The U.N. Human Rights Council Resolution on Sexual Orientation and Gender Identity (Part 4)

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By Jane Adolphe

ROME, DEC. 7, 2012 (Zenit.org).- The UNHCHR issued a new non-binding Report “Born Free and Equal” which builds on its Report produced pursuant to HRC resolution 17/19. The new Report argues that “the case for extending the same rights to lesbian, gay, bisexual and transgender (LGBT) persons as those enjoyed by everyone else is neither radical nor complicated. It rests on two fundamental principles that underpin international human rights law: equality and non-discrimination.” (p.7) In support, the Report cites art. 1 of the UDHR, in part: “All human beings are born free and equal in dignity and in rights.” In this way, the Report negates the foundation of international human rights law based on the inherent dignity of the human person, by nature endowed with reason and conscience having a duty to act towards one another in a spirit of brotherhood. It also creatively makes two principles the very foundation of human rights: equality and non-discrimination. 

The Report promotes five core obligations of States to protect the human rights of LGBT persons. The emphasis is less on “sexual orientation” or “gender identity” and more on LGBT group rights at this point. The Report builds upon the non-binding UNHCHR Report and the non-binding document prepared by a group of individuals, who travelled to Yogyakarta, to prepare a paper on the topic of “sexual orientation” and “gender identity” and human rights. 

The five core principles are the following: 1) protect individuals from homophobic and transphobic violence -  rather than all persons should be protected from violence; 2) prevent torture and cruel, inhuman and degrading treatment of LGBT persons -  rather than all persons should be protected from torture and other ill treatment ; 3) decriminalize homosexuality -  rather than urge States to review and evaluate their penal laws taking into consideration the effect caused by changes in the law, the proven customs and traditions, the rights and duties of religious communities, the protection of the natural family, enforcement issues and State obligations for the common good; 4) prohibit discrimination based on “sexual orientation” and “gender identity” - rather than prohibit discrimination based on race, religion, language and sex against all persons; and 5) respect freedom of expression, association and peaceful assembly by LGBT individuals -  rather than respect freedom of expression, association and peaceful assembly of every human person, taking into consideration the limitations recognized in international law.  

It is worth noting that there has been an overall shift in argumentation. The right to privacy has been the main justification used to decriminalize private consensual sexual acts between adults of the same sex. However, since marriage is a publicly recognized institution the equality argument has now become the  key argument for the cause of same-sex marriage. “But for the equality argument to be taken earnestly in the development of marriage jurisprudence in the area of same-sex relations,” Professor Robert Araujo, S.J. argues “the physical difficulties of equating same-sex relations with opposite-sex relations must be overcome.” (Araujo, 2010,  p. 31). He contends that “the only way to accomplish this task is to rely on an understanding of ‘equality’ that is not based on fact and reason but on exaggerated legal positivism.” (Id.) He continues: “For any claim to equality to be authentic, sincere, and just, its content and practice must accurately reflect the nature of the human person—for this is what makes people like one another in some ways and different from one another in other ways.” (Id.) The argument is as follows. In fundamental ways, all people are equal, but in other ways, they are not.  Professor Araujo, S.J. offers some examples: “while most people like music, we are not all the equal of Mozart. Again, while most people like sports, we are not the equal of the greatest athletes of the world” (Araujo, 2012).  When it comes to marriage, he continues: “we are not equal in this regard either. If the human race has the capacity to explore and colonize distant planets, and one group consisting of heterosexual couples goes to planet Alpha and another group consisting of homosexual couples goes to planet Beta, and neither group has the ability for technology-assisted reproduction, which planet would still be colonized in a century? Logic would dictate that planet Alpha will still be, but planet Beta will not. The same-sex marriage argument for equality fails in this regard. The couples are simply not the same.” (Araujo, 2012) 

And this is what the drafters of the Universal Declaration of Human Rights meant when said that “All human beings are born free and equal in dignity and in rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” As noted in Part II , the term “born” in art. 1 is referring to a moral birth, which no individual or entity could possibly grant. This understanding is consistent with the fact that human persons are inherently the same but also different and physically born into unequal circumstances. In the debate for LGBTI rights especially as concerns same-sex marriage “the law is enticed to ignore fact[s] and replace  [them] with a flimsy legal fiction” that renders “equal that which cannot be because of the reality of human nature” - the response, then, calls for “rigorous application of logic” (Araujo, 2010, p. 31). The same advice applies for the discrimination argument which was discussed in Part II.

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Jane Adolphe is the Associate Professor of Law at  Ave Maria School of Law in Naples, Florida. 

Part 3:  http://www.zenit.org/article-36113?l=english