UN Committee Asserts Special Rights for "Sexual Orientation and Gender Identity"

By Susan Yoshihara, Ph.D.

(NEW YORK – C-FAM) A UN human rights committee recently told UN member states they must grant broad new human rights on the basis of “sexual orientation and gender identity.” By making sweeping changes to their national laws, policies and changing practices and attitudes within families and cultural institutions, or else they will be in “violation” of their obligations under international law.

The document, called “General Comment 20,” was released on July 2nd by the committee responsible for monitoring compliance with the International Covenant on Economic, Social and Cultural Rights. Going well beyond putting an end to criminal penalties against homosexuality or stopping violence and unjust discrimination, it claims that two new anti-discrimination categories exist even though sovereign states have repeatedly rejected these same categories in open UN debates.

In those debates, nations expressed concern that since the terms “sexual orientation and gender identity” are not recognized or defined in international law, the new category could be used to impose limitations on freedoms of speech, religion and conscience as well as marriage laws and school curricula. Indeed, the committee asserts that changes must include “a State’s constitution, laws and policy documents,” as well as “measures to attenuate or suppress conditions that perpetuate discrimination” including “employment in educational or cultural institutions,” as well as “families, workplaces, and other sectors of society.” Measures must remain in place until such a time “when substantive equality has been substantially achieved.” No definition of or standards for measuring “substantive equality” are provided.

The non-discrimination article says that states party to the treaty agree to “guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, color, sex, language, religion, political identity, national or social origin, property, birth or other status.”

The committee asserts that “a flexible approach to the ground of ‘other status’ is thus needed” and “‘other status’ as recognized in article 2, paragraph 2, includes sexual orientation.” “Gender identity,” the general comment goes on to state, “is recognized as among the prohibited grounds of discrimination; for example, persons who are transgender, transsexual or intersex.”

The idea that gender identity and sexual orientation are “recognized as among the prohibited grounds of discrimination” is one of the most hotly contested issues in UN social policy debates. Liberal governments have repeatedly attempted to gain consensus on the issue but have so far been defeated. No binding UN document includes sexual orientation or gender identity among protected non-discrimination categories.

For support of its re-definition, the committee cites the Yogyakarta Principles , a highly controversial 2007 manifesto authored by activists and UN human rights officials which re-interprets 29 existing human rights to include homosexuality. The unofficial document asserts that nations who are party to UN human rights treaties are already obligated to grant broad homosexual rights or else they are in violation of international law.

The committee of appointed “experts” has no enforcement capability. However, nations report to the committee which then publishes reports on whether the government is properly implementing the treaty. Their views are increasingly used by sympathetic jurists, government officials and activist to pressure their governments to change laws and policies.