Advancement of Human Rights Standards for LGBT People through the Perspective of International Human Rights Law

By Cviklová, Lucie | Journal of Comparative Research in Anthropology and Sociology, Winter 2012 | Go to article overview

Advancement of Human Rights Standards for LGBT People through the Perspective of International Human Rights Law


Cviklová, Lucie, Journal of Comparative Research in Anthropology and Sociology


Abstract

The article addresses the issue how various religious and legal systems cope with current developments that undermine binary opposition of man and woman including definition of their sexual and cultural identities. More concretely, it tries to explain, how concrete societies and legislations deal with claims of lesbians, gays, bisexuals, and transsexuals (LGBT) that claim broader recognition. It elucidates differences among Western provisions and policies of the relevant legal bodies such as the General Assembly of the United Nations, the European Court of Human Rights and the Supreme Court concerning these issues. It also points to the nature and real impact of international civil society forces such as Yogyakarta principles that formulate extension of rights concerning lesbians, gays, bisexuals, and transsexuals. On the basis of comparison of various legal and religious discourses it explains current practices of direct and indirect discrimination and in some non-European national systems even extra-judicial killings, torture and ill-treatment, sexual assault, rape and other violations of human rights. When emphasizing substantial differences among current European states and non-European ones concerning policies toward lesbian, gay, bisexual and transgender people (LGBT), it shows current tendencies of advancement in the field by common policies of Council of Europe, recent judgments issued by the European Court of Human Rights as well as civil society efforts such as Yogyakarta principles. Swedish standards have been introduced in order to emphasize existing progressive attitudes to LGBT people concerning gay marriages and adoption procedures.

Keywords

Case law, homosexuality, LGBT people, religion, Sweden, Yogyakarta principles

Introduction

How do various religious and legal systems cope with current developments that undermine the binary opposition of men and women that implies definitions of their sexual and cultural identities as well as their roles? More concretely, how do concrete societies and legislations deal with claims of lesbians, gays, bisexuals and transsexuals (LGBT) that would like to gain broader recognition? What are the differences among Western provisions and policies of the relevant legal bodies such as the European Court of Human Rights or the Supreme Court concerning these issues? Could one find common policies in Western societies and Christian churches or can one identify substantial distinctions among these entities? What is the nature and real impact on international civil society forces such as Yogyakarta principles that formulate extension of rights concerning lesbians, gays, bisexuals and transsexuals (LGBT)?

Issues of gender identity and sexual orientation have been reflected and integrated in Western scholarship focusing on gender arrangements and have been regulated by black letter laws, softlaws and social customs. For example French philosopher Michel Foucault has argued that a different understanding of sexual austerity has been a consistent and common feature from Antiquity through the texts of Christianity to the modern epoch, but the terms in which it has been expressed have been frequently reformulated in very different ways; in Western civilization there has undoubtedly been a tendency to associate the theme of sexual austerity with various social, civil and religious taboos and prohibitions (Foucault, 1990). For example moral considerations of sexual condition were subject to a fundamental gender dissymmetry and the moral system was produced by and addressed purely to free men, to the exclusion of women, children and slaves.2

Thus the system did not attempt to define a field of conduct and an area of valid rules for relations between men and women but provided an "elaboration" of male point of view in order to give shape to their conduct. The emergence of Christianity did not transform people's relationship to their own sexual activity but gender arrangements were marked by an introduction of a novel code of sexual behaviour. …

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