Promoting and Protecting Human Rights in relation to Sexual Orientation, Gender Identity and Sex Characteristics A Manual for National Human Rights Institutions According to the High Commissioner for Human Rights: States that criminalize consensual homosexual acts are in breach of international human rights law since these laws, by their mere existence, violate the rights to privacy and non-discrimination. Arrests and the detention of individuals on charges relating to sexual orientation and gender identity – including offences not directly related to sexual conduct, such as those pertaining to physical appearance or so-called “public scandal” – are discriminatory and arbitrary.106 Indirectly, these laws have a ‘chilling’ effect, even if not enforced, by oppressing lesbian, gay and bisexual people and suppressing their enjoyment of their human rights. They place lesbian, gay and bisexual people at risk of harassment, intimidation and exploitation and they expose them to violence from others. Human rights mechanisms continue to emphasize links between criminalization and homophobic … hate crimes, police abuse, torture, family and community violence and stigmatization, as well as the constraints that criminalization put on the work of human rights defenders. The Special Rapporteur on freedom of religion or belief has noted that these laws may give a pretext to vigilante groups and other perpetrators of hatred for intimidating people and committing acts of violence.107 The laws have these effects whether or not they are enforced. The Human Rights Committee made this point in Toonen v Australia when it found in favour of Mr Toonen, even though Australia, in its defence, said that the law was not enforced.108 The ACJ reported: … even where such laws are not regularly enforced, their very existence continues to affect adversely the enjoyment of rights by people of diverse sexual orientations ... As the Delhi High Court stated: “The criminalisation of homosexuality condemns in perpetuity a sizable section of society and forces them to live their lives in the shadow of harassment, exploitation, humiliation, cruel and degrading treatment at the hand of the law enforcement machinery … Even without actual enforcement, [such] laws serve to stigmatise an entire section of society, thereby violating their dignity as citizens”.109 The continued existence of the law also leads to violation of other human rights. The United Nations has frequently expressed concern about the criminalization of same-sex relationships. In addition to violating basic rights, criminalization legitimizes prejudice in society at large and exposes people to hate crimes, police abuse, torture and family violence. As the World Health Organization (WHO) and The Joint United Nations Programme on HIV/AIDS (UNAIDS) have shown, criminalization also has a dire effect on public health, especially on efforts to prevent the spread of HIV. It can, for example, deter some of those most at risk of infection from coming forward for testing and treatment out of fear of being deemed a criminal.110 Criminalisation can also endanger the work of those who defend the human rights of lesbian, gay and bisexual people, by exposing them to attacks and intimidation. For that reason, the High Commissioner for Human Rights has called for States to fulfil their legal duty to protect lesbian, gay and bisexual people from violence and discrimination by repealing laws that criminalise same-sex conduct and other laws used to punish lesbian, gay and bisexual people.111 34 106 High Commissioner for Human Rights, Discrimination and violence against individuals based on their sexual orientation and gender identity, 4 May 2015, A/HRC/29/23, para. 43; at www.un.org/en/ga/search/view_doc.asp?symbol=A/HRC/29/23&referer=/ english/&Lang=E. 107 Ibid, para. 45. 108 Human Rights Committee, Toonen v Australia, 4 April 1994, CCPR/C/50/D/488/1992, para. 8.2. 109 APF, ACJ Report: Human rights, sexual orientation and gender identity, 2010, p. 20 at www.asiapacificforum.net/resources/acjreport-sogi/. The quote from the Delhi High Court is from Naz Foundation v. NCT Delhi, 2009, 160 DLT 277, para. 52. 110 OHCHR, Fact sheet: Criminalisation, p. 2; at www.ohchr.org/Documents/Issues/Discrimination/LGBT/FactSheets/unfe-30-UN_ Fact_Sheets_Criminalization_English.pdf. 111 Ibid.