Johanna Westeson - The ICHRP

1. NON-DISCRIMINATION AS RELEVANT TO SEXUAL
HEALTH
1A. NON-DISCRIMINATION ON ACCOUNT OF SEX, SEXUAL
ORIENTATION, GENDER IDENTITY, MARITAL STATUS, AND
HIV-STATUS
1. Introduction 31
The right to non-discrimination is a fundamental principle in all human rights, as it is the
obligation of the state both to ensure equal protection of the law and to take steps to
eliminate discrimination by others to achieve equality. 32 This opening sub-chapter focuses
primarily on general anti-discrimination protections in law, as well as court decisions
where discriminatory laws and practices have been struck down by European and domestic
courts. Later sub-chapters under this heading examine specific expressions of
discrimination, such as sexual harassment and mandatory HIV-testing. Asylum laws on
European and domestic levels are also included in this chapter, since most asylum claims
related to sexuality are strongly connected with discriminatory practices in the asylum
seeker’s country of origin. Other chapters address more indirect (but no less obvious)
forms of discrimination, such as laws that prohibit persons of the same sex to marry or to
access adoption procedures, laws that fail to ensure that police respond equally to abuse
committed against people in sex work, or laws failing to respond to marital rape.
The principle of non-discrimination has multiple associations with sexual health.
Inequality among and between persons and groups is a strong predictor of the burdens of
ill health, including sexual health. Inequalities are manifest through differential access to
services and resources and in individuals' ability to participate in the policies and laws that
govern their lives, as well as to seek remedies for abuses committed against them.
Discrimination operates through processes of inequality that are rarely linked solely to one
characteristic of a person, but are often fuelled by multiple factors including sex, age, class,
race, sexual orientation, marital status, national status, disability as well as health status,
which includes HIV status.
In the European region, the principle of non-discrimination is strongly rooted on both the
regional and domestic level. Non-discrimination with regard to nationality became a
cornerstone of the early economic cooperation within the European Communities, in order
to facilitate the free flow of goods and services across borders. Thus, the rationale for the
principle of non-discrimination was pragmatic and primarily economic and market-based.
However, the principle has since spilled over into other fields, prohibiting discrimination
on the basis of sex and sexual orientation, among other grounds, within an array of fields
covered by EU law. Consequently, these provisions have taken root on domestic level in
the EU member states and also outside of the Union to varying degrees. Many states in the
region have both strong constitutional protection for the principle of equality, and detailed
non-discrimination laws that specifically mention sex and sexual orientation as prohibited
31 Drawn in part from general WHO chapeau text elaborated by Alice M. Miller and Carole S. Vance.
32 WHO, 25 Questions on Health and Human Rights. As noted in international legal standards, international
human rights, humanitarian, criminal and labor law all are premised on principles of equality and nondiscrimiation.
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