Kathmandu School of Law Review

P-ISSN : 2091-2110, E-ISSN : 2773-8159, DOI : 10.46985, Publisher : Kathmandu School of Law, Nepal
Annual flagship journal of Kathmandu School of Law, Nepal

Volume 6, Issue 1, April 2018
Student Articles

Sexual Orientation and Gender Identities: An Analysis of the Contemporary Laws and Literature

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  • Dhruba Yonzon
Dhruba Yonzon
Research Assistant, Kathmandu School of Law

Published 2018-04-30

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How to Cite

Yonzon, D. . (2018). Sexual Orientation and Gender Identities: An Analysis of the Contemporary Laws and Literature. Kathmandu School of Law Review, 6(1), 165–175. Retrieved from https://kslreview.org/index.php/kslr/article/view/951

Abstract

Where the expression of sexual orientation and gender identities is one of the fundamental human rights of an individual, there many people still face threat to their liberty and to their lives. Culture and religion play a vital role in establishing such detrimental ideologies; where, despite the understanding that every human being is born equal in freedom and in dignity, millions of queer people are deprived of their right, therefore being discriminated and at worst being persecuted with a simple reasoning that homosexuality is “unnatural” and is a “sin”. This paper will analyze the response of several nations in the Universal Periodic Review regarding their discriminatory law against the LGBT+ (it denotes – Lesbian, Gay, Bisexual, Transgender including other member of the queer community, hereafter "LGBT+") individual. Further, the paper will establish how media and literature have misled to the general public reinforcing ideas that being anything other than “straight” or “cis-gendered” is not “normal” and could be never, which allows States to opt for these inhumane treatments against the LBGT+ people without any recourse. At the end, the paper puts forth approaches to properly implement international human rights law in protection of LGBT+ individuals in law and in daily life.

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References

  1. Human Rights Campaign, ‘Sexual Orientation and Gender Identity Definitions’ available at https://www.hrc.org/resources/sexual-orientation-and-gender-identity-terminology-and-definitions accessed on 8 September 2018.
  2. See Oxford English Dictionary; it defines “male” as - of or denoting the sex that produces gametes, especially spermatozoa, with which a female may be fertilized or inseminated to produce offspring, whereas as defines “female” as - of or denoting the sex that can bear offspring or produce eggs, distinguished biologically by the production of gametes (ova) which can be fertilized by male gametes, available at https://en.oxforddictionaries.com/definition/male, accessed on 8 September 2018.
  3. Suzanne Romaine, Communicating Gender, Lawrence Erlbaum Associates, New Jersey, 1999, p. 41.
  4. Price Waterhouse v Hopkins, vol. 490, p. 228 (4th Cir 1989).
  5. A charm school (finishing school) is a school for young women that focuses on teaching social graces and upper-class-cultural rites as a preparation for entry into society.
  6. Smith v Liberty Mut. Ins. Co, F.2d, vol. 569, pp. 325, 327 (5th Cir 1978).
  7. United Nations Human Rights Council, Report of the Working Group on the Universal Periodic Review: Bangladesh, A/HRC/11/18, (3 March 2009) paras 41, 64.
  8. United Nations Human Rights Council, Report of the Working Group on the Universal Periodic Review: Bangladesh, Addendum, Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State, A/HRC/11/18/Add.1, 9 June 2009, para 27.
  9. Mary Ann Case, ‘Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence’, Yale Law Journal, 1995 available at https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?referer=https://www.ecosia.org/&httpsredir=1&article=2099&context=journal_articles, accessed on 23 January 2018.
  10. Ann P. Haas et al., ‘Suicide and Suicide Risk in Lesbian, Gay, Bisexual, and Transgender Populations: Review and Recommendations’, Journal of Homosexuality, 2010, pp. 10-51 available at https://www.tandfonline.com/doi/abs/10.1080/00918369.2011.534038, accessed on 23 January 2018.
  11. International Covenant on Civil and Political Rights, adopted on 16 December 1966, 999 UNTS 171, 23 March 1976, art 26.
  12. See generally: Toonen v Australia, 1994, United Nations Human Rights Committee, U.N. Doc CCPR/C/50/D/488/1992, Communication No. 488/1992.
  13. Young v Australia, 2003, United Nations Human Rights Committee, CCPR/C/78/D/941/2000, Communication No. 941/2000, para 10.4.
  14. Sunil Babu Pant et al., v Nepal Government et al., WN 917, 2064 (2007), cited at Supreme Court of Nepal, Some Landmark Decisions of Supreme Court of Nepal, Supreme Court of Nepal, Kathmandu, 2010, p. 387.
  15. Dudgeon v United Kingdom, App no 7525/76, ECtHR, 22 October 1981.
  16. The Penal Code Act (Cap.120), 1950, Uganda, s 145.
  17. Mukasa and Oyo v Attorney General (2008), High Court of Uganda (Uganda).
  18. Kasha Jacqueline, David Kato Kisule and Onziema Patience v Rolling Stone Ltd and Giles Muhame,(2010) High Court of Uganda (Uganda).
  19. The Anti Homosexuality Bill, 2009, Uganda, Bill No. 18.
  20. United Nations Human Rights Commission, Resolution on Sexual Orientation and Human Rights, E/CN.4/2003/L.92, 17 April 2003, 13 (annex III) available at http://www.iglhrc.org/sites/default/files/213-1.pdf, accessed on 23 January 2018.
  21. United Nations Human Rights Council, Norwegian joint statement on human rights violations based on sexual orientation and gender identity, 1 December 2006, available at https://uklgig.org.uk/docs/Norwegian_Joint_Statement-UNHRC_06.doc, accessed on 23 January 2018.
  22. United Nations General Assembly, Statement on Human Rights, Sexual Orientation and Gender Identity, G.A. Res. 2435, 18 December 2008, para 6.
  23. United Nations Human Rights Council, Resolution Human Rights, Sexual Orientation and Gender Identity A/HRC/RES/17/19, 14 July 2011.
  24. 'UN: Victory for LGBT Rights', 21 November 2016, Human Rights Watch, available at https://www.hrw.org/news/2016/11/21/un-victory-lgbt-rights, accessed on 13/9/2018.
  25. See generally: R.E. Howard Hassmann, ‘Universal Women’s Rights Since 1970: The Centrality of Autonomy and Agency’, vol. 10, Journal of Human Rights, 2011, p. 433.
  26. D. Littman, ‘Human Rights and Human Wrongs’, National Review, 2003 available at http://www.nationalreview.com/articles/205577/human-rightsand-human-wrongs/david-g-littman accessed on 21 January 2018.
  27. See website of the OIC – Member States (57 UN Member States) available at http://www.oicun.org/3/28/, accessed on 21 January 2018.
  28. The Resolution on Human Rights and Sexual Orientation (n 20), p. 13 (annex I).
  29. United Nations Economic and Social Council, Proposed Amendments by Saudi Arabia, Pakistan, Egypt, Libya and Malaysia, E/CN.4/2003/L. 106-110, (2003) p. 9.
  30. UNGA, Universal Declaration of Human Rights, GA Res 217A (III), UN Doc A/810, 10 December 1948, p. 71.
  31. United Nations, Report of Fourth World Conference on Women, A/CONF. 177/20, 17 October 1995.
  32. Convention on the Elimination of All Forms of Discrimination Against Women, adopted on 18 December 1979, 1249 U.N.T.S. 14, entered into force 3 September 1981, 193.
  33. Aengus Carroll, 'Acknowledging the SOGI Norm: The Politics of its Recognition in the HRC and the Politics for its Recognition Through the UPR', Upr-info.org, 2013 available at https://www.uprinfo.org/sites/default/files/generaldocument/pdf/carroll__acknowledging_the_sogi_norm_2013_0.pdf, accessed 10 June 2018.
  34. H. Lau, ‘Sexual Orientation: Testing the Universality of International Human Rights Law’, vol. 71, University of Chicago Law Review, p. 1689, 2004, p. 1689.
  35. Jack Donnelly, Universal Human Rights in Theory & Practice, 2nd edn., Cornell University Press, New York, 2003, p. 86.
  36. ‘Cameroon Archbishop Calls Same-Sex Marriage Crime Against Humanity’, 25 December 2012, Reutersavailable at https://www.reuters.com/article/us-cameroon-homosexuality/cameroon-archbishop-calls-same-sex-marriage-crime-against-humanity-idUSBRE8BO05O20121225, accessed on 21 January 2018.
  37. Eric O. Lembembe, ‘What Traditional African Homosexuality Learned from West”, Erasing 76 crimes, 8 May 2012 available at https://76crimes.com/2012/05/08/traditional-african-homosexuality-has-learned-from-west/, accessed on 21 January 2018.
  38. L.A. Rehof, Guide to the Travaux Préparatoires of the United Nations Convention on the Elimination of All Forms of Discrimination against Women, Martinus Nijhoff Publishers, Leiden, 1993, p. 60.
  39. Jack Donnelly (n 35).
  40. UNGA, Vienna Declaration and Programme of Action, A/CONF.157/23, 12 July 1993, para. 5.
  41. Ibid, para. 1. “Human rights and fundamental freedoms are the birthright of all human beings; their protection and promotion are the first responsibility of Governments”.
  42. Zimbabwe NGO Human Rights Forum v Zimbabwe, 15 May 2006, African Commission on Human and Peoples’ Rights, , Communication No. 245/2002, para 169:'Together with equality before the law and equal protection of the law, the principle of non-discrimination provided under Article 2 of the Charter provides the foundation for the enjoyment of all human rights'Juridical Condition and Rights of Undocumented Migrants, Advisory Opinion OC-18/03, Inter-American Court of Human Rights, 17 September 2003, para. 101: 'considers that the principle of equality before the law, equal protection before the law and nondiscrimination belongs to jus cogens, because the whole legalstructure of national and international public order rests on it and it is a fundamental principle that permeates all laws'.
  43. McCoskar and Nadan v State, 26 August 2005, High Court of Fiji (Fiji).
  44. J. Donnelly, ‘State Sovereignty and Human Rights’, working Paper no. 21, Human Rights and Human Welfare, 2004 available at https://www.du.edu/korbel/hrhw/workingpapers/2004/21-donnelly-2004.pdf, accessed on 21 January 2018.
  45. See Hugo Grotius (Richard Tuck ed), The Rights of War and Peace, Indianapolis Liberty Fund, Toronto, 2005, Chap. 40.1, 40.4; Thomas Hobbes, Leviathan, Oxford University Press, Oxford, 1998.
  46. L. Arbour, ‘The responsibility to protect as a duty of care in international law and practice’, vol. 34, Review of International Studies, 2008, p. 445.
  47. Anne Peters calls this the “humanising of sovereignty”, See A. Peters, ‘Humanity as the A and Ω of Sovereignty’, vol. 20(3), European Journal of International Law, p. 513, 2009, p. 533.
  48. E. R. McMahon, The Universal Periodic Review: A Work in Progress an Evaluation of the First Cycle of the New UPR Mechanism of the United Nations Human Rights Council, Friedrich-Ebert-Stiftung Publishers, Berlin, 2013, p.9.
  49. Henry McDonald, ‘Ireland Becomes First Country to Legalise Gay Marriage by Popular Vote’, The Guardian (May 2015) available at https://www.theguardian.com/world/2015/may/23/gay-marriage-ireland-yes-vote, accessed on 10 June 2018.
  50. Shannon Liao, 'China’s Microblogging Platform Weibo Reverses Its Decision To Ban All Gay Content After Online Protests’, The Verge April 2018, available at https://www.theverge.com/2018/4/16/17242282/china-sina-weibo-banned-gay-content-protests, accessed on 10 June 2018.
  51. ' Tabula Rasa | Philosophy', Encyclopedia Britannica available at https://www.britannica.com/topic/tabula-rasa, accessed on 10 June 2018: 'Tabula rasa, (Latin: “scraped tablet”—i.e., “clean slate”) in epistemology (theory of knowledge) and psychology, a supposed condition that empiricists attribute to the human mind before ideas have been imprinted on it by the reaction of the senses to the external world of objects'.
  52. 'Bury Your Gays', Tvtropes, available at http://tvtropes.org/pmwiki/pmwiki.php/Main/BuryYourGays, accessed on 23 January 2018: 'Often when gay characters just aren't allowed happy endings. Even if they do end up having some kind of relationship, at least one half of the couple has to die at the end. (Often the one who was more aggressive in pursuing a relationship, thus "perverting" the other one)'.
  53. ‘Autostraddle’s Ultimate Infographic Guide to Dead Lesbian Characters on TV’, Autostraddle, (March 2016) available at https://www.autostraddle.com/autostraddles-ultimate-infographic-guide-to-dead-lesbian-tv-characters-332920/, accessed 10 June 2018.
  54. Caroline Framke, 'Queer women have been killed on television for decades. Now the 100's fans are fighting back', 25 March 2016, Vox available at https://www.vox.com/2016/3/25/11302564/lesbian-deaths-television-trope, accessed on 23 January 2018.
  55. Kaur, Puspinder, ‘Queer Hindi Cinema: A Study on Understanding LGBT Identities’, vol. 3, International Journal for Innovative Research in Multidisciplinary Field, no. 3, 2008.
  56. Amber B. Raley & Jennifer L. Lucas, 'Stereotype or Success?', vol. 51,Journal of Homosexuality, No 2, 2008, pp. 19-38.
  57. JodieMedd (ed), The Cambridge Companion to Lesbian Literature, Cambridge University Press, Cambridge, 2015, p.161.
  58. Ann P. Haas (n 10).
  59. Schartel Dunn & Stephanie G.,‘Parasocial Interaction and Narrative Involvement as Predictors of Attitude Change', vol. 82, Western Journal of Communication, no. 1, 2017.
  60. E. L. Paluck, ‘What's in a norm? Sources and processes of norm change’, vol. 96(3), Journal of Personality and Social Psychology, 2009, pp. 594–600.
  61. G. M. Herek, ‘Can functions be measured? A new perspective on the functional approach to attitudes’, vol. 50, Social Psychology Quarterly, 1987, pp. 285–303.
  62. A. R. D’Augelli, ‘Coming out in community psychology: Personal narrative and disciplinary change’, vol. 31, American Journal of Community Psychology, 2003, pp. 343-354.
  63. Christi R. McGeorgeet al, ‘To Refer or Not to Refer: Exploring Family Therapists' Beliefs and Practices Related to the Referral of Lesbian, Gay, and Bisexual Clients’, vol. 42, Journal of Marital and Family Therapy, no. 3, 2015.
  64. The Preamble to the Yogyakarta Principles sets out a description of SOGI: Understanding ‘sexual orientation’ to refer to each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender; understanding ‘gender identity’ to refer to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms... .
  65. Michael O’Flaherty, 'Not Rights for Gays; Rights for All!', 2 October 2011, radio interview available at http://www.lawthink.co.uk/2011/10/not-rights-forgays-rights-for-all/, accessed on 21 January 2018.