[Scott Robinson is a recent J.D. graduate from the University of Western Ontario, Faculty of Law]
In at least
seventy-six states it remains illegal to engage in same-sex conduct; in at least five of these, it still attracts the death penalty. It is no secret that, at the hands of both state actors and private individuals, LGBTQ persons around the world continue to face widespread and often systematic
discrimination on account of their sexual orientation and gender identity. Further, nowhere within international human rights law is sexual orientation or gender identity explicitly codified as prohibited grounds for discrimination. While “
great weight” should be ascribed to the views of human rights treaty bodies that have read-in protection over the years, such views remain but non-binding recommendations directed at states, tied to existing treaties silent on LGBTQ rights. Indeed, it is clear that international law is utterly failing to address “
one of the great neglected human rights challenges of our time”.
A robust, comprehensive LGBTQ
treaty is needed—perhaps a “Convention on the Elimination of All Forms of Discrimination against LGBTQ Persons”. Treaty-precedents like the
CERD and
CEDAW (especially when viewed in light of more recent human rights treaties), demonstrate that an LGBTQ non-discrimination treaty is possible in form. Documents like the
Yogyakarta Principles, certainly demonstrate that a pointed LGBTQ treaty is possible in substance. The real question, however, is how to achieve a treaty anytime in the near future, given the fierce resistance to LGBTQ rights witnessed to date, particularly within the UN system. There exists no General Assembly Resolution or Declaration on LBGTQ persons, nor is one likely any time soon (any purported attempts at such having essentially been abandoned in the past). Perhaps more formidably, actors such as the Holy See and Islamic and African blocs of states have balked at the very notion of LGBTQ rights at every possible opportunity at the UN—events at the Human Rights Council as
recently as a few weeks ago stand as a testament to this continued opposition.
At this point in time, it seems as though the only viable option for achieving an LGBTQ treaty is by engaging in what has become known as the “Ottawa Process” for treaty negotiation and adoption.
