INTERNATIONAL HUMAN RIGHTS LAW RELATED TO THE LGBT ISSUE

I. CONTEXT OF STUDY Every human being are born freedom, they have rights to determine themselves to be what they want that makes them comfort and suitable. The condition adn human instinct will sometimes make them to change, event it is a fundamental thing in their life. In the case of LGBT (Lesbian, Gay, Bisexual and Transgender) person, they change the gender orientation to the one that they feel comfort on it. The terms of LGBT tends to be a negative at the time that the UDHR was adopted, most psychiatrists and psychologists viewed same-sex attraction as a disordered state a form of mental illness. They had reached this conclusion by including in their studies only lesbians, gays and bisexuals (LGBs) who had mental health problems and/or were incarcerated in prison. Understanding of transgender gender identity was in a similar primitive state. The negative view does not only arise between the scholars, but widely arise in the society. People tend to reject the LGBT person to be existed in the society because of the fundamental change of their status. The negative views develop into hate and hate creates a miss conduct to the LGBT persons. This kind of situation pull the attention of human rights activist, they internationally fight against the negative treatment to the LGBT person and criticize the international human rights attention to the LGBT. Long time after the UDHR there are no international instrument that govern about the LGBT, the UN tends to indifferent to the rights of LGBT person as a human.

II. PROBLEM STATEMENTS

1. How the international human rights law governs the LGBT? 2. What are the obstacles that frequently faced by the LGBT? 3. How is the status of LGBT in Indonesia?

III. ANALYSIS

A. Applicable International Standards and Obligations 1. Universality, equality and non-discrimination The application of international human rights law is guided by the principles of universality and non-discrimination enshrined in article 1 of the Universal Declaration of Human Rights, which states that all human beings are born free and equal in dignity and rights. All people, including lesbian, gay, bisexual and transgender (LGBT)1 persons, are entitled to enjoy the protections provided for by international human rights law, including in respect of rights to life, security of person and privacy, the right to be free from torture, arbitrary arrest and detention, the right to be free from discrimination and the right to freedom of expression, association and peaceful assembly. The Vienna Declaration and Programme of Action confirms that, while the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.2 Non-discrimination is a core human rights principle embodied in the Charter of the United Nations, the Universal Declaration of Human Rights and core human rights treaties. Nondiscrimination clauses in international instruments typically require that the rights set forth is
1

The terms lesbian, gay and bisexual and transgender are used throughout the report, but often abbreviated to LGBT. These terms are used to refer to same-sex behaviour, identities or relationships and non-binary gender identities. In several places in the text, discrimination against intersex persons is also addressed. 2 A/CONF.157/23, para. 5.

made available to everyone without discrimination, and States ensure that their laws, policies and programmes are not discriminatory in impact. The specific grounds of discrimination referred to in the International Covenant on Civil and Political Rights and other human rights treaties are not exhaustive. The drafters intentionally left the grounds of discrimination open by using the phrase other status. Sexual orientation and gender identity, like disability, age and health status, are not explicitly mentioned among the grounds listed in the International Covenant on Civil and Political Rights or the International Covenant on Economic, Social and Cultural Rights.

2. State obligations under international human rights law The obligations of States to prevent violence and discrimination based on sexual orientation and gender identity are derived from various international human rights instruments. These obligations include the ones listed below. To protect the right to life, liberty and security of persons irrespective of sexual orientation or gender identity To prevent torture and other cruel, inhuman or degrading treatment on grounds of sexual orientation or gender identity To protect the right to privacy and against arbitrary detention on the basis of sexual orientation or gender identity To protect individuals from discrimination on grounds of sexual orientation and gender identity To protect the right to freedom of expression, association and assembly in a on discriminatory manner.

B. Discrimination and Criminalization towards LGBT

Discriminatory practices persist in all regions. Sometimes, Government policies have a direct discriminatory impact; in other cases, the absence of applicable national laws facilitates discrimination by private actors. The section below examines several areas where individuals are particularly susceptible to discriminatory treatment, marginalization and restrictions on enjoyment of rights because of their sexual orientation or gender identity. It is not exhaustive: areas of concern not addressed here include discrimination in access to justice, housing and social benefits, and discriminatory dress codes that restrict men dressing in a manner perceived as feminine and women dressing in a manner perceived as masculine, and punish those who do. Seventy-six countries retain laws that are used to criminalize people on the basis of sexual orientation or gender identity.3 Such laws, including so-called sodomy laws, are often relics of colonial-era legislation. They typically prohibit either certain types of sexual activity or any intimacy or sexual activity between persons of the same sex. In some cases, the wording used refers to vague and undefined concepts, such as crimes against the order of nature or morality, or debauchery.4 What these laws have in common is their use to harass and prosecute individuals because of their actual or perceived sexuality or gender identity.5 Penalties range from short-term to life imprisonment, and even the death penalty C. LGBT rights in Indonesia LGBT in Indonesia become a controversial issue in the society, because the culture of LGBT sometimes cannot be accepted by the society in Indonesian. The east culture of Indonesia that dominated by the muslim majority frontally opposed to the LGBT person, that is become one of the problem in society. Beside the social aspect, in the legal aspect of LBT in Indonesia there are no specific laws that govern about the LGBT rights. At least The LGBT still recognized as human in constitution and there are no punishments to become an LGBT person in Indonesia, but sometimes the LGBT person faced several obstacles related to the legal status.
3

State-sponsored homophobia: a world survey of laws criminalising same-sex sexual acts between consenting adults, International Lesbian, Gay, Bisexual, Transgender and Intersex Association (ILGA), Brussels, May 2011, p. 9. 4 See A/HRC/10/21/Add.3, paras. 56-58. 5 These laws may also be used in social cleansing efforts. See, for example, E/CN.4/1995/111, para. 49, and E/CN.4/2005/7, para. 71.

One of the examples is the transgender/transsexual legal status in Indonesia. Gender in Indonesia is closely related to the legal status, if a transgender registered as a man it means that he still recognized as a man in the law. The transgender must follow several progresses to change the gender. As one example, the case Alterina Hofan, Alter was born with female sex. It was stated in the birth certificate. Even in a family card also listed Alterina Hofan androgynous women. However Alterina told since childhood genital abnormalities called Klinefelter syndrome. Klinefelter's syndrome is theoretically known as the XXY condition. The term used to describe men who have an extra X chromosome in most of their cells. Men typically have XY chromosomes, but people have Klinefelter XXY pattern. Because there is an additional element of X that is caused alters gender unclear since birth. At the age of two months of the original objects suspected clitoris began to swell and continue to grow up into a male. Other abnormalities owned Alter is her own breasts. In 2006 Alter breast removal surgery in Canada Afterwards he changed his birth certificate, family card and ID cards from being female to male gender. Application for change of sex put on trial and the request has been instructed by the PN Jayapura 12/Pdt.P/2010/PN.JPR numbered dated March 29, 2010. So also in the PN Batang, one man named AGUS WIDOYO, apply for legalization sex change to become a woman named NADIA Ilmira ARKADEA as contained in the Stipulation rod PN number: 19/Pdt.P/2009/PN.Btg December 22 , 2009. Sex replacement surgery can also cause legal problems for the subjects who did the surgery itself. The most common legal problem or issue is raised regarding inheritance law. With the change of sex by someone, then it will directly affect his standing in the division of the estate, especially if the person is a Muslim. With each passing one's gender from male to female or vice versa then the status and rights as beneficiary recipients will also be changed. In this case, clarity about one's gender is required. In the event of the case as mentioned above (someone who has genital double), it will be difficult to determine whether he is getting his share like the men or women. So to avoid confusion, sex replacement surgery should be performed.

IV. CONCLUSION International Human Rights Law already covers the matter on LGBT rights, generally stated in The UDHR and ICCPR. Every human in any kind status and condition still recognized as the human, their rights and dignity fully respected in front others. Despite the UDHR and ICCPR already cover it, there must be a specific international agreement related to the LGBT rights to make sure their rights to be internationally recognized by the other country. The international agreement on LGBT rights must be arranged to make sure all country to give a proper treatment to the LGBT persons and prevent any kind of negative treatment by the state and the people.