Sexual orientation is a contentious subject in international law terms, predominantly because there is no official legal definition of it. The differences between sexual orientation, sexual preference and sexual behaviour are both ambiguous and indefinite. However, sexual orientation is not specified under the European Convention’s anti-discrimination law, and therefore there is no legal basis for the court to work on.ECHR: Article 14 Prohibition of discrimination The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
It is arguable, however, that sexual orientation does not define a person and therefore anyone of an alternative sexual orientation or preference is still classed as a “human being,” this means that their rights are still valid under the convention, which seeks to protect all humans equally. In the Tooning v. Australia case the International Criminal Court (ICC) included sexual orientation under the grounds of “sex” under anti-discrimination laws of the International Covenant on Civil and Political Rights (ICCPR). However, decisions like these are discretionary because sex is biological and arguably orientation is not, or at least sexual preference is not, eg: sadomasochism.JS Mill created the theory of the “harm principle” which means that everyone should be free to do what they want unless it harms others. But this in itself can be contested- what is harm? Is harm always physical or tangible, such as rape, or can it include offence or mental harm, such as religious sensitivity? The religious argument would be that homosexuality is morally wrong, but this, in turn, presents more ambiguity. Who decides what is morally right and morally wrong? Christians, for example, would argue that the Ten Commandments were the basis for modern morals, and that they are based on natural moral laws which many other religions have found too. However, in the legal system is it not suitable that the State can decide what is morally right or wrong, because it is meant to protect its people, no matter what their moral attitude. It cannot be a decision for the international courts either, because not all the states will agree on what is moral or immoral (if morals are based on natural law then wouldn’t everyone innately have the same morals?). The ECHR purposefully gives a wide margin of appreciation to states when it refers to moral issues because it cannot determine the public opinion. Public morality, that is the general moral consensus of the people, is subjective and varies within states, throughout societies and cultures and can be heavily influenced by religion. In countries where there is a high majority of one religion and the national law reflects this, such as Sharia law in Pakistan, it is much easier to determine the public morality, but in European countries with many religions it is more difficult. However, some countries have overcome the situation entirely, such as Thailand, where it is openly accepted that there are some who are members of both, or neither, gender, even to the extent of having gender-neutral toilets in public.Other rights in international law have affected those of varying sexual orientations, such as the right to marry. In the European Convention Article 12 says “Men and women of marriageable age have the right to marry and to found a family.” This can easily be read as marriage is only allowed between a man and a woman, and therefore only heterosexual. In 1950, when the convention was written, the idea of gay marriage was not even considered as a right, as in many European states homosexuality was still illegal. If the convention was rewritten today it should read that any human being has the right to marry and form a family with any other human being. I am confident that this would be accepted in Europe; however, as discussed above, the moral codes of other states and religions would still prohibit the marriage of two people of the same sex. (This begs the question that if human rights are not universal then how can they be called human rights?)There are defining cases that have reached the European Court which have shaped the way that Europe looks at issues of gender and sexual orientation. In the case of Goodwin v UK, the applicant said she was treated as male even after her sex change to being a female. The government had refused to give her legal recognition to her change of gender by not changing her birth certificate, which affected her in several ways, such as retirement age, insurance and at work. “The applicant claims that between 1990 and 1992 she was sexually harassed by colleagues at work. She attempted to pursue a case of sexual harassment in the Industrial Tribunal but claimed that she was unsuccessful because she was considered in law to be a man.” The Court gave no margin of appreciation to the state here because it considered that there was no harm to the public as a whole, and was a private and personal matter for the applicant. Therefore the applicant won her case and the UK government made changes to the way it dealt with sex changes.Some argue that it has gone too far. R. Sandland[1] complained that the Goodwin case was homophobic because she wanted to marry a man but she was regarded as a man by law and therefore the marriage was forbidden at the time as being homosexual. The applicant wanted to marry a man as a part of the recognition of her new gender as a woman, Sandman said this went against equal marriage rights for homosexuals.As I have said, international law is reluctant to change because it cannot account for every moral opinion in the world. The Yogyakarta Principles[2] help to define and clarify human rights in reference to sexual orientation, however, they are not legally binding and do not create new or specific rights for individuals, but draw attention to how the usual human rights might apply or may not be being applied to individuals. This is an important step forward in sexuality and gender rights, especially as they don’t overshadow the normal human rights and imply that other orientations need separate rights, we are all human after all.
[1] R. Sandland, ‘Crossing and Not Crossing: Gender, Sexuality and Melancholy in the European Court of Human Rights’ (2003) 11 Feminist Legal Studies 191.
[2] http://www.yogyakartaprinciples.org/principles_en.htm
