American University International Law Review

Volume 29 | Issue 4 Article 6

2014

Do Ask, Do Tell: Where is the Protection Against

Sexual Discrimination in International Human
Rights Law?
Kerstin Braun

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Recommended Citation
Braun, Kerstin. "Do Ask, Do Tell: Where is the Protection Against Sexual Discrimination in International Human Rights Law?"
American University International Law Review 29 no. 4 (2014): 871-903.

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 DO ASK, DO TELL: WHERE IS THE
PROTECTION AGAINST SEXUAL
ORIENTATION DISCRIMINATION IN
INTERNATIONAL HUMAN RIGHTS LAW?1
KERSTIN BRAUN2

I. INTRODUCTION ..................................................................... 872

II. ASPIRATIONAL STATEMENT ON THE APPLICATION
OF INTERNATIONAL HUMAN RIGHTS LAW TO LGBT PEOPLE 876
A. DEFINING ASPIRATIONAL STATEMENT............................... 876
B. IS AN ASPIRATIONAL STATEMENT SUPERFLUOUS? ............ 877
1. Human Rights Treaties and International
Jurisprudence ................................................................ 877
2. Human Rights Treaties and Authoritative
Commentary .................................................................. 883
3. Draft Resolutions, Principles, and Declarations........... 884
III. BENEFITS AND RISKS REGARDING THE ADOPTION
OF A CONVENTION ON SEXUAL ORIENTATION AND
GENDER IDENTITY ................................................................ 889
A. BENEFITS OF A CONVENTION ON SEXUAL ORIENTATION
AND GENDER IDENTITY ....................................................... 890
B. RISKS ASSOCIATED WITH THE ADOPTION OF A
CONVENTION ....................................................................... 892
IV. DIALOGIC APPROACH TO CHANGE ATTITUDES .. 896 A.
STRATEGIES TO FURTHER DIALOGUE ON THE MATTER OF
LGBT PEOPLE’S HUMAN RIGHTS PROTECTIONS ............... 897

1 In response to the question asked by Debra L. DeLaet in her paper on sexual

orientation discrimination, Debra DeLaet, Don’t Ask, Don’t Tell: Where Is the
Protection Against Sexual Orientation Discrimination in International Human Rights
Law?, 7 L. & SEXUALITY 31 (1997).
2 LL.M (UQ), PhD student at the TC Beirne School of Law, The University of
Queensland, Australia. The author would like to thank Dr. Mark Burdon for his ideas
and guidance.
871
872 AM. U. INT’LL. REV. [29:4

B. CRITICISM OF THE APPROACH ............................................. 899

V. CONCLUSION ........................................................................ 902

I. INTRODUCTION
Since the development of the international human rights regime in the
aftermath of World War II, no treaties or other instruments adopted by the
United Nations General Assembly explicitly reference sexual orientation.
While Article 2 of the Universal Declaration of Human Rights (“Universal
Declaration”) asserts that all human beings are entitled to the rights
enunciated in the document and explicitly states that this entitlement shall
apply “without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth
or other status,”3 no reference is made to sexual orientation. The
International Covenant on Civil and Political Rights (“ICCPR”) 4 and the
International Covenant on Economic, Social and Cultural Rights
(“ICESCR”),5 which together with the Universal Declaration are often
referred to as the International Bill of Human Rights,6 also do not reference
sexual orientation. Studies have shown that Lesbian, Gay, Bisexual, and
Transgendered (“LGBT”) people experience discrimination in countries
around the globe.7 For example, in over seventy-eight countries,

3 Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc.
A/RES/217(III) (Dec. 10, 1948) [hereinafter U.N. Declaration of Human Rights].
4 See International Covenant on Civil and Political Rights, G.A. Res. 2200A
(XXI), U.N. GAOR, 21st Sess, Supp No. 16, U.N. Doc A/6316 (entered into force Mar.
23, 1976) [hereinafter ICCPR] (listing race, colour, sex, language, religion, political or
other opinion, national or social origin, property, and birth or other status, as
categories that are protected from discrimination).
5 See International Covenant on Economic, Social and Cultural Rights, G.A.
Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp No. 16, U.N. Doc A/6316 (entered into
force Jan. 3, 1976) [hereinafter ICESCR].
6 See generally THE INTERNATIONAL B ILL OF HUMAN RIGHTS (Paul Williams et
al. eds., 2d ed. 1999).
7 See Lucas Paoli Itaborahy, State-Sponsored Homophobia: A World Survey of
Laws Criminalising Same-Sex Sexual Acts Between Consenting Adults (2012),
http://www.aidsfreeworld.org/PlanetAIDS/~/media/796515F2D74A4158AC59950
4E042F4A8.pdf (noting that forty percent of U.N. Member States still criminalize
same-sex sexual acts between consulting adults); cf. Harvey Makadon et al., Fenway
Guide To Lesbian, Gay, Bisexual, and Transgender Health 15-16 (2008) (defining the
terms “Gay,” “Lesbian,” and “Bisexual” as “people who have an orientation toward
people of the same gender in sexual behavior, attraction or affection, where the term
‘transgendered’ includes anyone who does not conform to traditional gender norms
for men and women; for example, people who do not identify as either male or female
or people that choose to express their gender identity as opposite to their (birth) sex”).
2014] DO ASK, DO TELL 873

homosexual acts are illegal and parts of seven countries still retain the
death penalty for homosexual acts.8 In states where homosexual acts are
not penalized, LGBT people frequently experience more subtle
discrimination through national laws, for example, in the area of
employment and family life.9 Even in states with legislation that
specifically protects LGBT people, violent crimes against LGBT people
occur with increasing frequency.10
Despite the publicly displayed discrimination around the globe, and the
knowledge thereof, the United Nations and international human rights law
remain silent on rights for sexual minorities and shy away from protecting
them.11 A number of Member States interpret this silence to mean that
international human rights law does not protect against discrimination on
the basis of sexual orientation or even prohibits this protection.12
Beginning with the 1969 Stonewall Tavern riots against police
harassment in New York,13 the modern LGBT people’s rights movement
grew stronger by the decade. As the movement progressed, many began to
call for action on the international level to promote the treatment of LGBT
people in accordance with their human rights.14 In 1997, DeLaet’s

See generally The Greenwood Encyclopedia of LGBT Issues Worldwide (Chuck

Stewart ed., 2010).
8 See Itaborahy, supra note 5, at 12-13 (listing Iran, Mauritania, Saudi Arabia,
Sudan, Yemen, and Nigeria as some countries that, as of 2012, provided the death
penalty for these acts).
9 See Pratima Narayan, Somewhere over the Rainbow . . . International Human
Rights Protections for Sexual Minorities in the New Millennium, 24 B.U. INT’L L.J. 313,
314 (2006) (noting the types of punishment LGBT people suffer other than criminal
penalties).
10 Emma Mittelstaedt, Safeguarding the Rights of Sexual Minorities: The
Incremental and Legal Approaches to Enforcing International Human Rights
Obligations, 9 CHI. J. INT’L L. 353, 354 (2008).
11 See Debra DeLaet, Don’t Ask, Don’t Tell: Where Is the Protection Against
Sexual Orientation Discrimination in International Human Rights Law?, 7 L. &
SEXUALITY 31, 33 (1997) (indicating that international human rights law neither sets
guidelines for providing protections to LGBT people nor prohibits discrimination
against them).
12 Sharon Yecies, Comment, Sexual Orientation, Discrimination, and the
Universal Declaration of Human Rights, 11 CHI. J. INT’L L. 789, 792 (2011)
(discussing a statement by Syria on the matter regarding the interpretation of U.N.
treaties’ applicability to LGBT people as up to individual states).
13 See Janice Wood Wetzel, Human Rights in the 20th Century: Weren’t Gays
and Lesbians Human?, 13 J. GAY & LESBIAN SOC. SERVICES 15, 18 (2001) (pointing
to what is credited as the beginning of the gay rights movement).
14 See, e.g., ERIC HEINZE, SEXUAL ORIENTATION: A HUMAN RIGHT, 291-303 (1995)
[hereinafter HEINZE, SEXUAL ORIENTATION: A HUMAN RIGHT] (recognizing that
874 AM. U. INT’LL. REV. [29:4

provocatively titled paper, “Don’t Ask, Don’t Tell: Where Is the Protection
Against Sexual Orientation Discrimination in International Human Rights
Law?”15 stated that, “to date, an imbalance has characterized international
human rights law because sexual orientation discrimination is not explicitly
prohibited.”16 DeLaet requested that “the non-discrimination clauses in
major human rights documents . . . be expanded to include protection for
gay, lesbian, and bisexual persons as an important step in the struggle to
minimize all forms of discrimination in practice” and to “end [the] relative
silence . . . to promote norms consistent with the noble ideal of human
rights.”17 DeLaet argued that the expansion of nondiscrimination clauses
could be done through the adoption of an “aspirational statement” on the
international level.18 Since DeLaet’s request in 1997, many have acted on
the international level to promote LGBT rights, which is evidenced in
international jurisprudence, authoritative commentary, resolutions, and
other statements affirming that international human rights law is applicable
to LGBT people.19
The aim of this article is to critically assess the question of whether a
statement on the international level is still necessary and beneficial to
clarify that LGBT people are protected under international human rights
law in light of the growing authoritative commentary and jurisprudence on
the international level. This article also contemplates the risks and benefits
associated with the adoption of such a statement, and whether an
alternative approach, such as a dialogic approach, may be better suited on
the international level to improve the treatment of LGBT people in
Member States.
Following this introduction, Part II contemplates the question of whether
the adoption of an aspirational statement, as requested by DeLaet, should
be pursued to improve the human rights situation of LGBT people in the
future. Part II first defines the aspirational statement and subsequently
contemplates if such a statement is still necessary by analyzing the
protection offered through the evolving jurisprudence, authoritative

“persecution on the basis of sexual orientation constitutes a vast chapter of the

chronicle of human rights violations throughout the world” and agreeing to basic
principles of change).
15 DeLaet, supra note 9.
16 Id. at 52.
17 Id. at 52-53.
18 DeLaet, supra note 9; see also discussion infra Part II.A (crafting a definition
of aspirational statement).
19 See discussion infra Part II.
2014] DO ASK, DO TELL 875

commentary, and statements of U.N. bodies on the applicability of

international human rights law to LGBT people. Part II concludes that
while a general statement reaffirming the applicability of international
human rights law to LGBT people seems unnecessary in light of
international jurisprudence and authoritative commentary, a legally binding
document like a convention with clear obligations could be beneficial to
improve the human rights situation of LGBT people in Member States.
Part III analyzes the risks and benefits associated with such a convention
and argues that, due to a lack of consensus on the international level, the
adoption of a legally binding convention should not be pursued at the
current time in order to prevent the escalation and polarization of the
debate. Based on these findings, Part IV analyzes whether a different, less
risk-intensive approach in the human rights framework could be employed
to improve the treatment of LGBT people in Member States. This article
considers using a dialogic approach as an alternative to adopting a legally
binding convention and concludes that, although a dialogic approach may
be a much slower process, it has the potential to influence Member States’
attitudes and change the long-term treatment of LGBT people.
Part V concludes with the author’s view that the protection of LGBT
people in Member States does not necessarily depend on whether an
additional international human rights instrument is created but on reaching
a consensus on these matters between Member States. The promotion of
the existing international human rights framework, jurisprudence, and
authoritative commentary in a dialogue with Member States, has the
potential, as stated by the High Commissioner for Human Rights,
Navanethem Pillay, to “move beyond a debate on whether all human
beings have rights—for such questions were long ago laid to rest by the
Universal Declaration—and instead . . . secure the climate for
implementation.”20
II. ASPIRATIONAL STATEMENT ON THE
APPLICATION OF INTERNATIONAL HUMAN RIGHTS
LAW TO LGBT PEOPLE
A. DEFINING ASPIRATIONAL STATEMENT

20 Daniel Ottoson, State-Sponsored Homophobia, INT’L LESBIAN, GAY,

BISEXUAL, TRANS & INTERSEX ASSOC’N 9 (May 2009),
http://ilga.org/historic/Statehomophobia/ILGA_State_Sponsored_Homophobia_20
09.pdf (providing a text of the statement given by the U.N. High Commissioner for
Human Rights Navanethem Pillay in New York on December 18, 2008).
876 AM. U. INT’LL. REV. [29:4

Before beginning a discussion of whether an aspirational statement

could improve LGBT people’s rights in Member States, one must
determine what DeLaet envisioned when she requested an aspirational
statement that clarified the protection against sexual orientation
discrimination in international human rights law.
In her article, DeLaet noted that, in 1997, international human rights law
failed to set promotional standards and guidelines for the prohibition of
discrimination on the basis of sexual orientation.21 DeLaet contended that
the silence on LGBT people’s human rights in the international community
reflected a widespread consensus that discriminatory treatment of LGBT
people was a “form of clearly acceptable discrimination.”22 DeLaet argued
that international human rights law could increase awareness and
knowledge of human rights, as well as provide human rights advocates
with an international principle to which they could refer in their efforts to
broaden support for human rights.23 In DeLaet’s opinion the lack of
explicit reference to LGBT people in existing human rights treaties
contributed to the general lack of attention to this issue. The lack of
explicit mentioning did not provide advocates with a minimal promotional
guideline they can refer to when attempting to broaden support for LGBT
people’s human rights and therefore supply them with an important
political symbol.24 DeLaet elaborated that an aspirational statement
clarifying the applicability of international human rights laws to LGBT
people could take the form of a separate protocol to existing treaties or the
form of an entirely new convention to specifically prohibit sexual

orientation discrimination.25
The lack of authoritative commentary and jurisprudence on the
international level in the 1990s likely caused DeLaet to request a statement
explicitly affirming the applicability of international human rights law to
LGBT people in order to provide human rights advocates with a tool to
promote these rights. An aspirational statement intended to promote LGBT
people’s human rights may, however, be superfluous if, since the 1990s,
U.N. bodies and agencies have interpreted the language of existing human

21 DeLaet, supra note 9, at 33.

22 Id.
23 Id.
24 Id. at 53.
25 Id. at 35 (providing that an aspirational statement would need reinforcement
beyond its initial drafting).
2014] DO ASK, DO TELL 877

rights treaties in a way that provides sufficient protection for LGBT people.
In that case, the United Nations would have ended the “relative silence” in
international human rights law on the treatment of LGBT people that
DeLaet had identified as a major hurdle to improving the treatment of
LGBT people in Member States.

B. IS AN ASPIRATIONAL STATEMENT SUPERFLUOUS?

This section first considers the rights of LGBT people according to the
International Bill of Human Rights and subsequently analyzes how treaty
bodies have interpreted these treaties in jurisprudence and authoritative
commentary, which Member States are generally required to follow once
they have signed and ratified the treaty. Subsequently, this section will
consider the applicability of international human rights law to LGBT
people as set out in draft resolutions, declarations, and other international
statements.

1. Human Rights Treaties and International Jurisprudence

During World War II, severe violations of human rights occurred.26
Shortly after the war, the United Nations adopted the Universal Declaration
in 1948 in part to condemn the violations that had occurred during the past
years and those expected to occur in the future. In addition, in 1966, the
ICCPR and the ICESCR were adopted, entering into force in 1976, and
with the Universal Declaration, created the International Bill of Human
Rights. The Universal
Declaration’s Preamble states that the United Nations proclaim the
Declaration as a common standard of achievement for all peoples and all
nations.25
As noted above, the International Bill of Human Rights does not
specifically mention sexual orientation. In relation to nondiscrimination,
Article 1 of the Universal Declaration states that all human beings are born
free and equal in dignity and rights, while Article 2 specifies that
“everyone is entitled to all the rights and freedoms set forth in this
Declaration without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status.”26 Article 7 reaffirms that, “all are equal
before the law and are entitled without any discrimination to equal

26 See Philipp Tahmindjis, Sexuality and International Human Rights, 48 J.

HOMOSEXUALITY 9, 11 (2005) (pointing to “the atrocities of the Nazis” as examples of
violations of human rights generally and against LGBT people).
878 AM. U. INT’LL. REV. [29:4

protection against any discrimination in violation of this Declaration and

against any incitement to such discrimination.”27 Article 26 of the ICCPR,
which states that,
[A]ll persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law shall
prohibit any discrimination . . . on any ground such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status28

reinforces these principles, while similar protections exist under the

ICESCR.29
No affirmative answer has been offered as to why an explicit reference
to sexual orientation or gender identity is missing in the International Bill
of Human Rights.30 Instead, the existing literature is 27 28 29 30 31 32 largely
characterized by an overall lack of discussion on this matter. As one of the
few authors addressing the question, Phillip Tahmindjis suggests that the
absence of any reference to sexual orientation is related to the political and
social undercurrents of the time of the instruments’ drafting.33 However,
the lack of specific reference to sexual orientation is particularly surprising
when considering that the Universal Declaration was drafted shortly after
World War II, when human rights violations were likely still on the
drafters’ minds. Despite the fact that an estimated 700 homosexual inmates
died in the Sachsenhausen concentration camp at the hands of the Hitler

27 See U.N. Declaration of Human Rights, supra note 1 (recognizing “the

inherent dignity and . . . the equal and inalienable rights of all members of the human
family”).
28 Id. art. 1.
29 Id. art. 7.
30 ICCPR, supra note 2, art. 26.
31 See, e.g., ICESCR, supra note 3, art. 2.2 (guaranteeing the rights in the
present Covenant without discrimination of any kind of status).
32 “Sexual orientation” is used in this article in accordance with the Preamble of
the Yogyakarta Principles as “each person’s capacity for profound emotional,
affectional and sexual attraction, to, and intimate and sexual relations with,
individuals of a different gender or the same gender or more than one gender.” T HE
YOGYAKARTA PRINCIPLES: PRINCIPLES ON THE APPLICATION OF INTERNATIONAL HUMAN
RIGHTS LAW IN RELATION TO SEXUAL ORIENTATION AND GENDER IDENTITY (2007),
available at http://www.yogyakartaprinciples.org/ principles_en.pdf [hereinafter THE
YOGYAKARTA PRINCIPLES]. “Gender identity” refers to “each person’s deeply felt
internal and individual experience of gender, which may or may not correspond with
the sex assigned at birth, including the personal sense of the body and other
expressions of gender, including dress, speech and mannerisms.” Id.
33 Tahmindjis, supra note 24, at 11.
2014] DO ASK, DO TELL 879

regime, the Universal Declaration condemning the violations of human

rights that occurred during the war remained silent in relation to sexual
orientation discrimination.34
The fact that the International Bill of Human Rights does not reference
sexual orientation or gender identity as a specific category protected
against discrimination does not necessarily mean that LGBT people are not
protected from discrimination through international human rights law or
that no freestanding rights to equality exist in addition to the explicitly
listed.35 Whether the jurisprudence of the United Nations Human Rights
Committee (“HR Committee”), responsible for monitoring compliance
with the ICCPR, has established sufficient protections for LGBT people
under international human rights law by the interpretation of existing
treaties is analyzed

below.36
In the 1982 case of Hertzberg v. Finland.,37 the HR Committee
considered a communication dealing with the Finnish government’s
censorship of a broadcasting program addressing homosexuality.38 The
claimant argued that the censorship violated his rights to freedom of
expression and information as expressed in the ICCPR.39 The HR
Committee. however. held that the right to freedom of expression could be
subjected to restrictions to protect, for example, public health, order, or

34 See THE ROUTLEDGE HISTORY OF THE HOLOCAUST, 393 (Jonathan C. Friedman ed.,
2011); Tahmindjis, supra at note 24, at 11 (describing the atrocities committed against
LGBT people); Sam Garkawe, International Human Rights Law and the Law
Regarding Sexual Orientation: Two Book Reviews and More, 7 AUSTRALASIAN GAY &
LESBIAN L.J. 69, 69-70 (1997) (explaining that individuals who suffered discrimination
during World War II based on sexual orientation did not receive compensation until
1988).
35 See Sophie Clavier, Objection Overruled: The Binding Nature of the
International Norm Prohibiting Discrimination Against Homosexual and
TransgenderedIndividuals, 35 FORDHAM INT’L L.J. 385, 390-94 (2011) (providing a
detailed analysis of the inclusion of freestanding rights to equality beyond the explicitly
listed international and regional human rights instruments).
36 See also Lucy Morgan, Sexual and Gender Rights and the United Nations
Human Rights Framework: Towards a Resolution of the Debate 6-10 (Aug. 3, 2009)
(M.A. dissertation, The University of Sydney), available at
http://ses.library.usyd.edu.au//bitstream/2123/5323/1/DlSsERTATION_LMorgan. pdf
(providing an additional in-depth analysis of cases relating to sexual rights issues).
37 Human Rights Committee Commc’n 61/1979, Hertzberg et al. v. Finland,
15th Sess., U.N. Doc. CCPR/C/OP/1 (April 2, 1982).
38 Id. at 2.
39 Id. at 3.
880 AM. U. INT’LL. REV. [29:4

morals; because states’ morals differed broadly, a margin of discretion had

to be accorded to national authorities.40 On this basis, the HR Committee
dismissed the claim and upheld Finland’s censorship of the program.41
Conversely, in 1994, the HR Committee dissented from its previous
opinion in Toonen v. Australia42 and established that the jurisdiction
concerning matters of sexual orientation and gender identity did not lie
exclusively in Member States.43 In Toonen, the complainant argued that
Tasmanian law criminalizing consensual sexual conduct between adults
breached the ICCPR in relation to articles relating to antidiscrimination and
privacy.44 The HR Committee ultimately held that the law breached
Toonen’s right to privacy under Article 17.45 Although the HR Committee
did not have to consider other possible violations, in an additional
statement the HR Committee commented that “sex” in Article 2(1) of the
ICCPR must be read as including

40 Id. at 5-6.
41 Id. at 6.
42 H.R. Comm. Commc’n 488/1992, Toonen v. Australia, 50th Sess., U.N. Doc.
CCPR/C/50D/488 (Dec. 25, 1992).
43 Id.
44 Id. at 11.
45 Id. at 3.
2014] DO ASK, DO TELL 881

sexual orientation.46 Additionally, the HR Committee went further by

stating that sexual orientation is neither a reasonable nor objective criterion
for an exception to the prohibition of discrimination.47
Despite the importance of the Toonen decision affirming, for the first
time, the protections under international human rights law for LGBT
people, the decision had limitations on the overall application of human
rights’ protections to LGBT people. The decision, as stated previously,
focused on the violation of the right to privacy and therefore only provided
limited guidance on the interpretation of the protections of LGBT people’s
rights exercised in the public sphere, such as equality, family life, and
marriage.48 49 The HR Committee revisited and addressed these limitations
to a greater extent a decade later in the 2003 case of Young v. Australia.41
In Young, the HR Committee held that not granting a same sex partner
the deceased partner’s veteran’s pension constituted discrimination on the
basis of sexual orientation and explicitly stated that sexual orientation is
protected under the “other status” category in Article 26 of the ICCPR. Xv.
Colombia,50 another case dealing with the denial of pension transfer on
the basis of sexual orientation, affirmed this interpretation of Article 26.51
Authors such as Ignacio Saiz have commented that the evolving
jurisprudence around the matter of LGBT people and international human
rights law indicates that the principles of non-discrimination have moved
from the private sphere to certain issues in the public sphere.52 However,
the 1999 case of Joslin v. New Zealand53 demonstrates that the

46 See Tahmindjis, supra note 24 at 13-14 (noting that, despite this verdict,
Tasmania upheld its criminal law and the Tasmanian government promised to
increase the penalty if the party won the next election).
47 See H.R. Comm. Commc’n 488/1992, supra note 41, at 10 (rejecting the claim
that criminalization of homosexuality was necessary to prevent the spread of
HIV/AIDS because criminalization was not reasonable and proportionate).
48 See Graham Willet, Liberalism and Its Limits, in LIVING OUT LOUD: A HISTORY
OF GAY AND LESBIAN ACTIVISM IN AUSTRALIA 19, 20 (2000) (explaining the limitations of
the decision); Morgan, supra note 34, at 8 (recognizing the Toonan case as a key
moment in recognizing gay rights).
49 H.R. Comm. Commc’n 941/2000, Young v. Australia, 78th Sess., July 14- Aug.
8, 2003, U.N. Doc. CCPR/C/78/D/94/2000, at 10.2-13 (Sept. 18, 2003).
50 H.R. Comm. Commc’n 1361/2005, X v. Colombia, 89th Sess., March 1230,
2007, U.N. Doc. CCPR/C/89/D/1361/2005 (2007).
51 Id. at 10.
52 Ignacio Saiz, Bracketing Sexuality: Human Rights and Sexual Orientation—
A Decade of Development and Denial at the UN 9 (Sexuality Policy
Watch, Working Paper No. 2, 2005).
53 H.R. Comm. Commc’n 902/1999, Joslin v. New Zealand, 75th Sess., July 8-26,
2002, U.N. Doc. CCPR/C/75/D/902/1999, at 8.2-8.3 (July 30, 2002).
882 AM. U. INT’L L. REV. [29:4

interpretation of the applicability of international human rights law to

LGBT people is still evolving.54 In Joslin, the HR Committee held that the
right to marriage as stated in Article 23 of the ICCPR was commonly
understood as only marriages between men and women and that the refusal
to provide marriages between same sex couples in Member States did not
result in a violation of their human rights.55
The aforementioned cases illustrate that the jurisprudence of the HR
Committee has progressed regarding the protection of LGBT people since
the 1980s. Jurisprudence has evolved from initially stating that Member
States had exclusive jurisdiction on LGBT matters to ruling that
international human rights law offered protection for LGBT people in the
private sphere to finally ruling that international human rights law offered
protection for LGBT people in some areas of the public sphere. Even
though the HR Committee has gradually expanded its interpretation of
protections offered to LGBT people under international human rights law
over the past thirty years, the specific protections, as Lucy Morgan points
out and as the Joslin decision shows, still remain subject to interpretation
by Committee members.56 Furthermore, gaps in the interpretation of
international human rights law exist.57 Thus far, the HR Committee has not
decided on LGBT people’s rights to adoption or on matters related to
gender identity.58
The jurisprudence of the HR Committee suggests that although the
international community has affirmed the general applicability of
international human rights law, clear and specific protections for rights of
LGBT people have not yet been established. A protocol amending existing
international human rights treaties and affirming the applicability to LGBT
people, as suggested as one possible approach by DeLaet, does not seem
particularly beneficial in light of the already existing jurisprudence
reaffirming the applicability. However, an international convention, as
suggested by DeLaet as another possible approach, with clear obligations

54 Id. at 11; see also Morgan, supra note 34, at 10 (explaining that the lack of
reference to sexual rights limits the advancement of these rights).
55 H.R. Comm. Commc’n 902/1999, supra note 48, at 11.
56 See Morgan, supra note 34, at 6 (“The UNHRC may ‘receive and consider . . .
communications from individuals claiming to be victims of violations of any of the
rights set forth in the Covenant.’”) (citation omitted); H.R. Comm. Commc’n
902/1999, supra note 51, at 10 (finding that the facts before the HRC do not disclose
any violations of the International Covenant on Civil and Political Rights).
57 Morgan, supra note 34, at 10 (commenting on how the claims of sexual
minorities remain subject to HRC interpretation).
58 Id.
2014] DO ASK, DO TELL 883

setting out specific rights and obligations regarding the treatment of LGBT
people, may clarify the situation of LGBT people’s rights and protections
under international human rights law. A convention, however, could be
superfluous if other U.N. bodies have already established specific rights
and obligations regarding the treatment of LGBT people, which will be
discussed in the following section.

2. Human Rights Treaties and Authoritative Commentary

After the Toonen decision, U.N. institutions began to recognize that not
only sexual acts are protected under human rights law, but that the identity
of LGBT people is also protected under the term “other status.”59 For
example, the Committee on Economic, Social and Cultural Rights,
monitoring compliance with and interpreting the ICESCR, has clarified in
General Comment 14 of 2000 (the right to health), 15 of 2002 (the right to
water) and 18 of 2005 (the right to work) that the ICESCR prohibits
discrimination on the basis of sex or sexual orientation.60 In addition, the
High Commissioner for Refugees has found homosexuals to be members of
a “particular social group” in relation to the 1951 Convention and 1967
Protocol Relating to the Status of Refugees.61
These evolving international instruments demonstrate a growing
trend by U.N. bodies in interpreting international human rights law to
protect LGBT people. However, the interpretation of these U.N. bodies
does not establish clear definitions of the protections and the rights of
LGBT people.

3. Draft Resolutions, Principles, and Declarations

When analyzing the protections of LGBT people under U.N. resolutions,
statements, and declarations, this part of the article considers the
developments in the area in the 2003 draft Resolution on Human Rights

59 See generally Clavier, supra note 33 (describing the vagueness which qualifies
as “other status”).
60 Comm. Econ., Soc., & Cult. Rts. General Cmt. No. 14, The Right to the
Highest Attainable Standard of Health, 22d Sess., U.N. Doc. E/C.12/2000/4 (Apr. 25-
May 12, 2000); Comm. Econ., Soc., & Cult. Rts. General Cmt. No. 15, The Right to
Water, 29th Sess., U.N. Doc. E/C.12/2002/11 (Nov. 11-29, 2002); Comm. Econ., Soc., &
Cult. Rts. General Cmt. No. 18, The Right to Work, 35th Sess., U.N. Doc.
E/C.12/GC/18 (Feb. 6, 2006).
61 Convention Relating to the Status of Refugess, July 28, 1951, 189 U.N.T.S.
150; Protocol Relating to the Status of Refugees, Jan 31, 1967, 19 U.S.T. 6223, 606
U.N.T.S. 267; Protecting Refugees: Questions & Answers, U.N. REFUGEE AGENCY
(Feb. 1, 2002), http://www.unhcr.org/3b779dfe2.html.
884 AM. U. INT’L L. REV. [29:4

and Sexual Orientation, the 2007 Yogyakarta Principles, the 2008 U.N.
Declaration on Sexual Orientation and Gender Identity, and the 2011
Human Rights Council Resolution on Human Rights, Sexual Orientation
and Gender Identity.
In 2003, the first attempt to formalize the debate on the applicability of
international human rights law to protect LGBT people at the U.N. level
was the introduction of a draft Resolution on Human Rights and Sexual
Orientation (“Brazilian Resolution”).62 The introduction of such a
resolution caught many delegates by surprise due to the lack of debate on
this issue within U.N. bodies.63 The Brazilian Resolution’s content was not
revolutionary, as it did not expand the rights of LGBT people, but merely
reaffirmed, that the International Bill of Human Rights applied regardless
of sexual orientation.64

62 H.R. Comm., 59th Sess., Promotion and Protection of Human Rights, Austria,
Belgium, Brazil, Canada, Czech Republic, Denmark, Finland, France, Germany,
Greece, Ireland, Italy, Liechtenstein, Luxembourg, Netherlands, Norway, Portugal,
Spain, Sweden and United Kingdom of Great Britain and Northern Ireland: Draft
Resolution, U.N. Doc. E/CN.4/2003/L.92 (Apr. 17, 2003).
63 See Paula L. Ettelbrick & Alia Trabucco Zeran, The Impact of the
Yogyakarta Principles on International Human Rights Law Development, A Study of
November 2007-June 2010, YP IN ACTION 3 (2010),
http://www.ypinaction.org/files/02/57/Yogyakarta_Principles_Impact_Tracking_R
eport.pdf (last visited July 24, 2013) (explaining how the Brazil Resolution surprised
the Human Rights Council).
64 See Arvind Narrain, Brazil Resolution on Sexual Orientation: Challenges in
Articulating a Sexual Rights Framework from the Viewpoint of the Global South 1
(Paper presented at the Sexualities, Genders and Rights in Asia: 1st International
Conference of Asian Queer Studies, Bangkok, Thailand, July 2005), available at
https://digitalcollections.anu.edu.au/bitstream/1885/8680/1/Narrain_
Brazilresolutiononsexualorientation2005.pdf (describing how the Brazillian Resolution
did not advance LBGT rights and merely restated previous HR Committee
jurisprudence).
2014] DO ASK, DO TELL 885

The Brazilian Resolution attracted fierce protest, particularly from Sub-

Saharan states and members of the Organization of the Islamic Conference,
including Egypt, Libya, Malaysia, and Saudi Arabia.65 All opposing states
threatened to paralyze discussion by bringing hundreds of amendments to
the text.66 Discussions about the Brazilian Resolution were postponed in
2004 and dropped in 2005 without being put to vote.67 Michael O’Flaherty
and John Fisher note that, the failure of the Brazilian Resolution actually
raised awareness for the issues of LGBT human rights and mobilized
NGOs from all regions to engage in U.N. processes.68 The increased
awareness of the matter contributed to the launch of the Yogyakarta
Principles in 2007.69
A group of twenty-nine international human rights experts from twenty-
five countries across the world drafted the Yogyakarta Principles between
2006 and 2007.70 The Preamble of the Yogyakarta Principles offers a
definition of “sexual orientation” and “gender identity” to identify the
social group and to whom the law applies.71 While the Yogyakarta
Principles themselves are not legally binding on Member States, the
principles as stated in the document’s Preamble aim to affirm legally
binding human rights standards with which states

65 Id.
66 See Catherine Wolfe, The United Nations Declaration on Sexual Orientation
and Gender Identity 2008: Tracing the Evolution of LGBT Minority Rights Within
the UN, 22 SOC. & POL. REV. 49, 51 (2012) (detailing the delay of the resolution until
2004); Douglas Sanders, The Role of the Yogyakarta Principles, YP IN ACTION 3
(2009), http://ypinaction.org/files/70/Background_on_
the_Principles __ Sanders _ Douglas _ The_Role_of_the_Yogyakarta_Principles.pd
f (describing the opposition to the resolution).
67 See Sanders, supra note 64, at 3 (noting that once Brazil tabled this resolution,
it met significant opposition from Sub-Saharan countries and members of the
Organization of the Islamic Conference).
68 Michael O’Flaherty & John Fisher, Sexual Orientation, Gender Identity and
International Human Rights Law: Contextualising the Yogyakarta Principles 8 HUM.
RTS. L. REV. 207, 230 (2008).
69 See THE YOGYAKARTA PRINCIPLES, supra note 30, at 7 (explaining how the
Yogyakarta Principles came into existence).
70 Id. at 7.
71 Id. at pmbl. (defining sexual orientation as the “person’s capacity for
profound emotional affectional and sexual attraction to individuals of a different
gender or the same gender or more than one gender,” and gender identity as the
person’s “internal and individual experience of gender . . . including personal sense of
the body . . . and other expressions of gender, including dress, speech and
mannerisms”).
886 AM. U. INT’LL. REV. [29:4

must comply.72
The Yogyakarta Principles are a statement concerning the “application
of international human rights law in relation to sexual orientation and
gender identity.”73 As Douglas Sanders puts it, the drafters of the
Yogyakarta Principles did not want to create a lecture on “where we should
be going.”74 Instead, the drafters created a statement about what existing
human rights law says on LGBT rights and how human rights principles
should be applied to the situation of LGBT people.75 The document
contains twenty-nine principles that each contemplates a statement of
international human rights law and the application to the situation of LGBT
people.76
Due to limitations of space, the aim of this paper is not to analyze the
accuracy of the Yogyakarta Principles as a restatement of existing
international law since this has been undertaken by others in great detail
elsewhere. The Yogyakarta Principles go further than merely affirming that
international human rights law applies to LGBT people to identifying
explicit protections and rights including, for example, the right to found a
family through the possibility of adoption and the right to enter into a
marriage or other legalized partnership.77 However, no U.N. body has
adopted these positive rights and some Member States have rejected the
Yogyakarta Principles’ interpretation of international law in the past
because of this lack of support from the United Nations. Malta, for
example, rejected the Yogyakarta Principles on the basis that “these
principles were discussed and adopted by a number of experts acting on
their own behalf.”78 Whether

72 See id. (recognizing that the Principles rely on the current state of
international human rights law).
73 Id. at 7.
74 Sanders, supra note 64, at 6.
75 See Ettelbrick & Zeran, supra note 61, at 2 (describing the Yogyakarta
Principles as “a statement of the status of the current international human rights law
as it applies to sexual orientation and gender identity,” noting that the document also
includes recommendations and obligations of states to “adopt measures in accordance
with their legal responsibilities under these treatises”).
76 See O’Flaherty & Fisher, supra note 66, at 234-37 (elaborating on the
applicability of international human rights law in areas such as fundamental rights of
life, privacy, and the obligation to protect human rights defenders and hold
accountable the human rights violators).
77 THE YOGYAKARTA PRINCIPLES, supra note 30, at 27.
78 Ettelbrick & Zeran, supra note 61, at 21 (noting other Member States that
have rejected the recommendations made by the Principles, including Qatar,
2014] DO ASK, DO TELL 887

a statement reaffirming the content of the Yogyakarta Principles has been

adopted by the United Nations subsequently is analyzed below.
Through a joint initiative in December 2008, France and The
Netherlands brought the U.N. Declaration on Sexual Orientation and
Gender Identity (“Declaration on Sexual Orientation”) before the 63 rd
session of the U.N. General Assembly.79 The initiative was originally
signed by sixty-six states and has since, in an updated statement in March
2011, found support by eighty-five states.80 The non-binding Declaration
on Sexual Orientation reaffirms that the principle of nondiscrimination
applies to all human beings regardless of sexual orientation or gender
identity.81 Furthermore, it condemns human rights violations against LGBT
people and calls upon all states to take all the necessary measures to ensure
that gender identity is under no circumstances the basis for criminal
penalties in particular executions, arrests, or detention.82 The aim of the
Declaration on Sexual Orientation was therefore, at least partly, to
specifically address the absence of formal acknowledgments of LGBT
people from international human rights law.83
The Declaration on Sexual Orientation, although of symbolic value as
the first attempt to bring the issue of LGBT human rights before the U.N.
General Assembly, had many drawbacks as an instrument to advance
LGBT issues under international human rights law. For example, the
Declaration is not legally binding on Member States and fails to affirm
LGBT people’s positive rights as set out by the Yogyakarta Principles
despite stating that LGBT people should not be discriminated against.84
Not all of these drawbacks have been resolved
by the adoption of the 2011 Resolution of the Human Rights Council, as

Ukraine, and San Marino).

79 Statement on Human Rights, Sexual Orientation and Gender Identity, U.N.
GENERAL ASSEMBLY (Dec. 18, 2008), available at http://www.unhcr.org/refworld/
docid/49997ae312.html [hereinafter Statement on Human Rights].
80 Joint Statement of Ending Acts of Violence and Related Human Rights
Violations Based on Sexual Orientation & Gender Identity, U.S. D EPT. OF STATE
(March 22, 2011), http://www.state.gov/r/pa/prs/ps/2011/03/158847.htm
(elaborating that a group of thirty countries engaged in discussions and sought
signatures from other U.N. Member States).
81 Statement on Human Rights, supra note 77, K 3.
82 Id. Kt 6, 11-12.
83 See generally id. (urging Member States to commit to the protection of all
individuals, regardless of sexual orientation or gender identity).
84 See also Morgan, supra note 34, at 28 (explaining that various Member States
would face charges of human rights violations if the Declaration was legally
binding).
888 AM. U. INT’LL. REV. [29:4

will be discussed below.

The first human rights body in the United Nations, the Human Rights
Council (“HRC”), adopted the first resolution on Human Rights, Sexual
Orientation and Gender Identity, Resolution 17/19,85 by a narrow margin in
2011.86 The work of the HRC has focused much attention on issues relating
to sexual orientation and gender identity since the mid-2000s. In
Resolution 17/19, the Council expressed “grave concern” for acts of
violence and discrimination around the globe committed against
individuals because of their sexual orientation and gender identity. The
Council requested that the Office of the High Commissioner for Human
Rights commission a study to document discriminatory laws and practices
and acts of violence committed against individuals based on their sexual
orientation and gender identity.87 John Fisher of ARC International, a non-
profit organization with the goal of advancing LGBT rights, considered
Resolution 17/19 to be the resolution that “breaks the silence that has been
maintained for far too long.”88 Despite the positive perception of human
rights activists as speaking out in this way for the protection of LGBT
people under international human rights law, Resolution 17/19, like the
Brazilian Resolution and the Declaration on Sexual Orientation, fails to
clearly identify rights for LGBT people under international human rights
law.
The aforementioned analysis of the development of the rights of LGBT
people in international jurisprudence, authoritative commentary,
resolutions, and other statements shows that the “relative silence” by U.N.
bodies found by DeLaet in the 1990s has ended. The application of
international human rights law to LGBT people in general has continuously

85 H.R.C. Res. 17/19, Human Rights, Sexual Orientation and Gender Identity,
17th Sess., A/HRC/RES/17/19 (July 14, 2011).
86 United Nations Human Rights Council, OHCHR (July 24, 2013),
http://www.ohchr.org/EN/HRBodies/HRC/Pages/HRCIndex.aspx (“The Human
Rights Council is an inter-governmental body within the United Nations system made
up of 47 States responsible for the promotion and protection of all human rights
around the globe.”).
87 Id. (requesting the study to determine how “international human rights law
can be used to end violence and related human rights violations based on sexual
orientation and gender identity”).
88 Frank Jordans, U.N. Gay Rights Protection Resolution Passes, Hailed as
“Historic Moment,” HUFFPOST WORLD (June 17, 2011),
http://www.huffingtonpost.com/2011/06/17/un-gay-rights-protection-resolution- passes-
_n_879032.html (quoting John Fisher).
2014] DO ASK, DO TELL 889

been reaffirmed on the U.N. level.89 However, as shown above, protection

gaps exist in international human rights law where jurisprudence,
authoritative commentary, resolutions, and other statements on the
international level establish no specific obligations and rights of LGBT
people. As pointed out, questions concerning LGBT people’s right to
family life and protections regarding gender identity have not been
addressed on the international level. As “the newest kids on the block” of
human rights, specific protections and rights of LGBT people remain
subject to interpretation on the international but also national levels.90
These uncertainties raise the question of whether the adoption of a
convention on the rights of LGBT people under international human rights
law, as DeLaet suggests, should be pursued to clarify LGBT people’s
human rights and potentially improve their treatment in Member States.
Part III examines this issue below.

III. BENEFITS AND RISKS REGARDING THE

ADOPTION OF A CONVENTION ON SEXUAL
ORIENTATION AND GENDER IDENTITY
When considering whether the international community should pursue
the adoption of a convention on matters of sexual orientation and gender
identity, the benefits and risks associated with such a convention should be
assessed. The following part of this article will first outline the benefits of
a convention on sexual orientation and gender identity based on the
shortfalls of current international human rights law as identified above. It
will then consider why the adoption of such a convention may be a risky
and superfluous undertaking on the international level.
A. BENEFITS OF A CONVENTION ON SEXUAL ORIENTATION AND
GENDER IDENTITY
U.N. bodies, as discussed above, have previously applied the anti-
discrimination protections in international human rights law to LGBT
people. The question arises as to whether the specific protections and rights

89 See, e.g., At UN Meeting, Countries Commit to Protect Gay Rights, Combat

Discrimination, U.N. NEWS CENTRE (Sept. 26, 2013),
http://www.un.org/apps/news/story.asp?NewsID=46036&Cr=lesbian&Cr1#.UzAh
H4VmwpU (highlighting U.N. High Commissioner for Human Rights’ emphasis on
continuing to address challenges still faced in the LGBT issue but nevertheless noting
the “historic reforms” embarked by countries to combat discrimination based on
sexual orientation and gender identity).
90 Richard Parker, Sexual Rights: Concepts and Action 2 HEALTH & HUM.
RTS. 31, 33 (1997) (quoting Rosalind Petchesky).
890 AM. U. INT’LL. REV. [29:4

of LGBT people under international human rights law should be enshrined

in a legally binding instrument to close protection gaps and clarify the
human rights of LGBT people. This path has been taken for other groups
subject to discrimination. For example, the Convention on the Elimination
Against all Forms of Racial Discrimination, adopted in 1965, followed by
the Convention on the Elimination of all Forms of Discrimination Against
Women in 1979, promoted the specific protection of these groups and
intended to end discrimination.91
A legally binding convention on sexual orientation and gender identity
could be a step on the international level towards improving the treatment
of LGBT people in Member States for many reasons. Firstly, contrary to
the evolving jurisprudence and authoritative commentary that Member
States should follow once they ratify the treaty, the Organization of the
Islamic Conference States maintain generally that international human
rights law does not protect LGBT people’s rights as this does not appear in
any U.N. treaty.92 They suggest that homosexuality is not a characteristic
of human nature, but rather a product of the west.93 In their opinion, sexual
orientation may be a legitimate basis for discrimination in order to protect
children and the concept of family.94 They further support their opposition
with the argument that LGBT rights are not a human rights issue, but a
social and cultural one which should be left to the individual state to
address within their social and cultural value system.95

91 GA Res. 2106 (XX), U.N. Treaty Series, vol. 660, 195 (1965) (entered into
force Jan. 4, 1969); GA Res. 34/180 (XXXIV), U.N. G.A.O.R., 34th Sess., Supp. No. 46,
194, U.N. Doc A/34/830 (1979) (entered into force, Sept. 3, 1981).
92 Letter from UN’s Islamic Group to UNHRC President Opposing Panel on
Violence Against Gays, U.N. WATCH (Feb. 14, 2012), available at
http://blog.unwatch.org/index.php/2012/02/17/letter-from-uns-islamic-group-to-
unhrc-president-opposing-panel-on-violence-against-gays/ (expressing concern at the
United Nations’ attempt to introduce “concepts that have no legal foundation in any
international human rights instrument,” referring to notions against discrimination
based on sexual orientation and gender identity as presented in Resolution 17/19).
93 Javaid Rehman & E. Polymenopoulou, Is Green a Part of the Rainbow?
Sharia, Homosexuality and LGBT Rights in the Muslim World, 37 FORDHAM INT’L
L.J. 1, 43 (Oct. 10, 2012) (noting that Malik Badri is one of the Islamic scholars that
holds this belief and advances the claim that Western societies failed to prevent
transmission of AIDS because of homosexuality).
94 See id. at 38 (observing that opponents of LGBT human rights believe that
homosexuality and the promoting of LGBT rights will encourage pedophilia and incest
and weaken the institution of family).
95 See, e.g., Letters from the Permanent Mission of Pakistan on behalf of the
Organization of Islamic Conference (Feb. 26, 2004); Letter from the Permanent
Mission of the Holy See (Mar. 1, 2004).
2014] DO ASK, DO TELL 891

The Organization of the Islamic Conference’s view of LGBT rights

finds support in academic literature by cultural relativists who argue that an
understanding of “right and wrong” varies along cultures and definitions of
human rights should therefore vary correspondingly.96 Sharon Yecies, for
example, suggests that the Universal Declaration might allow
discrimination on the basis of sexual orientation where it is necessary for
the stability of non-oppressive states.97 Yecies indicates that discrimination
based on sexual orientation may be left to the discretion of the individual
Member State and may not be prohibited by the Universal Declaration in
general.98 A legally binding Convention on the international level would
likely clarify that LGBT people’s rights have a foundation in international
human rights law and could put an end to the debate of whether
international human rights law is universally applicable.99 Concurring,
Pratima Narayan finds that expanding human rights law to formally
prohibit discrimination against sexual minorities will obligate states to pass
legislation that protects sexual minorities and grant states less latitude to
enforce laws that target LGBT people.100
Secondly, as analyzed above, some uncertainties remain regarding the
protections of LGBT people under current international human rights law,
especially concerning positive rights such as the right to enter into a legally
recognized partnership or to adopt children.101 A legally binding
convention explicitly setting out the rights of LGBT people and the
limitations of these rights under international law might contribute to
overcoming these uncertainties and close currently existing protection
gaps.102 For the above reasons, the adoption of a legally binding convention

96 Holning Lau, Sexual Orientation: Testing the Universality of International

Human Rights Law, 71 CHI L. REV. 1689, 1689 (2004).
97 Yecies, supra note 10, at 800-03.
98 Id. at 812.
99 Narayan, supra note 7, at 333 (arguing that the issuance of a formal
prohibition of discrimination against sexual minorities by the Committee would
achieve state-level legislative protection of LGBT people’s rights to life and liberty,
stricter enforcement of the laws that target them, and greater ability for LGBT
individuals to seek relief against offenders).
100 Id. at 333.
101 See id. at 329 (highlighting that, despite the fact that almost every clause in
the Universal Declaration of Human Rights begins with the word “everyone” and
thereby confers positive rights on all human beings, Article 29 of the Declaration
provides a loophole for states to circumvent its general non-discrimination position by
predicating non-discrimination upon a “morality” requirement).
102 Id. at 315 (suggesting that the absence of a binding international human rights
instrument explicitly outlawing discrimination on the basis of sexual orientation causes
892 AM. U. INT’LL. REV. [29:4

on sexual orientation and gender identity could create, as opined by Eric

Heinze, “a definitive normative framework for transforming rights of
sexual minorities into reality.”103
Despite the benefits that lie in the adoption of a convention on sexual
orientation and gender identity, the adoption is not without problems and
risks, as will be demonstrated below.

B. RISKS ASSOCIATED WITH THE ADOPTION OF A CONVENTION

One of the greatest risks associated with the adoption of a convention on
sexual orientation is the objection of a large number of Member States to
signing and ratifying the convention, which could lead to the polarization
and escalation of the debate.104 Member States are free to sign a convention
or abstain from doing so.105 Few Member states signing and ratifying such
a convention is not unlikely, particularly considering the cultural and
religious differences between the Western States and Sub-Saharan and
Islamic States, and the disagreements on the protection of LGBT people by
human rights law that have become obvious in the past. The 2003 Brazilian
Resolution reaffirming the application of international human rights law to
LGBT people attracted fierce protest, particularly by Sub-Saharan States
and members of the Organization of the Islamic Conference, which
immediately threatened to paralyze discussion by bringing hundreds of
amendments to the text.106 Similarly, the Declaration on Sexual Orientation
in 2008 was immediately and firmly opposed with a counter statement
signed by fifty-seven countries, including the Vatican, and read in the
General Assembly by Syria.107 The Organization of the Islamic Conference
criticized the Brazilian Resolution and suggested that protecting sexual

sexual minorities to continue to live with the fear of state- sanctioned persecution and
to live without the most fundamental human rights).
103 HEINZE, SEXUAL ORIENTATION: A HUMAN RIGHT, supra note 12, at 289.
104 See Wolfe, supra note 64, at 55 (acknowledging that any discussion to date
about the explicit protection of the rights of sexual minorities in international human
rights instruments has been met with consistent and unyielding opposition resulting in
such polarization as the “immediate and reactionary” counter-statement to the SOGI
Human Rights Statement that fifty-seven states signed).
105 Beth Simmons, Treaty Compliance and Violation, 13 ANN. REV. POL. SCI. 273,
274 (2010).
106 See Wolfe, supra note 64, at 51; Sanders, supra note 64, at 3 (advancing the
idea that passage of resolutions amidst protest is unlikely since consensus is highly
favored in international diplomacy).
107 See Clavier, supra note 33, at 405; Wolfe, supra note 64, at 55 (highlighting
the type of challenges faced by proponents of LGBT rights in the international
community).
2014] DO ASK, DO TELL 893

orientation could lead to the “social normalization” or even legalization of

acts such as pedophilia and incest.108 According to Syria’s statement, the
Universal Declaration’s absence of a reference to sexual minorities
prohibits protection against discrimination on the basis of sexual
orientation and the Declaration on Sexual Orientation have no basis in
international human rights law.109 To date, the Declaration on Sexual
Orientation has never been adopted or been put to vote by the General
Assembly.110
An apparent great divide exists between U.N. Member States that
believe that promoting LGBT rights is a western notion without legal
foundation in international human rights law and Member States that
promote LGBT rights. Scholars have opined that the adoption of a clear
instrument incorporating LGBT issues in international human rights law is
unlikely to be adopted in the short or medium term. 111 Little suggests that
Member States’ attitudes have changed and the international community’s
acceptance of a convention on sexual orientation has grown since the last
attempt to pass a resolution in the General Assembly in 2008.112 For
example, the adoption of Resolution 17/19 on Human Rights, Sexual
Orientation and Gender Identity passed by only a narrow margin 113 and the
growing number of Member States supporting the 2008 Declaration on

108 See Response to SOGI Human Rights Statement, Read by Syria to the U.N.
General Assembly, INTER-AM. CT. HUM. RTS. (2008) [hereinafter Response to SOGI
Human Rights Statement]; Clavier, supra note 33, at 405 (elaborating on ideological
opposition to LGBT human rights).
109 Response to SOGI Human Rights Statement, supra note 106.
110 See Fact Sheet: GA Statement on SOGI, ARC INTERNATIONAL, http://arc-
international.net/global-advocacy/general-assembly/fact-sheet-ga-statement (last
visited Mar. 26, 2014).
111 See generally Tahmindjis, supra note 24 (explaining that the member nations’
opposition is sufficient to cast significant doubt on incorporating LGBT rights into
international human rights law); JACK DONNELLY, UNIVERSAL HUMAN RIGHTS IN
THEORY AND PRACTICE 23, 238 (2003).
112 But see Cees Van Beek, The Politics of LGBT Rights: A Comparison Between
the United Nations, the OSCE and the Council of Europe 20-21 (Masters of Science
Thesis, Leiden University, The Netherlands Institute of Int’l Relations, 2013),
available at https://openaccess.leidenuniv.nl/bitstream/handle/1887/24155/
Thesis%20Cees%20Van%20Beek.pdf?sequence=1 (conceding that the attempt to pass
the 2008 U.N. General Assembly resolution was unsuccessful because no consensus
existed, yet inferring a change in attitude since, in 2011, twenty-three out of forty-
seven members at the Human Rights Council agreed to condemn violence and
discrimination of LGBT people partly due to the division among the OIC countries).
113 H.R.C. Res. 17/19, supra note 83, at 2 (“Adopted by a recorded vote of 23 to
19, with 3 abstentions.”).
894 AM. U. INT’LL. REV. [29:4

Sexual Orientation remains fierce.114 In an open letter to the President of

the Human Rights Council, opposing Member States criticized the
introduction of the topic of sexual orientation and gender identity as a
concept that has no legal foundation in any international human rights law
instruments.115 The letter also critically highlighted the attempt to create
new standards by misinterpreting international human rights law.116
This suggests that Member States might disagree on a Convention.
Failing to reach a majority consensus on an international instrument on the
treatment of LGBT people for the third time since 2004 could send a
negative message to the international community and potentially worsen
the treatment of LGBT people around the globe.
Opening a convention for adoption by the supporting Member States of
the international community also does not offer a valuable solution to
improving the treatment of LGBT people in all Member States. While
international law has established that Member States are not bound by
norms they have not agreed to, authors such as Jonathan Charney have
suggested that under certain circumstances acceptance may only be
required by the international community and not by all individual states.117
This could mean that if the international community accepted the content
of such a convention, the content could also be binding on individual states
opposed to its content. However, creating legally binding international law
regarding the treatment of LGBT people does not necessarily ensure that
the laws will be implemented in Member States and that national actors
will comply with these norms. The question of domestic implementation
appears more complex and seems to depend on more diverse factors than
the legal status of an international instrument.118

114 See, e.g., Reed Karaim, Gay Rights: Has the Movement’s Success Sparked a
Backlash?, 5 GLOBAL RESEARCHER 107, 115-16 (2011), available at
http://www.cqpress.com/product/CQ-Global-Researcher-Gay-Rights-v5-5.htm
(recounting some of the violent and nonviolent backlash that LGBT activists face in
countries like Honduras, Mexico, Indonesia, and Uganda where the movement for gay
rights has gained momentum, and noting that backlash sometimes even comes from
people who “feel their own rights are being trampled by the movement to recognize
gay rights”).
115 The United Nations Resolution 17/19 On LGBT Rights: An Open Letter to the
Prime Minister, PARADIGMA POLITIK BARU (March 6, 2012),
http://www.anwaraidc.com/?p=22415.
116 Id.
117 Jonathan Chamey, Universal International Law, 87 AM. J. INT’L L. 529, 536
(1993); see also Simmons, supra note 103, at 274; Clavier, supra note 33, at 403.
118 See, e.g., Hilary Charlesworth, Swimming to Cambodia, 4 AUSTRALASIAN L.
2014] DO ASK, DO TELL 895

Advancing the treatment of LGBT people in Member States may

depend heavily on the religious, political, and cultural beliefs of citizens,
and whether those beliefs create hurdles and boundaries that halt the
progress of LGBT human rights. Islamic shari’a law may create such
hurdles and boundaries for the treatment of LGBT people in Member
States that follow shari’a.119 Two-thirds of the Member States that penalize
homosexual acts apply shari’a law.120 Despite the fact that sources of
shari’a law acknowledge homosexuality and sexual diversity, the
prevailing religious and social view seems to interpret the shari’a as
outlawing homosexuality.121 Another hurdle could be that homosexuality is
seen as contrary to Catholic religious principles possibly influencing
Member States in that regard.122
The noticeable opposition of a significant number of Member States to
LGBT rights indicates that even if a legally binding convention based on
western values was signed, the opposition may refrain from enforcing it.
The adoption of a legally binding document on this matter may therefore
do very little regarding the practice of Member States. For example, an
official statement of Ghana regarding the criminalization of homosexuality
states that international conventions and charters that recognize LGBT
people’s rights do not override domestic law.123 This suggests that a
convention may only be a piece of paper in the application of human rights
to LGBT people.
In conclusion, a convention on sexual orientation and gender identity

TEACHERS ASS’N L. RESEARCH SERIES (2011), http://www.austlii.edu.au/au/

journals/ALRS/2011/4.html; Hilary Charlesworth et al., Deep Anxieties: Australia and
the International Legal Order, 25 SYDNEY L. REV. 423, 436 (2003); Hilary
Charlesworth, Australia’s Split Personality: Implementation of Human Rights Treaty
Obligations in Australia, in TREATY-MAKING AND AUSTRALIA: GLOBALISATION VERSUS
SOVEREIGNTY? 129 (Philip Alston & Madelaine Chiam eds., 1995) (providing examples
of issues that arise in the implementation of international treatises and giving insight
as to the analysis on which governments and interested parties embark when
implementing treatises).
119 See Mittelstaedt, supra note 8, at 357 (noting that aside from domestic
political concerns and tensions with Western society, the religious ideals presented in
shari’a law impose a barrier for countries to comply with treaty obligations).
120 See Rehman & Polymenopoulou, supra note 91, at 3-4 (inferring from the fact
that two-thirds of the seventy-eight states that had criminal laws relating to sexual
orientation, sexual behavior or gender identity have Muslim majorities).
121 See generally id. (providing a detailed interpretation of the shari’a on matters
of homosexuality).
122 See generally Narayan, supra note 7, at 343 n.251.
123 Ebenezer Henson, Ghana: No Room for Gays and Lesbians, ALL AFRICA (May
21, 2007), http://allafrica.com/stories/200705211573.html.
896 AM. U. INT’LL. REV. [29:4

with detailed legal obligations could clarify the rights of LGBT people
under international human rights law. However, it seems that a greater
consensus of Member States on the general issue of the protection of
LGBT people by international human rights law would be necessary to
bring about change in Member States’ practice. The risks and problems
associated with the adoption of a legally binding convention on sexual
orientation due to the objectors, i.e. a negative message to the global
community on LGBT rights due to a failed agreement and the polarization
and possible escalation of the debate without likely improvement of the
practical situation, may outweigh its benefits. A convention may therefore
not be preferable at the current time.
The following section analyzes whether an alternative avenue exists on
the international level that could be taken to improve the treatment of
LGBT people in Member States while reducing the risk of polarizing and
escalating the debate on the matter.

IV. DIALOGIC APPROACH TO CHANGE

ATTITUDES
Frederick Cowell and Angelina Milon suggest that the promotion of a
dialogic approach in relation to LGBT people and international human
rights law might improve the situation of LGBT people in Member States
through a change of national laws and attitudes of the population without
the risk of escalating the situation to the extent a legally binding norms on
sexual orientation and gender identity might.124 This argument seems
convincing, particularly because the progress made in the area of human
rights and the treatment of LGBT people may depend more on states
building an international consensus and less on manifesting the consensus
in a legally binding convention. Therefore, an international approach that
furthers dialogue that leads to a consensus regarding the rights of LGBT
people under international human rights law should be taken, rather than an
approach that forces controversial human rights norms upon Member
States in a convention. Eric Heinze has summarized such an approach as

124 Frederick Cowell & Angelina Milon, Decriminalization of Sexual Orientation

through the Universal Periodic Review, 12 HUM. RTS. L. REV. 341, 34546 (2012)
(advocating that the processes that use a dialogic approach, such as the Universal
Periodic Review, would help avoid a potential confrontational and antagonistic process
that may arise when attempting to enforce a controversial human rights norm, such as
those related to decriminalization of sexual orientation).
2014] DO ASK, DO TELL 897

being a rising tide that “raises all ships.”125

A. STRATEGIES TO FURTHER DIALOGUE ON THE MATTER OF LGBT

PEOPLE’S HUMAN RIGHTS PROTECTIONS
The first question that needs to be addressed when considering a
dialogic approach is how and where to expand dialogue on LGBT rights
under human rights law. Advancing dialogue on the treatment of LGBT
people in accordance with their human rights appears possible on two
levels: between U.N. bodies and Member States’ governments and between
U.N. agencies and Member States’ communities.
one may consider several areas of furthering dialogue and raising
awareness of LGBT people’s rights between U.N. bodies and Member
States’ governments. As pointed out above, the Yogyakarta Principles
formulate specific rights of LGBT people under international human rights
law. Stephanie Farrior opines that the Yogyakarta Principles offer
opportunities for advocacy with intergovernmental organizations, local and
national governments as well as with the judiciary.126 To facilitate dialogue,
the United Nations could monitor the human rights situation of LGBT
people in Member States by using the Yogyakarta Principles as
benchmarks and studying the situation of LGBT people’s human rights
violations in Member States.
Upon request by the HRC in Resolution 17/19, the High Commissioner
for Human Rights undertook and presented such a study in November 2011
with the goal of “documenting discriminatory laws and practices and acts
of violence against individuals based on their sexual orientation and gender
identity, and how international human rights law can be used to end
violence and related human rights violations based on sexual orientation
and gender identity.”127 The findings of this study and studies like it might
allow subsequent dialogic engagement with Member States and U.N.
bodies, as demonstrated by the formal intergovernmental panel discussion

125 Eric Heinze, Sexual Orientation and International Law: A Study in the
Manufacture of Cross-Cultural Sensitivity, 22 MICH. J. INTL’L L. 283, 296 (2001)
(“[T]he progressive recognition of ever more specialized interests must surely promote
an overall climate of tolerance and broad-mindedness that will benefit sexual
minorities in the long run.”).
126 Stephanie Farrior, Human Rights Advocacy on Gender Issues: Challenges
and Opportunities, 1 J. HUM. RTS. PRAC. 83, 88 (2009) (adding that the U.N.’s
Statement on human rights, sexual orientation, and gender identity also accomplishes
this).
127 H.R.C. Res. 17/19, supra note 83, at 1.
898 AM. U. INT’LL. REV. [29:4

following the above-described report of the U.N. High Commissioner in

March 2012 on violence and discrimination against LGBT people.128 The
aim of the debate was to discuss the findings in a “constructive, informed
and transparent dialogue.”129 Frederick Cowell and Angelina Milon argue
that the Universal Periodic Review conducted by the Office of the High
Commissioner for Human Rights, NGOs, and delegates of Member States
on the human rights record of Member States may offer another valuable
opportunity to promote a

128 See id. (noting that a panel discussion was requested by HR Committee’s
Resolution 17/19).
129 UN Human Rights Council: Landmark Report and Panel on Sexual
Orientation and Gender Identity, INT’L GAY & LESBIAN HUM. RTS. COMM’N (Mar. 3,
2012), available at http://www.iglhrc.org/cgi-bin/iowa/article/pressroom/
pressrelease/1494.html.
2014] DO ASK, DO TELL 899

dialogic approach.130 The review process, so the researchers argue, could

address controversial matters more sensitively than a treaty or convention
could.131 On another level, dialogue could be furthered between U.N.
agencies and communities in Member States. U.N. agencies could enhance
already-existing community and national activities that promote LGBT
people’s human rights in Member States to promote a consensus and the
acceptance of the rights of LGBT people from within the State.
The dialogue on both levels could be heightened and supported by the
publications of guides that outline the application of the Yogyakarta
Principles and international human rights law in relation to LGBT people’s
rights. The promotion of LGBT people’s rights in the suggested fashion is
already underway. ARC International and other NGOs published the
Activist’s Guide on the Yogyakarta Principles in 2010, reaffirming the
Principles and setting out their application in practice.132 In 2012, the
United Nations published the booklet Born Free and Equal, which set
out the core obligations states have in the treatment of LGBT people and
described how U.N. mechanisms have applied international law in this
context.133 Promotional activities like the above are only the beginning of
the dialogic journey on which the United Nations needs to embark in order
to be able to reach a long-term consensus on affording LGBT people
human rights in all U.N. Member States.

B. CRITICISM OF THE APPROACH

A dialogic approach on the international level to improve the treatment
of LGBT people on a national level may be criticized as incapable of
influencing Member States’ attitudes towards LGBT people and advancing
the situation of LGBT people’s human rights. It also may be argued that
the disagreement between states on this highly political and controversial
matter seems so strong that it is impossible to arrive at a common
consensus or even at a middle ground that allows discussion. The question
arises of how a dialogic approach could be beneficial to improve the
situation of LGBT people’s rights in Member States, as it appears the

130 See generally Cowell & Milon, supra note 122.

131 Id.
132 An Activist’s Guide to the Yogyakarta Principles, YP IN ACTION,
http://ypinaction.org/content/activists_guide (last visited July 24, 2013).
133 Born Free and Equal: Sexual Orientation and Gender Identity in Internatioanl
Human Rights Law, UNITED NATIONS OFFICE OF THE HIGH COMMISSIONER 10 (2012)
(analyzing the states’ obligations, the relevant international human rights law, and the
views of human rights treaties and special procedures).
900 AM. U. INT’L L. REV. [29:4

cultural and religious beliefs deeply rooted in political and social attitudes
of some Member States leave no room for discussion.
While a dialogic approach may be a slow process that could take
considerable time for changes in Member States’ attitudes to become
visible, a slow process does not mean that it cannot have any effect on
Member States. The advantage of a dialogic approach on several levels,
between the United Nations and Member States’ governments and between
U.N. agencies and communities in Member States, is that this rounded
approach can address the religious and political concerns of Member States
and consider in detail solutions to Member States’ objections concerning
LGBT people’s rights.134 Overall, a dialogic approach does not guarantee
that the treatment of LGBT people in Member States will improve;
however, it may have the potential to change Member States’ attitudes
slowly and to encourage law reform without polarizing the debate.
An example of a case where a dialogic approach appears to have
contributed to changing attitudes about cultural practices that violate
human rights is the case of female genital mutilation/cutting (“FGM/ C”) in
some African and Middle Eastern States. The attitudes towards this
tradition, which was rooted in some Member States’ cultures and
considered a cultural necessity in the past, have started to change to some
degree since the introduction of a joint U.N. program. In 2007 the UNFPA-
UNICEF Joint Programme on FGM/C was launched to accelerate the
abandonment of the practice in Member States.135
The program mainly focuses on promoting already-existing programs in
Member States.136 Promotional activities include lobbying for the

134 See Cowell & Milon, supra note 122, at 352 (explaining that a dialogic
approach tackles issues effectively by seeing reform from a different angle as different
views are taken into consideration, which in turn prevents the recommendations from
being “bifurcated into ‘pro’ or ‘anti’ camps”).
135 Joint Evaluation of the UNFPA-UNICEF: Joint Programme on Female
GenitalMutilation/Cutting Accelerating Change (2008-2012), UNICEF & UNFPA 7
(Dec. 2012), available at http://www.unfpa.org/webdav/site/global/
shared/documents/Evaluation_branch/Joint%20Evaluation%20-
%20Sept%202013/Final%20Inception%20Report%20Volume%20I- Dec%2020.pdf
(reporting that UNFPA organized a meeting that brought together experts,
practitioners, NGOs, U.N. and international development agencies,
representatives from government and academia, and that participants emphasized the
importance of commitment and formulated “strategies [and] mechanisms to build
capacities and consensus on how to accelerate the abandonment of FGM/C in one
generation”).
136 See UNFPA/UNICEF Joint Programme on Female Genital Mutilation/
Cutting: Accelerating Change: Annual Report 2011, UNICEF & UNFPA (2012), available at
2014] DO ASK, DO TELL 901

enactment and enforcement of laws against FGM/C and working with the
media and other networks to broaden the understanding of social norms
concerning the practice.137 The program, which is characterized by
“participation, empowerment, non-discrimination, equality, accountability
and the rule of law” appears to have made much progress since its
introduction: over 16,000 families in Sudan and Egypt have reportedly
abandoned the practice and over 71,245 community education sessions had
been conducted by 2010.138 Proponents of the program believe that
receiving information about the violations of human rights through
dialogue has led to a major change in attitudes about the practice.139
The FGM/C example suggests that a dialogic approach on multiple
levels could have the potential to bring about change of attitudes towards
cultural traditions and to improve the human rights situations of particular
groups in Member States. For this reason, at the current time, a dialogic
approach may be best suited to promote the existing human rights
protections of LGBT people in Member States and to contribute to changed
attitudes of Member State nationals.
V. CONCLUSION
This article has contemplated whether opening a convention on sexual
orientation and gender identity for signature is necessary and beneficial at
the current time to clarify the situation of the rights of LGBT people under
international human rights law. While Part II concluded that, although
international authoritative commentary and jurisprudence have started to
evolve on the matter, many issues remain open to interpretation and
protection gaps continue to exist.
Based on this finding, Part III contemplated whether a legally binding
convention is beneficial in closing existing protection gaps. Part III

http://www.unfpa.org/webdav/site/global/shared/documents/publications/2012/An
nual_report_on_FGM-C_2011_low_res.pdf (last visited July 24, 2013)
(emphasizing the extensive media coverage in Joint Programme countries relating to
the denunciation of FGM/C, raising awareness and informing citizens of the different
resources available).
137 Id. (affirming that the Programme is lobbying for Member States to wait
“until Parliament agrees on a decree calling for the end of all forms of FMC/C”).
138 UNFPA/UNICEF Joint Programme on Female Genital Mutilation-Cutting:
Accelerating Change: Annual Report 2010, UNICEF & UNFPA (2011), available at
http://www.unfpa.org/gender/docs/2010_Annual_Report_2.pdf (conveying figures that
are not based on a uniform system).
139 Id. at 4 (observing that the shift in attitude has helped programs organize
collective discussions and events that enable a consensus to be reached among major
stakeholders).
902 AM. U. INT’L L. REV. [29:4

identified that adopting a legally binding convention has the potential to

close these gaps and to clarify the existing protections and rights of LGBT
people under international human rights law. However, due to the current
divide of states supporting the human rights of LGBT people and states
opposing these rights, a consensus on the adoption might not be reached
and the debate could potentially escalate on the international level.
Consequently, at the current time, the adoption of such a convention, as
suggested by DeLaet, may best not be pursued on the international level.
As an alternative to adopting a legally binding convention to improve
the treatment of LGBT people in Member States, Part IV suggested a
dialogic approach on two levels: between U.N. bodies and Member States’
governments as well as between U.N. agencies and communities in
Member States to attempt to change attitudes towards LGBT people’s
human rights. Part IV argued that, despite the fact that a dialogic approach
may be a slower process to bring about change, it has the potential to
address reasons for resistance by Member States and propose culturally
appropriate solutions, thereby advancing the situation of LGBT people’s
human rights.
While neither a convention nor a dialogic approach is a recipe for
success without a change in people’s attitudes, continued silence on the
matter in international human rights law will not improve the situation. 140
Long term, a dialogic approach appears to have the potential to develop the
climate necessary for implementing human rights frameworks for LGBT
people in Member States and thus to begin a new chapter in international
human rights law dedicated to ending violence and discrimination against
LGBT people.

140 The High Commissioner for Human Rights, Navanethem Pillay, has
characterized the protection of LGBT people on the international level in the past and
the way ahead when presenting the findings on the report documenting discriminatory
laws and practices against individuals based on their sexual orientation and gender
identity as follows:
2014] DO ASK, DO TELL 903

The story of the United Nations is a story of progress in the fight against discrimination.
It is a story that is incomplete, as we continue to work to make good on the promise
enshrined in our Universal Declaration: a world where “all human beings are born free and
equal in dignity and rights.” Today we all have an opportunity to begin together a new
chapter dedicated to ending violence and discrimination against all people, irrespective of
their sexual orientation and gender identity.
UN Human Rights Council: Landmark Report and Panel on Sexual Orientation and
Gender Identity, INT’L GAY & LESBIAN HUM. RTS. COMM. (Mar. 7, 2012), available
at http://www.iglhrc.org/cgi-bin/iowa/article/pressroom/pressrelease/
1494.html (last visited July 24, 2013).