Sexual health human rights and the law

24 | Sexual health, human rights and the law
such as forced sterilization, forced abortion and/
or forced anal examination (21, 175–177) (see also
Chapter 5).
The right of everyone to the enjoyment of the
highest attainable standard of health includes
entitlements to available and accessible health-care
facilities for all people without discrimination on
any grounds, including gender identity and sexual
orientation (28, 29, 84). It also includes freedoms
such as the right to have control over one’s own
body, and to be free from non-consensual medical
treatment, experimentation and torture (178).
United Nations human rights treaty monitoring
bodies emphasize both dimensions and recognize
sexual orientation and gender identity as prohibited
grounds for discrimination in achieving the
highest attainable standard of health (40, 107,
179). International, regional and national human
rights standards, and a growing body of health
standards that respect and protect human rights,
provide clear benchmarks on how the health and
human rights of gay, lesbian, transgender, gender
variant and intersex people should be respected,
protected and fulfilled (40, 107, 179–185). Laws can
play an important role in providing safeguards and
guarantees in this regard (121).
International human rights standards explicitly call
for the decriminalization of consensual same-sex
sexual activity, and have established that such criminal
laws are in breach of human rights (28, 77, 179–181,
186–193). The consequences to health and well-being
of the criminalization of same-sex sexual activity have
been spelt out in global and national decisions and
recommendations, including the recognition that
criminal law has no public health value (17, 108, 194).
There are many countries of the world that have
either never criminalized homosexuality, sodomy
or consensual same-sex sexual activity, or have
decriminalized them (17, 121). For example,
Colombia decriminalized consensual same-sex
sexual activity in 1980 (195), Chile did so in 1998
(196), Nicaragua in 2008 (197), and Fiji in 2009 (198).
South Africa is among those countries that explicitly
protect the right to non-discrimination on the
grounds of sexual orientation (194, 199).
3.4.8 Transgender and gender variant people 6
Transgender and gender variant people worldwide
experience substantial health disparities and
barriers in accessing appropriate health services.
Due to perceived gender-nonconformity, in nearly
all societies these people are stigmatized and
discriminated against, and often experience high
levels of violence from police, gangs, family members,
health-care providers and others. Stigmatization,
discrimination, and legal, economic and social
marginalization and exclusion impede their access
to necessities such as appropriate and good quality
health care, social welfare, housing, education and
employment. Some forms of gender expression are
criminalized in many countries, and transgender
and gender variant people are often subjected
to compulsory medical interventions without an
opportunity for informed decision-making and
choice. All these factors affect their overall health and
well-being, including sexual health. In addition, not
being able to live according to one’s self-identified
gender is likely to be a source of distress, exacerbating
other forms of ill health (73, 200, 201).
When transgender and gender variant people
seek health services, they are often rejected or
mistreated by health-care providers, and as a result,
6
This report uses the terms “transgender” and “gender
variant” to refer to people who identify themselves
with a different sex/gender from that assigned to them
at birth, while recognizing that, among various terms
used globally, the term “trans” is gaining in recognition
and popularity. Around the world there have always
been people whose gender identity and expression
differ from cultural expectations associated with
the sex/gender they were assigned at birth. Across
cultures, regions and societies, people may identify as
transsexual, transgender, transvestites, travestis and
cross-dressers, among others. Various cultural and
indigenous terms are also used to describe a wide and
diverse range of gender identities, including: hijra and
aravani (India), meti (Nepal), fa’afafine (Samoa, America
Samoa, Tokelau), transpinay (Philippines), meme
(Namibia), muxe (Mexico), omeggid (Panama). Someone
born male who identifies as female may use the term
“male-to-female”, (MtF), “transwoman”, “transgender
woman”, “transfeminine”, or simply “woman” to describe
her gender identity. Someone born female who
identifies as male may use the term “female-to-male”
(FtM), “transman”, “transgender man”, “transmasculine”,
or simply “man” to describe his identity.