A Principled Analysis of Sexuality and Gender Diversity Rights in International and Regional Human Rights Jurisprudence
Since 1955, 320 cases on sexuality and gender diversity rights have been interpreted and considered by the European Court of Human Rights, the Inter-American Court of Human Rights, the Court of Justice of the European Union, and several United Nations Committees. This thesis critically analyses this jurisprudence by developing an analytical framework to map, measure and evaluate the extent to which it protects and promotes the rights of sexual minorities and gender diverse people. The initial chapters establish this analytical framework and comprehensively review the theoretical and empirical literature on sexuality and gender diversity, identifying common and essential themes. The literature review considers theoretical works by queer theorists, intersectional scholars, and empirical literature in psychology, anthropology, ethnography and linguistics. These works highlight several critical themes that are developed into three analytical principles used to analyse the jurisprudence. Principle A states that courts and committees must recognise that sexuality and gender diversity concepts are socially constructed, complex and diverse. Principle B states that courts and committees must recognise the detrimental impacts of discrimination, prejudice and violence. Principle B also states that courts and committees must recognise and sanction the use of prejudicial stereotypes and assumptions about sexuality and gender diversity, as these concepts underpin discrimination, prejudice and violence. Principle C states that courts and committees should prioritise self-determination in cases involving sexuality or gender diversity rights. The analytical framework is used to undertake a rigorous, empirically grounded evaluation of how the existing system succeeds and fails to protect sexuality and gender diversity rights. The substantive jurisprudence is comparatively analysed and referenced in case chapters based on subject matter and key themes argued. Each substantive chapter highlights the critical issues in each area of law, identifies and discusses cases that demonstrate the principles and critiques cases that do not, arguing how the jurisprudence could be improved if the principles are applied. Principle A is not demonstrated in the jurisprudence on relationship rights, social and economic discrimination, parenting discrimination and gender diversity rights. Courts and committees generally do not recognise that sexuality and gender are socially constructed and do not appreciate the complexity and diversity of these concepts. Principle B is demonstrated in the jurisprudence on state-supported violence, perception-based discrimination and some other non- discrimination cases, but is not demonstrated in cases on relationship rights, social and economic discrimination, parenting discrimination cases. The jurisprudence on freedom of expression and assembly rights and criminalised sexuality and non-refoulement reflects a mixed approach to demonstrating Principle B. Principle C is evident in only a small number of cases, most notably in the jurisprudence of the Inter-American Court. Implementing Principle C is essential to improving the jurisprudence on sexuality and gender diversity rights to ensure that jurisprudence accords with and validates applicants' self-determination, lived experience and well-being. The Principles rely on each other for implementation. This thesis argues that implementing the Principles results in jurisprudence that recognises applicants' self-determination and life experiences, challenges courts and committees to better recognise the impacts of rights violations. Applying these three fundamental principles to fundamental sexuality and gender diversity rights and their interpretations will enhance sexuality and gender diversity jurisprudence and the lives of individual applicants.
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