102 Human Rights Review, January-March 2005

Lesbian, Gay, Bisexual, and Transgender Rights and

the Religious Relativism of Human Rights
D.Ø. Endsjø

Lesbian, gay, bisexual, and transgender (LGBT) rights are human rights.
That LGBT people are not mentioned specifically in any international human
rights convention does not mean that their fundamental rights are excluded
from the protection offered by these conventions. As Eric Heinze argues in the
monograph, Sexual Orientation: A Human Right: An Essay on International
Human Rights Law, “those rights of sexual orientation which can be called
fundamental human rights do not qualitatively differ from extant human rights
in general. … It is for this reason that we need not ‘create’ rights of sexual
orientation, and then ‘add’ them to the extant corpus of rights, but rather can
derive them from that corpus, as implicit within it, and necessary for its fuller
its fuller realization” (Heinze, 1995: 75).
Looking at the International Convention on Civil and Political Rights or
ICCPR, one finds that there are three articles that are particularly relevant. The
first of these is article 17 stating
No one shall be subjected to arbitrary or unlawful interference with his privacy, family,
home or correspondence, nor to unlawful attacks on his honour and reputation.

This is not just a question of laissez-faire, as the article also requires the state
to see to that “everyone has the right to the protection of the law against such
interference or attacks.” Another germane article is article 26, maintaining
All persons are equal before the law and are entitled without any discrimination to the
equal protection of the law. In this respect, the law shall prohibit any discrimination and
guarantee to all persons equal and effective protection against discrimination on any
ground (my emphasis).

Although LGBT people have suffered by not being explicitly mentioned in

the list that follows as examples of groups which are to be protected against
discrimination in the second part of article 26, due to the article’s general pro-
hibition of discrimination, one cannot see the examples given as exhaustive.
That the article also specifically concludes the list of possible causes of dis-
crimination with “other status” also supports this.

102
Endsjø 103

A similar prohibition against discrimination in general is found in article 2(1).

1. Each State Party to the present Covenant undertakes to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the rights recognized in the
present Covenant, without distinction of any kind (my emphasis).

This is followed by article 2(2) requiring that “[w]here not already provided
for by existing legislative or other measures, each State Party to the present
Covenant undertakes to take the necessary steps.”
However, when the human rights were first established, probably none of
the parties considered LGBT rights to be included. Behaving in serious ways
contrary to culturally established gender roles was at this time generally de-
fined as criminal by most countries. The early decisions in the European Hu-
man Rights Commission also supported this. As Robert Wintemute points out
in his book, Sexual Orientation and Human Rights: The United States Consti-
tution, the European Convention, and the Canadian Charter, in a series of
nine decisions dealing with applications with men being imprisoned for con-
sensual sexual acts with other men “the Commission found all these applica-
tions inadmissible as ‘manifestly ill-founded’” (Wintemute, 1995: 92).
The basic logic of the universal principle of human rights nevertheless meant
that such a reading could not endure. This has been demonstrated in a number
of cases in both the international and regional human rights systems in the last
few years. Although the United Nations’ Commission on Human Rights in
April 2003 failed to expand its definition of discrimination to include that
based on sexual orientation, that this nevertheless is the case within the UN
human rights regime has been unequivocally established by the United Na-
tions Human Rights Committee (UNHRC). In the 1992 case Toonen v. Austra-
lia, the UNHRC found that the Tasmanian state law prohibiting sexual acts
between males was in contradiction of article 17 of the ICCPR protecting the
rights to privacy. Importantly, the Committee tied its understanding of dis-
crimination of homosexuals to the general prohibition against sex discrimina-
tion: “[T]he reference to ‘sex’ in Articles [2(1)] and 26 is to be taken as including
sexual orientation.”
In the ruling of Young v. Australia (4 September 2003), the UNHRC found
that the economical discrimination of same-sex couples was against article 26,
importantly without referring to article 17, simply stating that “as the State
party had provided no arguments on how a distinction between same-sex part-
ners, who are excluded from pension benefits under law, and unmarried het-
erosexual partners, who are granted such benefits, is reasonable and objective,
the Committee found a violation of article 26.” 1 The unlawful basis of the
discrimination was in this case the “sex or sexual orientation” of the victim,
thus establishing discrimination on the basis of “sexual orientation” as an in-
dependent criteria in relation to article 26.
104 Human Rights Review, January-March 2005

The European Court of Human Rights has come with a number of similar
rulings. Starting with the case Dudgeon v. the United Kingdom on 22 October
1981, the Court has in a number of rulings considered discrimination of gays
and lesbians a general breach of human rights. Whereas in the case Dudgeon
v. the United Kingdom, the Court took into account that “in the great majority
of the member States of the Council of Europe it is no longer considered to be
necessary or appropriate to treat homosexual practices of the kind now in
question as in themselves a matter to which the sanctions of the criminal law
should be applied,” this aspect of a general European consensus is no longer
considered relevant. In the ruling of L. and V. v. Austria and S.L. v. Austria, of
9 January 2003, the court ruled that in connection with national laws which
“embodied a predisposed bias on the part of a heterosexual majority against a
homosexual minority, these negative attitudes could not of themselves be con-
sidered by the Court to amount to sufficient justification for the differential
treatment any more than similar negative attitudes towards those of a different
race, origin or colour.” This is a wholesale rejection of what may be identified
as “insufficient evolution of attitudes as a justification for violence and op-
pression” (Heinze, 1995: 20), which still dominates the judicial system of even
most states that consider themselves tolerant towards sexual minorities. Whether
one’s sexual identity is considered an immutable status or a fundamental choice
thus becomes irrelevant. This, moreover, may also be seen as supported by the
1978 Declaration on Race and Racial Prejudice article 1(2) proclaiming that
“[a]ll individuals ... have the right to be different, to consider themselves as
different and to be regarded as such.”
The general bearing of these European decisions was also referred to by the
US Supreme Court in the case of Lawrence v. Texas (26 June 2003), arguing
that to the extent their own 1986 ruling of Bowers v. Hardwick ensuring the
state right to uphold and enact laws forbidding homosexual practice “relied on
values shared with a wider civilization, the case’s reasoning and holding have
been rejected by the European Court of Human Rights.”
The way gays and lesbians, as a social group not specifically mentioned in
any of the international conventions, nevertheless are included within the gen-
eral prohibition against discrimination means that also other social groups like
transgenderists and the physical handicapped must be considered to be cov-
ered by the same rights. Although no cases involving transgenderists have
been deliberated within the UN human rights regime, the European human
rights regime has consequently clearly defined transsexuals as protected in a
similar way as gays and lesbians. In article 11d of the Recommendation 1117
of the Parliamentary Assembly of the Council of Europe from 1989, discrimi-
nation “in the case of irreversible transsexualism” is found to be contrary to
the human rights as “all discrimination in the enjoyment of fundamental rights
and freedoms is prohibited in accordance with Article 14 of the European
Convention on Human Rights.” This is nevertheless the result of a develop-
Endsjø 105

ment, as there has been a similar development in the Court’s rulings as in those
related to lesbian and gay rights, where cultural and social prejudices origi-
nally deciding the outcome has gradually been replaced with a general
acceptance of transsexual rights. In its 2002 ruling in the case of Goodwin
v. the United Kingdom, the ECHR found that the refusal to legally recog-
nize the sex of a post-operative transsexual woman meant that the British
government’s stance fell “far short of the standards for human dignity in the
21 st Century.” 2
Another human rights article, which also relates to the rights of LGBT people,
is article 5(a) in the Convention on the Elimination of All Forms of Discrimina-
tion against Women (CEDAW), a convention ratified by most of the world’s
countries with certain exceptions like the United States, Iran and the Holy
See.3 Here it is declared that

States Parties shall take all appropriate measures: (a) To modify the social and cultural
patterns of conduct of men and women, with a view to achieving the elimination of
prejudices and customary and all other practices which are based on the idea of the
inferiority or the superiority of either of the sexes or on stereotyped roles for men and
women (my emphasis).

This is truly relevant, as fighting for the acceptance for leading an existence
beyond the “stereotyped roles for men and women” lies at the very core of the
LGBT human rights struggle. As Eric Heinze argues, “[t]he injunction of Art.
5(a) cannot be dismissed as an incidental exaggeration of CEDAW’s scope or
intent as it is already anticipated in Preambular Par. 14 and reiterated both in
Arts. 2(f) and 10(c)” (Heinze, 1995: 14n62). This is however a bit more com-
plicated. Whereas preambular particle 14 and article 2(f) only demand the
elimination of stereotyped gender roles to the degree it leads to greater equal-
ity between men and women and the end of discrimination, article 10(c) re-
quires “[t]he elimination of any stereotyped concept of the roles of men and
women at all levels and in all forms of education” (my emphasis).
Looking at the various religious attitudes towards LGBT rights and human
rights, we find that there are three different approaches towards this question.

z There is the acceptance of LGBT rights as part of a general acceptance of the human
rights.
z There is a general refusal to accept the human rights as in any way relevant. Al-
though this represents an interesting case, looking here at the attitude towards any
particular group protected by the human rights does not raise any principal ques-
tions.
z And, finally, there are those religious groups that embrace human rights, while deny-
ing that this is applying to LGBT rights.

As I have argued previously, most governments also relativize human rights

in order to retain various discriminatory measures against LGBT people (Endsjø,
106 Human Rights Review, January-March 2005

2001). This attitude is however often connected with various religious traditions,
either historically or directly. As reported by Amnesty International in 2001:
Torture and other cruel, inhuman or degrading treatment are prohibited under interna-
tional human rights law in all circumstances. But while some governments deny that
such torture takes place, others openly justify torture and ill-treatment of LGBT people
in the name of morality, religion, or ideology (my emphasis).4

Though most religions have problems with reconciling their own beliefs
with the basic principles of human rights, a number of Christian churches
stand prominent in what they claim to be an adamant support of human rights,
while at the same time working against them.
The problem is not primarily the virulent animosity of certain churches against
LGBT people. The right of religious freedom leaves any religious community
at liberty to deliver whatever hateful message they may choose as long as this
is theologically based. It is the embrace of human rights while simultaneously
attacking the basic human rights of LGBT people in an attempt to make an
effect on society at large that represents the most serious pattern. These churches
use their own theological stand in order to redefine a legal term that originally
has nothing to do with any religious tradition. This attempt to enforce one’s
beliefs through the means of civic law, even on people outside one’s religious
community, goes beyond any right to freedom of religion and, moreover ac-
cording to ICCPR article 18(2), infringes on the freedom of observance and
practice, and consequently the freedom of conscience, of non-believers as
“[n]o one shall be subject to coercion which would impair his freedom to have
or to adopt a religion or belief of his choice.”
If we, for example, turn to the way the World Council of Churches, the
umbrella organization representing most churches but the Catholic Church,
expresses its support of the human rights in their 1998 Declaration of the Eighth
Assembly, we find a number of peculiar statements which very clearly rede-
fine human rights in order to exclude LGBT rights.
In the preamble to this Declaration, the exercise of full human rights are
connected to how “All human beings are created in the image of God, equal,
and infinitely precious in God’s sight and ours.” In this way people who may
be said to distort the way they are created in the image of God, thus, it can be
argued, act in a manner that is not protected by the human rights. If one is not
created as a LGBT person, living as a LGBT person is no human right the
argument goes.
Many churches nevertheless claim that one is created as a LGBT person,
but insist that the gender and sexual restrictions defined through heterosexual
marriage still apply. As the World Council of Churches Declaration preamble
argues that “the world has been corrupted by sin, which results in the destruc-
tion of human relationships,” the way people are allowed to live out their
desires, may thus be considered a result of sin.
Endsjø 107

How the Declaration in section 3.22 and 3.23 also supports women’s rights
as human rights, without saying anything about the human right to live inde-
pendent of traditional gender roles, provides an additional example of how
LGBT rights are systematically presented as not included within human rights.
One must nevertheless be aware that the World Council of Churches 1998
Declaration does not rule out the individual churches from supporting LGBT
rights, but, most importantly, it clearly defines this as an issue not relevant to
human rights.
The Catholic Church reflects similar ideas. Although through the Holy Sea
it has failed to ratify the ICCPR, the church has nevertheless pronounced a
general support for human rights, as for example in an address by Pope John
Paul II on 3 November 2000 at the occasion of the fiftieth anniversary of the
European Convention on Human Rights (another convention that the Holy
See has yet to recognize formally). Here the Pope embraced the Convention
because it “represented an important moment in the maturing of the sense of
the innate dignity of the human person and the awareness of the rights and
duties which flow from this.” Furthermore he saw this as connected to “the
notion of the inviolable dignity of the human person, which implies inalien-
able rights conferred not by governments or institutions but by the Creator
alone, in whose image human beings have been made (cf. Gen 1:26).” The
Holy Sea has also ratified the International Convention on the Elimination of
All Forms of Racial Discrimination, the Convention on the Rights of the Child,
and the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, none of which, however, treat human rights in con-
nection with gender or general discrimination.
According to the Catholic Church, the rights of lesbian, gays, and bisexuals
clearly fall beyond the scope of human rights, as their very sexuality is defined
as not human: In the official document of the Congregation for the Doctrine of
the Faith of 3 June 2003, Considerations Regarding Proposals to Give Legal
Recognition to Unions between Homosexual Persons, the Church makes clear
that “[s]exual relations are human when and insofar as they express and pro-
mote the mutual assistance of the sexes in marriage and are open to the trans-
mission of new life” (my emphasis). This, of course, is not only contrary to the
jurisprudence clearly putting this within the basic right to privacy according to
the ICCPR, article 17, but represents a legal attempt to define a group of people
as not covered by the human rights by literally dehumanizing them. This again
is made the basis for the Catholic Church seeing itself in a position to decide to
what degree lesbians, gays, and bisexuals have any rights at all. The Catholic
Church as a religious community is in its right to define homosexuality as
“evil,” as it does in the same document when arguing, “the approval or legal-
ization of evil is something far different from the toleration of evil.” The prob-
lem arises when the Church makes this the basis for instructing Catholic
politicians, for example, to oppose any legal recognition of same sex couples,
108 Human Rights Review, January-March 2005

regardless of these couples being Catholic or not. Still in this document of the
Congregation for the Doctrine of the Faith, it is stated that “[i]f it is true that all
Catholics are obliged to oppose the legal recognition of homosexual unions,
Catholic politicians are obliged to do so in a particular way, in keeping with
their responsibility as politicians.” Here the Church not only clearly trespasses
beyond their own rights to religious freedom by trying to enforce their values
on people who are not Catholic, but, moreover, finds itself in direct opposition
with the United Nations Human Rights Committee, which in the case Young v.
Australia clearly stressed that same sex couples indeed have certain rights.
Equally problematic is the message of Pope John Paul II for World Com-
munication Day, 24 January 2004: “Without resorting to censorship, it is
imperative that public authorities set in place regulatory policies and pro-
cedures to ensure that the media do not act against the good of the family,”
meaning for example giving “positive support” to such issues as “divorce,
contraception … and homosexuality.” In spite of the insistence that this is not to
mean censorship, the world governments are asked to directly intervene so
that either the media limit their reports on people living in ways that are actu-
ally protected by the human rights, or are careful not to portray these people in
a positive way. The Catholic Church even relativizes the freedom of expres-
sion in matters involving people not living according to Catholic dogma on
gender and sexuality.
From a human rights perspective, the most serious consequence is not the
way many churches support the rampant discrimination and attacks against
LGBT people. The exclusion of LGBT rights from the greater context of hu-
man rights where they rightly belong means a relativism of the very concept of
human rights. Once it is accepted that there are certain groups that due to
certain religious or cultural prejudices do not qualify to be protected by the
human rights, one cannot keep others from excluding the rights of other groups
because of bias found in other religions and cultures.
That human rights only reflect Western ideas represents a serious criticism
against the international human rights regime. Although intimately connected
historically with the development of Western ideas, the universal principles
established in the Declaration of Human Rights and subsequent conventions,
however, cannot be said to reflect only Western ideas. Not only were all five
major continents represented in the committee working on the Universal Dec-
laration of Human Rights, the non-binding document which has offered the
basis of all later human rights conventions, all independent states, save the
Holy See, have in principle given their support to the human rights through the
Charter of the United Nations, as one of the purposes of the United Nations,
according to article 1(3), is “promoting and encouraging respect for human
rights and for fundamental freedoms for all.” Even more importantly, the way
it has become obvious that the human rights also represent a serious critique of
issues that are deeply rooted in Western religious and cultural prejudices dem-
Endsjø 109

onstrates the universal core of the human rights. This is where one realizes that
LGBT rights, originally considered not to be included within human rights
because of these same prejudices, take center stage in the legal understanding
of the universal principle of the human rights. Quoting former Malaysian prime
minister, Mahathir bin Mohamad, who complained that “it would seem that
Asians have no rights to define and practice their own set of values about
human rights,” Jack Donnelly points out in Universal Human Rights in Theory
and Practice that “[t]his is to a considerable extent true, not just for Asians, but
for all countries” (Donnelly, 2003: 108). How LGBT rights are inseparable
from human rights makes the impotence of cultural relativism against the hu-
man rights regime clear also to conservative Western groups, who in no way
welcome any acceptance of LGBT people.
There is still a long way to go before everybody realizes to what degree
LGBT rights are included within human rights. The prejudices are rooted so
deeply that the very idea that LGBT rights are indeed connected to human
rights is still not even conceivable for the majority in most Western countries,
including most politicians. It is to a large degree, a question of ignorance. The
persistent religious effort to redefine the understanding of human rights in
order to exclude anything related to LGBT rights represents something else
and something quite more serious. If these efforts are allowed to succeed, we
will realize that the criticism of the human rights as only representing Western
values suddenly will be true.
According to United Nations Special Rapporteur on Violence against Women,
Radhika Coomaraswamy, “the greatest challenge to international rights comes
from cultural relativism and religious extremism” (Coomaraswamy, 1999: 79).
The case of LGBT rights gives this claim an interesting perspective. In their
effort to redefine human rights so that LGBT rights are excluded, most Chris-
tian churches insist that their own cultural relativistic perspective has a univer-
sal bearing. Extremist or not, this religious effort to reinterpret human rights
based in certain religious dogma clearly fails in its universal pretension. Its
insistence that historical Western values somehow are above what rights may
be derived from the extant human rights corpus nourishes the cultural relativ-
istic opposition on international rights.
The religious campaign for a relativistic understanding of the human rights
in order to exclude LGBT people is therefore not only something that con-
cerns LGBT people themselves. As rights of a traditionally discriminated group
in traditionally Christian societies, LGBT rights consequently stand prominent
in the very defense of the universal principle of the human rights. Indeed, the
rights of LGBT people represent a touchstone in the Western attitude towards
the human rights at large. If human rights are understood in a way that makes
it possible to exclude the basic rights of certain groups only because of reli-
gious and cultural prejudices traditionally found in the Christian West, we find
that the principle of universality is taken right out of the human rights, and
110 Human Rights Review, January-March 2005

human rights are transformed to a set of rules only reflecting historically West-
ern values.

Notes

1. “Human Rights Committee Rules on Complaints of Violations from Individuals”, United Nations
Press Release September 4, 2003.
2. According to BBC News July 11, 2002. See “Transsexual wins right to marry” at news.bbc.co.uk/
hi/english/uk/newsid_2122000/2122094.stm.
3. With the ratification of San Marino on December 10, 2003, the number of states being party to the
CEDAW is 175.
4. Amnesty International Report “Torture and ill-treatment based on sexual identity” (ACT 40/016/
2001). See also Donnelly 2003:230-31.

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