The level of protection for LGBT (Lesbian, Gay, Bisexual, and Transgender) individuals as a protected class in human rights law has been put into question in recent years. Article 2, paragraph 2 of the ICESCR says the following:
The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status (UN General Assembly).
Protection for sexual orientation and gender identity minorities has been left to the inscrutable “other class.” Recent general comments have provided more explicit direction for member parties in interpreting the prescriptions of the covenant. First, in 2000, general comment 14 clarified sexual orientation as protected as it pertains to access to healthcare. Then in 2002, general comment 15 did the same for access to water and sanitation. The crucial turning point for employment discrimination based on sexual orientation came in 2005 with the adoption of general comment 18, focusing on the right to work. Finally, general comment 20, adopted in 2009, made general updates to ICESCR’s non-discrimination law, including the following:
“Other status” as recognized in article 2, paragraph 2, includes sexual orientation ... In addition, gender identity is recognized as among the prohibited grounds of discrimination (UN CESCR).
These comments all ultimately derive from a UNHRC 1994 decision, where the committee found that protection for sexual orientation could be found under the more general protected class “sex” (Toonen v. Australia).
The history of LGBT anti-discrimination in international law prior to that 2005 date is limited almost exclusively to Europe. The majority of these countries had passed anti-discrimination laws specifically for LGB individuals prior to 2005, though protection for transgender individuals was spottier. This largely has to do with a directive, which states “any direct or indirect discrimination based on religion or belief, disability, age or sexual orientation as regards the areas covered by this Directive should be prohibited throughout the Community” (Council of the European Union). This, in effect, means that, in order to be a member of the European Union, a country must ensure LGB individuals not face discrimination. These rights were upheld in numerous court cases at the European Court of Human Rights, such as Lustig-Prean & Beckett and Smith & Grady v. United Kingdom, Beck, Copp, and Bazeley v. United Kingdom, and Perkins and R. v. United Kingdom, which all dealt with improper dismissal from military service, though in all cases it was deemed via the right to a private life (article 8 of the European Convention on Human Rights) rather than the prohibition of discrimination (article 14). More recent decisions by this court have shown an evolution in terms of considering state...