Rainbow Rights Across Borders: Comparative Legal Protection Against Discrimination On Grounds Of Sexual Orientation And Gender Identity
Vishaka Mallick, LL.M., Department of Law, Gauhati University
ABSTRACT
The unfair treatment due to sexual orientation and gender identity deprives persons within the lesbian, gay, bisexual, transgender and queer (LGBTQ) category the fundamental dignity that is provided by the human rights law. In this research paper, the authors discuss the ways in which legal structures in various jurisdictions discriminate or maintain discrimination against LGBTQ individuals. It provides a comparison of the constitutional principles, legislations and judicial verdicts in India, South Africa, Canada, the United Kingdom and the United States and in some parts of Europe and Latin America. The paper will trace the progress and gaps by reviewing decriminalization of same sex relations, anti-discrimination laws in employment and services, recognition of the gender identity, hate crime laws and access to marriage or civil unions. Specific focus is given to the manner in which courts perceive non-discrimination guarantees under the constitution and whether statutes explicitly specify sexual orientation, gender identity and gender expression. This analysis demonstrates that whereas certain countries have strong protections that are enshrined, other countries have punitive laws that promote violence and stigma. Transnational approach demonstrates that sometimes the progress is achieved through the court based constitutional interpretation and civil society promotion but not through legislature. The paper finds that the solution to equality must be to balance the human rights protection and the recognition of various gender identities.
Keywords: discrimination law; LGBTQ rights; sexual orientation and gender identity; comparative constitutional law; equality jurisprudence etc.
