A Queer Perspective on the UN Recognition of a Right to a Healthy Environment

A Queer Perspective on the UN Recognition of a Right to a Healthy Environment

Eoin Jackson^[1]

Winner of the HHRJ 2022-2023 Essay Contest on Human Rights and the Environment

Introduction

In July 2022, the United Nations General Assembly passed a Resolution recognizing the human right to a clean, healthy, and sustainable environment.^[2] The Resolution was widely hailed as a breakthrough in the efforts to integrate human rights considerations into the international environmental law framework.^[3] Questions remain, however, as to what the Resolution will mean in practice for human rights and the environment and what use the right to a healthy environment will be for activists in holding states accountable for environmental degradation.^[4]

This essay seeks to provide a queer perspective on the Resolution, as part of a broader effort to understand how the rights of LGBTQ people interact with the intersection between human rights and the environment. The emphasis will be on identifying aspects of the Resolution that can be used to build the framework for a queer-inclusive approach to environmental protection. In other words, it will identify how the Resolution can be of use as it stands, or through further refinement and interpretation of its contents, to vindicate the intersection of LGBTQ rights and protection of the environment in future human rights advocacy.

LGBTQ People at the Intersection of Human Rights and the Environment

There has been minimal research into the particular vulnerabilities of LGBTQ people to the physical, social, and economic risks associated with environmental degradation. The lack of much specific data on this issue is likely one of the reasons that there is no specific reference to LGBTQ people at any point in the document.^[5] It is important to bear in mind that the Resolution does little to shift the status quo in the context of pursuing further inquiries into research in this area, nor however does it preclude further examination. Therefore, it is useful to understand the context in which we are examining this Resolution to appreciate both the progress it has made and the areas it has not fully appreciated.

What data there is on the subject suggests that LGBTQ people are particularly vulnerable to threats to the environment. LGBTQ people are more likely to live in a state of homelessness, or struggle to gain access to healthcare and employment.^[6] Environmental threats like climate change reduce access to limited resources by forcing states to allocate more funds towards natural disaster mitigation, climate mitigation, and adaptation efforts.^[7] This puts more vulnerable members of the community at risk of losing their resources or experiencing further internal displacement as existing social protections are sacrificed to alleviate climate disasters.^[8] Professor Sean Kidd has discussed how the combination of rising sea levels and poor air quality (among other environmental factors) results in the degradation of housing due to the physical impacts of climate change and the economic strain caused by food, water, and energy insecurity.^[9] Individuals who do not have access to shelter due to these physical impacts are, in turn, exposed to other effects of climate change like poor air quality and extreme temperatures.^[10] This places greater pressure on the state to provide for the socially and economically marginalized while the state, in turn, experiences a loss of productivity, as extreme weather events such as flooding and heat waves disrupt traditional economic channels.^[11] Given that the LGBTQ community is already in greater need of accommodation,^[12] and may also be fleeing countries out of fear of persecution,^[13] the resulting scramble for depleting resources harms their chances of securing provisions necessary to achieving equality.

LGBTQ people are also at greater risk of violence in the event that climate change or other environmental disasters disrupts the social fabric of vulnerable nations. Such violence has already been seen in the context of Covid-19 (though Covid-19 is a pandemic as opposed to an environmental disaster, albeit one likely partially caused by climate change),^[14] which nations such as Tanzania and Nigeria used as an excuse to blame LGBTQ people for the pandemic and institute harsh crackdowns on an already marginalized community.^[15] Given climate change, the subsequent rise in natural disasters will likely cause far worse and far more drawn out consequences than a pandemic.^[16] The disruption to society and resulting potential violence from this long-term disruption^[17] may have a disproportionate impact on minorities including LGBTQ people. Within this context of heightened violence and insecurity, it is legitimate to recognise LGBTQ rights as being at particular risk of deterioration alongside those of other vulnerable populations.^[18] In other words, because climate change can disrupt society to the extent that vulnerable populations will experience even worse rates of deprivation and violence, it is valid to incorporate LGBTQ people into consideration of the rights impact of climate change.

All of this is important in understanding that the human right to the environment is not just a matter of viewing the environment strictly from a traditional pro-conservation, nature-centric perspective. The right has the capacity to integrate environmental considerations into existing LGBTQ rights while also bringing minority experiences into states’ efforts to create and implement environmental policy. This can also be linked more generally with the concept of a just transition, i.e., ensuring that vulnerable communities do not bear the brunt of the social and economic costs of a green society.^[19] The right is a starting point to this conversation, but it is one that is important to appreciate as part of the wider effort to accommodate minorities.

The Resolution provides a useful foundation for vindicating this intersection between LGBTQ rights and protection of the environment by stating that it recognizes “that States have the obligation to respect, protect and promote human rights, including in all actions undertaken to address environmental challenges, and to take measures to protect the human rights of all, as recognized in different international instruments.”^[20] In other words, the Resolution does not exist in a vacuum. Different international human rights, including LGBTQ rights, have a role to play in advancing environmental protection, and this aspect to the Resolution is a promising start to LGBTQ environmental advocacy.  As such, the Resolution acts to add an environmental lens to the international human rights framework, which, in turn, the unique challenges faced by LGBTQ people in the vindication of their rights.

Gender within the Resolution

Gender is an important lens through which queer experiences can be recognized and vindicated. The Resolution contains specific reference to the importance of a gender-conscious approach to environmental protection which can be of use in creating a broader queer intersection. It states that:

“Recognizing also the importance of gender equality, gender-responsive action to address climate change and environmental degradation, the empowerment, leadership, decision-making and full, equal and meaningful participation of women and girls, and the role that women play as managers, leaders and defenders of natural resources and agents of change in safeguarding the environment[.]”^[21]

This is undoubtedly positive insofar as gender equality will form a key part to any effective protection of the environment. From a queer perspective, it also leaves an opening through which there can be further advocacy for LGBTQ people in the environmental space. On a direct level, queer women can push for their sexual identity to be incorporated within the existing spectrum of ‘women’ perceived in this Resolution. Trans and non-binary people can also argue that any ‘gender responsive’ action should take account of their needs and move beyond the gender binary.

The recognition of gender within the Resolution is welcomed but should only be seen as a starting point when it comes to building LGBTQ rights within the human right to a healthy environment. Gender is but one aspect of queerness and is not sufficient on its own to ensure the full spectrum of queer oppression is appreciated. There is also a risk that overemphasizing this pathway as a means of vindicating LGBTQ rights will disguise the additional layer of oppression experienced by LGBTQ people.^[22] A focus on empowering women and girls is welcome, but not enough on its own to provide for intersectional empowerment for LGBTQ people.

Activists can, however, hone in on the gender-conscious language and use it to ensure that future interpretation of the right to a healthy environment focuses on firstly, expanding out the definition of gender to accommodate the wider spectrum of LGBTQ identities and secondly, considers how sexuality and gender identity in and of itself can play a role in heightening risks concerning environmental degradation. The latter would focus more on the direct link between the experience of LGBTQ people with environmental degradation as identified in the prior section. This would likely involve pushing for new language concerning LGBTQ rights when pursuing wider environmental and human rights advocacy, which would, in turn, ensure that there is a broader focus on inclusion alongside the existing and welcome focus on gender-conscious responses.

‘Segments of the Population that are already in Vulnerable situations’ as Defined in the Resolution and its effects on LGBTQ People 

As has been identified, LGBTQ people are vulnerable alongside other minorities when it comes to environmental harm. The Resolutions’ determination of what constitutes a ‘vulnerable’ person is expansive and in line with the wider understanding within human rights law of who is and who is not vulnerable:

“Recognizing that, while the human rights implications of environmental damage are felt by individuals and communities around the world, the consequences are felt most acutely by women and girls and those segments of the population that are already in vulnerable situations, including indigenous peoples, children, older persons and persons with disabilities[.]”^[23]

LGBTQ people can be incorporated into the “segments of the population that are already in vulnerable situations” umbrella.^[24] The term is defined broadly enough in the Resolution that there is no reason the underlying vulnerabilities outlined above could not be utilized to recognize LGBTQ people under the provided definition. This broad perception of vulnerability is already seen in other areas of international law. For example, LGBTQ asylum claims are recognized under the Refugee Convention by virtue of their status as members of a ‘particular social group’ whose persecution grants them the right to seek asylum in safe countries.^[25] Similarly, in O.M v. Hungary,^[26] the European Court of Human Rights determined that there had been a violation of the European Convention on Human Rights by the government of Hungary when it had failed to consider “extent to which vulnerable individuals – for instance, LGBT people like the applicant – were safe or unsafe in custody among other detained persons, many of whom had come from countries with widespread cultural or religious prejudice against such persons.”^[27] While this Resolution is not doing anything new in adopting a broad perception of vulnerability, it at least ensures that similar examples like the ones above can be used to integrate LGBTQ people into the vulnerability framework.

It is disappointing, however, that there is no specific reference to LGBTQ people within the subsequent examples provided. This means that activists will continue to need to make their case for LGBTQ people to be seen as vulnerable when it comes to environmental damage and pollution. Indeed, a 2020 FEMA Report has already noted that being LGBTQ makes it more likely that that person will be more vulnerable to natural disasters,^[28] due to a combination of lower access to resources and difficulty interacting with state-sponsored (and therefore in some situations queerphobic) emergency services.^[29] However, this evidence remains limited likely due to the aforementioned dearth of research in this area. This could make it easier for relevant authorities to deny or dismiss LGBTQ claims on the basis that the limited evidence available is not sufficient to prove vulnerability within the right to a healthy environment.

A more explicit reference to LGBTQ people in the Resolution would have been helpful in drawing attention to what has remained an under-examined aspect to environmental and climate justice. It would shift the normative framework so that LGBTQ people are more directly referenced in future environmental and human rights discussions so that an understanding of the community’s vulnerabilities are not forgotten. In the absence of this, the status quo whereby LGBTQ people are an under-examined minority in the context of environmental protection remains intact.

Nonetheless, this aspect should be honed in upon by future activists as a starting point for building the knowledge, data, and normative understandings of LGBTQ peoples’ place within environmental action. All advocacy must start somewhere, and it is logical to rely on the potentially expansive concept of vulnerability to begin laying the groundwork for a more formal recognition of LGBTQ people. The progressive definition of “segments of the population that are already in vulnerable situations” is a welcome one, and activists should focus their actions on ensuring LGBTQ are placed within this category in future advocacy. This will ensure greater inclusion in the environmental space as the right to a healthy environment evolves to accommodate new and emerging conceptions of environmental protection. 

Conclusion

The recognition of a right to a healthy environment marks great progress in shifting the normative framework around how we consider the obligation of humanity to protect the environment. The Resolution offers a framework through which we can expand on and integrate intersectional considerations into the wider climate response. While there is no doubt the Resolution is a step forward in the effort to incorporate a queer lens into environmental advocacy, aspects of the Resolutions’ language around gender and vulnerability could do with some refinement. In pursuing further action, activists should focus on drawing attention to the risk environmental damage poses to LGBTQ people and use the Resolution as part of wider efforts to ensure there is direct and specific recognition of this oppression.

^[1] LLM ‘23 Harvard Law School, LLB ‘22 Trinity College Dublin. Views are entirely the author’s own and do not necessarily represent the views of any organization the author may be associated with.

^[2] G.A. Res. 76/300 (Jul. 26, 2022).

^[3] IISD, UNGA Recognizes Human Right to Clean, Healthy, and Sustainable Environment (Aug. 3, 2022), https://sdg.iisd.org/news/unga-recognizes-human-right-to-clean-healthy-and-sustainable-environment [https://perma.cc/7DTM-LZMW].

^[4] See generally Ke Tang & Otto Spijkers, The Human Right to a Clean, Healthy and Sustainable Environment, 6 CHINESE J. ENV. L. 87 (2022) (discussing the human right to a healthy environment).

^[5] Mikayla Reta, How Environmental and Climate Injustice Affects the LGBTQI+ Community, Center for American Progress (June 16, 2022), https://www.americanprogress.org/article/how-environmental-and-climate-injustice-affects-the-lgbtqi-community [https://perma.cc/V59K-HWDP].

^[6] The Trevor Project, Homelessness and Housing Instability Among LGBTQ Youth (Feb. 3, 2022), https://www.thetrevorproject.org/research-briefs/homelessness-and-housing-instability-among-lgbtq-youth-feb-2022 [https://perma.cc/36W6-BMJ5].

^[7] See generally Joern Birkmann et al., Poverty, Livelihoods and Sustainable Development, in Climate Change 2022: Impacts, Adaptation And Vulnerability. Contribution Of Working Group II To The Sixth Assessment Report Of The Intergovernmental Panel On Climate Change [Hans Pörtner et al. eds., 2022] (discussing the impact of climate change on poor and vulnerable communities and how States will need to fund mitigation and adaptation efforts to address this growing inequality).

^[8] Michelle Bell & Leo Goldsmith, Queering Environmental Justice, 112(1) AM. J. PUB. HEALTH 79, 79 (2022); Hope McLellan-Brandt, Gender Justice, LGBTQ+ Justice, and Climate Justice: How Climate Change Impacts Marginalized Communities (Nov. 3, 2022), https://vlscop.vermontlaw.edu/ 2022/11/03/gender-justice-lgbtq-justice-and-climate-justice-how-climate-change-impacts-marginalized-communities [https://perma.cc/V8SY-9B2L].

^[9]  Sean Kidd et al., The climate change–homelessness nexus, 397 THE LANCET 1693 (2021).

^[10] Id. at 1693.

^[11] In 2022, for example, damages in the US from disasters totaled $165.1 billion. See NOAA, 2022 U.S. billion-dollar weather and climate disasters in historical context (2023), https://www.climate.gov/news-features/blogs/beyond-data/2022-us-billion-dollar-weather-and-climate-disasters-historical [https://perma.cc/MS2B-RHYM].

^[12] Adam P. Romera et al., LGBT People and Housing Affordability, Discrimination, and Homelessness, UCLA Williams Institute (2020).

^[13] Ari Shaw et al., LGBTQI+ Refugees and Asylum Seekers, UCLA Williams Institute (2022), at 25.

^[14] Robert M Beyer, Shifts in global bat diversity suggest a possible role of climate change in the emergence of SARS-CoV-1 and SARS-CoV-2, 767 Science of the Total Environment (2021).

^[15] See generally Grame Reid, Global Trends in LGBT Rights During the Covid-19 Pandemic, HUMAN RIGHTS WATCH (Feb. 24, 2021), https://www.hrw.org/news/2021/02/24/global-trends-lgbt-rights-during-covid-19-pandemic [https://perma.cc/X477-Z69R]. See also Grame Reid, LGBTQ Inequality and Vulnerability in the Pandemic, HUMAN RIGHTS WATCH (June 18, 2020), https://www.hrw.org/news/2020/06/18/lgbtq-inequality-and-vulnerability-pandemic [https://perma.cc/UYQ2-VJP9].

^[16] See generally Intergovernmental Panel On Climate Change, Sixth Assessment Report (2023): Poverty, Livelihoods and Sustainable Development. See Joern Birkmann et al., Poverty, Livelihoods and Sustainable Development, in Climate Change 2022: Impacts, Adaptation And Vulnerability. Contribution of Working Group II to The Sixth Assessment Report of The Intergovernmental Panel on Climate Change [Hans Pörtner et al. eds., 2022] (discussing the severe and long-term impacts climate change will have on poverty and sustainable development in the event that global temperatures are not retained within scientifically permissible limits).

^[17] U.N. Framework Convention on Climate Change Secretariat, Conflict and Climate (July 12, 2022), https://unfccc.int/blog/conflict-and-climate/ [https://perma.cc/UUH8-Y7WT]. See also Courtney Plante & Craig A. Anderson, Global Warming and Violent Behavior (2017), at 1-2, https://www.psychologicalscience.org/observer/global-warming-and-violent-behavior/ [https://perma.cc/SRA3-NRYX]. See generally International Committee of the Red Cross, Seven things you need to know about climate change and conflict (July 9, 2020), https://www.icrc.org/en/document/climate-change-and-conflict [https://perma.cc/9N2Z-47WE] (outlining the general impact of climate change on conflict scenarios).

^[18] See e.g., OHCHR, Climate change exacerbates violence against women and girls (July 12, 2022), https://www.ohchr.org/en/stories/2022/07/climate-change-exacerbates-violence-against-women-and-girls [https://perma.cc/4N2Z-KABR].

^[19] See Just Transition Ctr., Just Transition: A Report For The OECD 3 (2017).

^[20] G.A. Res., supra note 2.

^[21] Id.

^[22] For a discussion of this in practice, see Aoife O Connor et al., Transcending the Gender Binary under International Law: Advancing Health-Related Human Rights for Trans Populations, 50(3) J. L. & MED. ETHICS 409 (2022).

^[23] G.A. Res., supra note 2.

^[24] Id.

^[25] U.N. High Commissioner On Refugees, UNHCR’s Views On Asylum Claims Based On Sexual Orientation And/Or Gender Identity 2 (2016).

^[26] O.M. v. Hungary, App. No. 9912/15 (July 5, 2016), https://hudoc.echr.coe.int/eng?i=001-164466.

^[27] Id. ¶ 53.

^[28] Federal Emergency Management Agency, 2020 National Preparedness Report 61 (2020).

^[29] Id.