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Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, E/CN.4/2004/49, February 16, 2004

Vulnerability, discrimination and stigma

32. International human rights law proscribes discrimination in access to health care and the underlying determinants of health, and to the means for their procurement, on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS), sexual orientation, and civil, political, social or other status that has the intention or effect of nullifying or impairing the equal enjoyment or exercise of the right to health (ibid., paras. 26 and 59-68).

38.  As  has  been noted, discrimination on  the grounds  of  sexual orientation is impermissible under international human rights law. The legal prohibition of same- sex relations in many countries, in conjunction with a widespread lack of support or protection for sexual minorities against violence and discrimination, impedes the enjoyment of sexual and reproductive health by many people with lesbian, gay, bisexual and transgender identities or conduct. Additionally, the Special Rapporteur recalls that the Human Rights Committee, in Toonen v. Australia, observed: “Criminalization of homosexual activity would appear to run counter to the implementation of effective education programmes in respect of HIV/AIDS prevention.”

Concluding remarks: Cairo

54. Fourth, sexuality is a characteristic of all human beings. It is a fundamental aspect of an individual’s identity. It helps to define who a person is. The Special Rapporteur notes the abiding principles that have shaped international human rights law since 1945, including privacy, equality, and the integrity, autonomy, dignity and well-being of the individual. The Special Rapporteur also notes the points made in paragraph 51 above, all of which have been widely accepted by the international community. In these circumstances, the Special Rapporteur has no doubt that the correct understanding of fundamental human rights principles, as well as existing human rights norms, leads ineluctably to the recognition of sexual rights as human rights.

Sexual rights include the right of all persons to express their sexual orientation, with due regard for the well-being and rights of others, without fear of persecution, denial of liberty or social interference.

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