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The concept of SOGIE (Sexual Orientation, Gender Identity and Expression, and Sex Characteristics) human rights and its impact on queer emancipation. The author argues that while SOGIE human rights have been a significant accomplishment in advocating for queer rights, it is crucial to interrogate this discourse and consider its implications. the evolution of queer rights from 'gay rights' to 'SOGIE human rights', the role of human rights bodies in promoting these rights, and the challenges and criticisms of this discourse. It also touches upon the concept of sexual citizenship and its impact on queer emancipation.
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Table of Contents
Page 10 1.1 Feminism and ‘Gay Rights’ Page 14 1.2 Queer Theory Page 17 1. 3 ‘SOGIE human rights’ Page 1 8 1. 3 .1 The (Normative) International Arena of the UN Page 21 1 .3.2 European Court of Human Rights Page 22 1. 4 Queering International Law
Page 2 7 Part 1. Criminalisation of Homosexuality Page 2 9 1.1 Development of the Sexual Identity Page 32 1.2 Regulating Sexual Desire Page 3 7 Part 2. Right to Freedom of Assembly and Expression Page 3 7 2.1 Still in the Closet Page 3 9 2.2 Transcending Space Page 40 2.3 A Democratic Yardstick? Page 41 2.4 Framing Morality Page 44 2.5 Sexual Citizenship Page 47 Part 3. Right to Family Life Page 4 8 3.1 The Science of Parenting Page 4 9 3.2 Symbolic Order of Kinship Page 52 3.3 The Institutions of Family and Marriage Page 5 4 3.4 Reconceptualising Intimacy and Sexuality
Page 57 Part 1. Right to Private Life Page 58 1.1 Emerging Intersex Human Rights Page 5 9 1.2 Regulating Bodies and Binaries Page 62 1.3 Authenticity Page 6 4 1.4 Persisting Medicalisation Page 6 6 1.5 Transcending Gender/Sex
There is a powerful system in which queers are now being integrated - international human rights law. Initially ‘LGBTI rights’, with criticism, the discourse shifted to ‘sexual orientation, gender identity and expression (SOGIE) human rights’.^5 The transition was seemingly painless and has been widely adopted by human rights bodies. Regardless of human rights hard law not stipulating protection for queers, queers are claiming their rights before courts of law and are supported by a multitude of soft law, policy documents, guidelines and publications that are endorsing the notion that queer rights are human rights. Despite this recognition, in 2019, 35% of United Nations (UN) Member States criminalise consensual ‘same-sex sexual acts’, this includes six States that have the death penalty and five with ‘probable’ death penalty; 26 States with 10 years to life in prison; 31 States with up to eight years imprisonment and two de facto criminalisation.^6 Equally, the health and wellbeing of queers is compounded every day, globally. Evidently, there remains discourses of deviance that both emerge from and are disguised by the State, regarding sexuality, sex and gender. As an authoritative voice on setting standards for human rights, the European Court of Human Rights (ECtHR)^7 possesses great responsibility in ensuring that queer rights ultimately enable emancipation- that is, the liberty of sexual choice and manifestation of that choice.^8
The problem for this thesis is that ‘SOGIE human rights’ as a discourse is hindering queer emancipation. Therefore, the purpose is to critically analyse jurisprudence of the ECtHR through queer discourse analysis, enabling evaluation of how different areas of rights are developing and contributing to the SOGIE human rights discourse. Ultimately, highlighting problematic or queer discourses for queer emancipation. To achieve this, the following research question is posed, how is the European Court of Human Rights shaping queer emancipation?
Human rights claim universality however through the minoritisation of ‘sexual orientation, gender identity and expression’ it has been criticised for not resonating universally. To not render the entitlement of rights abstract, it is acknowledged that categorisation aids in attributing personhood, however if the reproduction of heteronormativity is to be disrupted, the (^5) It is also referred to simply as ‘SOGI’ as well as ‘SOGIESC’, meaning sexual orientation, gender identity and expression, and sex characteristics (^6) International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA): Lucas Ramon Mendos, State- Sponsored Homophobia 2019 (13th^ Edition, Geneva, 2019) (^7) Herein after the ‘ECtHR’ (^8) Ben Golder, Foucault and the Politics of Rights (Stanford University Press, 2015)
source shaping the discourse on ‘SOGIE’ must be interrogated. This is to encourage the resounding system of human rights to be queered thereby assist those who are marginalised to not only claim human rights but to also live a life of dignity, choice and freedom.
This research uses the ECtHR due to the leading role they have assumed in progressing ‘SOGIE human rights’. Moreover, it is an institution that has substantial power in influencing how this discourse is globalised. It must be noted however, much of the theoretical base is from Western theorists that whilst serving the analysis well, means there is an intrinsic bias and subjectivity. From the range of jurisprudence of the ECtHR in application of the European Convention of Human Rights^9 , four main strands are selected - decriminalisation of homosexuality, the right to respect for private and family life (Article 8), the right to freedom of expression (Article 10), and the right to freedom of assembly and association (Article 11). However, during the analysis, other articles of the ECHR are raised. Within these strands, largely, key cases are chosen.^10 The jurisprudence is chosen for its capacity to span different elements of sexuality, sex and gender that are arguably, most contested, and which evoke notions that have, historically wholly excluded queers, or been fundamental in determining the conception of sexuality, sex and gender in society.
With respect to the theoretical foundations for the research, queer theory is used for its capacity to initiate a critical perspective towards the normative framework of human rights and the institution of the ECtHR. Moreover, given it theorises specifically on sexuality, sex and gender from a post-structuralist philosophy, it enables discourse analysis on the jurisprudence that is constituting ‘SOGIE human rights’. Specifically, queer linguistics is utilised to examine the narratives, performativity, normativity, and institutional practice.^11 Queer legal theory, was established as a disciplinary field by Carl F. Stychin^12 and understands that there is a power (^9) Council of Europe (CoE), European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended), herein after ‘the ECHR’ (^10) Cases pertaining to SOGIE have largely been brought to the ECtHR by applicants from founding Member States of the CoE, or from States who joined shortly after its creation. Therefore, the cases that have been analysed are from a restricted number of States yet have the effect of influencing all 47 Member States of the CoE. Paul Johnson, ‘‘An Essentially Private Manifestation of Human Personality’: Constructions of Homosexuality in the European Court of Human Rights’ (2010) 10 (1) Human Rights Law Review 67 (^11) See William L. Leap, ‘Queer Linguistics as Critical Discourse Analysis’ in Deborah Tannen, Heidi Hamilton, and Deborah Schiffrin (ed) The Handbook of Discourse Analysis, 2 (John Wiley & Sons, 2015) (^12) Carl F. Stychin, Law’s Desire: Sexuality and the Limits of Justice (Routledge, 1995)
Chapter 1 Locating the Queer in Human Rights The constructs of sexuality, gender and sex have undergone significant transformations over the past century, witnessing a major shift in the 1960s and then again in the 1990s. Tracing these major shifts requires a look at what happened during this time and what has continued to unfold. The feminist and gay movements and accompanying theories, feminism and queer theory, will be discussed in this section. These theories will form the basis for understanding sexuality, sex and gender in which this thesis is based. By doing so, the aim is to locate the queer in human rights. SOGIE human rights in many ways have been a major accomplishment in the defence and advocacy for bringing rights to queers, however, it is crucial that this chosen path for queer emancipation within the context of human rights be interrogated, after all, ‘SOGIE human rights’ is a discourse.^15 Who is the subject of ‘SOGIE human rights’ and how is that subject represented? Simply because it is ‘human rights’ does not necessarily mean that the law has been prepared in a way to represent ‘human’. ‘Human rights’ by the UN is international law and was conceived in 1948^16 as a preventative measure; a standardised system organised through the order and discipline of law. However, it can also be seen as a dialogue initiated by the West that continues to engage political negotiation and geopolitics. Law is not neutral; although it is to protect the non-majoritarian, many marginalised groups have been absent from this system, precisely because of its normative base. One must be sceptical then of a discourse that not only claims universal applicability but that claims this applicability on the grounds of a normative system. After introducing the theoretical basis, this chapter will provide an overview of ‘SOGIE human rights’ to assist in understanding the legal and political foundation. Apparent by its international authority rooted in the UN and CoE, ‘SOGIE human rights’ is powerful, however even with power, it does not necessarily enable or ensure emancipation. In the final section of this Chapter 1, queer theory, as an anti-normative critique, will be integrated with ‘SOGIE human rights’ to question the normative base.
There are two integral movements, defined in both political and social terms, that have made irrevocable changes to the way in which sexuality, gender and sex are understood. The feminist and gay rights movements have been vitally important in influencing the path that has/is being negotiated for queer emancipation. Feminism in its many forms can be most (^15) When ‘SOGIE human rights’ is referred to in inverted commas it is under the pretext that it is a discourse. (^16) Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III)) (UDHR)
simply described as the struggle to end sex oppression of women.^17 The movement and ideology expanded over time to include other dimensions which have contributed to the forethinking of queer theory. Perhaps, one of feminism’s most powerful achievements was in exposing the patriarchal system- power relations that privilege the male heterosexual experience, interest and position over all others. In its wake, a social system is created where sexual status, role and temperament for sexuality, gender and sex ensures an internalised normative hierarchical system.^18 First-wave feminists caused significant controversy when they challenged their subordinate position within society and were said to possess symptoms of abnormal sexuality with perverse desires, labelled ‘lesbians’, ‘immoral’, ‘lacking in maternal instinct’, and ‘imitating or desiring male roles’.^19 Propagated early, Aristotle described “the female body as a departure from the norm of the male body and of deducing a characterisation of femaleness by lack of maleness”.^20 Underlying gender relations is power, created through characterisation of sex roles and gender stereotypes, and are based on essentialist beliefs about gender and sex differences being rooted in an ideology based on biology and nature.^21 Essentialist claims had devastating consequences for life in the public and private spheres and the ‘Personal is Political’ slogan the feminist movement was later synonymous with challenged these notions that had delegated women to the private sphere while men carried out their public roles. Kate Millet argued fiercely in her seminal Sexual Politics that sexual autonomy and liberation of the female body was the key to ending women’s oppression^22 , hence, the importance for the politics on reproduction (and production),^23 to be revealed as a technique of maintaining the existing power structure was elevated. Different strategies were taken for theorising about a woman’s position in society and it was the individualist perspective that informed much of the later second-wave feminism. Individualism emphasises personal autonomy and fulfillment and challenged the socially prescribed gender ideologies. It was an approach that was critical for the development of (^17) bell hooks, Feminism is for Everybody (Pluto Press, 2000) (^18) Chris Weedon, Feminist Practice and Poststructuralist Theory (2nd (^) ed, Blackwell Publishing, 1987) (^19) In 190 0 , William Lee Howard, an American psychiatrist equated feminism with lesbianism writing “The female possessed of masculine ideas of independence… and that disgusting anti-social being, the female sex pervert, are simply different degrees of the same class - degenerates” cited in Francis Mark Mondimore, A Natural History of Homosexuality (The John Hopkins University Press, 1996) at 63 (^20) Maryanne C. Horowitz, ‘Aristotle and Woman’ (1976) 9(2) Journal of the History of Biology 183 at 185 (^21) Weedon (n 18 ) (^22) Kate Millet, Sexual Politics, (University of Illinois Press, 2000) (^23) See Nancy Chodorow, The Reproduction of Mothering: Psychoanalysis and the Sociology of Gender, (University of California Press, 1978)
assist in claiming rights as it provided vital insight on areas for inquiry, inter alia, patriarchy, heterosexuality, institutions, the private/public divide, capitalism and religion. The second movement that warrants discussion is the movement that began as ‘gay rights’.^31 In the 1970s, gay liberation intensified, and by using identity politics, they claimed ‘gay rights’ via focusing on equality claims and liberation demands.^32 Homosexuality and heterosexuality had become diametrically opposed via medical, legal and psychiatric discourses by earlier discourses throughout the twentieth century^33 and the movement attempted to restructure ‘gay identity’ into ‘sexual orientation’ instead.^34 Before considering rights regarding sexuality, it must be first understood that ‘sexual orientation’ and subsequent ‘sexual minorities’ are social phenomenon.^35 In the gay rights movement, ‘sexual orientation’ was instigated as a codified identity and presented the view that the rights of the ‘minority’ should be protected.^36 However, it is interesting to note that being a collectivist movement, there was little attention paid to individualist human rights,^37 and by constructing a group identity, personal autonomy can be affected by applying the group identity to individuals, irrespective of how they identify themselves.^38 From the Stonewall Riots 1969, other political strands emerged on topics of oppression “against normative sexuality, and the hegemony of marriage and the family”.^39 In this sense, Samuel Chambers argues that ‘gay liberation’ was successful as a political movement because the concept of sexual orientation was coherent with the political action taking place through the 1970s and 1980s.^40 Although, the ‘gay rights’ or ‘LGBTI rights/movement’, as it was later called, in seeking recognition, respect and dignity for their sexuality, genders and sexes, it has struggled to frame the privilege assigned to heterosexuality as a social problem in a way that highlights how heterosexism is constructed on a daily basis.^41 Deconstructing heterosexual privilege needs to be more than advocating for (^31) Scholars in discussing the movement, most often refer to it as the gay rights movement, as opposed to LGBTI. This is because the movement, in its early days, was predominately focusing on gay (and lesbian) representation. Clearly, this is however the normative story of the queer movement (^32) Kelly Kollman and Matthew Waites, ‘The Global Politics of Lesbian, Gay, Bisexual and Transgender Human Rights: An Introduction’ (2009) 15 (1) Contemporary Politics 1 (^33) Eve K. Sedgwick, Epistemology of the Closet (University of California Press, 1990) (^34) Samuel A Chambers, The Queer Politics of Television (I.B. Tauris, 2009) (^35) Eric Heinze, Sexual Orientation and Sexual Minorities in Sexual Orientation: A Human Rights, An Essay on international Human Rights Law, (Martinus Nijhoff Publishers, 1995) (^36) Chambers (n 34 ) (^37) Kollman and Waites (n 32) (^38) Jean L Cohen, Is There a Duty of Privacy? Law, Sexual Orientation, and the Dilemma of Difference in Regulating Intimacy: A New Legal Paradigm (Princeton University Press, 2002) (^39) However, Chambers claims that the most dominant was that of gay rights. Chambers (n 34) at 12. (^40) John D’Emilio, Out of the Closets: Voices of Gay Liberation , (New York University Press, 1992) cited in Chambers (n 34) at 12 (^41) Celia Kitzinger, ‘Heteronormativity in Action: Reproducing the Heterosexual Nuclear Family in After-hours Medical Calls’ (2005) 52(4) Social Problems 477
a change in behaviour by heterosexuals towards queers, it must additionally target heterosexist assumptions in routine interactions between all people.^42
Politically, the time was ripe in the 1980s and there was an emergence of writings on the underpinnings of these movements; these writings were precedential for queer theory. As Eve Sedgwick identified in her Epistemology of the Closet, the creation of the ‘homosexual’ category meant that the ‘heterosexual’ appeared,^43 which was a turning point in the study and theory for queer identity. Discussion on heterosexuality aimed to expose its social structuring^44 and when Adrienne Rich coined the term ‘compulsory heterosexuality’ in 1980, she argued that there was a pervasiveness of heterosexual norms which dictated how women and men must perpetuate the heterosexual romance ideology.^45 Moreover, heterosexuality began to be seen as a form of oppression.^46 Interestingly, as the number of Statist societies increased, so too did the “uniformity of norms governing family structure and gender relations” as they “have largely converged on the exclusive, biological mother-father-child paradigm, a normative- heterosexual paradigm of social organisation”.^47 Another powerful participator in this paradigm of social organisation are the Judeo-Christian cultures of Europe,^48 consisting of religion that enforces patriarchal institution and serves as a legitimising authority.^49 Heterosexual privilege is bound upon the subordinate homosexual existence^50 and if the pervasive heterosexual norms prevail, they will continue to cause sexuality outside of these norms to be viewed as deviant and transgressive. As Chambers states, “a norm is not a norm without the marginal and the deviant; outliers are exactly what sustain the norm”.^51 Heteronormativity is a social macro-issue^52 and explains the power and hierarchy of heterosexuality in the political and social spheres when it operates as a norm, proving to be a prevailing cycle of self-fulfilling normality. Sedgwick, and other queer theorists’ approach and critique of the construction of modern sexual categories (LGBTI) is poignant in that it (^42) Ibid. (^43) Sedgwick (n 33) (^44) Judith K Pringle and Lynne Giddings, ‘Heteronormativity. Always at Work’ (2011) Paper submitted to Stream 2, ‘Gender and Diversity at Work in CMS’, Critical Management Studies Conference 1 (^45) Adrienne Rich, ‘Compulsory Heterosexuality and Lesbian Existence’ (1980) 5 (4) Signs 631 (^46) See Germaine Greer, The Female Eunuch (Harper Perennial, 1970) (^47) Heinze (n 35) at 32 - 33 (^48) Heinze (n35) (^49) Mary Daly, Beyond God The Father: Toward a Philosophy of Women’s Liberation (Beacon Press, 1973) (^50) Sedgwick (n 33 ) (^51) Chambers (n 34 ) at 18 (^52) Leap (n 11)
specifically ‘male’, ‘female’, ‘gay’, ‘straight’, ‘trans’ and ‘intersex’ are exposed through queer theory as constructions developed through a matrix of social decisions.^60 Sex and gender are more than simple biology, empirically verifiable through the sum of their parts. Sexuality, for most people, is closely connected with gender and/or sex and it is the aim of this section to reveal how and why a holistic understanding to these fields is required. Gender can be described as the way in which one lives as a social being, most often measured by degrees of ‘masculinity’ and ‘femininity’, and sex can be said to be a type of body;^61 here purposefully vague terms but elsewhere dictated by hegemonic norms that stipulate what is and what is not normal for ‘men’ and ‘women’.^62 It is timely to indicate though that by conflating sex with biology, which an understanding of sex being body would encourage, and gender into a process regimented by culture, would leave the question of where ‘woman’ and ‘man’ come from. From a queer perspective, this is a principle point for inquiry. Butler argues that categories of sex and gender should both be treated as cultural constructions.^63 Butler questions- as is widely agreed across, inter alia , feminism and queer theorists (as well as other fields), gender is a cultural construction- what does this mean then for sex, if the binary sex does not naturally lead to strict genders?^64 Does this not question the stability of sex itself and moreover, the well-ordered harmony of the gendered/sexed subject? ‘Men’ as the category does not accrue solely from the bodies of males and nor will ‘women’; the binaries of sex and gender together, lacks intelligibility then if gender is neither restricted by or mimics sex.^65 Radically conceiving sex as distinct from gender would mean then “that man and masculine might just as easily signify a female body as a male one, and woman and feminine a male body as easily as a female one.”^66 Eventually, how can one say that one has a ‘given’ sex or gender when it is not known where they have been ‘given’ from?^67 Sex and gender are not pre- discursive,^68 they neither existed before meaning had been attributed to them or possessed distinction, that is without and before having been informed by context, history and culture. (^60) David A Rubin, Intersex Matters: Biomedical Embodiment, Gender Regulation, and Transnational Activism (Suny Press, 2017) (^61) Deborah Cameron and Don Kulick, Language and Sexuality , (Cambridge University Press, 2003 ) cited in Heiko Motschenbacher and Martin Stegu, ‘Queer Linguistic Approaches to Discourses’ (2013) 24 (5) Discourse and Society 519 (^62) Heiko Motschenbacher and Martin Stegu, ‘Queer Linguistic Approaches to Discourses’ (2013) 24(5) Discourse and Society 519 (^63) Butler (n 57) (^64) Ibid. (^65) Ibid. (^66) Ibid. at 9 (^67) See Butler (n 57) (^68) Ibid.
Instead, the widespread belief that sex is ‘true’ pervades, and is produced by performativity of gender norms that surmise to a perceived coherent identity.^69 Integral to this coherent identity is the presumption of heterosexuality- that is, desire, which has been instituted as heterosexual causes diametrically opposed ‘feminine’ and ‘masculine’ to be produced, which is the expressive manifestation of the ‘male’ and ‘female’.^70 What happens to the sexual ‘identity’ that is not supposed to ‘exist’, that lacks truth, and whose desire does not follow it’s ‘natural’ path or is culturally intelligible? An integral role has been filled by queer theory due to its ability to study the subjectivity and politics of a particular issue as well as provide a framework for analysis on how sexuality, sex and gender norms are created and persist.^71 The theory has also received criticism from an intersectionality perspective stating that it has failed to explain or explore reasons why the rates of violence against transgender people of colour are much higher than others. 72 More broadly, there is critique of its ability to contend with the dimension where race and gender identity intersect.^73 Nonetheless, the hallmarks of queer theory are considered to be its conceptualisation of sexuality, whereby sexual power across the social system are infused through discourse and prescribed through binaries; the problematisation of identity, including the categories of ‘LGBTI’, ‘sexual orientation and gender identity and gender expression’, and the categories of ‘sexuality’, ‘sex’ and ‘gender’ in general; critique of the civil rights techniques by use of deconstruction, anti-assimilation and revisionist readings of what has been considered ‘sexless’ or ‘genderless’; and the interrogation of what were traditionally ‘non-sexual’ areas.^74
Beginning as ‘gay rights’, shifting to ‘LGBTI rights’ and most recently to ‘SOGIE human rights’, human rights for queers have been through many transformations, subjected to many discourses. Following the initiation by the ‘gay rights’ movement, there was a growth of transnational LGBTI networks in the 1970s that mobilised under the banner of equality, this meant that the use of the human rights discourse became a tool used among progressive organisations in the 1980s and arguably increased success for the subsequent rights (^69) The notion of ‘true’ sex comes from Michel Foucault in part 3 Scientia Sexualis. See Foucault (n 3) cited in Butler (n 57) (^70) Butler (n 57) (^71) Chambers (n 34) (^72) Reina Gossett, Eric Stanley and Johanna Burton, Trap Door: Trans Cultural Production and the Politics of Visibility (Cambridge: the MIT Press, 2017) cited in Grzanka (n 30) (^73) Ibid. (^74) Arlene Stein and Ken Plummer, ‘I can’t even think straight’: ‘Queer’ Theory and the Missing Sexual Revolution (1994) 12 Sociology cited in Grzanka (n 30)
protect queers. What resulted from the conferences was a document titled the Yogyakarta Principles.^82 The 29 principles make adjacency claims for queer human rights and are a guide on applying existing international human rights law for persons of diverse ‘sexual orientations and gender identities’. In 2017 there was the ‘YP+10’ addition.^83 The principles cover a range of rights inter alia the right to life; privacy; to the highest attainable standard of health; freedom of opinion and expression; freedom of peaceful assembly and association; to found a family; and to participate in public life. Whilst the Yogyakarta Principles have heralded in another era for queer human rights, they are non-binding principles that rely on the current state of international human rights law. Impact from the publication can be observed; referenced by the OHCHR, UN Special Procedures, UN human rights treaty bodies and the Commissioner for Human Rights in CoE,^84 shaping geopolitical conversations and most critically here, the discourse on sexuality, gender and sex. It was the Yogyakarta Principles that instigated and consolidated the use of ‘SOGIE’ to represent queers within human rights. ‘Sexual orientation’ and ‘gender identity’ used in the Yogyakarta Principles were in response to the increasing recognition of the need to reduce the essentialist sexual discourse that ‘LGBTI’ implied. ‘Sexual orientation’ according to the Yogyakarta Principles is “understood to refer to 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.”^85 Whereas ‘gender identity’ and ‘gender expression’ describes “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 (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms.”^86 (^82) International Commission of Jurists (ICJ), Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity March 2007 http://www.yogyakartaprinciples.org/ (^83) International Commission of Jurists (ICJ), Yogyakarta Principles plus 10: Additional Principles and State Obligations on the Application of International Human Rights Law in Relation to Sexual Orientation, Gender Identity, Gender Expression and Sex Characteristics to Complement the Yogyakarta Principles. As adopted on 10 November, 2017 Geneva (^84) Dominic McGoldrick, ‘The Development and Status of Sexual Orientation Discrimination under International Human Rights Law’ (2016) 16 Human Rights Law Rev 613 (^85) International Commission of Jurists (ICJ) (n 83) at 6 (^86) Ibid.
In 2011, the UN Human Rights Council adopted the first resolution of its kind - human rights violations based on ‘sexual orientation and gender identity’.^87 This was complimented by the first UN Human Rights Office of the High Commission (OHCHR) report on the same subject.^88 By the following year, the OHCHR released ‘Born Free and Equal’, and proclaimed that “the case for extending the same rights to lesbian, gay, bisexual and transgender (LGBT) persons as those enjoyed by everyone else is neither radical nor complicated. It rests on two fundamental principles that underpin international human rights law: equality and non-discrimination.”^89 The document outlined five core legal obligations of states with respect to protecting the human rights of queers and are organised by issue rather than application of specific rights. Issues include protect individuals from homophobic and transphobic violence; prevent torture and cruel, inhuman and degrading treatment of LGBT persons; decriminalise homosexuality; prohibit discrimination based on sexual orientation and gender identity; and respect freedom of expression, association and peaceful assembly.^90 In addition to UN resolutions, numerous major policy speeches and statements have been given by authoritative human rights figures. Opponents to the adjacency claims of queer human rights reject the notion that these rights can be found in existing human rights instruments and argue that human rights institutions, such as the ECtHR are introducing ‘new’ rights to which they have not and will not consent to.^91 Here it becomes apparent how critical framing is for acceptance, applicability and universality of a particular chosen discourse, especially one of such scope. The discourse, ‘SOGIE human rights’, has filtered down to direct and shape how other institutions are approaching human rights for queers, including the ECtHR. Yet despite its supposed inclusive, broad reach, there is substantial global inconsistency among States on what level and type of protection and rights are afforded to queers, even within a seemingly unified regional system such as the CoE.^92 (^87) UN HRC, Res A/HRC/17/L.9/Rev.1, 15 June 2011 (^88) OHCHR ‘Discriminatory Laws and Practices and Acts of Violence against Individuals Based on their Sexual Orientation and Gender Identity’ 17 November 2011, A/HRC/19/ (^89) OHCHR Born Free and Equal: Sexual Orientation and Gender Identity in International Human Rights Law 2012 at 7 (^90) Ibid. (^91) Baisley (n 81) (^92) McGoldrick (84)
