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Chapter one presents the introduction of the research topic and an overview of the research problem

May 3, 2019 0 Comment

Chapter one presents the introduction of the research topic and an overview of the research problem, and highlights the background and justification of the study. It also entails the literature review and makes a rigorous exposition of the methodological approaches to data collection and analyses.

Chapter two presents the theoretical framework of the study. It expounds on the theories that guide the study, more specifically John Finnis’s principles of practical reasonableness and the queer theory and how they are relevant to the research.

Chapter three presents a historical perspective or historical approaches to legislative and judicial decision making on matters of sexuality. It notes the doctrinal and textual interpretations of the law, as well as legislations culminating in the realease of the wolfenden report in 1957 and the critical and transformative legislative and judicial decision making approaches that ensued from the report.

Chapter four offers an intellectual discussion of international human rights law and how it has been interpreted and applied to recognise and protect sexual minorities.

Chapter five presents Kenya’s Constitution 2010 as a preferred country strategy for implementation of international human rights standards and principles. The chapter examines the normative provision of the Constitution and its expansive Bill of Rights and what that means to sexual minorities. Further the chapter examines the legislature and the judiciary, as institutions of justice mandated to make the decision through legislative processes and judicial interpretation of the Constitution. Its provision on individual rights and fundamental freedoms.

Chapter six is the conclusion chapter. It attempts to respond to the hypotheses set out in chapter one of the research, specifically pondering on how international human rights principles and standards, the Constitution of Kenya and specifically its institutions can be informed in jurisprudence around the world to improve the human rights situation of sexual minorities. Further it offers recommendations as to what is required to address the grim human rights situations of sexual minorities by suggesting both legal and non legal solutions.

Chapter two presents the theoretical framework of the study. It expounds on the theories that guide the study, more specifically John Finnis’s principles of practical reasonableness and the queer theory and how they are relevant to the research
CHAPTER TWO.

THEORETICAL FRAMEWORK OF INSTITUTIONAL DECISION MAKING AND CONCEPTS AROUND SEXUAL MINORITIES
2.0: INTRODUCTION
This chapter is about the theoretical and conceptual issues of this research. It presents the theoretical as well as the conceptual framework of the study. It explains the concepts used and the study’s own assumption about the negative impact of sexual minority relations on the human rights of sexual minorities in Kenya. The theoretical and conceptual issues are based on the findings presented in the literature reviewed in chapter one and it provides the framework for the research designs and narrative analysis. They serve as a foundation to the proposed model of critical, queer and transformative decision –making by institutions of justice. It discusses the relationship and influence of these theories and concepts in relation to critical and transformative decision-making on the part of the legislature and the judiciary in promoting and protecting human rights of sexual minorities.

2.1: THEORETICAL FRAMEWORK
The constitution of Kenya provides that the judiciary and parliament have the express mandate of implementing human rights principles of equality and non discrimination through legislative action and judicial interpretation respectively. This research acts as a critique of these state institutions as institutions used in the enforcement of justice. As such the study brings together John Finis’ critical, transformative and mindful enquiry as well as Queer theory’s deconstructionism as theoretical framework. The suitability of these two theories to the research is examined in this section.

2.1.1: JOHN FINIS’ PRINCIPLES OF PRACTICAL REASONABLENESS
Finnis is a legal philosopher and author. For Finnis , there are seven basic goods; life, knowledge , play, aesthetic experience, sociability of friendship, practical reasonableness and religion.

Life involves all aspects of vitality that enable a person to gain strong willpower. The second aspect of well being is knowledge and is described as the pure desire to know, simply out of curiosity, as well As a concerning interest and desire to know the truth. The third aspect play, is regarded as self evident as there is no real point of performing such activities, only for pure enjoyment. Aesthetic experience is the fourth aspect and is considered similarly to play however; it does not need essentially need an action to occur. Finnis’ fifth aspect is sociability where it is realised through the creation of friendships, that these relationships are fundamental goods. Practicable reasonableness is the sixth basic good where it is one’s ability to use their intellect in deciding choices that ultimately shape one’s nature. The final basic good is religion ; it encompasses the acknowledgment of a concern for a simplified distinct form of order; where an individual’s sense of responsibility is addressed; it is all those beliefs that can be called matters of ultimate concern; questions about the point of human existence”.

Finnis considers this basic goods impossible to compare and believes that they are all equally self evident. Each of the basic goods can be considered the most important, as none of them can be reduced to simply a mechanism of achieving another. While technically the goods can be treated as superior to one another Finnis provides that each good is still fundamental where no priority value exists.

Finnis argues that the state should deter public approval of homosexual behaviour while refusing to persecute individuals on the basis of their sexual orientation, basing this position not on the claim that homosexual sex is unnatural but on the idea that it cannot involve the union of procreation and emotional commitment that heterosexual sex can, and is therefore an assault on heterosexual union.

Finnis’ principles of ‘practicable reasonableness’ are moral in that regard. However, finis’ idea of morality differs from the Thomistic ideology of his philosophical father, Thomas Aquinas in the sense that the latter holds morality to be substantive and refers to trhe quality of laws whereas that of Finnis refers to the process of achieving them. The basic goods that Finnis provides are established by the act of subjectivity reflecting on human character as human beings. They are not known intuitively but, by an act of intellect which, which proceeding from felt inclinations and aided by anthropological and psychological evidence of what all human societies ‘value grasps or discovers these categories of human purpose as self evident . They are also indemonstratable.

Finnis illustrates his conception of self evidence by referring to the principles of rationality in theoretical inquiries whereby he argues that ” one such principle is that the principle of logic, for example the forms of deductive inference, are to be used and adhered to in all one’s thinking , even though non-circular proof of their validity is possible. Another is that an adequate reason why anything is so rather than otherwise is to be expected, unless one has reason not to expect such a reason. A third is that self defeating these are to be abandoned. A fourth is that phenomena are not to be regarded as real unless there is some reason to distinguish between appearance and reality…
Finnis’ philosophy gives light into law making and law making interpretation and calls for rational and reasonable decision making on the part of state institutions charged with the duty to make decisions that affect the enjoyment of the basic social goods. Finnis comes out as concerned with the outcomes of decisions by relevant institutions on the social goods on society and those that such decisions affect.

Finnis in his seminal book Natural Law and Natural Rights explains that the undertaking of practical reflections on the part of decision makers such as judges or legislators cannot proceed securely without knowlwdge of the “whole range of human possibilities and opportunities , inclinations and capacities, a knowledge that requires the assistance or descriptive and analytical social science”. He states thus in the basic thesis of his book “there are human goods that can be secured only through the institution of human law, and requirements of practical reasonableness and that obnly those institutions can usatisfy. It is the object of this book to identify those goods, and those requirements of practical reasonableness, and thus to show how on what conditions such institutions are jusatified and the ways in which they can be defective.

The theory of practical reasonableness as founded by Finnis raises the fundamental question regarding consideration of Natural Law in the context of the discussion of the role of decision making institutions of a government such as parliament and the judiciary. Finnis strongly attempts to formulate a rational basis for moral action and his central thesis being that the act of making law is an act which can and should be guided by moral principles which are a matter of objective reasonableness. Finnis goes ahead to define natural law as “the set of principles of practical reasonableness in ordering human life and human community..” these principles are practical in nature, shifting Finnis’ theory of Natural law from the moral arguments of the contents of Law postulated by Aquinas. Finnis argues that the principles of Natural Law are “traced out not only in moral philosophy or ethics and individual conduct , but also in political philosophy and jurisprudence, in political action , adjudication, and the life of the citizen.
Finnis further puts it strongly that “the principles of Natura Law explain the obligatory force.. of positive laws, even when those laws cannot be deduced fromthe orinciples of natural law.” This research argues that if Finnis is correct and indeed he is correct, then the principles of Natural Law have the ability to inform state institutions of decision-making on their moral obligations in discharging their legislative and judicial mandate in cases involving minority groups such as sexual minority groups.

The role and duty of the government in applying law and in the interpretation of human rights which is in line with this research is also examined by Finnis. Finnis goes ahead to analyse the nature of the moral community and argues that a complete community is one in which in addition to being a political community combines a complete variety of relationships and relates it to the law in focal sense. He grounds the moral rational strenghth of law in its purposive contribution to the continuance and fulfilment of a complete community. Finnis avers that the basic human goods motivate reasonable action on the part of individuals and families, communities and governments, and delimit the role andscope of government.

Finnis further asserts an important argument concerning the use of human intelligence where he argues that whewn people consider “what is the good to be pursued, they engage in a practical reasoning , a different type of intelligence that allows us to work out what is right and wrong. That, law is able to fulfil its natural law assigned tasks only through institutions and officialsthat effectively exercise authority. Further in his view,adjudication requires the specification of abstract moral principles to settle complex cases because formally enacted laws can never completely aanticipate the circumstances in which principles must apply and natural authorises judges to exercise their practical reasonableness. He disagrees with positivists that in penumbra cases, judges merely legislate and argues that they go beyond legislation and what is dictated by particular enacted legal rules and in this regard, ther activity is categorically different from that of legislators.

The role of the government and its duty in applying law and in interpreting human rights which is in line with the research is also examined by Finnis.

The principles of practical reasonableness as postulated by Finnis involve rationality and reasonableness as its pillars. According to Sartor, practical reasonableness requires both morality and rationality, entails that reasonable practical determinations need to be both practical enough and mloral enough. In order for a determination to be reasonable with regard to a certain context such as culture or form of life, it must also be consonant (or atleast not completely dissonant) with the ideas prevailing in that context and in particular , with the norms that are practiced in that context. Rationality as understood by Sartor pertains to cognition namely , to the activity through which we process information inorder to come at reasoned determinations.

Failure by institutions of justice and equally tose of service provision e.g hospitals to apply principles of practical reasonableness necessarily result in injustices. There are four types of injustistices as put forward by Finnis which include stipulations that may be distributively unjust by appropriatring some benefit to a class not readonably entitled to it , whilw denying it to other persons , or by imposing on some a burden from which others are on no just criterion, exempt. As will be demonstrated in chapters ahead in the research, failure to access healthcare, education, employment and housing, personal security among others are glaring human rights violations that sexual minorituies in Kenya experience in their daily lives.

Finnis theory of practical readsonableness calls for transformative constitutionalism, if substantive justice is to be realised equally by all individuals especially in the Kenyan context.

The Kenyan Constitution provides expressly for expansive dignity, equality and non-discrimination protections and several other counter – majoritarian provisions, which need to be realised through transformative decision making approaches by these two institutions.

2.1.2 QUEER THEORY
Queer theory ‘s origin is hard to clearly define since it came from multiple critical and cultural contexts , including feminism , post structuralist theory, radical movement of people of color, the gay and lesbian movement, AIDS Activism, many sexual sub cultural practices such as sado machosism and post colonialism.

Although queer theory bhad its beginnings in theh educational sphetre, the cultural evenys surrounding its origuin also had a huge impact. Activists groups pushed back in the 1980’s against the lack of government intervention after the outbreak of the AIDS epidemic.

Queer theory as an academic tool came about in part from gender and sexuality studies that in turn had their origins from lesbians and gay studies and feminist theory. It is a much newer theory in that, it was established in the 1990’s, and contests many of the set ideas of the more established fields it comes from by challenging the notion of defined and infinitre identity categories, as well as the norms that create a binary of good versus bad sexualities.

Queer theorists contention is that there is no set normal, only changing norms that people may or may not fit into, msaking queer theorists’ main challenge to disrupt binaries in hopes that this will destroy difference as well as inequalitiues.

Queer theory challenges the normative social ordering of identities and subjectivities along the heterosexual/homosexual binary as well as the privileging of heterosexuality as ‘natural’ and homosexuality as its deviant and abhorrent other. Accvording to aSullivan, queer theory is built from the post structural theories of Michael Foucault, Jacques Derida and Jean Francois.

As Queer theorising hasd come to be central ion much theorising regarding sexual nd gendered lives, it has emerged as a schorlaly conceptual or theoreticsl approach, a political perspective and a form of self identificsation or assemblage of practices of the self. Queer theory is found suitable for this research first due to its distabilising social and political critique, queer analyses provides important insights into the contradictions inherent not only in sexual minority relationships but also the international structure itself, in which the wider human rights discourse is imbedded. Queer critique is necessary deconstruction of heterionomativity that enables sexual minorirty people to chasllenge bthe dominant social and npolitical order to redefine then meaning of their multiple identities and the contexts in which their lives are situated. But perhaps the most important use of queerr theory is its insistence that law is nit the only solution to problems that sexual minorities face, though its belief that law has no monopoly to truth , meaning that for serxual minorities to be fully accepted and resprected and protected, an array of approaches , including law have to be applied.

2.3 CONCEPTS AROUND SEXUAL MINORITY ORIENTATION
There are several concepts that surround sexual minority orientation. They include but not limited to essentialism, social constructionism, sexuality, sexual orientation, sex, gender,homosexuality, social institutions and social structures.

2.3.1 WHO ARE SEXUAL MINORITIES?
A sexual minority is a group whose sexual identity, orientation or practices differ from the majority of the surrounding society. It can also refer to transgender, gender queer or intersex individuals.

The term sexual minority was coined most likely in the late 1960’s under the influence of Lars Ullerstam’s ground breakinf book ” The Erotic minorities: A Swedish View” which came strongly in favour of tolerance and empathy to uncommon varities of sexualities, such as paedophilia and ” sex criminals”. The term was used as analogous to ethnic minority.

2.3.2 HEALTH CARE STATEMENT OF SEXUAL MINORITIES GROUP
The intent here is to bring to light the violation of basic human rights of this community and need for provision of equal opportunities and protection of rights of this community and need for provision of equal opportunities and protection of rights.

The disparity in health care for the sexual minorities exists in all societies. For eample, transgenders do not have a separate ward in any hospital or any beds reserved for them. Often , they are not even allowed inside hospitals and do not have separate wards earmarked for inpatient care.

Their access to health care needs to be ensured because they are at a high risk for various physical and mental illnesses.

Here, focus is given to health issues of sexual minoritiues with respect to definition of health by World Health Orgnization- Physical, mental, social well being as documented in the preamble of to the Constitution of World Health Organization (1946).
2,3.2.1 PHYSICAL HEALTH
Sexual minorities are at a high risk for developing sexually Transmitted Diseases (STD’S) and HIV/AIDS. The reason for high prevalence of HIV is attributed to re-use of needles and unprotected intercourse as part of commercial sex work both in hetero and homosexual relatyionship. They are also high risk victims of physical, sexual, economical and emotional violence from the so called normal community. Many transgender would like to undergo hormonal therapy and sex reassignement surgery(srs). Unfortunately they are denied these services in majority of hospital. Many of the surgeries are done without proper assessment, psychiatrist opinion, hormonal therapy and real life experience or even adequate aseptic precautions.

2.3.2.2 MENTAL HEALTH
Sexual minorities are at a risk for developing emotional disoerders because of the stigma and discrimination. Suicide risk has been shown to be greatly elevated for men in same sex partnership. Transgenders were forced out of theur homes or chose to leave home because of parental rejection or fear of rejection, increasing their risk of homelessness, poverty and associated negative sequalea . They are physically, verbally and sexually abused, which gets manifested as depression, panic attacks, suicidal ideation, psychological distress, body image disturbance and eating disorders. Sexual minority adolescents leave home more frequently in search of their identity and are victimised and forced for sex more often. They use highly addictive substances more frequently to overcome their sorrows and have more sexual patners than their heterosexual counterparts . Heavy lcohol drinking and use of drugs remains a significant public health problem in this population. High level of discrimination may underlie the observations of greater psychriatric morbidity risk among sexual minorities.

2.3.2.3 SOCIAL WELL-BEING
Extreme social-exclusion, discrimination, stigma nd atrocities diminish self esteem and sense of social responsibility. Sexual minorities recognize that they are different from the’ majority others’, during their adolescence. Many of them end up in marital heterosexual relationships against their will because of family and societal pressure. These marriages end up in marital disharmony, divorce or continue with poor quality of life. Legal inheritance is often denied by their family members. They are not allowed inside the premises of the educational institutions. Hence, illiteracy is very common among the sexual minority. They are not considered for government jobs. Even if they have a job, they are suspended from the job once their gender identity/ sexual orientation is revealed. They are not allowed inside hotels, hospitals, cinema halls and government offices as indeed in most public spaces.

Discrimination and non-friendly environment at the work place force them to take up begging and prostitution for their livelihood.

Sexual minorities find it difficult to get a house on rent, and frequently change their residence. Thus, it is difficult for them to produce proof of residence. Subsequently, many of them do not get social or disability pension, voters ID, Ration card, passport and many of them do nlot get a caste certificate. There have been multiple instances where they had to approach the court to get medical certificates. They also get excluded in population census. Hence they are a non existent or an invisible community, who do not get included in any social and health policy.

Sex work by sexual minorities invites exploitation by both clients and the police. The landmark judgement in Naz Foundation vs. Union of India case, on July 2, 2009 that has upheld their rights. High court of Delhi recognised the anachronism associated with section 377 IPC and interpreted it to exclude sexual acts between consenting adults, thus discriminalizing homosexuality. This judgement may be recognised as one of the stepping stones to uphold the rights of the sexual minorities.

In conclusion, sexual minorities experience healthcare disparities that will be eliminated only if clinicians elicit information about sexual orientation and gender identity from their patients through thoughtful, non judgemental discussion and history taking.

A recent systematic review identified consistent recommendations across recommendations across studies at primary care settings to have inclusive clinical patient communication, sensitive documentation of sexual orientation , knowledge for cultural awareness, staff training and addressing population healh issues. To overcome homophobia, their is an urgent need to invest on research in this area and inclusion of issues on sexual minority in the medical curriculm. This may help health professionals to improve their response to health disparities and also become sensitive to the needs of this populayion.

2.3.3 SEXUAL ORIENTATION.

The study of sexuality encompasses a wide range of topics, including anatomical and physiological phenomena, behaviour, desire and identity or sexual self concept. Homosexual men and women (in western world often refer to as gay men and lesbian women) have a sexual orientation towards persons of the same sex. Heterosexual men and women 9in the western world often reffered to as straight persons) have a sexual orientation towards persons of the opposite sex. Bisexual men and women have a sexual orientation towards persons of the same as well as the opposite sex. Heterosexuality , homosexuality and bisexuslity are all referred to as “sexual orientations”.
The term homosexual came into use as a clinical description of men who displayed sexual desires to other men . in modern language the term homosexuality is equally ascribed to male as to female same sex sexual behaviour.

Homosexual identity developed in the late 19th and 20th centuries and diversified into a plurality of gay, lesbian, queer sexual orientation identities. All these identities are part of a modernity process.

Generally speaking,sexual orientation has been represented as including one or more aspects of sexuslity e.g attraction, behaviour, desire, identity that extend beyond physiological and biological processes.

Another issue to be considered in the study of sexual orientation concerns the area of dichotomous and categorical labelling of sexual orientation dormains versus measurement of a continuum.

2.3.4 SEXUALITY
Human sexuality is the way people experience and express themselves sexually. This involves biologival, erotic, physical, emotional , social, or spiritual feelings and behaviours.because it is a broad term, which has varied over time, it lacks a precise definition.the biological and hysical aspecs of sexuality largely concern the human reproductive functions, including the human sexual response cycle. Someone’s sexual orientation can influence that persons sexual interest and attraction for another pwrson. Physical and emotional aspects of sexuality include bonds between individuals that sre expressed through profound feelings or physical manifestatis of love , trust and care. Social aspects deal with the effects of human society on one’s sexuality, while spirituality concerns an individual’s spiritual connection with others. Sexuality alo affects and is affected with cultural , political, legal, philosophical, moral, ethical, and religious aspects of life.

Sexuality is often thought of as closely related to one of the most critical biological processes, namely reproduction. However, sexuality is complex offering unending lessons about pleasure, creativity, subversion, violence, oppression and living and Oliver Phillips rightly notes that “sexuality can be defined by reffering to a wide range of anatomical acts and physical behaviour involving one , two or more people. We can relate it to emotional expressions of lovwe, intimacy and desire that can take an infinite variety of forms. Or it can be implicated in the reproduction of social structures and markers through rules and regulations that permit or prohibit specifi relations and/or acts. In the end, it emerges that those definations are far from exhaustive. Non of them are adequate on their own but that when considered all together, they reflect the multiple ways that sexuality is manifest and imacts on our lives, and that above all: these definations all consistently involve relations of power.”
According to the options for sexual health (2008) Report, sexuality is not just sex though people usually define sexuality in terms of genitals, what people do with them, and who they do it with. Sexually involves and is shaped by many thingsincluding values and beliefs, attitudes, experiences, physical attributes, sexual characteristics and social expectations.

Sexuality has been defined as “the socio cultural construction of sex, shaped and defined by the physical , language and socio economic character of each society. This definition of sexuality falls within the social construction thery, which postulates that sexual feelings and activities, opinions about sexualitry and sexual identities , are not biologically determined but are products of social and historical constructions. This research adopts the social construction theory in defining sexuality and posists that this is crucial in understanding the regulating of sexuality.

2.3.5 SEX AND GENDER
The distinction between sex and gender differentiates sex (the anatomy of and individual’s reproductive system and secondary sex characteristics) from gender, which can refer to either social roles based on the sex of the person (gender role) or personal identification of one’s own gender based on an internal awareness (gender identity). In some circumstances, an individual may have biological sex characteristics that complicate sex assignment , and the person may be intersex.

Sex, refers to the biological and physical manifestations of sex-linked chromosomes, and gender and gender refers to psychological and social characteristics associated with but not necessarily correlating perfectly with, biological sex categories.

Sex and gender go hand in hand; both are creatures of culture and society, and both play a central and crucial role in maintaining power relations in our societies. They give eachother shape and any scientific inquiry of trhe former immediately invokes the latter. Therefore, gender provides the critical analytical lens through which any data on sexuality must logically be interpreted. Things that impact on gender relations, for instance history, class , age, religion,race, ethnicity, culture, locality and disabilirty, also influence the sexual lives of men and women. Thus, this goes ahead to show that sexualitry is deeply imbedded in the meanings and interpretations of gender and systems. This study adopts the feminists understanding of sex and gender.

2.3.6 STIGMA
Stigma refers to an enduring condition and or attribute, a physical or figurative mark borne by an individual: the attribute or mark is not inherently meaningful; meanings are attached to it through social interaction.it can also be a social attribute that is discrediting for an individual or group. Goffman used stigma to refer to ” an undesired differentness” and an attitude that is deeply discrediting”. According to Goffman, the term stigma historically referred to a markof bodily sign “designed to expose something unusual or bad about moral status of the “signifier”. Inherent to this definition is the idea that this attribute is something which deviayes from what society has deemed normal. Because of its deviation from what is considered normal, society responds to this attribute “with interpersonal or collective reaction that serve to isolate, treat, correct or punish individuals engaged in such behaviour. Individuals who inhabit a stigmatised role enjoy less access to valued resources, less influence over others and less control over their own fate.

Sexual stigma is the stigma attached to any non heterosexual behaviour, identity, relationship or community. It is socially shared knowledge about homosexuality’s devalued status related to heterosexuality.

One of the consequences of sexual stigma is that it creates social roles and expectations for conduct that are understood and shared by the members of society, regardless of their worn sexual orientation or personal attitudes. Homosexual desires and conduct are regarded negatively relative to heterosexuality, and they are aware of the malevolent stereotypes that are routinely attached to individuals whose personal identities are based on same sex attractions, behaviours, relationships or membership in a sexual minority community.

Stigma makes sexual minorities endure “sexual exclusion”, which is not just limited to insufficient income, but it even goes beyond the participation in working life to include things such as housing, education and access to services.stigmatised groups have less power and access to resources than those considered normal. The ultimate consequence of sexual stigma is a power difference between homosexuals and heterosexuals. It expresses and perpetuates a set of hierarchical relations within society. Homosexuality is devalued and considered inferior to heterosexuality.

2.3.7: SOCIAL STRUCTURE AND SOCIAL INSTITUTIONS
Social structure is the internal institutionalized relationships built up by persons living within a group (such as a family or community) especially with regard to hierarchical organization of status and to the rules and principles regulating behaviour. It is also the social organization of a society constituting an integrated whole.

Social institutions are stable, valued, recurring patterns of behaviour. As structures or mechanisms of social order, they govern the behaviour of a set of individuals within a given community. Institutions are identified with a social purpose transcending individuals within a given community. Institutions are identified with a social purpose, transcending individuals and intentions by mediating the rules that govern living behaviour.

The term institution commonly applies to both informal institutions such as customs, or behaviour patterns important to a society, and to particular formal institutions created by entities uch as the government and public services.

Social institutions may be understood to include: the government, work, education, family , law , media, religion, and medicine among others. These institutions direct or structure possible social action meaning that within the confines of these spaces there are rules, norms and procedures that linmit what actions are possible.

According to Dorothy Smith, the standard the starndard North American family(or SNAF) includes two heterosexually – married parents and one or more biologically – related children. A “normal” family would include a man married heterosexually to and one or more women and their biological children and members of the extended family. It is customarily premised on the essentialist foundation of ontological family difference. Christianity views marriage as a natural event , part of the human experience from which few mainly members of the clergy ought to be exempt. Marriage is therefore a strictly heterosexual institutuion which unifies one man and one woman through what they delineate to be most sacrosanct of bonds , marriage and God’s law are habitually inflated , thereby situating the institution almost almost wholly within the realm of religion , ands either entirely precluding or relegating as incidental , other ideological variables that have motivated its endurance. Hence, a conventional marriage is shown as an establishment from which non heterosexuals are barred.

The negative stigma attached to homosexuality is reinforced through interpersonal contact and the media. For instance, in a study carried out by Pearce in the British press treatment of homosexuality showed a pattern of how it was viewed.

2.3.8: ESSENTIALISM AND SOCIAL CONSTRUCTIONISM
Does a homosexual exist just as mankind is of thev species, Homosapiens? Is a homosexual orientation intimately interwined with a person’s true identity as a human being? Qhen using the term homosexual, is one accurately defining a person’s self, his inner cre and the nature of his being? If it is true then homosexuality may be implied as natural, and that it is essential to their human wholeness. There are those advocating for homosexuality who hold such a view that one is born a homosexual. But there are others advocating for homosexuality who hold a conflicting view, that homosexuality only has the meaning which is given to it by the society and culture it is a part of. These conflicting views are usually framed b y the parameters of the words essentialism and social constructionism.

Various theories of homosexuality are derived from either an essentialist approach or a social constructionist approach.
Essentialism claims that homosexuality is a construct that is both ahistorical and acultural, a part of human civilization for all time; whereas constructionism suggests that homosexuality is defined more by temporal periods and cultural context. Out of all the issues in the essentialist /social constructionist debate, whether or not same gender or bisexual sexual orientation s a choice is probably the sole interest of many individuals and groups. It is one of the most fiercely debated issues among scholars, scientists and the lay public.

Essentialists assume that n sexual orientation , whether same gender, bjsexual or heterosexual is a conscious choice. Instead, a fixed independent biological mechanism steers individual desire or behaviour either toward men or toward women irrespective ofcircumstances and xperience. In distinct contrast to this view is the claim that one’s sexual orientation is chosen or constructed. This is one of the most basic tenets of social constructionism. Instead of sexual orientation , the phrase sexual preference is often used by social constructionists to indicate that people take an active part in constructing their sexuality or make a conscious, intentional choice of sexual patners. Essentialists often hold to biomedical view of homosexuality and use scientific studies to find a cause for homosexuality.

Essentialist approaches to research on sexual orientation – whether they be evolutionary approaches or approaches that rely on hormones , genetics or brain factors –rest on assumptions that;
There are underlying true essences i.e homosexuality and heterosexuality
There is discontinuity between forms i.e homosexuality and heterosexuality
There is constancy of these true essences over time and across cultures i.e homosexuality and heterosexuality have the same form today in American culture as they have had for centuries and as they have had in other cultures today.

Essentialism regarded homosexuality as a form of gender inversion that arose from such presocial forces as genes, hormones, instincts or specific kinds of developmental psychodynamics. In other words, it viewed same sex desire and its perceived behavioural pattern of gender non conformity as a manifestation of some biological or psychological inner sense. It regarded homosexuality as a distinct ands desperate form of being , with modes of expression that transcended time and place.

2.3.9: QUEER
This is a quality related to any expression that can be marked as contra, non, or anti straight which serves not to identify people as much as forms of communication and the positions that inform that expression.

Queer can be an adjective, a noun, or a verb. In general use, it is most commonly an adjective, meaning ‘not normal’ or more specifically not heterosexual. The word has a negative connotation , particularly in school settings. But queer has developed a meaning beyond its use as inclusive categorisation;as a noun, the word can be used to refer to one included in the marginalised group.

Queer is an umbrella term for sexual and gender minorities who are not heterosexual or cisgender. Originally meaning “strange” or “peculiar”, queer came to be used pejoratively against those with same sex desires or relationships in the 19th century. Beginning in the late 1980’s, queer scholars and activists began to reclaim the word to establish community and assert an identity distinct from the gay identity. People who reject traditional gender identities and seek a broader and deliberately ambiguous alternative to the label LGBT may describe themselves as queer.

2.4: CHAPTER SUMMARY
this chapter has presented the theoretical and conceptual framework associated with this research. It has provided theories that mov decision making from stagnant and fixed binaries of sexuality and gender identity to a more sensitive and inclusive approach that takes into account the realities odf sexuality and gender in our immediate society.

CHAPTER THTREE
THE NATURE OF LEGISLATIVE AND JUDICIAL DECISION MAKING ON SEXUAL REGULATION PRIOR TO THE WOLFENDEN REPORT.

3.0: INTRODUCTION.

Regulation of sexuality has often been underpinned by the prevailing cultural and religious philosophies of the individual societies and civilisations. Societal values and notions have always been based on religious ideologies of morality and they have in turn shaped attitudes and laws in respect of sex and gender.

This chapter begins by looking at sexuality and gender identity in religious and moral perspectives. It examines legislative and judicial history of English sodomy laws and its implementation in Kenya. The Wolfenden Report is also examined with the Hart-Devlin debate put into consideration and their implications for legislative and judicial decision making that ensued therefrom.

3.1: SEXUALITY AND GENDER IDENTITY IN RELIGIOUS AND MORAL DISCOURSES.

Religion is a central force in the configuration of reality and the conception of ethical and moral principles. As belief systems and as social institutions, religious systems shape cultural meanings and community formation. These conceptions affect both individual rights , which are expressed through mechanisms of self – understanding And self-identification, and collective rights, which are experienced as an institutional force that creates criteria for belonging.

For Christian theology, sexual activity outside procreative function was absolutely against religion. The catholic church ruled that same sex practices among men and women were crimes against nature.

Jewish law originally condemned all non procreative sexual practices as part of God’s mandate to Adam and Eve to populate the earth.there was also a strong reemphasis on purity. Consistent with violation of purity laws, the penalty for homosexual practices was death. Other contemporary cultures did not condemn sodomy and it was variously practiced aspart of ritual or healing ceremonies. This changed with the advent on Christianity. Christrians did adopt the prohibition of sodomy. With the adoption of Christianity as the state religion of the roman empire in the fourth century, the law began to reflect this point of view. For the Christian theology, sexual activity outside a protective function was absolutely against the religion.the catholic church ruled that same sex practices among men and women were crimes ‘against nature'(crimen contra naturam and cremen nefandum). These prohibitions were used combat paganism and to impose a model of social order and discipline.

In contrast to the jewish and Christian view of same sex attraction, which potrayed homosexuality as against nature, Islamic tradition viewed it as surrendering to a natural temptation. The Hadith reports that Muhammad’s son-in-law and his chief lieutenant executed people “for doing what lot’s people did.” Conversely, the Koran states that Muslim Matyrs in paradise will be surrounded by boys like ‘scattered pearls’. The Hadith also states that Muhammadan recommended tolerance toward Mukhanathun (gender variant people, often entertainers), allowing them to enter Mecca and Medina with some rewstrictions , but without fear of persecution as long as they practiced Islam. Therefore, Muslim disapproval of homosexual practices as sins tended to focus on the irreverence of the practices rather than on rhe act of sodomy itself.
Religious teaching has been generally less repressive of the same sex eroticism.there has also been less divisionbetween religious and ecular , with institutions and customs blending elementsof both. For example, budhism has very little to sy about homosexuality, as the teachings of budha are completely silent on samew sex attraction and on procreative sex alike.

Indian cripture and religious law also lack broad condemnations of homosexual sexual ctivity, especially before the arrival of islamm in the thireteenth century.

It should be noted that anthropological literature is rife with descriptions of homosexual sexual practices in cultures world wide that practice trance and possession as part of their religious or healing traditions , or which recognise a ‘third sex’ that is often related to unique spiritual or shamanistic powers.

Concerning religious discourses against sexual orientation and gender identity, it is relevant to underline what the High Court of South Africa stated “there is still a substantial bodyof theological thought which holds that the basic purposeof the sexual relationship is for procreation and for that reason alsoproscribes contraception. There is an equally strong body of theological thought that nolonger holds the view. Societal attitudes to contraception and marriages qhich are deliberately childless are also changing. These changing attitudes must inevitably cause a change in attitudes to homosexuality.”
3.2: LEGISLATIVE AND JUDICIAL HISTORY OF ENGLISH SODOMY LAWS.

A sodomy law is a law that defines certain sexual acts as crimes. The precise sexual acts meant by the term ‘sodomy’ are rarely spelled out in the law , but are typically understood by courts to mean any sexual act deemed to be ‘unnatural’ or immoral. Sodomy typically includes anal sex, oral sex and beastiality . in practice, sodomy laws have rarely been enforced against heterosexual couples, and have mostly been used to target homosexuals.

The Middle Assyrian Law Codes (1075 BC) state: if a man has intercourse with his brother in arms , they shall turn him into a eunuch. This is the earliest known law condemning the act of male to male intercourse in the military.

In the Romanrepublic, the Lex scantinia imposed penalties on those who committed a sex crime against a freeborn male minor. The law may also have been used to prosecute male citizens who willingly played the passive role in same sex acts.
Legislation against homosexuality in Great Britain first became a function of the state with the Buggery Act in 1533. Prior to this , it was the role of the church to regulate homosexuality and it was called sodomy. Following the severance by Henry viii of the link between the English church and Rome, the common law crimes were revised so as to provide for the trial of previously eclestiastical crimes. Edward coke, commenting on the offence of buggery declared ” buggery is a detestable and abominable sin, among Christians not to be named. It is committed by carnal knowledge, against the ordinance of the creator and order of nature , by mankind with mankind or with brute beast or with woman kind with brute breast.”
The next change came with the Offences Against the Person Act, was an Act of Parliament of the UK which consolidated provisions related to offences against the person (an expression which, in particular, includes offences of violence) drom a meber of statures into a single Act. It was one of a number of criminal law consolidation acts known as Peel’s Acts passed with thre object of simplifying the law.
Until 1885 the only law dealing directly with homosexual behaviour in England was that relatin to buggery, and legally little distinction between buggery, between man and woman, man and beast and mam and man, though the majority of the prosecutions were directed at men for homosexual offences. This had been a capital crime from 1530’s when the incorporation of traditional ecclestiastical sanctions into law had been part of he decisive assumption by the state of many of the powers of the medieval church. Illustrative of this is when the travestites Boulton and Park were brought to trial in 1871 for conspiracy to commit buggery, there was considerable police confusion about the nature of the alleged offences.

A further change and an important one came with thepassage of the Criminal Law Ammendment Act, of 1885, particularly section 11. Regarding this amendment , Brady notes that “in 1885, however ,parliament passed and Act to protect women and young girld from being victimised and to suppress female brothels and on to this was tacked at the last moment an amendment which made gross indecency between the adult males a misdemeanour punishable by two years in prison with hard labour. This was initiated by a radical member of parliament, Henry Labouchere, old Etonian, nephew of a lord, whose main role in parliament as being the exposure of fraud and scandal in high places. He was editor of a weekly paper, truth, a nineteenth century version of private eye. It was under this amendment that ten years later Oscar Wilde was to be convicted.

With this legislation , acts of gross indecency between males whether committed in public or private was a misdemeanour and was liable ti imprisonment for up to two years. With this legislation, acts of gross indecency between males whether committed in public or private was a misdemeanour and was liable to imprisonment for up to two years. This change expanded the definition of a homosexual act while at the same time making it easier for the prosecution of homosexuality. A fourth piece of legislation , the official secret Act in 1889 indirectly dealt with homosexuality.

A fourth piece of legislation , the Official Secrets Act in 1889 indirectly dealt with homosexuality. This Act allowed for keeping information from being publicly disclosed for 100 years. It was used to keep government information closed mainly foreign and military secrets, but also any information chosen by the government. These included information about trials of homosexual related offences.

Though less severethan capital punishmentsfor sodomy, the new legal situation is like to have ground harder on a muchwider circleof people particularly as it was dramatised in a series of sensational scandals, culminating in the trials of Oscar Wilde which had the function of drawing a sharp dividing line between permissible and tabooed forms of behaviour. At the height of his fame and successs, Wilde had the Marquess of Quensberry prosecuted for criminal libel. The marquess was the father of Willde’s lover, Lord Alfred Douglas. The libel unearthed evidence that caused Wilde to drop his charges and led to his own arrest and trial for gross indecency with men. After two more trials,he was convicted and sentenced to two years hard labour, the maximum penalty, and was jailed from 1895-1897. Gross indecency with another male was deemed illegal under section 11 of the Criminal Law Ammendment Act.

Wilde had defied the Victorian era codes of morality and conduct. People at this time shunned away from expressing emotions or sexual feelings. Homosexuality was considered shameful and punished severly. The judge presiding over Wilde’s final trial, jutice Wills thus pronounced “people who can do these things must be dead to all sense of shame…it is the worst case i have ever tried.” This scandal in particular has been argued as a vital moment in the creation of a male homosexuality identity.

The offences against the Person Act in 1861 consolidated the bulk of Lawson physical offences and acts of violence into one modern streamlined stature- still the basis for most British Law of physical assault. Brady summarises the English History of Sodomy Laws as follows: british legislation on close examinationwas archaic and highly ambivalent in respect to any kind of homosexual category. The Buggery Act of 1553 remained the basis for legislation until 1967. Also, the infamous Criminal Law Ammendment Act of 1885simply made all sex Acts between all males criminal, rather than indicating any kind of special legal classification. In comparison,continental states appeared ro tolerate a burgeoning scientific discourse on the matter. Legislation in all these states either allowed consensual sex between male adults,r had legislative arrangements that were more tolerant than Britain. Fo instance, France had discriminalized sex between consenting male adultswith the implementation of the Codes Napoleon 1805. Also the Codes Napoleon were adopted by Italy in 1889.

The anti sodomy laws applicable in Britain at the time of Coke and Blackstone came swiftly to be imposed or adopted in the huge domain of the British empire. To this day, approximately 80 countries of the world impose criminal sanctions on sodomyand other activities related to same sexes, whether consensual or not or committed in private or not. Over half of these jurisdictions are or were at one time colonised by the British.

But, the nineteenth century saw a challenge mounted by Jeremy Bentham, a Utilitarian where in his books ” A Fragment on Government” and ” An Introduction to the Principles of Morals and Legislation”, he argued that Coke and Blackstone were wrong on their stand on same sex relationships and criticised their complacency about the Laws of England.

3.3: THE INDIAN PENAL CODE
Between 1897 and 1902, British Administrators applied the Indian Penal Code in British African Colonies, including its East African Protectorates Kenya and Uganda.
The IPC provided a model template for sodomy laws for all the British Colonies. It referred.. to Sodomy as an odious concept and it punished those who engaged in unnatural acts, although later drafts and other pieces of legislation explicitly referred to sodomy. Different versions of the codes were adopted throughout sub Saharan Africa during the 1890’s and early 1900’s.

3.4: INTRODUCTION AND IMPLEMENTATION OF BRITISH SODOMY LAWS IN KENYA.

Because African customary law developed out of the customs and practices of the people in respect to their circumstances and challenges in life, t essentially differs from one ethnic community to another. According to Kariuki, prior to colonialism, indigenous African tribes applied their own laws and customs in resolving conflicts and disputes, and this brought about peaceful coexistence and social cohesion. The term African Customary Law does not therefore man that there existed one single custom that was followed by all African communities.

Upon the colonisation of Kenya by the British in 1895, the British instituted their own system of justice to exist alongside customary law:
By the East Africa Order in Council 1897(later repealed in the 1921 Order and applied to the Protectorate),the jurisdiction of the Supreme Court and subordinate courts of Kenya was to be exercised ‘so far as circumstances admit…in conformity with the Civil Procedure and Penal Codes of India and the other Indian Acts which are in force in the Colony…

In 1930, the British replaced the Indian Penal Code with the Colonial Office Model Code (based on the Queensland Code of 1899), which remains Kenya’s Penal Code to this day.

Parallel system of courts were set to administer justice according to the ntive and custom prevailing in the jurisdiction of the tribunal but if it was repugnant to justice and morality or inconsistent with the provisions of any order in council it had to give way to English Law.

In the areas of Kenya’s criminal law, customary law gradually gave way to the Penal Code provisions:
Native criminal law was applied firstly in native tribunals subject to the supervision of district officers. But gradually the tribunals were given jurisdiction to certain offences under the penal code…gradually, where a tribunal or a court was given jurisdiction to try a Penal Code offence, it tried under the relevant sections of the Penal Code and not under native law and custom. Eventually this resulted in the virtual disappearance of the customary criminal law and so at the end of the colonial period there were only some ten offences which were tried under native law and customs in the African courts.

Phillips notes that sexual relations tended to fall under common law rather than customary law and various customary practices deemed to be immoral or unnatural were gradually eased into extinction or marginality by the colonial administration. He further postulates that the idea of morality was central to the civilising mission of the colonisers as it relied on the twin qualities out of which Victorian concepts of a civilised and ordered society were fashioned-repression and discipline.
To this date, the colonial sodomy law gets affirmed every time the issue of prosecution of persons suspected of engaging in same sex sexual activities arises. In Kenya, this is demonstrated by the former attorney general of the Republic of Kenya, a man known for his works in human rights when he declared:
I want to assure the general public that …unnatural offences and attempts to commit unnatural offences, otherwise known as homosexuality, are criminal offences under the law.

The sentiment that being gay is anti-kenyan fails to acknowledge the crucial role that the West played in entrenching homophobia into kenya’s legal system and it’s continous role in preventing LGBT Kenyans as well as LGBT individuals in other African countries from having legal rights.

It is evident that non-conventional sexual practices such as same sex were prevalent in pre-colonial Africa, albeight understood differently from the western conception of uch activities. Indeed, research extensively carried out by scholars like Murray and Roscoe, Eppericht, Ahlberg and Tamale among others establish that same sex and different gender identities were part and parcel of African life in pre-colonial Africa, albeit expressed differently from the Western version. Rather than for instance the sexual act between persons of same sex which is what is considered as same sex sexual act in Western conception, Phillips rightly observes that sexuality in African sense is defined as something that is experienced and expressed in thoughts, fantasies, desires, beliefs, behaviour, practices, roles and relationships, thus strengthening the argument that of a different understanding of sexuality in the African Sense that was different from the Western concept of sexuality.

3.5: THE WOLFENDEN REPORT.

Is a report containing recommendations for laws governing sexual behaviour, published in 1957 by the Committee on Homosexual offences and prostitution in great Britain. It was named for Sir. John Wolfenden, the chairman of the committee. Using the findings of psychoanalysis and social science, the report urged that public statutes avoid the attempt to legislate morality and that they concern themselves only with sexual acts that offend public decency or sexual order. The committee therefore recommended that private homosexual liaisons between consenting adults be removed from the domain of criminal law. Regulations implementing these recommendations was enacted in the Sexual Offences Act (1967).

The Wolfenden report urged that homosexual behaviour consenting adults in private shuld no longer be a criminal offence. Upon the recommendation of this report a turning point for homosexual regulation came about in Britain and beyond. Scandalous court cases involving homosexuality lead to the formation of this committee. In August 24,1954 the British parliament appointed a committee of 15 men and women whose task it was “to consider…the law and practice relating to homosexual offences by the court” along with the laws relevant to prostitution and solicitation.

The proposals with respect to homosexuality were for the time a radical innovation: of the 13 members of the Committee who had served during the three full years, 12 recommended that homosexual behaviour between consenting adults in private should no longer be a criminal offence. The report did not explicitly define “consent” and “in private” leaving these words to be interpreted as they would be in the case of heterosexual conduct. It suggested that the age of consent should be twenty one, and it tried to relieve from the threat of prosecution the victim of blackmail whose homosexual activity had been revealed to the police.

For the common law countries of the English speaking world, the Wolfenden Report meant a break with a legal tradition that had gone virtually unchallenged since the enactment of 25 Henry VIII c. 6 in 1533. It urged that homosexual behaviour cease to be criminal , that the religious sanctions against it were not grounds for bringing it to the attention of secular courts and that there must remain a realm of private morality and immorality which is, in brief and crude terms , not the law’s business.

The report sought to implement views held by John Stuart Mills who insisted on individuals having personal space, free state from state interference, even if it involves that activities that members of society do not like, as long as they do not harm anyone proudly known as the harm test. The task of the committee was to navigate between the desire amongst more conservative elements to do something to control homosexuality and rid the treets of overt displays of prostitution and a wish on the part of the liberals to find more modern forms of regulation than prison or the law.

The only dissenting voice from the committee came from the committee’s most prominent Scot: James Adair, a church elder and former procurator fiscal. Adair took a stereotypical and morally driven attitude to homosexuality claiming that these trends and tendencies elicited much concern and disgust from the public, he rejected the report by subscribing to the view that open homosexuality within communities was very real risk to the young in the communities.

The committee stated its view about the proper objects and purposes of the criminal law in the following terms:
It is not, our view, the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular pattern behaviour, further than is necessary to carry out the purposes we have outlined…to preserve public public order and decency, to protect the citizen from what is offensive and injurious and to provide sufficient safeguards against exploitation and corruption of others,particularly those that are especially vulnerable.

Most famously, the Wolfenden Report contained this line:
Unless a deliberate attempt be made be made by society through agency of the law to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief, the crude terms, not the law’s business.

The report was criticised by Devlin whose central question was “what is the connection between crime and sin and to what extent if at all should the criminal law of England concern itself with the enforcement of morals and punih sin or immorality as such?”
His argument was that society depended on a shared, public morality and that society therefore had a right to make laws in defense of such morality. To him, homosexual acts were a threat to society’s morality and legal intervention was essential to ensure both individual and collective survival and to prevent social disintergration due to a loss of social cohesion. That the morals underlying the law were derived from “the sense of right and wrong which resides in the community as a whole,” society’s morals were those standards of conduct which the reasonable man approves.

The Wolfenden Report has also been faulted in several quarters. First it is argued that it is the one which personified the homosexual. Secondly, it is faulted for relegating women’s sexual issues into the private, thus creating the fine distinction between the private and public in sexual matters.

3.6: CHAPTER SUMMARY.

This chapter has elaborated the history of regulation of sexuality focusing on how religious and cultural attitudes have influenced these regulations. It examined the history of theWolfenden Report and how it marked a turning point for legislative and judicial desicion making in jurisdictions that adopted its philosophies and findings.

This chapter has also established that anti sodomy laws have oppressed sexual minorities around the world. The Wolfenden report principle resulted in a change f the criminal law in the UK. This change brought influence to the colonies and former colonies of Britain.

CHAPTER FOUR
INTERNATIONAL HUMAN RIGHTS PROVISIONS AS THE FOUNDATION FOR TRANSFORMATIVE , LEGISLATIVE AND JUDICIAL DECISION MAKING FOR SEXUAL MINORITIES.

4.0: INTRODUCTION.

International and regional human rights conventions protect all persons regardless of their sexual orientation or gender identity. The Universal Declaration of Human Rights lays out this key principle of modern human rights declaring, “All human beings are born free and equal in dignity and rights.” Unfortunately, Homophobic attitudes, failure to protect or investigate hate crimes and other abuses and insufficient legal protection at the National level often prevent lesbian, gay , bisexual transgender and intersex (LGBTI) persons from fully enjoying their human rights.

The new approach which follows the Wolfenden Report takes into account international Human Rights Principles and starndards as guiding principles to legislation and judicial action on matters concerning human rights of individuals. The World WarII led to the setting up of the United Nations (UN) in 1945. The UN has endeavoured to remain the principle organ behind the protection and recognition of Human Rights in the International Sphere. There are a total of 193 member states to the UN including Kenya. The United Natrions adopted the Universal Declaration of Human Rights (UDHR) in 1948. In 1966, the International Covenant on civil and political rights (ICCPR) and the International Covenant on Economic, Social and cultural Rights (ICESCR) were adopted entering into force in 1976. Together with the Universal Declaration, they created the International Bill of Human Rights. This has been the tool that has beemn effective in fighting for human rights of people around the world. Inspite of this, none of the instruments focuses on the Human Rights of Sexual Minorities although their interpretation by the various judicial bodies have covered sexual minorities. Recent efforts through the Yogyakarta Principles have focused on principls that can guide porotection of sexual minorities.

4.1: DEFINING SEXUAL ORIENTATION AND GENDER IDENTITY.

Humans have both a sexual orientation and a gender identity. Sexual orientation refers to a person’s “emotional and sexual attraction to…individuals of a different gender or the same gender or more than one gender.” Heterosexuality, homosexuality and bisexuality are all sexual orientations. The terms lesbian , gay and bisexual also refer to an individual’s sexual orientation.

Gender identity refers to “each person’s deeply felt internal and individual experience of gender, which may or may not correspond with sex assigned at birth.” Many individuals identify as male or as female. However, some individuals may identify with a non binary gender or with no gender at all. A person’s gender identity may be different than the gender that society might attribute to that person on the basis of external signifiers such a clothing or mannerisms.
Transgender individuals identify with a gender other than the one they were assigned at birth. Additionally, intersex persons are persons who are “born with sexual anatomy , reproductive organs and/or chromosomal patterns that do not fit the typical definition of male or female.”
4.2: LEGAL PROTECTION
Currently, no international human rights treaty specifically protects the rights sexual minority persons. Neverthesless, the asence of a specialized convention does niot mean that sexual minorities right are not protected under International human rights law. Human Rights bodies have heard and continue to hear claims concerning the violations of the rights of sexual minority persons.however, they have not uniformely addressed all the human rights of sexual minority persons nor have they wholly extended all the same protections to sexual minorities as they have to others. This area of law is evolving and as it evolves, human rights bodies have becoming increasingly protective of sexual minority person’s rights. Still, international Human Rights Lawhas been interpreted to permit states to treat sexual minorities differently in some circumstances, at least until there is greater consistency among governments
Many of the recent advances in the recognition of sexual minority rights are inspirational statements and policy positions taken by intergovernmental and political bodies.

Unlike the dercisions and legal interpretations f independent human rights courts and monitoring bodies, these outcomes are generally not binding on states. However, they reflect political will to recognize the rights of sexual minority persons and can be helpful in understanding how human rights starndards may apply to the kind of rights abuses often experienced by sexual minorities .

In addition, some of the human rights bodies within the United Nation and regional intergovernmental organizations have taken steps to more closely monitor sexual orientation and gender identity issues and to guide states in improving respect for sexual minority person’s rights.

4.2.1: INTERNATIONAL TREATIES.

A. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS AND IT’S ENFORCEMENT
The United Nations adopted the Universal Declaration of Human Rights in 1948. The declaration prvides for two sources of rights-political rights and economic and social rights. The primary distinction between these types of rights is that while political rights can be granted immediately rthrough legislation, economic and social rights develop only over a long period of time, through the creation of institutions. Largely because of this difference, the UN created two treaties, one dealing with each category of rights; the International Covenant on Economic, Social and Cultural Rights addresses economic social and cultural rights while the ICCPR adreesses political rights. Though the ICCPR itself does not recognise sexual minority rights explicitly, it does contain general protections that include sexual minorities. Article 2 provides: each state party to the present covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction, the rights recognised in the present covenant, without distinction of any kind such as race,color , sex , language, religion, political or other opinion, national or social origin, property, birth or other status. Finally, Article 17 states: “no one shall be subjected to arbitrary and unlawful interference with his privacy, family,home or correspondence nor to unlawful attacks on his honour and reputation.although this text contains protection against discrimination based on sex, on the vague, seemingly broad term “other status” and on the basis privacy, the fact thsat it nowhere specifically refers to sexual minority rights means that the ICCPR’s rights does not directly protect these rights.

B. UN CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN.

Also known as CEDAW is typically known as an international bill of rights for women but it also speaks generally on the rights of sexual freedom, which international human rights groups but nit signatories read to include sexual minority rights.

4.2.2: YOGYAKARTA PRINCIPLES.

Following an experts meeting at Gadjah Mada University in Yogyaarta, Indonesia from 6 to 9 November 2006, 29 distinguished experts from 25 countries with diverse background and expertise relevant to issues of human rights law unanimously adopted the Yogyakarta principles on the application of Intwrnational Human Rights Law in relation to sexual orientation and Gnder identity.

The Yogyakarta principles , a non binding set of international standards, apply international human rights standards to issues that affect the LGBTI Community. Developed by a group of experts, the Yogyakarta principles have been used by the UN and other groups in their efforts to promote and protect the human rights of sexual minorities.

The principles affirm that “human beings of all sexual orientations and gender identities are entitled to the full enjoyment of all human rights.” The principles also affirm the primry obligations of states to impement human rights. Each principle is accompanied by detaliled recommendations to states.

Each principle identifies a particular right and ten set forth the duties and obligations states should satisfy to ensure that LGBTI persons are able to exercise and enjoy the right. The principles also offer recommendation concerning the realization LGBTI persn’s human rights to the United Nations (UN), regional human rights organizations, national human rights institutions and other relevant stakeholders.

Many activists and civil society groups embraced the principles as a major breakthrough in the recognition of rights for the LGBTI community. However, the principles have also been at the center of controversy between UN states. Several states have opposed their use in official documents or resolutions.

4.3: LEGISLATIVE FRAMEWORK AND DISCRIMINATION BASED ON SEXUAL ORIENTATION AND GENDER IDENTITY AND THEIR ACTUAL IMPLEMENTATION IN HEALTH SERVICE PROVISION.

In all regions, people experience violence and discrimination because of their sexual orientation or gender identity. In many cases, even the perception of homosexuality or transgender identity puts people at risk.

The framework of health and human rights provides for a comprehensive theoretical and practical application of general human rights principles in health care contexts that include the well-being of patients, providers and other individuals within health care. This is particularly important for sexual and gender minority individuals, who experience historical and contemporary systematically marginalization , exclusion and discrimination in health care contexts.

This research chose to factor on the health of sexual minorities because sexual health today is widely understood as a state of physical, emotional, mental and social well-being in relation to sexuality. It encompasses not only certain aspects of reproductive health- such as being able to control one’s fertility through access to contraception and abortion , and being free from sexually transmitted infections (STIs), sexul dysfunction and sequalae related to sexual violence or female genital mutilation- but also the possibility of having pleasurable and safe sexual experiences free of coercion, discrimination and violence. Indeed it has become clear that human sexuality includes many different forms of behaviour and expression and that the recognition of the diversity of sexual behaviour and expression contributes to people’s overall sense of well being.
Development over the past three decades particularly in the wake of HIV pandemic, have brought an understanding that discrimination and inequality also play a key role in whether or not people can attain and maintain sexual health. For example, those who are perceived as having socially unacceptable sexual practices or characteristics, such as being HIV positive, being an unmarried sexually active adolescent, a sex worker, a migrant. A transgender or intersex person or engaging in same sex sexual behaviour suffer both marginalization and stigma , which take a huge toll on people’s health. Those who are deprived uof or unable to access information and services related to sexuality and sexual health are also vulnerable to sexual ill health. Indeed, the ability of individuals to achieve sexual health and well being depends on their access to comprehensive information about sexuality, knowledge about the risks they face, vulnerability to the adverse consequences of sexual activity, access to good quality sexual health care and access to an environment that affirms and promotes sexual health. As well as being detrimental to sexual health, discrimination and inequalities may also constitute a violation of human rights.

The achievement of the highest attainable standard of sexual health is therefore closely linked to the extent to which people’s human rights – such as the rights to non – discrimination, to privacy and confidentiality, to be free from violence and coercion, as well as the rights to education, information, and access to health ervices – are respected, protected and fulfilled. In the past two decades , an important body of human rights standards pertaining to sexualitry and sexual health has been developed. This includes interpretations by United Nations human rights treaty monitoring bodies of the content of human rights provisions; international. Regional and national court decisions; international consensus documents; and reports by the United Nations Special Rapporteur on the Right to the Highest vAttainable Standard of Health, among others. These standards are made operational through the enactment and implementation of laws regulation and policies at the National level.

Laws matter because they set the rules of society and can provide the framework for the implementation of sexual-health-related- policies , programmes and services. They can provide human rights guarantees, but they may also create limitations. Either way, laws and rwgulations have an inmpact on the enjoyment of the highest attainable standards of sexual health. Harmonizing law with human rights standards can foster the promotion of sexual health across and within various populations, while the negative impact of laws that are in contradiction with human rights has been increasingly documented. For example, laws that foster the dissemination of objective, comprehensive sexuality information, if implemented for all, contribute to people’s knowledge of what protects or damages their sexual health,including where and how to seek further information, counselling and treatment if needed. On the other hand, laws that restrict women’s and adolescents ‘ access to health services- for example, by requiring third-party authorization for services- and laws that criminalize certain consensual sexual behaviour can exclude or deter people from seekinbg and receiving the information and services they require and to which they have a right.
The impact of social exclusion, discrimination and stigmatization on the health of sexual and gender minority people has been increasingly well documented over the past decade. Sexual and gender minority populations have a higher prevalence of mental health concerns, including suicide ideations and attempts, depptression and anxiety disorder.
Studies have found that sexual minority individuals may be refused care or treated in a discriminatory manner because of their sexual orientation and gender identity. Sexual minority people report that healh care professionals have used harsh language towards them, refused to touch them or used excessive precaution or blamed the individuals for their health status. In one case, a 39 year old teacher allegedly died after not getting appropriate medical care due to her sexual orientation. According to one transgender woman a hospital refused to allow her doctor to perform breast surgery at its facilities. The outpatient urgery manager reportedly told rhe patiet that the facility could not be used for her surgery because “God made you a man.” The patient stated that this caused her to feel shock, embarrassment, intimidation, physical distrsess and injury, humiliation fear and stress. A transgender man reported “living with excruciating pain in my ovaries” because i cant find a doctor who will examine my reproductive organs. Sexual minority individuals in rural areas or who have inflexible jobs or low incomes are especially harmed by discrimination. The additional time and expense for looking for an alternative provider after refusal falls most heavily on them.

4.3.1: LAWS, HUMAN RIGHTS AND THEIR IMPORTANCE FOR SEXUAL HEALTH
Human rights ae codified in international and regional treaties, often also called conventions, covenants and charters, and are also incorporated at the National Level in Constitutions and laws. National Constitutions, laws and highest court decisions thus provide national recognition of the hukan rights starndards that are elaborated in these international and regional human rights treaties which states ratify. Importantly, national laws often provide guarantees and legal frameworks for the elaboration of sexual health related policies, programmes and services, but sometimes they also impose limitations and they thus have an impact on sexual health, both positive and negative. For example, laws that foster the dissemination of objective and comprehensive information and education on sexuality enable people to understand what protects or damages their sexual heath, as well as to know where and how to seek further information, counselling and treatment if necessary. On the other hand, laws that restrict people’s access to health services- for example by requiring third party authorization for services or by criminalizing certain consensual sexual behaviour- have the effect of excluding people from the health information and services they need.

Laws also play an important role in ensuring accountability- a key human rights principle- at many levels, including , among others , establishing transparent monitoring and review processes to record health outcomes across a sexually diverse population, or the impact of various health interventions. Such review processes can help identify laws that have harmful effects and/or that contradict human rights. Laws can also establish guarantees for access to justice , redress and reparations mechanisms for people whose human rights are violated, which is central to accountability. States must also ensure that people are protected against human rights violations by non-state actors. An example of this would be a health insurance company that excludes certain people from being covered by insurance, purely on grounds of characteristics uch as religious affiliation, gender, sexual orientation or health status.

4.3.2: provision of social civil, social , economic and political rights for sexual and gender minorities in the context of health care.

More recent international provisions for the right to the highest attainable standard of health acknowledge the impact that social and economic discrimination based on sexual orientation and gnder identity have on access to and quality of health care. The International covenant on Economic, Social and Cultural Rights (ICESCR) makes no mention of these two markers, likely due to the time of its drafting and adoption in 1954 and 1966, respectively , bu lists a number of “other status” that can lead to discrimination. Paragraph 32 of General Comment 20 on non-discrimination in economic, social, and cultural rights (2009), specifies that “other status” includes sexual orientation and that “states parties should ensure that a person’s sexual usexual orientation is not a barrier to realising covenant rights. Paragraph 12.b of General Comment 14 (2000), which operalizes the right to health , states that non-discrimination is a key to dimension of accessibility to health care; and psragraph 18 of General Comment 14 elaborates that Article 2.2 and Article 3 of the Covennt proscribe “any discrimination in access to health care and underlyinvg determinants of health, as well as to means and entitlements for their procurement on the grounds of … sexual orientation.. which has the intention or effect of nullifying or impairing the equal enjoyment or exercise of the right to health. HYPERLINK “http://apps.who.int/iris/bitstream/handle/10665/175556/9789241564984_eng.pdf;jsessionid=A96A14B7A2040078E83DB1AB489006FD?sequence=1” l “page=7” o “Page 7”

4.3.3: CASE STUDY: SOUTH AFRICA DIVERGENCE BETWEEN THE LAW AND POLICY FRAMEWORK AND ITS IMPLEMENTATION.

The case study aims at highlighting the complex and intersecting discrimination and marginalization that sexual and gender minority individuals face when accessing care in a historically and epistemologically deeply heteronomative health system.

The south African Constitution (1996) has one of the strongest provisions on the right to health world wide. The right to health is covered under Article 27, together with rights to food , water, and social security. Article 27(a) provides that everyone has the “right to access health care, including sexual and reproductive health care.” Article 27 requires the state to take reasonable legislstive and other measures, within its available resources, to achieve the progressive realization of each of these rights. These Constitutional provisioins have been employed previously to force the state to provide antiretroviral treatment for the prevention of mothe-to-child transmission of HIV. After a 20 year campaign, South Africa finally ratified the ICESCR in early 2015.

Two additional documents specifically outline patients’ rights. The South African Patients’ Rights Charter, specific to health care contexts, and the Batho Pele principles (meaning “people First”) that are applicable for all public services provided by the South African government.
South Africa’s constitutional and legislative framework for sexual and gender minorities is among the most progressive globally. The Constitution provides that the state is oblkiged to “respect, protect, promiote and fulfil” the rights enshrined in the Bill of Rights. Central to the Bill of Rights is the Equality Clause in Section 9, which mandates that nobody may be discriminated against based on, among other grounds , their sex, gender, or sexual orientation. Section 10 guarantees that everyonehas inherent dignity and the right to have their dignity respected and protected.

Further, rights enumerated in the Bill of Rights include the Right to Life (Section 11), as well as the right to life (section 11), as well as the right to security of the person, including the right “to be free from all forms of violence from either public or private sources,” the right “to security in and control over their body,” and the right “not to be treated or punished in a cruel, inhuman or degrading way” (section 12).

Emanatingfrom thi Constitutional mandate, sexual and gender minority individuals enjoy a range of civil rights in the Country. A range of legislative and policy reforms after 1996 have sought to remove laws drafted under apartheid that criminalized or discriminated against sexual and gender minorities. The medical schemes Act of 1998 defines “dependent” to include same sex patners; the Domestic Violence Act of 1998 expands the definition of domestic relationships to recognize cohabitation by unmarried people including same sex couples; and the Refugees Act of 1998 recognizes gender and sexual orientation as grounds for persecution and, thus, for seeking asylum in South Africa signed into law and the Civil Union Act, which recognizes “the voluntary union of two persons … registered by way of either a marriage or a civil partnership,” and therefore guarantees marriage equality to same sex couples.

4.4: CONTEMPORARY LEGISLATIVE AND JUDICIAL DECISION MAKING AND INTERNATIONAL HUMAN RIGHTS
International and regional human rights treaties and conventions have to date, not incorporated sexual minorities in their normative frameworks. Despite this, through the application of international human rights principles of equality and non discrimination, international and regional courts have made recognizable steps towards protection of the rights of sexual minorities.

The Wolfenden Report has laid basis for legislative action in most common wealth countries to promote justice for sexual minorities. The rdeport became the basis for fundamental legislative measures that led to reforms that recognized and protected the Human Rights of sexual and gender minorities. It is credited with initiating the modern conceptual and legislative process that distinguished between public and private spheres in its argument that the function of the criminal law was to uphold public order and decency and to safeguard those deserving society’s protection. But the area of private adult behaviour was no concern of criminal law.
The Wolfenden Report’s distinction between sin and crim is said to underpin the modern approach to morality and criminal law and its nascent ideals of the contemporary era that sex is simply not the business of the law.

The evolving jurisprudence around the matter of exual minorities and international human rights law indicate that the principles of non discrimination have moved from the private sphere to certain issues in the public sphere.

The case of Joslin v. New Zealand of 1999 demonstrates that the interpretation of the applicability of international human rights law to sexual minorities is still evolving. The HR committee in this case held that the right to marriage as stated in Article 23 of the ICCPR was commonly understood as only marriages between men and women and that the refusal to provide marriages between same sex couples in member states did not result in a violation of their human rights. However in Toonen v Australia the HR Committee reversed the textual approach to interpretation to what is considered more critical and transformative approach. The HR Committee in this case considered that the reference to “sex” in Article 2, paragraph 1 and 26 is to be taken as including “sexual orientation.” The committee thus decided that sexual orientation related discrimination is a suspect category in terms of the enjoyment of covenant rights. Toonen was an Australian citizen residing in Australia and residing in Tasmania and was a leading member of the Tasmanian Gay Law Reform group. He challenged three provisions of the Tasmanian Criminal Code which criminalised various forms of sexual conduct between men including acts between consenting adults and conducted in private. Toonen argued that this laws threatened his privacy by calling into question his long term relationship with a man, his activities as an activist and his work on HIV/AIDS in the gay community.

4.5: TRANSFORMATIVE DECISION MAKING AND JURISPRUDENCE UNDER THE AFRICAN CHARTER ON HUMAN AND PEOPLE’S RIGHTS.

Just like international Human Rights instruments, the ACHPR does not expressly provide for protection of sexual minorities. However, it has normative provisions that touch on human rights principles to include on sexual minorities economic, social and cultural rights.

In the case of Union interafricaine des Droits de l’home ; others v. Angola which concerned economic and social rights and cultural rights, the African Commission found that the right to Equality protection of the law shall be discriminatory either of its self or in its effect. Hence this right would be violated for example when a public authority in the performance in the functions of a public office discriminates against a person. The same would apply bof the law treating people in a discriminatory manner in respect of for example, access to shop, hotels, lodging-houses, public restaurants, eating houses etc or in respect of access to places of public resort maintained wholly or partly out of funds and which is dedicated to the use of the general public.
In Henry Kalenga v. Zambia, the commission had the opportunity to address communication alleging violation of Article 6 of the charter which considered a matter of the principles of equality before the law and equal protection of ther law, the commission proceeded to declare the matter resolved without consulting the victim. The complainant who was detained without trial petitioned trhe commission for his release. Zambia’s Ministry of Lega affairs later informed the commission of his release , afrter being in detention for three years. Article 9 guarantees the right to freedm of expression. In Constitutional Rights Project v. Nigeria, the Commission observed that freedom of expression is a basic right, vital to an individual’s personal development, his political consciousness and participation in the conduct of public affairs in his country.

In Uganda, the supreme court, in the case of Yvonne Oyoo and Juliet Mukasa v The Attorney General, the Uganda Supreme Court also struck down anti-sodomy laws of Uganda contained at section 145 of the Country’s penal code. In making its judgement, the Supreme Court declared that “…Human Rights must be respected. It has been found that the actions of the officials that molested Victor Mukasa and Oyoo were unconstitutional, inhuman and should be condemned. Victor Mukasa and Julliet Oyoo had brought this case against the Attorney General of Uganda when government officials illegally raided Victor’s home without a search warrant, seizing documents related to Victor’s work as a Human Right’s defender for people of sexual minority nature. The officials arrested a guest at Victor’s home and treated victor and the guest in a degrading manner. The court upheld the provisions f the Ugandan Constitution relating to the rights to personal liberty, respect for human dignity and protection from inhuman treatment: right to privacy of property, person and home.

4.6: LIMITATIONS OF INTERNATIONAL LAW IN ADDRESSING THE HUMAN RIGHTS OF SEXUAL MINORITIES.

The stark contrast between the aspirational, lofty language of international human rights treaties and the domestic laws of their signatories-not to mention official statements made by those signatory nations’ leaders-is truly astounding. An example of this kind of disparity, Zimbabwe signed the International Covenant on Civil and Political Rights (ICCPR). Pledging that its own “law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination.” But in 2006, Zimbabwe passed legislation that makes it a crime for two people of the same sex to kiss, hug, or hold hands. Zimbabwe’s then leader, president Robert Mugabe, has publicly stated that gays are “worse than dogs and pigs” and urged members of his party to tie up homosexuals and bring them to the police to be arrested.

Even in nations where both international treaties and domestic laws protect the rights of sexual minorities, violent hate crimes and other forms of discrimination still occur with shocking regularity. South Africa provides a particularly graphic example; it was the first African nation to adopt a constitution providing for among other things, sexual minority rights and the first African nation to legalize same sex marriage. Despite these measures attacks against sexual minorities continue with “corrective rape” occurring with some frequency.

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Sexual health, human rights and the law
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1
Executive summary
Sexual health today is widely understood as a state
of physical, emotional, mental and social well-
being in relation to sexuality. It encompasses not
only certain aspects of reproductive health – such
as being able to control one’s fertility through
access to contraception and abortion, and being
free from sexually transmitted infections (STIs),
sexual dysfunction and sequelae related to sexual
violence or female genital mutilation – but also,
the possibility of having pleasurable and safe
sexual experiences, free of coercion, discrimination
and violence. Indeed, it has become clear that
human sexuality includes many different forms of
behaviour and expression, and that the recognition
of the diversity of sexual behaviour and expression
contributes to people’s overall sense of well-being
and health.
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Sexual health, human rights and the law
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1
Executive summary
Sexual health today is widely understood as a state
of physical, emotional, mental and social well-
being in relation to sexuality. It encompasses not
only certain aspects of reproductive health – such
as being able to control one’s fertility through
access to contraception and abortion, and being
free from sexually transmitted infections (STIs),
sexual dysfunction and sequelae related to sexual
violence or female genital mutilation – but also,
the possibility of having pleasurable and safe
sexual experiences, free of coercion, discrimination
and violence. Indeed, it has become clear that
human sexuality includes many different forms of
behaviour and expression, and that the recognition
of the diversity of sexual behaviour and expression
contributes to people’s overall sense of well-being
and health.