A Critical Lens on the Protection of Sexual and Gender Minorities under International Human Rights Law

[Daniel Ó Cluanaigh is a researcher and consultant in international human rights law, non‑profit strategy, and protection of human rights defenders.]

Notwithstanding the ubiquity of criminalisation and violence against sexual and gender minorities (SGM) across the world, international human rights law has been notoriously tardy in getting to grips with it. Indeed, to this day, international human rights fora are the site of bellicose resistance to the recognition of the basic human rights of SGM, and there remains no international human rights treaty for their protection.

In the last 30 years, however, a significant body of jurisprudence has emerged relating to violence and discrimination against SGM within existing international and regional human rights jurisdictions. This jurisprudence is worthy of a thorough interrogation in order to understand the underlying assumptions which guide it and, thus, its potential for effectively addressing violence against SGM.

The author recently carried out a study of the jurisprudence under the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights (ECHR) and the American Convention on Human Rights (ACHR) with a view to understanding the theories of gender which underlie it along with the extant obligations which have emerged, and then analysing these normatively through the lens of Queer (Legal) Theory. This post summarises some of the key conclusions of that study.

A Queer Eye on Anti-Queer Violence

To begin with, Queer Theory (QT) offers very useful tools for understanding the nature of violence against SGM. Chief among these, I contend, are the notions of gender performativity and intersectionality.

A focus on performativity enables insight into the nature of violence against SGM in two important ways. First, varying gender ‘performances’ can determine levels of vulnerability to violence: research in this area indicates that those most likely to be perceived as ‘Queer’ are more likely to be targeted – regardless, indeed, of their actual sexual preferences or gender identity. Violence against SGM is thus a form of gender-based violence (GBV). Second, a performative lens allows us to see violence against SGM as a performance itself: men in particular may performatively engage in violence against people perceived as Queer in order to serve the inter-related ends of negating, denigrating, and distancing themselves from ‘Queerness’.

Further, a QT perspective invites an intersectional approach to violence against SGM, mindful of the entanglements between the historical construct of sexuality and other such constructs which function to differentially value different lives, such as racialisation, age, socio-economic class, and (dis)ability. A thorough account of violence against SGM must recognise the particular risks faced by those placed in positions of intersectional marginalisation, as reflected inter alia in the (sometimes wildly) disproportionate representation of Queer people in carceral institutions – wherein some of the most egregious violence is visited upon them — and violence to which transgender BIPOC, sex workers and migrants are subjected.

To what extent, then, does the emerging corpus iuris reckon with this framework?

Emerging Doctrines under the ICCPR, ACHR and ECHR

Gender-based violence (GBV) is, of course, not new to IHRL. Over the past 30 years in particular, reflecting the intensive advocacy efforts of feminist movements, the Committee on the Elimination of Discrimination Against Women (CEDAW) and successive Special Rapporteurs on Violence Against Women have reckoned thoroughly with gender-based violence against women (GBVAW). In doing so, furthermore, they have contributed massively to the elaboration of states’ positive due diligence obligations, going beyond the individual and addressing the systemic level.

Notwithstanding its potential, however, the approach of the CEDAW Committee has been subjected to critique for its ontological dedication to a male-female gender binary rooted in biological sex characteristics, which are taken as a bedrock for the social construction of gender identities. Given this, SGM whose identities or biological characteristics do not conform to womanhood defined in this way, are not assured of protection under this body of international law as things stand. An alternative, then, is offered by treaties which are not limited to a focus on women. Let us consider three of them – the ICCPR, the ECHR and the ACHR  – briefly in turn.

(a) The ICCPR

Given the broad ratification of the ICCPR, the jurisprudence of the Human Rights Committee (HRCtee) has great potential to address violence against SGM globally. Through its Concluding Observations, the HRCtee has begun to establish a doctrine of state obligations related to the human rights of SGM and their protection against violence. An analysis of its 42 Concluding Observations (COs) published between 2018 and 2021 reveals that issues relating to violence or broader discrimination against SGM was raised in 41 of them, 26 of which considered violence specifically.

In its COs, the HRCtee treats violence against ‘lesbian, gay, bisexual, transgender’ and (occasionally) ‘intersex persons’ separately from GBVAW. Its approach is more descriptive than analytical, and tends towards enumerating specific reported instances or patterns of violence. It has noted that those perceived of being Queer are at risk, and highlighted discriminatory attitudes, legal frameworks, and intersectional discrimination as root causes, but it has not elaborated on their relationship to gender norms more broadly.

In regard to obligations, the HRCtee has insisted on an obligation to effectively investigate, prosecute, and punish acts of violence against SGM and for gender identity to be considered a protected characteristic, thereby facilitating consideration of such violence as a ‘hate crime’. However, it has also pointed to obligations of a more systemic nature in addressing violence against SGM. These include decriminalisation of consensual homosexual acts and minority gender expressions such as ‘crossdressing’, as well as the repeal of discriminatory laws in this sense in general; providing legal recognition for same-sex couples; facilitating self-identified gender identity recognition; and modifying the prevalent societal attitudes towards ‘LGBTI people,’ although the scope of the obligation and concrete actions it implies can vary significantly from one occasion to the next.

Keeping in mind the curt nature of COs, though, it is perhaps unhelpful to read too much into them. Potential pathways for the further development of the HRCtee’s jurisprudence can be seen in recent decisions of the European Court of Human Rights (ECtHR) and Inter-American Court of Human Rights (IACtHR), as I will outline below.

(b) The ECHR

The European Court has thus far separated violence against SGM from GBV as such. For the ECtHR, neither sexual orientation nor transphobic discrimination are considered under the prohibition of sex-based discrimination per Article 14 ECHR, but rather as covered under the same Article’s prohibition of discrimination under ‘other status’. The Europpean Court’s approach to what it labels “transsexualism” has evolved, however, to a point where it no longer grants a determinative emphasis to surgical gender transitions in recognising the self-identified gender of trans persons, suggesting the potential for moving towards a performative understanding of gender.

In recent years, the ECtHR has issued a series of judgments in cases relating to instances of violence against SGM, including Sabalić v Croatia, Beizaras and Levickas v Lithuania, Association Accept and Others v Romania, and Identoba and Others v Georgia. It has however refrained from expounding on the relationship of hatred or bias against SGM to broader societal gender norms, or the nationalist, religious, or cultural discourses employed by the violent actors in the cases in question. Rather, its focus has been on the impact of the ‘bias motive’ on how survivors experience violence: this motive is treated as an aggravating factor which engenders ‘intense fear and anxiety’ among survivors, thereby facilitating the applicability of Article 3 ECHR.

These cases have afforded the ECtHR the opportunity to elaborate upon its due diligence doctrine, where a particular emphasis on the obligation to prevent violence in cases where the state knew or should have known of the existence of a threat can be observed, as well as obligations with respect to investigation, prosecution, and punishment of the crime. These obligations relate in toto to the criminal justice apparatus: law enforcement officials (LEOs) are obliged to intervene effectively to protect individuals from homophobic violence, including verbal assault and bullying. Given prima facie indications of the possible existence of bias as a motive of violence, investigations must direct themselves toward establishing whether such a motive was present, and the ECtHR has also given weight to the importance of criminal punishment as a deterrent of violence against SGM. Failure to take ‘hate motives’ into account in determining punishments, indeed, can for the ECtHR amount to a ‘fundamental defect’ in domestic criminal proceedings. However, in keeping with its strong subsidiarity, the ECtHR’s doctrine thus far does not speak to systemic due diligence obligations to address the gender norms which drive the acts of homophobic and transphobic violence in question.

(c) The ACHR

The approach of the IACtHR, as developed from its Advisory Opinion OC 24-17 and the recent cases of Azul Rojas Marín v Peruand Vicky Hernandez et al v Honduras, differs in significant ways from that of the ECtHR. Factors of a more structural nature – such as the IACtHR’s vastly greater willingness to specify elaborate state obligations – certainly play a role here. However, the IACtHR’s jurisprudence appears to build on an epistemological foundation which much more closely approximates a performative understanding of gender than either of the other two bodies. Most notable in this regard is the expansion of protection under Article 1(1) ACHR to the category of gender expression (as opposed to identity or sexual orientation) and its clarification in Hernandez that the deceased applicant – a trans woman sex worker lacking recognition of her gender identity from the State – was indeed a woman for the purposes of the application of the Convention of Belém do Pará and a victim of intersectional discrimination.

Building logically on this theory of gender, the IACtHR has clarified that prejudicial violence against SGM is based on the perceived sexual orientation, gender identity, or expression of the victim(s) and that it is possible that these grounds overlap. It has further highlighted the performative nature of the violence itself, noting that it can aim to “punish those seen as defying gender norms” and thereby “communicate a message of exclusion or subordination” to the broader community.

Like its European counterpart, the IACtHR has drawn attention to the necessity for investigations to be carried out in a manner free from discriminatory prejudices and stereotypes among LEOs, but went much further in its recognition of the systemic drivers of such prejudicial attitudes. Noting that stigmatisation occurs “under the umbrella of culture, religion, and tradition”, the IACtHR insisted in its Advisory Opinion OC 24-17 that it is the obligation of states to “eradicate” the interpretations on which practices of stigmatisation are based, making particular note of the role of educational and pedagogical tools and methodology in this regard.

The facts of the Hernández case facilitated the IACtHR going further than the HRCtee in establishing a direct link between the state’s non-recognition of self-perceived gender identity of trans people and the numerous other human rights violations they suffer. Having noted the knock-on effect that this non-recognition had had on the flawed investigation into the victim’s murder, the IACtHR insisted in Hernandez on the state’s obligation to ensure to everyone “the possibility of registering and/or changing, rectifying or amending their name and the other essential components of their identity such as […] the reference to sex or gender, without interference by the public authorities or by third parties.”

The Limits of Carcerality, and Emerging Transformative Approaches

The approaches of the ECtHR and IACtHR offer differing paths which the HRCtee could follow if given the opportunity to elaborate its doctrine further, for example under its Optional Protocol. The separation of violence against SGM from broader questions of GBV carries with it a significant risk of exclusion of victims of anti-Queer violence who resist categorisation in these terms, such as ‘effeminate’ men or ‘masculine’ women, regardless of their sexual preferences or identities. Furthermore, the ECtHR’s focus on criminal-justice based obligations risks reproducing violence against SGM, particularly those who are intersectionally marginalised, given the historical role of police institutions in their repression, the widespread mistrust and fear of the police among victims of anti-Queer violence, and the prevalence of indifferent or hostile attitudes towards survivors in the few cases which are reported to them. By contrast, the IACtHR’s approach has explicitly recognised performativity and intersectionality as conditioning vulnerability to violence. Subsequently, locating societal norms squarely at the root of this violence frees the IACtHR to elaborate state obligations which take aim at these norms via institutions far beyond those concerned with criminal justice. This speaks to the possibility of a law which does not reproduce gender, racial and other violences via carceral and punitive mechanisms which themselves have proven central to the (re)production of these norms. It thus offers a glimpse of a law, I contend, which more fully recognises the inherent dignity of all human beings.