Sexual Orientation and Gender Identity

Sexual Orientation and Gender Identity

A person’s pattern of emotional, romantic, or sexual attraction to men, women, both, or neither sex is defined by sexual orientation, also known as “sexual preference.” Sexual orientation “also refers to a person’s sense of identity—based on those attractions, associated attitudes, and membership in a group of people that share those attractions,” according to the American Psychological Association (APA).

For more than four decades, the American Psychological Association has emphasized that homosexuality, bisexuality, and asexuality are not mental illnesses and do not deserve to be stigmatized and discriminated against. Heterosexual and homosexual activity are also natural aspects of human sexuality, according to the American Psychological Association.

If sexual orientation refers to a person’s emotional or romantic attraction to others, “gender identity” refers to a person’s internal feelings of being male or female (masculine or feminine), or a combination of both or neither (genderqueer). The gender identity of an individual may be the same as or separate from the biological sex given to them at birth. Furthermore, individuals who are “gender dysphoric” may firmly believe that their true gender identity varies from the biological sex they were assigned at birth.


Few topics in clinical psychology have sparked as much discussion as what affects a person’s sexual orientation. Although most scientists accept that both instinct (inherited traits) and nurture (acquired or learned traits) play important roles, the exact causes of different sexual orientations are still vaguely described and much less known.

Sexual Orientation and Gender Identity

Despite years of scientific study, no single cause or explanation for the development of a certain sexual orientation has been identified. Instead, scientists suggest that a dynamic mixture of hereditary superiority, physiological, psychological, and environmental influences affect each person’s feelings of emotional attraction. Although no single cause has been identified, the effect of genes and hormones passed down from our parents suggests that sexual orientation formation may begin before birth.


According to some research, children’s exposure to their parents’ sexual orientation attitudes can influence how they experiment with their own sexual activity and gender identity.


Gay, lesbian, and bisexual sexual orientations were once thought to be forms of “social illnesses” induced by sexual violence as an adolescent, and troubled adult relationships. This, though, has been shown to be untrue, and is focused mostly on ignorance and racism toward so-called “alternative” lifestyles. According to the most current study, there is no connection between sexual orientation and psychiatric disorders.


The idea of different types of “conversion therapy” aimed at changing a person’s sexual identity from homosexual, lesbian, or bisexual to heterosexual by psychiatric or religious treatments became popular in the United States in the 1930s. Both major mainstream mental health organizations now regard conversion or “reparative” treatments as pseudoscientific practices that are at best futile and at worst mentally and physically dangerous.


Furthermore, according to the American Psychological Association, advocating conversion therapy likely strengthens the derogatory perceptions that have contributed to years of violence against lesbians, gays, and bisexuals.


The American Psychiatric Association removed homosexuality from its Diagnostic and Statistical Manual of Mental Disorders, which is used by doctors to diagnose mental diseases, in 1973. Since then, all other large health professional associations have followed suit, effectively ending all professional advocacy for the notion that an emotional attraction to someone of the same sex can or otherwise should be “changed.”


The idea that gender identity and homosexuality are interrelated is a widespread misunderstanding. For eg, because someone is transgender, many people mistakenly think they have to be gay, too. This isn’t the case, though. Gender and sex are separate, and understanding is a vital difference.

“They also perceive intersecting. But all of them are working really hard to unite each other,” said the NYU Metropolitan Center for Equity Research and School Transformation Deputy Director Sj Miller. “They’ve been so conflated and totally different for so long.”


The Human Rights Campaign defines gender as “the most intimate definition of oneself as a person, a female, a combination of the two, how people view and what they call themselves.” It can reflect, or be completely different, what a person was given at birth. There are hundreds of sexes for which people can associate, outside either man or woman.

“With who you go to bed is sexuality, and with whom you go to bed is gender identity. This is the best way I can describe it,” said YouTuber Brendan Jordan, who describes it as flexible in gender.

But sometimes it’s not so straightforward. It is not unusual for others to be concerned about their sexuality and sexual orientation, most transgender and gender-unconsistent individuals who talked to CBS News.


Ela Hosp, a 19-year old non-binary student at the Kansas Cty Art Institute said “[Sexuality] really has absolutely nothing to do with genera. “And with ‘Well, what about if you don’t see yourself as a woman, then you’re gay? Aren’t you guys like, you girls?’ And that’s just something entirely different.”


People’s interests in sex and sexuality can be highlighted in the field of socialization.

“Most people just care about your genitalia, that’s what they want to hear. There were cases of partnerships that could be very well if you weren’t non-binary, and all changed when the individual figured out you were,” Hosp added.

Regardless of sexual orientation or gender identity, international and regional human rights treaties are to protect all. This core concept of modern human rights is set out in the Universal Declaration of Human Rights which states that: ‘Every person is born free and equal in dignity and rights.’ See UNGA Res. 217 A(III)(UDHR) Article 1. The Universal Statement on Human Rights of 10 December 1948. Unfortunately there has been an inadequate nationwide legal defense against lesbian, gay, bisexual, transgender or intersex (LGBTI) people, who are not protected or investigated on hate crimes or on other violations.


In recent years the LGBTI movement has taken definitive action to increase awareness of the issues facing the international human rights organizations and civil society and to advocate reform. Hostility against sexual minorities, however, has led to policies that are criminalizing abortion, widespread public and private bigotry, and abuse against LGBTI members. Practices such as enforced sterilization of transgendered individuals, the performance of people as homosexuals and the ‘corrective rape’ of lesbian women show that substantial progress is needed in protecting and enforcing LGBTI rights.

Transgender people identify as a gender different from that given to them at birth.

Intersex people are often individuals that are “born with genital characteristics, reproductive organs and/or chromosome patterns that are not in accordance with the standard male or female description.” The UN Human Rights, Free and Equal Office of the High Commissioner: Sexuality and sex are not white and black. This concept is used to define a broad range of features. The sexual orientation and gender identity of intersex people, as of any people.


The LGBTI acronym, which stands for lesbians, gays, bisexuals, trans and intersexes, is often referred to as members of sexual minority communities as a whole. Discrimination on the basis of sexual orientation and sexual identity often impacts those who are only accepted or seen as members of a sexual minority.

Legal safeguards
There is currently no convention expressly protecting the interests of LGBTI people in any international human rights agreement. However, the lack of a specialized treaty does not suggest, under international law, that the fundamental rights of sexual minorities are not covered.


Organizations of human rights have heard claims about the abuse of LGBTI rights, and continue to hear them. However, all LGBTI individuals’ civil rights have not been universally treated, nor have they completely expanded to the same protections as those for sexual minorities. This legal field has changed and human rights organizations are particularly respectful of the rights of LGBTI people as it progresses. Nevertheless, international human rights legislation has been translated as allowing States, at least before more consistent governments exist in fields such as marriage equality, to handle sexual minorities differently under certain conditions.

These results are usually not binding on States, according to rulings and legal opinions by separate human rights courts and supervisory bodies. However, they represent political will to respect LGBTI people’s rights and can help to clarify the application of human rights principles for the abusses of sexual minorities in many cases. Moreover, several UN and International Intergovernmental Organisations in the area of human rights are taking measures to track sexual orientation and gender identity issues more closely and to help States enhance respect for LGBTI rights.

Principles of Yogyakarta
The Yogyakarta Principles, a non-binding series of international norms, are applicable to topics affecting the LGBTI population in an international context. In order to support and defend sexual minority human rights, the Yogyakarta Principles, established by a panel of scholars, were used by UN and other organizations. The Principles maintain that the right to equal enjoyment of all human Rights is “a human being of all sexual orientations and gender identity. Principles 1 of Yogyakarta. Each Principle shall identify and provide a specific right to ensure that LGBTI people are able to meet their obligations and responsibilities;

The Principles also provide recommendations to the UN, international human rights organisations, national human rights agencies as well as other important stakeholders concerning the achievement of LGBTI human rights. Principles of Yogyakarta, Further Recommendation.

The principles were adopted by a number of campaigners and civil society organisations as a significant breakthrough for the LGBTI community in international respect of the law. For Lesbian, Gay, Bisexual and Transgender Rights, see e.g. Human Rights Watch, ‘Yogyakarta Principles’ on 27 March 2007. The principles, however, were also the focus of the dispute between the United Nations countries. Various States objected to their use.

Standards of the UN
In appreciation of sexually-minority rights, numerous remarkable advancing declarations, resolutions and findings have been made by the United Nations Human Rights Council and other UN bodies. Colombia issued a Joint Statement in March 2011 to the Human Rights Commission on behalf of over 80 UN member states on ending incidents of abuse and associated human rights abusses focused on sexual orientation or gender identity. This declaration acknowledged openly that the sexual orientation or gender identity of individuals in all parts of the world is inadmissibles. Joint Statement on the Cessation of Conflict by the UN Human Rights Council

The United Nations Human Rights Council adopted Resolution 17/19 in June 2011 recognizing abuse and bigotry against LGBTI people in the world. The United Nations High Commissioner for Rights requested a survey. Then, Resolution 17/19 was adopted. Resolution 17/19: Human Rights, Gender Identity and Sexual Orientation, A/HRC/RES/17/19 (17 June 2011). The resolution on sexual identity or gender orientation has been ratified by the UN for the first time.

The High Commissioner for Human Rights (OHCHR) presented to the Human Rights Council a report, in response to Resolution 17/19, describing the issues facing the LGBTI community and the reitera.

The OHCHR has recently initiated a public education initiative, Free and Fair (, aimed at raising awareness and promoting equality for all regardless of sexual orientation and gender identity, of the harassment and inequality against the LGBTI community and other human-rights abuses.

Standards amongst the Americas
Occurrences of brutality and other civil rights abusses involving LGBTI individuals around the Americas have been addressed in recent years both by the Organization of American States (OAS) and the IACHR.


Between June 2008 and June 2013, six resolutions on civil rights, sexual orientation and gender identity were endorsed by the General Assembly of the Organization of American States. Refer, for example, to Assembly Res. AG/RES. 280, the Organization of American States (OAS), Human Rights, Sexual Orientation and the Identity of the Gender (June 6, 2013). These resolutions recognize, denounce and take appropriate action to resolve the issue against bigotry and acts of violence against LGBTI people, and urge States, the IACHR and other bodies.

Res. 2653 (XLI O/11) requests the OAS General Assembly to report on the “legal aspects and the intellectual and terminological changes in sexual orientation and gender identity as well as gender speech” to the IACHR and the Inter-American Legislative Committee. See the Organizing of American States (OAS) for Human Rights, Sexual Orients and Gendre Identity (OG/RES. 2653 (XLI-O/11), General Assembly (7 June 2011), para-6.

In addition, the ICHR published the document Sexual Orientation, Gender Identity, and Gender Expression: key terms and standards, and its report on sexual orientation, gender identity and gender expression was released by the Inter-American Juridical Committee. The Inter-american Committee on Gender Orientation, Report on Sexual Guidance, Gender Identity, and Gender Expression, CP/CAAP-INF, 166/12, 23 April 2012. CP/doc.4846/13, 17 March 2013.

In order to resolve the special human rights needs of LGBTI people, the Commission has sought to build policies and infrastructures. In the Strategic P of the IACHR


In order to tackle continued bigotry and abuse against LGBTI communities, the ICHR has established Action Plan 4.6.i. As part of the strategic strategy, the International Criminal Commission (ICHR) recommended “establishing procedural norms, rules of cases and updates on the status of LGBTI members in the US.” IACHR, LGBTI Persons, para. 2. Action Plan 4.6.i (2011-2012).

A report on homosexual, gay, bisexual, queer, trans and intersex rights was also set up by the Inter-American Commission during November 2011. IACHR, Press No. 115/11: IACHR creates Lesbian, Gay, Bisexual, Trans and Intersex Rights Unit,

3 November 2011, at Releases/2011/115.asp. Releases: The rapporteur is charged with providing technical assistance to Member States, drafting reports for the rights of LGBTI individuals and tracking human rights abusses against LGBTI people in the Americas, and the IACHR’s advice on petitions and cases surrounding sexual orientation, gender identity and gender speech. IACHR, LGBTI Relationship: Mandate and functions. LGBTI rights reports.


Standards for Europe
The Council of Europe has taken positive strides in the European continent in identifying and addressing bigotry, abuse and other LGBTI problems. Within the Council of Europe, the Sexual Orientation and Gender Identity Unit works with relevant parties involved with sexual orientation and the problems of gender identity.

Recommendation CM/Rec(2010)5 on action against discrimination on the basis of sexual orientation or gender identity was adopted by the Council of Europe in March 2010. The recommendation highlights the universality of human rights and the relevance of non-discrimination and calls for Member States to take positive action to protect LGBTI rights. Council of Europe: Committee of Ministers, Committee of Ministers Recommendation CM/Rec(2010)5 on steps to address discrimination on the basis of sexual orientation or gender identity for Member States, 31 March 2010.


The 2011 study Discrimination on the basis of sexual orientation or gender identity in Europe, covering bigotry, transphobia and discrimination in 47 Council of Europe Member States, and recommending their prevention, is issued by the European Council, too. Council of Europe, Sexual Orientation Discrimination or European Gender Identity (2011).

Furthermore, a 2009 human rights and gender identity question report was written by the Commissioner of Human Rights. Human Rights Commissioner, Human Rights and Gender Identity Problem Paper of the Council of Europe (2009).


Discrimination and Uniformity
International human rights law ensures that all persons, including LGBTI individuals, are free from discrimination in respect of the rights of all. Article 2(2) says, for instance, of the International Convention on Economic, Social and Cultural Rights:

The States Parties to this Covenant shall ensure that, without prejudice of any kind, their rights as regards color, colour, sex, language, religion or politics, national or social origin, land, birth or any other status are practiced, as provided in the current Covenant.

(Approved 16 December, 1966 and entered into force3 January1976), 993 UNTs 3 (ICESCR), article 2 993 UNTS 3 (ICESCR) (2). The Committee on Economic, Social and Cultural Rights (CESCR) has determined that both are covered by this non-discrimination clause, while sexual orientation and the sex identity are not specifically included in the protected category list. CESCR, General Comment No. 20, Economic, Social and Cultural Rights Non-Discrimination, United Nations Doc. E/C.12/GC/20, 10 June 2009.

Likewise, other Human Rights and quasi-judicial courts have already stated, without proper reason for care, that States cannot adopt legislation or regulations or enforce procedures that vary in care by people on grounds of their sexual orientation or gender identities. See for example: Human Right Committee, Toonen v. Australia, No. 33290/96, ECHR 1999-IX, Judgment dated 21 December 1999; I/A Court of Hres, Case of Atala Riffo and Daughters v. Chile. (Case No. 388/1992). Case No. 31 March 1994. Merits, costs and reparations. 24 February 2012 Judgment. Judgment. No. 239 Series C, para. 95; ECSR

As a law, prejudice takes place when a person in a similar position receives other treatment than someone else, causing injury or excluding the person from enjoying one or more of his or her human rights. Discrimination is described in the Yogyakarta principles as:

Any division, omission, limitation or preference based on sexual or gender-oriented identity, intended to nullify or impair before the law or to uphold the law equally or to ensure that all civil rights and fundamental freedoms are equally recognized, enjoyed or practiced.


Homosexuality criminalization
Persons committing intimate, consensual sexual acts with same-sex individuals in more than 70 countries are at risk from prosecution and are subject to serious punishments, including death penalties. Born Free and Even OHCHR (2012). Any cases, most of them before the European Court of Human Rights, were allegedly violating one or more human rights. Two distinct types of cases exist. This includes issues surrounding the laws that criminalize homosexuality and challenges concerning age of consent under discriminatory rules.

The crime in law
Both the EHR and the UN Committee on Human Rights decided that the laws banning homosexual sexual acts within adult consents constitute a breach of the right to privacy. See ECtHR, Dudgeon v. the UK, ECtHR, Series A No. 45, Judgment of 31 July 1994; Commission on Human Rights, Toonen c. Australia.

The European Court has consistently held that, under Article 8 of the European Convention on Human Rights, the legislation criminalizing sexual contact between consenting equal-sex couples violate the right to personal privacy. See, e.g. ECtHR, Judgment of 22 October 1981 Dudgeon v. The United Kingdom;

ECtHR, Norris v. Ireland, ECtHR, Series A No, 142, December 26, 1988. Sentence. The European Court examines whether or not the conduct of the State were statute-based, legally-minded and needed in a democratic society in deciding whether the law penalized private sexual activities between consenting equal sex adults violated the individual’s privacy law. ECtHR, Judgment of 22 October 1981, para. 43, Dudgeon v. the United Kingdom.

In Dudgeon versus the United Kingdom, the ECtHR determined, under Article 8 of the European Convention on Human Rights, that legislation criminalizing homosexuality violated the applicant’s privacy rights.

The Court dismissed state claims that the statutes were needed to uphold “public morality” and “other rights and liberties” and found that these grounds were disproportionate in relation to the negative impact of the statute on a homosexual’s private life. Par. Id. 60-01. Paras.

Although the European Court acknowledged that some cases could warrant state intervention in sexual acts, the Court has consistently concluded that it is beyond a limited margin to appreciate whether or not action is required in an individual’s private sexual life. See, for example, ECtHR, AD.T. v. the UK, Sentence of 31 July 2000, para. 37-33.

The European Court has stated clearly that even if a state does not deliberately impose the ban, the very presence of a homosexuality statute may breach the right to privacy. See ECtHR, Series No. 259, Judgement of 22 April 1993, Modinos v. Cyprus.

Like the ECtHR, the United Nations Committee on Human Rights has concluded that criminalizing sexual intercourse between men violates the right to privacy. With Toonen versus Australia the claimant argued that it had racist and violated the laws penalizing homosexual relations among consenting male adults. Views of 31 March 1994 See Committee on Human Rights, Toonen v. Australia.

The Committee on Human Rights decided that “any intrusion in privacy must, under the circumstances of every particular situation, be proportionate to what is wanted and sufficient to satisfy the requirements of reasonableness. Paragraph Id. at. 8.3. In this case, the state argued that for the preservation of public health and morality, the criminalization of homosexuality was mandatory. At para. 8.4. Id. at para. Like the ECtHR, the Committee on Human Rights dismissed the conclusion that the condition of reasonableness was not fulfilled. At para. 8.6. Id. at para.

Laws on age of approval
The ECtHR has also learnt of a number of cases including the criminalization, under the legal age of consent, of intimate activities of the same sex. Both cases are different than the aforementioned cases and usually occurred when the State legislation on people engaged in sexual intercourse with men and women have different age of consent than those involved in sexual relations with men and women. See ECtHR, L. & V. c. Austria, no. 39392/98 & 39829/98, ECHR 2003-1; ECtHR, B.B. c. UK, No 53760/00; 10 February 2005. Case No. 53760/00.

The Applicants subsequently argued that the differentiation of age of consent violated the European Convention on Human Rights ban on sexism (Article 14) and on the right to privacy (Article 8). See ECtHR, L. & V. v. Austria, Decree of 9 January 2003, para. 3; ECtHR, B.B. v. the UK, Decree of 10 February 2004, para. 20.

The government in L. and V. v. Austria has advocated for the gay age of consent as required in order to protect young children’s sexual health. However, while safeguarding the interests of others is a valid objective, the State has struggled to show “convincing and powerful grounds” to uphold a law