The Importance of Defining LGBTQ+ Digital Rights Under International Human Rights Law

It is clear that the continuum between the online and the real world is blurring. The Internet today is the medium for a vast amount of human interaction, and it has certainly become enmeshed in the daily transactions that define our reality. In this context, debate about how digital technologies can contribute to the betterment of society is urgent. The case of the LGBTQ+ community embodies the dichotomy that new technologies present, encompassing both great benefits for the development of individuals, and serious threats to human rights.

The LGBTQ+ community has historically relied on social media and the Internet more generally to combat the isolation and the discrimination its members face. Going online is often a crucial way to discover and explore diverse sexualities and gender identities and come together with individuals with similar lived experiences. In fact, LGBTQ+ individuals were among the first to adopt the Internet as a tool to demand greater recognition of their rights, and they are more dependent on it than most to battle marginalization and lack of access to educational resources.

Related Reading:

• A/HRC/32/38: Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (United Nations Human Rights Council).
• A/HRC/29/32: Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (United National Human Rights Council).

In her book Personal but Not Private, Stefanie Duguay points towards the existence of a queer imagined community created and mediated by technologies and how individuals interact with them: queer individuals use, stretch and transgress online practices to create, explore and express their identities in a network of shared experiences and ways of doing things. This has usually been attributed to the anonymity and privacy the Internet yields to users and their perceived capacity to escape social stigma and isolation online.

Nonetheless, worries about the negative consequences many online platforms can have aren’t unfounded, and the need to find solutions for these problems and regulate big tech companies is as pressing as ever. In fact, as Oxford Internet Institute researcher Mark Graham suggests, while “digital can be used as a way of building strength in a context of weak existing rights,” it remains embedded in the social context it emerged from, and, as such, the Internet can easily favor powerful societal actors. An especially crucial matter is the amplification and reproduction of real-world discrimination online, which affects specific groups to a larger extent, as is the case of the LGBTQ+ community. These days, it is clear that the LGBTQ+ community is coming under threat in a myriad of different ways. To pinpoint only one example, the Center for Countering Digital Hate finds that slurs against the LGBTQ+ community on X (formerly Twitter) have increased 119% since 2022. LGBTQ+ individuals aren’t only suffering from vast amounts of hate and bigotry online, but are also subject to censorship, invasive data gathering practices, data leaks, discrimination, and physical violence.

Insufficient regulation can only contribute further to these issues in the long run, and it severely jeopardizes the important role digital technology plays for the LGBTQ+ community, with potentially deadly consequences.

Related Reading:

• LGBTI people face “vortex of violence and discrimination,” says UN expert in debut address (United Nations Human Rights Office of the High Commissioner).
• A/HRC/35/36: Report of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity (United Nations Human Rights Office of the High Commissioner).
• A/75/258: Protection against violence and discrimination based on sexual orientation and gender identity during COVID-19 (United Nations Secretary General).

Indeed, the Internet has created the illusion of democratization and free, universal access to information. But this is far from reality since the average Internet user is largely unaware of the consequences of Internet governance and design choices and how large content producers shape, create and spread certain ideas, values and voices. It is a reality that design decisions for big tech companies condense larger monetization strategies, which end up reinforcing the existing discrimination against LGBTQ+ individuals by rendering invisible creators and activists and boosting bigoted narratives online, effectively allowing big tech companies to reproduce and profit from existing oppressive social structures.

What is especially worrisome is that, beyond jeopardizing the human rights of LGBTQ+ individuals, there is a clear link between negative stereotyping of queer people and an increase in violence in the real world. This is coupled with a much larger societal trend, which sociologist David Lyon coined as ‘social sorting.’ Different modes of surveillance and design choices place individuals into coded categories that are typically based on stereotypes and prejudices, which incurs a much greater risk than a formal breach of the law. The Internet mirrors the social structures it is embedded in, and, through classification, it facilitates or impedes individuals’ life prospects. Thus, the fact that Instagram and other social media platforms, as well as search engines like Google, are willing to deem LGBTQ+ content inappropriate and conceal it from the public often at the behest of governments, not only limits the ability of LGBTQ+ individuals to enjoy their human rights and develop their identity and community, but it also strengthens a societal structure by which LGBTQ+ individuals are deemed inappropriate. This can have serious repercussions since the denial of LGBTQ+ speech online affects the way society reads them and, thus, treats them.

Examples of censorship of LGBTQ+ content are widespread, ranging from total prohibitions in some countries to the enactment of filters in certain locations. The Russia ‘Gay Propaganda Law’ or anti-LGBTQ curriculum laws in the US are some known examples. The 2021 report ‘No Access: LGBTQ Website Censorship in Six Countries’ from OutRight Action International, The Citizen Lab, and The Open Observatory of Network Interference (OONI) points towards transparent censorship regimes in Indonesia, Malaysia, Iran, Russia, Saudi Arabia and UAE.

Although it has traditionally been portrayed as if bans on LGBTQ+ content are exclusively imposed by non-Western authoritarian governments, this is far from being true. Western democracies have a history of censorship of LGBTQ+ content that is all the more worrisome since these countries portray themselves as champions of LGBTQ+ rights. Looking at the Open Observatory of Network Interference (OONI) data, a free software for measuring internet censorship, it is clear that some of the countries at the forefront of the fight for democracy consistently block LGBTQ+ content. Thus, Germany, Ireland, the Netherlands and France are the countries that have blocked LGBTQ+ websites most frequently. These bans are often deployed without providing a reason for the block and, if a reason is given, it is usually blocking informational or recreational content about the LGBTQ+ community. Out of all the 240 instances where a block has been deployed, 75% of times no reason was given. In one of these instances, Germany blocked users from searching the word ‘gay’ on Google.

Conceptualizing LGBTQ+ Rights as a useful tool

One of the most meaningful steps that can currently be taken to improve the situation is to further conceptualize LGBTQ+ digital rights and translate those concepts into legal protections. Although LGBTQ+ issues online are an emergent area of research, a comprehensive legal analysis of LGBTQ+ digital rights does not yet exist. Literature and initiatives that acknowledge and bring attention to discrimination against LGBTQ+ individuals online are not generally framed through the lens of basic rights. It is nonetheless critical to find avenues of protection available for LGBTQ+ individuals to afford the community with tools to build their rights claims and to demand remedy when needed. As legal scholar Monika Zalnieriute points out, the shortage of knowledge of the intersection of the LGBTQ+ community and technology results in a lack of resources and data to create effective campaigning strategies.

Choosing the framework of human rights is a very deliberate choice. Human rights is the discourse that most easily lends itself to inclusion and legibility, and it is one of the best frameworks within which to question violations and discrimination. It is not without weakness, though. Human rights expert Ratna Kapur argues that including LGBTQ+ matters in the current human rights framework may prevent queer people from radically questioning heteronormativity. Nonetheless, the purpose of conceptualizing LGBTQ+ digital rights is by no means supposed to be the sole vehicle to advance these concerns. On the contrary, digital rights should empower LGBTQ+ communities to challenge state and corporate power. Far from passively suffering the consequences of censorship (or any other kind of discrimination online), LGBTQ+ individuals have been able to use and mold platform affordances to their advantage and create non-heteronormative cultures that challenge social stereotypes, building communities where individuals can find their own self-expression and mount resistance.

Start by closely examining UN documents on both LGBTQ+ and digital rights. After examining more than 80 UN documents and several ILGA databases, it is clear to me that the UN’s non-binding documents on LGBTQ+ rights and digital rights draw a clear link between these traditionally separate matters. The most relevant human rights that are especially important to LGBTQ+ individuals online are the following:

• The right to privacy, protected under Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights.
• The right to freedom of expression, protected under Article 19 of the UDHR.
• The right to freedom of assembly, protected by article 20 of the UDHR.
• The right to Internet access, recognized by several UNHRC declarations, and other UN documents.
• And the principle of non-discrimination, enriched in the foundations of the rule of law and underpinning almost all international human rights treaties.

On the one hand, although there are many others, traditionally LGBTQ+ rights have been centered around the right to privacy, the right of opinion and expression and the right of peaceful assembly. On the other hand, digital rights have mainly been traditional rights, primarily centered on the right to privacy, freedom of expression, and data protection. Thus, this first-generation right has traditionally been employed for the protection of both LGBTQ+ and digital rights more generally, and it has broadened to encompass LGBTQ+ issues online. The right to privacy, the right to freedom of expression and, to some extent, the right to peaceful assembly–all covered by the overarching non-discrimination principle– are all presented as central to both LGBTQ+ and digital rights. It is only natural that, in their intersection, these rights can attain new dimensions.

Related Reading:

• A/HRC/40/63: Right to privacy, Report of the Special Rapporteur on the right to privacy (United Nations Human Rights Council).
• A/HRC/41/45: Data collection and management as a means to create heightened awareness of violence and discrimination based on sexual orientation and gender identity (United Nations Human Rights Council).
• A/HRC/46/37: Artificial intelligence and privacy, and children’s privacy (United Nations Human Rights Office of the High Commissioner).

With the exception of the right to Internet access, this way of thinking gives first generation human rights a digital rights dimension, and although much of the literature on these matters has a tendency to dismiss first generation rights as more traditional, there is value in this exercise. It is indeed crucial to ascertain the importance of emerging digital rights like the right to Internet access or the right to be forgotten, but the endeavor to acknowledge and conceptualize them as added scope to existing rights gives them a deeper, more inclusive meaning, and it can even aid in making first generation rights a positive obligation by states by reinforcing the need for them to take action.

Adding a new dimension to these rights contributes to moving away from the split between the online and the offline world that scholars point out is an artificial distinction. The conceptualization of digital rights into the existing framework of human rights creates a continuum and an interdependency between violations of human rights in the real world and in digital media. This helps bridge the discourse around how queer communities use the Internet and how they experience discrimination online: the existence of concrete human rights helps in framing the issues LGBTQ+ individuals suffer online, granting legitimacy and a legible legal framework to address them, and providing tools that can be employed to safeguard and ensure the ability of LGBTQ+ individuals to preserve their diverse uses of the internet and digital media. It is widely recognized that ‘technology has empowered the demand for a more accountable governance,’ but for this freedom to be fully enjoyed by social movements and individuals who are typically the target of discrimination, the ability of governments and tech companies to erode people’s digital rights needs to be challenged.

Challenges on the Road Ahead and the Need for Further Action

LGBTQ+ digital rights lie at the complex intersection of the state-centric international law system, and a lack of regulation and accountability for the international, incredibly profitable technology industry. While social media platforms portray themselves as neutral, they facilitate, promote and even profit from censorship and online hate, further ostracizing and eroding the safety of the LGBTQ+ community online and in the real world. There is an irrefutable need for further legal exploration, since the status quo is insufficient. Human rights must be central to Internet governance and design.

Yet, several authors point towards the inherent flaw of human rights thinking that, through its universalizing tendency, can effectively exclude and permit the victimization of some groups. There is thus, a fault in using the human rights discourse that inevitably places most LGBTQ+ individuals under a supposedly universal category, de facto, erasing the richness and diversity of experiences under the queer umbrella. The language of the law often reflects this universality by only referring, generally, to discrimination on the basis of sexuality or gender identity, which generalizes and universalizes principles so as to become ubiquitous.

On top of the critique of the universalizing nature of the human rights language, the current geopolitical landscape gives advantage to a state-centric rule of law and moves away from holding accountable the technical experts behind Internet infrastructure and the executives that define its business models. Current international human rights law fails to demand accountability to ICT companies that are not only enabling access and use of digital technologies, but also shape how interactions happen and whose voices are heard. The current conceptualization of digital rights drawn from the aforementioned UN documents presents a very generic picture of the digital space that, in reality, does not only involve the media, governments and social actors, but also involves a myriad of online platforms with vastly different rule-setting schemes and, most importantly, large information technology corporations like Google, Apple, Facebook, etc. In fact, as Monika Zalneiriute points out, the basic tools of accountability and governance– via both public and legal pressure and demands for transparency– are very limited, with private actors ultimately holding the most power over queer expression and sexual freedom online.

Of course, LGBTQ+ digital rights are somewhat recognized under international human rights law. Despite a general literature pointing towards the invisibility of LGBTQ+ digital rights, UN documents on LGBTQ+ and digital rights do include a substantial amount of mentions of LGBTQ+ issues online, from discrimination, data collection, and censorship of content to larger structural problems, like the need for further inclusion of sexual minorities in Internet governance. Although the examined UN documents allow us to configure LGBTQ+ digital rights using a legitimate source of policy and law-making, it is nonetheless true that these documents are not binding and usually fail to elaborate on the complex issues and threats queer individuals face online.

It is extremely important to remedy and prevent violations of LGBTQ+ digital rights perpetrated by states, but solely focusing on these issues obscures the larger structure that permeates the Internet, social media platforms, and all the interactions that occur in the digital environment. Human rights violations online deserve more scrutiny.

Initiatives to achieve this should, on the one hand, move away from the artificial dichotomy between Western values and others, recognizing that Western states, far from being champions of LGBTQ+ rights, play a concerning role in perpetuating concrete violations of LGBTQ+ digital rights and hold an incommensurate amount of power, and thus responsibility, in the global Internet governance scheme. Any attempt at incorporating LGBTQ+ digital rights should be aimed at contributing to the empowerment and agency of the queer community, and move away from the attempt to fit LGBTQ+ individuals into generic and universal categories.