Document Type

Article

Publication Date

2015

Publication Information

41 William Mitchell Law Review 80 (2015)

Abstract

Various countries around the world have been according greater protection to the rights of lesbian, gay, bisexual, and transgender (LGBT) people in recent years. At the same time, in other countries, the rights of LGBT people are becoming more threatened.

Against this backdrop, it is worth noting that the United Nations (U.N.) General Assembly has never issued a resolution specifically protecting or advancing the rights of LGBT people. This is remarkable given the significant role the General Assembly has had in promulgating international human rights. From the standpoint of advocates for LGBT rights, it would be desirable for the General Assembly to issue such a resolution. This article suggests part of a strategy to be implemented in pursuing that goal. Attention is drawn to the importance of levels of generality that are used to describe human rights. Several major United States Supreme Court cases regarding constitutional rights illustrate this importance. Overall, the deployment of higher levels of generality in discourse concerning LGBT rights can be more successful in securing results favorable to those rights.

Although the General Assembly has not issued any resolutions protecting or advancing LGBT rights, other international actors have. Certain international tribunals have issued decisions, certain international organizations have issued resolutions and reports, and certain non-governmental organizations (NGOs) have issued principles and policies, all aimed at protecting or advancing LGBT rights. A recent and commendable example is a resolution from the American Bar Association (ABA), adopted on August 11, 2014, that (among other effects) condemns all laws that discriminate against LGBT people.

Upon review, it is observed that the language used in these actions reflects varying points on a spectrum, running from a broad (or higher) level of generality to a specific (or lower) level of generality. Historically, most General Assembly resolutions protecting or advancing human rights have adopted specific levels of generality. An earlier effort to advance LGBT rights before the General Assembly, adopting only a moderately specific level of generality, was unsuccessful.

This article asserts that, in designing the General Assembly’s first LGBT rights resolution, it will be safer and more effective to follow the examples indicating higher levels of generality rather than those indicating lower levels of generality. Given the record of the international authorities and precedents reviewed in this article, and given the earlier unsuccessful attempt in the General Assembly, the first General Assembly resolution on LGBT rights should adopt a very high level of generality.

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