States Obligations regarding discrimination and equality In order for a State to “guarantee” rights without discrimination of any kind, United Nations (UN) Treaty Bodies have commented that the State must: • • ensure that its constitution, laws and policy documents do not discriminate on prohibited grounds; and adopt necessary measures to prevent, diminish and eliminate the conditions and attitudes which cause or perpetuate discrimination. In addition, a State may adopt special measures to attenuate or suppress conditions that perpetuate discrimination. 7 More specifically, the UN Human Rights Committee (HRC) which is charged with interpreting the ICCPR, states that the equality right prohibits discrimination in law or in fact in any field regulated and protected by public authorities, and that the State shall guarantee to all persons equal and effective protection against discrimination on any of the enumerated grounds. In addition, the State may also be held to have violated rights where it fails to prevent, punish, investigate or redress harm caused by private persons or entities. 8 Application to Sexual Orientation and Gender Identity – by UN Treaty Bodies The rights to freedom from discrimination, equality before the law and equal protection of the law in the context of sexual orientation and gender identity have been the subject of interpretive comments and decisions by various UN Treaty Bodies. The first acknowledgement that international human rights law applies to those discriminated against on grounds of sexual orientation was the decision of the HRC in Toonen vs. Australia. 9 In this case, the applicant Nicholas Toonen challenged laws criminalising same sex sexual conduct between consenting adults, arguing they were a violation of Article 2(1), Article 17 and Article 26 of the ICCPR. In concluding that such laws violated Toonen’s right to privacy (ICCPR Art. 17), the HRC held that the reference to the word ‘sex’ in Article 2(1) and Article 26 was to be taken as including sexual orientation. 10 The interpretation was reinforced in subsequent decisions of the HRC, for example Young vs. Australia and X vs. Columbia where the HRC found that the State had been unable to demonstrate in each case that the differential treatment of homosexuals and heterosexuals was reasonable and objective. 11 7 Human Rights Committee, General Comment No. 18. Human Rights Committee, General Comment No. 31. Committee on Economic, Social and Cultural Rights, General Comment No. 20. 8 Human Rights Committee, General Comment No. 18: Non-discrimination, (paragraph 12). 9 Communication No.488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994). http://hrlibrary.ngo.ru/undocs/html/vws488.htm accessed on 26 April 2010. 10 Communication No.488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994). http://hrlibrary.ngo.ru/undocs/html/vws488.htm accessed on 26 April 2010. 11 Young v Australia. Communication No. 941/2000. Accessed on 1 May 2010. www.unhchr.ch/tbs/doc.nsf/0/3c839cb2ae3bef6fc1256dac002b3034?Opendocument. X v. Columbia, Communication No. 1361/2005. Accessed on 1 May 2010. www.unhchr.ch/tbs/doc.nsf/0/51537efd406147c3c125730600464373?Opendocument. ACJ Report: Human Rights, Sexual Orientation and Gender Identity 11