A/HRC/19/41
II. Applicable international standards and obligations
A.
Universality, equality and non-discrimination
5.
The application of international human rights law is guided by the principles of
universality and non-discrimination enshrined in article 1 of the Universal Declaration of
Human Rights, which states that “all human beings are born free and equal in dignity and
rights”. All people, including lesbian, gay, bisexual and transgender (LGBT)2 persons, are
entitled to enjoy the protections provided for by international human rights law, including
in respect of rights to life, security of person and privacy, the right to be free from torture,
arbitrary arrest and detention, the right to be free from discrimination and the right to
freedom of expression, association and peaceful assembly. The Vienna Declaration and
Programme of Action confirms that, “while the significance of national and regional
particularities and various historical, cultural and religious backgrounds must be borne in
mind, it is the duty of States, regardless of their political, economic and cultural systems, to
promote and protect all human rights and fundamental freedoms.” 3
6.
Non-discrimination is a core human rights principle embodied in the Charter of the
United Nations, the Universal Declaration of Human Rights and core human rights treaties.
Non-discrimination clauses in international instruments typically require that the rights set
forth be made available to everyone without discrimination, and States ensure that their
laws, policies and programmes are not discriminatory in impact. For example, under article
2 of the International Covenant on Civil and Political Rights, each State party to the
Covenant undertakes to respect and to ensure to all individuals within its territory and
subject to its jurisdiction the rights recognized in the Covenant, without distinction of any
kind, such as race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.
7.
The specific grounds of discrimination referred to in the International Covenant on
Civil and Political Rights and other human rights treaties are not exhaustive. The drafters
intentionally left the grounds of discrimination open by using the phrase “other status”.
Sexual orientation and gender identity, like disability, age and health status, are not
explicitly mentioned among the grounds listed in the International Covenant on Civil and
Political Rights or the International Covenant on Economic, Social and Cultural Rights. In
1994, in the case of Toonen v. Australia, the Human Rights Committee held that States are
obligated to protect individuals from discrimination on the basis of their sexual orientation.4
This position is reflected in later decisions of the Committee, 5 and in general comments of
the Committee on Economic, Social and Cultural Rights, the Committee on the Rights of
the Child, the Committee against Torture and the Committee on the Elimination of
Discrimination against Women.6 In its general comment no. 20, for example, the
2
3
4
5
6
4
The terms lesbian, gay and bisexual and transgender are used throughout the report, but often
abbreviated to LGBT. These terms are used to refer to same-sex behaviour, identities or relationships
and non-binary gender identities. In several places in the text, discrimination against intersex persons
is also addressed.
A/CONF.157/23, para. 5.
Toonen v. Australia, communication No. 488/1992 (CCPR/C/50/D/488/1992).
See, for example, Young v. Australia, communication No. 941/2000 (CCPR/C/78/D/941/2000),
para. 10.4; X v. Colombia, communication no. 1361/2005 (CCPR/C/89/D/1361/2005), para. 9; and
concluding observations on Mexico (CCPR/C/MEX/CO/5), para. 21, and Uzbekistan
(CCPR/C/UZB/CO/3), para. 22.
See Committee on Economic, Social and Cultural Rights, general comment No. 20 (E/C.12/GC/20),
para. 32; Committee on the Rights of the Child, general comment No. 13 (CRC/C/GC/13), paras. 60