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Gender identity

Review of cases relating to discrimination against sexual orientation and gender identity

Several cases on the rights of lesbian, gay, bisexual and transgender rights have been heard in the UN’s international human rights committees in the past five years.

K.K v Russia (8 April 2019) CEDAW/C/72/D/98/2016

O.N. and D.P. v Russia (3 April 2020) CEDAW/C/75/D/119/2017

Rosanna Flamer-Caldera v Sri Lanka (24 March 2022) CEDAW/C/81/D/134/2018

Krikkerik v Russia (21 June 2023) CCPR/C/137/D/2992/2017 (case heard by the Human Rights Committee, which monitors the International Covenant on Civil and Political Rights)

In these various cases, the UN treaty bodies found a strong connection between state discrimination in law and practice, and violence by state and non-state actors –

  • State criminalisation of same-sex intimacy, leading to a lesbian activist facing “stereotypes as a woman, including against her having a livelihood, the author has been subjected to harmful stereotyping on account of her sexual orientation, including the accusation that she is spreading paedophilia, as well as vilification, harassment and threats based on such stereotypes.” (Rosanna Flamer-Caldera)
  • State failure to investigate acts of violence against a lesbian couple by unknown perpetrators, despite clear discriminatory intent of perpetrators to commit violence and harassment because they were lesbians (O.N. and D.P. v Russia)
  • State failure to protect LGBT activists during LGBT pride events from violence, harassment and insult (K.K v Russia, Krikkerik v Russia)

In all these cases, the applicants in these cases the CEDAW Committee and the Human Rights Committee are public advocates who are known for their activism for human rights for all, irrespective of sexual orientation and gender identity, or were openly expressing their same-sex sexual orientation in public (O.N. and D.P. v Russia).

The entry point for all four cases was that violence was committed against them, as a gay men or lesbians, for being publicly identifiable as gay men or lesbians. Through consideration of this violence, and taking account of state failures to investigate promptly, independently, impartially and effectively investigate and bring perpetrators to justice, the committees found that these people were not given equal treatment before the law. The violence and harassment in these cases were all, in their own different ways, very shocking and the state inaction therefore flagrant and egregious – in Krikkerik, three gay men attending a Pride event were set upon and seriously injured by a gang of more than 30 men; in K.K. v Russia, a lesbian activist was publicly subjected to vulgar and insulting homophobic abuse by a state official.

In all the cases, domestic law made these attacks possible. This is done either through criminalising lesbian identity in itself – literally making lesbians outlaws – in Sri Lanka, ensuring impunity for state and non-state actors to use discrimination, violence and harassment against them because their very identity is a crime. In the Russian cases, violence was inflicted on individuals because violence against people because of their sexual orientation and/or gender identity does not have a remedy in domestic law: targeting lesbian, gay, bisexual or transgender, or otherwise queer, people for violence is not recognized explicitly as a “specific social group” for the purposes of criminal law on discriminatory violence. Further, in these cases against Russia, the authorities failed to investigate effectively, and said that because perpetrators could not be identified and questioned about their motives, it was impossible to say that they were acting from discriminatory motives. This was entirely erroneous as in all three cases, the applicants were subjected to vulgar and insulting terms for people of their sexual orientation and gender identity, which clearly indicated the discriminatory motive of the perpetrators. This failure to address criminal violence for how it was manifested is very significant – 30 men attacking three men should not be charged as “hooliganism.”

In all four cases, the investigations of state officials were important methods of highlighting the attitudes of the state. In Sri Lanka, lesbian, gay, bisexual and transgender people are the ones who are under suspicion and investigation. In Russia, even though same-sex intimacy has been legal since 1917, officials still show discriminatory attitudes through obvious failure to investigate and prosecute. Understanding these violations of the right to physical and mental integrity, and equality before the law becomes literally a life-line – Ariadne’s bright thread bringing the idea into the light, that in international human rights law there is intersectional equality, which is “a queer, creative and perhaps even radical act.”(See Christine Chinkin and Keina Yoshida’s essay)