A similar approach has also been taken at the Human Rights Council. In 2006, Norway
authored a statement on behalf of 54 member States, noting that the Human Rights Council
had received extensive evidence of human rights violations based on sexual orientation and
gender identity, including deprivation of the rights to life, freedom from violence and torture,
and stating that the principles of universality and non-discrimination require that these issues
be addressed. 27
The aforementioned 2008 joint statement has the status of neither an international legal
instrument nor a UN resolution. It does not purport to create new rights but rather an
authoritative interpretation of existing human rights law. It should also be noted that the 2008
joint statement received support from States in all five UN regional groups, namely the Africa
Group, the Asia Group, the Eastern European Group, the Latin America and Caribbean
Group, and the Western Europe and Others Group.
The issue of sexual orientation and gender identity is also being increasingly raised in the
course of the Universal Periodic Review, with the rights to non-discrimination being stressed
in the context of the review of individual states. 28
– by Regional Human Rights Mechanisms
At the regional level, the European Court of Human Rights (ECHR) has a significant body of
jurisprudence dealing with the violation of rights under the European Convention for the
Protection of Human Rights and Fundamental Freedoms (the European Convention) due to
discrimination based on sexual orientation and gender identity.
The first successful cases on issues of sexual orientation concerned the interpretation of the
privacy clause in the European Convention. 29 In Dudgeon vs. United Kingdom 30 and Norris
vs. Ireland 31 the criminalisation of same sex sexual conduct between consenting adults was
deemed a violation of the privacy protection in Article 8 of the European Convention. In the
former case, the ECHR held that such legislation constituted a continuing interference with
the applicant's right to respect for his private life (which included his sexual life) within the
meaning of Article 8.1. In the latter case, the ECHR held that one of the continuing effects of
such criminal sanctions was to reinforce the misapprehension and general prejudice of the
public and increase the anxiety and guilt feelings of homosexuals leading, on occasion, to
depression and the serious consequences which could follow. Like the HRC in Toonen, the
27 Norwegian joint statement on human rights violations based on sexual orientation and gender identity, Human Rights
Council, 3rd session, Geneva, 1 December 2006, available at: http://uklgig.org.uk/docs/Norwegian_Joint_StatementUNHRC_06.doc. (5 February 2008). Countries: Albania, Andorra, Argentina, Australia, Austria, Belgium, Bosnia and
Herzegovina, Brazil, Bulgaria, Canada, Chile, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany,
Greece, Guatemala, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Mexico, Montenegro,
Netherlands, New Zealand, Panama, Peru, Poland, Portugal, the former Yugoslav republic of Macedonia, the Republic of
Korea, the Republic of Moldova, Romania, Serbia, Spain, Slovakia, Slovenia, Sweden, Switzerland, Timor-Leste, Ukraine, the
United Kingdom, the United States of America, Uruguay, and Norway. Note: Brazil attempted to move a resolution on sexual
orientation in 2003 at the then UN Commission on Human Rights, but withdrew the resolution in the face of strong opposition.
See http://ilga.org/ilga/en/article/406 accessed on 1 May 2010.
28 http://www.upr-info.org/-UPR-Process-.html accessed on 12 May 2010.
29 Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms reads: Right to respect
for private and family life: Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law
and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and
freedoms of others.
30 Dudgeon v. UK A 45 (1981); (1982) 4 EHRR 149.
31 Norris v. Ireland A 142 (1988); (1988) 13 EHRR 186.
ACJ Report: Human Rights, Sexual Orientation and Gender Identity
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