33.
Pay attention to the rights of persons of diverse sexual orientation or gender identity
who are detained, including in juvenile facilities. This includes, in particular, their right
not to be subjected to torture or to cruel, degrading or inhuman treatment.
Advocacy
We recommend that NHRIs consider advocacy in relation to:
The interpretation and amendment of domestic laws
34.
Advocate the review of existing laws to remove all laws that violate the human rights of
persons of diverse sexual orientation or gender identity and ensure the application of
all laws in a non-discriminatory manner.
35.
Advocate the repeal or revision, as appropriate, of relevant domestic laws to
decriminalise same sex sexual conduct between consenting adults.
36.
Advocate the revision or removal of laws and policies that criminalize, penalise or
prohibit diverse gender expressions. 99
37.
Advocate uniform age-of-consent laws for heterosexual and same sex sexual conduct;
38.
Advocate the removal of legal barriers to the distribution of sexual health information,
including by providing exceptions to obscenity offences for such material.
39.
Advocate the enactment of legal protections from hate crimes and prohibit vilification
on the grounds of gender identity and sexual orientation.
40.
Advocate the introduction of laws that make sexual assault of males a criminal offence,
where they do not exist.
41.
Advocate the enactment of anti-discrimination provisions that ensure protection and
promotion of the human rights of persons of diverse sexual orientation and gender
identity. Provisions should specifically prohibit discrimination on these grounds and
cover actions by non-State and private actors. Areas of discrimination of particular
concern include employment, access to services including health care, education,
accommodation, provision of identity documents, and access to welfare services.
The enforcement of domestic laws
42.
Advocate the end of selective or disproportionate enforcement of laws (such as
vagrancy, prostitution, assembly laws) with regard to persons of diverse sexual
orientation or gender identity.
43.
Advocate the end of the selective enforcement of criminal laws, including public order
and sex work offences and particularly where this is used as a pretext for extortion or
for harassing, assaulting, detaining and punishing persons of diverse sexual orientation
or gender identity.
99 The expression of gender identity may occur through, amongst other things, dress, speech mannerisms, or through
permanent (medical) or temporary changes to ones appearance.
ACJ Report: Human Rights, Sexual Orientation and Gender Identity
37