
arbitrary detention are necessarily antithetical to the tenets of any particular religions.
Scholars working at the intersection of women’s rights and religion have argued for a
reconciliation of existing frameworks of religion with norms of universal human rights. As Ziba
Mir Hosseni argues:

      The emerging feminist scholarship in Islam is helping to bridge the wide gap that exists
      between the conceptions of justice that inform and underpin the dominant interpretations
      of the Shari’a on the one hand, and human rights legislation on the other. This
      scholarship is part of a new trend of reformist religious thought that is consolidating
      notions of Islam and modernity as compatible, not opposed. Following and building on the
      work of earlier reformers, the new religious thinkers contend that human understanding of
      Islam’s sacred texts is flexible, that the texts can be interpreted as encouraging pluralism,
      human rights, democracy and gender equality. Revisiting the old theological debates,




Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                86
       they aim to revive the rationalist Mu’tazali approach that was eclipsed when Ash’ari
       legalism took over as the dominant mode and gave precedence to the form of the law
                                      409
       over its substance and spirit.

It is essential that further work be done in comparative jurisprudence, such that the polarity
between international law and domestic law when it comes to LGBT rights is questioned and
one is able to demonstrate the essential compatibility between interpretations of
constitutional laws (even if based on religion) and the regime of international human rights.


Use of limitation clauses in domestic jurisdictions
Even when the Constitution recognises the norms of equality, non-discrimination and
freedom of expression, often there are specific limitation clauses. Such limitation clauses are
often based on grounds of public order or morality. In this regard it is important that the
limitation clauses of the domestic Constitutions be read in the light of the Siracusa Principles
on the Limitation and Derogation of Provisions in the International Covenant on Civil and
Political Rights.410 Of particular import to LGBT persons is the limitation of public morals.

The relevant principles are

       27. Since public morality varies over time and from one culture to another, a state which
       invokes public morality as a ground for restricting human rights, while enjoying a certain
       margin of discretion, shall demonstrate that the limitation in question is essential to the
       maintenance of respect for fundamental values of the community.

       28. The margin of discretion left to States does not apply to the rule of non-discrimination
       as defined in the Covenant.

Thus it can be argued that laws criminalizing consensual sex between adults in private are
not ‘essential to the maintenance of respect for fundamental values for the community’ and
further that the ‘margin of discretion’ permitted States, does not apply to discriminatory laws
such as those criminalizing consenting relationships between those of the same sex.



Best Practices in the Asia-Pacific Region with respect to
protecting LGBT rights
While there are many challenges to actualising a regime of fundamental human rights for
LGBT persons there are some examples of good practices in the Asia Pacific region which
demonstrate a commitment to ensuring respect for universal human rights without
discrimination on grounds of sexual orientation and gender identity. These practices can be
classified as under:


Decisions of Domestic Courts
The judiciary has often been a pro-active force in ensuring that universal human rights also
apply to LGBT persons. In the Asia Pacific region in particular key decisions by the Superior




409 Ziba Mir Hosseni, Criminalizing sexuality: Zina       laws   as   violence   against   women   in   Muslim   contexts,
http://www.wluml.org/node/6073 accessed on 20 May 2010.
410 Annex, UN Doc E/CN.4/1984/4 (1984).



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Courts in Australia,411 Philippines,412 Korea,413 Nepal,414 and India415 have been instrumental
in signalling greater respect for the rights of LGBT persons.

The message being sent through these decisions is that the protection of the rights of LGBT
persons is entirely consistent with so called ‘Asian values’.

Constitutions in the Asia Pacific region reflect values of tolerance, inclusivity and acceptance,
and these are values which are embedded in communities, cultures, societies and nations
throughout the Asia Pacific region. In fact as the Delhi High Court observed:

          ‘If there is one constitutional tenet that can be said to be underlying theme of the Indian
          Constitution, it is that of ‘inclusiveness’. This Court believes that Indian Constitution
          reflects this value deeply ingrained in Indian society, nurtured over several generations.
          The inclusiveness that Indian society traditionally displayed, literally in every aspect of
          life, is manifest in recognising a role in society for everyone. Those perceived by the
                                                                                              416
          majority as “deviants’ or ‘different’ are not on that score excluded or ostracised.


Actions by NHRI’s in the Asia Pacific region
The NHRI’s in the Asia Pacific region have also demonstrated an ability to take on board the
issues of a marginalised sector and give voice to a community which has otherwise been
voiceless. Commenting on its pioneering study which was the first to place the narratives of
transgender people within a human rights framework, the New Zealand Human Rights
Commission observed that:

          A NHRI was best placed to affirm the fundamental human rights of trans people and
          challenge the perception that being trans is ‘a lifestyle choice’ and therefore not a human
          rights issue The very small size and fragmentation of trans communities meant that trans
                                                                                           417
          advocacy groups were not in a position to progress these issues on their own.

The Korean Human Rights Commission too has sought to redress issues of discrimination
based on sexual orientation, working closely with LGBT organisations in operationalising its
mandate and continues to propose law reforms which address discrimination on grounds of
sexual orientation.418

The NHRI of Thailand has proposed legislative reform to cover discrimination on the basis of
sexual orientation.419

The Australian Human Rights Commission has conducted a National Inquiry into
discrimination against people in same-sex relationship in their financial and work-related
entitlements and benefits. The Human Rights Commissioner travelled around Australia
holding public hearings and community forums to hear, first hand, about the impact of
discriminatory laws on same-sex couples and their children. The process resulted in



411 The Attorney-General for the Commonwealth v. “Kevin and Jennifer” & Human Rights and Equal Opportunity Commission,
[2003] FamCA 94 (21 February 2003).
412 Republic of the Philippines v. Jennifer B. Cagandahan, G.R. No.166676 (September 12, 2008).
413 National Human Rights Commission of Korea (NHRCK) activities in relation to sexual orientation and gender identity
available at http://www.asiapacificforum.net/issues/sexual_orientation accessed on 20 May 2010.
414 Sunil Babu Pant and others v. Nepal Government and others, op. cit.
415 Naz Foundation v. NCT Delhi (2009) 160 DLT 277.
416 Id. Para 130.
417 http://www.asiapacificforum.net/issues/sexual_orientation accessed on 20 May 2010.
418 Id.
419 Id.



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significant and widespread changes to domestic legislation to remove discrimination and
disadvantage.420


Actions by Governments in the Asia Pacific Region
The Government of India has been proactive in recognizing the transgender community in
terms of a category referred to as ‘other’ in the Election ID card as well as in passports. The
Government has also recognised the right of transgender persons to contest elections. In
some States a Transgender Welfare Board has been established to look into the needs of
the transgender community.421

In Australia, homosexual relationships are legal, with the Human Rights (Sexual Conduct)
Act 1994 providing that sexual conduct involving only consenting adults (18 years or over)
acting in private would not be subject to arbitrary interference by law enforcement. Further
discrimination in employment, accommodation and the provision of goods and services is
prohibited in all States and Territories, but not federally.422

In New Zealand, the Human Rights Amendment Act was passed into law in 1993. The main
objective of this amendment was not only to outlaw discrimination on grounds of sexuality but
also to provide protection and recognition. Further non-discrimination and minority rights
provided for under the Human Rights Act ensures that a citizen of New Zealand has the right
to freedom from discrimination on the grounds of sex, marital status, religious belief, ethical
belief, colour, race, ethnic or national origins, disability, age, political opinion, employment
status, family status, and sexual orientation.423




420 Id.
421 See section on India above.
422 See section on Australia above.
423 See section on New Zealand above.



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Chapter V: Recommendations

General Recommendations
     NHRI’s to document the impact of laws criminalising same sex sexual conduct between
      consenting adults, and on the basis of that documentation recommend the repeal of
      these laws.

     NHRI’s to document the violations caused to transgender persons on the basis of the
      inability to access legal documentation in the gender of their choice and to propose law
      reform

     NHRI’s to respond to instances of torture as well as cruel, inhuman and degrading
      treatment, in an urgent manner

     NHRI’s to take seriously issues of discrimination brought forward by LBGT persons and
      respond to the same.

     NHRI’s to respond to the health concerns of LGBT persons and ensure protection of all
      civil rights of LGBT persons to ensure an effective response to the HIV/AIDS epidemic.

     NHRI’s to undertake studies to show how a regime of rights protecting LGBT persons is
      not incompatible with notions of culture and religion

     NHRI’s to strongly recommend that States follow the Siracusa Principles when it comes
      to any derogation from rights guaranteed under the ICCPR in terms of the limitation
      clauses.

In addition to the above more general recommendations, the following are country specific
recommendations:

    Box 1: Recommendations arising from the APF Workshop on the role of NHRIs in the
    promotion and implementation of the Yogyakarta Principles
    At the APF workshop participants discussed and considered appropriate responses to the
    recommendation in the Yogyakarta Principles, and their role in the promotion and implementation of
    the Yogyakarta Principles. Participants noted that, amongst other things: the mandate of Paris
    Principles compliant NHRIs extended to addressing the rights of those who suffer human rights
    violations on the basis of sexual orientation or gender identity; there were a variety of functions
    relevant to NHRI action including monitoring, complaint handling, advocacy and education; human
    rights defenders may face additional challenges and require protection of their rights; and while
    affirming the right to expression of religious or other beliefs, that right may not violate the human
                                                 424
    rights and fundamental freedoms of others.
    Participants also identified a variety of actions that could be undertaken including:
    a) recognising persons of diverse sexual orientations and gender identities as groups that are
    vulnerable to human rights violations
    b) ensuring that persons of diverse sexual orientations and gender identities are groups included in
    the national human rights institution’s human rights work




424 See Annex 3 for the complete text of the conclusions of the complete APF Workshop on the role of NHRIs in the promotion
and implementation of the Yogyakarta Principles.



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 c) disseminating and promote the Yogyakarta Principles, especially to those whose rights they
 affirm, including in local languages
 d) monitoring the enjoyment of human rights by persons of diverse sexual orientations and gender
 identities
 e) providing forums and other mechanisms through which the national human rights institution can
 consult and collaborate with persons of diverse sexual orientations and gender identities in the work
 of the promotion and protection of human rights
 f) ensuring that the national human rights institution’s complaints mechanisms are accessible to
 those who suffer human rights violations on the basis of their actual or perceived sexual orientation
 or gender identity
 g) undertaking research, including through inquiries and consultation with persons of diverse sexual
 orientations and gender identities, to identify the nature and incidence of human rights violations in
 the country based on sexual orientation and gender identity
 h) on the basis of that research, developing programs and projects that address human rights
 violations based on sexual orientation or gender identity, including by providing human rights
 education and information about remedies for human rights violations and including persons of
 diverse sexual orientations and gender identities in outreach programs
 i) reviewing existing laws and recommending law reform to remove provisions that violate human
 rights on the basis of sexual orientation or gender identity and to enact provisions that ensure
 protection and promotion of the human rights of persons of diverse sexual orientations and gender
 identities, including by prohibiting discrimination on these grounds and
 j) promoting the consideration of human rights issues in relation to sexual orientation and gender
 identity at the international level, including through inclusion of these issues where relevant in
 reports to treaty monitoring bodies, Special Procedures, the Universal Periodic Review and the
 Human Rights Council and by encouraging governments to support serious discussion of these
 issues in international human rights forums.




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Country Specific Recommendations

Afghanistan
   Advocate for the explicit recognition of sexual orientation and gender identity as
    prohibited grounds of discrimination in relevant provincial and national legislation.

   Advocate the repeal or amendment (as appropriate) of Article 427 of the Afghan Penal
    Code to remove criminal sanctions for same sex sexual conduct between consenting
    adults.

   Review and advocate the repeal or amendment (as appropriate) of provisions in the Law
    Governing the Personal Affairs of the Shiites, and in particular Article 93, to address any
    provisions that are inconsistent with international human rights and freedoms

   Advocate for the formal recognition of changes of gender including through the provision
    of formal identification and other documentation in a person's gender of choice.

   Advocate for the interpretation and application of religious and customary laws and
    practices in accordance with the international human rights and freedoms, and in
    particular, prohibitions on torture and cruel, inhuman or degrading treatment or
    punishment

   Respond to individual complaints of violations of the rights of LGBT persons


Australia
   Advocate for the explicit recognition of sexual orientation and gender identity as
    prohibited grounds of discrimination in all relevant provincial and national legislation

   Advocate for the formal recognition of changes of gender including through the provision
    of formal identification and other documentation in a person's gender of choice.

   Advocate for the interpretation and application of religious laws and practices in
    accordance with the international human rights and freedoms.

   Recommend the harmonization of age of consent laws in state and federal jurisdictions.

   Undertake a study of more marginalised populations such as transgender and intersex
    people and particularly from disadvantaged backgrounds.

   Advocate for full equality in terms of marriage and adoption rights for same sex couples.

   Recommend that the Refugee Review Tribunal, when considering applications for
    asylum, review precedents that support the rejection of homosexual, transgender or
    intersex applicants who are able to return to their country of origin and lead 'discreet
    lives'.

   Recommend that the Refugee Review Tribunal, when considering applications for
    asylum, no longer distinguish between pre and post operative transgender applicants




Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity       92
India
   Advocate for the explicit recognition of sexual orientation and gender identity as
    prohibited grounds of discrimination in relevant provincial and national legislation

   Advocate the repeal or amendment (as appropriate) of Article 377 of the Indian Criminal
    Code to remove criminal sanctions for same sex sexual conduct between consenting
    adults.

   Advocate for the formal recognition of changes of gender including through the provision
    of formal identification and other documentation in a person's gender of choice.

   Advocate for the interpretation and application of religious and customary laws and
    practices in accordance with the international human rights and freedoms.

   Recommend that the current process of rape law reform addresses the concerns of
    transgender victims with the enactment of a sexual assault law, which is neutral towards
    the gender of the victim.

   Undertake a study on the impact of social pressure on lesbians and the consequent
    phenomenon of lesbian suicide.


Indonesia
   Advocate for the explicit recognition of sexual orientation and gender identity as
    prohibited grounds of discrimination in relevant provincial and national legislation

   Advocate the repeal or amendment (as appropriate) of laws criminalising expressions of
    gender identity and sexual orientation.

   Advocate for LGBT persons to enjoy rights to freedom of assembly and expression
    without harassment from vigilante elements.

   Advocate for the formal recognition of changes of gender including through the provision
    of formal identification and other documentation in a person's gender of choice.

   Advocate for the interpretation and application of religious and customary laws and
    practices in accordance with the international human rights and freedoms, and in
    particular, prohibitions on torture and cruel, inhuman or degrading treatment or
    punishment.

   Advocate the repeal or amendment (as appropriate) of the Pornography Act so as not to
    apply in a discriminatory manner to same sex sexual conduct between consenting adults.


Jordan
   Advocate for the explicit recognition of sexual orientation and gender identity as
    prohibited grounds of discrimination in relevant provincial and national legislation

   Advocate for the formal recognition of changes of gender including through the provision
    of formal identification and other documentation in a person's gender of choice.



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   Advocate for the interpretation and application of religious and customary laws and
    practices in accordance with the international human rights and freedoms, and in
    particular, prohibitions on torture and cruel, inhuman or degrading treatment or
    punishment.


Malaysia
   Advocate for the explicit recognition of sexual orientation and gender identity as
    prohibited grounds of discrimination in relevant provincial and national legislation

   Advocate the repeal or amendment (as appropriate) of Article 377A, 377B and 377D of
    the Malaysia Penal Code to remove criminal sanctions for same sex sexual conduct
    between consenting adults.

   Advocate for the formal recognition of changes of gender including through the provision
    of formal identification and other documentation in a person's gender of choice.

   Advocate for the interpretation and application of religious and customary laws and
    practices in accordance with the international human rights and freedoms, and in
    particular, prohibitions on torture and cruel, inhuman or degrading treatment or
    punishment.


Maldives
   Advocate for the explicit recognition of sexual orientation and gender identity as
    prohibited grounds of discrimination in relevant provincial and national legislation

   Advocate for the formal recognition of changes of gender including through the provision
    of formal identification and other documentation in a person's gender of choice.

   Advocate for the interpretation and application of religious and customary laws and
    practices in accordance with the international human rights and freedoms, and in
    particular, prohibitions on torture and cruel, inhuman or degrading treatment or
    punishment.


Mongolia
   Advocate for the explicit recognition of sexual orientation and gender identity as
    prohibited grounds of discrimination in relevant provincial and national legislation

   Advocate the repeal or amendment (as appropriate) of Section 125 of the Mongolian
    Penal Code to remove the potential for its application to same sex sexual conduct
    between consenting adults.

   Advocate for the formal recognition of changes of gender including through the provision
    of formal identification and other documentation in a person's gender of choice.

   Advocate for the interpretation and application of religious and customary laws and
    practices in accordance with the international human rights and freedoms, and in
    particular, prohibitions on torture and cruel, inhuman or degrading treatment or
    punishment.




Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity    94
   Advocate for LGBT persons to enjoy rights to freedom of assembly and expression
    without harassment from ultra-nationalist and other groups.


Nepal
   Advocate for the explicit recognition of sexual orientation and gender identity as
    prohibited grounds of discrimination in relevant provincial and national legislation

    Advocate the repeal or amendment (as appropriate) of relevant provisions in Part 4,
    Chapter 16 of the Muluki Ain (or Country Code) that criminalise 'unnatural' sexual
    intercourse in order to remove the potential for its application to same sex sexual conduct
    between consenting adults.

   Monitor the implementation of the Supreme Court judgment in Sunil Babu Pant v Nepal
    conferring rights on the third gender.

   Advocate for the formal recognition of changes of gender including through the provision
    of formal identification and other documentation in a person's gender of choice.

   Advocate for the interpretation and application of religious and customary laws and
    practices in accordance with the international human rights and freedoms, and in
    particular, prohibitions on torture and cruel, inhuman or degrading treatment or
    punishment.


New Zealand
   Advocate for the explicit recognition of gender identity as prohibited grounds of
    discrimination in relevant provincial and national legislation

   Advocate for the interpretation and application of religious and customary laws and
    practices in accordance with the international human rights and freedoms.

   Continue to monitor and advocate the implementation of recommendations arising from
    the Human Rights Commission's inquiry and report on transgender issues ‘To Be Who I
    Am'.

   Recommend full equality, including amendment of the Adoption Act 1955 to explicitly
    allow same sex de facto couples and civil union partners to make joint applications for
    adoption.

   Recommend that the government take proactive measures in ensuring that the law
    dealing with refugees recognizes and allows for transgender applicants.


Palestine
   Advocate for the explicit recognition of sexual orientation and gender identity as
    prohibited grounds of discrimination in relevant provincial and national legislation

   Advocate the repeal or amendment (as appropriate) of Section 152 of the Criminal Code
    Ordinance of 1936 to remove criminal sanctions for same sex sexual conduct between
    consenting adults.




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   Advocate for the formal recognition of changes of gender including through the provision
    of formal identification and other documentation in a person's gender of choice.

   Advocate for the interpretation and application of religious and customary laws and
    practices in accordance with the international human rights and freedoms, and in
    particular, prohibitions on torture and cruel, inhuman or degrading treatment or
    punishment.


Qatar
   Advocate for the explicit recognition of sexual orientation and gender identity as
    prohibited grounds of discrimination in relevant provincial and national legislation

   Advocate the repeal or amendment (as appropriate) of Articles 285, 294 and 296 of the
    Penal Code to remove criminal sanctions for same sex sexual conduct between
    consenting adults.

   Advocate for the formal recognition of changes of gender including through the provision
    of formal identification and other documentation in a person's gender of choice.

   Advocate for the interpretation and application of religious and customary laws and
    practices in accordance with the international human rights and freedoms, and in
    particular, prohibitions on torture and cruel, inhuman or degrading treatment or
    punishment.


Republic of Korea
   Advocate for the explicit recognition of sexual orientation and gender identity as
    prohibited grounds of discrimination in relevant provincial and national legislation

   Advocate for the formal recognition of changes of gender including through the provision
    of formal identification and other documentation in a person's gender of choice.

   Advocate for the interpretation and application of religious and customary laws and
    practices in accordance with the international human rights and freedoms.


Sri Lanka
   Advocate for the explicit recognition of sexual orientation and gender identity as
    prohibited grounds of discrimination in relevant provincial and national legislation

   Advocate the repeal or amendment (as appropriate) of Sections 365 and 365A of the
    Penal Code to remove criminal sanctions for same sex sexual conduct between
    consenting adults.

   Advocate for the formal recognition of changes of gender including through the provision
    of formal identification and other documentation in a person's gender of choice.

   Advocate for the interpretation and application of religious and customary laws and
    practices in accordance with the international human rights and freedoms, and in
    particular, prohibitions on torture and cruel, inhuman or degrading treatment or
    punishment.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity    96
Thailand
   Advocate for the interpretation of Article 30(3) of the Constitution to extend the equality
    protection to persons of diverse sexual orientation and gender identity.

   Advocate for the explicit recognition of sexual orientation and gender identity as
    prohibited grounds of discrimination in relevant provincial and national legislation

   Advocate for the formal recognition of changes of gender including through the provision
    of formal identification and other documentation in a person's gender of choice.

   Recommend changes in discriminatory laws such as Section 5 of the Civil Code
    regarding inheritance that stipulates that only a person with legal marital status can be
    considered a legal heir.

   Advocate for LGBT persons to enjoy rights to freedom of assembly and expression
    without harassment from vigilante and other groups.


The Philippines
   Advocate for the explicit recognition of sexual orientation and gender identity as
    prohibited grounds of discrimination in relevant provincial and national legislation

   Advocate for the formal recognition of changes of gender including through the provision
    of formal identification and other documentation in a person's gender of choice.

   Advocate for the interpretation and application of religious and customary laws and
    practices in accordance with the international human rights and freedoms, and in
    particular, prohibitions on torture and cruel, inhuman or degrading treatment or
    punishment.


Timor Leste
   Advocate for the explicit recognition of sexual orientation and gender identity as
    prohibited grounds of discrimination in relevant provincial and national legislation.

   Advocate for the formal recognition of changes of gender including through the provision
    of formal identification and other documentation in a person's gender of choice.

   Advocate that the East Timor's HIV/AIDS policy and program specifically include
    coverage of the MSM population.

   Advocate for the interpretation and application of religious and customary laws and
    practices in accordance with the international human rights and freedoms.




Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity       97
Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity   98
Table of Abbreviations
ACT                    Australian Capital Territory
add.                   Additional
AIDS                   Acquired Immuno Deficiency Virus
ALJR                   Australian Law Journal Reports
ALR                    Australian Law Review
Art.                   Article
Au                     Australia
CAT                    United Nations Convention Against Torture
CLR                    Commonwealth Law Reports
CRC                    Committee on Rights of the Child
Dec.                   December
DLT                    Delhi Law Tribunal
Doc                    Document
ECHR                   European Court of Human Rights
eds.                   editors
EHRR                   European Human Rights Report
ESCR                   Economic Social and Cultural Rights Committee
Fam CA                 Family Court of Australia
GI                     Gender Identity
Gov.                   Government
HCA                    High Court of Australia
HIV                    Human Immuno-deficiency Virus
Hon.                   Honourable
HREOC                  Human Rights and Equal Opportunity Commission
Hum. Rts Rev           Human Rights Review
ICCPR                  International Covenant on Civil and Political Rights.
ICESCR                 International Covenant on Economic Social and Cultural Rights
ILGA                   International Lesbian and Gay Association
IPC                    Indian Penal Code
InterAm CHR            Inter American Commission on Human Rights
Intl J Refugee L       International Journal of Refugee Law
Jul.                   July
LERA                   The Legal Entries Registration Authority
LGBT                   Lesbian Gay Bisexual Transgender community
L.Rev                  Law Review
Ltd                    Limited
LTTE                   Liberation Tigers of Tamil Ealam
MSM                    Men having sex with men
NACO                   National AIDS Control Organization
NCR                    National Capital Region
NGO                    Non Governmental Organization
NHRCK                  National Human Rights Commission of Korea
NHRCT                  National Human Rights Commission of Thailand
NHRI                    National Human Rights Institution
NSW                    New South Wales
NSWLR                  New South Wales Law Review
NT                     Northern Territory Anti Discrimination Act
NUJS                   National University of Juridical Sciences
NZ                     New Zealand
NZLR                   New Zealand Law Review
Oct                    October
Org                    organization


Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity   99
p.                     Page number
para                   paragraph
QLD                    Queensland Anti Discrimination Act
RRT                    Refugee Review Tribunal
SA                     South Australia
SO                     Sexual Orientation
Sec.                   Secretary
TAS                    Tasmania
UDHR                   Universal Declaration of Human Rights
UK                     United Kingdom
UN                     United Nations
UNAIDS                 Joint United Nations Programme on HIV and AIDS
UNDG                   United Nations Development Group
UNGA                   United Nations General Assembly
UNHCHR                 United Nations High Commission for Human Rights
UPR                    Universal Periodic Review
US                     United States of America
v.                     versus
VIC                    Victoria
WA                     Western Australia




Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity   100
Table of Cases
Attorney-General vs. Otahuhu Family Court [1995] 1 NZLR 603

Australian Capital Television Pty Ltd vs. Commonwealth, [1992] HCA 1; (1992) 104 ALR 389;
(1992) 66 ALJR 214

Bhattachan v. Minister for Immigration and Multicultural Affairs [1999] FCA 547 (27 April.
1999)

Brown vs. Commissioner for Superannuation (1995) 38 ALD 344

Department of Social Security v. SRA (1993) 118 ALR 467

Dhirendra Nadan v. State, Criminal Appeal Case Nos. HAA 85 and 86 of 2005

Dudgeon vs. United Kingdom A 45 (1981); (1982) 4 EHRR 149

F v. Minister for Immigration and Multicultural Affairs [1999] FCA 947

Goodwin vs. United Kingdom (2002) 35 EHRR 18

Hossain v. Minister for Immigration and Multicultural Affairs [1999] FCA 957

I. vs. United Kingdom (2003) 36 EHRR 53

Joslin v. New Zealand, Communication No. 902/1999, CCPR/C/75/D/902/1999

Karen Atala and Daughters v. Chile, Case 1271-04, Report No. 42/08, Inter-Am

Karner v. Austria, 2003-IX 199, (2003) 38 EHRR 24

“Kevin and Jennifer” v. Human Rights and Equal Opportunity Commission [2003] FamCA 94
(21 February 2003)

Kozak v. Poland, [2010] ECHR 280 (2 March 2010)

L. v. Lithuania Application No. 27527/03, Judgment of 11 September 2007

L. and V. v. Austria 2003-I 29; (2003) 36 EHRR 55

Lawrence v. Texas, 539 U.S. 558 (2003)

Leung T C William Roy v. Secretary for Justice, CACV 317/2005

Lustig-Prean and Beckett vs. United Kingdom (1999) 29 EHRR 548

Marta Lucia Alvarez Giraldo vs. Colombia, Case number 11.656, Report No. 71/99
(Admissibility) of 4 May 1999

“Michael” vs. Registrar General of Births, Deaths and Marriages (9 June 2008, Family Court,
Auckland FAM 2006-004-002325

Minister for Immigration and Multicultural Affairs v. Guo Ping Gui [1999] FCA 1496 (29 Oct.
1999)



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity   101
MMM v. Minister for Immigration and Multicultural Affairs [1998] 1664 FCA (22 Dec. 1998)

Modinos vs. Cyprus A 259 (1993); (1993) 16 EHRR 485

Mohammad Aslam Khaki vs. S.S.P (Operations) Rawalpindi and others Constitution Petition
No. 43 of 2009

Nallaratnam Singarasa v. The Hon. Attorney General, S.C. SpL(LA) No. 182/99

National Coalition For Gay and Lesbian Equality v. Minister of Justice, [1998] {12} PCLR
1517

Nationwide News Pty Ltd vs. Wills [1992] HCA 46; (1992) 177 CLR 1)

Naz Foundation v. NCT Delhi (2009) 160 DLT 277

Norris vs. Ireland A 142 (1988); (1988) 13 EHRR 186

Quilter vs. Attorney-General [1998] 1 NZLR 528

R v. Harris and McGuiness (1988) 17 NSWLR158

Republic of the Philippines v. Jennifer B. Cagandahan, G.R. No.166676 (September 12,
2008)

Salgueiro da Silva Mouta v. Portugal 1999-IX 309; (1999) 31 EHRR 1055

S.L. v. Austria 2003-I 71; (2003) 37 EHRR 3.9

Smith and Grady vs. United Kingdom 1999-VI 45; (1999) 29 EHRR 493

Sunil Babu Pant and others v. Nepal Government and others (Supreme Court) [Nepal]; Writ
No. 917 of the year 2064 BS (2007 AD)

Toonen v. Australia, Communication No.488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994)

Van Kuck vs. Germany 2003-VII 1; (2003) 37 EHRR 51

Vishaka v. State of Rajasthan, AIR 1997 SC 3011

Wong Chiou Yong v. Pendaftar Besar, [2005] 1 CLJ 622

X vs. Columbia, Communication No. 1361 of 2005, para 10

Young v. Australia, Communication No. 941/2000




Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity     102
Table of International Treaties and Conventions
African Charter on Human and People’s Rights (1986).

American Convention on Human Rights (1978).

Convention Against Torture (1985).

‘Declaration of Principles of Equality’ issued by the Equal Rights Trust in April, 2008.

European Convention of Human Rights (1953).

First Optional Protocol to the International Covenant on Civil and Political Rights (1966).

International Covenant on Civil and Political Rights (1966).

International Covenant on Economic, Social and Cultural Rights (1966).

Siracusa Principles on the Limitation and Derogation of Provisions in the International
Covenant on Civil and Political Rights (1984)

Universal Declaration of Human Rights (1948).

Vienna Declaration and Programme of Action, as adopted by the World Conference on
Human Rights on 25 June 1993.

Yogyakarta Principles on the Application of International Human Rights Law in relation to
Sexual Orientation and Gender Identity (2007).




Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity        103
Table of Constitutions and Domestic Legislation
Afghan Penal Code 1976.

Anti-Discrimination (Homosexual Vilification) Amendment Act 1993, New South Wales.

Australian Capital Territory Discrimination Act 1991 (ACT).

Australian Capital Territory Domestic Relationships Act 1994.

Australian Human Rights Commission Act 1986.

Australian Migration Act (1958).

Bill of Rights of the Constitution of the Philippines (1987).

Civil Union Act 2004, New Zealand.

Constitution of Afghanistan (April 9, 1923).The Penal Code of 1883, Sri Lanka.

Constitution, Thailand (2007).

Constitution, Timor Leste (May 20, 2002)

Constitution of the Republic of Maldives of 2008.

Criminal Code, 1960, Jordan.

Criminal Code, 1956, Thailand.

Criminal Code of Mongolia as revised in 2002.

Criminal Code, Qatar (2004).

Criminal Code Ordinance of 1936, Palestine, in force in the Gaza Strip.

Family Law Act 1975 Australia.

Human Rights Commission Act, 1977, amended 1993.

Income Tax Assessment Act 1936, Australia.

Jordanian Constitution, (1 January, 1952).

Indonesian Constitution (1945).

Malaysian Constitution (1957).

Mongolian Constitution (1992).

Mongolian Penal Code (2008).

New South Wales Anti-Discrimination Act 1977 (NSW).

Northern Territory Anti-Discrimination Act 1996 (NT).



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity   104
NSW Wills Probate and Administration Act 1898.

Penal Code of Indonesia, 1915.

Penal Code, 1997, Malaysia.

Property (Relationships) Act 2000, New Zealand.

Revised Penal Code, 1930.

Qatari Constitution (29 April, 2003).

Queensland Anti-Discrimination Act 1991 (QLD).

South Korean Constitution (1948).

Relationships (Statutory References) Act 2005, New Zealand.

Social Security Act 1991South Australia Equal Opportunity Act 1984 (SA).

Superannuation Act 1976, Australia.

Tasmania Anti-Discrimination Act 1998 (TAS).

The Basic Law, 1997, Palestine.

The Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law
Reform) Act of 2008, Australia.

Vagrants Ordinance, Sri Lanka (1841).

Victoria Equal Opportunity Act 1995 (VIC).

Western Australia Equal Opportunity Act 1984 (WA).

Youth Protection Act of 1997, South Korea.




Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity   105
Annexure 1: Table of criminalisation of same sex conduct and anti-discrimination
legislation

Overview of criminalisation of same sex conduct and anti-discriminatory legislation in the Asia-Pacific

 Name of the State      Whether an anti-discrimination     In what respects the anti-            Whether the criminal law of the    Any specific comments
                        law exists protecting the rights   discrimination law protects           State criminalises person on the   regarding the criminal law
                        of individuals on the basis of     individuals on the basis of SO/       basis of SO/ GI
                        SO/ GI                             GI


 1. Afghanistan         No                                 –                                     Yes                                Arts. 427 and 430 of the Penal
                                                                                                                                    Code as well as the Sharia which
                                                                                                                                    is in force, penalise homosexual
                                                                                                                                    conduct.


 2. Australia           Yes                                Equality is guaranteed to             No                                 –
                                                           individuals irrespective of SO / GI
                                                           by various state level laws, but no
                                                           federal antidiscrimination
                                                           legislation exists.


 3. India               No                                 Equality before law is guaranteed     No                                 Decriminalised by a court verdict,
                                                           by the Constitution as a                                                 the interpretation of the
                                                           fundamental right and                                                    constitutional equality provisions is
                                                           discrimination on the basis of                                           also as per the same court verdict.
                                                           sexual orientation is not permitted
                                                           by Art. 15.


 4. Indonesia           No                                 –                                     Yes                                Sharia law in force in one province
                                                                                                                                    (Aceh), which penalizes
                                                                                                                                    homosexual conduct. Criminal
                                                                                                                                    laws in provinces related to
                                                                                                                                    prostitution used to target LGBT
                                                                                                                                    persons.




Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                  106
 Name of the State      Whether an anti-discrimination     In what respects the anti-            Whether the criminal law of the    Any specific comments
                        law exists protecting the rights   discrimination law protects           State criminalises person on the   regarding the criminal law
                        of individuals on the basis of     individuals on the basis of SO/       basis of SO/ GI
                        SO/ GI                             GI


 5. Jordan              No                                 –                                     No                                 –


 6. Malaysia            No                                 –                                     Yes                                Sections 337A and 377 of the
                                                                                                                                    Penal Code as well as Sharia,
                                                                                                                                    which is in force, penalise
                                                                                                                                    homosexual conduct and cross
                                                                                                                                    dressing.


 7. Maldives            No                                 –                                     Yes                                The Penal Code as well as the
                                                                                                                                    Sharia which is in force, penalise
                                                                                                                                    homosexual conduct.


 8. Mongolia            No                                 –                                     No                                 Though the ‘unnatural desire’
                                                                                                                                    provision is meant to target
                                                                                                                                    coercive sex, evidence indicates
                                                                                                                                    that the police continue to use it.


 9. Nepal               No                                 Equality before law is guaranteed     No                                 The interpretation of the
                                                           by the Constitution as a                                                 constitutional equality provisions is
                                                           fundamental right irrespective of                                        as per a court verdict.
                                                           SO / GI as per Article 13.


 10. New Zealand        Yes                                Discrimination on the basis of        No                                 –
                                                           sexual orientation is prohibited by
                                                           Section 21 of the Human Rights
                                                           Act, 1993.


 11. Palestinian        No                                 –                                     Yes                                The Criminal Code Ordinance,
 Territories                                                                                                                        1936, which penalises homosexual
                                                                                                                                    conduct, is enforced in some parts
                                                                                                                                    (Gaza Strip).




Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                  107
 Name of the State      Whether an anti-discrimination     In what respects the anti-        Whether the criminal law of the    Any specific comments
                        law exists protecting the rights   discrimination law protects       State criminalises person on the   regarding the criminal law
                        of individuals on the basis of     individuals on the basis of SO/   basis of SO/ GI
                        SO/ GI                             GI


 12. Philippines        No                                 –                                 No                                 –


 13. Qatar              No                                 –                                 Yes                                Sections 294 and 296 of the Penal
                                                                                                                                Code of 2004 penalise
                                                                                                                                homosexual conduct and cross-
                                                                                                                                dressing.


 14. South Korea        No                                 –                                 No                                 –


 15. Sri Lanka          No                                 –                                 Yes                                Section 365A of the Penal Code of
                                                                                                                                1883 penalises homosexual
                                                                                                                                conduct.


 16. Thailand           No                                 –                                 No                                 –


 17. Timor-Leste        No                                 –                                 No                                 –




Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity              108
Annexure 2: Table of laws permitting change of gender

Overview of laws permitting change of gender in the Asia-Pacific

 Name of the State        Whether the State’s laws enable     Any specific comments regarding such laws
                          the official recognition of
                          changes of GI from that assigned
                          to a person at birth


 1. Afghanistan           No                                  –


 2. Australia             Yes                                 Part 5A, Births, Deaths and Marriages Registration Act,
                                                              1995; Sexual Reassignment Act
                                                              1988, subject to ‘unmarried status; and sex reassignment surgery.


 3. India                 No                                  Transgendered individuals are permitted to declare their gender as ‘other’.


 4. Indonesia             Yes                                 Change of gender after reassignment surgery can be legally effected by a district court, based on
                                                              jurisprudence after the case of Iwan Rubianto è Vivian Rubianto at the South Jakarta District Court in 1973.


 5. Jordan                No                                  –


 6. Malaysia              No                                  –


 7. Maldives              No                                  –


 8. Mongolia              No                                  –


 9. Nepal                 Yes                                 Permitted as a result of a court verdict.


 10. New Zealand          Yes                                 Permitted as a result of a court verdict.




Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                    109
 Name of the State        Whether the State’s laws enable     Any specific comments regarding such laws
                          the official recognition of
                          changes of GI from that assigned
                          to a person at birth


 11. Palestinian          No                                  –
 Territories


 12. The Philippines      Intersex – Yes                      A court verdict has allowed intersex persons to change their names officially. Transgender persons can
                          Transgender – No                    change their name through an administrative process, but cannot alter their sex in official documents.


 13. Qatar                No                                  –


 14. South Korea          Yes                                 Permitted as a result of a court verdict.


 15. Sri Lanka            No


 16. Thailand             No                                  Sex Reassignment Surgery is legally recognised but banned for those below 18. For 18-20 age group,
                                                              parental permission is required.


 17. Timor-Leste          No




Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                    110
Annexure 3: Conclusions of the Workshop on the Role of
National Human Rights Institutions in the Promotion and
Implementation of the Yogyakarta Principles
From 5 to 7 May 2009, the Asia Pacific Forum of National Human Rights Institutions
convened a workshop in Yogyakarta, Indonesia, to discuss a response to the
recommendation to national human rights institutions in the Principles on the Application of
International Human Rights Law in relation to Sexual Orientation and Gender Identity (the
Yogyakarta Principles).425

The workshop consisted of the representatives of nine APF member institutions:

    the host institution: the National Commission on Human Rights of Indonesia

    the chair and deputy chairs of the APF: the Human Rights Commission of Malaysia, the
     Australian Human Rights Commission and the Jordan National Centre for Human Rights,
     and

    one member from each APF sub-region: the National Human Rights Commission of
     Nepal (South Asia sub-region), the New Zealand Human Rights Commission (Pacific
     sub-region), the Palestinian Independent Commission for Human Rights (West Asia sub-
     region), the National Human Rights Commission of Korea (North Asia sub-region) and
     the National Human Rights Commission of Thailand (South East Asia sub-region).

The representatives of national human rights institutions were assisted at the workshop by a
number of international human rights experts and experts in broader cultural, political and
religious issues in the Asia Pacific.426 They expressed their appreciation to these experts for
the assistance and advice. They were especially grateful to the National Commission on
Human Rights of Indonesia for hosting the workshop and for its warm hospitality. They also
expressed their appreciation to the APF secretariat for its work in the organisation of the
meeting.

The Yogyakarta Principles were adopted in March 2007 by a distinguished group of
internationally recognised human rights experts, from 25 countries in all regions. The
Yogyakarta Expert Group had developed the Principles through discussion and consultation
over many months, culminating in a meeting in Yogyakarta, Indonesia, from 6 to 9 November
2006. The Principles express the existing state of international human rights law in relation to
sexual orientation and gender identity.427

In the Yogyakarta Principles, the Expert Group says,

       All members of society and of the international community have responsibilities regarding
       the realisation of human rights. We therefore recommend that . . . National human rights
       institutions promote respect for these Principles by State and non-State actors, and


425 See Appendix 1.
426 See Appendix 2.
427 In the Yogyakarta Principles ‘sexual orientation’ refers to ‘each person’s capacity for profound emotional, affectional and
sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than
one gender’. ‘Gender identity’ refers to ‘each person’s deeply felt internal and individual experience of gender, which may or
may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely
chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender,
including dress, speech and mannerisms’. The workshop notes the diversity of terms used in different parts of the Asia Pacific
region.



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity                                    111
       integrate into their work the promotion and protection of the human rights of persons of
       diverse sexual orientations or gender identities.

The workshop was convened in response to this recommendation. The objectives of the
workshop were

    to learn how national human rights institutions are using their mandate and powers to
     promote and protect the human rights of people of diverse sexual orientation and gender
     identities

    to build understanding of the Yogyakarta Principles

    to consider the regional political and social contexts and any specific challenges

    to consider the relevance of Yogyakarta Principles to the work of national human rights
     institutions and

    to deepen knowledge and build better understanding of country specific terms for people
     of diverse sexual orientation and gender identities.

The workshop adopted these Conclusions.

1.     The workshop affirms without qualification that all human beings are born free and
       equal in dignity and rights and that everyone is entitled to the enjoyment of human
       rights 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.

2.     The workshop strongly deplores all forms of stereotyping, exclusion, stigmatisation,
       prejudice,  intolerance,   discrimination   and     violence    directed    against
       peoples, communities and individuals on any ground whatsoever, wherever they
       occur.

3.     The workshop accepts that national human rights institutions that comply with the Paris
       Principles have a broad mandate to promote and protect the human rights of all
       persons, on the basis of equality and without discrimination, and that this mandate
       extends to those who suffer human rights violations based on their actual or perceived
       sexual orientation or gender identity.

4.     The workshop acknowledges that in accordance with the Paris Principles national
       human rights institutions have many functions that would contribute to the promotion
       and protection of the human rights of persons of diverse sexual orientation and gender
       identity, including monitoring compliance with international human rights treaty and
       domestic human rights law, investigation of complaints of violation of human rights,
       national inquiries into systemic patterns of human rights violation, human rights
       education, review of laws and raising awareness of human rights and human rights
       obligations.

5.     The workshop recognises the significant work that many national human rights
       institutions in the Asia Pacific region have already done to promote and protect the
       human rights of people of diverse sexual orientations and gender identities, through the
       exercise of their functions.

6.     The workshop recognises with deep concern that in the Asia Pacific region people
       continue to experience violations of human rights on the basis of their actual or
       perceived sexual orientation or gender identity. Violations in the region include arbitrary



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity            112
      execution, extra judicial killing, rape, torture and other forms of cruel, inhuman or
      degrading treatment or punishment, arbitrary detention, inhuman detention, unfair trial
      and lack of due process. The violations also include rape of women for the purpose of
      changing their sexual orientation, forced pregnancy and forced marriage. They include
      deprivation of the right to privacy, the right to freedom of expression, the right to
      education, the right to work, the right to the highest attainable standard of health, the
      right to an adequate standard of living and rights relating to citizenship and legal
      recognition. They occur at the hands of State officials and authorities and at the hands
      of non-State actors, often with the actual or implied complicity of State actors and often
      with impunity.

7.    The workshop recognises also that these violations of human rights on the basis of
      sexual orientation or gender identity are compounded by discrimination on other
      grounds including gender, race and ethnicity, age, religion, health, disability and
      economic status.

8.    The workshop acknowledges that those who defend the human rights of persons of
      diverse sexual orientation and gender identity often suffer human rights violations
      because of their work as human rights defenders. Members and staff of national
      human rights institutions can also suffer human rights violations because of their work
      on these issues. Human rights defenders require promotion, protection and defence of
      their rights.

9.    The workshop is aware that in all countries religious, cultural and moral values and
      sensitivities may arise in relation to sexual orientation and gender identity. The
      workshop respects everyone’s right to freedom of religion and belief. The workshop
      recognises that, exercising that human right, people have different religious and
      cultural beliefs in relation to sexual orientation and gender identity and different
      personal moralities. The workshop affirms that the expression of religious and other
      beliefs may not violate the human rights and fundamental freedoms of others.

10.   The workshop welcomes with appreciation the Principles on the Application of
      International Human Rights Law in relation to Sexual Orientation and Gender Identity
      (the Yogyakarta Principles) as a critical component for the work of national human
      rights institutions on human rights issues in relation to sexual orientation and gender
      identity.

11.   The workshop encourages national human rights institutions to respond to the
      recommendation to them in the Yogyakarta Principles to ‘promote respect for these
      Principles by State and non-State actors, and integrate into their work the promotion
      and protection of the human rights of persons of diverse sexual orientations or gender
      identities’. The workshop also encourages national human rights institutions to promote
      respect for the Principles by civil society.

12.   The workshop recognised that this was the first occasion on which some national
      human rights institutions had discussed these issues and welcomed the opportunity to
      consider country specific and expert reports. It also recognised that the national human
      rights institutions are at different points in relation to them. Having discussed and
      considered appropriate responses to the recommendation in the Yogyakarta Principles
      and the role of national institutions in relation to promotion and implementation of the
      Yogyakarta Principles, the workshop encourages NHRIs to respond to the
      recommendation and considers that appropriate responses could include

      a.     recognising persons of diverse sexual orientations and gender identities as
             groups that are vulnerable to human rights violations



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity      113
      b.     ensuring that persons of diverse sexual orientations and gender identities are
             groups included in the national human rights institution’s human rights work

      c.     disseminating and promote the Yogyakarta Principles, especially to those whose
             rights they affirm, including in local languages

      d.     monitoring the enjoyment of human rights by persons of diverse sexual
             orientations and gender identities

      e.     providing forums and other mechanisms through which the national human rights
             institution can consult and collaborate with persons of diverse sexual orientations
             and gender identities in the work of the promotion and protection of human rights

      f.     ensuring that the national human rights institution’s complaints mechanisms are
             accessible to those who suffer human rights violations on the basis of their actual
             or perceived sexual orientation or gender identity

      g.     undertaking research, including through inquiries and consultation with persons
             of diverse sexual orientations and gender identities, to identify the nature and
             incidence of human rights violations in the country based on sexual orientation
             and gender identity

      h.     on the basis of that research, developing programs and projects that address
             human rights violations based on sexual orientation or gender identity, including
             by providing human rights education and information about remedies for human
             rights violations and including persons of diverse sexual orientations and gender
             identities in outreach programs

      i.     reviewing existing laws and recommending law reform to remove provisions that
             violate human rights on the basis of sexual orientation or gender identity and to
             enact provisions that ensure protection and promotion of the human rights of
             persons of diverse sexual orientations and gender identities, including by
             prohibiting discrimination on these grounds and

      j.     promoting the consideration of human rights issues in relation to sexual
             orientation and gender identity at the international level, including through
             inclusion of these issues where relevant in reports to treaty monitoring bodies,
             Special Procedures, the Universal Periodic Review and the Human Rights
             Council and by encouraging governments to support serious discussion of these
             issues in international human rights forums.

13.   The workshop request the Asia Pacific Forum and its Secretariat to

      a.     distribute the Conclusions to all APF member institutions

      b.     establish a webpage on its website for information and exchange on issues and
             work in relation to human rights and sexual orientation and gender identity,
             including the reports, papers and Conclusions of this workshop

      c.     facilitate the exchange of information among member institutions on their work on
             human rights in relation to sexual orientation and gender diversity

      d.     assist member institutions to increase the knowledge and awareness of human
             rights in relation to sexual orientation and gender identity, including through
             training programs and staff exchanges



Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity      114
      e.     include in the Secretariat’s work-plan follow up to this workshop through a project
             to assist member institutions in their work on human rights in relation to sexual
             orientation and gender identity

      f.     develop and provide a reference to the Advisory Council of Jurists to review and
             advise whether laws in States whose national human rights institutions are
             members of the APF are consistent with international human rights law in their
             application in relation to sexual orientation and gender identity and what
             amendments to existing laws or what new laws are required to ensure
             consistency, with a report to be made for discussion at the APF’s 15th Annual
             Meeting in 2010 and

      g.     include the Yogyakarta workshop as an agenda item for APF 15 in 2010 and
             invite each APF member institution to provide a report on its activities in relation
             to human rights and sexual orientation and gender identity at that meeting.




Background paper – ACJ Reference: Human Rights, Sexual Orientation and Gender Identity       115

				
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