Louise Arbour: keynote address - MONTRÉAL, 26 JUILLET 2006
Dear Friends, Colleagues and Participants,
While this normative, political, and social evolution unfolds, it is imperative to remain attentive and responsive to the plight of LGBT persons whose daily life is negatively affected by the current environment.
Let me turn then to the question of criminalization. Of the more than 80 countries that prohibit sexual relations between consenting adults of the same sex, seven make homosexual activity punishable by death. Others prohibit gender reassignment surgery for transsexuals or require intersex persons to undergo such surgery against their will.
There is no doubt that these laws violate international human rights standards when the sanction is death or corporal punishment, since the sentence is grossly disproportionate to the offence and violates the right to life or to freedom from torture. But, regardless of what sanction is imposed, such laws can be said to violate the right to privacy, as the Human Rights Committee found in the Toonen case. The European Court of Human Rights also concluded that laws criminalizing homosexual activity violate this right.
The right to privacy is often defined as the right to be left alone. Cast in a more positive light, it reflects not simply a dichotomy between the public and the private sphere, but a genuine public interest in preserving a space in which the state must not intrude. It protects the family and the home, but most importantly those special and unique characteristics that define our existence, including our sexual identity. As such, this right is closely related to the protection of life, human dignity, and mental and physical integrity.
There is an obvious difference between criminal activities conducted in secret and activities that should not be penalized when conducted in private. The difference is reflected in the harm caused, or likely to result from that activity.
Many courts around the world have found that consenting adults who engage in same sex behavior do not infringe the rights of others and cause no harm that would justify the intervention of the State. For instance, the South African Constitutional Court found that:
“Outside of regulatory control, conduct that deviates from some publicly established norm is usually only punishable when it is violent, dishonest, treacherous or in some other way disturbing of the public peace or provocative of injury. In the case of male homosexuality however, the perceived deviance is punished simply because it is deviant. It is repressed for its perceived symbolism rather than because of its proven harm.”
There is a paradox in our attitude to privacy: some see no problem when a State, in the absence of any proven harm, tramples on privacy in cases of homosexuality, but find no contradiction when the same State is reluctant to violate the sanctity of the private sphere in instances of extraordinary harm, such as domestic violence against women and children, a scourge that blights the lives of many in every country of the world.
Striking a balanced approach to the right to privacy is made even more complicated by the fact that attitudes to privacy are often shaped by culture or religion, and thus by deeply held beliefs. It is therefore important to stress that freedom of religion is a right that also protects the freedom not to share in religious beliefs or be required to live by them.
Whether in authoritarian or in democratic states, laws tend to be designed to demand conformity to the norm. Harmless conduct that does not comply with the norm may therefore require either constitutional or other forms of overriding protection. Under the broad and ill-defined mantle of “culture” States may fail to recognize the diverse voices within their own communities, or may deliberately chose to suppress them. Such an approach stems from an ossified vision of culture, however, which ignores the indisputable transformation of social mores as well as the obligations to promote tolerance and respect for diversity required by human rights law as core aspects of the right to privacy.
In my view, respect for cultural diversity is insufficient to justify the existence of laws that violate the fundamental right to life, security and privacy by criminalizing harmless private relations between consenting adults. Even when such laws are not actively enforced, or worse when they are arbitrarily enforced, their mere existence fosters an atmosphere of fear, silence, and denial of identity in which LGBT persons are confined. I suggest that even when states assert a duty to promote moral, religious or cultural values, they must exercise considerable restraint in doing so through the use of the criminal justice system.
Neither the existence of national laws, nor the prevalence of custom can ever justify the abuse, attacks, torture and indeed killings that gay, lesbian, bisexual, and transgender persons are subjected to because of who they are or are perceived to be. Because of the stigma attached to issues surrounding sexual orientation and gender identity, violence against LGBT persons is frequently unreported, undocumented and goes ultimately unpunished. Rarely does it provoke public debate and outrage. This shameful silence is the ultimate rejection of the fundamental principle of universality of rights.
Impunity for crimes of violence against LGBT persons suggests that, in many societies, they are seen as less deserving of the protection of the law. In the final analysis, their lives are seen to be worth less, along with the lives of others whom society unjustly rejects because of their faults or flaws, real or imagined. In the face of that reality, the responsibility of the State to extend effective protection is, if anything, heightened.
States have a legal duty to investigate and prosecute all instances of violence and abuse with respect to every single person under their jurisdiction. Excluding LGBT individuals from these protections clearly violates international human rights law as well as the common standards of humanity that define us all.
As I conclude, let me comment on the role of human rights defenders. I recognize that many LGBT human rights organizations work in extremely difficult circumstances. They are denied freedom of association when the authorities shut them down, or otherwise prevent them from carrying out their work. They are physically attacked when they organize demonstrations to claim their rights. Many have even been killed for daring to speak about sexual orientation. They are denied access to important fora, including at the international level, where they should be able to have their voices heard.
And yet, despite these obstacles, you do and must continue to press for change at all levels. At the national level, it is largely through your legal advocacy that laws which discriminate against LGBT persons will be repealed and laws that offer better protection of their rights will be put in place. It is through your social organizing and education that stereotypes will be dispelled and attitudes changed.
Work at the international level is equally important, as the UN experts who monitor human rights at the behest of States can legitimize the demands of advocates and provide guidance to governments. I strongly encourage you to make greater use of the international human rights institutions, ultimately for the benefit of the greater number of rights-holders.
I also encourage human rights NGOs to include sexual orientation and gender identity in their agenda and to partner with LGBT NGOs to advocate better protection of human rights for everyone. Civil society will play an indispensable role in advancing the reach and scope of human rights law, towards the realization of a truly universal ideal.
I wish you success in your work over the next few days and beyond, and look forward to the outcome of this important event. I also wish, with you, for a better and fairer world.
While this normative, political, and social evolution unfolds, it is imperative to remain attentive and responsive to the plight of LGBT persons whose daily life is negatively affected by the current environment.
Let me turn then to the question of criminalization. Of the more than 80 countries that prohibit sexual relations between consenting adults of the same sex, seven make homosexual activity punishable by death. Others prohibit gender reassignment surgery for transsexuals or require intersex persons to undergo such surgery against their will.
There is no doubt that these laws violate international human rights standards when the sanction is death or corporal punishment, since the sentence is grossly disproportionate to the offence and violates the right to life or to freedom from torture. But, regardless of what sanction is imposed, such laws can be said to violate the right to privacy, as the Human Rights Committee found in the Toonen case. The European Court of Human Rights also concluded that laws criminalizing homosexual activity violate this right.
The right to privacy is often defined as the right to be left alone. Cast in a more positive light, it reflects not simply a dichotomy between the public and the private sphere, but a genuine public interest in preserving a space in which the state must not intrude. It protects the family and the home, but most importantly those special and unique characteristics that define our existence, including our sexual identity. As such, this right is closely related to the protection of life, human dignity, and mental and physical integrity.
There is an obvious difference between criminal activities conducted in secret and activities that should not be penalized when conducted in private. The difference is reflected in the harm caused, or likely to result from that activity.
Many courts around the world have found that consenting adults who engage in same sex behavior do not infringe the rights of others and cause no harm that would justify the intervention of the State. For instance, the South African Constitutional Court found that:
“Outside of regulatory control, conduct that deviates from some publicly established norm is usually only punishable when it is violent, dishonest, treacherous or in some other way disturbing of the public peace or provocative of injury. In the case of male homosexuality however, the perceived deviance is punished simply because it is deviant. It is repressed for its perceived symbolism rather than because of its proven harm.”
There is a paradox in our attitude to privacy: some see no problem when a State, in the absence of any proven harm, tramples on privacy in cases of homosexuality, but find no contradiction when the same State is reluctant to violate the sanctity of the private sphere in instances of extraordinary harm, such as domestic violence against women and children, a scourge that blights the lives of many in every country of the world.
Striking a balanced approach to the right to privacy is made even more complicated by the fact that attitudes to privacy are often shaped by culture or religion, and thus by deeply held beliefs. It is therefore important to stress that freedom of religion is a right that also protects the freedom not to share in religious beliefs or be required to live by them.
Whether in authoritarian or in democratic states, laws tend to be designed to demand conformity to the norm. Harmless conduct that does not comply with the norm may therefore require either constitutional or other forms of overriding protection. Under the broad and ill-defined mantle of “culture” States may fail to recognize the diverse voices within their own communities, or may deliberately chose to suppress them. Such an approach stems from an ossified vision of culture, however, which ignores the indisputable transformation of social mores as well as the obligations to promote tolerance and respect for diversity required by human rights law as core aspects of the right to privacy.
In my view, respect for cultural diversity is insufficient to justify the existence of laws that violate the fundamental right to life, security and privacy by criminalizing harmless private relations between consenting adults. Even when such laws are not actively enforced, or worse when they are arbitrarily enforced, their mere existence fosters an atmosphere of fear, silence, and denial of identity in which LGBT persons are confined. I suggest that even when states assert a duty to promote moral, religious or cultural values, they must exercise considerable restraint in doing so through the use of the criminal justice system.
Neither the existence of national laws, nor the prevalence of custom can ever justify the abuse, attacks, torture and indeed killings that gay, lesbian, bisexual, and transgender persons are subjected to because of who they are or are perceived to be. Because of the stigma attached to issues surrounding sexual orientation and gender identity, violence against LGBT persons is frequently unreported, undocumented and goes ultimately unpunished. Rarely does it provoke public debate and outrage. This shameful silence is the ultimate rejection of the fundamental principle of universality of rights.
Impunity for crimes of violence against LGBT persons suggests that, in many societies, they are seen as less deserving of the protection of the law. In the final analysis, their lives are seen to be worth less, along with the lives of others whom society unjustly rejects because of their faults or flaws, real or imagined. In the face of that reality, the responsibility of the State to extend effective protection is, if anything, heightened.
States have a legal duty to investigate and prosecute all instances of violence and abuse with respect to every single person under their jurisdiction. Excluding LGBT individuals from these protections clearly violates international human rights law as well as the common standards of humanity that define us all.
As I conclude, let me comment on the role of human rights defenders. I recognize that many LGBT human rights organizations work in extremely difficult circumstances. They are denied freedom of association when the authorities shut them down, or otherwise prevent them from carrying out their work. They are physically attacked when they organize demonstrations to claim their rights. Many have even been killed for daring to speak about sexual orientation. They are denied access to important fora, including at the international level, where they should be able to have their voices heard.
And yet, despite these obstacles, you do and must continue to press for change at all levels. At the national level, it is largely through your legal advocacy that laws which discriminate against LGBT persons will be repealed and laws that offer better protection of their rights will be put in place. It is through your social organizing and education that stereotypes will be dispelled and attitudes changed.
Work at the international level is equally important, as the UN experts who monitor human rights at the behest of States can legitimize the demands of advocates and provide guidance to governments. I strongly encourage you to make greater use of the international human rights institutions, ultimately for the benefit of the greater number of rights-holders.
I also encourage human rights NGOs to include sexual orientation and gender identity in their agenda and to partner with LGBT NGOs to advocate better protection of human rights for everyone. Civil society will play an indispensable role in advancing the reach and scope of human rights law, towards the realization of a truly universal ideal.
I wish you success in your work over the next few days and beyond, and look forward to the outcome of this important event. I also wish, with you, for a better and fairer world.
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