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Chicago Journal of International Law

Abstract

Like many governing bodies today, the United Nations is facing the question of whether laws that discriminate on the basis of sexual orientation are legitimate. In particular, there is a current debate in the United Nations about whether Article 2 of the Universal Declaration of Human Rights (UDHR) (providing protection against discrimination on the basis of among other things, race, color, sex, national origin, or "other status") protects against discrimination on the basis of sexual orientation. This Comment will discuss the importance of this question in the UN today, and analyze whether protection based on sexual orientation is included in the UDHR based on the text and case law under the UDHR. But because these approaches do not conclusively answer the question, this Comment will also adopt an approach from political philosophy. Using the work of Mill, Locke, and Rawls, this Comment will analyze protection against discrimination based on sexual orientation from two alternative positions. The first considers whether discrimination based on sexual orientation may be necessaU to the stability of non-oppressive states. The second considers whether such discrimination may be justified behind a contractarian veil of ignorance. Combined, these approaches demonstrate that laws that discriminate on the basis of sexual orientation may be legitimate under the UDHR. A note as to the inspiration for this paper: there has been a great deal of recent scholarship advocating against discrimination on the basis of sexual orientation. There is significantly less scholarship, however, explaining why it may be legitimate for a state to discriminate on the basis of sexual orientation. In order to contribute something meaningful to this important debate, this Comment will go through a few arguments in support of the latter position.

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