LGBT Employment Discrimination in National and International Law

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The level of protection for LGBT (Lesbian, Gay, Bisexual, and Transgender) individuals as a protected class in human rights law has been put into question in recent years. Article 2, paragraph 2 of the ICESCR says the following:
The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status (UN General Assembly).
Protection for sexual orientation and gender identity minorities has been left to the inscrutable “other class.” Recent general comments have provided more explicit direction for member parties in interpreting the prescriptions of the covenant. First, in 2000, general comment 14 clarified sexual orientation as protected as it pertains to access to healthcare. Then in 2002, general comment 15 did the same for access to water and sanitation. The crucial turning point for employment discrimination based on sexual orientation came in 2005 with the adoption of general comment 18, focusing on the right to work. Finally, general comment 20, adopted in 2009, made general updates to ICESCR’s non-discrimination law, including the following:
“Other status” as recognized in article 2, paragraph 2, includes sexual orientation ... In addition, gender identity is recognized as among the prohibited grounds of discrimination (UN CESCR).
These comments all ultimately derive from a UNHRC 1994 decision, where the committee found that protection for sexual orientation could be found under the more general protected class “sex” (Toonen v. Australia).
The history of LGBT anti-discrimination in international l...

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... 3, available at: http://www.ohchr.org/Documents/ProfessionalInterest/ cescr.pdf UN Human Rights Council. Discriminatory Laws and Practices and Acts of Violence
Against Individuals Based on Their Sexual Orientation and Gender Identity. New York. 2011.
19session/a.hrc.19.41_english.pdf>
UN Office of the High Commissioner for Human Rights. Born Free and Equal: Sexual
Orientation and Gender Identity in International Human Rights Law. New York. 2012.
BornFreeAndEqualLowRes.pdf>
Toonen v. Australia, CCPR/C/50/D/488/1992, UN Human Rights Committee
(HRC), 4 April 1994, available at: http://www.refworld.org/docid/
48298b8d2.html
Vallianatos and Others v. Greece. European Court of Human Rights. 7 Nov. 2002.

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