Working paper prepared by Emmanuel Decaux

2. Gender discrimination

22. The same is true of the Convention on the Elimination of All Forms of Discrimination against Women. But that Convention fails to address all the issues related to discrimination “on the basis of sex” inasmuch as men may also be discriminated against, as demonstrated, for example, by the jurisprudence of the European Court of Human Rights and the Court of Justice of the European Communities in the area of gender equality. Furthermore, the reference to sex is more and more frequently interpreted as encompassing sexual orientation. As noted by the Human Rights Committee in the Toonen v. Australia case, “in its view, the reference to ‘sex’ in articles 2, paragraph 1, and 26 is to be taken as including sexual orientation” (CCPR/C/50/D/488/1992, para. 8.7). The Committee on Economic, Social and Cultural Rights also included sexual orientation in its interpretation of article 2, paragraph 2, of the International Covenant on Economic, Social and Cultural Rights but explicitly included it, in addition, in its general comment No. 14 of 2000 on the right to health (E/C.12/2000/4, para. 18).

4. Neglected categories of discrimination

25. Lastly, recent instruments may play an effective role in revealing gaps. (…)

The Bill of Rights in the South African Constitution of 1996 contains a particularly exhaustive article 9 on equality: “The State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.” The European Union’s Charter of Fundamental Rights refers to “genetic features” and “disability, age or sexual orientation” (art. 21).

Link to full text of the report: Working paper-non-discrimination ESC rights-2004-eng