The International Covenant on Economic, Cultural and Social Rights enshrines the right of everyone to adequate housing, without discrimination, and requires States parties to immediately adopt the necessary measures to prevent, diminish and eliminate the conditions and attitudes which cause or perpetuate substantive or de facto discrimination in access to housing.290 This includes legislation to ensure that individuals and entities in the private sphere do not discriminate on prohibited grounds, 291 including sexual orientation, gender identity and sex characteristics.
LGBT people experience discrimination in access to housing as a result of unfair treatment by public and private landlords. Concerns include LGBT individuals and same-sex couples denied leases, harassed by neighbours and evicted or forced out of their homes, including in public housing.292 More research needs
285 See, for example, International Labour Organization, “Fierté (PRIDE) au travail: une étude sur la discrimination au travail pour motifs d’orientation sexuelle et d’identité de genre (en France)”, ILO, 2016, pp. 47, 49; “PRIDE at work: A study on discrimination at work on the basis of sexual orientation and gender identity in Thailand”, ILO, 2015, pp. 30-33; “PRIDE at work: a study on discrimination at work on the basis of sexual orientation and gender identity in Indonesia”, ILO, 2016, p. 23.
286 International Labour Organization, “Discrimination at work on the basis of sexual orientation and gender identity: Results of the ILO’s PRIDE Project”, 2015, p. 1.
287 International Labour Organization, “Discrimination at work on the basis of sexual orientation and gender identity: Results of the ILO’s PRIDE Project”, 2015, p. 2.
288 Jones, Carpenter et al, “Intersex: stories and statistics from Australia”, Open Book Publishers, 2016.
289 OHCHR, Living Free and Equal: What States are doing to tackle violence and discrimination against lesbian, gay, bisexual, transgender and intersex people, 2016, p. 67.
290 International Covenant on Economic, Social and Cultural Rights article 11(1), Committee on Economic, Social and Cultural Rights, General Comment No. 7 (E/1992/23), 1992 and General Comment No. 20 (E/C.12/GC/20), 2009, para. 8.
291 Committee on Economic, Social and Cultural Rights, General Comment No. 20 (E/C.12/GC/20), 2009, para. 11.
292 Report of the Special Rapporteur on the right to housing (A/70/270), 2015, para. 49. See also European Union Agency for Fundamental Rights, EU LGBT Survey: Results at a Glance, 2014, p. 18.
to be undertaken to assess the level of discrimination faced by intersex people in accessing housing.
The Special Rapporteur on housing has noted that individuals facing discrimination on the basis of sexual orientation or gender identity are at greater risk of homelessness.293 In a 2015 report, she also noted that LGBTI young people face stigmatization and social exclusion from their families and communities, are more vulnerable to violence and are more likely to be turned away from shelters.294 The Special Rapporteur on water and sanitation has drawn attention to research from India indicating that transgender persons face difficulties in finding rental housing and are often forced to live in remote slum areas.295
A 2012 survey of 354 support agencies in the United States suggested that some 40 per cent of homeless youth identify as LGBT, with family rejection the leading cause of homelessness among this group.296
293 Reports of the Special Rapporteur on the right to housing (A/HRC/31/54), 2015, paras. 39, 44, 87;
(A/HRC/31/54/Add.2) 2016, para. 52; (A/70/270) 2015, para. 49; (A/69/274), 2014, para. 12;
(A/HRC/19/53), 2011, paras. 50, 51, 63.
294 Report of the Special Rapporteur on the right to housing (A/HRC/31/54) 2015, para. 44.
295 Report of the Special Rapporteur on water and sanitation (A/HRC/33/49) 2016, para. 30.
296 See “Serving Our Youth”, Williams Institute, True Colors Fund and the Palette Fund, 2012, p. 3; Report of the United Nations High Commissioner for Human Rights on discrimination and violence based on sexual orientation and gender identity (A/HRC/29/23), 2015 para. 59.
© Photo by Mick De Paola on Unsplash
I. RECOGNITION OF GENDER IDENTITY
Everyone has the right to recognition as a person before the law, including persons of diverse gender identities.297 Each person’s self-defined gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom.298 Legal recognition of the gender identity of transgender persons is also important in relation to protection from violence, torture and ill-treatment, discrimination, rights to health, education, employment and housing, access to social security, political participation and freedom of movement.299 This includes persons who have non-binary gender identities.300 In spite of recent advances, in most countries transgender persons are generally still unable to obtain legal recognition of their gender identity, including changes to their recorded sex and first name on State-issued identity documents.301 Most States that do have procedures for trans people to change the name and/or gender recorded on their documents often impose lengthy and costly court proceedings, and abusive requirements, as a precondition of recognition of gender identity – for example, by requiring that applicants be unmarried (or obtain divorce) and undergo forced or coerced sterilization, gender reassignment surgery, other medical procedures, diagnosis or medical certification, in violation of international human rights standards.302 This contributes to and exacerbates the many other rights abuses faced by trans people, including in education, employment, health, housing, applying for bank credit or State benefits, or when travelling abroad.303
297 Universal Declaration of Human Rights, art. 6; International Covenant on Civil and Political Rights, art. 16;
Convention on the Elimination of All Forms of Discrimination against Women, art. 15; Convention on the Rights of the Child, art. 8.
298 Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity, Principle 3.
299 See Report of the United Nations High Commissioner for Human Rights, on discrimination and violence based on sexual orientation and gender identity (A/HRC/29/23), 2015 paras. 69-70; Report of the United Nations Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, on a visit to Malaysia (A/HRC/29/33/Add.1), 2015, para. 84.
300 Around the world, a significant number of people identify with a wide diversity of gender identities, including hijra, third gender, khwaja sira, two-spirit, fa’afafine, genderqueer, muxe, waria and meti.
301 Transgender Europe, Trans Respect versus Transphobia project: Legal Gender Recognition, 2017; ILGA:
Chiam, Z., Duffy, S. and González Gil, M., Trans Legal Mapping Report 2017: Recognition before the law (November 2017); UNDP, APTN, Legal Gender Recognition: A Multi-country Legal and Policy Review, 2017.
302 Report of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, (A/73/152), 2018, paras. 28-32; Report of the United Nations High Commissioner for Human Rights on discrimination and violence based on sexual orientation and gender identity (A/HRC/29/23), 2015, para. 70; Human Rights Committee, Concluding Observations on Ireland (CCPR/C/IRL/CO/4), 2014, para. 7; on Ukraine (CCPR/C/UKR/CO/7), 2013, para. 10; Report of the Special Rapporteur on torture (A/HRC/22/53), 2013, para. 88; also OHCHR, UN-Women, UNAIDS, UNDP, UNFPA, UNICEF and WHO, “Eliminating forced, coercive and otherwise involuntary sterilization:
an interagency statement”, 2014.
303 Report of the United Nations High Commissioner for Human Rights on discrimination and violence based on sexual orientation and gender identity (A/HRC/29/23), 2015, para. 69.
United Nations human rights mechanisms have stressed that in order to fulfil international human rights obligations, States should respect the physical and psychological integrity of transgender persons and legally recognize their self-identified gender without additional requirements that may violate human rights.304 States should provide for a simple administrative process, allow for recognition of non-binary identities, and give minors access to recognition of their gender identity.305
304 Report of the United Nations High Commissioner for Human Rights on discrimination and violence based on sexual orientation and gender identity (A/HRC/29/23), 2015, para. 79 (i); Human Rights Committee, Concluding Observations on Ireland (CCPR/C/IRL/CO/4), 2011, para. 7, (CCPR/C/IRL/CO/4), 2014, para. 7; on Ukraine (CCPR/C/UKR/CO/7), 2013, para. 10; on the Republic of Korea (CCPR/C/KOR/
CO/4), 2015, paras. 14-15; Committee on the Elimination of Discrimination against Women Concluding Observations on the Netherlands (CEDAW/C/NLD/CO/5), 2010, paras. 46-47; Committee against Torture, Concluding Observations on Hong Kong, China (CAT/C/CHN-HKG/CO/5), 2016, para. 29(a).
305 OHCHR, Living Free and Equal: What States are doing to tackle violence and discrimination against lesbian, gay, bisexual, transgender and intersex people, 2016, p. 95.
© UNFPA Brazil/Webertda Cruz
POSITIVE PRACTICE
Argentina – Gender Identity Law
In 2012, Argentina adopted pioneering legislation which established the right of all persons to legal recognition of their gender identity. It establishes a simple and free administrative process through the Civil Registry to correct gender markers, names and photos on identity documents and in public records when they are not aligned with a person’s self-identified gender identity. The law specifically prohibits any requirements with regards to surgery or psychological or medical treatment to obtain such recognition. It also enshrines the right to be treated with dignity, and stipulates that all public and private actors must respect a person’s gender identity, including their self-identified name, regardless of whether this aligns with the information on their national identity document. The law also establishes the right of all adults to access, should they wish to, partial or comprehensive hormonal treatment and surgery to adjust their bodies, in line with their gender identity, as part of their right to comprehensive health, and on the basis of their informed consent.
Such procedures are mandated to be included in the basic national public health insurance scheme.
The law establishes the right of minors to have their gender identity legally recognized through their legal representative, on the basis of the express consent of the minor, taking into account the evolving capacities and best interests of the child, in line with the provisions of the Convention on the Rights of the Child.306