Sexual Orientation, Discrimination, and the Universal Declaration of Human Rights

Abstract Like many governing bodies today, the United Nations is facing the question of whether laws that discriminate on the basis of sexual orientation are legitimate. In particular, there is a current debate in the United Nations about whether Article 2 of the Universal Declaration of Human Rights (UDHR) (providing protection against discrimination on the basis of, among other things, race, color, sex, national origin, or "other status") protects against discrimination on the basis of sexual orientation. This Comment will discuss the importance of this question in the UN today, and analyze whether protection based on sexual orientation is included in the UDHR based on the text and case law under the UDHR. But because these approaches do not conclusively answer the question, this Comment will also adopt an approach from political philosophy. Using the work of Mill, Locke, and Rawls, this Comment will analyze protection against discrimination based on sexual orientation from two alternative positions. The first considers whether discrimination based on sexual orientation may be necessary to the stability of non-oppressive states. The second considers whether such discrimination may be justified behind a contractarian veil of ignorance. Combined, these approaches demonstrate that laws that discriminate on the basis of sexual orientation may be legitimate under the UDHR. A note as to the inspiration for this paper: there has been a great deal of recent scholarship advocating against discrimination on the basis of sexual orientation. There is significantly less scholarship, however, explaining why it may be legitimate for a state to discriminate on the basis of sexual orientation. In order to contribute something meaningful to this important debate, this Comment will go through a few arguments in support of the latter position. I. INTRODUCTION "Morality being the noblest product of culture, it is the duty of all to respect it."1 The Universal Declaration of Human Rights (UDHR) encourages all UN Member States to protect certain rights.2 In particular, its goal is to encourage Member States to protect rights that humans naturally possess and that are fundamental to living a dignified human life.3 Since these rights owe their origin to the nature of human beings and not to the structure of a state, no state should deprive its citizens of these fundamental human rights. Recent international developments raise the question of whether protection against discrimination based on sexual orientation is included in the UDHR. In particular, this Comment will consider whether Article 2 of the UDHR (which protects against discrimination on the basis of, among other things, race, color, sex, national origin, or "other status"') protects against discrimination on the basis of sexual orientation. First, this Comment will discuss the importance of this question in the UN today. Second, this Comment will analyze whether protection based on sexual orientation is included in the UDHR based on the text and case law under the UDHR. But because these approaches do not conclusively answer the question of whether protection based on sexual orientation is included in the UDHR, this Comment will also adopt an approach from political philosophy. This approach will evaluate which types of discrimination are theoretically permissible under a document otherwise concerned with promoting equality. Using the work of Mill, Locke, and Rawls, this Comment will analyze protection against discrimination based on sexual orientation from two alternative positions. The first considers whether discrimination based on sexual orientation may be necessary7 to the stability of non-oppressive states. The second considers whether such discrimination may be justified behind a Rawlsian veil of ignorance. Combined, these approaches will demonstrate that the right not to be discriminated against on the basis of sexual orientation is a right that is in tension with the stability of some non-oppressive religious states, and the right against discrimination gains little support from the Rawlsian veil of ignorance. …