Recent years have witnessed a wave of progress on equal rights on the basis of sexual orientation and gender identity (SOGI) in the courts and legislatures. Twenty-two countries now permit same-sex marriage, while 72 prohibit discrimination against gay and lesbian employees. At the same time, 71 countries still criminalize same-sex relationships , including some countries that have newly enacted discriminatory laws. These trends are also playing out in constitutions: while 10 countries introduced constitutional language protecting LGBT rights between 2000 and 2014 , 13 constitutionally prohibited same-sex marriage within the same time period. Other constitutions use gendered language that may provide the justification for denying equal rights. This paper will quantitatively analyze these global trends, provide examples from case law about impact and implications, and discuss the role for both constitutions and international law in strengthening protections against discrimination.
Quantitative measures of constitutional rights enable rapid comparisons of the quality of rights across countries for different aspects of identity. We have constructed an original database of 50 specific civil, political, social, economic, and equal constitutional rights across 14 aspects of identity for 193 countries. We find that fewer constitutions guarantee equal rights for persons with disabilities or on the basis of sexual orientation and gender identity (SOGI) than on the basis of other aspects of identity. Constitutions are also more likely to explicitly deny or allow for exceptions to the full enjoyment of rights for these groups. However, newer constitutions have increasingly recognized equality rights based on disability and SOGI. We outline the methodology for creating comparable quantitative measures and show how they can be used to visually map the status of constitutional rights, identify regional outliers, and show trends over time in constitutional protections.
Nearly 15% of the global population, or one billion people, have some form of disability. However, direct discrimination on the basis of disability remains widespread, while people with disabilities experience among the highest rates of implicit bias. With the advent of the global disability rights movement and the adoption of the CRPD, the share of constitutions that explicitly guarantee equal rights on the basis of disability has grown, but many other constitutions use unexamined historical language that makes assumptions about capacity (e.g., provisions that limit civil and political rights based on “infirmity” or “unsound mind”). These provisions, whether reflecting historic or persisting biases, have important implications for whether persons with disabilities can exercise the full range of fundamental rights. This paper will examine progress on disability rights in the constitutions of all 193 UN Member States over the past 50 years and assess what remains to be done.
According to a common belief of many advocates and analysis of LGBT rights, the liberalization of rights related to LGBT people occurs through a sequence of legal changes, beginning with decriminalization, followed by laws relating to economics and the public sphere (workplace, public accommodations, military service), then laws related to family (adoption, domestic partnership) with marriage signifying the pinnacle. Based on a statistical analysis of laws in 130 countries over the past thirty years, this paper shows that only half of all countries follow this path. The remaining countries follow a path which liberalizes family laws first, followed by other legal changes. This finding can inform advocacy strategies and expectations of how governments meet their human rights obligations.