God V. Gays? the Rights of Sexual Minorities in International Law as Seen through the Doomed Existence of the Brazilian Resolution

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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. …