REPRODUCTIVE LAWS FOR THE 21ST CENTURY PAPERS
CENTER FOR WOMEN POLICY STUDIES
May 2012
Sexual Rights as Human Rights: Informing a Domestic Reproductive Justice Agenda
by:
Juhu Thukral, The Opportunity Agenda; Sara Koerber, Harvard Law School Class of 2013; and
Annie J. Wang, The Opportunity Agenda (Special thanks to Ashley Frye, Columbia Law School
Class of 2012, for her help with research.)
The research cited in this document is current as of January 2012.
Introduction
There is currently a serious assault on reproductive justice and rights in the United States. A
renewed commitment to a human rights-based approach to reproductive justice can greatly benefit
Americans from all walks of life, including women of color and low-income women. This paper sets
forth the ways in which embracing a sexual rights framework can enhance opportunity and human
rights for people of all genders in the United States.
Sexual rights are a crucial piece of the human rights framework and an important basis for
moving a domestic reproductive justice agenda in the United States. Sexual rights refer to the human
rights associated with sexuality in all its aspects. Under current international law, sexual rights can be
precariously grounded in preexisting human rights treaties. However, it is expected that sexual rights
will be explicitly addressed in future international legal documents.1, 2 Some advocates are adamant
that sexual rights are obviously implied in existing human rights law,3 while others openly purport to
extend human rights protection in unprecedented ways.4 Section I gives a brief overview of existing
and impending human/sexual rights documents. Section II offers a discussion of the successes and
challenges of these initiatives, with some possible explanations for why the existing human rights
framework does not adequately capture the amorphous nature of sexual status, conduct, or
orientation. Section III compares the international standards against current efforts around sexual
rights in the United States. The discrepancies suggest means by which domestic law can be amended
1
LANDMARK UN VOTE ON SEXUAL ORIENTATION, HUMAN RIGHTS WATCH (June 17, 2011) http://www.hrw.org/en/
news/2011/06/17/landmark-un-vote-sexual-orientation.
2
Human Rights Council, Res. 17/19, Human Rights, sexual orientation, and gender identity, 17th Session, May 30 June 17, 2011, U.N. Doc. A/HRC/17/L.9/Rev.1 (June 15, 2011).
3
SHEILA QUINN, AN ACTIVIST‘S GUIDE TO THE YOGYAKARTA PRINCIPLES, 42 (2010), available at
http://www.ypinaction.org/files/02/85/Activists_Guide_English_nov_14_2010.pdf.
4
HUMAN RIGHTS WATCH, supra note 1. The Yogyakarta Principles offer an ―interpretation‖ of existing international
human rights laws, as applied to LGBT individuals, while the recent UN resolution hopes to explicitly capture
sexual orientation and gender identity in future international legislation.
1
to better protect sexual autonomy, but it should be noted that the United States is generally wary of
international law and has refused to ratify several important human rights treaties. 5
I.
What’s the Basis? Sexual Rights as Derived but Distinct from Human Rights
Several international treaties contain the foundational rights for all human beings: the
Universal Declaration of Human Rights (UDHR),6 followed by the International Covenant on Civil
and Political Rights (ICCPR)7 and the International Covenant on Economic, Social, and Cultural
Rights ( ICESCR).8 Collectively, these treaties are known as the International Bill of Rights. They
assert the right to life, liberty, personal security (UDHR); 9 self-determination, due process, freedom
of thought and speech (ICCPR);10 and work in favorable conditions, unionization, best available
health care, and universal education (ICESCR),11 among others.
The International Bill of Rights covers both men and women, but disproportionally
detrimental treatment of women persists: ―[women] are more likely to be poor, to suffer from
domestic violence, to be victims of trafficking, and to lack access to positions of political or
economic power.‖12 This divergence inspired subsequent covenants focused on the rights of women:
the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW), 13 the
Beijing Declaration and Platform for Action (Beijing Platform),14 and the Declaration on the
Elimination of Violence Against Women (DEVAW).15 These documents targeted the eradication of
gender inequality (CEDAW),16 defined and demanded respect for women‘s reproductive rights
(Beijing Platform),17 and elaborated the definition of violence against women to include multiple
types of ―harm‖ and incriminate both public and private aggressors (DEVAW). 18
5
Including the International Covenant on Economic, Social and Cultural Rights [hereinafter ICESCR], G.A. Res.
2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force
Jan. 3, 1976, available at http://www2.ohchr.org/english/law/cescr.htm., Convention on the Elimination of all Forms
of Discrimination against Women [hereinafter CEDAW], G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46), U.N.
Doc. A/34/46, entered into force Sept. 3, 1981, available at
http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm.), and Declaration on the Elimination of Violence
Against Women [hereinafter DEVAW], G.A. Res. 48/104, Agenda Item 111, U.N. Doc. A/RES/48/104 (Dec. 30,
1993), available at http://www.un-documents.net/a48r104.htm.
6
Universal Declaration of Human Rights [hereinafter UDHR], G.A. Res. 217A, at 71, U.N. GAOR, 3d SESS., 1st
plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948), available at http://www.un.org/en/documents/udhr/.
7
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) [hereinafter ICCPR], 21 U.N. GAOR
Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976, available at
http://www2.ohchr.org/english/law/ccpr.htm.
8
ICESCR, supra note 5.
9
UDHR, supra note 6, at Art. 3.
10
ICCPR, supra note 7, at Art. 1, 14, 18-9.
11
ICESCR, supra note 5, at Art. 7, 8, 12, and 13.
12
The Rights of Women in the United States, ADVOCATES FOR HUMAN RIGHTS (2009) http://www.ushrnetwork.org/
sites/default/files/Women_s_Rights_Fact_Sheet.pdf.
13
CEDAW, supra note 5.
14
Fourth World Conference on Women, Sept. 4-15, 1995, Beijing Declaration and Platform for Action [hereinafter
Beijing Platform], U.N. Doc. A/CONF.177/20/Rev.1, available at
http://www.un.org/womenwatch/daw/beijing/pdf/Beijing%20full%20report%20E.pdf.
15
DEVAW, supra note 5.
16
CEDAW, supra note 5.
17
Beijing Platform, supra note 14, ¶ 95.
18
DEVAW, supra note 5, Art. 1. ―‗[V]iolence against women‘ means any act of gender-based violence that results
in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such
acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.‖
2
The campaign for sexual rights is distinct from, but highly relevant to, the reproductive rights
movement (women‘s right to free choice in matters of reproductive health and reproduction)19 and
the reproductive justice movement (recognition that all people need the economic, social, and
political resources in order to make healthy decisions about their bodies, sexuality, and reproduction
for themselves, their families, and their communities).20 The international community has attempted
to address the concerns of women‘s movements in international law (CEDAW/DEVAW and the
Beijing Platform), but these efforts do not directly capture broader, non-gender specific rights for
sexual autonomy. Eight countries still criminalize consensual sexual acts between people of the same
gender.21 Several U.S. states do not include sexual orientation or gender identity as a protected class
in anti-discrimination legislation.22 The sexual rights movement attempts to correct these omissions
and provide enforceable rights around issues of sexuality, and emphasize common humanity over the
stigma-laden history of sexuality.
A. Historical Overview of the Development of Sexual Rights in International Human
Rights Law
Prior to 1993, there appeared to be no reference to the term ―sexual rights‖ in international
human rights treaties or legal documents.23 The turning point came with the World Conference on
Human Rights in Vienna in 1993. Although the Vienna Declaration and Program of Action (VDPA)
did not use the term ―sexual rights,‖ it called for eliminating gender-based violence, sexual
harassment, and exploitation in response to the lobbying efforts of women‘s human rights activists.
In particular, the VDPA declared that the ―human rights of women and of the girl-child are an
inalienable, integral and indivisible part‖ of universal human rights and that ―[g]ender-based violence
and all forms of sexual harassment and exploitation . . . are incompatible with the dignity and worth
of the human person, and must be eliminated.‖24 This was followed later in the same year by
DEVAW, which contained a more explicit condemnation of ―physical, sexual and psychological
violence‖ against women occurring within the family and the general community and ―perpetrated or
condoned by the State, wherever it occurs.‖25 These developments in 1993 were noteworthy for their
explicit recognition of sexual violence as a human rights violation and sexuality as a human rights
issue.
It was only in 1994 that sexual rights entered the human rights discourse in the lead-up to the
International Conference on Population and Development (ICPD), a United Nations conference held
in Cairo that was the first population conference to focus on people‘s need for and rights to sexual
and reproductive health.26 The term ―sexual rights‖ was introduced as part of a bargaining strategy by
19
―Reproductive Rights‖ are often defined by reference to the Beijing Platform, supra note 14, at ¶ 95.
LOREN SIEGEL, REPRODUCTIVE JUSTICE: A COMMUNICATIONS OVERVIEW, I-1 (Eleni Delimpaltadaki, Julie Rowe,
& Juhu Thukral, eds., 2010), available at http://opportunityagenda.org/reproductive_justice/comms_overview.
21
QUINN, supra note 3, at 92.
22
Id. at 112.
23
Richard Parker, Sexual Rights: Concepts and Actions, 2 HEALTH AND HUMAN RIGHTS, 31, 34 (1997), available at
HHR website at http://www.hhrjournal.org/archives/vol2-no3.php.
24
The Secretary-General, Report of the Secretary-General, Report of the World Conference on Human Rights, June
14-25, 1993, Vienna Declaration and Programme of Action, ¶ 20, delivered to the General Assembly, U.N. Doc.
A/CONF.157/24 (Part I) (Oct. 13, 1993), available at
http://www.unhchr.ch/Huridocda/Huridoca.nsf/(Symbol)/A.CONF.157.24+(Part+I).En? .
25
DEVAW, supra note 5, Art. 2.
26
See International Planned Parenthood Federation (IPPF) website at
http://www.ippf.org/en/About/IPPF+ICPD.htm.
20
3
a network of women‘s health groups in order to ensure the inclusion of reproductive rights in the
final text of the ICPD Declaration and Program of Action, a set of goals for improving sexual health
and reproductive rights worldwide.27 For the first time in any international legal instrument, the
Program of Action addressed sexual health as part of a range of rights that needed to be protected.
Chapter VII (Reproductive Rights and Reproductive Health) of the Program of Action contained a
broad definition of reproductive health as a ―state of complete physical, mental and social well-being
and not merely the absence of disease or infirmity, in all matters relating to the reproductive system
and to its functions and processes.‖28 In the same chapter, reproductive health care is defined to
include ―sexual health,‖ and reproductive rights are described as embracing certain human rights that
are already recognized in national laws, international human rights documents, and other
―consensus‖ documents.29
At the Fourth World Conference on Women in Beijing in 1995, the term ―sexual rights‖ was
still not explicitly stated in the final documents. However, paragraph 96 in the Declaration and
Platform for Action at the Fourth World Conference on Women (―Beijing Platform‖) refers to the
human rights of women as including the ―right to have control over and decide freely and responsibly
on matters related to their sexuality, including sexual and reproductive health, free of coercion,
discrimination and violence.‖30 In response to the Beijing Platform, an international group of
women‘s health advocates known as HERA (Health, Action, Empowerment, Rights &
Accountability) developed action sheets in which sexual rights were defined as a fundamental
element of human rights that include the ―right to liberty and autonomy in the responsible exercise of
sexuality.‖31
In the mid-1990s, proponents of sexual and reproductive rights for women continued to
attempt to define sexual rights. In 1995, the International Planned Parenthood Federation (IPPF), a
global service provider and leading advocate of sexual and reproductive health and rights, produced
its Charter on Sexual and Reproductive Rights identifying 12 core rights based on recognized human
rights law that relates to sexual and reproductive health throughout IPPF‘s services and advocacy
work. These rights included, among others, the Right to Choose Whether or Not to Marry and to
Found and Plan a Family, the Right to Decide Whether or When to Have Children, and the Right to
Health Care and Health Protection.32
Beginning in the mid-1990s, the term ―sexual rights‖ appeared more frequently in the
academic and activist literature of the women‘s rights and LGBT rights movements. In a review of
such literature from 1994 to 2001, ―sexual rights‖ was explicitly used, although usually in
conjunction with reproductive rights. As early as 1994, the feminist scholars Sonia Correa and
Rosalind Petchesky had written an article on reproductive and sexual rights. 33 As mentioned,
27
Laura Davis Mattar, Legal Recognition of Sexual Rights – a Comparative Analysis with Reproductive Rights, 8
SUR – INT‘L J. ON HUM. RTS. 61, 64 (English ed., June 2008), available at Sur Journal website at
http://www.surjournal.org/eng/conteudos/getArtigo8.php?artigo=8,artigo_mattar.htm.
28
International Conference on Population and Development [hereinafter ICPD], Cairo, Sept. 5-13, 1994, Report of
the ICPD, Programme of Action of the ICPD, Ch. 7, ¶ 7.2, U.N. Doc. A/CONF.171/13 (Oct. 18, 1994), available at
http://www.un.org/popin/icpd/conference/offeng/poa.html.
29
Id. at ¶ 7.2 -7.3.
30
Beijing Platform, supra note 14, ¶96.
31
International Women‘s Health Coalition: Health, Action, Empowerment, Rights & Accountability [hereinafter
HERA] action sheets, available at IWHC/HERA website at
http://www.iwhc.org/storage/iwhc/docUploads/HERAActionSheets.PDF?documentID=52.
32
IPPF Charter on Sexual and Reproductive Rights (1996), IPPF website at
http://www.ippf.org/NR/rdonlyres/6C9013D5-5AD7-442A-A435-4C219E689F07/0/charter.pdf
33
Sonia Correa & Rosalind Petchesky, Reproductive and Sexual Rights: A Feminist Perspective, in POPULATION
POLICIES RECONSIDERED: HEALTH, EMPOWERMENT AND RIGHTS, (G. Sen, A. Germain, and L.C. Chen, eds.,
Harvard University Press, 1994).
4
following the issuance of the Beijing Platform, HERA developed action items for activists which
defined sexual rights.34 In 1997, sexual rights were described by Ms. Correa as having derived from
the efforts of feminists at the ICPD in Cairo to include this language in Paragraph 7.3 of the Program
of Action, which ultimately retained ―reproductive rights‖ in the final text.35 In her 2000 examination
of how sexual rights relate to reproductive rights, Alice Miller, an influential feminist scholar who
has written extensively on sexual rights, noted that although the term ―sexual rights‖ had gained
widespread currency, its scope and content had not yet been fully defined. 36
Scholars have consistently cited the 2002 definition of ―sexual rights‖ by the World Health
Organization (WHO). ―Sexual rights‖ were then defined as the right of all persons, ―free of coercion,
discrimination and violence, to:
the highest attainable standard of sexual health, including access to sexual and
reproductive health care services;
seek, receive, and impart information related to sexuality;
sexuality education;
respect for bodily integrity;
choose their partner;
decide to be sexually active or not;
consensual sexual relations;
consensual marriage;
decide whether or not, and when, to have children; and
pursue a satisfying, safe, and pleasurable sexual life.37
The WHO described sexual rights as encompassing human rights that are already recognized
in national laws, international human rights documents, and other consensus statements. However, it
should be noted that the WHO issued a disclaimer on its website that the definition of sexual rights
did ―not represent an official WHO position‖ and should not be used or quoted as a WHO
definition.38
In 2004, the term ―sexual rights‖ gained wider acceptance in the human rights community
and was legitimized in its use by Paul Hunt, the Special Rapporteur of the U.N.‘s Human Rights
Council on the right to enjoyment of the highest attainable standard of physical and mental health
[hereinafter Special Rapporteur on the right to health]. Hunt wrote that 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.‖39
There have been further refinements of the definition of sexual rights. In May 2008, the IPPF
issued a statement known as ―Sexual Rights: An IPPF Declaration,‖ which built on its previously
34
HERA action sheets, supra note 31.
Sonia Correa, From Reproductive Health to Sexual Rights: Achievements and Future Challenges, 5
REPRODUCTIVE HEALTH MATTERS, (Nov. 1997), 107-116, available at
http://graduateinstitute.ch/webdav/site/developpement/shared/developpement/mdev/soutienauxcours0809/verschuur
_inegalites/Correa%20Sonia.pdf .
36
Alice M. Miller, Sexual But Not Reproductive: Exploring the Junction and Disjunction of Sexual and
Reproductive Rights, 4 HEALTH AND HUM. RTS. 68 (2000), available at http://www.hhrjournal.org/archivespdf/4065197.pdf.bannered.pdf.
37
See WHO website at http://www.who.int/reproductivehealth/topics/gender_rights/sexual_health/en/# .
38
Id.
39
ALICE M. MILLER, INTERNATIONAL COUNCIL ON HUMAN RIGHTS POLICY [hereinafter ICHRP], SEXUALITY AND
HUMAN RIGHTS DISCUSSION PAPER, 7, 8 (Magdalena Sepúlveda Carmona & Robert Archer, eds., 2009), available at
ICHRP website at http://www.ichrp.org/files/reports/47/137_web.pdf.
35
5
published Charter on Sexual and Reproductive Rights.40 The IPPF Declaration consists of seven
guiding principles that provide a framework for understanding the application of basic human rights
to sexuality and outlines ten sexual rights comprised of a set of entitlements related to sexuality that
originate from the ―rights to freedom, equality, privacy, autonomy, integrity and dignity of all
people.‖41
In the mid-2000s, advocates and scholars from various sexual and reproductive rights fields
began attempts at merging their initiatives, and by 2008 ―sexual rights‖ appeared regularly as the
umbrella term for their concerted efforts.42 One contingent of sexual rights advocacy groups, The
Sexual Rights Initiative, describes the process of constructing a sexual rights discourse:
we hope to build cross sectoral networks and movements that work together to
develop a more balanced analysis of sexuality and sexual rights that will include but
also move beyond issues of identity, violence and discrimination to allow for the
consideration of positive claims such as the right to broader sexual freedom and a
right to sexual expression and pleasure.43
The Sexual Rights Initiative is a combined effort by Action Canada for Population and Development
(ACPD, Canada), CREA (a feminist, human rights organization, India), the International Center for
Reproductive Health and Sexual Rights (INCRESE, Nigeria) and Mulabi – Espacio Latinoamericano
de Sexualidades y Derechos (Argentina).44 Their goal, to reframe the sexual rights discourse, is
largely aimed at the Human Rights Council; they have issued various statements to the HRC relating
to this mission since 2006.45 The International Council on Human Rights Policy (ICHRP) is an
international committee of human rights experts that applies research and ―forward thinking‖ to
resolve difficulties in implementing and protecting human rights.46 In 2008, ICHRP, interested in
clarifying and expanding the relationship between sexuality and human rights, commissioned an
academic policy report on the current status of sexual rights in the human rights framework,
including suggestions for further integration.47
In further recognition that the right to health specifically provides for sexual and reproductive
freedom, the U.N. Special Rapporteur on the right to health recently issued annual and interim
reports calling for the decriminalization of three forms of adult, consensual sexual behavior, and the
provision of certain sexual and reproductive health services, respectively. 48 Arguing that laws
restricting and denying access to family planning goods and services violate the right to health and
reflected discriminatory notions of women‘s roles in the family and society, his presentation on
40
Sexual Rights: An IPPF Declaration [hereinafter IPPF Declaration], IPPF website at
http://www.ippf.org/NR/rdonlyres/9E4D697C-1C7D-4EF6-AA2A6D4D0A13A108/0/SexualRightsIPPFdeclaration.pdf.
41
Id., Executive Summary, at iv.
42
MILLER, supra note 39, at 7.
43
Public Education and Advocacy: Reframing Sexual Rights at the Human Rights Council, CREA (July 27, 2011,
12:25 PM), http://web.creaworld.org/publiceducation.asp.
44
Id.
45
HRC Activities, CREA, available at http://web.creaworld.org/statement.asp (last visited July 27, 2011).
46
Our Mission, ICHRP, available at http://www.ichrp.org/en/our-mission (last visited July 27, 2011).
47
MILLER, supra note 39, at iii.
48 Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of
physical and mental health [hereinafter Special Rapporteur on the right to health], delivered to the Human Rights
Council, U.N. Doc. A/HRC/14/20 (Apr. 27, 2010), available at
http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.20.pdf. The Secretary-General, Interim
report of the Special Rapporteur on the right to health, delivered to the General Assembly, U.N. Doc. A/66/254
(Aug. 3, 2011), available at http://www.un.org/ga/search/view_doc.asp?symbol=A/66/254.
6
October 24, 2011 to the Third Committee (Social, Humanitarian and Cultural) at a meeting of the
U.N. General Assembly led to a vigorous debate in which delegates from member States alternately
expressed strong support and rejection of some of his conclusions, particularly those with regard to
abortion.49
B. Specific Focus on Sexual Orientation and Gender Identity
The Yogyakarta Principles, formulated at a 2006 convention of human rights experts from
around the world, articulate LGBT-specific protections through the frame of existing human rights
law.50 The Principles demand traditional ―negative rights‖ – the freedom from government
interference in privacy, speech, assembly – and due process guarantees.51, 52 They also contain
several ―affirmative rights,‖ such as the right to work and to physical and economic security. 53 The
rights are listed in general terms and clearly bear a resemblance to the documents they are drawn
from – the International Bill of Rights. The similarities were intended; the drafters insist that the
Principles are ―an articulation‖ of human rights law.54 The conference, acknowledging the need for
variation across regions and protected groups, provides a more detailed guide with suggestions for
applying these principles in particular circumstances to further the interests of the LGBT
community.55 The Yogyakarta Principles are intended to influence nations both in policy
development and in interpreting current law, but they are not legally binding.
Fortunately, it is likely that there will soon be an internationally recognized standard for
protection of sexual rights. On June 17, 2011, the United Nations Human Rights Council, the body
appointed by the United Nations to monitor member nations‘ commitment to human rights, passed a
resolution calling for a global study of human rights violations suffered by LGBT individuals. 56
Pursuant to this resolution, in December 2011, the United Nations High Commissioner for Human
Rights submitted a report documenting discriminatory laws and practices and acts of violence against
individuals based on their sexual orientation or gender identity to the Human Rights Council.57 This
historic report shows how the Human Rights Council can use the results of the study commissioned
by the High Commissioner to apply international human rights law to end violations based on sexual
orientation or gender identity.
49
Press Release, General Assembly, Several Aspects of Sexual, Reproductive Health—Providing Information,
Using Contraception, Abortion—Should be ‗Decriminalized,‘ Third Committee Told: Rapporteur on Right to Health
Says ‗Decriminalization Saves Lives‘; Also Hears Experts on Human Rights Defenders; Trafficking; Education;
Food; Safe Water, U.N. Doc. GA/SHC/4018 at 1, available at
http://www.un.org/News/Press/docs/2011/gashc4018.doc.htm.
50
Paula L. Ettelbrick & Alia Trabucco Zerán, The Impact of the Yogyakarta Principles on International Human
Rights Law Development: A Study of November 2007 – June 2010 Final Report, 4 (Sept. 10, 2010) 10, available at
http://ypinaction.org/files/02/57/Yogyakarta_Principles_Impact_Tracking_Report.pdf.
51
Symposium, What to Expect: Legal Developments and Challenges in Reproductive Justice, 15 CARDOZO J.L. &
GENDER 503, 600 (2009), discussing negative and positive rights.
52
QUINN, supra note 3, at 20.
53
Id.
54
Id. at 70.
55
QUINN, supra note 3.
56
HUMAN RIGHTS WATCH, supra note 1.
57
Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and
gender identity, ANNUAL REPORT OF THE U.N. HIGH COMMISSIONER FOR HUMAN RIGHTS, delivered to the Human
Rights Council, U.N. DOC. A/HRC/19/41(Nov. 17, 2011), available at
http://www2.ohchr.org/english/bodies/hrcouncil/docs/19session/A.HRC.19.41_English.pdf. See also, Human Rights
Watch press release at http://www.hrw.org/news/2011/12/20/united-nations-landmark-report-high-commissionerhuman-rights-discriminatory-laws-an.
7
II.
The Use and Effectiveness of the Legal Framework for Sexual Rights
International treaties, once signed and ratified by governments, are implemented through a
process of reporting and compliance. A country that has both signed and ratified a treaty is obligated
to report to a treaty monitoring body roughly every four years on what has been done domestically to
implement the provisions of the treaty (a process called ―Universal Periodic Review‖).58 National
governments must self-report, but NGOs are also allowed to file ―shadow reports‖ on laws and
practices that they believe jeopardize human rights.59 If a government has signed a treaty but not
ratified it, it still has an obligation to avoid acting in a manner that contradicts the spirit and
provisions of the treaty. Documents like the Yogyakarta Principles, which are not legally binding, are
targeted at governments and made effective through advocacy efforts and international influence.
The promulgation of sexual rights via international human rights law faces some special
challenges: the movement lacks a coherent framework for action and there is strong ideological
resistance in many parts of the world.60 The International Council on Human Rights Policy created a
discussion paper that addresses some of these challenges. The latter half of this section will draw
from their publication to discuss the limited effectiveness of any claims that are based on a concept
of universal sexual rights as they are currently formulated.
A. Human Rights Treaties and Treatises in Action
i. The Power of United Nations Treaties: Successful Implementation with a
Focus on CEDAW61
Recent legislation and high court decisions from around the globe illustrate how treaty-based
human rights can be implemented and become legally effective. The following examples involve
actions by nations that have both signed and ratified CEDAW (albeit some with reservations).
Implementation of treaty provisions can be domestic initiatives, guided by the government. In 2004,
Morocco enacted a reformed version of the state‘s family law code, which created distinct family
courts and incorporated the notion of shared responsibility in marriage.62 These changes are aligned
with several priorities in CEDAW and were accompanied by the creation of workplace regulations
that recognize harassment and criminal law that recognizes spousal violence. The Moroccan
government has stated that it intends to remove the reservations it placed on CEDAW at ratification:
the recent laws have gone a long way toward making the treaty‘s full ratification more feasible.63
Findings and decisions from the United Nations‘ representative bodies can also spur
corrective action by governments and rally advocates. The CEDAW Committee under the Optional
Protocol to the Convention heard a complaint by a Romani woman who was sterilized when she
visited a Hungarian hospital to receive a caesarian section operation.64 The complainant signed an
58
Universal Periodic Review, U.N. HUMAN RIGHTS: OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS,
http://www.ohchr.org/EN/HRBodies/UPR/PAGES/UPRMain.aspx.
59
Non-governmental organizations and National human rights institutions, UNITED NATIONS HUMAN RIGHTS:
OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS,
http://www.ohchr.org/EN/HRBodies/UPR/Pages/NgosNhris.aspx.
60
MILLER, supra note 39, at 1.
61
See page 13 infra for discussion of city-level legislation in the United States that mirrors provisions of CEDAW.
62
UN WOMEN, CEDAW SUCCESS STORIES (2009), see especially ―Equality for Women in Morocco‘s Family Law‖
available at http://www.unifem.org/cedaw30/success_stories/ (follow country hyperlink for Morocco).
63
Id.
64
Id., especially ―Preventing Coercive Sterilization.‖
8
agreement that was attached to other medical consent forms, in which the sterilization authorization
was located near the end and the operative term only appeared in Latin. She did not realize she had
been sterilized until a subsequent doctor visit. The Committee found several CEDAW violations, and
ordered that Hungary provide individual compensation and revisit its laws regarding sterilization and
consent.65 Hungary has since amended its Public Health Act to require that practitioners provide
information and follow specific procedures for obtaining consent for sterilization.
Finally, domestic court decisions can incorporate international treaty provisions to protect
individual plaintiffs and create human rights friendly precedent. In Kenya, an appeals court
disallowed the practice of allowing sons to inherit disproportionately from parents.66, 67 The appeals
court decision was later cited and supported by the High Court in a similar case, alongside language
demanding that the provisions of CEDAW be respected.68 Some courts have been even more
aggressive in implementing CEDAW. In response to a pending case, the High Court of Bangladesh
created sexual harassment guidelines that include a complaint procedure.69 The guidelines will be in
effect until the legislature replaces them. The Court read CEDAW in combination with the nation‘s
Constitution to establish these protections for women.70
ii. The Effect of Non-Binding Human Rights Treatises with a Focus on the
Yogyakarta Principles
Human rights treatises or platforms, which do not have the binding status of treaties, are not
legally enforceable. These documents can still be persuasive inasmuch as they are authoritative
sources for definitions and conceptual frameworks or offer compelling legal interpretations. It is
possible for them to become indirectly enforceable, either by adoption or incorporation into
legislation or by frequent citation in courts of law. Three years after the initial publication of the
Yogyakarta Principles, a team of human rights lawyers authored a report on the legal effects of the
Principles globally and regionally.71 Their report offers some examples of how a non-binding human
rights treatise can help create legal protections for threatened groups.
The Principles purport to be an interpretation of existing international human rights law, 72
and their use by various bodies of the United Nation bode well for a wide-scale acceptance of that
interpretation. The Office of the High Commissioner for Human Rights (OHCHR), an agency headed
by the High Commissioner and designed to ensure the protection of human rights created by the
UDHR, maintains several field offices or ―Special Procedures‖ that address localized or national
human rights concerns. 73 Although the Commissioner has never referred to the Yogyakarta
Principles directly, the agency‘s 2010-2011 strategic plan has incorporated sexual orientation and
gender identity.74 In a less attenuated connection, several of these field offices have cited the
65
Id. The text of the Committee‘s opinion is available at http://www2.ohchr.org/english/law/docs/Case4_2004.pdf.
Rono v. Rono, Court of Appeal, at Eldoret. Opinion issued April 29, 2005. A copy of the opinion is available at
http://www.kenyalawreports.or.ke/family/case_download.php?go=29580681357579819795393.
67
UN WOMEN, supra note 62. Especially ―Kenyan Courts Protect Women‘s Inheritance Rights.‖
68
In Re Estate of Lerionka Ole Ntutu (Deceased), The High Court of Kenya at Nairobi, Family Division. Opinion
issued November 19, 2008. A copy of the opinion is available at http://www.kenyalaw.org/Downloads_FreeCases/
SUCCESION_CAUSE_No_1263%20OF%202000.pdf.
69
UN WOMEN, supra note 62. Especially ―Bangladesh Court Combats Sexual Harassment‖
70
Id.
71
Ettelbrick, supra note 50, at 4.
72
Id. at 11.
73
Who We Are, UNITED NATIONS HUMAN RIGHTS: OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS
http://www.ohchr.org/EN/AboutUs/Pages/WhoWeAre.aspx, (last visited July 19, 2011).
74
Ettelbrick, supra note 50, at 13-14.
66
9
Yogyakarta Principles in their reports. Some used the Principles as a definitional basis,75 and all
addressed disproportionate human rights violations suffered by LGBT individuals in their area of
investigation (treatment resulting from criminalization of various sexual practices, the immunity
granted terrorist groups in their treatment of LGBT individuals, and the targeted, violent treatment of
LGBT individuals in custody).76 Other important United Nations incorporations of the Principles
include the Committee on Economic, Social and Cultural Rights‘ recommendation that States
prohibit discrimination on the basis of gender identity, in which gender identity was defined by
reference to the Principles.77 The United Nations High Commissioner for Refugees‘ Guidance Note
is another example:
This Guidance Note quotes the Yogyakarta Principles multiple times in providing
guidance on how sexual orientation or gender identity can be the basis of a wellfounded fear of persecution. Additionally, the document states that while sexual
orientation is not explicitly delineated in any human rights treaty, “it is now well
established that LGBT persons are entitled to all human rights on an equal basis with
others [...]. The Yogyakarta Principles reflect binding international legal standards
with regard to sexual orientation which are derived from key human rights
instruments.”78
Perhaps the newly sanctioned report on human rights violations against LGBT persons by the
UNHRC will provide a more comprehensive opportunity to incorporate a great portion of the
Principles into international law.79
The Report also contains a country-by-country summary of Yogyakarta Principles use. In
several states, the judiciary or legal practitioners have favorably cited the Principles and used them to
define law in their countries.80 In 2007, several LGBT interest groups filed a writ petition demanding
that the government of Nepal recognize the distinct rights of their constituents. 81,82 The Supreme
Court of Nepal, citing the preamble and definitional sections of the Yogyakarta Principles, insisted
that protection of LGBT rights was inherent in the preexisting international human rights law. 83 The
court also found that sexual orientation and gender identity are not ―curable conditions‖ but a
―natural phenomenon.‖84 In India, the Delhi High Court found the criminalization of same-sex sexual
practices to be unconstitutional and rested their decision heavily on the interpretation of human rights
provided by the Yogyakarta Principles.85, 86 Occasionally, the interpretation offered by the Principles
has been adopted wholesale by lawmakers: ―[n]ational legislatures in Argentina, Brazil, Canada,
75
Id. at 15. Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of
physical and mental health.
76
Id. at 14-16. These findings were made by the Special Rapporteur on the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health, the Special Rapporteur on the Promotion and Protection of
Human Rights and Fundamental Freedoms while Countering Terrorism, and the Special Rapporteur on Torture and
other Cruel, Inhuman or Degrading Treatment of Punishment, respectively.
77
Id. at 16-17.
78
Id. at 17-18. Guidance notes are non-binding, but as their title suggests, offer clarifications of existing rules.
79
HUMAN RIGHTS WATCH, supra note 1.
80
Ettelbrick, supra note 50, at 12.
81
Id. at 48.
82
Blue Diamond Society, et al. vs. Nepal Government, Writ No. 917 of the year 2064 (BS) (2007 AD) (Supreme
Court of Nepal, Dec. 21, 2007).
83
Ettelbrick, supra note 50, at 48-9.
84
Id.
85
Naz Foundation v. Government of NCT of Delhi (Delhi High Court, July 2, 2009).
86
Ettelbrick, supra note 50, at 46-7.
10
Uruguay, and Mexico have introduced or passed bills citing the Yogyakarta Principles as among the
documents outlining international human rights law.‖87
The examples above are heartening, but the process of translating the Principles into
enforceable law has had fairly limited results. However, as the report on the impact of the Principles
on international human rights law development notes, their influence can be felt more strongly in the
work of advocates and the formulation of a common language for discussing LGBT rights. ―The
importance of civil society, human rights NGOs, grass roots activists, and the media to the process of
human rights development and enforcement is indisputable.‖88 The efforts at mobilizing proponents
and creating a common language could be seen as a very significant contribution by the Yogyakarta
Principles. In the case of sexual rights, it is especially important that the movement create a coherent,
relatable narrative, because it is so multifaceted and controversial.
B. Challenges of Establishing a Sexual Rights Framework
As the Yogyakarta Principles show, it is possible to interpet existing international human
rights laws in such a way that they encompass sexual rights; doctrines like non-discrimination,
security, and freedom of expression can be grafted onto agendas for sexual autonomy. However,
historically, sexual practices, statuses, and identities were not conceived of as belonging in the sphere
of international human rights, and the International Bill of Rights says strikingly little about nationallevel regulation of sexuality.89 As the ICHRP report makes clear, it is not because sexuality was
completely out of the picture that it was not incorporated more often in human rights discourse; laws
regarding sexual relations between natives and colonizers, sex work, and same-sex relations
abounded.90 Rather, ―because international law, including human rights law, is grounded in statebased systems, its evolution has affirmed state or national sovereignty.‖ 91 The areas of law that are
most relevant to sexuality – family law, personal status law, health and criminal law – are closely
related to ideas of ―national self-image, respectability and regulation of public morality,‖ and are
subjects fit for the discretion of individual, national governments.92
National-level regulations, although diverse in their formulations, had several tendencies in
common that also complicate any notion of universal sexual rights. First, marriage was long
considered the legal construct for proper sexual activity, which led to the criminalization/
stigmatization of most sexual activity that occurred outside the institution (this was not conceived of
as a human rights problem until fairly recently). 93 The use of marriage as a legitimization of the
―natural‖ urge for procreation is consistent with the reoccurring need to ―justify‖ sexuality – a need
that makes it more difficult to conceive of sex without some form of moral judgment. 94 Second,
sexuality rests on the border between private action that should be protected from state intervention
and public behavior that should be regulated because it can pose a threat to society (behavior that can
easily be subjected to narrow and inflexible ―moral‖ dictates). 95 Human rights law often operates on
the assumption that private actions should not be regulated, and states should be deferred to –
assumptions that make it difficult for human rights to apply sexual rights at all, much less in a
87
Id. at 12.
Id.
89
MILLER, supra note 39, at 21.
90
Id.
91
Id.
92
Id.
93
Id. at 22.
94
Id. at 3.
95
Id. at 22.
88
11
consistent fashion.96 However, human rights and sexual rights have not remained static. While
―legitimate‖ sexual expressions have become more varied over time, the human rights discourse has
contributed by ―focusing on conditions that enable autonomous decision-making to occur on sexual
matters‖ (both civic/political and material conditions).97
As these fields begin to merge, it is important that sexual rights have a coherent framework
for their expression. The ICHRP Report suggests the following question for the movement:
―According to which principles, and in agreement with which standards and jurisprudence, should
human rights work on sexuality develop?‖98 The formulation of sexual rights, as it occurred outside
the human rights framework, began with isolated responses to specific harms: the prevention of
domestic violence or trafficking in persons, the promotion of sexual health, etc.99 These origins, in
diverse initiatives, shift the focus away from the affirmation of sexual autonomy as a basic human
right in itself, and move it toward protections that are required in specific circumstances. 100 The
origins also make it difficult to form a common language of sexual rights. The authors of the ICHRP
Report see the plethora of gender and sex-based terms and acronyms as an obstacle to precise speech
and a unified sexual rights framework (e.g., ―gay,‖ ―sexual minority,‖ ―third sex‖ and GBV, SOGI,
SRHR, LGBT, and MSM, respectively).101
The lack of coherence is exacerbated by the absence of clear legal standards and judicial
precedents around which to construct advocacy work,102 as well as the tendency for NGOs to
continue advocacy work on specific directives that cannot accommodate the movement as a whole
(the Report cites the Yogyakarta Principles as one such limited initiative – the focus on LGBT rights
can obscure the relevance of women‘s and girl‘s issues).103 As the ICHRP Report states, even law
making bodies that do address sexual rights, like the United Nations, do not do so in a binding
manner that alleviates confusion (e.g. wording in committee reports may not be indicative of what
the committee as a whole considers legally binding, issuing conflicting directives with respect to sex
work, respectively).104
C. Definitions of ―Sexual Rights‖ and Relevant Critique
The definitions of sexual rights that have been formulated thus far have contributed to the
lack of a coherent framework for advocates in the field. In reviewing the key challenge facing the
development of a concept of sexual rights in 1997, the scholar Richard Parker noted the linkage of
sexual health rights to heterosexual reproduction in the ICPD Program of Action and the absence of a
more broad-reaching notion of sexual rights that included sexual pleasure, freedom of sexual
expression, or freedom of sexual orientation. Parker argues that such a concept would serve as the
―cornerstone for a more progressive, global response to the relationship between sexuality and
health.‖105 As mentioned, the most frequently cited definition of sexual rights was written by the
World Health Organization.106 While the definition does encompass many rights associated with
96
Id. at 22.
Id. at 23
98
Id. at 3.
99
Id. at 7.
100
Id. at 7.
101
Id. at 18, 20. Acronyms meaning respectively: gender-based violence; sexual orientation and gender identity;
sexual and reproductive health rights; lesbian, gay, bisexual, transgender; men having sex with men.
102
Id. at 11, 13.
103
Id. at 19.
104
Id. at 14.
105
Parker, supra note 23, at 31.
106
MILLER, supra note 39, at 9.
97
12
sexual empowerment (consensual sexual relations, consensual marriage, sexuality education, highest
attainable sexual rights standards), the ICHRP Report notes that the exclusive emphasis on individual
rights and well-being wholly misses the social and public dimensions of sexuality (the dimensions
that give sexuality meaning in a community and include the right to assemble, advocate, organize,
and work for reform).107 Other formulations include those developed by the ICPD Program of
Action, the Beijing Platform, HERA, and IPPF. (Although the Beijing Platform did not provide a
definition of sexual rights per se, the concept of women having the right to control over and make
decisions on matters related to their sexuality referred to in paragraph 96 directly contributed to
subsequent attempts at a workable definition.)
The ICHRP Report suggests that the social aspects of sexuality should perhaps be foremost in
any consideration of sexual rights. The authors advocate a ―social constructionism‖ approach, which
acknowledges that sexuality is a biological reality but also heavily dictated by the social mores in a
certain place and time.108 This methodology helps advocates escape westernized, and often
inappropriate, assumptions about gender, age, and sexuality in different cultures. It also gives them a
clearer understanding of what forces (religious, cultural, political) motivate certain sexual behavior
or repression.109
The ICHRP Report acknowledges that the development of ―rights-based‖ claims can be
inherently disjointed. The rights are created as a response to particular problems, and are often only
reconciled in retrospect.110 However, the existence of disparate sexual rights-based agendas within
the larger movement can hinder its progress. Sexual rights claims have more difficulty in universal
acceptance than other human rights initiatives and are occasionally openly in conflict with others.111
The ICHRP Report discusses four ―struggles within the [sexual] rights movement.‖ First, sexual
rights advocates may be in complete agreement as to a certain initiative, but encounter staunch
political opposition by various nations.112 The women‘s rights movement often encounters this
difficulty in the Muslim world. Similar problems can be anticipated with respect to LGBT rights, as
the recent United Nations vote reveals (23-19 split over pursuing the issue of LGBT-targeted
violence).113 Sexuality can be divisive in a national setting, and that conflict can be magnified
between states with contrasting cultural values. Second, advocates may have some consensus about a
sexual rights issue but hold inconsistent or ill-formed theoretical foundations for that belief.114 The
authors of the report cite notions of ―informed consent‖ or the relationship between marriage and
sexual activity as sources of theoretical confusion. Third, advocates may be in complete
disagreement about various policy choices.115 The classic example of this conflict is sex work: some
human rights advocates and feminists would have it banned outright because they see it as inherently
oppressive of women, but others prefer that sex work exist outside the criminal justice system with
mainstream legal protections.116 Finally, the authors express skepticism about the effects of targeted,
107
Id.
Id. at 17.
109
Id.
110
Id. at 27.
111
Id.
112
Id.
113
HUMAN RIGHTS WATCH, supra note 1.
114
MILLER, supra note 39, at 28.
115
Id. at 32.
116
Lisa Diane Schreter & Mariellen Mallory Jewers, The Danger of Conflating Trafficking and Sex Work: A
Position Paper of the Sex Workers Project at the Urban Justice Center, 6, (Stephan Sastrawidjaja & Melissa Sontag,
eds., 2007) available at http://www.sexworkersproject.org/media-toolkit/downloads/20070330BriefingPaperOnConflationOfTraffickingAndSexWork.pdf (discussing that ―anti-sex‖ feminists view prostitution as
inherently coercive, and therefore synonymous with trafficking).
108
13
rights-based reporting on the sexual rights framework. They fear this kind of report ―reinforces the
classification of people and issues as discrete and separate: it is sometimes hard to remember that
some sex workers are men, or transgender, that some women are gay, that sometimes heterosexually
identified men are raped in war.‖117
Despite these concerns, the authors find that sexual rights have begun to coalesce around a
series of core principles: ―consent; privacy; bodily integrity; equality; (quasi-adult) competency; and
enabling conditions.‖ They would add public participation and urge that even these shared values
lack a precise definition that appears thoroughly consistent. But the authors are nonetheless hopeful
that, with an awareness of history as well as social and political forces, sexual rights advocates can
create a coherent framework that national governments respect.118 More simply, a definition of
sexual rights should explicitly address necessary resources, expression of sexuality (or the ability to
avoid such expression), and the agency to decide when and how one‘s own sexuality is commodified.
III.
Sexual Rights and Reproductive Justice in the United States
As the United Nations begins the process of incorporating sexual orientation and gender
identity into human rights laws, the United States risks falling even further behind in some sexual
rights-related protections. Over the past 30 years, the international human rights community has
recognized reproductive rights as human rights, and has been expanding protections of reproductive
rights under human rights treaties.119 During the same time period, the trend in the United States has
been the opposite, ―restricting access to reproductive rights and chipping away at those rights as
guaranteed by Roe v. Wade.‖120 The United States has not ratified the most important treaties that
protect reproductive rights, including CEDAW, the Economic, Social, and Cultural Rights
Convention, or the Convention on the Rights of the Child. It has signed all of these treaties; thus the
United States has an obligation to refrain from actions that defeat these treaties‘ object and purpose.
But this does not provide much protection in practice, and it means that rights advocates do not have
access to the treaty monitoring bodies.121
International human rights treaties can still affect American law, even without ratification by
the federal government. Some U.S. cities and counties have passed local ordinances that effectively
enact CEDAW for that locality. In 1998, a group of women‘s rights organizations worked with
government officials in San Francisco to adopt CEDAW. 122 According to the New York City Human
Rights Initiative, municipalities and counties across the nation have succeeded in enacting similar
legislation, or are insistent on proposing and passing it.123 Not all of these attempts have been
successful: the New York City Human Rights Initiative unsuccessfully introduced CEDAW-based
legislation in New York in 2004, 2008, and 2010.124
117
MILLER, supra note 39, at 33.
Id. at 45-47.
119
Symposium, supra note 51, at 592-4 (discussing the progress of reproductive rights from principles found in the
UDHR, through more specific articulations in ICESCR (right to health care, protection for mothers) and CEDAW
(ensuring health care services for women, and women‘s right to decide the number and spacing of children)).
120
Id. at 598.
121
Id. at 599.
122
CEDAW in San Francisco: From International Human Rights to Local Policies for Women, THE INTERNATIONAL
MUSEUM OF WOMEN http://www.imow.org/wpp/stories/viewStory?storyId=1849 (last visited July 6, 2011).
123
Counties and Cities that have Passed Resolutions About CEDAW, NEW YORK CITY HUMAN RIGHTS INITIATIVE,
STATES, http://nychri.org/documents/CEDAWRes_000.pdf (last visited July 12, 2011).
124
About Our Work, NEW YORK CITY HUMAN RIGHTS INITIATIVE http://www.nychri.org/aboutwork.htm (last visited
July 12, 2011).
118
14
A. Shortcomings of Existing Domestic Law
In 2003, the U.S. Supreme Court recognized the right of adults to ―decid[e] how to conduct
their private lives in matters pertaining to sex‖under the due process rights protected under the
Fourteenth Amendment.125 Since its 1976 decision in Craig v. Boren,126 the Court has subjected sexbased government action to intermediate or heightened scrutiny, a standard more difficult to meet
than its rational-basis test. Rather than being ―rationally related‖ to a ―legitimate‖ government
interest, gender-based government action must bear a ―substantial‖ relationship to an ―important‖
government objective.127 Heightened scrutiny of sex-based government action reached a peak in
1996, when the Court declared that gender-based government action requires an ―exceedingly
persuasive justification,‖ surviving equal protection scrutiny only if the government can establish a
―direct, substantial relationship‖ between a sex classification and ―important governmental
objectives.‖128
The Court‘s application of heightened scrutiny has invalidated gender-based restrictions on
participation in public life (i.e., in education, the workplace, or civic life) and in these cases the Court
tends to reject even plausible claims about reproductive or biological difference.129 As exemplified
by Lawrence and VMI, when the Court invalidates a gender classification, it tends to find biological
gender differences to be unproven, stereotypical, or irrelevant. Conversely, when the Court upholds a
gender classification, it tends to link it to biological gender differences.130
In discussing cases involving gender-based restrictions, legal scholar Kim Shayo Buchanan
argues that, in practice, the Court‘s diminished form of equal protection review in cases of illicit
(unwed) sexual conduct have authorized governments to use gender classifications to enforce sexual
morality: to discourage abortion, to permit antigay discrimination, and to promote marriage,131 rather
than genuinely accommodating pregnancy, sexuality, or governmental interests in fetal life. In equal
protection challenges that involve abortion or antigay discrimination, many state and federal courts
apply a deferential level of scrutiny derived from the Court‘s due process cases, or they define sex
discrimination in ways that exclude equality protections for lesbians, gay men, or other sexual
minorities.
Despite its solid grounding in constitutional theory and doctrine, the equal sexual liberty
argument has not been very successful in the courts.132 The Lawrence Court did not say whether the
sexual liberty right was fundamental, nor did it identify the applicable standard of review. Many
lower federal courts have since interpreted Lawrence to protect only a narrow right to be free from
criminal prosecution for private, noncommercial sodomy, fornication, or adultery, while others have
125
Lawrence v. Texas, 539 U.S. 558, 572 (2003).
Craig v. Boren, 429 U.S. 190, 210 (1976).
127
See United States v. Virginia (VMI), 518 U.S. 515, 533 (1996).
128
Id.
129
Kim Shayo Buchanan, Sexuality & Gender Law: Assessing the Field, Envisioning the Future: The Sex Discount,
57 UCLA L. REV. 1149, 1166 (2010) (discussing Lawrence, in which the Court redirected attention from the
―fundamental right to engage in same-sex sodomy‖ to the right of gay men and lesbians to equality in public life)
available at http://uclalawreview.org/pdf/57-5-3.pdf.
130
See, e.g., Michael M. v. Superior Court of Sonoma County, 450 U.S. 464 (1981). The U.S. Supreme Court
unanimously upheld a statutory rape provision that made it a crime for any man to have sexual intercourse with a
girl under 18 years old (other than his wife). The Court unanimously agreed that a biological difference––young
women‘s capacity for illegitimate pregnancy––constituted a reason to depart from the usual standards of gender
equality when it came to unmarried sexual activity. The ―natural‖ difference the Court found to justify differential
regulation of men and women applied only to non-marital sex.
131
Buchanan, supra note 129, at 1156.
132
Id. at 1152.
126
15
cited the Lawrence disclaimers to sanction prosecutions for ―soliciting‖ consensual, noncommercial
same-sex sex, bans on the distribution of sex toys, and restrictions on marriage and adoption by
same-sex couples.133
The equal sexual liberty argument has also been unsuccessful in abortion cases. In Planned
Parenthood v. Casey, the Court reaffirmed the importance of abortion rights to women‘s ―ability . . .
to participate equally in the economic and social life of the Nation‖ even as it lowered the applicable
standard of review.134 In Gonzales v. Carhart, the majority disregarded dissenters‘ equality argument
for abortion rights and further diminished constitutional abortion protections by authorizing, for the
first time, an abortion restriction that made no exception for procedures that were necessary to
protect the woman‘s health.135
Cultural assumptions infuse the Court‘s equal protection jurisprudence on unwed parenthood.
The Court repeatedly asserts that biology, not culture or law, dictates that mothers know and care
about their children, while unwed fathers are generally ―unknown, unavailable, or simply
uninterested.‖136 On the basis of this ―biological‖ reality, the Court has upheld some remnants of the
common law of parental responsibility against gender-based equal protection challenges, authorizing
governments to make parenthood automatic for women, but optional––contingent on marriage or
legitimation––for men.137 Flores-Villar v. United States provides a recent example of this tendency:
an evenly divided Court affirmed the 9th Circuit‘s holding that a five-year residency requirement for
unwed fathers to transfer citizenship was constitutional, despite the fact that there is no such
requirement for unwed mothers.138
B. Using the International Human Rights Framework to Further Reproductive Justice in
the United States
i. Public Funding for Abortion
In one form or another, federal legislation has excluded abortion costs from Medicaidcovered services since the passage of the Hyde Amendment in 1976.139 Medicaid health coverage
services the nation‘s low-income population, American Indians, federal employees, federal prisoners,
military personnel, and Peace Corp volunteers.140 However, the abortion ban disproportionately
burdens the reproductive choices of low-income women (one in five low-income women relies on
133
Id. at 1151–52.
Planned Parenthood of Southern Pa. v. Casey, 505 U.S. 833, 856 (1992).
135
Gonzales v. Carhart, 550 U.S. 124 (2007).
136
See, e.g., Nguyen v. INS, 533 U.S. 53, 65 (2001) (―Given the 9-month interval between conception and birth, it is
not always certain that a father will know that a child was conceived, nor is it always clear that even the mother will
be sure of the father's identity.‖); Lalli v. Lalli, 439 U.S. 259, 268-69 (1978) (―Proof of paternity...frequently is
difficult when the father is not part of a formal family unit. The putative father often goes his way unconscious of
the birth of a child. Even if conscious, he is very often totally unconcerned because of the absence of any ties to the
mother. Indeed the mother may not know who is responsible for her pregnancy.‖).
137
Buchanan, supra note 129.
138
Flores-Villar v. United States, No. 09-5801(U.S. June 13, 2011) (affirming United States v. Flores-Villar, 536
F.3d 990 (9th Cir. 2008)).
139
The Hyde Amendment is not a permanent law, but a ―rider‖ that has been reattached each year to appropriations
bills. See Public Funding for Abortion: Medicaid and the Hyde Amendment, NATIONAL ABORTION FEDERATION
(2006), http://www.prochoice.org/about_abortion/facts/public_funding.html. At times, it contains exceptions for
rape and incest, as well as health or well-being of the mother. At other times, it lacks these provisions.
140
Public Funding for Abortion, AMERICAN CIVIL LIBERTIES UNION (July 21, 2004),
http://www.aclu.org/reproductive-freedom/public-funding-abortion.
134
16
Medicaid coverage).141 Faced with an unwanted pregnancy and unable to afford an abortion on her
own, a low-income woman may be driven to seek illegal abortion methods, delay her abortion
(making it less safe) to scrape together extra funding, or carry the unwanted pregnancy to term.142
The Hyde Amendment can effectively eliminate access to an abortion, making it an attack on a
woman‘s privacy rights and constitutionally protected reproductive options.143 The Supreme Court
has held that this funding limitation is constitutional, 144 and that states are only bound to cover
abortion services that are also covered by federal funding.145 Several challenges based on states‘
constitutions have achieved coverage for abortion for women through state funding. 146
Compliance with international law would require that the federal ban on abortion funding be
lifted. Various provisions contained in CEDAW and the Beijing Platform would clearly call for
universal access to legal reproductive health care for all women, regardless of their economic
situation. Article 16, section 1, paragraph (e) of CEDAW demands that women be given the right to
control the number and spacing of their children, as well as the means to exercise this right, and
Article 12 requires that the governments eliminate discriminatory practices in the provision of health
care, including all family planning services. One of the ‗Strategic Objectives and Actions‘ addressed
by the Beijing Platform was the reconsideration of standards for women‘s health care (discussed in
Paragraphs 89-111). The Beijing Platform created the standard definition of reproductive rights
(Paragraph 95), and acknowledged that many of these reproductive freedoms are contingent on a
woman‘s ability to control her own fertility (Paragraph 97). The Platform often expresses concern
about the rates of unsafe abortion, and calls on governments to ―[i]ncrease women‘s access
throughout the life cycle to appropriate, affordable and quality health care, information and related
services‖ (Strategic Objective C-1).
Unfortunately, the United States has not ratified CEDAW, which explicitly requires that
women be given the means to exercise any given reproductive rights. The Beijing Platform, which
was adopted by consensus by the United Nations, requires member states to submit questionnaire
responses every five years detailing the nation‘s progress toward female empowerment. The fiveyear report filed by the United States discusses Medicaid as a health care solution for low-income
women, but fails to mention the abortion funding exception. The 10-year report filed by the United
States cites abortion exclusively in the context of new legislation designed to protect fetuses. 147 The
United States did not file a response on the 15th anniversary of the Beijing Platform.
ii. Shackling Pregnant Women
In the 2009 Cardozo Journal of Law & Gender symposium,148 panelist Dana Sussman spoke
specifically on the ongoing practice of shackling incarcerated women during labor and delivery. The
141
NATIONAL ABORTION FEDERATION, supra note 139.
ACLU, supra note 140.
143
Hyde Amendment: 30 Years of Injustice for Poor Women NATIONAL ORGANIZATION FOR WOMEN (Oct. 9, 2006),
http://www.now.org/issues/abortion/10-09-06hyde.html.
144
Beal v. Doe, 432 US 438 (1977) and Maher v. Roe, 423 US 464 (1977).
145
Harris v. McRae, 448 US 297 (1980).
146
Four states voluntarily fund abortions for low-income women, and 13 more offer these services by court order.
ACLU, public funding for abortion (Map), http://www.aclu.org/reproductive-freedom/public-funding-abortion-map.
147
U.S. response to UN questionnaire on the Implementation of the Beijing Platform for Action (2000), available at
http://secretary.state.gov/www/picw/beijing/questionnaire.html. Submission of Information Relating to the
Questionnaire to Governments on Implementation of the Beijing Platform for Action and the Outcome of the
Twenty-Third Special Session of the General Assembly (2005) available at
http://www.un.org/womenwatch/daw/Review/english/responses.htm.
148
Symposium, supra note 51.
142
17
practice is ―incredibly unusual,‖ for the United States is perhaps the only country, or one in a handful
of countries, in the world that does this, and Sussman describes it as ―brutal, humiliating, unsafe, and
medically unsound.‖149
In 2000, Amnesty International took its report to the United Nations Committee against
Torture, and in 2003 and then again in 2006, human rights and prisoners‘ rights advocates brought
the practice before other treaty monitoring bodies.150 The Human Rights Committee, which monitors
compliance with the ICCPR, and the Committee against Torture issued concluding observations,
leveling harsh criticism on the United States for continuing this practice. As a result of these efforts,
Sussman noted, three states—California, Illinois, and Vermont—passed anti-shackling legislation.151
In addition, at least 10 states have changed their Department of Corrections regulations on the
shackling practice, shifting the default to no shackling, whereas previously the policy was shackling
unless there were extenuating circumstances. Further, in 2008, the Federal Bureau of Prisons
changed its policy to eliminate the use of shackles in nearly all circumstances, and U.S. Marshals
changed their policy.152 That same year, the Second Chance Act153 was signed into law, which
includes a provision that requires the Federal Bureau of Prisons to record every instance of shackles
it uses on pregnant women during labor and delivery, and to justify it by documented security risks,
so that some record may exist showing how often the practice is used.
International human rights law unequivocally condemns the practice of shackling pregnant
women. In a 2008 amicus brief, the National Association for Pregnant Women (NAPW) articulated
human rights violations perpetuated by the practice.154 Among the authorities listed, several were
treaties ratified by the United States: the ICCPR forbids ―cruel, inhuman, or degrading treatment or
punishment‖;155 the ICCPR monitoring force, the HRC, openly criticized the United States‘ practice;
156
and the UDHR demands special protections and assistance for motherhood.157 Other human rights
treaties were signed by the United States but are not technically binding: the ICESCR demands that
mothers be given extra protection in the time frame surrounding pregnancy and birth;158 and
CEDAW requires states to provide adequate health services for mothers pre- and post-birth.159
NAPW concludes, ―the practice of shackling contravenes these international human rights standards
by directly threatening the safety of both the pregnant woman and her child.‖ 160
iii. Sex Work
149
Id. at 603.
Id. at 604.
151
Id. at 605.
152
Amy Fettig, Bureau of Prisons Reverses Policy RE: Shackling of Pregnant Inmates in Federal Prison, DAILY
KOS (July 27, 2011, 2:27 PM), http://www.dailykos.com/story/2008/10/20/636336/-Bureau-of-Prisons-RevisesPolicy-RE:-Shackling-of-Pregnant-Inmates-in-Federal-Prisons.
153
Pub. L. No. 110-199, 122 Stat. 657 (2008).
154
Brief for Shawanna Nelson as Amici Curiae Supporting Appellee, Correctional Medical Services, et al. v.
Nelson, 583 F.3d 522, 8-14 (2009) (No. 07-2481), available at http://www.advocatesforpregnantwomen.org/main/
publications/brief_bank/.
155
ICCPR, supra note 7, Art. 7.
156
U.N. Hum. Rts. Comm., Concluding observations of the Human Rights Committee: United States of America,
87th Sess., ¶ 33, U.N. Doc. CCPR/C/USA/CO/3/Rev. 1 (Dec. 18, 2006), available at http://daccess-ddsny.un.org/doc/UNDOC/GEN/G06/459/61/PDF/G0645961.pdf?OpenElement .
157
UDHR, supra note 6, Art. 25(2).
158
ICESCR, supra note 5, Art. 12(1).
159
CEDAW, supra note 5, Art. 12(2).
160
See Brief for Shawanna, supra note 154, at 13.
150
18
In 2000, the United States passed legislation recognizing ―serious forms of trafficking‖ as
―recruitment, harboring, transportation, provision, or obtaining of a person for labor or services,
through the use of force, fraud, or coercion‖ in all forms of labor, including, but not limited to, sex
work,161 bringing domestic legislation in line with international standards governing trafficking in
persons.162 The Sex Workers Project (SWP) has repeatedly voiced concern about the U.S.
government‘s tendency to merge the dangers of trafficking with all sex work: ―conflating sex work
with trafficking into sex work erases the voices of sex workers, worsening the conditions of sex
workers and warping discussion of trafficking.‖163 This conflation deemphasizes the conditions of
those trafficked into manual and domestic labor, and criminalizes and further stigmatizes prostitution
(which can be a chosen occupation).164 The SWP released a report,165 based on qualitative data from
a medium-sized sample, which suggests that vice raids conducted by local law enforcement agencies
are an ineffective means of locating and identifying trafficked persons.
Several international human rights treaties offer a more nuanced approach to assisting sex
workers, whether they have chosen their profession or were coerced.166 The ICCPR contains various
rights related to humane treatment in criminal proceedings and access to legal assistance. 167 An SWP
report suggests that these rights, read together, offer protections from police violence and
unresponsiveness – both of which are great concerns for sex workers.168 ICESCR has several
standard of life provisions, which guarantee food, housing, health, and education. 169 These basic
rights improve the working conditions of sex workers‘ and relieve pressure for entering the
profession if they cannot find sufficient income in other work.170 Finally, CEDAW requires states to
create initiatives to address trafficking, as well as other conditions that can pressure women into sex
work, such as poverty and unemployment.171
iv. Domestic Violence/Assault
Domestic violence, or as it often called today, intimate partner violence, ―is violence
committed by a spouse, ex-spouse, or current or former boyfriend or girlfriend.‖172 It includes
161
See Trafficking Victims Protection Act, Pub. L. No. 106-386 (2000).
See Optional Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,
Nov. 15, 2000, 2237 U.N.T.S. 319; available at http://treaties.un.org/doc/source/RecentTexts/18-12-a.E.htm.
163
LISA DIANE SCHRETER & MARIELLEN MALLOY JEWERS, URBAN JUSTICE CENTER, THE DANGER OF CONFLATING
TRAFFICKING AND SEX WORK: A POSITION PAPER OF THE SEX WORKERS PROJECT AT THE URBAN JUSTICE CENTER 5
(Stephan Sastrawidjaja & Melissa Sontag, eds., 2007) available at http://www.sexworkersproject.org/mediatoolkit/downloads/20070330-BriefingPaperOnConflationOfTraffickingAndSexWork.pdf
164
Id. at 9.
165
The Sex Workers Project, The use of raids to fight trafficking in persons, Sex Workers Project 2009. This report
summarizes the findings of a human rights documentation project conducted by the Sex Workers Project in 2007
and 2008 to explore the impacts and effectiveness of current anti-trafficking approaches in the United States from a
variety of perspectives.
166
KIM MOSOLF, SEX WORKERS PROJECT, INTERNATIONAL HUMAN RIGHTS STANDARDS AND THE RIGHTS OF SEX
WORKERS 1 (June 2005) available at http://www.sexworkersproject.org/media-toolkit/downloads/20070330BriefingPaperOnConflationOfTraffickingAndSexWork.pdf.
167
ICCPR, supra note 7, at arts. 10 and 14.
168
MOSOLF, supra note 166, at 3-4.
169
ICESCR, supra note 5, at arts. 11, 12, and 13.
170
MOSOLF, supra note 166, at 3.
171
CEDAW, supra note 5, at art. 6 and General Recommendation No. 19.
172
NATIONAL CENTER FOR INJURY PREVENTION AND CONTROL, COSTS OF INTIMATE PARTNER VIOLENCE AGAINST
WOMEN IN THE UNITED STATES, ATLANTA (GA): CENTERS FOR DISEASE CONTROL AND PREVENTION, 3 (2003),
available at http://www.cdc.gov/ violenceprevention/pdf/IPVBook-a.pdf.
162
19
physical assault, rape, and threatening behavior like stalking.173 Although intimate partner violence
occurs in same-sex and heterosexual relationships, and affects all genders, women are the most
common victims. Approximately one in four women experiences domestic violence in her lifetime.174
In the United States, the legal framework for prosecuting incidents of domestic violence changed
drastically in the 1970s.175 Although the husband‘s formal right to chastise his wife went out of
fashion by the end of the Civil War,176 domestic incidents between spouses or co-habitants were
primarily conceived of as a ―private‖ affair,177 and only rarely did cases of abuse make it to trial (and
when they did, they disproportionately involved the poor or minority parties).178 As late as the 1960s
and 1970s, police manuals urged patrolmen to respond to domestic disturbances first as a
―negotiator‖ and to avoid making any arrests.179
With the advent of the civil rights discourse, domestic violence was partially reformulated to fit
the new rights-based framework. This movement is encapsulated in the Violence Against Women
Act‘s short-lived, federal cause of action for female victims of abuse (including domestic).180 The
Act also provides regional funding for violence prevention and victim assistance programs, and this
portion of the legislation has been repeatedly renewed.181 However, the right of action was ruled
unconstitutional in a Supreme Court decision in 2000.182 The Court held that Congress exceeded their
allotted powers in attempting to regulate marital relations in the states (the law was inconsistent with
principles of federalism). This holding is indicative of the American mindset regarding domestic
rights issues. Law professor Reva Siegel states the alternative visions: ―Does a woman‘s ability to
secure relief for such injuries bear on her status as an equal citizen of this nation? Or is this question
properly of local concern, implicating matters of family law and criminal law, but not matters of sex
discrimination or equal protection?‖183
The United States maintains an awareness of the scope and persistence of domestic violence,
and the current administration is committed to the continuing efforts at eradicating violence against
women more broadly.184 However, the federalist-inspired approach to preventing and prosecuting
domestic violence is a far cry from the human rights-based approach espoused by documents like
DEVAW. The Preamble of DEVAW recognizes that women cannot enjoy existing human rights (to
security, non-discrimination, equal protection, dignity) when they are faced with a disproportionate
risk of victimization.185 DEVAW calls on governments to create national remedies, punishments and
preventative measures for those perpetrating acts of violence against women.186 In contrast to the
U.S. v. Morrison holding, international human rights law identifies violence against women as an
173
Id. at 8.
And 85% of domestic violence victims are women. Domestic Violence Facts, NATIONAL COALITION AGAINST
DOMESTIC VIOLENCE (July 2007), available at http://www.ncadv.org/resources/FactSheets.php.
175
Siegel, Reva B., "―The Rule of Love‖: Wife Beating as Prerogative and Privacy" (1996). Faculty Scholarship
Series Paper 1092 at 2171, available at http://digitalcommons.law.yale.edu/fss_papers/1092.
176
Id. at 2130.
177
Id. at 2151-2152 (discussing privacy as the new justification for spousal immunity for abuse).
178
Id. at 2134-41.
179
Id. at 2171.
180
―Violence Against Women and Department of Justice Reauthorization Act of 2005,‖ Pub. L. 109-162 (2005)
(current version); ―Violence Against Women Act of 1994,‖ Pub. L. 103-322 (1994) (original version).
181
National Task Force to End Sexual and Domestic Violence Against Women, The Violence Against Women Act:
10 Years of Progress and Moving Forward (2004), www.ncadv.org/files/OverviewFormatted1.pdf.
182
United States v. Morrison, 529 U.S. 598, 627.
183
See Siegel, supra note 175, at 2201.
184
United States Department of Justice, National Advisory Committee on Violence Against Women, (updated June
2011), http://www.ovw.usdoj.gov/nac.html. The VAWA will have to be renewed again this year.
185
DEVAW, supra note 5, at ¶ 5.
186
Id. at Art. 4.
174
20
international concern, which dictates that women should be protected in order to ensure they can live
dignified lives.
v. LGBT Discrimination in the Workplace
The Employment Non-discrimination Act (ENDA) is a piece of purposed federal legislation
that would prohibit discrimination based on gender identity or expression and sexual orientation in
the workplace.187 It has been introduced repeatedly since 1994 but has never been passed.188
Although federal law does not demand this protection for LGBT workers, many states and cities have
passed local ordinances. A Human Rights Campaign Foundation Report reveals that 12 states and
more than 100 cities and counties prohibit employment discrimination based on both gender identity
and sexual orientation, while eight additional states and 80 cities and counties prohibit discrimination
based on sexual orientation alone.189 Despite a plethora of local initiatives, a majority of United
States citizens live in jurisdictions that do not provide protection from discrimination against LGBT
employees in the workplace.190 Federal legislation would clearly be beneficial: a survey showed that,
in areas where the LGBT non-discrimination legislation was in place, LGBT employees filed
complaints at a rate equal to employees claiming sex discrimination.191 ―Furthermore, gay men earn
10 percent less than their straight male counterparts, not including the lost benefits when employerprovided health insurance covers spouses but not partners.‖192
The Yogyakarta Principles, which interpret existing human rights law to articulate rights
relevant to LGBT individuals, would demand the passage of ENDA. The second Principle is the
Right to Equality and Non-discrimination, which ensures that LGBT individuals enjoy the same
rights on the same basis as others. ―States are obligated to ensure that [LGBT individuals] are
enabled to do so and, critically, that they do not experience any particular impediment due to
discrimination.‖193 Principle 12 is the Right to Work. The Yogyakarta Principles Activist Guide notes
that the right to work ―refers specifically to the right to decent work with favorable and just working
conditions.‖194 Discrimination in the workplace cuts against fair conditions of employment. Several
international human rights treaties also contain work-related entitlements that apply to all people.
The ICESCR lists the right to work as a human right and charges governments with creating
vocational and technical programs to ensure full economic involvement.195 The ICESCR specifies
that working conditions must preserve an individual‘s full economic and political freedoms. 196 The
UDHR also lists the right to work as a human right and demands that people be provided equal pay
for equal work.197
187
Employment Non-Discrimination Act, HUMAN RIGHTS COUNCIL http://www.hrc.org/laws_and_elections/enda.asp
(last visited July 28, 2011)
188
Timeline: Employment Non-Discrimination Act, HUMAN RIGHTS COUNCIL http://www.hrc.org/issues/
workplace/5636.htm (last visited July 28, 2011).
189
THE STATE OF THE WORKPLACE FOR LESBIAN, GAY, BISEXUAL AND TRANSGENDER AMERICANS 2007-2008 1,
HUMAN RIGHTS CAMPAIGN FOUNDATION (revised Feb. 20, 2009), available at
http://sites.hrc.org/about_us/7061.htm.
190
Id. at 2.
191
Id.
192
Id.
193
QUINN, supra note 3, at 46.
194
Id. at 56.
195
ICESCR, supra note 5, art. 6.
196
Id. at art. 6(2).
197
UDHR, supra note 6, art. 23(2).
21
In an encouraging development, the White House issued a presidential memorandum on
December 6, 2011 to the heads of executive departments and agencies, directing that all agencies
engaged abroad ensure that ―U.S. diplomacy and foreign assistance promote and protect the human
rights of LGBT persons.‖198 This memorandum directs agencies to, among other things, combat the
criminalization of LGBT status or conduct abroad, protect vulnerable LGBT refugees and asylum
seekers, and use foreign assistance ―to protect human rights and advance nondiscrimination.‖
Conclusion
Pursuing a human rights-based approach to sexual rights would change many harmful
practices targeting sexuality, sexual orientation, or gender identity in the United States. A
comparison of the progress of sexual rights in international law and laws and practices in the United
States shows that the United States can improve protections of women and LGBT persons through
human rights-based laws and policies. Without access to such international treaties as CEDAW,
sexual rights advocates in the United States must make arguments under domestic law, which is more
limited and has not resulted in a recognized right to sexual autonomy. Incorporating human rights
law and the developing concepts of sexual autonomy into domestic law can reframe issues that have
been subject to cultural assumptions and stigmas, affording dignity for all Americans.
198
Presidential Memorandum – International Initiatives to Advance the Human Rights of Lesbian, Gay, Bisexual,
and Transgender Persons, DAILY COMP. PRES. DOC. (Dec. 6, 2011), available at http://m.whitehouse.gov/the-pressoffice/2011/12/06/presidential-memorandum-international-initiatives-advance-human-rights.
22