"Lesbian and gay rights are human rights!" Is this just a political slogan to be chanted outside legislatures, or are there legal arguments to support the claim that the right to be free from sexual orientation discrimination is a human right? In particular, can national constitutions or international human rights treaties be interpreted as prohibiting discrimination against gays, lesbians, and bisexuals? Robert Wintemute attempts to answer these questions by examining three of the most commonly used arguments in favor of such an interpretation: sexual orientation is an "immutable status", sexual orientation is a "fundamental choice" (or part of "privacy"), and sexual orientation discrimination is sex discrimination. To assess their merits, he looks at the relative success and failure in cases argued under three of the world's most influential human rights instruments: the United States Constitution, the European Convention on Human Rights, and the Canadian Charter of Rights and Freedoms. He also considers the potential impact of the United Nations Human Rights Committee's recent interpretation of the International Covenant on Civil and Political Rights inToonen v. Australia.
'The chapters dealing with the various jurisdictions provide a succinct and useful compendium of the recent emerging jurisprudence mainly focusing upon litigation relating to gay men...Wintemute's scholarship draws attention to the importance of law in general and civil and human rights litigation in particular...Wintemute's book is a useful vehicle through which to problematize the law/politics binary.'
'ambitious, scholarly and meticulously referenced...Wintemute has produced a wide-ranging, extensively detailed and yet accessible piece of scholarship...As a source book for references Wintemute's work is to be particularly commended.' Public Law
`offers a comprehensive, item by item examination of legislation and case law'
"Because the legal status of gays remains a matter of hot controversy in the United States, the news about these foreign developments is important. For this reason, Robert Wintemute's "Sexual Orientation and Human Rights" makes a valuable contribution. It carefully surveys gay rights decisions under three major human rights instruments; I know of no comparative study in this area that is more thorough. The book is also, however, an essay in constructive legal
"... his work brings to its subject a rare combination of legal learning and moral insight which, quite apart from living up to its amibition of making a powerful case for legal measures against discrimination on grounds of sexuality, does much, and certainly more than it advertises itself as doing, to illuminate the structure, scope, and significance of anti-discrimination law as a whole."
Preface to the Paperback Edition
2: The United States Constitution: Fundamental Choice Approach
3: The United States Constitution: Immutable Status and Sex Discrimination Approaches and Assessment of Protection
4: The European Convention on Human Rights: Fundamental Choice Approach
5: The European Convention on Human Rights: Immutable Status and Sex Discrimination Approaches and Assessment of Protection
6: The Canadian Charter of Rights and Freedoms: Immutable Status and Fundamental Choice Approaches
7: The Canadian Charter of Rights and Freedoms: Is Sexual Orientation an Immutable or a Fundamental Choice?
8: The Canadian Charter of Rights and Freedoms: Is Sexual Orientation Discrimination Sex Discrimination?
9: Comparison and Conclusion
Appendix of Canadian Charter Provisions
Table of Constitutions, Statutes and Cases