Only five countries in the world have constitutions that explicitly guarantee equality for citizens on the basis of sexual orientation and gender identity.
In the most comprehensive global study of constitutional protections based on sexual orientation and gender identity to date, the WORLD Policy Analysis Center (WORLD) at the UCLA Fielding School of Public Health reveals that while LGBT rights and protections have increased in some countries, a troubling trend has occurred in many others.
Twenty-two of the world’s 193 United Nations–recognized countries have introduced case law or legislation in support of marriage equality. Yet, between 1990 and 2014, thirteen countries added to their constitutions prohibitions of same-sex marriage or provisions that allow legislation prohibiting same-sex marriage.
It has been one year since the U.S. Supreme Court’s 2015 landmark ruling that extended marriage equality to millions of LGBT people across the country, but the U.S. Constitution still does not explicitly guarantee equality on the basis of sexual orientation and gender identity. A legal grey area has allowed for the state governments to react in the form of discriminatory bills.
“Constitutional rights are a promise of fundamentally fair and equal treatment, and provide a critical path to recourse when a violation occurs,” said Dr. Jody Heymann, founding director of WORLD, dean of the UCLA Fielding School of Public Health and author of the study. “While marriage equality is an important start, it is not enough to prevent discrimination at work, in housing or many other spheres of life. It is crucial for constitutions to guarantee equal rights and protection from discrimination to LGBT individuals in all spheres.”
Where does the world stand on fulfilling constitutional equal rights for all LGBT people?
Sexual orientation and gender identity:
- Only five countries’ constitutions explicitly guarantee equal rights on the basis of sexual orientation and gender identity — Bolivia, Ecuador, Fiji, Malta and the United Kingdom.
- Five countries’ constitutions provide protections solely based on sexual orientation — Mexico, New Zealand, Portugal, South Africa and Sweden.
- Globally, constitutional protections of LGBT rights remain rare, particularly in comparison to provisions against discrimination based on sex (153 countries), race or ethnicity (147 countries), and religion (146 countries).
- The increase in the number of constitutional protections does not signal consistent progress in the rights of LGBT individuals, as evidenced by the increase in the number of countries that expressly ban gay marriage.
- Of the 193 national constitutions studied, none explicitly protected the right to same-sex marriage, but 22 countries introduced case law or legislation in support of marriage equality.
- Thirteen countries enacted constitutional bans on same-sex marriage or constitutionally permitted legislation to do so.
The U.N. Human Rights Committee has ruled repeatedly that states have an obligation under international law to protect people from differential treatment based on sexual orientation. In 2011, the Human Rights Council reaffirmed the protection of equal rights for LGBT individuals in all spheres of life in a statement that was signed by 85 countries representing every region of the world.
“The majority of the world’s countries guarantee equal rights on the basis of gender, ethnicity, and religion in their constitutions,” said Amy Raub, principal research analyst at WORLD and lead author of the study. “Extending the same protection to LGBT persons is a critical first step for ensuring fundamental human rights are respected.”
WORLD’s study was published in the Yale Journal of Law & Feminism. The study, interactive maps, fact sheets and other materials are part of WORLD’s online resource bank, which has materials that address equal rights in national constitutions based on sexual orientation, gender identity and other statuses such as sex, ethnicity, religion and disability across the spheres of general equality and discrimination, employment, marriage and other rights.