Sexuality

The issue of children and sexuality can be controversial, and prompts consideration of a number of children’s rights. This factsheet does not address those concerning protection, considered elsewhere on CRIN (see, for example, our pages on sexual exploitation and violence). Rather, it outlines the main issues concerning sex education, sexual orientation and gender identity.

Issues

Sex education

The breadth of rights relevant to sex education include, but are not limited to, the right to health, the right to education, the right to participation and the right to information.

Article 24 of the Convention on the Rights of the Child requires that states develop preventive health care, guidance for parents and family planning education and services.

Article 28 recognises the right of the child to education, while article 29 stipulates that the education of the child shall be directed to: The development of the child's personality, talents and mental and physical abilities to their fullest potential and The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin

The Committee on the Rights of the Child’s General Comment No.3 on HIV and AIDS states that: The Committee wishes to emphasise that effective HIV/AIDS prevention requires States to refrain from censoring, withholding or intentionally misrepresenting health-related information, including sexual education and information, and that, consistent with their obligations to ensure the right to life, survival and development of the child (art. 6), States parties must ensure that children have the ability to acquire the knowledge and skills to protect themselves and others as they begin to express their sexuality.

Any association between children and sex provokes concern among many, not least because of children’s vulnerability to sexual abuse, but also because of concerns over their heath, psycho-social development and pregnancy. Objections from anti-abortion campaigners can also influence discussion.

A concern for the protection of children has most often dictated sex education policy. Governments, teachers and healthcare professionals tread very carefully, concerned at not drawing the wrath of parents or, in some cases, media. As a result, education policy can be absent or confusing.

Unfortunately, misunderstandings over sex education, particularly the misplaced view that it teaches children promiscuity or encourages them to be sexually active at a young age, can mean children do not get the preparation they require in order to have safe and healthy sex lives, whether as older children or as adults.

Furthermore, there is considerable evidence to suggest that just giving children a very scientific account of sex can fail to prepare them for the challenges involved in negotiating a sexual relationship. This can make them more susceptible to sexually transmitted diseases (STDs).

At the UN Special Session on Children in 2002, there was a concerted campaign, led most notably by the US, to limit mentions of sex in the final outcome document. The US delegation viewed abstinence as the primary strategy to prevent unintended pregnancies and HIV and AIDS. A delegate from Saudi Arabia reportedly praised the US for focusing on sexual abstinence: "The best, if not the only, kind of prevention is chastity. Chastity and abstinence is the number one solution.” 1

The Bush administration also wanted to ensure that the wording of the final document "does not support or advance the idea of abortion." As part of this plan, it campaigned to have the phrase "reproductive health services" removed

In spite of these efforts, there is evidence that young people who receive comprehensive sexuality education become sexually active later, and are more likely to use contraceptives than those who go through abstinence-only sex education programmes. 2.

Nonetheless, as a result of this lobbying, many provisions on sex education and sexual and reproductive rights, which had been compiled by UN agencies, NGOs, State delegations and, importantly, children, were omitted.

Sexual orientation and gender identity

Article 2 of the Convention addresses discrimination. Paragraph 2 states: States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members

As such, the article may be invoked in respect of both the discrimination faced by children, and that faced by gay/lesbian/bisexual parents.

The legal obligation to act “in the best interests of the child” needs to include respecting the child’s right to be free from discrimination, including that based on sexual orientation. The Committee on the Rights of the Child, in its Concluding Observations, has made reference to States’ obligation to protect children from discrimination on the basis of sexual orientation. For example, in 2002 the Committee recommended that the UK government:

“Provide adequate information and support to homosexual and transsexual young people, and encourages the State party, further to the statement of intent made by its delegation to repeal section 28 of the Local Government Act 1988, where it applies”. Section 28 was a piece of legislation that stated that local authorities in England and Wales may not “intentionally promote homosexuality” or “promote the teaching of... the acceptability of homosexuality as a pretend family relationship”.

The Committee on the Rights of the Child’s General Comment No.3 on HIV and AIDS also expressed concern at discrimination on the basis of sexual orientation.

In 2006, in response to well-documented patterns of abuse, a group of international human rights experts, including a member of the Committee on the Rights of the Child, met in Yogyakarta, Indonesia to outline a set of international principles relating to sexual orientation and gender identity.

The result was the Yogyakarta Principles: a universal guide to human rights which affirm binding international legal standards with which all States must comply. They promise a different future where all people born free and equal in dignity and rights can fulfil that precious birthright. Read the references to children in the Principles: http://www.crin.org/resources/infoDetail.asp?ID=17332&flag=report

Other treaties which prohibit discrimination on the basis of sexual orientation include the Treaty of Amsterdam, of the European Union, and the International Covenant on Civil and Political Rights. Although there is no express provision in this latter treaty, in the case Toonen vs. Australia, the Human Rights Committee (which monitors implementation of the Covenant) 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.

In June 2008, the Organisation of American States (OAS) recognised for the first time that homosexuals in the Americas are victims of discrimination and violence.

The OAS passed a resolution on human rights, sexual orientation and gender identity, which was presented by a delegation of activists from Brazil, and committed to placing the issue on its agenda.

During the session, a 14 year old Colombian boy read a statement to ambassadors in which he spoke of the particular violence and discrimination against homosexual children and young people.

In September 2007, a landmark judgement in Argentina recognised a minor’s right to change her sexual identity. For the first time in the region, a court ruled in favour of a minor’s wish to have a sex change operation and to amend her identity card and birth certificate accordingly.
The judge based his decision on a section of the country’s civil code on organ transplants, which recognises the psychological capacity of minors to decide on matters affecting their body, and article 12 (right to participation) of the UN Convention on the Rights of the Child.

And in October 2008, the Constitutional Court of Colombia protected the right of a five-year-old hermaphrodite to decide his/her sex. The judgment was made against the family’s wish to submit the child to an operation which would remove the child’s female genitalia.
http://crin.org/resources/infoDetail.asp?ID=18678&flag=news

Sources:

1.Jennifer Kitts and Katherine McDonald, “United Nations Special Session on Children: children's rights under attack”, CMAJ, April 30, 2002; 166 (9), http://www.cmaj.ca/cgi/content/full/166/9/1155
2. Kirby D. Emerging Answers: Research Findings on Programs to Reduce Teen Pregnancy. Washington DC: National Campaign to Prevent Teen Pregnancy, 2001

 

Countries

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