Sexual and Gender Rights and the United Nations Human Rights Framework: Towards a Resolution of the Debate?

Abstract

The UN Declaration on Sexual Orientation and Gender Identity, adopted on the 18th of December 2008, marked a milestone in UN history, formally placing the concerns of sexual and gender minorities on the General Assembly’s human rights agenda for the first time. However, immediately following the Declaration, a counter-statement was issued by 57 member states, opposing the mere mention of the “so-called notions of sexual orientation and gender identity”. The Declaration and counter-statement bring to the fore an issue which has long been a concern of the lesbian, gay, bisexual, transgender/transsexual and intersex (LGBTI) rights movement – the capacity of international human rights law to uphold the rights of sexual and gender minorities. Human rights violations based on actual or perceived sexual orientation and gender identity remain prevalent in virtually every country and as awareness of these violations has grown, sexual orientation and gender identity have been increasingly promoted by human rights advocates. Such arguments have often been grounded in the emerging paradigm of sexual and gender rights, but the idea of sexual and gender rights remains highly contested and deeply controversial. Many analysts have questioned whether the United Nations framework is an appropriate mechanism for advancing the concerns of sexual and gender minorities. This dissertation contributes to this movement by presenting a case for the enshrinement of sexual and gender rights in UN human rights law.