Human rights of LGBT+ people: global overview

International human rights law

International human rights law states that every person, “without distinction”, should be able to enjoy their human rights: they are universal. UN human rights treaty bodies have confirmed that international law prohibits discrimination based on sexual orientation, gender identity and sex characteristics. For example, the UN states that criminalising private sexual relationships between consenting adults, whether they are same-sex or different-sex, is a violation to the right to privacy. It says that laws criminalising consensual same-sex relationships are discriminatory, and where enforced, violate rights to freedom from arbitrary arrest. Criminalising transgender people on laws such as those that specifically ban “cross-dressing” violates a person’s fundamental rights to non-discrimination, freedom of expression, and freedom from arbitrary arrest and detention.

This position has been established in decisions and general guidance issued by several treaty bodies, such as the United Nations Human Rights Committee, the Committee on Economic, Social and Cultural Rights, the Committee on the Rights of the Child, the Committee against Torture, and the Committee on the Elimination of Discrimination against Women.

Several countries have laws that provide for the death penalty to be given to adults who have taken part in consensual same-sex acts. International human rights law provides that states that have kept the death penalty can only use it for the “most serious crimes”, a principle enshrined in the International Covenant on Civil and Political Rights (ICCPR). The UN Human Rights Committee has stated that “under no circumstances can the death penalty be applied as a sanction against conduct whose very criminalisation violates the covenant, including homosexuality”. The UN Special Rapporteur on the right to health stated that the use of the death penalty for consensual same-sex acts is “not only unconscionable, but further represents arbitrary deprivation of life”; an infringement of the right to life recognised in article 6 of the ICCPR. The use of the death penalty has been condemned by the UN Secretary General and the UN High Commissioner for Human Rights.

Human rights violations

Despite the existence of protections against discrimination, enshrined in international law, the UN and other civil society organisations (CSOs) regularly report human rights violations against LGBT+ people. These include:

  • Violent attacks including physical and mental abuse, kidnap, rape, and murder.
  • Discriminatory laws, including those that criminalise consensual same-sex relationships.
  • Discriminatory curbs on freedom of speech and expression.
  • Discriminatory treatment in a range of everyday settings such as the workplace, education, family homes and healthcare.

Legislation on sexual orientation and gender: domestic laws

ILGA World, an international LGBT+ association that has consultative status with the UN Economic and Social Council (ECOSOC), publishes an annual world survey of sexual orientation laws. The main findings of its 2020 edition included:

  • There were 67 UN member states that criminalise consensual same-sex conduct, with two additional UN member states with de facto criminalisation. There was one non-independent jurisdiction, the Cook Islands, that criminalises same-sex sexual activity.
  • ILGA World had “full legal certainty” that the death penalty was the legally given punishment for consensual same-sex sexual acts in six UN member states, namely: Brunei, Iran, Mauritania, Nigeria (12 northern states only), Saudi Arabia and Yemen.
  • There were five other UN member states where sources indicated that the death penalty may be imposed. These countries are Afghanistan, Pakistan, Qatar, Somalia (including Somaliland) and the United Arab Emirates.
  • ILGA World was able to track at least 42 UN member states where there were legal barriers for freedom of expression on issues related to sexual and gender diversity.
  • There were 57 UN member states, one non-member state and 28 non-independent jurisdictions, including the Isle of Man and Jersey, with provisions that confer broad protection against discrimination based on sexual orientation.
  • There were 45 UN member states, one non-member state, and 20 non-independent jurisdictions with provisions prohibiting incitement to hatred, violence or discrimination based on sexual orientation.
  • A total of 28 UN member states allowed same-sex marriage, with one other non-UN member state and 30 non-independent territories also having marriage equality.
  • A total of 34 UN member states had legal recognition of same-sex partnerships, with one other non-UN member state and 20 non-independent territories also recognising such unions to varying degrees.

Further information about legal provisions within specific states can be found in ILGA World’s 2020 edition.

Covid-19 pandemic: impact on the human rights of LGBT+ people

The Covid-19 pandemic has had a “disproportionate impact” on LGBT+ people according to the UN’s independent expert on protection against violence and discrimination based on sexual orientation and gender identity (IE SOGI).

In a report to the UN General Assembly, the IE SOGI presented evidence that showed the pandemic response worsened the patterns of social exclusion and violence:

  • Stay-at-home orders increased stress, isolation and exposure to family abuse, which made LGBT+ people more vulnerable to the risk of violence and poor mental health.
  • Restriction of movement led to abuse, with reports of selective arrests, arbitrary detention, and an increase in hate crimes, including on social media.
  • LGBT+ people are disproportionately represented in the poorer ranks of communities, people experiencing homelessness, and those without healthcare. As a result, they have been particularly affected by the pandemic. For example, LGBT+ persons experiencing homelessness are often put in social housing where they are at risk of abuse.
  • LGBT+ people are also more likely to work in industries that have been disrupted by the pandemic, such as catering and retail.
  • A disruption to care and services, such as access to HIV treatment, because of Covid isolation measures.
  • Border closures and restrictions on travel increased the risk of homophobia and stigmatisation. In some cases, this led to a “regression” in asylum and refugee policies, increased violence against LGBT+ people in their country of origin, and the risk of widespread Covid-19 infection in refugee camps.

The report called for states to recognise the status of LGBT+ people within their jurisdiction. The IE SOGI said that states must:

  • Acknowledge the increased risk to violence and discrimination for LGBT+ persons because of the pandemic response. The report highlighted good practices by Spain and Peru, which published guidance on the different economic support programmes available to LGBT+ people.
  • Remove stigma and protect LGBT+ people from violence and discrimination. The report highlighted an instance in South Korea. After a cluster of cases that was traced to a prominent gay club resulted in “a flood of homophobic sentiment nationally”, the government called on journalists and the media to prevent personal information from leaking. Also, in France, a new homophobia reporting app was launched, specifically designed for LGBT+ audiences.
  • Improve data gathering, with the involvement of LGBT+ organisations, so that government responses can be based on evidence. For example, in Pennsylvania, a health disparity task force gathered data on sexual orientation and gender identity when studying Covid to make sure specific needs of the LGBT+ population were considered when forming policy.

The UK Government has urged states not to use Covid-19 as an “excuse for repressive, discriminatory action” against LGBT+ people. For example, the British embassy in Panama raised concerns about the impact of gender-based Covid-19 restrictions on the country’s transgender community, which limited their physical access to healthcare and public services.

UK Government LGBT+ human rights programmes

In the 2020/21 financial year the UK Government committed £5.4 million to targeted international LGBT+ rights programmes. The Foreign, Commonwealth and Development Office (FCDO) Human Rights and Democracy report for 2020 set out the Government’s initiatives and UK-backed programmes:

In May 2021, the Government confirmed its earlier stated intention to ban conversion therapy. The Government said that as soon as parliamentary time allows, and following a consultation, the ban will be introduced in parliamentary legislation. It also announced that new funding will be made available to increase support for victims of conversion therapy.

UK Government asylum policy: impact on LGBT+ people

New Plan for Immigration

The UK Government has committed to working “closely” with organisations specialising in asylum and human rights protection to LGBT+ communities, within its own asylum system. The Government state it is working with these organisations to develop “bespoke guidance and training products”. LGBT+ asylum seekers can also access support from Rainbow Migration (formerly known as the UK Lesbian and Gay Immigration Group (UKLGIG)) who can guide people through the asylum procedure. It offers one-to-one and group peer support to claimants.

In March 2021, the Home Secretary Priti Patel launched the Government’s New Plan for Immigration. The new plan contained proposals relating to asylum. The Government set out its preference for people in need of protection to come to the UK via organised ‘safe and legal’ routes, such as refugee resettlement, rather than by making irregular journeys and spontaneously claiming asylum after arrival. The plan also outlined measures intended to support people fleeing persecution. It contained commitments to provide refugee resettlement places, grant resettled refuges immediate indefinite leave to remain upon arrival in the UK, and consider a new process to enable people in urgent need of protection to travel directly to the UK from their country of origin.

In July 2021, the Nationality and Borders Bill was introduced in the House of Commons. The bill would implement many of the measures contained in the New Plan, including provisions to deter and penalise irregular journeys to the UK and late claims for asylum. The bill allows for offshore processing of asylum claims. The bill received its second reading on 19 July 2021.

Response to the proposals

Rainbow Migration has criticised the Government’s proposals, saying that changes to the asylum system could “disproportionately impact” LGBT+ people. It has described the proposals as “harsh”. It states that many are not aware they can be given protection on account of being LGBT+. It highlights that many LGBT+ people have lived for years in fear of talking about their sexual orientation or gender identity, so they often apply for asylum long after arriving in the country. Rainbow Migration also criticised the need to provide evidence to “prove” they are LGBT+.

In response to some of the criticisms, the Home Office said that mitigations will be put in place to prevent any “unlawful indirect discrimination”. Mitigating actions are to include appropriate training of relevant staff, including first responders, and in particular social workers and carers, who will help in the identification of vulnerable individuals. Clear guidance will be given to operational teams on areas such as interviewing, and claimants will be able to choose the gender of their interpreter and interviewer. The Government has said that consideration will be given to any explanation offered for not seeking protection at the first available opportunity, or for not disclosing the issue of sexuality or gender identity as a claim basis at the first available opportunity.

Shadow Home Secretary Nick Thomas-Symonds said the Nationality and Borders Bill was “so badly drafted” that it will increase the risks for those fleeing persecutions. He said that was “particularly chilling” when considering the “scale of the dangers faced by so many LGBT+ people across the world”.

What next?

Lord Scriven (Liberal Democrat) has tabled the following question for short debate (QSD) in the House of Lords:

To ask Her Majesty’s Government what assessment they have made of the human rights of LGBT+ people across the world; and how that assessment influences the United Kingdom’s asylum system.

At time of writing no date for debate has been scheduled.

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Cover image by Ian Taylor from Unsplash.