28 May 2021


'Is the UN Committee on the Rights of the Child Doing Enough to Protect the Rights of LGBT Children and Children with Same-Sex Parents?' by  Paula Gerber and Aaron Timoshanko in (2021) Human Rights Law Review comments

 Children often face discrimination, bullying and even violence because of their sexual orientation or gender identity, as do children raised by parents who are lesbian, gay, bisexual or transgender (LGBT). This article considers what the UN Committee on the Rights of the Child is doing to protect the rights of LGBT children and children with LGBT parents. To make such an assessment, this article critically analyses the Committee’s Concluding Observations over a 10-year period, its General Comments and its Views on Individual Communications. The conclusion reached is that while the Committee has made encouraging progress in recent years when it comes to addressing LGBT related issues, there is still room for improvement in the way the Committee seeks to protect children from discrimination on the basis of sexual orientation and gender identity. 

 The authors argue 

 Lesbian, gay, bisexual and transgender (‘LGBT’) children and children with LGBT parents can face significant challenges growing up in a heteronormative world. LGBT children, and children being raised by same-sex parents, especially in their adolescent years, are likely to experience higher rates of discrimination, bullying and violence, particularly in the school environment. The school playground is often the first place that children experience the hurt and humiliation that comes from not conforming to heteronormative standards. A United Kingdom study in 2007 found that 65 per cent of lesbian, gay and bisexual students had been bullied at school due to their sexual orientation, with more than a quarter also being physically abused. Outside of the UK, LGBT students experience similar levels of abuse. As a result of homophobic and transphobic bullying, LGBT students can experience a ‘loss of confidence, low self-esteem, anxiety, depression and social isolation, and it can often result in reduced school attendance, early school dropout, and poorer academic performance and achievement’, which can have long lasting consequences for the child. At times, LGBT children and children with same-sex parents are also refused admission to, or are expelled from, school due to their sexual orientation or gender identity (‘SOGI’), or that of their parents. 

Because of the discrimination they face, LGBT children are at higher risk of developing problems with alcohol and substance abuse, when they reach adolescence.10 LGBT children are also vulnerable to involuntary or coercive sexual orientation change efforts (commonly referred to as ‘conversion therapy’), which may cause ‘treatment-related anxiety, suicidal ideation, depression, impotence, and relationship dysfunction.’ LGBT youth also face increased risk of homelessness if they are rejected by their parents because of their SOGI. Once on the streets, LGBT youth are more vulnerable to sexual exploitation, abuse and risky sexual behaviours, which may increase their chances of contracting a sexually transmitted disease. LGBT youth are also at a significantly higher risk of suicide. Approximately 30 per cent of LGBT youth around the age of 15 have attempted suicide, with suicide the leading cause of death among gay and lesbian adolescents in the United States. The disproportionately high rate of suicide among LGBT youth is not due to their SOGI, but rather, the persistent discrimination, harassment and social exclusion they experience. 

Bisexual youth may face biphobia, which is ‘prejudice, fear or hatred directed toward bisexual people’ and/or ‘bi erasure’, in which bisexual people are ‘excluded or rendered invisible’ in the LGBT community.  Transgender children experience their gender differently to their biological sex. 

There are limitations associated with using an acronym, like LGBT, to reflect the rich diversity of individuals’ lived experiences, which can be lost with the use of the ‘umbrella’ term, LGBT. Specifically, it encourages the perception that the LGBT community is homogenous and susceptible to a ‘one-size-fits-all’ approach. Whilst acknowledging these limitations, LGBT is still the most appropriate term to use in this research, since it is one of the terms consistently used by the United Nations (‘UN’) Committee on the Rights of the Child (‘Committee’) and is widely used in scholarly literature. ... 

 There has been little scholarly attention paid to the work of the Committee in relation to LGBT children and children with same-sex parents. Indeed, there appears to have been only five studies that relate to the rights of LGBT children under the Convention on the Rights of the Child (‘CRC’), and none of them involved any empirical analysis of the Committee’s work relating to LGBT children and children with same-sex parents. This article seeks to make a modest contribution to filling this gap. This article analyses the major outputs of the Committee, including Concluding Observations (from 1 January 2010 to 1 January 2020), General Comments and Views on Individual Communications, in order to assess the extent to which the Committee is promoting and protecting the rights of LGBT children and children with same-sex parents. This analysis reveals that while the Committee’s awareness of SOGI issues is growing, there is still room for improvement. 

Part 2 of the article begins with an examination of the historical context of the CRC. This helps to explain why the Committee has been slow to consider the vulnerability of LGBT children and children with same-sex parents. This historical analysis is followed by a critique of the text of CRC, in order to identify the provisions that are most relevant to a consideration of the rights of LGBT children and children with same-sex parents. Part 3 reviews the Committee’s Concluding Observations, noting the Committee’s increasing use of SOGI terminology and a greater level of precision when using different terms. This indicates a growing awareness and sensitivity by the Committee to the rights of LGBT children and children with same-sex parents. Nevertheless, the Committee’s work in this space would be improved by refraining from ‘bundling’ minorities together, when making recommendations. 

Part 4 examines the 25 General Comments published by the Committee, to determine the extent to which issues relating to LGBT children and children with same-sex parents have been addressed. This analysis reveals that LGBT related issues were briefly discussed by the Committee in its General Comments in 2003 and then not again until 2011. Since that time, both the quantity and quality of the Committee’s engagement with LGBT issues has improved. However, there is still significant scope for improvement, and this is highlighted in the comparison of levels of engagement of other UN treaty committees with these issues in their General Comments. Part 5 examines the Committee’s Views on Individual Communications. As the Committee has only had the power to receive complaints alleging violations of the CRC since April 2014, and there are only 46 State Parties to this latest Optional Protocol, it is not surprising that there have only been 39 Views published by the Committee. None of these communications related to the rights of LGBT children or children with same-sex parents. 

The conclusions are set out in Part 6, along with recommendations for how the Committee could better promote and protect the rights of LGBT children and children with same-sex parents.