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"Lesbian and gay rights are human rights!" Is this just a political slogan to be chanted outside legislatures, or are there legal arguments to support the claim that the right to be free from sexual orientation discrimination is a human right? In particular, can national constitutions or international human rights treaties be interpreted as prohibiting discrimination against gays, lesbians, and bisexuals? Robert Wintemute attempts to answer these questions by examining three of the most commonly used arguments in favor of such an interpretation: sexual orientation is an "immutable status", sexual orientation is a "fundamental choice" (or part of "privacy"), and sexual orientation discrimination is sex discrimination. To assess their merits, he looks at the relative success and failure in cases argued under three of the world's most influential human rights instruments: the United States Constitution, the European Convention on Human Rights, and the Canadian Charter of Rights and Freedoms. He also considers the potential impact of the United Nations Human Rights Committee's recent interpretation of the International Covenant on Civil and Political Rights in Toonen v. Australia.
Table of Contents:
Table of Treaties, Constitutions, Statues, and Cases
2. The United States Constitution: Fundamental Choice Arguments
3. The United States Constitution: Immutable Status and Sex Discrimination Arguments
4. The European Convention on Human Rights: Fundamental Choice Arguments
5. The European Convention on Human Rights: Immutable Status and Sex Discrimination Arguments
6. The Canadian Charter of Rights and Freedoms: Sexual Orientation under Section 15 (1)
7. The Canadian Charter of Rights and Freedoms: Is Sexual Orientation an Immutable Status or a Fundamental Choice?
8. The Canadian Charter of Rights and Freedoms: Is Sexual Orientation Discrimination Sex Discrimination?
9. Comparison and Conclusion