Are lesbian, gay, bisexual, and transgender (LGBT) rights “human rights”? If so, how and when did this inclusion take place?
Some non-governmental organizations (NGOs), such as Amnesty International, argue that LGBT rights are encompassed under human rights law. On the other hand, organizations like the Organisation of Islamic Cooperation claim that LGBT issues “have no legal foundation in any international human rights instrument.” Within the United Nations (U.N.) system, the issue of LGBT rights has been hotly debated. The U.N. foundational documents themselves are broad and therefore susceptible to both interpretations. For example, the U.N. Charter encourages “respect for human rights and for fundamental freedoms for all without distinction.” Similarly, the Universal Declaration of Human Rights (UDHR) states that: “[e]veryone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind.”
On December 15, 2011, the United Nations Office for the High Commissioner for Human Rights (OHCHR) released its first report on the “human rights” of LGBT persons. This report detailed the worldwide manifestations of discrimination based on sexual orientation. The publication of this report followed two historic developments at the U.N. First, in December 2008, sixty-six member nations signed onto a statement calling for the universal decriminalization of homosexuality and “to ensure that human rights violations based on sexual orientation or gender identity” are brought to justice. Then, in June 2011, the first resolution recognizing “human rights violations based on sexual orientation and gender identity” was approved in the Human Rights Council by a vote of 23 in favor, 19 against, and 3 abstentions. Notwithstanding this feat, the voting results reveal that a significant part of the international community disagreed with the resolution’s passing.
In recent years, those who argue in favor of the inclusion of LGBT rights as human rights allude to or make explicit reference to the UDHR and/or prevailing international law. Yet for any advocate wishing to argue that LGBT rights are encapsulated in the UDHR or any other international document, the most salient question is how these rights were conceived when those documents were composed or when they began to be frequently invoked and relied on.
Where did the notion of LGBT rights emerge as human rights? What was the UDHR framers’ position on LGBT rights and what was the broader debate on this issue in the drafting commission? Did the activity of LGBT activists influence the work of the commission? If not, when did LGBT activists begin to prioritize lobbying international organizations? In order to address these questions, a historical enquiry into the origins of international human rights law is necessary.
To my knowledge, there has been no systematic study conducted on the history of LGBT international human rights. I trace back this lacuna to at least three causes. First, the field of LGBT legal scholarship is relatively new, and therefore comparatively small. Second, when scholars have addressed these rights, they have typically examined their development only at the national level. Finally, the “novelty” of these rights has led scholars to focus on recent history. In a nutshell, legal scholars have generally not critically engaged with the full historical background.
Henkin, et al., assert that “the major human rights treaties and most national constitutions were adopted prior to the emergence of LGBT rights consciousness or advocacy movements” and partly due to this “the treaties do not expressly mention homosexuality, sexual orientation, or gender identity and some provisions (such as the right to marry) refer to men and women.” Yet at the same time, these scholars point out that these “treaties include numerous provisions relevant to LGBT individuals, including not only privacy and equality but also the right to life, freedom from arbitrary arrest, the right to health, and freedom of association.” Likewise, they observe that the “treaties also leave undefined concepts such as discrimination on the basis of “sex” and “other status” that may be applicable to sexual orientation and gender identity issues.”
In 1870, German writer Karl Heinrich Ulrichs wrote about uniting “urnings” (homosexuals) to champion their human rights.  In 1897, Doctor Magnus Hirschfeld founded the Wissenschaftlich-humanitäres Komitee (Scientific-Humanitarian Committee), which is considered Germany’s – and the world’s – first gay rights organization. The Committee had three goals: to repeal a provision of the German Criminal Code that criminalized homosexual acts, “to enlighten public attitude about homosexuality and homosexuals, and to interest homosexuals in their struggles for their rights.” In 1919, German writer Friedrich Radszuweit took over Vereinigung Freunde und Freundinnen, a Berlin-based homosexual club. In May 1922, he renamed it to Bund für Menschenrecht (Alliance for Human Rights). By 1929 the Alliance would boast 48,000 members. From 1923 to 1933, the organization published a bimonthly periodical called Blätter für Menschenrecht (Bulletin for Human Rights).
In 1912, Jacob Schorer, a Dutch lawyer, founded the Dutch Scientific Humanitarian Committee (NWHK), affiliated with Hirschfeld’s movement. Schorer’s organization interests lay “in the human rights aspect, the ability to be who you are without damaging the self-determination of others.” Likewise, the earliest known U.S. gay movement, the Society for Human Rights, was inspired by the Scientific-Humanitarian Committee and founded in 1924. It is noteworthy that they sought to coin the term Human Rights into its name.
In Switzerland, the Damen-Club Amicitia started publishing a magazine called Freundschafts-Banner (Friendship Banner), whose name was changed in 1937 to Menschenrecht (Human Rights). It repeatedly called “for equal laws and equal application of prevailing laws for heterosexuals and homosexuals, writing in 1947, for example, ‘It is for us only a matter of the same human rights! Not special rights, but the same!”
In 1949, the Shakespeare Club, another Dutch gay organization, originally founded in 1946, changed its name to Cultuur en Ontspanningscentrum and based its policy on the UDHR. Likewise, it has been noted that the Kredsen af 1948, Denmark’s first gay organization, was founded in response to the UDHR. A Swedish branch of Kredsen af 1948 was formed in 1949 and a Norwegian branch in 1950.
In 1951, the first International Congress for Sexual Equality saw fit to send a telegram to the U.N. demanding equal rights for homosexual minorities. Based on “the Principles of the United Nations laid down in the Rights of Man,” the “findings of modern psychological, biological and medical research,” and “mankind’s greater awareness of social injustice”, the Congress members called on the U.N. to “initiate steps towards granting [the] status of human, social and legal equality to homosexual minorities throughout the world.”
Arcadie, the first French homophile organization, founded in 1954, “consistently championed a liberal humanist agenda founded upon a discourse of universal human rights and institutionalized tolerance”. Interestingly, gay rights’ discussions within Amnesty International were taking place as early as 1974— three years before the organization received the Nobel Peace Prize and before the start of the period called the “breakthrough of human rights.”
What are we to make of these early developments? What influence or relation, if any, did these movements and others exert over international human rights law?
Much has been written about LGBT rights. But much remains to be done. A historical examination of the efforts to include LGBT within human rights law is not only a necessary chapter in the story of LGBT rights but also a prerequisite for current debates about the status of these rights in human rights law. The issue of LGBT rights is very much alive today, ranging from decriminalizing LGBT relationships to guaranteeing marriage equality. Worldwide, people are detained and imprisoned solely because of their homosexuality—including those individuals prosecuted for having sex in circumstances that would not be criminal for heterosexuals or for their gender identity.
Assessing the relation of LGBT rights and human rights, both historically and in terms of how these concepts have involved in international law, could be an extremely valuable resource to understand the challenges that LGBT people face today in the international community. Exploring how advocates concerned with LGBT rights have chosen to frame their struggles in human rights terms, and vice versa, is of great normative value.
Amnesty International, http://www.amnestyusa.org/our-work/issues/lgbt-rights/about-lgbt-human-rights (last visited March. 5, 2016) (arguing that human rights abuses based on sexual orientation or gender can include, among others, the infliction of torture and cruel, inhuman and degrading treatment; arbitrary detention on grounds of identity or beliefs; the restriction of freedom of association; and the denial of the basic rights of due process).
 Zamir Akram, Delegate of Pakistan and Representative behalf of the Organization of the Islamic Conference, Remarks at the March 2012 Meeting of the U.N. Humans Right Council, (March 7, 2012).
 Are LGBT rights human rights? Recent developments at the United Nations, Psychol. Int’l, June 2012
 U.N. Charter art. 3, ¶ 3.
 G.A. Res. 217 (III) A, art. 2, Universal Declaration of Human Rights (Dec. 10, 1948).
 Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation, Report of the United Nations Office for the High Commissioner for Human Rights, U.N. Doc. A/HRC/19/41 (2011).
 U.N. General Assembly, Statement on Human Rights, Sexual Orientation and Gender Identity (Dec. 18 2008) (available at: http://www.refworld.org/docid/49997ae312.html) (accessed 22 April 2016). The representative of Syria, on behalf of 57 member nations, introduced an alternative statement. The statement, rejected the introduction of the “so-called” notions of sexual orientation and gender identity and expressed that the creation of these new rights seriously undermine “the entire international human rights framework”. As of April 2016, 96 member nations have joined the declaration in favor of LGBT rights while 54 still opposed it.
 Human Rights Council Res. 17/19, U.N. Doc. A/HRC/RES/17/19 (June 17, 2011).
 In a Human Rights Day address to the United Nations in Geneva, Switzerland on Dec. 6, 2011, then-United States Secretary of State Hillary Clinton stated that one of the remaining human rights challenges before the world today is guaranteeing the equality and dignity of members of the LGBT community. She spoke of this “invisible minority,” whose “human rights are still denied in too many parts of the world,” and called for greater protection of LGBT persons. She asserted that gay rights and human rights are not distinct and referred to the UDHR as a foundational U.N. document guaranteeing LGBT rights as human rights. See Hillary R. Clinton, Secretary, United States Department of State, Remarks in Recognition of International Human Rights Day (Dec. 8, 2011).
 Addressing the U.N. Humans Right Council, U.N. Secretary-General Ban-Ki moon stated: “We see a pattern of violence and discrimination directed at people just because they are gay, lesbian, bisexual or transgender. There is widespread bias at jobs, schools and hospitals, and appalling violent attacks, including sexual assault. People have been imprisoned, tortured, even killed. This is a monumental tragedy for those affected — and a stain on our collective conscience. It is also a violation of international law. You, as members of the Human Rights Council, must respond. To those who are lesbian, gay, bisexual or transgender, let me say: You are not alone. Your struggle for an end to violence and discrimination is a shared struggle. Any attack on you is an attack on the universal values the United Nations and I have sworn to defend and uphold. Today, I stand with you, and I call upon all countries and people to stand with you, too.” See Ban-Ki moon, U.N. Secretary-General, Address at the March 2012 Meeting of the Human Rights Council, U.N. Doc. SG/SM/14145-HRC/13, (March 7, 2012).
 Julie Mertus, The Rejection of Human Rights Framings: The Case of LGBT Advocacy in the US, 29 Hum. Rts. Q. 1036 (2007).
 Julie Mertus, Applying the Gatekeeper Model of Human Rights Activism: The U.S.-Based Movement for LGBT Rights, in The International Struggle for New Human Rights 52 (Clifford Bob ed., 2009).
 Louis Henkin et al., Human rights 1208 (2009).
 Jonathan Ned Katz, Gay American History: Lesbians and Gay Men in the U.S.A. 385 (1976). See also Karl Heinrich Ulrichs, Araxes: a Call to Free the Nature of the Urning from Penal Law (Michael Lombardi trans., 1981) (1870) (“The Urning [homosexual], too, is a person. He, too, therefore, has inalienable rights. His sexual orientation is a right established by nature. Legislators have no right to veto nature; no right to persecute nature in the course of its work; no right to torture living creatures who are subject to those drives nature gave them. The Urning is also a citizen. He, too, has civil rights; and according to these rights, the state has certain duties to fulfill as well. The state does not have the right to act on whimsy or for the sheer love of persecution. The state is not authorized, as in the past, to treat Urnings as outside the pale of the law. The prohibition of the expression of the sex drive, i.e., between consenting adults in private, lies outside the legal sphere. All grounds for legal prosecution are lacking in this case. Legislators are hindered from doing this by human rights and the principle of the constitutional state”).
 Strongly influenced by Ulrich’s work, the Committee was active until its disbandment by the Nazis in 1933. For nearly 25 years, the Committee published scientific and cultural studies of homosexuality. Hirschfeld also founded the World League for Sexual Reform, which held several congresses on the topic: Berlin (1921), Copenhagen (1928), London (1929), Vienna (1930), and Brno (1932). See Ralf Dose, The World League for Sexual Reform: Some Possible Approaches, 12.1 J. Hist. Sexuality 1 (2003).
 Paul Russell, The Gay 100: A Ranking of the Most Influential Gay Men and Lesbians, Past and Present 16 (2002)
 Laurence Senelick, The Homosexual Theatre Movement in the Weimar Republic, 49 Theatre Survey 5, 22 (2008).
 Florence Tamagne, A History of Homosexuality in Europe, Vol. I & II: Berlin, London, Paris 1919-1939 75 (2007).
 Bert Boelaars, Urgency and Strategy: Homosexual Men and Women in the First Half the of the Twentieth Century, in Urgency Required Gay and Lesbian Rights are Human Rights 10 (Ireen Dubel & André Hielkema eds., 2010).
 St. Sukie de la Croix, Chicago Whispers: A History of LGBT Chicago before Stonewall 75 (2012).
 Hubert Kennedy, The Ideal Gay Man: The Story of Der Kreis 215 (1999).
 Who’s Who in Contemporary Gay and Lesbian History Vol.2: From World War II to the Present Day 124 (Robert Aldrich & Garry Wotherspoon eds., 2000).
 Jason Pierceson, Sexual Minorities and Politics: An Introduction 157 (2016).
 Leila J. Rupp, Professor, University of California–Santa Barbara, American Historical Association conference: Transnational Homophile Organizing: The International Committee for Sexual Equality (Jan. 2011). See also COC, Report of the First International Congress for Sexual Equality (1951), 2.19.038, box 158.
 Id. at 2. See also Telegramm an die UNO, 7 Der Kreis 1 (1951).
 Keith Harvey, Intercultural Movements: American Gay in French Translation 29 (2003).
 Sexual Orientation and the AI Mandate, Luxembourg Section, for 1982 ICM, AI Index: 21/01/82 in Stephen Hopgood, Keepers of the Flame: Understanding Amnesty International 116 (2006).
 See Samuel Moyn, The Last Utopia: Human Rights in History 4, 222 (2012).