A/HRC/19/41
which are enacted as forms of punishment for assumed or actual sexual orientation or
behaviour.130
F.
Denial of recognition of relationships and related access to State and
other benefits
68.
The Human Rights Committee has held that States are not required, under
international law, to allow same-sex couples to marry.131 Yet, the obligation to protect
individuals from discrimination on the basis of sexual orientation extends to ensuring that
unmarried same-sex couples are treated in the same way and entitled to the same benefits as
unmarried opposite-sex couples.132
69.
In some countries, the State provides benefits for married and unmarried
heterosexual couples but denies these benefits to unmarried homosexual couples. Examples
include pension entitlements, the ability to leave property to a surviving partner, the
opportunity to remain in public housing following a partner‟s death, or the chance to secure
residency for a foreign partner. Lack of official recognition of same-sex relationships and
absence of legal prohibition on discrimination can also result in same-sex partners being
discriminated against by private actors, including health-care providers and insurance
companies.
70.
The Human Rights Committee has welcomed measures to address discrimination in
this context. In its concluding observations on Ireland, the Committee urged the State party
to ensure that proposed legislation establishing civil partnerships not be “discriminatory of
non-traditional forms of partnership, including taxation and welfare benefits.”133
G.
Gender recognition and related issues
71.
In many countries, transgender persons are unable to obtain legal recognition of their
preferred gender, including a change in recorded sex and first name on State-issued identity
documents.134 As a result, they encounter many practical difficulties, including when
applying for employment, housing, bank credit or State benefits, or when travelling abroad.
72.
Regulations in countries that recognize changes in gender often require, implicitly or
explicitly, that applicants undergo sterilization surgery as a condition of recognition. Some
States also require that those seeking legal recognition of a change in gender be unmarried,
implying mandatory divorce in cases where the individual is married.
73.
The Human Rights Committee has expressed concern regarding lack of
arrangements for granting legal recognition of transgender people‟s identities. It has urged
States to recognize the right of transgender persons to change their gender by permitting the
issuance of new birth certificates and has noted with approval legislation facilitating legal
recognition of a change of gender.135
130
131
132
133
134
135
22
See A/HRC/16/44, paras. 23-24; E/CN.4/2002/106, para. 90-92; E/CN.4/2002/83, paras. 57 and 101102; and A/61/122/Add.1, paras. 57, 73, 84 and 151.
Joslin v. New Zealand (CCPR/C/75/D/902/1999), 10 IHRR 40 (2003).
Young v. Australia (CCPR/C/78/D/941/2000), para. 10.4.
CCPR/C/IRL/CO/3, para. 8.
Ibid. See the Committee‟s concluding observations on the United Kingdom of Great Britain and
Northern Ireland (CCPR/C/GBR/CO/6), para. 5. See also A/64/211, para. 48; and T. Hammarberg,
“Human rights and gender identity”, Council of Europe, Strasbourg, 2009, para. 3.2.1.
See CCPR/C/IRL/CO/3, para. 8, and CCPR/C/GBR/CO/6, para. 5.
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