LGBT Rights as Human Rights

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For the first time, a declaration on LGBT rights was read in the United Nations General Assembly yesterday. (The New York Times  story can be found here.) The declaration, which won the support of 66 countries and was read by Ambassador Jorge Arguello of Argentina, seeks to decriminalize sexual orientation and gender identity. From the Human Rights Watch news release:

“The 66 countries reaffirmed ‘the principle of non-discrimination, which requires that human rights apply equally to every human being regardless of sexual orientation or gender identity.’ They stated they are ‘deeply concerned by violations of human rights and fundamental freedoms based on sexual orientation or gender identity,’ and said that  ’violence, harassment, discrimination, exclusion, stigmatization and prejudice are directed against persons in all countries in the world because of sexual orientation or gender identity.’

“The statement condemned killings, torture, arbitrary arrest, and ‘deprivation of economic, social and cultural rights, including the right to health.’ The participating countries urged all nations to ‘promote and protect human rights of all persons, regardless of sexual orientation and gender identity,’ and to end all criminal penalties against people because of their sexual orientation or gender identity.”

An opposing statement, which was supported by 60 countries, was read by the Syrian representative to the United Nations.

In a move that should surprise absolutely no one, the United States did not support the declaration in favor of LGBT rights. According to the New York Times:

“The official American position was based on highly technical legal grounds. The text, by using terminology like ‘without distinction of any kind,’ was too broad because it might be interpreted as an attempt by the federal government to override states’ rights on issues like gay marriage, American diplomats and legal experts said.”

I wonder if anyone bothered to tell these diplomats and legal experts that the federal government already overrides states’ rights on issues like same-sex marriage through the federal Defense of Marriage Act.  (See  1 U.S.C. § 7.)  Even when a state like Massachusetts or Connecticut recognizes same-sex marriages, the federal government obstinately refuses to recognize those marriages even though it has traditionally deferred to the states on questions of marital status.  

In another LGBT rights victory at the United Nations yesterday, the General Assembly adopted a resolution condemning extrajudicial executions. The resolution, as passed, contains a specific reference to killings based on sexual orientation. Uganda had moved to delete that reference; however, that motion was rejected 78-60.

If you are interested in LGBT rights as human rights, you should check out the Yogyakarta Principles here.

-Tony Infanti

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0 Responses to LGBT Rights as Human Rights

  1. Pingback: A Very Political Woman » Blog Archive » The Best of the Rest–Friday, December 19, 2008

  2. YF says:

    Does DOMA really override states rights? It weakens the full faith and credit clause, which to me looks like a federal limitation on the powers of the individual states. . . I agree with the overall point that the Federal Government is far from neutral on LGBT matters, but I don’t know that I’d characterize DOMA as limiting a state’s right to regulate marriage as they see fit.

  3. Ann Bartow says:

    YF, As Tony explains above, DOMA defines marriage as a legal union between one man and one woman for purposes of all federal laws, in addition to making it so that states do not have to recognize a marriage from another state if it is between persons of the same sex. Thus his observation:

    Even when a state like Massachusetts or Connecticut recognizes same-sex marriages, the federal government obstinately refuses to recognize those marriages even though it has traditionally deferred to the states on questions of marital status.

  4. Tony Infanti says:

    Ann is correct. There are two parts to DOMA: one that speaks to the application of the full faith and credit clause as it applies to the recognition of out-of-state same-sex marriages (codified at 28 U.S.C. § 1738C), and another that flatly states that only different-sex marriages will be recognized for purposes of federal law (codified at 1 U.S.C. § 7 and referred to in my post). If the federal government were really concerned about refraining from interfering with states’ rights, it never would have enacted the latter provision.

  5. bob coley jr says:

    The battle over the boundaries of federal power and state power seems always to revolve around the wishes of the powerful and less about the riights of all people to be self determining in their lives. To use a quote from C,S,N,&Y from another time, “in a land that’s known as freedom, how can such a thing be fair?” Why do people that don’t want to be told what is right tell others what is or isn’t? Makes no sense, flies in the face of American principles. When I heard the interview with the person that will speak at the inaguration justify his stance on the grounds that for 5000 years it has been this way, I thought does this mean war, misogany, class opression, etc. and all things that have existed for a long tiime are right?

  6. amitbindal says:

    Sexual orientation as a human right needs to be asserted…and as Joseph RAZ argues that State is duty bound to take positive steps in order to promote ‘individual autonomy’. Further, as past colonial histories of third world nation-states affect their post colonial presents, this issue needs to be combated at a cultural debate as well.