Which are the most relevant international and regional human rights standards related to the sexual health of LGBT and sex workers?

Overview

A variety of human rights standards at the international and regional levels applies to sexual health. These standards can be used for many purposes:

To document violations of sexual rights
To advocate for the cessation of these violations
To sue governments for violations of national human rights laws
To complain to regional and international human rights bodies.

In the tables on the following pages, examples of human rights violations related to sexual health are provided. Relevant human rights standards are then cited, along with examples of legal precedents interpreting each standard.

How to read the tables

As you read through each table, ask yourself the following questions about the violations, standards, and precedents and interpretations that are cited:

EXAMPLES OF HUMAN RIGHTS VIOLATIONS Do any of these violations occur in your country? Are there other violations of this human right that exist in your country?
HUMAN RIGHTS STANDARDS Are these violations prohibited by the "human rights standards"? Can the standards be interpreted to apply to this violation?	PRECEDENTS AND INTERPRETATIONS Do any of the "examples of precedents and interpretations" apply to this issue? Can they be interpreted to apply to this issue?

Remember that human rights law is an evolving field, and that many human rights violations are not directly addressed by existing legal standards and precedents. Through ongoing documentation and advocacy, advocates can build a stronger body of jurisprudence on sexual health and human rights.

Abbreviations

In the tables, the seven treaties and their corresponding enforcement mechanisms are referred to with the following abbreviations:

Treaty	Enforcement Mechanism
International Covenant on Civil and Political Rights (ICCPR)	Human Rights Committee (HRC)
International Covenant on Economic, Social, and Cultural Rights (ICESCR)	Committee on Economic, Social and Cultural Rights (CESCR)
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)	Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW Committee)
Convention on the Rights of the Child (CRC)	Committee on the Rights of the Child (CRC Committee)
African Charter on Human and People’s Rights (ACHPR) & Protocols	African Commission on Human and People’s Rights (ACHPR Commission)
[European] Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)	European Court of Human Rights (ECtHR)
European Social Charter (ESC)	European Committee of Social Rights (ECSR)

Also cited are the former Commission on Human Rights (CHR) and various UN Special Rapporteurs (SR) and Working Groups (WG).

Table 1: Sexual health and the right to life

Examples of Human Rights Violations
A penal code imposes the death penalty for (homosexual or heterosexual) sex outside of marriage, or for sex work or related acts such as pimping. Police officers rape or violently assault a homeless transgender person. Sex workers or LGBT communities are denied access to services to prevent HIV, a fatal disease. Police fail to investigate murders of people in sex work, whether, male, female or trans-identified.
Human Rights Standards	Precedents and Interpretations
ICCPR 6(1) Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. (2) In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court. ACHPR 4 Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right. ECHR 2(1) Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. *See also:* CRC 6	CHR: has acknowledged that sexual orientation is grounds for concern for application of the death penalty or extrajudicial execution. HRC: has linked denial of the right to life to execution for same sex or other sexual behavior outside marriage; has also linked prostitution to increased susceptibility to violence, threatening sex workers’ right to life {Colombia 1997} CEDAW Committee has repeatedly called for protection of sex workers’ right to life through access to reproductive health services (e.g., Armenia (1997), Azerbaijan (1998), Namibia (1997), Cameroon (2000), DR Congo (1999) CRC: “The obligation to realize the right to life, survival and development also highlights the need to give careful attention to sexuality as well as to the behaviors and lifestyles of children, even if they do not conform with what society determines to be acceptable under prevailing cultural norms" {General Comment 3, Paragraph 9} SR Arbitrary and Extrajudicial Executions: have noted that capital punishment should not be applied to “morals” offences, and also called on states to prevent and investigate the killing of sexual minorities by non-state actors.

Table 2: Sexual health and freedom from torture and cruel, inhuman and degrading treatment, including in prisons

Examples of Human Rights Violations
A psychiatrist provides “treatment” to an LGBT person with electric shock or hormone therapy without consent. A gay man in prison is denied a bed and repeatedly assaulted and raped by cell mates, with the complicity or inaction of prison guards and correctional officials. A sex worker is raped by police in detention with no investigation or remedy. Police officials fail to investigate the sexual assault of a woman who uses drugs.
Human Rights Standards	Precedents and Interpretations
ICCPR 7 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation. ACHPR 5 Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited. ECHR 3 No one shall be subjected to torture or to inhuman or degrading treatment or punishment *See also:* Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment (1987) European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1989) Code of Conduct for Law Enforcement Officials (1979)	HRC, CAT: have condemned the torture and ill-treatment of persons in detention based on their sexual orientation or gender identity. CEDAW Committee: has noted that sex workers "are at increased risk of violence and need equal protection of laws against rape and other forms of violence." {General Recommendation 19} ECtHR: has considered the rape of a woman in detention as torture and CID {Aydin v. Turkey, 1997}. SR Torture: has expressed concern at torture and CID directed at persons because of their sexual orientation or gender identity or expression, noting that torture and CID protections apply in criminal detention as well as to health and immigration facilities.

Table 3: Sexual health and freedom from slavery and servitude

Examples of Human Rights Violations

A child is recruited and taken from his or her home for the purposes of sexual exploitation.
A man or woman is tricked into forced prostitution by the promise of work abroad.
A migrant worker is held against his or her will in a brothel and forced into sexual servitude.

Human Rights Standards

Precedents and Interpretations

ICCPR 8 (1) No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.
(2) No one shall be held in servitude.

ECHR 4 (1) No one shall be held in slavery or servitude.

ACHPR 5 All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.

Note:

These provisions should not interfere with freedom of movement and to choose one’s residence. Consenting adults who migrate for work, including sex work, are not necessarily victims of slavery, servitude, or trafficking.

See also:

CEDAW 6 (prevention of prostitution and trafficking)
CRC 34 (protection from sexual exploitation)
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (2001)
UN Principles and Guidelines on Human Rights and Trafficking (2003)

HRC: has emphasized governments’ duty to prosecute procurers of forced prostitution {Lithuania, 1997}.

CAT: has defined trafficking in women as a form of violence, within CAT’s mandate Greece (2001), Georgia (2001).

CEDAW Committee: has defined trafficking as violence and a clear violation of women’s rights {General Recommendation 19}; has noted that "States parties should ensure, without prejudice and discrimination, the right to sexual health information, education and services for all women and girls, including those who have been trafficked, even if they are not legally resident in the country" (General Recommendation 24); has urged States to decriminalize or review laws that criminalize prostitution, e.g., China (1999) and Sweden (2001), and to enforce anti-prostitution laws in a non-discriminatory way or change laws that punish sex workers but not procurers, e.g., Hong Kong (1999), Egypt (2001), Guyana (2001), India (2000), Indonesia (1998), Lithuania (2000).

SR Human Rights Aspects of Trafficking: recommended that “potential victims of trafficking and exploitation, including women that have contracted HIV/AIDS or other sexually transmitted diseases, must not be immediately deported but given adequate legal, medical and social assistance, including access to interpretation in language they understand” {Lebanon, 2006}.

Table 4: Sexual health and freedom from arbitrary arrest and detention

Examples of Human Rights Violations
Police arbitrarily arrest sex workers for violating municipal laws against public loitering. A gay man is arrested without charge by undercover police officers in a “cruising” area. A lesbian adolescent is detained without charge after her parents discover her sexual orientation and call the police. A transgender or transvestite person is detained at a border for “suspicious behavior.” A woman using drugs is detained in the hospital after giving birth and denied custody of her child.
Human Rights Standards	Precedents and Interpretations
ICCPR 9(1) Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. ACHPR 6 Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained. ECHR 5(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: *See also:* Code of Conduct for Law Enforcement Officials (1979) Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990)	ACHPR: asked Cameroon in 2006 about the arrest and detention of men for their alleged homosexuality. ACHPR Womens’ Protocol: has recognized gender-specific protections for women’s “life, integrity and security of the person.” WG Arbitrary Detention: issued view that the arrest and detention of men for having sex with men was an arbitrary act by the Egyptian police, not justified by claims of morality; also considered the detention of men in Cameroon a violation.

Table 5: Sexual health and the right to privacy

Examples of Human Rights Violations
A penal code punishes non-marital sex or non-reproductive sex, such as any form of anal or oral sex, same-sex sexual behavior, commercial sex, sex with a condom, masturbation. A doctor discloses a patient’s sexual history, health status, or sexual partner without consent. Police officials keep lists of “suspected homosexuals” with photographs and fingerprints. A newspaper publishes an article condemning the sexual orientation of a teacher or journalist. Police raid a suspected brothel without evidence or judicial authorization. Health care workers require young people to obtain parental consent as a condition of receiving sexual health services.
Human Rights Standards	Precedents and Interpretations
ICCPR 17(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. ECHR 8(1) Everyone has the right to respect for his private and family life, his home and his correspondence. *See also:* CRC 16	HRC: established for the first time under an international treaty that the penalization of same sex behaviour is a violation of privacy and non-discrimination under ICCPR articles 2 and 17 {Toonen v. Australia, 1994}. CEDAW Committee: since Toonen, has used privacy as the basis for numerous comments on sexual rights {see, e.g., CEDAW General Recommendation 24, 2000}. ECtHR: affirmed that the penalization of same sex behaviour violates the right to privacy (Dudgeon v. UK and later cases), and protected the right to transition from one gender to another, although not to remain between genders {Goodwin v. UK, 2002}.

Table 6: Sexual health and freedom of expression and information

Examples of Human Rights Violations
Young people are denied information about HIV and AIDS, safer sex, and condoms, as well as about sexual behaviors such as homosexuality. A state agency in charge of newspaper distribution refuses to distribute an LGBT publication. A transvestite student is forced by school authorities to dress according to his “biological sex”. Nongovernmental organizations are compelled to adopt a policy “opposing prostitution” as a condition of government funding for work on HIV and AIDS or anti-trafficking.
Human Rights Standards	Precedents and Interpretations
ICCPR 19(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. ACHPR 9 (1) Every individual shall have the right to receive information. ECHR 10(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. (2) Every individual shall have the right to express and disseminate his opinions within the law. *See also:* ICESCR 13 (right to education) CRC 13 (right to education)	CRC: concluded that adolescent’s right to information about HIV and AIDS is part of the right to information {General Comment 3, Paragraph 4, 2003}. SR Education: has noted the need for sexuality education in schools, and for schools to ensure the safety of gay and lesbian students. SR Freedom of Expression and Information: has commented on or expressed concern about: the abuse of the rights of sex workers and LGBT persons; restrictions on public speech and denial of HIV and AIDS information to these communities; detention of persons in Kuwait because of a letter mentioning a lesbian relationship, and the arrests and harassment of two gender-non-conforming women in Uganda. SR Human Rights Defenders, SR Racism, SR Violence against Women, and SR Health: collectively criticized a Bill in Nigeria that would criminalize persons seeking same sex relationships and marriage, as well as organizations working on or speaking about such issues (2007).

Table 7: Sexual health and freedom of assembly and association

Examples of Human Rights Violations
A government prohibits and criminalizes any associations for promotion of LGBT rights, or refuses to register an LGBT association. A gay pride parade is banned by city authorities. A sex worker group is denied the right to register as an NGO on the grounds that it is “promoting criminality”. In order to discourage prostitution, a government prohibits sex workers from forming a union or professional association.
Human Rights Standards	Precedents and Interpretations
ICCPR 21 The right of peaceful assembly shall be recognized. 22(1) Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests. (2) No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. ACHPR 10 Every individual shall have the right to free association provided that he abides by the law. 11 Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others. ECHR 11 Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.	Various mechanisms: have noted denial of LGBT rights to public assembly and marching as well as related violations to their security and safety. SR Human Rights Defenders, SR Racism, SR Violence against Women, and SR Health: collectively criticized a Bill in Nigeria that would criminalize persons seeking same sex relationships and marriage, as well as organizations working on or speaking about such issues (2007). ECtHR: declared ban on LGBT pride march in Warsaw in 2005 illegal and discriminatory {Baczkowski and Others v. Poland, 2007}.

Table 8: Sexual health and the right to marry and found a family

Examples of Human Rights Violations
A government refuses to accord to unmarried same-sex couples the same rights and responsibilities it accords to unmarried different-sex couples A lesbian woman is denied the right to artificial insemination services A single gay man is denied the right to adopt a child A woman living with HIV is forced to terminate her pregnancy or abandon her child Sex workers are denied legal and social status for their families The law prevents adult children of sex workers from living with their parents, on the grounds this constitutes “living off the avails of prostitution.”
Human Rights Standards	Precedents and Interpretations
ICCPR 23(2) The right of men and women of marriageable age to marry and to found a family shall be recognized. ECHR 12 Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right. *See also:* CEDAW 16.1 African Women’s Protocol 14	No UN-based expert has specifically applied this right to LGBT identified persons, same-sex relationships, or sex workers who have faced abuses of their family rights including respect for marriage and parental rights. However: HRC: found Australia’s failure to ensure same sex pension rights violated the right to equal protection under law {Young v. Australia}. ECtHR: found Portugal’s denial of custody rights to a biological father in a same-sex relationship violated rights of privacy and family life {da Silva Mutua v. Portugal}; also found UK’s restricting two transsexual women from marrying violates privacy and family rights if the state does not recognize their new identity {Goodwin v. UK and I. v. UK}. ECtHR: decided that the state cannot justify discrimination of unmarried same-sex couples by “protection of traditional family”, thus saying that the state should give same rights to same-sex and different-sex unmarried couples (Karner v. Austria, 2003) SR Human Rights Defenders, SR Racism, SR Violence against Women, and SR Health: collectively criticized a Bill in Nigeria that would criminalize persons seeking same sex relationships and marriage, as well as organizations working on or speaking about such issues (2007).

Table 9: Sexual health and right to bodily integrity

Examples of Human Rights Violations
A transsexual or transgender person is raped or assaulted by police. A lesbian is raped by family friends to “make her straight”. The police fail to investigate beatings and sexual assaults of men having sex with men. Schools fail to protect students from attacks for sexual or gender non-conformity. Police fail to investigate the rape of a sex worker, claiming she “asked for it”. An HIV-positive woman is sterilized against her will.
Human Rights Standards	Precedents and Interpretations
ACHPR 4 Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right. *Note:* The right to bodily integrity is not specifically recognized under the ICCPR or ICESCR, but has been interpreted to be part of the right to security of the person, to freedom from torture and cruel, inhuman, and degrading treatment, and the right to the highest attainable standard of health. Similarly, the right to bodily integrity is not specifically recognized in CEDAW, although CEDAW has been widely interpreted to include the right to protection from violence against women. *See also:* CRC 19.1 CEDAW 5(a) African Women's Rights Protocol 3, 4, 5	CEDAW Committee: has noted that sex workers "are at increased risk of violence and need equal protection of laws against rape and other forms of violence." {General Recommendation 19} WG Enforced or Involuntary Disappearances: has noted that, “An aspect of disappearances that has been underreported in the past and continues at the present time relates to the way in which acts of disappearance are perpetrated in conjunction with other gross violations, with targets drawn from among the most vulnerable groups in society. . . . Common examples brought to our notice were: disappearances, combined with “social cleansing,” the urban poor, the unemployed, and the so-called “undesirables,” including prostitutes, petty thieves, vagabonds, gamblers and homosexuals as the victims” [emphasis added].

Table 10: Sexual health and the right to non-discrimination

Examples of Human Rights Violations
A person is denied a job, housing, health care, education, or access to goods and services because of sexual orientation, gender identity or expression, or being a sex worker. A TV program is prohibited by authorities because it features a same-sex kiss while allowing different-sex kisses to be aired regularly. An organization for boys (e.g., “Boy Scouts”) denies membership to LGBT people. A young woman is expelled from school because of pregnancy.
Human Rights Standards	Precedents and Interpretations
ICCPR 2(1) Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. ICCPR 26 All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. ACHPR 2 Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status. ECHR 14 The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. For a similar provision, Protocol 12 of ECHR 1, "other status" has been interpreted by the ECtHR to include sexual orientation.	HRC: has recognized the right to non-discrimination on the basis of sexual orientation in relation to privacy {Toonen v. Australia} and access to benefits {Young v. Australia}, but not access to marriage {Joslin v. New Zealand}; has also observed importance of non-discrimination on the basis of sexual orientation and gender identity or expression in access to health care and housing, as well as freedom of speech, freedom from torture, and right to life. *Note:* UN treaty bodies have not determined whether to criticize laws against adultery, sodomy, and fornication, rather than recommending equal penalties for men and women under these laws {see, e.g., HRC concluding comments to Egypt, 2002}. CEDAW Committee: has noted impact of prostitution laws on stigma and violence against sex workers, but has not questioned laws themselves. CRC: has considered the equal right of adolescents on the basis of sexual orientation and health status to gain access to HIV-prevention tools {General Comment 4, 2003}.

Table 11: Sexual health and right to the highest attainable standard of health

Examples of Human Rights Violations
A national health system fails to provide anti-retroviral treatment to LGBT people or sex workers, while making it accessible to others. Perceived LGBT persons are treated with stigma and judgmental attitudes in the health system. Police confiscate condoms from sex workers, claiming they are evidence of illegal activity. A woman living with HIV is denied condoms or services to prevent mother-to-child transmission of HIV, and instead discouraged from having sex.
Human Rights Standards	Precedents and Interpretations
ICESCR 12(1) The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. 12(2) The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: . . . (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases. ACHPR 16 (1) Every individual shall have the right to enjoy the best attainable state of physical and mental health. (2) States Parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick. *See also:* CEDAW 12(1) CRC 24(1) ESC (1)	CESCR: has urged governments to protect sex workers’ right to health as part of overall public health {Dominican Republic, 1997}. CEDAW Committee: has called for access to access to sexual health information, education, and services for all women {General Recommendation 24}; in Uganda (2002) and Cameroon (2000), has recommended that the government ensure health services for sex workers so as to curb rise in HIV andAIDS; has repeatedly called for protection of sex workers’ right to health through access to reproductive health services {e.g., Armenia (1997), Azerbaijan (1998), Namibia (1997), Cameroon (2000), DR Congo (1999)}. SR Health: Included freedom of sexual orientation in report on fundamental principles in sexual and reproductive rights (2004); expressed concern that stigma against sex workers and injecting drug users in health facilities poses a barrier to services {Report of Mission to Romania, 2005}. SR Violence Against Women, Torture, Freedom of Expression: have all addressed barriers faced by sexually stigmatized people in receiving health care with respect and safety.

back to Chapter Five Contents

next section