God v. gays? The rights of sexual minorities in international law as seen through the doomed existence of the Brazilian resolution.

• Author: Garvey, Timothy
• Position: UN Human Rights Commission's 2003 Resolution on Human Rights and Sexual Orientation

INTRODUCTION

"We hold these truths to he self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." (1) For more than two hundred years, this sweeping statement from the United States Declaration of Independence has provided the starting point for conceptions of human rights. While radical at the time of the Declaration's signing, the notion "that all men are created equal" (2) is now a fundamental concept of human rights embraced by the international community.

Following the barbarous human rights violations perpetrated during World War II, the United Nations (UN) prepared its own declaration embracing this notion of equality. Ratified in 1948, the Universal Declaration of Human Rights (UDHR) states:

All human beings are born free and equal in dignity and rights.... Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. (3) Almost universally since the writing of the UDHR, international human fights documents have been routinely imbued with a spirit of equality and justice for all people. In fact, since the dawn of the twenty-first century, most of the world's recently-formed or recently-amended constitutions include language expressly stating just that. (4) But equality in form and equality in substance appear to be two different things.

Throughout the world, numerous groups are routinely denied the equality supposedly assured to them under their state constitutions or various international documents, such as the UDHR. One group consistently denied the right of equality is a group that international human rights scholar and professor Jack Donnelly refers to as "sexual minorities." (5) This term, as used by Professor Donnelly, includes not only those typically associated with sexual orientation issues--persons who are lesbian, gay, bisexual, and/or transgendered (LGBT) (6)--but it is also meant to include "any group (previously, now, or in the future) stigmatized or despised as a result of sexual orientation, identity, or behavior." (7) According to Professor Donnelly, "[i]n almost all countries, sexual minorities suffer under substantial civil disabilities." (8) While the most extreme violation, the imposition of the death penalty, is mostly limited to Islamic states, (9) discrimination against sexual minorities manifests itself in numerous other ways throughout the world.

To be sure, within the past two decades, the international community has increasingly recognized the rights of sexual minorities. However, sexual minorities are still subject to innumerable injustices in a significant portion of the world. Even when excluding the nearly universal animus toward same-sex marriage, (10) sexual minorities are subject to "persistent human rights violations" (11) that range from death and torture, (12) to inequitable access regarding housing and education, (13) to the forced imposition of attaining heterosexual norms, (14) and "pressure to remain silent and invisible." (15) Laws criminalizing sodomy and other homosexual acts still exist in nearly eighty countries. (16) In fact, it was not until 2003 that the Supreme Court of the United States of America struck down sodomy laws for violating notions of liberty and equality. (17) Before that decision, many states in the U.S., with the consent of the U.S. Supreme Court, criminalized the act of adult males engaging in consensual sodomy in the privacy of their own homes. (18)

Given this list of inequalities, it is impossible to deny the fact that sexual minorities are not granted substantive equality--even in countries that purport to guarantee such equality. In an attempt to combat these continuing injustices suffered by sexual minorities, Brazil introduced a resolution during the 2003 Session of the U.N. Commission on Human Rights (the Commission). The Resolution on Human Rights and Sexual Orientation (the Brazilian Resolution) simply sought to acknowledge the occurrence of human rights violations due to the sexual orientation of the victim and to reaffirm that the principles of the International Bill of Human Rights (IBHR) apply to all individuals including sexual minorities. (19) Unfortunately, for reasons detailed below, the Brazilian Resolution never even made it to a vote before the Commission.

This paper explores the story of the Brazilian Resolution. Part I discusses the Brazilian Resolution's history. In so doing, it examines prior attempts to legislate the rights of sexual minorities, as well as prior attempts to adjudicate such rights within international law. Part I also discusses how those prior attempts to create a body of law regarding sexual orientation presented an inherent problem in Brazil's presentation of the Brazilian Resolution and discusses how those problems materialized once Brazil introduced it to the Commission.

In preventing the Commission from voting on the Brazilian Resolution, those who so vehemently opposed it presented three main arguments against its introduction. First, they argued that issues of gender and sexuality do not fall within the concern of international human rights. (20) Second, they argued that the term "sexual orientation" is not adequately defined in international law. (21) Finally, they argued that religious law prevents them from accepting a notion of equality for sexual minorities. (22)

Part II of this paper examines and subsequently dismisses each of these arguments. It explains why, despite arguments to the contrary, issues of gender and sexuality fall squarely within the concern of international human rights law. It also counters the second argument by proving that the term "sexual orientation" is clearly defined in international law. It then takes a step back and examines the issue from a broader perspective--looking at the role of religious law within the context of international law. In accepting the third argument as true--that religious law prevents them from ever accepting a notion of equality for sexual minorities--the third subsection of part II explains how such an argument necessarily denies citizens of their right to freedom of religion, thereby invalidating that argument as well.

Finally, Part III briefly discusses events subsequent to the Brazilian Resolution's demise. Although the Brazilian Resolution failed to make it to a vote before the Commission, its existence was not in vain. The mere introduction of the Brazilian Resolution considerably raised the concern of human rights for sexual minorities within the international sphere. Since 2003, international organizations, acting both within and outwith the UN, have actively pursued the acknowledgment and rectification of human rights violations due to the sexual orientation of the victim. Both non-governmental organizations (NGOs) and inter-governmental organizations (IGOs) joined these efforts with the motivatation of forcing states to recognize that the spirit and the plain language of the UDHR is meant to do what it says: ensure "[e]veryone is entitled to all the rights and freedoms set forth in [the] Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion." (23) Accordingly, Part III discusses a few of these advancements made in the wake of the Brazilian Resolution.

1. THE BRAZILIAN RESOLUTION ON HUMAN RIGHTS & SEXUAL ORIENTATION

   What is commonly referred to as the Brazilian Resolution is an international document officially titled The Brazilian Resolution on Human Rights & Sexual Orientation. (24) Brazil presented the Resolution during the 59th Session of the U.N. Commission on Human Rights (Commission) on April 17, 2003. (25) The purpose of the Brazilian Resolution was the promotion and protection of human rights for sexual minorities. (26)

   The Brazilian Resolution did not seek to establish any new rights for sexual minorities. By its plain text, it merely sought to reaffirm (as applied to sexual minorities) rights already granted to all persons in documents such as the Universal Declaration of Human Rights (UDHR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR), the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT),; and the Convention on the Rights of the Child (CRC). (27)

   Based upon the rights already established in the aforementioned documents, the Brazilian Resolution "[e]xpress[ed] deep concern at the occurrence of violations of human rights in the world against persons based on their sexual orientation," (28) and it "[s]tress[ed] that human rights and fundamental freedoms are the birthright of all human beings ... and ... should not be hindered in any way on the grounds of sexual orientation." (29) It also "[c]all[ed] upon States to promote and protect the human rights of all persons regardless of their sexual orientation." (30) It further "[r]equest[ed] the United Nations High Commissioner for Human Rights to pay due attention to the violation of human rights on the grounds of sexual orientation." (31)

   1. The History of the Brazilian Resolution

      The Brazilian Resolution's history is rather minor-mostly because Brazil gave no advance warning that it was going to propose such a resolution and introduced it during the final days of the 2003 Session. (32) However novel the Brazilian Resolution may have seemed at the time of its introduction, it was not the first attempt by a UN member state to bring issues concerning sexual...