The Law
and Human Rights Mechanisms Team conducts research on laws that criminalize
people on the basis of sexual orientation and gender identity (SOGI) and studies the interaction between international
mechanisms to protect human rights, such as the United Nations, and
organizations working to advance LGBT rights.
The
team has conducted a legal scan and literature review and compiled a large body
of legal data. The team shares this material with the Envisioning research team
as a resource and provides technical support for research in India, Africa and
the Caribbean. Data collection and analysis continues to keep pace with
developments in jurisprudence and new cases.
VIDEOS
VIDEOS
The Time Has Come
2013, 31 min. ARC International and Envisioning Global LGBT Human Rights
The Time Has Come is also available in French Le Moment est Arrivé and Spanish Ha Llegado El Momento
This video features testimonies and perspectives of human rights defenders around the world on issues of sexual orientation and gender identity (SOGI). In 2011, a historic United Nations resolution recognized SOGI as prohibited grounds for discrimination. Two years later, regional seminars were held in six countries to strategize about ways to strength this protection. Envisioning videographers from the Caribbean and Africa partners worked with partner ARC International to document the seminars and conduct interviews.
In the video, Elizabeth Kerekere comments on the legacy of British colonial repression of diverse sexual and gender expression, as follows: "As Maori, we are a colonized people...as LGBTIQ... we experience the generational trauma of strict gender roles, homophobia and transphobia brought to us courtesy of the British empire."
In the video, Elizabeth Kerekere comments on the legacy of British colonial repression of diverse sexual and gender expression, as follows: "As Maori, we are a colonized people...as LGBTIQ... we experience the generational trauma of strict gender roles, homophobia and transphobia brought to us courtesy of the British empire."
2013: 2 min | International Gay and Lesbian Human Rights Commission & Envisioning Global LGBT Human Rights
Created by the International Gay and Lesbian Human Rights Commission with video documentation from Arc International and Envisioning Global LGBT Human Rights. Activists in Uganda describe harsh living conditions for LGBT individuals in a country where a new anti-homosexuality law has been proposed. Some progress is discussed in terms of dialogue starting and movement building in various countries. Desmond Tutu says of the LGBT community in Africa, “They face violence, torture, and criminal sanctions because of how they live and who they love.”
EUROPA
2013: 2 min | International Gay and Lesbian Human Rights Commission & Envisioning Global LGBT Human Rights
Created by the International Gay and Lesbian Human Rights Commission with video documentation from Arc International and Envisioning Global LGBT Human Rights. The Swedish Minister for EU Affairs, Birgitta Ohlsson, insists that LGBT rights are human rights while condemning homophobia in Serbia. Ban Ki-moon, UN Secretary General, discusses laws criminalizing homosexuality in the Ukraine where individuals maintain that there are no mechanisms to prove discrimination against the LGBT community. The LGBT debate is discussed in France and Sweden.
Created by the International Gay and Lesbian Human Rights Commission with video documentation from Arc International and Envisioning Global LGBT Human Rights. The Swedish Minister for EU Affairs, Birgitta Ohlsson, insists that LGBT rights are human rights while condemning homophobia in Serbia. Ban Ki-moon, UN Secretary General, discusses laws criminalizing homosexuality in the Ukraine where individuals maintain that there are no mechanisms to prove discrimination against the LGBT community. The LGBT debate is discussed in France and Sweden.
ASIA
2013: 2 min | International Gay and Lesbian Human Rights Commission & Envisioning Global LGBT Human Rights
Created by the International Gay and Lesbian Human Rights Commission with video documentation from Arc International and Envisioning Global LGBT Human Rights. A newscaster highlights the progress made on lesbian, gay, and transgender rights in Asia including pride parades, same-sex weddings, and Nepal’s government approved IDs for a third gender, while setbacks in other areas are acknowledged. Grace Poore of the International Gay and Lesbian Human Rights Commission sends a message to the UN: “ Don’t let us down!”
Created by the International Gay and Lesbian Human Rights Commission with video documentation from Arc International and Envisioning Global LGBT Human Rights. A newscaster highlights the progress made on lesbian, gay, and transgender rights in Asia including pride parades, same-sex weddings, and Nepal’s government approved IDs for a third gender, while setbacks in other areas are acknowledged. Grace Poore of the International Gay and Lesbian Human Rights Commission sends a message to the UN: “ Don’t let us down!”
THE AMERICAS
2013: 2 min | International Gay and Lesbian Human Rights Commission & Envisioning Global LGBT Human Rights
Created by the International Gay and Lesbian Human Rights Commission with video documentation from Arc International and Envisioning Global LGBT Human Rights. Navi Pillay, United Nations High Commission for Human Rights at the time of this interview, discusses the principle of universality in the context of LGBT rights and freedoms. Individuals from Mexico and Venezuela offer their thoughts on an LGBT movement that has been a long time coming. Ban Ki-moon is quoted, “The time has come.”
CASE SUMMARIES
A number of legal challenges have been launched against anti-sodomy laws and related statutes in the countries of our study. Our legal team summarizes some key cases below.
BELIZE – Anti-Sodomy Law, Immigration Law
In Orozco
v Attorney General of Belize, the claimant, Caleb Orozco, is
challenging the constitutionality of Section 53 of the Belize Criminal Code.
The provision criminalizes “carnal intercourse against the order of nature with
any person or animal.” The penalty is 10 years in prison. The legislation is
interpreted to prohibit anal sex between heterosexual and MSM couples. Mr.
Orozco argues that this provision is inconsistent with the Constitution of
Belize on several grounds. The law contravenes his rights to protection of
family life, personal privacy, and human dignity under s 3(c); equality and
equal protection before the law under s 6(1); freedom of expression under s 14(1);
privacy under s 14(1); and non-discrimination under s 16(1). The claimant
draws on jurisprudence from various Commonwealth jurisdictions to inform the
interpretation of s 53 and how equality, privacy, and expressive rights have
been interpreted in countries such as Canada and South Africa.
In Tomlinson v Belize and Trinidad
and Tobago, the applicant filed before the Caribbean Court of Justice
to challenge Immigration laws in Belize and Trinidad and Tobago that
discriminate against LGB persons. In Belize, s 5(e) of the Immigration Act categorizes homosexuals as prohibited immigrants. Likewise, Trinidad and Tobago prohibits entry to homosexuals
and persons reasonably suspected of coming to the country for a “homosexual
purpose”. Article 45 of the Revised
Treaty of Chaguramas requires all signatory states within the Caribbean
Community to commit themselves to the goal of free movement of their nationals
within the Community. Both Belize
and Trinidad and Tobago are contracting states to the treaty. Mr. Tomlinson
argues that the Belize and Trinidadian statutes violate the Treaty to the extent that the countries
infringe Mr. Tomlinson’s right to entry. Prior to arguing the merits, both
countries have disputed the jurisdiction of the Caribbean Court of Justice to
even hear the case.
GUYANA – Cross Dressing
Rights
In McEwan v Attorney General,
four applicants in the case were charged under s 153(1)(xlvii) of the Summary Jurisdictions (Offences Act). The
provision criminalizes “being a man, in a public way or public place, for any
improper purpose, appears in a female attire; or being a woman, in any public
way or place, for any improper purpose, appears in male attire.” The applicants contested that the law
under which they were charged (and could still be charged in the future) was
unconstitutional because it was vague and uncertain in scope and contravenes
the prohibition against sex and gender discrimination and equality before the
law (article 149 of the Constitution).
The court dismissed these claims. The court emphasized that the
provision does not prohibit the wearing of opposite-sex attire, but merely the wearing
of such attire for an improper
purpose. The court did not find the word “improper” to be vague. Accordingly, the
court found that the provision does not prohibit trans-gender dressing per se: wearing “attire” for the purpose
of expressing one’s sexual orientation in public “is not improper or even
capable of being viewed as improper.” The court found that the act does not
discriminate on the basis of sex, because the prohibition treats both men and
women in the same manner.
In Tomlinson v Television Jamaica,
two private television companies and the Public Broadcasting Corporation of
Jamaica refused to air a public service announcement that promoted tolerance
towards homosexuals. The claimant who wished to air these advertisements,
Maurice Tomlinson, challenged the decisions as unconstitutional under the newly-enacted Jamaican Charter of Fundamental Rights and Freedoms. Tomlinson
argued that the networks’ refusal to air the advertisements contravened his
rights to freedom of speech under section 13(3)(c), and his right to distribute
or disseminate information, opinion, and ideas through the media, under section
13(3)(d). The Court dismissed both
of these claims.
Jaghai v Jamaica
challenges the constitutionality of anti-sodomy provisions found in sections 76
and 77 of the Offences Against the Person
Act (OAPA). Jahgai also
challenges the criminalization of gross indecency between men, which
encompasses non-penetrative activities including mutual masturbation and oral
sex. The claimant, Javed Jaghai, shared his home with two other gay men. The
claimant was evicted on the basis that the cohabitation arrangement would
result in homosexual activity. The applicant, Javed Jaghai, argues that the
criminalization of intimacy between consenting adults is unconstitutional on
the basis that it contravenes the right to privacy found under section 13(3)(j)
of the Jamaican Charter of Fundamental
Rights and Freedoms, and in particular, the protection of private and
family life under 13(3)(j)(i). The
claimant also argues that the contested sections violate his right to equality
under s 13(3)(g) of the Charter.