1208

PART III

SELECTED

RIGHTS AND ISSUES COMPARED

for Fij

B. THE HUMAN RIGHTS

OF LESBIAN, TRANSGENDER INDIVIDUALS

GAY, BISEXUAL, AND

sex

pre inc

The human rights claims of lesbian, gay, bisexual, and transgender ("LGBT") individuals raise a number of distinctive human rights issues,in particular those relating to autonomy, privacy, and equality. The Universal Declaration expresses no comprehensive right to autonomy. But it does declare particular rights to spheres of privacy, including protection against "arbitrary interference with [one's] privacy, family, home or correspondence" (Article 12), protection of the family (Article 16), and freedomof thought and opinion (Articles 18 and 19). By contrast, the principleof nondiscrimination is foundational. The assurance of equality in the enjoyment of rights occupies a central place in the Universal Declaration, in numerous human rights agreements, and in the constitutions of many countries. The major human rights treaties and most national constitutions were adopted prior to the emergence of LGBT rights consciousness or advocacy movements. In part for this reason, the treaties do not expressly menbon homosexuality, sexual orientation, or gender identity, and some provisions (such as the right to marry) refer to men and women. On the other hand, the treaties include numerous provisions relevant to LGBT individuals, including not only privacy and equality but also the right to life, freedom from arbitrary arrest, the right to health and freedom of association. The treaties also leave undefmed concepts such as discrimination on the basis of "sex" and "other status" that may be applicable to sexual orientation and gender identity issues. The claim that LGBT rights are an integral part of international human rights has been most widely accepted in Europe. In a groundbreaking 1981 judgment, Dudgeon v. United Kingdom, App, No. 7525/7?: 45 Eu;,; Ct. H.R. (ser. A) (1981), the European Court of Human Rights ( ECHRI ruled that laws criminalizing same-sex conduct between consenting adu Is violate the right to respect for private life enshrined in the European Convention on Human Rights. The ECHR has since issued nuroero~ rulings upholding the rights of LGBT individuals including the right~ lesbians and gay m~n. to serve in the armed force~, the right of.biOl~~y parents to nondiscrimination on the basis of sexual onentatIon III ell disputes, the equal treatment of unmarried same-sex and opposile:';: couples, and the right of transsexuals to legal recognition of their surW~'t~ ly-ac'.lW:ed. gender. In addition, a European Union directive pr~ ~lJ discrimination on the basis of sexual orientation in employment member states. See Holning Lau, Sexual Orientation and Gender 1e~.18. Amencan Law In Light. of East Asian Developments, 31 HARv, .

sUI pre rna

pel

or

GENDER67, 72 (2008)_

AI tough h Europe has ti d d Ion an gen er identity Canada and South Africa States and municipalities

al

orienta' been at the forefront of protecting sexu "" .d of Euro,-' rights, it is far from alone. Outsi e arTY. recognize the right of same-sex couples to m 'oUS in Argentina, Brazil, and Mexico prOVidevatJ

CHAPTER 11

IVIL

Rt

'H1':l

1209

fOrmsof legal protection to same-sex couples. The con titutions of Ecuador, FIJI, and. South Africa expressly prohibit discrimination on tbe basis of sexual OrIentatIOn. Countries as diverse as Mexico,lsrael, and New Zealand prohibit sexual orientation discrimination in the workplace. And countries including Japan and Singapore have enacted legislation to recogniz the surgically-acquired sex of trans gender persons. See id. at 73-74. Although legal protections for LGBT individuals have become far more prevalent in recent years, human rights violations based on actual or perceived sexual orientation and gender identity remain wide pread in many parts of the world. These human rights violations take many forms, from denials of the rights to life, freedom from torture, and security of the person, to discrimination in accessing economic, social and cultural rights such as health, housing, education and the right to work, from non-recognition of personal and family relationships to pervasive interferences with personal dignity, suppression of diverse sexual identities, attempts to impose heterosexual norms, and pressure to remain silent and invisible. At least seven countries maintain the death penalty for consensual same-sex practices, and numerous reports have documented persons killed or sentenced to death because of their sexual orientation or gender identity .... More than 80 countries still maintain laws that make same-sex consensual relations between adults a criminal offence. . .. In other countries, laws against 'public scandals', 'immorality' or 'indecent behaviour' are used to penalise people for looking, dressing or behaving differently from enforced social norms, Even where criminal sanctions against homosexuality or 'immorality' are not actively enforced,. such laws can be used to arbitrarily harass or detain persons of diverse sexual orientations and gender identities, to impede the activities of safer sex advocates or counsellors, or as a pretext for discrimination in employment or accommodation. Discrimination in accessing economic, social and cultural rights has been widely documented. People have been denied employment, employment-related benefits or faced dismissal because of their sexual orientation or gender identity. In the context of the right to adequate housing, lesbian and transgender women. have been found to at increased risk of homelessness, discriminatIon based on sexual onent~tion or gender identity in renting accommodations has been expenenced both by individuals and same-sex couples, and persons hav~ been forced from their homes and communities when their sexual orientation or gender identity has become known. Transgender pe~n~ may face particular obstacles in seeking to access gender-appropU; se~ 0 vices witbin homeless shelters. Materials referencing issuhes1 sexu . . . h been banned from sc 00 eurncuOrIentation and gender Identity ave . d der identity . al orientatIOn an gen la . ' student groups addressmg sexu f ed hi h I vels of bullying ISsues bave been prohibited, students have ac . orientation and harassment because of their actual or percelv

.00

J se:,al

1210

PART

III

SELECTED

RIGHTS AND ISSUES COMPARED

or gender identity, and in some cases young persons who express samesex affection have been expelled .... Although less tangible, perhaps even more systemic and far-reaching in consequence is the net result of such endemic human rights violations: the constant fear in which many persons of diverse sexual orientations and gender identities have to live .... Faced with obstacles to familial and social acceptance that may seem overwhelming, many lesbians, gays, bisexuals, transgender and intersex people remain invisible and isolated. The high rates of documented suicide by such people are consequently unsurprising. Michael O'Flaherty & John Fisher, Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles, 8 HUM. RTs.L. REV.207, 208, 210, 211-12, 213-14 (2008). Advocacy to protect individuals from human rights violations on the basis of their sexual orientation and gender identify has also generated a growing body of international jurisprudence. Statements affirming the human rights of LGBT individuals appear in the general comments, case law, and concluding observations of the U.N. human rights treaty bodies and in the reports of special rapporteurs and working groups appointed by the Human Rights Council and its predecessor, the Human Rights Commission. For example, the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health has defended the universality of human rights issues relating to sexual orientation in the following terms: [S]exuality is a characteristic of all human beings. It is a fundamental aspect of an individual's identity. It helps to define who a person IS. The Special Rapporteur notes the abiding principles that have shaped international human rights law since 1945, including privacy, eq~ality, and the integrity, autonomy, dignity and well-being of the indiVIdual. . .. [T[he Special Rapporteur has no doubt that the correct understanding of fundamental human rights principles, as well as eXisting human rights norms, leads ineluctably to the recognition of sexual rights as human rights. Sexual rights include the right of all persons t~ express their sexual orientation, with due regard for the well-beinf anal rights of others, without fear of persecution, denial of liberty or SOCI interference. .. t on the C?mnusslOn on Human Rights, Report of the Special Rappor eur f Right of Everyone to the Enjoyment of the Highest Attainable Standard ~ Physical and Mental Health, E/CN.4/2004/49 (Feb. 16, 2004), para. 5 if. Accord Laurence R. Helfer & Alice M. Miller, Sexual OrientatIOn an Human Rights: Toward A United States and Transnational Jurisp:uden~~ 9 HARv.HUM. RTS.J. 61, 85-86 (1996) ("[T]he freedom to establish lfitlm~t hi to . al ldentl Y I t re a IOns IpS, enjoy sexual practices, and to develop a seXU . ed takes on the quality of other fundamental and universallY recognlZ rights."). . h doption, in Am ong th e most Important recent developments was tea . nal 2006, of the Yogyakarta Principles on the Application of InternatlO

CHAPTER

11 CiVIL Rt

,rrs

1211

Hu~an Rights Law in Relation to Sexual Orientation and Gend r Identity, available at bttp:/I~.yogyakartaprmclples.org/. The Yogyakarta Principles, drafted by a dlvers~ group of state and nonstate human rights experta from twenty-five countries in all geographic regions, provide a comprehensive articulation of the human rights of LGBT individuals and the measures that states should undertake to protect those rights. The rapporteur of the Yogyakarta Principles, U.N. Human Rights Committee member Michael O'Flaherty, has summarized their content as follows: There are 29 principles. Each of these comprises a statement of international human rights law, its application to a given situation and an indication of the nature of the State's duty to implement the legal obligation .... Principles 1 to 3 set out the principles of the universality of human rights and their application to all persons without discrimination, as well as the right of all people to recognition before the law. . .. Principles 4 to 11 address fundamental rights to life, freedom from violence and torture, privacy, access to justice and freedom from arbitrary detention. Principles 12 to 18 set out the importance of nondiscrimination in the enjoyment of economic, social and cultural rights, including employment, accommodation, social security, education and health. Principles 19 to 21 emphasise the importance of the freedom to express oneself, one's identity and one's sexuality, without Stste interference based on sexual orientation or gender identity, including the rights to participate peaceably in public assemblies and events and otherwise associate in community with others. Principles 22 and 23 highlight the rights of persons to seek asylum from persecution based on sexual orientation or gender identity. Principles 24 to 26 address the rights of persons to participate in family life, public affairs and the cultural life of their community, without discriminati?n based on sexual orientation or gender identity. Principle 27 reC?gnl~esthe r-ight to defend and promote human rights without discrmnnatIon based on sexual orientation and gender identity, and the obligatIon of States to ensure the protection of human rights defenders working ill ~hese areas. Principles 28 and 29 affirm the importance of holding rights violators accountable and ensuring appropnate redress for those who face rights violations.' O'FlaiIerty & Fisher, supra at 234-35. . . The materials below explore the evolving app:oach to sexual onentation and gender identity in international human nghts law. The P~.c'h~ vehicles for this exploration are two decisions of the U.N. ~uman ig s Committee, a ruling of the United States Supreme Court III Texas, and a draft statute prohibiting same-sex mamages III 1gert~the~ notes and questions following the decisions reference rulings 0 . t . .' I t' and domestIc court cases. in ematIonai tribunals, natIOnal legis a ion,

:w~enc;;.

Toonen v, Australia
Human Rights Committee, 1994.

Cornm. No. 48811992, U.N. Doc. CCPRIC/50/D/4B811992.

ai 1 . The
s
ill

. .' ti n of the rights of homosexuauthor is an activist for t~e ~rom~tutive states. He challenges Tasmania, one of Australia s sIX co

1212

PART III

SELECTED

RIGHTS AND ISSUES COMPARED

two provisions of the Tasmanian Criminal Code, namely, sections 122 (a) and (c) and 123, which criminalize various forms of sexual contact between men, including all forms of sexual contact between consenting adult homosexual men in private. [The Code does not proscribe "homosexual activity between consenting homosexual women in private and only some forms of consenting heterosexual activity between adult men and women in private." The author alleges that the Code is an arbitrary and unlawful interference with his privacy contrary to Article 17 of the ICCPR, and that it discriminates against gay men in "on the basis of sexual activity, sexual orientation and sexual identity" contrary to Articles 2.1 and 26 of the Covenant.]

2.3 Although in practice the Tasmanian police hal vel not charged anyone either with "unnatural sexual intercourse" or "intercourse against nature" (section 122) nor with "indecent practice between male persons" (section 123) for several years, the author argues that because of his long-term relationship with another man, his active lobbying of Tasmanian politicians and the reports about his activities in the local media, and because of his activities as a gay rights activist and gay HIV/AIDS worker, his private life and his liberty are threatened by the continued existence of sections 122 (al and (c) and 123 of the Criminal Code.

The State party's observations ... 6.5 The State party does not accept the argument of the Tasmanian authorities that the retention of the challenged provisions is partly motivated by a concern to protect Tasmania from the spread of HN/AIDS, and that the laws are justified on public health and moral grounds. ThIS assessment in fact goes against the National HIV/AIDS Strategy of the Government of Australia, which emphasizes that laws criminalizing homosexual activity obstruct public health programmes promoting safer sex. The State party further disagrees with the Tasmanian authorities' contentIOn that the laws are justified on moral grounds, noting that moral issues were not at issue when article 17 of the Covenant was drafted. 6.6 None the less, the State party cautions that the formulation of article 17 allows for some infringement of the right to privacy if there are reasonable grounds, and that domestic social mores may be relevant to the reasonableness of an interference with privacy. The State party ~bserves that while laws penalizing homosexual activity existed in tbe past In othe~ Australian states, they have since been repealed with the exceptl.on or Tasmania. Furthermore, discrimination on the basis of homosexualIty ~. sexuality is unlawful in three of six Australian states and the two 51' governing internal Australian territories. The Federal Government has .: . created a mechanism through which complaints about discriminatIOn III . ed by the employment on the basis of sexual preference may be conSIder Australian Human Rights and Equal Opportunity Commission.

......
CHAPTER 11 CIV1LItt II

1213

6.7 On the basis of the above, the State party contends that there i now a general Australian acceptance that no individual should be disadvantaged on the basis of his or h~r sexual orientation. Given the legal and social SItuation m all of Aust~alia except Tasmania, the State party acknowledges that a complete prohlbltlO~ on sexual activity between men is unnecessary to sus~~n the moral fabric of Australian society. On balance, the State party does not seek to claim that the challenged laws are based on reasonable and objective criteria". Examination of the merits 8.2 In so far as article 17 is concerned, it is undisputed that adult consensual sexual activity in private is coveredby the concept of "privacy", and that Mr. Toonen is actually and currently affected by the continued existence of the Tasmanian laws .... 8.3 The prohibition against private homosexual behaviour is provided for by law, namely, sections 122 and 123 of the Tasmanian Criminal Code. As to whether it may be deemed arbitrary, the Committee recalls that pursuant to its general comment 16 (32) on article 17, the "introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by the law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the circumstances". The Committee interprets the requirement of reasonableness to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case. 8.4 While the State party acknowledges that the impugned provisions constitute an arbitrary interference with Mr. Toonen's privacy, the Tasmaman authorities submit that the challenged laws are Justified on public health and moral grounds, as they are intended in part to prevent the spread of HIV/AIDS in Tasmania, and because, in the absence of speCIfic limitation clauses in article 17, moral issues must be deemed a matter for domestic decision. 8.5 As far as the public health argument of the Tasmanian authorities is n concerned, the Committee notes that the criminalizabo of homosexual practices cannot be considered a reasonable means or proportIOnate measto achi . . h d f AlDSjHIVThe Govern0.. . . U re 0 achieve the aim of preventmg t e sprea ment of Australia observes that statutes crimmalIzmg homosexual actlVlty tend to impede public health programmes "by driving underground many abon of the people at the risk of infection". Criminaliz of hO~~.sexu~ en activity thus would appear to run counter to the Implem a IOn 0 ..,. . . et f th HIV/AIDS preventIOn. euecbve education programmes In respe 0 e b t th SecO~dlY,the Committee notes that no link h~ bee: t~O~ec~v:::tro~ continued crirninalization of homosexual actlVlty an e s of the spread of the HIV/AlDSvirU . f' arti I 17 8.6 The Committee cannot accept eithe~ that fora~~t:~~::s~iC co~;'rn, of the Covenant, moral issues are exclusI~elY a ro e committee'S scrutiny as this would open the door to withdraWing ~oro th ith privacy. It further a POtentially large number of statutes llltenermg Wl

1214
PART III
SELECTED

RIGHTS AND

ISSUES

COMPARED

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 with Mr. Toonen's right under article 17, paragraph I. 8.7 The State party has sought the Committee's guidance as to whether sexual orientation may be considered an "other status" for the purposes of article 26. The same issue could arise under article 2, paragraph 1, of the Covenant. The Committee confines itself to noting, however, that in its view, the reference to "sex" in articles 2, paragraph 1, and 26 is to he taken as including sexual orientation. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it reveal a violation of articles 17, paragraph 1, juncto 2, paragraph 1, of the Covenant.
9.

10. Under article 2, paragraph 3 (a), of the Covenant, the author, as a victim of a violation of articles 17, paragraph 1, juncto 2, paragraph 1, of the Covenant, is entitled to a remedy. In the opinion of the Committee, an effective remedy would be the repeal of sections 122 (a) and (c) and 123 of the Tasmanian Criminal Code.
12. The Committee would wish to receive, within 90 days of the date of the transmittal of its views, information from the State party on the measures taken to give effect to the views.

Lawrence v. Texas
United States Supreme Court, 2003. 539 u.s. 558.
JUSTICE KENNEDY

delivered the Opinion of the Court.

Lib . trusion5 I erty protects the person from unwarranted governmen t In. t into a dwelling or other private places. In our tradition the State IS nOd omnipresent in the home. And there are other spheres of our lives.an t existence, outside the home, where the State should not be a dOJIlIOa:n presence. Freedom extends beyond spatial bounds. Liberty preBUJI1e5and autonomy of self that includes freedom of thought, belief, expreSSion, n certain intimate conduct. The instant case involve liberty of the perso both in its spatial and more transcendent dimensions. ~ . T~e question before the Court is the validity of a Texas statute, JIl tiIJlate It a crime for two persons of the same to engage in certalD ID sexual conduct.

CHAPTER 11

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In Houston, Texas, officers of the Harris County Police Department were dispatched to a private residence in response to a reported weapons disturbance. They entered an apartment where one of the petitioners, John Geddes Lawrence, resided. The right of the policeto enter does not seem to have been questioned. The officers observed Lawrence and another Tyron Garner, engaging in a sexual act. The two petitioners were arrested, held in custody over night, and charged and convicted before a Justice of the Peace. The complaints described their crime as "deviate sexual intercourse, namely anal sex, with a member of the same sex (man)." The applicable state law is Tex. Penal Code Ann. 21.06(a) (2003). It provides: "A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex." The statute defines "deviate sexual intercourse" as follows:
(A)

any contact between any part of the genitals of one person and the

mouth or anus of another person; or

(B) the penetration of the genitals or the anus of another person with an object." 21.01(1). We granted certiorari to consider three questions: 1. Whether Petitioners' criminal convictions under the Texas "Homosexual Conduct" law-which criminalizes sexual intimacy by same-sex couples but not identical behavior by different-sex couples-violate the Fourteenth Amendment guarantee of equal protection of laws? 2. Whether Petitioners' criminal convictions for adult consensual sexual intimacy in the home violate tbeir vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment? 3. Whether Bowers v. Hardwick, 478 U.S. 186 (1986), should be overruled?

II.
We conclude the case should be resolved by determining wdhetth~r tthh . . in the private con ue In e petitIOners were free as adults to engage Cl f the Fourteenth exercise of their liberty under the Due Proces~ aus:e~m it necessary to Amendment to the Constitution. For this mquiry we reconsider the Court's holding in Bowers v. Hardwick. . . . .

The facts in Bowers had some similari~e:et~;:~ :~s~:~t~:~ officer, whose right to enter seems not to . a. ti t sexual conduct with HardWick, in his own bedroom, engaglllg m iolatior e f a Gearuia statute t was in vuna IOn 0 esauot her adult male. The conduc . sod One difference between making it a criminal offense to engage III hi~~ the conduct whether or the two cases is that the Georgia statute pro hil the Texas statute, as we not the participan ts were of the same sex, w e Hardwick was not h .. ts of the same sex. ave seen, applies only to partlClpan . fed at court to declare the state prosecuted, but he brought an action m er

~:e~:

1216

PART III

SELECTED RIGHTS AND ISSUES COMPARED

statute invalid. He alleged he was a practicing homosexual and that the criminal prohibition violated rights guaranteed to him by the Constitution. The Court, in an opinion by Justice White, sustained the Georgia law. Chief Justice Burger and Justice Powell joined the opinion of the Court and filed separate, concurring opinions. Four Justices dissented. 478 U.S. at 199 (opinion of B1ackmun, J., joined by Brennan, Marshall, and Stevens, JJ.); id. at 214 (opinion of Stevens, J., joined by Brennan and Marshall, JJ.). The Court began its substantive discussion in Bowers as follows: "The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time." Id. at 190. That statement, we now conclude, discloses the Court's own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundanes absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choICe. Having misapprehended the claim of liberty there presented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: "Proscriptions against that conduct have ancient roots." Id. at 192. In academic writings, and in many of the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majonty and concurring opinions in Bowers .... We need not enter this debat~ in the attempt to reach a definitive historical judgment, but the followmg considerations counsel against adopting the definitive conclusions upon which Bowers placed such reliance. 10 summary, the historical grounds relied upon in Bowers are mor~ complex than the majority opinion and the concurring opinion by Chle Justice Burger indicate. Their historical premises are not without doubt and, at the very least, are overstated.

CHAPTER 11

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It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful VOices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. . . . Chief Justice Burger joined the opinion for the Court in Bowers and further explained his views as follows: "Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards." 478 U.S. at 196. As with Justice White's assumptions about history, scholarship casts some doubt on the sweeping nature of the statement by Chief Justice Burger as it pertains to private homosexual conduct between consenting adults. In all events we think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex .... The sweeping references by Chief Justice Burger to the history of Western civilization and to Judea-Christian moral and ethIcal stand~ds did not take account of other authorities pointing in an opposite direction. A committee advising the British Parliament recommended in 1957 repeal of laws punishing homosexual conduct. The Wolfenden Report: Report. of the Committee on Homosexual Offenses and ProstItutIOn (1963). Parliament enacted the substance of those recommendations 10 years later. SeXUalOffences Act 1967, 1. f before Bowers was decided Of even more importance, almost ive years ith arallels to the European Court of Human Rights considered a caseNwl P lid al id t in 0 rth ern rean Bowers and to today's case. An adult m e resi ~nt I gage in consensualleged he was a practicing homosexual who deslr I0 ~nDrbade him that l al homosexual conduct. The laws of Norther~iS ~o::e h:d been searched, fIght. He alleged that he had been questlOnedrtheld that the laws proscriband he feared criminal prosecutIOn. The cou an Convention on Human mg the conduct were invalid under the Eur~~ Ct H R. (1981) 'II 52. RIghts. Dudgeon v. United Kingdom, 45 be . f the Council of Europe Authoritative in all countries that are meIl~ ~ 0 t odds with the premise (21 nations then 45 nations now), the declS10nISbatanti'al in our Western in Bo Wers that '., ard was mSU s the chum put rorw civilization .... . .' . ed . us erosion from our seno .. . Th e foundations of Bowers h ave sustaIn been thuS weakened, cntlclsm recent [decisions]. When our precedent has

1218

PART III SELECTED RIGHTS AND ISSUES COMPARED from other sources is of greater significance. In the United States criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions .... The courts of five different States have declined to follow it in interpreting provisions in their own state constitutions parallel to the Due Process Clause of the Fourteenth Amendment .... To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followednot Bowers but its own decision in Dudgeon v. United Kingdom. See P. G. & J. H. v. United Kingdom, App. No. 00044787/98, P 56 (Eur, Ct. H. R., Sept. 25, 2001); Modinos v. Cyprus, 259 Eur. Ct. H. R. (1993); Norris v. Ireland, 142 Eur. Ct. H. R. (1988). Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. See Brief for Mary Robinson et al. as Amici Curiae 11-12. * The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent. ... The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without interventIOn of the government .... The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual. JUSTICESCALIA, with whom the CHIEFJUSTICEand JUSTICETHOMAS join, dissenting. Bowers held, first, that criminal prohibitions of homosexual sodomy are not subject to heightened scrutiny because they do not implicate a "fundamental right" under the Due Process Clause, 478 U.S., at 191~1~. Noting that "[pJroscriptions against that conduct have ancient roots, I, at 192, that "Islodomy was a criminal offense at common law and w~ forbIdden by the laws of the original 13 States when they ratified the Bill 0 Rights," ibid., and that many States had retained their bans on sodOlny,
[Mary Robinson was at the time the U.N, High Commissioner for Human Rights. The amicus brief was joined by Amnesty International, Human Rights . 8. for Hurights, and the Lawyers Commtttee
man

tch

lnte-

Righto.-Edo.1

CHAPTER 11

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RJ

,wrs

1219

id., at 193, Bowers concluded that a right to engage in homosexual sodomy was not "'deeply rooted in this Nation's history and tradition' " id. at
192. ' ,

The Court today does not overrule this holding. Not once does it describe homosexual sodomy as a "fundamental right" or a "fundamental liberty interest," nor does it subject the Texas statute to strict scrutiny. Instead, having failed to establish that the right to homosexual sodomy i " 'deeply rooted in this Nation's history and tradition,' " the Court concludes that the application of Texas's statute to petitioners' conduct fails the rational-basis test, and overrules Bowers' holding to the contrary, see id., at 196 ... Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior. Much less do they spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct. The Bowers majority opinion never relied on "values we share with a wider civilization," but rather

rejected the claimed right to sodomy on the ground that such a right was not" 'deeply rooted in this Nation's history and tradition,' " 478 U.S. at 193-194 (emphasis added). Bowers' rational-basis holding is likewise devoid of any reliance on the views of a "wider civilization,' see id. at 196. The Court's discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, however, since this Court should not impose foreign moods, fads, or fashions on Americans .... The Texas statute undeniably seeks to further the belief of its citizen~ that certain forms of sexual behavior are "immoral and unacceptable, Bowers, supra, at 196, the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestIality, and obscemty. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, "furthers no;eg't!m::~.~tat~ interest which can justify its intrusion into the personal an. prIv~ J I ~o the individual,' (emphasis added). The Court embr~,c~~m:~; tha~s t~: STEVENS' declaration in his Bowers dissent, that e .aI ti . diti all viewed a partlCUar prac Ice governmg majority in a State has tra f IOn hldingalawpro y . hibiti th e . mng as Immoral is not a sufficient reason or up 0all als legislation. If, as practice' ". This effectively decrees the end of ssxual morality is not even the Court asserts, the promotion of maJontar18n . ed laws can survive a legitimate state interest, none of the above-mentIOn rational-basis review. . . . e need not fear judicial . " The Court today pretends that ." itl occurred in Canada (in nn POSItIOnof " . as has recen y homosexual marrIage, h bosen not to appeal). See a decision that the Canadian Government . asC~ A p.); Cohen, Dozens in Halpern v. Toronto 2003 WL 34950 (OntarIO p' tPJune 12 2003, p.A25. C ' W hi gton os ' anada Follow Gay Couple's Lead, as m' waste the foundations of our d At the end of its opinion-after haVl.l1g 1m .

1220

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rational-basis jurisprudence-s-the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which notes the constitutional protections afforded to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," and then declares that "persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do" (emphasis added). Today's opinion dismantles the structure of constitutionallaw that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct; and if, as the Court coos (casting aside all pretense of neutrality), "when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "the liberty protected by the Constitution," ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court ....

Notes and Questions 1. The Tasmanian government initially refused to comply with the Human Rights Committee's decision in the Toonen case. In response, the Australian Parliament-invoking a clause in the Australian Constitution that authorizes the federal government to override state laws to implement Australia's international law obligations-adopted the Human Rights (Sexual Conduct) Act 1994. The Act created a judicially enforceable remedy for any "arbitrary interference" with private sexual conduct between consenting adults. Toonen and his partner filed proceedings in the High Court of Australia claiming that the federal lezislation had effectively invalidated O' t he e Jf'aamani Tasmanian law. Tasmania unsuccessfully challenged the valdit I Y of those proceedings. Croome v. Tasmania, 191 C.L.R. 1I9 (1997). Short~y after the High Court's judgment the Tasmanian legislature repealed t e criminal ban on consensual homosexual conduct. Michael Kirby, Law and Sexuality: The Contrasting Case of Australia, 12 STAN L. & POL'yREV ..103, 105 (2001). For an analysis of Toonen's implications for internatiOnal human rights advocacy on behalf of lesbians and gsy men, see Helfer & Miller, supra at 64-77, 100-02.

2. Why did Toonen and Lawrence challenge the sodomy s~tutes Tasmarua and Texas, respectively as a violation of their privacy anal ri ' equ ality . nghts? What strategic advantages might have result ed frOm ch. hts lenging the statute on both of these grounds? Did the Human Rig

0:

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Committee decide both the privacy and equality claims? Did the U.. Supreme Court? How much deference is appropriate when a treaty body or a domestic court reviews laws that that the government defends as necessary to protect public morals? Should an international tribunal give the government greater deference than a domestic court? Do you agree with the majority in Lawrence that the Texas sodomy statute furthers no legitimate state interest? If you were responsible for defending the statute, are there state interests other than public morals that you might have asserted? For additional discussion of public morals limitations on rights, see chapter 7(B)(2), supra.
3.

4. Notice that both the state of Tasmania and the federal government of Australia responded to Toonen's complaint to the Human Rights Committee. What differences can you identify in the two responses? What might account for these differences? If you were a member of the Committee, would these differences have influenced your view of how the case should be decided? How would you expect the U.S. federal government to respond if the Supreme Court had asked for its views as to the constitutionality of the Texas statute at issue in Lawrence? 5. How broadly do you interpret the Committee's analysis in Toonen? In Particular, does anything suggest that the decision applies only to Australia, or to countries in which LGBT individuals enjoy widespread legal and social acceptance? Conversely, can you idsntify any evidence that the decision is applicable to all of the more than 150 states parties to the ICCPR? How broadly do you interpret the U.S. Supreme Court's analysis in Lawrence? In particular, are you more persuaded by the majorny or dissenting opinion as to the implications of the deCISIOn for laws regulatmg the sexual activity of minors? Laws that prohibit nonconsensual sodomy? Laws involving prostitution? Laws prohibiting adultery? Laws that recog. f the opposite sex?
nlZe marriage as unions between two persons 0 .

. it f the U S Supreme Court in 6 . For what purposes does the maJon yo .H R' ht d Lawrence consult the rulings of the European Court of u~an. ig s od th . it "'mpos[mg] roreign moo s, e laws of other countries? Is the majon Y I I e d J ti S alia contends? More genera ra 8 Or fashions on Americans", as us Ice c ti al d I .' d analysis of mterna Ion an Y, what benefits might the CItatIOn an . tat' f the US I . . g the mterpre Ion 0 . . orelgn law provide in a case concermn. ti ? Constitution? What risks might be associated WIth such a prac lee. ., nee and similar decISIOns 7. What are the implications of Toonen, LaW~ 'serving in the armed for POlicies that prohibit gay men and lesbians rom forces? . . . of cases decided in 1999. The ECHR considered this question III a pro;os. 33985/96 & 33986/96, See Smith & Grady v. United Ktngdom, App.
1

1222

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I999-VI Eur. Ct. H.R.; Lustig-Prean & Beckett v. United Kingdom, App. Nos. 31417/96 & 32377/96, 1999-VI Eur. Ct. H.R. The court applied and extended the analysis of two previous rulings holding that laws criminalizing homosexual sex between consenting adults violated the right to respect for private life. See Dudgeon v. United Kingdom, App. No. 7525/76,45 Eur. Ct. H.R. (ser. A) (1981); Norris v. Ireland, App. No. 10581/83, 142 Eur. Ct. H.R. (ser. A) (1988). (Both cases are cited in Lawrence). The ECHR rejected as unsubstantiated the government's principal argument in support of the ban-that "the presence of open or suspected homosexuals in the armed forces would have a substantial and negative effect on morale and, consequently, on the fighting power and operational effectiveness of the armed forces." Smith & Grady, supra at para. 95. The United Kingdom repealed the policy shortly thereafter and has since successfully integrated LGBT individuals into its armed forces. See Lizette Alvarez, Gay Groups Fight Recruiting Policy: A New Drive Against 'Don't Ask, Don't Tell', Int'l Herald Trib. (Sept. 15, 2006) ("In Britain, where the military was initially forced to accept gay troops by the lECHR], gay partners are now afforded full benefits, and the Royal Navy has called on a gay rights group to help recruit gay sailors. "). In 1993, the United States enacted the so-called "Don't Ask, Don't Tell" policy to regulate the service of LGBT persons in the U.S. military. To avoid the alleged risk to unit cohesion created by the continued service of those likely to engage in same-sex sexual activity, the policy authorizes the discharge of service members where one of three findings is made: (1) the member has engaged or attempted to engage in a homosexual act; (2) the member has "stateld] that he or she is a homosexual or words to that effect;" or (3) the member has married or attempted to marry a person known to be of the same biological sex. 10 U.S.C. 654(b). The policy also limits investigations into the sexual orientation of service members. . ted Prior to the Lawrence case, federal appeals courts had aII rejec constitutional challenges to "Don't, Ask, Don't Tell." Following Lawrence, discharged gay and lesbian service members filed complaints challengIng the policy as a violation of, inter alia, the due process and equal protectl': components of the Fifth Amendment. The courts of appeals are dlV1de~ 42 to how these claim should be resolved. Compare Cook u. Gates, 528 F.3 . (Ist Cir. 2008) (rejecting plaintiffs' as-applied challenge to the poliCY; although noting that it covers conduct that falls within the zone t protected liberty identified by Lawrence such as "homosexual conduc . ff b ' . of theIr occurring 0 ase between two consenting adults in the prIvacy . home") with Wilt u. Department of the Air Force, 527 F.3d 806 (9th C~: 2008) (reversing district court's dismissal of as-applied Due PrOCess.ch d lenge and rema~ding. for further proceedings; plai~tifT was in a co:;: ~ long-term relationship WIth a civilian woman WIth whom she home away from the military base). whether H ow re Ievant are the following to debates in the U.S. over f the Congress should repeal "Don't Ask Don't Tell" (1) the case law 0 th " . ? (3) e ECHR? (2) the successful shift in policy in the United Kingdom. . the total number of other countries that allow LGBT individuals to serve 10

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military? (4) the fact that American and British troops have been lighting together in Iraq for more than live years? 8. Consider the Committee's analysis of the ICCPR's non-discrimination articles in paragraph 8.7 of the Toonen decision. How do you interpret the statement that "the reference to 'sex' in articles 2, paragraph 1, and 26 is to be taken as including sexual orientation"? Why would the Committee treat sexual orientation discrimination as a type of sex discrimination rather than situating it within the "other status" clause in Articles 2 and 26? Is such a conclusion persuasive as a matter of legal analysis? Can it be justified on pragmatic grounds? In Grant v. South-West Trains Ltd., (1998) ECR 1-621, the European Court of Justice considered a case challenging an employer's denial of benefits to its employees' same-sex partners. Relying on Toonen, the complainant argued that such denials discriminated on the basis of sex in violation of Article 119 of the European Community Treaty. The Court of Justice rejected the argument in the following terms: [In Toonen,] the Human Rights Committee, which is not a judicial institution and whose findings have no binding force in law, confined itself, as it stated itself without giving specific reasons, to "noting ... that in its view the reference to 'sex' in Articles 2, paragraph 1, and 26 is to be taken as including sexual orientation". Such an observation, which does not in any event appear to reflect the interpretation so far generally accepted of the concept of discrimination based on sex which appears in various international instruments concerning the protection of fundamental rights, cannot in any case constitute a basis for the Court to extend the scope of Article 119.... [d. at paras. 46-47. 9. Kansas law criminalizes consensual sodomy with any individual under the age of 16. Under a so-called "Romeo and Juliet" exception, however, Kansas treated such offenses more leniently if they involved a teenage couple whose members were of opposite sexes. Matthew Limon had just turned 18 when he had consensual sex with a 14-year-old boy at a residential school for developmentally disabled youths where both were living. Had the younger child been female, the maximum sentence would have been 15 months. Instead, Limon was sentenced to 17 years in prison. The Kansas courts affirmed Limon's conviction and rejected his claim that the statute violated the Equal Protection Clause of the 14th Amendment. Limon's petition for a writ of certiorari to the U.S. Supreme Court was pending on the day Lawrence was decided. The Court granted the petition, vacated the judgment, and remanded the case for further consideration in light of Lawrence. In 2005, the Kansas Supreme Court held that the statute's harsher punishment for underage sexual activity involving samesex participants violated the Equal Protection Clause of the federal and statute constitutions. See State v. Limon, 122 P.3d 22 (Kan. 2005). Two recent judicial rulings from Hong Kong have applied the ICCPR's equality and privacy provisions to invalidate criminal sanctions apphcable only to consenting sexual conduct between males. See Secretary for Justice v. Yau Yuk Lung Zigo, (2007) 3 HKLRD 903 (Hong Kong Court of Final

1224

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AND ISSUES COMPARED

Appeal, 2007) (statute criminalizing male-male anal intercourse "otherwise than in private" but not similar male-female vaginal intercourse violates the equality provision of the Hong Kong Bill of Rights which incorporates the lCCPR; act committed in parked car); Leung T C William Roy v. Secretary for Justice, [2006] 4 HKLRD 211 (Hong Kong Court of Appeal, 2006) (age of consent of 21 for homosexual conduct as compared to 16 for heterosexual conduct violates privacy and equality provisions of the Hong Kong Bill of Rights). The ECHR has reached similar conclusions. See, e.g., S.L. v. Austria, App. No. 45330/99, 2003-1 Eur. Ct. H.R. (statute criminalizing consensual sex hetween males where one partner is over 18 years of age and the other partner is between 14 and 17 years of age violates the European Convention's non-discrimination clause; no similar restrictions for heterosexual or lesbian sex); A.D. T. v. United Kingdom, App. No. 35765/97, 2000-IX Eur. Ct. H.R. (statute criminalizing consensual homosexual conduct in private in which two or more men "take part or are present" violates the right to respect for private life).

x v. Colombia
Human Rights Committee, 2007. Comm. No. 136112005, U.N. Doc. CCPRIC/89/D/1361/2005.

2.1 On 27 July 1993, the author's life partner Mr. Y died after a relationship of 22 years, during which they lived together for 7 years. On 16 September 1994, the author, who was economically dependent on his late partner, lodged an application with the Social Welfare Fund of the ColombIan Congress, Division of Economic Benefits (the Fund), seeking a pension transfer. 2.2 On 19 April 1995, the Fund rejected the author's request, on the grounds that the law did not permit the transfer of a pension to a person of the same sex. [The Colombian courts rejected the author's challenges to the Fund's decision.] The complaint 3.1 Regarding the alleged violation of article 2, paragraph 1, the author states that he has suffered discrimination owing to his sexual orientatIOn and his sex .... 3.2 The author alleges a violation of article 3 [which ensures the equal right of men and women to the enjoyment of all civil and political rights in the Covenant], since a partner of the same sex is being denied the nghts granted to different-sex couples without any justification. He states that he f Ifill .' . yment u I ed the legal requirements for receiving the monthly pensIOn pa is of to which he IS entitled and that this payment was refused on the bas arguments excluding him because of his sexual preference. He points o~t that if the pension request had been presented by a woman following t e death of her male partner, it would have been granted, SO that the si~uatl~ IS one of discrimination. The author considers that the State party vlOlat

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article 3 by denying a partner of the same sex the rights which are granted to partners of different sexes. State party's observations on the ... merits of the communication 4.8 ... De facto marital unions of a heterosexual nature, insofar as they form a family, are recognized in law in order to guarantee them "comprehensive protection" and, in particular, ensure that "the man and the woman" have equal rights and duties (Constitution, arts. 42 and 43). A variety of social and legal factors were taken into account by the drafters of the law, and not only the mere question of whether a couple live together, particularly as living together may be a feature of couples and social groups of many different kinds or with several members, who mayor may not be bound by sexual or emotional ties, and would not in itself oblige the drafters of the law to establish a property regime similar to that established under Act No. 54 of 1990. The legal definition of de facio marital union is sufficient to recognize and protect a group that formerly suffered from discrimination but does not create a privilege which would be unacceptable from the constitutional point of view. [The state party also noted that "Colombian legislation has not conferred recognition in civil law on unions between persons of the same sex."] Issues and proceedings before the Committee 6.2 Regarding the allegations relating to article 3, the Committee notes the author's arguments that a same-sex couple is denied the rights granted to different-sex couples, and that if the pension request had been submitted by a woman following the death of her male partner, the pension would have been granted-a discriminatory situation. However, the Committee points out that the author does not allege that discrimination is exercised in the treatment of female homosexuals in situations similar to his own. The Committee considers that the author has not sufficiently substantiated this complaint for the purposes of admissibility, and concludes that this part of the communication is inadmissible under article 2 of the Optional Protocol. 7.1 The author claims that the refusal of the Colombian courts to grant him a pension on the grounds of his sexual orientation violates his rights under article 26 of the Covenant. The Committee takes note of the State party's argument that a variety of social and legal factors were taken into account by the drafters of the law, and not only the mere questIOn of whether a couple live together, and that the State party has no obligatIOn to establish a property regime similar to that established in Act No. 54 of 1990 for all the different kinds of couples and social groups. who mayor may not be bound by sexual or emotional ties. It also takes note of the State party's claim that the purpose of the rules gove~ng this reglme was me simply to protect heterosexual unions, not to underm other unIOns or cause them any detriment or harm.

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7.2 The Committee notes that the author was not recognized as the permanent partner of Mr. Y for pension purposes because court rulings based on Act No. 54 of 1990 found that the right to receive pension benefits was limited to members of a heterosexual de facto marital union. The Committee recalls its earlier jurisprudence that the prohibition against discrimination under article 26 comprises also discrimination based on sexual orientation' It also recalls that in previous communications the Committee found that differences in benefit entitlements between married couples and heterosexual unmarried couples were reasonable and objective, as the couples in question had the choice to marry or not, with all the ensuing consequences. The Committee also notes that, while it was not open to the author to enter into marriage with his same-sex permanent partner, the Act does not make a distinction between married and unmarried couples but between homosexual and heterosexual couples. 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 to his life partner's pension on the basis of his sexual orientation. 9. In accordance with the provisions of article 2, paragraph 3 (a), of the Covenant, the Committee finds that the author as the victim of a violatIOn of article 26, is entitled to an effective remedy, including reconsideration of his request for a pension without discrimination on grounds of sex or sexual orientation. The State party has an obligation to take steps to prevent similar violations of the Covenant in the future. Separate opiruon by Mr. Abdelfattah Amor and Mr. Ahmed Tawfik Khalil (dissenting)."

The Committee's decision in fact repeats the conclusion reached in 2003 in Young u. Australia (communication No. 941/2000), in what IS clearly a perspective of establishment and consolidation of consistent case law in this area, binding on all States parties to the Covenant. tt 's We cannot subscribe either to this approach or to the Comm! ee conclusion, for several legal reasons. . . . ation on I n t he fi rrst place article 26 does not explicitly cover dlscrlmm _be grounds of sexual orientation. Such discrimination might-<:oncelvably
5. See Communication No. 941/2000, Young v. Australia, View! of 6 August 2003. para, 10.4. [In Young, the Committee coneluded that there was no legitimate reason to de,"! the surviving same-sex partner of a military veteran a pension that the state pro. al partners vided to the u "married heteroeex'' of deceased veteran8.~Ed9.J beTS of the [The two di98enting mem t. reCommittee are from Tunisia and EgyP spectwefy.e-Eds.l

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covered, but only by the phrase "other status" at the end of article 26. Hence matters Involving sexual orientation can be addressed under the Covenant only on an interpretative basis. Clearly any interpretation within reasonable limits, and to the extent that it does not distort the text or attr-ibute to the text an intent other than that of its authors can be derived from the text itself. There is reason to fear, as will be seenbelow, that the Committee has gone beyond mere interpretation. Secondly, and still by way of introductory remarks, no interpretation, even one grounded in legal experience at the national level, can ignore current enforceable international law, which does not recognize any human right to sexual orientation. That is to say, the scope of the Committee's pioneering and standard-setting role should be circumscribed by legal reality. The main point is that, whatever interpretation is given to article 26, it must relate to non-discrimination and not to the creation of new rights which are by no means clearly implied by the Covenant, not to say precluded given the context in which the instrument was conceived. The Committee has always taken a very rigorous line in its efforts to interpret the concept of non-discrimination. Thus it finds that not every differentiation based on the grounds listed in article 26 of the Covenant amounts to discrimination, as long as it is based on reasonable and objective grounds .. in pursuit of an aim that is legitimate under the Covenant. Provisions of the Covenant cannot be interpreted in isolation from one another, especially when the link hetween them is one that cannot reasonably be ignored, let alone denied. Thus the question of "discrimination on grounds of sex or sexual orientation" cannot be raised under article 26 in the context of positive benefits without taking account of article 23 of the Covenant, which stipulates that "the family is the natural and fundamental group unit of society" and that "the right of men and women of marriageable age to marry and found a family shall be recognized". That is to say, a couple of the same sex does not constitute a family within the meaning of the Covenant and cannot claim benefits that are based on a conception of the family as comprising individuals of different sexes. What additional explanations must the State provide? What other evidence must it submit in order to demonstrate that the distinction drawn between a same-sex couple and a mixed-sex couple is reasonable and objective? The line of argument adopted by the Committee is in fact highly contentious. It starts from the premise that all couples, regardless of sex, are the same and are entitled to the same protection in respect of positive benefits. The consequence of this is that it falls to the State, and not to the author, to explain, justify and present evidence, as If this was some established and undisputed rule, which is far from bemg the case'.We take the view that in this area, where positive benefits are concerned, SItuations that are widespread can be presumed to be lawful-absent arbItrary

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decisions or manifest errors of assessment-and situations that depart from the norm must be shown to be lawful by those who so claim. On the other hand, there is no doubt that article 17, which prohibits interference with privacy, is violated by discrimination on grounds of sexual orientation. The Committee, both in its final comments on States parties' reports and in its Views on individual communications, has rightly and repeatedly found that protection against arbitrary or unlawful interference with privacy precludes prosecution and punishment for homosexual relations between consenting adults. Article 26, in conjunction with article 17, is fully applicable here because the aim in this case is precisely to combat discrimination, not to create new rights; but the same article cannot normally be applied in matters relating to benefits such as a survivor's pension for someone who has lost their same-sex partner. The situation ofa homosexual couple in respect of survivor's pension, unless the problemis viewed from a cultural standpoint-and cultures are diverse and even,as regards certain social issues, opposed-is neither the same as nor similarto the situation of a heterosexual couple.

A Bill for an Act to Make Provisions for the Prohibition of Sexual Relationship Between Persons of the Same Sex, Celebration of Marriage by Them and for Other Matters Connected Therewith
BE IT ENACTED by the National Assembly of the Federal Republicof Nigeria as follow&1. Short Title. This Act may be cited as Same Sex Marriage (Prohibition) Act 2006. 2. Interpretation. In this Act, unless the context otherwise require&"Marriage" means a legally binding union between a man and a womanbe it performed under the authority of the State, Islamic Law or Customary
Law;

"Minister" means the Minister responsible for Internal Affairs; "Same Se x Marnage . " means the coming together 0 f two pe rsons of . lbe or same gender or sex in a civil union marriage domestic partnershiP , , b' tstlOn as other form of same sex relationship for the purposes of eoha 1 husband and wife. 3. Validity and Recognition of Marriage. For the avoidance of doubt only marriage entered into between a man ;~ a woman under the marriage Act or under the Islamic and Customary are valid and recognized in Nigeria.

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(1) Marriage between persons of the same sex and adoption of children by them In or out of a same sex marriage or relationship is prohibited in the Federal Republic of Nigeria. . (2) Any marriage entered into by persons of same sex pursuant to a hcense Issued by another state, country, foreign jurisdiction or otherwise shall be void in the Federal Republic of Nigeria, (3) Marriages between persons of the same sex are invalid and shall not be recognized as entitled to the benefits of a valid marriage. (4) Any contractual or other rights granted to persons involved in same sex marriage or accruing to such persons by virtue of a license shall be unenforceable in any Court of law in Nigeria. (5) The Courts in Nigeria shall have no jurisdiction to grant a divorce, separation and maintenance orders with regard to such same sex marriage, consider or rule on any of their rights arising from or in connection with
such marriage.

5. Non-Recognition of Same Sex Marriage (1) Marriage hetween persons of same sex entered into in any jurisdiction whether within or outside Nigeria, any other state or country or otherwise or any other location or relationships between persons of the same sex which are treated as marriage in any jurisdiction, whether within or outside Nigeria are not recognized in Nigeria. (2) All arms Nigeria shall not within or outside or a claim arising of government and agencies in the Federal Republic of give effect to any public act, record or judicial proceeding Nigeria, with regard to same sex marriage or relationship from such marriage or relationship.

6. Prohibition of celebration of same sex marriage in a place of worship (1) Same sex marriage shall not be celebrated in any place of worship by any recognized cleric of a Mosque, Church, denomination or body to which such place of worship belongs. (2) No marriage license shall be issued to parties of the same sex in the Federal Republic of Nigeria. 7. Prohibition of Registration of Gay Clubs and Societies and Publicity of same sex sexual relationship. (1) Registration of Gay Clubs, Societies and organizations by whatever name they are called .. , by government agencies is hereby prohibited. it . and public show of same sex amorous rela(2) P Ubli rei y, procession .... . tionship through the electronic or print media physically, directly, indirectIy or otherwise are prohibited in Nigeria. (3) Any person who is involved in the registration .of gay clubs, societies and organizations, sustenance, procession ?r ~eetmgs~u~rcI~ and public show of same sex amorouS relationshIp direct y or m. .e y m ubl' d . . t' ilty of an offence and liable on conViction to a P ic an In prrva e IS gu term of 5 years imprisonment.

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Offences and Penalties.

(1) Any person goes through the ceremony of marriage with a person of the same sex is guilty of an offence and liable on conviction to a term of 5 years imprisonment. (2) Any person performs, witnesses, aids or abets the ceremony of same sex marriage is guilty of an offence and liable on conviction to a term of 5 years imprisonment.

Notes and Questions 1. Following the Human Rights Committee's decision in the X v. Colombia case, the Colombian government claimed that it lacked a legal framework to award Mr. Y's pension benefits to Mr. X. In response, a group of human rights organizations filed a complaint with the Colombian Constitutional Court. The court held that denying same-sex partners pension and health benefits that the government grants to unmarried opposite-sex couples violates the principles of non-discrimination and human digoity protected by international law. Human Rights Watch, Colombia: Court Extends Benefits to Same-Sex Couples: Same-Sex Partnerships Entitled to Health and Pension Benefits (Apr. 18, 2008). 2. What justifications did Colombia provide for granting pension benefits to opposite-sex unmarried couples but not to same-sex couples? Are you persuaded by the Committee's response to the state's arguments? Which party bears the burden of proving whether or not Colombia's pension scheme is discriminatory? 3. Do you agree with the assertion of the two dissenting members of the Committee that the majority "has gone beyond mere interpretation" to create "new rights which are by no means clearly implied by the Cove nant"? Is the dissent advocating an interpretation of the ICCPR that vanes with the social and cultural norms that prevail in a state party? Can such an approach be reconciled with a universal understanding of human rights? 4. Reconsider whether discrimination on the basis of sexual orientation is a form of sex discrimination. Are the arguments in favor of this interpreta' tion of the ICCPR more or less compelling in X v. Colombia or in Toonen? Does the Human Rights Committee adopt a consistent position on this issue in the two cases? If not, how does the Committee's analysis in X v. Colombia differ from its analysis in Toonen? (Review in particular paragraphs 6.2, 7.2 and 9 of the X case.) 5. Would the Committee have reached the same result in the X case if Colombia had provided pension benefits only to opposite-sex married coupIes, but not to unmarried opposite-sex or same-sex couples? Does. th~ Committee's analysis in paragraph 7.2 suggest an answer to this questIOn. 6. Does a state party violate the ICCPR's nondiscrimination provision only recogruzas marriages between a man and a woman? In Joslm v. 2) Zealand, Comm. No. 902/1999, U.N. Doc. CCPR/C/75/D/902/1999 (200 , the Human Rights Committee considered a complaint by two lesbIan . . Iigribl e to marry coup I es III commItted, long-term relationships who were me . es The women alleged that the state's failure to recognize same-sex marrlag

.....

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RlC:lII'rs

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amounted to, inter. alia, discrimination on the basi of sex and xual orientation In violation of Article 26. New Zealand responded by invoking Article 23.2 of the ICCPR, which provides that "Itlhe right of e d . bl mnan women 0 f ,:narnagea e age to marry and to found a family shall be recognized. The Committee rejected the applicants' complaint in the followmg terms: 8.2 ... Given the existence of a specific provision in the Covenant on the right to marriage, any claim that this right has been violated must be considered in the light of this provision. Article 23, paragraph 2, of the Covenant IS the only substantive provision in the Covenant which defines a right by using the term "men and women", rather than "every human being", "everyone" and "all persons". Use of the term "men and women", rather than the general terms used elsewhere in [the ICCPR], has been consistently and uniformly understood as indicating that the treaty obligation of States parties stemming from article 23, paragraph 2, of the Covenant is to recognize as marriage only the union between a man and a woman wishing to marry each other. 8.3 In light of the scope of the right to marry under article 23, paragraph 2, of the Covenant, the Committee cannot find that by mere refusal to provide for marriage between homosexual couples, the State party has violated the rights of the authors ... Is it possible to reconcile Joslin with X u. Colombia? Does the answer to this question depend upon whether a state party recognizes civil unions or domestic partnerships for same-sex couples? After considering the reasoning in the two decisions, how would you predict that the Committee would respond to the claim that a same-sex couple is a "family" for purposes of ICCPR Article 23.1, which provides that "[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State"? 7. The Nigerian Minister for Justice introduced the Same Sex Marriage (Prohibition) Act in the Nigerian Parliament in January 2006. To date, It has not been enacted. Assume that the bill is eventually adopted as set forth above. On what other grounds could the law be challenged as contrary to the ICCPR or to other human rights treaties? If you were a staff attorney with an NGO such as Amnesty International working to repeal the statute, what strategies would you adopt? Before answenng these questions, consider the following: Consensual homosexual acts between adults are already illegal in Nigeria. Chapter 42 Section 214 of the Nigerian Federal Code penalizes consensual sarr:e-sex acts by 14 years imprisonment and m the Shari'a states the punishment for "sodomy" can be death. Meanwhile, there's been virtually no public advocacy for same-s~x ma;nage ill Nigeria. Why then, is the Nigerian government consldenng this legislation at this time? Clearly the introductIOn of the [bill] IS deSIgned t~ silence the incre:.singly v:X:aland visible local LGBT commumty an its supporters.

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PART III SELECTED RIGHTS AND ISSUES COMPARED

International Gay and Lesbian Human Rights Commission, Voices from Nigeria: Gays, Lesbians, Bisexuals, and Transgenders Speak Out About the Same-Sex Bill at 1 (Nov. 2006). 8. Does a state violate the ICCPR if it refuses to permit a transgender person to marry someone of the opposite sex? In Goodwin u. United Kingdom, App. No. 28975/95, 2002-VI Ell'. Ct. H.R., the ECHR held, unanimously, that transgender individuals have the right to marry a person of the sex opposite to their surgically reassigned gender. Article 12 of the European Convention, similar to Article 23.2 of the ICCPR, provides that "[m]en and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right." The ECHR rejected the government's argument that this provision "must refer to a determination of gender by purely biological criteria." [d. para. 100. A more detailed analysis of this case appears in Chapter 7(B)(2) on the European human rights system. 9. If a state party recognizes civil unions or partnerships for same-sex couples, must it also extend such recognition to any two people in an interdependent relationship? Cf Burden & Burden u. United Kingdom, App. No. 13378/05, 2008-_ Ell'. Ct. H.R. (Grand Chamber) (holding, by a 15-2 vote, that two elderly sisters who had shared a home for several decades were not similarly situated to "homosexual civil partners under the United Kingdom's Civil Partnership Act" and that the refusal to permit them to register as civil partners was not discriminatory). 10. In In re Marriage Cases, 76 Cal.Rptr.3d 683 (Cal. 2008), the California Supreme Court held, by a 4-3 vote, that the refusal to recognize same-sex marriages violated the privacy, due process, and equal protection clauses of the State constitution. (The decision was overturned several months later by a State referendurn.) In a footnote, the court found it noteworthy that the California and federal Constitutions are not alone in recognizing that the right to marry ... constitutes a basic civil or human right of all people. Article 16 of the Universal Declaration ?f Human Rights, adopted by the United Nations General Assembly III 1948, provides: "Men and women of full age, without any limitatIOn due to race, nationality , or relizion have the right to marry and to b~' f found a family. The family is the natural and fundamental unit 0 society and is entitled to protection by society and the State." Numerous other international human rights treaties similarly recogmze the right "to marry and to found a family" as a basic human right (Internal. Covenant on Civil and Political Rights, art. 23; see European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 12; Amer. Convention on Human Rights, art. 17), an~ the constitutions of many nations throughout the world explicitly lin marriage and family and provide special protections to these IllstltUtions. Id. at 732 n.41. Is it relevant that the California Supreme Court did not cite the Human Rights Committee's decision in the Joslin case, diSCUssed III note 6 above?

CHAPTERll
11. For additional discussion of human rights issues relating to sexual orientation and gender identity, see ERIC HEINZE,SEXUALORIENTATIONA HUMAN RIGHT (1995); RACHELROSENBLOOM ANDTHE INTERNATIONAL GAYAND LESBIAN HUMANRIGHTS COMMISSION, UNSPOKEN RULES,SEXUAL ORIENTATION AND WOMEN'S HUMAN RIGHTS (1995); SEXUALITY ANDHUMANRIGHTS,A GLOBAl. OVERVIEW(Helmut Graupner & Phillip Tahmindjis, eds. 2005); Special Issue: Sexuality and the Law, 27(3) SOUTHAFRICAN J. HUM. RTS. 407-590 (2007); liEES W AALDIJK & MATTEOBoNINI-BARALDI, SEXUAL ORIENTATION DISCRIMI NATION IN THE EUROPEANUNION,NATIONAL LAwsAND THEEMPLOYMENT EQUALITY DIRECTIVE (2006); KRISTENWALKER,United Nations Human Rights Law and Same Sex Relationships: Where to from Here? in LEGAL RECOGNITION OF SAM}; SEXPARTNERSHIPS743-58 (Robert Wintemute & Mads Andenas, eds. 2001); ROBERTWINTEMUTE, SEXUALORIENTATION AND HUMAN RIGHTS,TKE UNITED STATESCONSTITUTION, THE EUROPEAN CONVENTION, ANDTHECANADIAN CHARTER (1995).

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c.

FREEDOM

OF EXPRESSION

u.s. readers may be surprised that freedom of expression appears so late in the Universal Declaration and in the ICCPR and the regional conventions. U.S. lawyers are accustomed to the formal and substantive priority of the First Amendment,* and to judicial assertions of the fundamentality of freedom of speech. There are obvious historical explanations for the fact that freedom of speecb textually precedes equality and freedom from involuntary servitude: the Bill of Rights was adopted at a time when the Constitution protected slavery, not universal human freedom .. But Justice Cardozo offered a theoretical justification for the fundamentahty of "freedom of thought and speech" in Palko u. ConnectLeut, 302 U.S. 319, 327 (1937): "Of that freedom one may say that it is the matrix, the . . th D rm of freedom. WIth rare mdlspensable condition of nearly every 0 er 0 ed . '. . f th t truth can be trac m our a b errations a pervasive recogmtlOn 0 a . ., an ri hts is history, political and legal." For which other individual hum g freedom of speech essential? d . ib ti t individual self- etermmaBesides making important contrI u IOns o. B th ti ti al to democratic governance. 0 ion, freedom of speech is also essen I . the fundamental U.S. law and international human rights laalwrtecogmfzedeas criticism of . , ublic ev ua IOn 0 I , I ro e 0 f freedom of expression ror P . iti sometimes leads to m t'f n ThIS recog Ion government, and elector al compe I .I~. eech as the core of freedom of an emphasis on protection of politICal sp expression. . . ht d can . . rt other indiVIdual rig s an But If free expresston can suppo th rights and interests of mobilize political power, it can also threaten :eeh is not absolute, and f others. Even in the United States, freedom n t sp terests. Still, the strong en in mediI' . h 0th er ay ne to yield to compe illg governrn . ed States contrasts WIt attachment to freedom of speech in the Unit
They may sometimes forget, however, that Within the First Amendment, freedom of E{)eech comes after the prolubition on estabIishment exercise.
0

, 'on and the right of free f re I IgJ