Human Rights and Sexual Orientation
Human Rights and Sexual Orientation
Abstract and Keywords
This chapter begins with an overview of the Universal Declaration of Human Rights (UDHR) and the International Bill of Human Rights. It then discusses lesbian, gay, bisexual, and transgender human rights; human rights abuses; discrimination and oppression based on sexual orientation and gender identification; and hate crimes.
Where, after all, do universal human rights begin? In small places, close to home—so close and so small that they cannot be seen on any map of the world. Yet they are the world of the individual person: The neighborhood he lives in; the school or college he attends; the factory, farm or office where he works. Such are the places where every man, woman and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere.
Human Rights Overview
In 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR). The UDHR is also part of the International Bill of Human Rights. The declaration was in response to the experience of the Second World War and represents the first global expression of rights to which all human beings are entitled. It consists of thirty articles that have been elaborated upon in subsequent international treaties, regional human rights instruments, national constitutions, and laws. The International Bill of Human Rights consists of the Universal Declaration of Human Rights; the International Covenant on Economic, Social and Cultural Rights; and the International Covenant on Civil and Political Rights and its two optional protocols. In 1966 the General Assembly adopted the two detailed covenants, which complete the International Bill of Human Rights, and in 1976, after the covenants had been ratified by a sufficient number of individual nations, the bill took on the force of international law. It was adopted by forty-eight countries, including the United States (Williams, 1981).
The thirty articles are expansive. However, the first, and most important in my opinion, states: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” Article 2 best encapsulates what this chapter is about: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.”
Lesbian, Gay, Bisexual, and Transgender Human Rights
According to Amnesty International USA, “We all have a sexual orientation and a gender identity, and this shared fact means that discrimination against members of the Lesbian, Gay, Bisexual and Transgender community, based on sexual orientation and/ or gender identity, is an issue that transcends that community and affects all of us” (Amnesty International, n.d).
Sexual Orientation Defined
Sexual orientation is the emotional, romantic, sexual, or affectional attraction to another person (American Psychological Association [APA], 2005). Although many people believe that sexual attraction is the only determinant of sexual orientation, the desire to share affection or become life partners also plays a role. A gay man, then, is one who is attracted primarily to other men to satisfy sexual and affectional needs. Likewise, a lesbian is attracted primarily to other (p.465) women to satisfy these needs, and bisexuals are attracted to both men and women.
Although sexual orientation is defined as a preference for sexual and affectional partners of the same sex, it is a relative rather than an absolute concept. Research such as the work of Kinsey and colleagues indicates that sexual orientation falls along a continuum from totally heterosexual to totally lesbian or gay (Kinsey, Pomeroy, & Martin, 1948). In addition, others have shown that sexual orientation may change during the course of one’s life from heterosexual to bisexual to lesbian or gay and vice versa (Savin-Williams, 1998).
Sexual orientation is not the same as gender identity or gender role. Gender identity is one’s perception of oneself as female or male, and gender role refers to the behaviors generally expected of females and males. Transgender people are people whose gender identity differs from their physical genital characteristics (Maurer, 1999). People who are transgender sometimes undergo gender reassignment surgery or other medical procedures to help create a match between their gender identity and appearance, although such procedures are expensive and many cannot afford or do not choose to undergo this type of intervention (Bailey, 1996).
Intersex is a term referring to “a variety of conditions in which a person is born with a reproductive or sexual anatomy that doesn’t seem to fit the typical definitions of female or male” (Intersex Society of North America, 2005, p. 1). Although chromosomal sex is determined at conception, male and female genitalia are identical until about seven weeks of embryonic development. With the influence of hormones, genitalia differentiate into male or female. For some intersex people, the genitalia are not distinguishable as male or female at birth. For others, their chromosomal sex and their genitalia do not match. Intersex anatomy is not always evident at birth and may not become evident until puberty.
Sexual orientation is not synonymous with sexual lifestyle. In other words, people who identify as heterosexual, lesbian, gay, bisexual, transgender, or intersex may be single, with a partner, celibate, monogamous, or polygamous. Although much of the attention around AIDS has focused on gay men, it is not lesbian or gay behavior, or for that matter heterosexual behavior, that spreads AIDS, it is unsafe sexual practices (see Kamya, Chapter 29 of this volume).
Sexual orientation covers sexual desires, feelings, practices, and identification. It can be toward people of the same or different sexes (same-sex, heterosexual, or bisexual orientation). As mentioned, gender identity refers to the complex relationship between sex and gender, a person’s experience of self-expression in relation to social categories of masculinity or femininity (gender). One’s subjectively felt gender identity may be at variance with one’s sex or physiological characteristics.
The Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity were developed in 2006 by a group of LGBT (lesbian, gay, bisexual, transgender) experts in Yogyarkarta, Indonesia, in response to well-known examples of abuse. The principles provide a universal guide to applying international human rights law to violations experienced by lesbians, gay men, bisexuals, and transgender people to ensure the universal reach of human rights protections (www.yogyakartaprinciples.org).
Human Rights Abuses
Across the globe, there are many places where sexual orientation or gender identity can lead to execution, imprisonment, torture, violence, or discrimination. The range of abuse is limitless and contravenes the fundamental tenets of international human rights law. Human rights abuses based on sexual orientation or gender can include violation of the rights of the child; the infliction of torture and cruel, inhuman, and degrading treatment (UDHR Article 5); arbitrary detention on grounds of identity or beliefs (UDHR Article 9); the restriction of freedom of association (UDHR Article 20); and the denial of the basic rights of due process.
Examples include execution by the state; denial of employment, housing, or health services; loss of custody of children; denial of asylum; rape and otherwise torture in detention; threats for campaigning for LGBT human rights; and regular subjection to verbal abuse. In many countries, the refusal of governments to address violence committed against LGBT people creates a culture of impunity where such abuses can continue unmitigated. Often, such abuses are committed by the state authorities themselves, with or without legal sanction.
Amnesty International has identified two areas of particular importance and focus in relation to LGBT human rights and in their advocacy efforts on behalf of LGBT people worldwide. Those are the decriminilazation of homosexuality and that of marriage equity.
According to Amnesty International decriminalization is when “individuals are detained or (p.466) imprisoned solely because of their homosexuality— including those individuals prosecuted for having sex in circumstances which would not be criminal for heterosexuals, or for their gender identity— are considered to be prisoners of conscience” and Amnesty International calls for their immediate and unconditional release.
Amnesty International further calls for the decriminalization of homosexuality where such legislation remains, including a review of all legislation which could result in the discrimination, prosecution and punishment of people solely for their sexual orientation or gender identity. All such laws should be repealed or amended.
Amnesty International views marriage equality as “the right of adults to enter into consensual marriage as enshrined in international human rights standards.” Article 16, Universal Declaration of Human Rights (UDHR) states that “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.”
Amnesty International further states that “Civil marriage between individuals of the same-sex is therefore an issue in which fundamental human rights are at stake. Amnesty International believes that the denial of equal civil recognition of same-sex relationships prevents many people from accessing a range of other rights, such as rights to housing and social security, and stigmatizes those relationships in ways that can fuel discrimination and other human rights abuses against people based on their sexual orientation or gender identity” (Amnesty International, n.d).
Amnesty International has opposed discrimination in laws which discriminate on the basis of sexual orientation or gender identity and has called upon states to recognize “families of choice, across borders where necessary.” They have further stated that “States should not discriminate against minority groups based on identity.”
In addition, Amnesty International-USA has actively focused its efforts on ensuring that:
• all allegations and reports of human rights violations based on sexual orientation or gender identity are promptly and impartially investigated and perpetrators held accountable and brought to justice;
• that all necessary legislative, administrative and other measures are taken to prohibit and eliminate prejudicial treatment on the basis of sexual orientation or gender identity at every stage of the administration of justice;
• Ensure adequate protection of human rights defenders at risk because of their work on human rights and sexual orientation and gender identity.
(Amnesty International, n.d).
In December 2008, the sixtieth anniversary of the Universal Declaration of Human Rights, the UN General Assembly supported a groundbreaking statement confirming that international human rights protections include sexual orientation and gender identity. It was the first time a statement condemning rights abuses against LGBT people was presented in the General Assembly. It was read into the record by Argentine ambassador Jorge Argüello. The declaration, which is nonbinding, was cosponsored by France and the Netherlands. A cross-regional group of states coordinated the drafting of the statement, including Brazil, Croatia, France, Gabon, Japan, the Netherlands, and Norway.
The 192 member states of the UN were divided on the declaration: It passed with support from 66 countries; however, 57 were opposed and 69 abstained. The 27 countries of the European Union, Australia, Canada, Japan, Mexico, New Zealand, and 34 other countries, including most of Latin America, supported the declaration. The 56 predominately Muslim countries belonging to the Organization of the Islamic Conference and other countries either abstained or voted against the declaration.
Sixty states signed an alternative text promoted by the Organization of the Islamic Conference. While affirming the “principles of non-discrimination and equality,” they claimed that universal human rights did not include “the attempt to focus on the rights of certain persons” (“UN: General Assembly statement affirms rights for all,” 2008).
The opposition to equal rights for homosexuals and transgendered persons is one of the few principles over which some predominately Muslim countries belonging to the Islamic Conference of States (ICS) and the Vatican seem to agree agree. The Holy See voiced strong opposition to the General Assembly statement, and its opposition sparked severe criticism by human rights defenders worldwide. Later in a reversal of its previous position, the Holy See indicated to the General Assembly that it called for the repeal of criminal penalties based on homosexual conduct.
(p.467) The sixty-six countries reaffirmed “the principle of non-discrimination, which requires that human rights apply equally to every human being regardless of sexual orientation or gender identity.” They stated they are “deeply concerned by violations of human rights and fundamental freedoms based on sexual orientation or gender identity,” and said that “violence, harassment, discrimination, exclusion, stigmatization and prejudice are directed against persons in all countries in the world because of sexual orientation or gender identity.” The statement condemned killings, torture, arbitrary arrest, and “deprivation of economic, social and cultural rights, including the right to health.” The participating countries urged all nations to “promote and protect human rights of all persons, regardless of sexual orientation and gender identity,” and to end all criminal penalties against people because of their sexual orientation or gender identity (“UN: General Assembly statement affirms rights for all,” 2008).
Navanetham Pillay, the UN High Commissioner for Human Rights, strongly supported the statement. In a videotaped message, she cited South Africa’s 1996 decision to protect sexual orientation in its Constitution. She pointed to the “task and challenge to move beyond a debate on whether all human beings have rights” to “secure the climate for implementation” (“UN: General Assembly statement affirms rights for all,” 2008).
According to calculations by ILGA (International Lesbian, Gay, Bisexual, Transgender and Intersex Association) and other organizations, in 2008 more than seventy countries still had laws against consensual sex between adults of the same sex. The majority of these were left behind by colonial rulers. The UN Human Rights Committee, which interprets the International Covenant on Civil and Political Rights, a core UN treaty, held in a historic 1994 decision that such laws are rights violations—and that human rights law forbids discrimination based on sexual orientation. UN treaty bodies have called on states to end discrimination in law and policy (“UN: General Assembly statement affirms rights for all,” 2008).
Human rights violations based on sexual orientation and gender identity happen regularly around the world. For example, in the United States, Amnesty International has documented serious patterns of police abuse against lesbian, gay, bisexual, and transgender people, including incidents amounting to torture and ill treatment. In Egypt, Human Rights Watch documented a massive crackdown on men suspected of homosexual conduct between 2001 and 2004, in which hundreds or thousands of men were arrested and tortured. Egypt actively opposed the General Assembly statement. The International Gay and Lesbian Human Rights Commission has documented how, in many African countries, sodomy laws and prejudice deny rights protections to Africans engaged in same-sex practices amid the HIV and AIDS pandemic and can actually criminalize outreach to affected groups. In 2010, an antihomosexuality bill was filed in the Ugandan Parliament.
Other international bodies have also opposed violence and discrimination based upon sexual orientation and gender identity, including the Council of Europe and the European Union. In 2008, all thirty-four member countries of the Organization of American States unanimously approved a declaration affirming that human rights protections extend to sexual orientation and gender identity (Amnesty International, n.d.).
In 2008, the General Assembly adopted a resolution condemning extrajudicial executions, which contained a reference opposing killings based on sexual orientation. Uganda moved to delete that reference, but the General Assembly rejected this by 78–60.
In June 2009, the US House of Representatives adopted the Foreign Relations Authorization Act (HR 2410). Importantly, the bill has groundbreaking provisions that will strengthen the State Department’s attention to serious human rights abuses directed against LGBT individuals worldwide. The bill was adopted over Republican objections that “social issues such as gay rights and abortion have no place in a State Department funding bill” (www.state.gov/documents/organization/120655.pdf). The bill does not focus on social issues; it merely creates mechanisms to improve the US government’s support for basic human rights, including the rights of women and of LGBT communities abroad.
The bill instructs the US State Department to establish an Office for Global Women’s Issues; to create one or more positions within the Human Rights Bureau to monitor international LGBT concerns; to work through US embassies to encourage countries to repeal or reform laws that criminalize homosexuality or consensual homosexual conduct or that otherwise restrict fundamental human rights; to improve human rights reporting on LGBT issues, with a new requirement to include transgender concerns; and to include LGBT issues in human rights training courses for foreign service officers.
(p.468) Since 1948, when the Universal Declaration of Human Rights was written, much has changed globally and within the social work profession regarding how the lesbian, gay, bisexual, transgender, and intersex (LGBTI) community and the understanding of sexual orientation in general are viewed and responded to.
A decade ago, the international LGBTI community was primarily known as the gay and lesbian community. The inclusion of bisexuals in the gay and lesbian lexicon was being debated, intersex people were commonly referred to as hermaphrodites, and people were dying from, not living with, HIV and AIDS. The representation of gays and lesbians in the media was sketchy at best, and when they did appear, it was as caricatures.
The social work profession has hardly been at the forefront of advocacy for LGBTI people. For example, it was not until the eighteenth edition of the Encyclopedia of Social Work, published in 1987, that the first separate articles on lesbians and gay men appear in the encyclopedia.(NASW, 2008). However, in recent years the profession has taken a number of actions to affirm its commitment to lesbian or gay individuals, particularly in the United States. The current National Association of Social Workers (NASW) Code of Ethics (approved 1996, revised 1999 and 2008) contains the following statement: “The social worker should not practice, condone, facilitate or collaborate with any form of discrimination on the basis of race, color, sexual orientation [italics added], age, religion, national origin, and marital status, and political belief, mental or physical disability” (p. 22).
At least ten years ago, most LGB (the I and not the T appeared in the 1990s) organizations had not begun to address issues of race and class. There was a pervasive lack of awareness of how racism, sexism, and internalized oppression were present in the LGBTI community and influenced the ways in which people experienced their sexuality. The phenomenon of men who would not describe themselves as gay or bisexual but who had sex with other men (MSM) was not being discussed in the same way as it is today. Much has changed in the last decade and yet there is still much more to do as both individual social workers and the profession continue to evolve and prepare the next generation of practitioners. Social workers must understand and be prepared to address gay affirmative practice, the intersection of oppressions, and issues across the life span.
The Social Work Profession
In 2010 the International Federation of Social Workers (IFSW) and the International Association of Schools of Social Work (IASSW) joined with the United Nations and other global bodies in denouncing the proposed antihomosexuality legislation that was before the Ugandan Parliament. IASSW (2010) “called upon social work educators in Uganda to engage their students and graduates around what an appreciation of diversity, tolerance, mutual respect, non-violence and a commitment to the promotion of human rights and social justice might mean in their country and beyond. and on social work educators and practitioners around the world to infuse all our discourses and practices with the recognition of our common humanity which binds us together as social work practitioners, service users, educators and students.”
In addition, IFSW (2010) stated that “we respect and uphold the international conventions and treaties which explicitly recognize the right of all individuals to give expression to their sexual orientation, among many other basic rights. These global conventions and policies have been developed by common agreement and in the light of experience and research and are reflected in the global ethical principles of social work, endorsed by IFSW and the International Association of Schools of Social Work (IASSW). No further justification of the right to freedom of sexual orientation is needed or appropriate.”
Discrimination and Oppression
Discrimination and oppression based on sexual orientation and gender identification affect the life experiences of all LGBTI people and social work practice with this population. These negative attitudes and experiences have been blamed on a lack of accurate information about LGBTI people, homophobia, and heterosexism. Homophobia is a fear of lesbians or gay men that is sometimes manifested in expressions of hatred toward them. Heterosexism is “a set of values and structures that assumes heterosexuality to be the only natural form of sexual and emotional expression” (Zimmerman, 1992, p. 342). The inclusion of a chapter on lesbians and gay men in this text does not imply that people by virtue of their sexual orientation require the assistance of social workers. It does, however, imply that some LGBTI people may need the assistance of social (p.469) workers because they continue to be members of an oppressed group and because they may encounter problems of concern to social workers that people from all walks of life face.
There are many forms of prejudice, discrimination, and oppression faced by LGBTI people. Both individuals and the state have perpetrated violence against them (Herek & Berrill, 1992). This hatred may result in myriad problems, including hate crimes, loss of employment, and heterosexist health and mental health services. Internalizing these negative messages may result in self-hatred and self-destructive behaviors such as alcohol and drug abuse and suicide. In the following section, some problems that LGBTI people face are discussed. Hate crimes and discrimination have specific implications for the gay community. Problems such as AIDS and violent relationships occur in all segments of society but are also addressed here.
Hate crimes are perpetrated against others because of hatred of the group to which the victim is presumed to belong. They may be perpetrated because of the victim’s sexual orientation, race, ethnicity, or religion. These crimes take many forms including harassment, vandalism, arson, terrorism, assault, sexual assault, and murder. Hate crimes against LGBTI people are increasing (National Coalition of Anti-Violence Programs, 2000). They affect the whole community and are a form of terrorism that creates fear in those who identify as part of the targeted group.
From 1998 to 1999, the number of murders committed against LGBTI people increased thirteen percent in the United States (National Coalition of Anti-Violence Programs, 2000). Hate crimes are generally perpetrated by male adolescents or young adults who are strangers to the victim and who frequently attack in groups (National Coalition of Anti-Violence Programs, 2000). Hate crimes are viewed by many LGBTI activists as socially condoned since no federal laws ban discrimination against lesbian or gays, and historically, certain behaviors between lesbians or gay men have been criminalized (Amnesty International, 2008).
Nondiscrimination and Civil Rights
Since few states have laws that prohibit discrimination based on sexual orientation, LGBTI people may be discriminated against in employment, housing, education, and other activities with the sanction of law. Benefits that most heterosexuals take for granted are generally denied to people in same-sex relationships. Lesbians and gay men are asserting their right to marry through religious or private noncivil ceremonies, and currently same-sex partners in the United States can legally marry in Maine, Massachusetts, New Hampshire, Vermont, Iowa, Connecticut, and in the District of Columbia. New York, Rhode Island, and Maryland recognize same-sex marriages performed in other states. Additionally, California has 18,000 same-sex couples who legally married prior to changes to the state’s constitution in 2008.
Internationally, several countries recognize same-sex marriage: Argentina, Belgium, Canada, South Africa, Spain, Sweden, the Netherlands, and Norway. Mexico’s Supreme Court ruled in 2010 that all thirty-one Mexican states must recognize same-sex marriages performed in the capital, Mexico City, though its decision does not force those states to begin marrying gay couples. Countries that recognize same-sex marriages performed in other countries include Aruba (Dutch only), Israel, and the Netherlands Antilles (Dutch only). Numerous cities, towns, and municipalities worldwide recognize civil unions and domestic partnerships between people of the same sex (www.glad.org). Without civil unions, power of attorney, or medical directives, same-sex partners may not make medical decisions or even funeral arrangements for each other. Because laws vary by state, it is important to be aware of strategies to protect LGBTI couples and families in regard to inheritance, custody, and other legal decisions.
Since 2009, US gay couples traveling overseas can show passports that feature their married names, letting them take advantage of a little-noticed revision to the US State Department regulations made to comply with an amendment to the Code of Federal Regulations. This amendment allows same-sex couples to obtain passports under the names recognized by their state through their marriages or civil unions (Lavoie, 2009).
Nationally and internationally, LGBTI advocacy groups are challenging and changing laws and policies that negatively affect them. Lesbian or gay sex between consenting adults continued to be illegal in over half of US states until June 2003, when the Supreme Court finally struck down sodomy laws (see Lawrence v. Texas). Many companies and some states and municipalities extend health insurance benefits to same-sex couples (also known as domestic (p.470) partnerships). Under Secretary of State Hillary Rodham Clinton, the US Department of State took steps to grant some of the same benefits to the partners of gay diplomats as those available to spouses in heterosexual marriages. The changes instituted by the State Department include the following rights of domestic partners: diplomatic passports, government-paid travel to and from foreign posts, the use of US medical facilities abroad, eligibility for US government emergency evacuations, and training at the State Department’s Foreign Service Institute. Clinton announced the measures after President Obama’s decision to grant certain benefits to the same-sex partners of gay federal employees in June 2009 (Phillips, 2009).
Despite progress, there are still many negative stereotypes and attitudes that must be overcome before LGBTI people enjoy the full benefits of society.
Diversity in the Gay Community and Intersection of Oppression
There is much diversity in the gay community, and the rainbow flag is a universal symbol of this diversity. It includes people of any ethnicity, socioeconomic status, age, religion, and political persuasion. Although all LGBTI people share many experiences of oppression and discrimination, it is important to acknowledge the additional issues that women and people of color face.
Lesbians and bisexual women face additional oppression and discrimination due to sexism. Many lesbians felt that gay liberation was insensitive to them as women who rejected the patriarchal ideas embedded in heterosexuality (Bristow & Wilson, 1993). Lesbians and bisexual women worked to expand the objectives of the gay rights movement to include women’s issues and to expand the objectives of the women’s movement to include lesbian issues. Lesbianism can be considered an important component of feminism’s response to sexism because it challenges the idea that women must maintain subservient (hetero)sexual roles with men (gender inequalities globally are also discussed by Dominelli in Chapter 9 of this volume).
People of color also face many challenges that are compounded by their membership in particular ethnic groups: “Growing up in a racist, sexist, and homophobic society, [they] must deal not only with their sexual identity but with their racial or ethnic identity as well” (Hunter & Schaecher, 1995, p. 1057). By coming out as lesbian, gay, or bisexual, people of color may be rejected by members of their own ethnic group and also face racism within the gay community.
Fortunately, many lesbian and gay organizations now include bisexual, transgender, and intersex people in their activities and membership.
There is a shifting context for exploring and teaching about the intersection of sexual orientation with other manifestations of oppressions (Hamilton-Mason, 2007). Racism, sexism, heterosexism, ageism, ableism, anti-Semitism, and classism are abundant in our society and within the LGBTI community. Helms (1999) argues that becoming a practitioner who can effectively address issues of race, ethnicity, and culture begins with recognizing that race and culture are integral psychological aspects of every person and of the social environment in which she functions. Racial and ethnic socialization (how others treat a person because of his perceived race or ethnicity) shapes an individual’s feelings, thoughts, or behaviors toward himself and others, and there are those who feel strongly that discrimination against LGBTI individuals is not truly a human and civil rights issue as defined by activities in the 1940s and 1960s. For social workers, these debates are an opportunity to facilitate dialogue about race, class, power, and privilege. Social workers can help identify the similarities that exist between many social movements but also identify their uniqueness.
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