News & Publication The Non-Discrimination Principle : Seeking a Holistic Approach to Equality for LGBT Persons

The Non-Discrimination Principle : Seeking a Holistic Approach to Equality for LGBT Persons

Posted By Sandya Institute On Sunday, 14 February 2021

Written by Cathryna Gabrielle Djoeng, Research Volunteer Sandya Institute 

Recently, Indonesia is facing another LGBT rights issue where The Indonesian National Armed Forces (TNI) drags 7 officers in Central Java into Military Court Semarang for conducting sexual deviance and on the other side, The Headquarters of The Indonesia National Police (POLRI) had demoted a Brigadier General Officer with similar reason. These issues adds number of intolerant cases toward LGBT persons in Indonesia. It shows LGBT persons is still under threat of future intolerance and persecution by government, law enforcement, and other groups. In this article, I will argue that it is unconstitutional to discriminate LGBT persons because the idea of non-discrimination principle is preventing laws or policies that cause human suffering.


The Idea of Non-Discrimination Principle

Basically, Indonesia’s Law has adopted the non-discrimination principle which stated on The 1945 State Constitution of the Republic of Indonesia (Undang-undang Dasar Negara Republik Indonesia 1945 /UUD RI 1945) Article 28I para. 2 and Law No. 39 Year 1999 – Concerning Human Rights (Undang-undang Hak Asasi Manusia/UU HAM) Article 3 para. 3. In Article 1 para. 3 UU HAM “Discrimination means all limitation, affronts or ostracism, both direct and indirect, on grounds of differences in religion, ethnicity, race, group, faction, social status, economic status, sex, language, or political belief, that results in the degradation, aberration, or eradication of recognition, execution, or application of human rights and basic freedoms in political, economic, legal, social, cultural, or any other aspects of life.” Despite the lack of term ‘sexual orientation and gender identity’ in the definition above, it does not mean that LGBT persons are not protected. The principle apply to LGBT persons where it had been explained in General Comment A/HRC/19/41 quote ….Sexual orientation and gender identity, like disability, age and health status, are not explicitly mentioned among the grounds listed in the International Covenant …, the Human Rights Committee held that States are obligated to protect individuals from discrimination on the basis of their sexual orientation.... In addition, gender identity is recognized as among the prohibited ground of discrimination.” This means that the Government oblige to protect the basic rights of LGBT persons without excuses.

Furthermore, in recent United States Supreme Court landmark case Bostock v. Clayton County, the court argued that employer who fired employees due to his/her sexual orientation or gender identity violated the Title VII of the Civil Rights Act of 1964 (Title VII). It stated that LGBT persons were protected by the Title VII, under the discrimination based on sex context. The court explained, “When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play - both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies)…There is simply no escaping the role intent plays here: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking…. To be sure, that employer’s ultimate goal might be to discriminate on the basis of sexual orientation. But to achieve that purpose the employer must, along the way, intentionally treat an employee worse based in part on that individual’s sex.”[1] By expanding the meaning of discrimination based on sex, it showed that despite there was no “sexual orientation and gender identity” context on non-discrimination laws, LGBT persons always be protected by non-discrimination law. [2]

According to Michael J. Perry, ideally the Government are not allow to discriminate or treat human being less than another by demeaning act and negative generalization.[3] He stated “After all, government can violate human beings, or otherwise cause unwarranted human suffering by omission (that is, by deciding not to do something for them) as well as by commission (doing something to them); government can violated human beings, or otherwise cause unwarranted human suffering, by means of policies of not doing something for as well as policies of doing something to.” Because the goal of non-discrimination principle is creating equality, it demands us to consider everyone differences equally, in any circumstances.[4] Nicholas Mark Smith added that equality requires us to act impartially.[5] In addition, Smith argued that “Equal concern and respect must be afforded, always, in the choice of public policy.[6] To summarize, the Government must take neutral position, treat LGBT persons equally, and avoid regulating laws or policies based on prejudice or hate speech toward LGBT persons. They need to acknowledge the existence of potential harm cause reckless policies is real and sometimes the form of it are inhumane acts especially for LGBT persons who often face violence like beatings, torture or even sexual assault. Perry reminded us that our commitment to human rights mean we must avoid causing human suffering to others, “… We who affirm the morality of human rights, because we affirm it, should press our elected representatives:

1.     To enact and enforce laws and policies aimed at preventing human beings from violating human beings or otherwise causing unwarranted human suffering; and 

2.     Not to rely on any law or policy that violates (or would violate) human beings or otherwise causes unwarranted human suffering.”[7]


Conclusion

The non-discrimination principle may sound complex and strict, however it should be seen as a guidance rather than burden. The Government does not have valid reasons to deny their obligations to fulfill, respect, and protect LGBT persons especially their basic rights such as right to work, right to education, and etc. It is the time for the Government to recognize their suffering and take a holistic approach in order to get better understanding about LGBT persons. Promoting social inclusion by opening a space for dialogue between LGBT, religious, and other groups will be a great step for the Government to eliminate discrimination. Also, it is important to regulate hate speech, and incitement along with misinformation that can trigger or justify the attack toward LGBT persons. In the end, treating individual as an equal, with respect and avoiding human suffering should be an obligation for everyone.


References

[1] Bostock v. Clayton County, p. 11.

[2] Ibid. p. 19. We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.

[3] Michael J. Perry, Toward a Theory of Human Rights Religion, Law, Courts, Cambridge University Press, UK, 2007, p. 66. Here is the general non-discrimination ideal: Government may not discriminate against anyone - it may not treat one human being less well than another - on the basis either of (a) a demeaning view abut one or another aspect of (what we may call) one’s “particularity” - about one’s race, for example, or one’s sex, or of (b) a negative generalization about one or another aspect of one’s particularity, if government can, without serious cost, avoid reliance on the generalization. By a “demeaning” view about an aspect of one’s particularity, I mean a view that implausibly attributes a deficit of some kind - a lack, an inferiority - to one because of that aspect. An example: Women are, as such (that is, because they are women), less fit than men for the practice, I mean a generalization - an ‘in general’ premise - that plausibly attribute a deficit/lack/inferiority to the group that is the object of the generalization. An example: Women are, in general, weaker than men.

[4] Nicholas Mark Smith, Basic Equality and Discrimination Reconciling Theory and Law, Ashgate, 2011, p. 43. Given the existence of equality, of both peculiarly human range properties, and the fact of our individual differences, it makes sense to choose to value a basic equality which entails a commitment to equal consideration to the interests of each person. That is if we do not want the awful consequences I have suggested issue from the moral elitism which takes its cue from our individual differences. We cannot ignore the individual differences. We do have to respond to them when, for example, choosing between medical school applicants, aspirant national sports players, or who to vote for. But we do not have to think these differences justify denying a fair shares of resources to some or that these variations might be used to determine anyone’s intrinsic worth.

[5] Ibid. p .54-55. I shall argue below that basic equality requires more than just refraining from the types of discrimination that are typically covered in human rights laws. It requires impartiality as between persons in general unless we can justify a particular impartiality on the grounds that allowing it to everyone generally advantage all of us. Nepotism in government affairs, for example, is a breach of basic equality just as much as racial policies are, because it offends against a rule we have because of a commitment to partiality between persons.

[6] Ibid . p. 57.

[7] Perry. op. cit., p. 35.