Cumulative Jurisprudence and Human Rights: The Example of Sexual Minorities and Hate Speech

Abstract:     
Non-discrimination norms in human rights instruments generally enumerate specified categories for protection, such as race, ethnicity, sex or religion, etc. They often omit express reference to sexual minorities. Through open-ended interpretation, however, sexual minorities subsequently become incorporated. That ‘cumulative jurisprudence’ yields protections for sexual minorities through norms governing privacy, employment, age of consent, or freedoms of speech and association. Hate speech bans, too, are often formulated with reference to traditionally recognised categories, particularly race and religion. It might be expected that the same cumulative jurisprudence should therefore be applied to include sexual minorities. In this chapter, that approach is challenged. Hate speech bans suffer from inherent flaws. They either promote discrimination by limiting the number of protected categories, or, by including all meritorious categories, would dramatically limit free speech. Sexual minorities within longstanding, stable and prosperous democracies should generally enjoy all human rights, but should not necessarily seek the protections of hate speech bans.

Keywords: discrimination, free speech, gay rights, hate speech, human rights jurisprudence, minorities, sexual minorities

JEL Classifications: K1

Accepted Paper Series