What is sexual orientation versus gender

Sexual self-determination and gender identity

To be able to live and love free from discrimination and without fear of violence and repression should actually be a matter of course. In many countries, however, the fundamental freedoms of lesbians, gays, bisexuals, transgender and intersex people (LGBTI) are restricted - a clear violation of the ban on discrimination.

Sexual orientation and gender identity are central aspects of the human personality. Every person therefore has the right to determine these for themselves and to freely and freely acknowledge them. However, lesbians, gays, bisexuals, transsexuals and intersexual people (LGBTI) worldwide fall victim to human rights violations if they want to exercise this right. They experience discrimination and violence, harassment, exclusion and stigmatization. Gay couples are insulted or beaten up on the street, lesbian women are raped on the pretext of wanting to “cure” them, transsexuals and intersexuals are defamed and marginalized. All of these are attacks on the integrity and dignity of those exposed to such abuses. All of these are violations of the prohibition of discrimination.

Legal position

Some states try again and again to negate this violation of the law by not even wanting to recognize sexual orientation and gender identity as grounds for discrimination. However, the legal situation is clear: the specific grounds of discrimination set out in the International Covenant on Civil and Political Rights and other human rights treaties are intentionally incomplete. The authors deliberately left the grounds for discrimination open with the words “other status”. Sexual orientation and gender identity are not explicitly mentioned under the grounds of discrimination, but fall under this category. This is also confirmed by the judgment of the Human Rights Committee of 1994. In the decision "Toonen v. Australia" it decreed that states are obliged to protect individuals from discrimination on the basis of their sexual orientation. This position is also confirmed in all subsequent decisions of the committee and is reflected in the decisions and general comments of the other treaty bodies. For example, General Comment No. 20 of the Committee on Economic, Social and Cultural Rights confirmed that “other status” includes sexual orientation and states: “States parties should ensure that sexual orientation does not prevent the achievement of im Rights laid down in the pact, for example access to survivors' pensions. In addition, gender identity is recognized as one of the prohibited grounds of discrimination. "

State repression and violence - the OHCHR report

In many countries LGBTI people are persecuted and criminalized by the state. Discrimination and violence against LGBTI people occur in all regions. At the same time, activists who campaign for LGBTI rights are being put under pressure with laws that forbid “advertising” for homosexuality. This is also documented in the report “Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity”, which was published in December 2011 on High Commissioner for Human Rights (OHCHR). The following findings can be found in the report.

Physical and emotional violence

In the report, OHCHR concludes that there are records of homophobic and transphobic violence in all regions. In many cases, the assumption of homosexuality or transgender identity is enough to put people at risk. Such violence can be physical and include murder, assault, kidnapping, torture, rape, castration and mutilation, and sexual assault. But psychological violence is also exercised. This includes, for example, threats, coercion and arbitrary deprivation of liberty. Violence against LGBTI people often shows a high degree of cruelty and brutality. All of these attacks constitute a form of gender-based violence, often motivated by the desire to punish those who appear to defy gender norms. In addition, the denial of freedom of assembly, freedom of speech and information and the discrimination of people on the basis of their sexual orientation or gender identity in working life as well as in health and education were documented.

In addition to spontaneous assaults in public spaces, the report documents that those who are perceived as LGBTI can be targeted for organized abuse by, for example, religious extremists, paramilitary groups, neo-Nazis and extreme nationalists. Lesbians and trans women are particularly at risk due to gender inequality and the balance of power in the family and society.


The report documents laws in at least 76 states that are used to criminalize people based on their sexual orientation or gender identity. These laws, including the so-called "sodomy laws," are often holdovers from colonial times. They usually prohibit either certain types of sexual practices or any form of same-sex intimacy or sexual activity. In some cases the wording is very vague, referring to undefined concepts such as “crimes against the natural order” or “morality” or “depravity”. However, all of these laws are used to discriminate against and persecute people based on their actual - or perceived - sexuality or gender identity. The sentences range from short term to life imprisonment. At least five countries can punish persons found guilty of crimes involving consensual homosexual acts between adults with the death penalty. This is not only a violation of the right to life, privacy and non-discrimination, but also Article 6 of the International Covenant on Civil and Political Rights. It stipulates that in countries that have not abolished the death penalty, a “death sentence can only be imposed for the most serious crimes”.

Threat to human rights defenders

Human rights defenders working on LGBTI issues often do so at enormous security risks. The Special Rapporteur on Human Rights Defenders noted in her report to the Human Rights Council in 2010 that she had sent 47 communiqués regarding defenders who had worked on LGBTI issues the previous year. Five of these communiqués identified the murders of LGBTI human rights defenders and six other cases of rape and sexual violence. There were also men among the victims. She was also concerned about "vilification campaigns and threats of violence against human rights defenders of lesbian, gay, bisexual and transgender people."

The Secretary-General's Special Representative on Human Rights Defenders noted in 2007 that "those who defend the rights of LGBT and intersex people have been assaulted, assaulted, tortured, sexually abused, threatened and killed in their homes," added: "Great In this context, there is concern about the almost complete lack of seriousness with which such cases are dealt with by the competent authorities. ”Some states also use laws to put human rights defenders under pressure. These laws, such as the law against homosexual propaganda in Russia, which forbid the “advertising” of homosexuality, can be used specifically to deter activists who campaign for the rights of LGBTI people from doing their work, or to state them accordingly to pursue.

Mission of the United Nations

The first declaration tabled at the General Assembly on this matter was initiated by France and the Netherlands. On December 18, 2008, they presented the United Nations Declaration on Sexual Orientation and Gender Identity. In it they appeal to all states to promote and protect the human rights of all persons regardless of their sexual orientation and gender identity, they demand an end to state discrimination against sexual minorities and their decriminalization. All human rights violations based on sexual orientation or gender identity should be investigated and those responsible should be brought to justice. In addition, human rights defenders must be able to carry out their work unhindered and be protected from attacks. The declaration was signed by 66 states, but did not receive the required majority. 57 states voted against the declaration and 69 others abstained. In 2009, under the newly elected President Obama, the United States also joined the declaration, which now has 67 signatories.

However, a counter-declaration by Syria was also introduced in the General Assembly in 2008, which was supported by a total of 60 mainly Islamic and African states. North Korea also supported this counter-statement. In the statement, the supporters basically denied the rights of LGBTI people as a group worthy of protection within the anti-discrimination law and the applicable treaties and rejected the declaration as interference in internal affairs.

The second initiative was introduced by Colombia in March 2011 in the Human Rights Council. On March 23, Colombia, with the support of 84 other states, presented the “Joint statement on ending acts of violence and related human rights violations based on” sexual orientation and gender identity). This is similar to the statement of 2008 in the General Assembly and calls for an end to violence against homo-, bisexual, and trans- and intersex minorities.

On June 17, 2011, the UN Human Rights Council adopted resolution A / HRC / 17 / L.9 / Rev.1 for the first time, a joint resolution to end state discrimination against sexual minorities at the UN level. The resolution, which South Africa and Brazil tabled with the support of 39 other states, was approved by 23 states. 19 states voted against it, including predominantly African and Muslim states as well as Russia and Moldova. Three states abstained.

The resolution called on the Office of the High Commissioner for Human Rights (OHCHR) to prepare a report that would investigate the discrimination and criminalization of LGBTI people and document human rights violations against LGBTI people. This was presented in December 2011. In addition, for the first time, the resolution called for a debate in the Human Rights Council on discrimination against LGBTI people on the basis of the report, which was very controversial and heated in March 2012. Once again, the division of the international community on the subject was revealed here. Almost all representatives of states that belong to the Organization of Islamic States left the room after the first statements of the debate.

Nevertheless, the debate is seen as an important sign that discrimination and violence based on sexual orientation and gender identity will no longer be tolerated.

The Human Rights Council passed another resolution in September 2014, for the first time with a majority of members, 25 of whom voted yes and only 14 voted no. This resolution condemns violence against sexual minorities and calls for a second report by the High Commissioner for Human Rights, which should now expose discriminatory laws and document best practice examples for the protection of sexual minorities. This was presented in May 2015. In 2016, resolution A / HRC / RES / 32/2 introduced the function of the United Nations Independent "Expert on Protection against violence and discrimination based on sexual orientation and gender identity". The mandate of the Independent Expert is to investigate, monitor, advise and publicly report issues related to human rights violations based on sexual orientation and gender identity. The office has been accompanied by Victor Madrigal-Borloz since January 2018.