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Broad protection against discrimination based on sexual orientation - Page 193

Legal protections against discrimination are a key element in the human rights legal framework of every country. They serve as a tool to ensure that the principle of equality before the law is fully observed, as a basis for public policy on prevention, and to provide remedies to victims of acts of discrimination. Despite the fact that the 1948 Universal Declaration of Human Rights was categorical in that “every person” is born free and equal in dignity and in rights, international and domestic nondiscrimination clauses have had to enumerate the grounds on which unfair distinctions cannot be made. These grounds usually reflect the reasons why people have been historically discriminated (i.e., race, ethnicity, religion, nationality, language, sex/gender, health status, migration status, etc.). As these grounds can vary greatly and can be difficult to enumerate exhaustively, equality laws generally contain “open clauses” (generally phrased “or any other ground”) into which other grounds can be read. However, in many contexts, there is strong resistance against including “sexual orientation” in these open clauses. Therefore, explicit protection on grounds of sexual orientation becomes of key importance to effectively protect people from discrimination.

Prohibition of incitement to hatred, violence or discrimination based on sexual orientation - see page 251

In some states, it is an offense to incite hatred, violence, or discrimination against others on the basis of sexual orientation. In restricting the freedom of such forms of speech, these laws recognise the paramount importance of securing the safety and protection of marginalised communities.

The wording and scope of these laws vary greatly. Some statutes aim to prohibit “hate speech” or speech with the ability to directly incite people to commit “violence”. Others include a wide array of terms such as “hatred”, “harassment”, “discrimination”, “intolerance” or “segregation”.

A few states have enacted laws that proscribe debasing or humiliating a specific social group, either in broad terms or in statues regulating broadcasting services. As with many other laws, judicial interpretations may have widened the enumerated groups of people protected by statutes, especially when they have an open clause to that effect. However, the following list includes States that have enacted laws explicitly including sexual orientation among protected grounds.

Consensual same-sex acts - see Page 89 above

Constitutional protection against discrimination based on sexual orientation -Page 186

Constitutions are the legal texts that collect the most fundamental legal principles of any given State. They usually set the organisational basis of the government and establish general rules that laws and regulations cannot contravene. Additionally, most constitutions contain a list of fundamental rights and non-discrimination provisions. These provisions may be written in “broad” terms to apply to “all” people or may list a number of protected characteristics which cannot be the basis of discrimination in law (de jure) or in practice (de facto). A few States have explicitly included the term “sexual orientation” in their non-discrimination clauses to protect people against discrimination based on that characteristic. This also means that the entire legal framework should abide by that legal principle. However, this is not always the case. Local courts can also read “sexual orientation” into those general equality provisions, thus triggering inclusion of the term in State practice and in law. In the following list, only those constitutions that spell out the term “sexual orientation” in an unambiguous way are listed.

EMPLOYMENT PROTECT ION Protection against discrimination based on sexual orientation in employment - Page 217



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