Rainbow Charter is a column on international law and queer rights, with a keen focus on macro international law as well as deeper micro LGBTQ laws. This column also maps the current LGBTQ laws based on geographic regions and also aims to summarise progressive LGBTQ judgements from around the world and how it shapes the international context.
The growth of human rights law both internationally and domestically go hand in hand. Many a times the recognition of some rights in international instruments to which countries are party, have played a monumental role in asserting them even within domestic jurisdictions. They also prove to be an effective tool to bridge the gap between the legislature and international community as these instruments are often relied on by courts to enforce the rights of persons which may have not yet been enacted by the government. In India, one of the most befitting examples for this can be seen in the Vishaka judgment wherein the court was swift in recognizing that there exists a specific right against sexual harassment at the workplace and recommended guidelines by relying on the Convention on the Elimination of All Forms of Discrimination against Women, 1979.
Queer rights in India have witnessed massive successes within India in the recent past with the recognition of the ‘third gender’ and decriminalization of homosexuality under Section 377 but are still fairly nascent and lack the requisite legal backing in order to truly live a life akin to most heteronormative, cis-gendered persons. It is in this context that several international instruments come in handy in understanding the true scope and expanse of the rights of the community as recognized internationally.
International law and the rights of the Queer Community
The right against discrimination and violence based on gender identity and sexual orientation was the subject matter of concern for the international community for the first time in the report prepared by the Office of the High Commissioner in the year 2011. This report although only approved by a narrow margin was important in understanding that universally, there existed a systematic and institutional violence and discrimination because of persons’ gender identity and sexual orientation. Even though this report was published recently, international law has, for ages, been an implicit promoter of non-discrimination based on gender and sexuality through its various treaties and resolutions. There has been a repeated and consistent recognition of the right to equality from the 1900s where no exception can be found condoning discrimination and violence based on gender identity or sexual orientation.
The Right against Violence based on Gender Identity and Sexuality
There are international conventions dedicated to the protection of life and liberty of every person. Recently, several acts of violence being directed towards the LGBTQ community in different parts of the world have been brought to light. The validity of such acts can be determined not only on the grounds of humanity but also on the sheer illegality of these acts in the light of international treaties, covenants and instruments. The Universal Declaration of Human Rights (UDHR), one of the oldest and most authoritative texts on the protection of human rights, asserts in Article 3 that everyone has the right to life, liberty and security of person. This is also reflected in the International Covenant on Civil and Political Rights (ICCPR) which, through Articles 6 and 9 obligates the states to protect the liberty and security of the individual. It also recognizes the right of every human being’s inherent right to life and ensures that it not be taken away arbitrarily. Violence includes torture inflicted on the victims as well. Several states resort to torture as a form of ‘punishment’ to shame the community. The Convention against Torture through Articles 1 and 2, substantiates this right to life held within the UDHR. It criminalises all forms of torture based on any ground and also includes pain and suffering be it physical or mental.
The Right to Freedom of Speech, Expression and Association
Collective action has often been the initiator of social change, especially when such changes concern the rights of communities at large. The UDHR, the ICCPR as well as other regional and international instruments safeguard the right of peaceful assembly, freedom of association and expression thereby making the right of the community to express and organize to enforce their rights and obligations. Article 19 and 20 of the UDHR ensure that individuals have the right to freedom of thought, expression and peaceful assembly. This necessarily includes the right to autonomy of thought giving individuals the entitlement to arrive at their own ideas and opinions without arbitrary interference. The scope of this right is enhanced under Articles 19, 21 and 22 of the ICCPR which is also essential to maintain the integrity and freedom to seek, impart and receive any information.
The Right to Bodily Autonomy and Privacy
The right to life in relation to the interests of the LGBTQ community is centered not only around the right against being subjected to violence but also the right to live a private life. The core of criminalisation and discrimination of the community stems from the state’s entitlement to enter into and dictate the terms of personal relationships. This is specifically against the obligation of the States to maintain individual privacy and non-discrimination. Article 17 of the ICCPR specifically entails that individuals have a right against unlawful and arbitrary interference with their privacy.
Graeme Reid, the director of the LGBT Rights Program at Human Rights Watch is forthcoming in acknowledging that international and domestic law have been indispensable in securing the rights of the queer community. At the same time, he is also acutely aware of the fact that the law is useful both as a tool of oppression and as a tool of resistance thereby highlighting the vulnerabilities of the community. A close reading of these conventions brings to light the universal application of these human rights without any discrimination on the grounds of sex, gender, identity or expression. Although there is a need for a formal affirmation of the rights of the queer community to validate them on an international level, its lack thereof does not in any sense spell out that discrimination on the grounds of sex and gender is not prohibited.
Uttanshi Agarwal is a Research Associate with the Feminist Justice vertical at One Future Collective.
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