Chapter two: Universality, Equality and Non-Discrimination

En español

The cases presented here deal with universality, equality and non-discrimination. These are foundational principles of human rights law. The cases selected here were chosen for their explicit treatment of these subjects.

The cases presented here deal with universality, equality and non-discrimination. These are foundational principles of human rights law. Article 1 of the Universal Declaration of Human Rights provides: “All human beings are born free and equal in dignity and rights.” The Preamble of the ICCPR recognises that “the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”. Every regional human rights instruments also refers to the universality of rights. The Vienna Declaration and Programme of Action, adopted unanimously by all States at the World Conference on Human Rights in 1993, states: “Human rights and fundamental freedoms are the birthright of all human beings; their protection and promotion is the first responsibility of Governments”. What this should mean is that every human being, regardless of sexual orientation or gender identity, is entitled to the full enjoyment of all human rights.

The intertwined principles of equality and non-discrimination are likewise essential for the effective protection of human rights, as both national constitutions and universal and regional human rights instruments recognise. The African Commission on Human and Peoples’ Rights has observed: “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”.^[1] The Inter-American Court has held that it “considers that the principle of equality before the law, equal protection before the law and non-discrimination belongs to jus cogens, because the whole legal structure of national and international public order rests on it and it is a fundamental principle that permeates all laws.”^[2]

In many ways, each chapter in the Casebook deals with universality, equality, and non-discrimination. The cases selected here were chosen for their explicit treatment of these subjects. The two Ugandan cases are especially significant given their context. When Mukasa and Oyo was decided, in December 2008, Section 145 of the Penal Code already criminalised “carnal knowledge against the order of nature” with a maximum term of life imprisonment. Police violence and arrests were common. Mukasa and Oyo, a case of police ill-treatment, represents the explicit application of international human rights law. The court did not directly mention the sexual orientation or gender identity of the applicants. Rather, the court upheld the principle of the universality of all human rights in finding that Mukasa’s and Oyo’s constitutional and human rights had been violated by illegal search and seizure and subsequent physical abuse.

The second case, Kasha Jacqueline, David Kato, and Onziema Patience v. Rolling Stone, arose two years later, when circumstances had changed for the worse. In October 2009, MP David Bahati introduced the Anti-Homosexuality Bill. The bill included provisions imposing the death penalty for what it termed “aggravated homosexuality” and also prohibited all forms of advocacy and organising around LGBT issues. If enacted, it would have required people to report individuals for engaging in homosexual conduct. By the time Rolling Stone published its “Uganda’s Top Homos” story in October 2010, most public discourse was intensely homophobic. Threats and harassment had increased. Three LGBT activists from Sexual Minorities Uganda filed a lawsuit for violation of their constitutional rights and sought an injunction. In issuing it, the court emphasised that the case was about constitutional rights, not “homosexuality per se”. “The scope of section 145 is narrower than gayism generally. One has to commit an act prohibited under section 145 in order to be regarded a criminal.” Three weeks later, one of the applicants, David Kato, was dead, killed in his home by an assailant with a hammer. The editor of Rolling Stone, Giles Muhame, disavowed any responsibility. He stated: “We want the government to hang people who promote homosexuality, not for the public to attack them. We said they should be hanged, not stoned or attacked.”^[3]

The implicit defence in the first case, explicit in the second, was that LGBT individuals had fewer rights than others. Giles Muhame argued in court that, since the applicants had admitted to being homosexuals, they had not come to court with clean hands and should be denied relief. In both instances the courts responded by asserting the principle of universality: LGBT individuals in Uganda, despite extreme social ostracism and official discrimination, were still entitled to universal human rights guarantees.

The case of Sunil Babu Pant v. Government of Nepal, decided by the Supreme Court of Nepal in December 2007, is historic for its recognition of the rights of “people of the third gender”. Although the case also concerned redress for human rights violations based on sexual orientation, the Supreme Court devoted the majority of its opinion to the exclusion of metis (men who dress and identify as feminine) from almost all civic rights. The evidence presented showed that metis were targeted by police and others for their non-conforming gender expression and identity. Because metis were routinely denied citizenship cards, they did not have access to a range of entitlements and benefits that such cards conferred. This case was about citizenship in its most basic sense: metis were not recognised as citizens of Nepal. In ordering that metis be given citizenship cards that reflected their third gender and that protections against discrimination on the basis of gender identity and non-discrimination be enshrined in the new Constitution, the Supreme Court emphasised the universality of all human rights. As citizens of Nepal, people of the third gender were entitled to all rights protected by the Constitution and international law. It was the “responsibility of the State to create the appropriate environment and make legal provisions accordingly for the enjoyment of such rights”.

In the United States case of Romer v. Evans, the issue was not the universality of rights but the degree to which government had power to classify or differentiate between groups of people. The State law at issue (Amendment 2) described the class as one defined by “homosexual, lesbian or bisexual orientation, conduct, practices or relationships”. It then provided that this group of people was excluded from legal protection from acts of discrimination. Finding a violation of the Equal Protection Clause, the US Supreme Court held: “Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws.” In his dissent, Justice Scalia, relying on the Court’s decision in Bowers v. Hardwick that sodomy laws were constitutional, objected to the idea that a State could not classify based on a predisposition to engage in behavior that a State was legitimately and constitutionally entitled to criminalise. The majority focused on status and not potentially criminal sexual conduct. Nevertheless, the Supreme Court’s decision in Romer v. Evans was instrumental seven years later in Lawrence v. Texas, when it overruled Bowers v. Hardwick.

The cases from Canada and Trinidad go one step farther than Romer. In both cases the courts concluded that it was unconstitutional to exclude sexual orientation from non-discrimination laws. When Vriend was decided in 1998, the Supreme Court of Canada had already held sexual orientation” to be a comparable ground of discrimination for the purposes of section 15 (equality rights) of the Charter of Rights and Freedoms.^[4] In Vriend, the Supreme Court held that the legislature’s omission of sexual orientation from Alberta’s Individual Rights Protection Act was itself an infringement of Section 15. Although sexual orientation” might be read as neutral, in that it is shared by both heterosexuals and homosexuals, the Court addressed the requirements of substantive equality, observing that heterosexuals were not discriminated against on the basis of their sexual orientation.

In Suratt and Others v. Attorney General, the plaintiffs had charged that the government had failed to implement provisions of the Equal Opportunity Act (EOA). In defence, the government argued that the Act itself was unconstitutional, in part because it omitted “sexual orientation”. Section 3 provided explicitly that “sex does not include sexual preference or orientation”. The trial court upheld this exclusion but the Court of Appeal reversed, finding the Act unconstitutional because the exclusion was unjustified. The Court of Appeal emphasised that “sexual orientation” could not provide a reasonable basis for distinction and, relying on reasoning akin to the Supreme Court of Canada in Egan v. Canada, found that this ground was analogous to sex. The court pointed out that discriminating against an individual purely on the basis that he or she had been convicted of a criminal act would itself be unconstitutional. The court stated that it would be a: “[d]ouble punishment to deny a person access to the things enjoyed by other members of the community in addition to the severe criminal sanctions that his behaviour would attract. The EOA is invidious because in respect of criminal behaviour, it is generally accepted that once one pays one’s debt to society, it is over.”

In 2007 the Privy Council overturned the Court of Appeal, ruling that the Equal Opportunity Act was not inconsistent with the Constitution of Trinidad & Tobago. However, the Privy Council’s decision dealt not with the exclusion of sexual orientation but the other alleged grounds of invalidity.^[5]

A theme that runs through all of these cases is the conflation or distinction between status and conduct. The European Court and the UN Human Rights Committee concluded that the criminalization of same-sex sexual conduct violated the right to privacy long before they dealt directly with the question of the right to be protected against discrimination based on sexual orientation; in other words, they addressed sexual activity before sexual identity. Thus, in Dudgeon, the Court found in 1981 that Northern Ireland’s sodomy laws violated rights under Article 8 of the European Convention, but did not decide until 1999 that a difference in treatment based on sexual orientation violated the applicant’s rights under Article 14.^[6] The UN Rights Committee decided Toonen in 1994 and observed in passing that “sexual orientation” was included in Article 26 of the ICCPR, but only in 2003 did the Committee explain that individuals had a more general right to be guaranteed equal protection under the laws with respect to sexual orientation.^[7]

This progression from decriminalization to non-discrimination, with respect to sexual orientation, is not preordained. With the exception of Canada, all the States included here criminalised consensual same-sex sexual conduct at the time these decisions were handed down. (In Nepal, “unnatural sex” was criminalised but was not defined.) Despite the existence of these criminal laws, the courts nonetheless held that classifications based on sexual orientation were not rational. The characteristic at issue – a same-sex sexual orientation – had undergone a transformation. In Justice Scalia’s words, it changed from being a description of a “self-avowed tendency” to engage in prohibited conduct, to being a marker of a class. In essence, these courts affirmed that this group characteristic could not be the basis for difference of treatment.