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Sex, Science, and History
Contents:
  1. Acknowledgements
  2. References in: Sex Seen the Emergence of Modern Sexuality in America - PhilPapers
  3. In The News
  4. Sexual Revolution

Foucault brings up the possible objection that though there has been an increase in discourse on sex, this discourse has been directed at reducing non- reproductive sexual practices and rendering sex economically useful and politically conservative. Foucault replies that modern discourse has certainly not reduced the forms of non-reproductive sexual practices: on the contrary, this era has seen a multiplication of different kinds of sexual "perversion.

While discourse on sex had previously dealt solely with marriage—what one could and could not do within and without the bonds of marriage—discourse on sex came increasingly to focus on those who fell outside the category of marriage: children, homosexuals, the mentally ill, and so on. A distinction arose between violations of marriage bonds, which were seen as violations of the law, and violations of what was considered natural practice, which were seen as sick or demented. Since the 18th century, there has been a concerted effort to distinguish and classify various non-marital sexual practices.

The power exerted in making these distinctions, however, is not directed toward repressing these practices. Foucault identifies four operations involved in this exertion of power, all of which are directed more toward proliferating sexual "perversion. First, Foucault identifies a very different motive than simple repression at work in the study of child sexuality. As judges, prosecutors, defense attorneys, and juries all weighed in with differing opinions, the courtroom itself became a site of multiple discourses that attempted to make sense of a growing sexual chaos.

In tracing the birth of modern sexuality, Ullman chronicles the dynamics of social change during a unique cultural moment and explains the shifts in the sexual ethos of turn-of-the-century America. Instead of telling the familiar story of steadily increasing liberation of sexual urges, Ullman chronicles the complex confusions and negotiations of an increasingly public sexual discourse. She relates how laws against cross-dressing gained force at the same time that female impersonation became popular in vaudeville acts, how images of prostitutes were changed by the commercialization of the female body in advertising and film, and how visible expression of female desire was submerged in rape and divorce proceedings.

Australia, the Human Rights Committee held that the references to "sex" in Articles 2, paragraph 1, non-discrimination and 26 equality before the law of the ICCPR should be taken to include sexual orientation. As a result of this case, Australia repealed the law criminalizing sexual acts between males in its state of Tasmania.

Acknowledgements

With this case, the Human Rights Committee created a precedent within the UN human rights system in addressing discrimination against lesbian, gays and bisexuals. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment article 1 This treaty is important because it is not limited to state actors governments , as torture is defined broadly in Article 1: "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, where such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity".

This shows the intention to address cases falling within the scope of the treaty when a state does not investigate or prevent them. Convention on the Rights of the Child article 2 Article 2 of the Children's Convention prohibits discrimination and requires governments to ensure protection against discrimination.

In its publication "Protecting Refugees," the UNHCR states: "Homosexuals may be eligible for refugee status on the basis of persecution because of their membership of a particular social group.

12.1. The Difference between Sex, Gender, and Sexuality

It is the policy of the UNHCR that persons facing attack, inhuman treatment, or serious discrimination because of their homosexuality, and whose governments are unable or unwilling to protect them, should be recognized as refugees. The UN non treaty-based mechanisms are particularly useful in emergency situations.

The Commission on Human Rights - the main UN body to discuss human rights, adopts resolutions and initiates new treaties - works mainly through its Special Rapporteurs appointed for countries or themes and its Working Groups. African Charter on Human and Peoples' Rights This treaty was adopted by the Organization of African Unity now African Union and is the most widely accepted regional human rights instrument, having been ratified by more than fifty countries.

References in: Sex Seen the Emergence of Modern Sexuality in America - PhilPapers

It condemns discrimination and provides for certain rights, but so far, its monitoring and enforcing body - the African Commission on Human and Peoples' Rights has not yet officially dealt with sexual orientation. Convention for the Protection of Human Rights and Fundamental Freedoms article 8, 14 Sexual orientation is not mentioned explicitly in any of the provisions of the Convention.

Nonetheless, the relevance of the Convention abbreviated as ECHR was established in a series of cases where the European Court of Human Rights found that discrimination in the criminal law regarding consenting relations between adults in private is contrary to the right to respect for private life in article 8 ECHR Dudgeon v UK , , Norris v Ireland , , Modinos v Cyprus , The court was the first international body to find that sexual orientation criminal laws violate human rights and has the longest and largest jurisprudence in addressing sexual orientation issues. The case law also includes an decision of the European Commission on Human Rights former first body for individual complaints that a higher age of consent for male homosexuals acts from that for heterosexual acts was discriminatory treatment contrary to Article 14 ECHR in respect of the enjoyment of the right to privacy Sutherland v UK.

Also in , the Court held that, through the conviction of a man for having homosexual group sex in private, a State is in violation of the Convention A. The Court also held in Salgueiro da Silva Mouta v Portugal that a homosexual father cannot be denied custody of his child based on his homo sexual orientation, the matter infringing upon the father's right to family life in Article 8 ECHR. However, the Court views on the application of the Convention on sexual orientation issues have some limits, as for instance the Court held that gay sadomasochistic practices, although in private and between consenting adults, can be outlawed for reasons of health Laskey, Jaggard, and Brown v UK , The Court also decided that the 'right to respect for privacy and family life' is not applicable in the case of a transgender relationship and confirmed UK's decision that only a biological male, not a female-to-male transgender, can be recognized as a father X, Y and Z v UK , European Social Charter This treaty protects social and economic rights and its European Committee of Social Rights examines the human rights record of states.

The office of the Commissioner for Human Rights is an independent institution within the Council of Europe that aims to promote awareness of and respect for human rights in its member States. The Commissioner can receive individual complaints and has addressed sexual orientation issues in his reports and visits to member states.

The Parliamentary Assembly of the Council of Europe has an important role in monitoring the human rights situation in the member states and the states seeking membership with the Council of Europe. Various states repealed their criminal laws against lesbians, gays and bisexuals before being admitted as members or continued to be pressed for compliance with promises made at the time of becoming member of the Council.


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Several European Union laws offer protection from discrimination based on sexual orientation and additional requirements refer to the human rights situation in accession countries. The founding treaties on the EU were amended in the Treaty of Amsterdam to enable EU to fight sexual orientation discrimination.

In The News

On May 1, the following provision in Article 13 EC Treaty entered into force in the first ever international treaty to explicitly mention and protect sexual orientation: "[…] the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation".

In December , the Council adopted a binding general Framework Directive on equal treatment in employment prohibiting direct and indirect discrimination on the grounds of religion or belief, age, disability or sexual orientation. The Framework Directive is binding upon the current member states, while the accession states are required to have completed national implementation of the Directive before joining the EU. The Charter currently is a non binding document but is important since it expresses the EU vision on human rights.

For lesbians, gay and bisexuals the Charter is important because of the explicit non-discrimination provisions in Article 21 1 : "Any discrimination based on any ground such as sex, race, color, ethnic or social origin, genetic features, language, religion or belief, political or other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited".

Sexual Revolution

The European Parliament EP passed several non binding resolutions on human rights and sexual orientation, the first, adopted in , calling for an end to work related discrimination on the basis of sexual orientation. In , the "Roth" Report detailed the variety of discrimination against lesbians and gays in the EU and the Parliament adopted a recommendation on the abolition of all forms of sexual orientation discrimination.

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Although its power is limited, EP can exert a significant political influence on the Council and the Commission as in it requested them "to raise the question of discrimination against homosexuals during membership negotiations, where necessary". Regarding the enlargement of the European Union, the EP adopted in a resolution stating that it "will not give its consent to the accession of any country that, through its legislation or policies violates the human rights of lesbians and gay men".

European Union law regards discrimination against transgender persons as a form of sex discrimination. This principle was established by the Court of Justice in the case of P v S and Cornwall County Council , where it was held that the dismissal of an individual following gender reassignment was unlawful discrimination on the grounds of her sex. The first case on human rights and sexual orientation in the Inter-American system is that of Marta Alvarez who brought a petition against Columbia before the Inter-American Commission on Human Rights Velasquez Rodriguez v Honduras , She was denied the right to equal treatment through the refusal of Colombian prison authorities to grant her the conjugal visits with her partner because of her sexual identity as a lesbian.