Report of the Special Rapporteur on the right to health, Anand Grover, A/HRC/14/20, 27 April 2010
1. In the present report, the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health considers several issues relating to the criminalization of private, consensual sexual behaviour between adults, and the impact of such criminalization on the enjoyment of the right to health. The law concerning health practices and behaviours can protect the health of individuals or create barriers to effective health interventions and outcomes. The Special Rapporteur considers criminalization to include not only laws that are enacted to render certain conduct deserving of criminal punishment, but additionally, the use of pre-existing criminal laws against certain individuals or communities on the basis of certain characteristics (such as sexuality or occupation).
2. The Special Rapporteur believes that the criminalization of private, consensual sexual interaction between adults represents a significant impediment to the realization of the right to health of all persons, particularly those against whom the law is directed. He emphasizes that all human rights are universal, indivisible, interdependent and interrelated. The criminalization of private, consensual sexual conduct between adults infringes on not only the right to health, but also various other human rights, including the rights to privacy and equality. In turn, infringement of these human rights impacts indirectly on the right to health.
II. SAME-SEX CONDUCT, SEXUAL ORIENTATION AND GENDER IDENTITY
6. Criminal laws concerning consensual same-sex conduct, sexual orientation and gender identity often infringe on various human rights, including the right to health. These laws are generally inherently discriminatory and, as such, breach the requirements of a right-to-health approach, which requires equality in access for all people. The health related impact of discrimination based on sexual conduct and orientation is far-reaching, and prevents affected individuals from gaining access to other economic, social and cultural rights. In turn, the infringement of other human rights impacts on the realization of the right to health, such as by impeding access to employment or housing.
7. These infringements ultimately undermine the inherent dignity of persons upon which the international human rights framework is based. Denying the dignity of individuals through the criminalization of certain conducts substantially diminishes their self-worth and, in doing so, prevents the realization of the right to health. The decriminalization of such conduct is necessary to address the disempowerment that affected individuals and communities face, and to enable full realization of the right to health.
A. Criminalization of same-sex conduct, sexual orientation and gender identity: background
8. Various criminal laws exist worldwide that make it an offence for individuals to engage in same-sex conduct, or penalize individuals for their sexual orientation or gender identity. For example, consensual same-sex conduct is a criminal offence in about 80 countries. Other laws also indirectly prohibit or suppress same-sex conduct, such as antidebauchery statutes and prohibitions on sex work. Many States also regulate extra-marital sexual conduct through criminal or financial sanctions, which affects individuals who identify as heterosexual but intermittently engage in same-sex conduct. These laws also have a significant impact on individuals engaging in sexual conduct with members of the opposite sex outside of marriage, particularly women, although this is outside the scope of this report. These laws represent an infringement of the right to health as outlined in article 12 of the International Covenant on Economic, Social and Cultural Rights. Article 2, paragraph 2, of the Covenant requires that State parties undertake to guarantee that the rights within the Covenant, including the right to health, are exercised without discrimination of any kind, including on the basis of “other status”. This is further developed in general comment No. 14 (2000) of the Committee on Economic, Social and Cultural Rights, which notes that the Covenant proscribes any discrimination in access to health care and underlying determinants of health, including on the grounds of sexual orientation (para. 18). The Committee also recognizes gender identity as a prohibited ground of discrimination.10 In its general comment No. 4 (2003), the Committee on the Rights of the Child also confirmed that “other status” extends to sexual orientation (para. 6). Such criminalization impedes the right to health, not only through discrimination, but by denying equal access to health services, as will be demonstrated.
10. Sexual orientation is defined as “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”. Gender identity refers 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 … and other expressions of gender.
76. The Special Rapporteur calls upon States:
- To take immediate steps to decriminalize consensual same-sex conduct and to repeal discriminatory laws relating to sexual orientation and gender identity, as well as to implement appropriate awareness-raising interventions on the rights of affected individuals.
Link to the extract of the report: Report-SR Health-extract-2010-eng
Link to full text of the report: http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.20.pdf