Academic

LGBT Rights as Human Rights

By Tony Infanti

For the first time, a declaration on LGBT rights was read in the United Nations General Assembly yesterday. (The New York Times story can be found here.) The declaration, which won the support of 66 countries and was read by Ambassador Jorge Arguello of Argentina, seeks to decriminalize sexual orientation and gender identity. From the Human Rights Watch news release:

“The 66 countries reaffirmed ‘the principle of non-discrimination, which requires that human rights apply equally to every human being regardless of sexual orientation or gender identity.’ They stated they are ‘deeply concerned by violations of human rights and fundamental freedoms based on sexual orientation or gender identity,’ and said that  ’violence, harassment, discrimination, exclusion, stigmatization and prejudice are directed against persons in all countries in the world because of sexual orientation or gender identity.’

“The statement condemned killings, torture, arbitrary arrest, and ‘deprivation of economic, social and cultural rights, including the right to health.’ The participating countries urged all nations to ‘promote and protect human rights of all persons, regardless of sexual orientation and gender identity,’ and to end all criminal penalties against people because of their sexual orientation or gender identity.”

An opposing statement, which was supported by 60 countries, was read by the Syrian representative to the United Nations.

In a move that should surprise absolutely no one, the United States did not support the declaration in favor of LGBT rights. According to the New York Times:

“The official American position was based on highly technical legal grounds. The text, by using terminology like ‘without distinction of any kind,’ was too broad because it might be interpreted as an attempt by the federal government to override states? rights on issues like gay marriage, American diplomats and legal experts said.”

I wonder if anyone bothered to tell these diplomats and legal experts that the federal government already overrides states’ rights on issues like same-sex marriage through the federal Defense of Marriage Act. (See 1 U.S.C. § 7.) Even when a state like Massachusetts or Connecticut recognizes same-sex marriages, the federal government obstinately refuses to recognize those marriages even though it has traditionally deferred to the states on questions of marital status.  

In another LGBT rights victory at the United Nations yesterday, the General Assembly adopted a resolution condemning extrajudicial executions. The resolution, as passed, contains a specific reference to killings based on sexual orientation. Uganda had moved to delete that reference; however, that motion was rejected 78-60.

If you are interested in LGBT rights as human rights, you should check out the Yogyakarta Principles here.

-Tony Infanti

Full post as published by Feminist Law Professors on December 19, 2008 (boomark / email).