LUPblog

Sexual Orientation in International Human Rights Law

26th of June
By Mara, Event Manager at LUP

On the 1st of June LUP hosted a lecture given by Kees Waaldijk (LLM Rotterdam, PhD Maastricht) about sexual orientation in international human rights law. Kees Waaldijk has contributed to the family law of gay and lesbian couples in the Netherlands, has co-written the book “Sexual Orientation Discrimination in the European Union” and has been developing a Global Index on Legal Recognition of Homosexual Orientation. Moreover, he teaches a course in Comparative Sexual Orientation Law and organises the Summer School on Sexual Orientation and Gender Identity in International Law for Leiden University.

Kees started with discussing the difference between gender and identity and then proceeded to discussing how international law deals with these concepts, by showing how different international legal instruments do either not deal with sexual orientation, gender and identity at all, or attempt to incorporate these themes, but still require improvement. Over the years, the definition of sexual orientation has been edited quite some times. He also showed us how sometimes “progressive changes” can be wrongfully interpreted later on. As an example of the latter case, the Yogyakarta Principles were discussed: the Principles, which reflect the entitlement to human rights of the LGBTI+ community and universally accepted human rights in general, do for instance affirm that LGBTI+ are equally deserving of the protection of internationally established human rights, but do not include a groundbreaking introduction of ‘new’ human rights, nor do the Principles form ‘hard law’. The wording of the Principles is also tentative and little attention is paid to e.g. intersex; thus, a lot of improvement can be made in the future.

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After discussing these Principles and some of the agencies and committees involved in international human rights protection, Kees touched upon various cases related to sexual orientation law and offered an overview of developments in this field, for instance by explaining the rulings in Dudgeon (1981), Toonen v. Australia (1994) and Sutherland v. United Kingdom (2001). Then he continued to discuss how criminalization and decriminalization of homosexuality has developed in several countries, using the Global Index on Legal Recognition of Homosexual Orientation, which -among other things- indicates the state of decriminalisation of homosexuality and the national legal tools in place to prohibit discrimination and to enable legal recognition to same-sex couples for many countries with accessible data on these topics.

Finally, Kees mentioned the upcoming ruling in the Coman case and a brief discussion of the right to marriage followed; by now, we know that the Court ruled that EU countries are obliged to recognise the rights of same-sex spouses, even if the particular EU country has not legalised same-sex marriage.

“I found it very interesting, to get to know more about global developments regarding the legal acceptance of LGBTQI+ over the years. Professor Waaldijk taught us a lot about how international law deals with sexual orientation, gender and identity and made us think critically about existing legal instruments while he explained various rulings of e.g. the CJEU. Consequently, he offered us a brief yet impressive overview of topics comparative sexual orientation law, his field of expertise. I will never forget the ‘right to relate’, since I feel like in the end, it may be all you need!” – Myrte

We would like to thank everyone who visited the lecture and Kees for the interesting and interactive lecture about comparative international sexual orientation law.

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