Cumulative jurisprudence and human rights: the example of sexual minorities and hate speech

Abstract

Leading non-discrimination norms in post-1945 human rights instruments have generally enumerated specified categories for protection, such as race, ethnicity, sex, and religion. They have often omitted express reference to sexual minorities. However, through ‘such as’ or ‘other status’ clauses, or otherwise open-ended phrasing or interpretation, such instruments have generated a ‘cumulative jurisprudence’, whereby sexual minorities subsequently become incorporated through analogical reasoning. That cumulative jurisprudence has yielded protections for sexual minorities through norms governing, e.g., privacy, employment, age of consent, and freedoms of speech and association. Hate speech bans, too, have often been formulated with reference only to more traditionally recognised categories, particularly race and religion, rarely making express reference to sexual minorities. It might therefore be expected that the same cumulative jurisprudence should be applied, such that their scope might be extended to encompass sexual minorities. In this paper, however, that approach is challenged. It is argued that hate speech bans suffer in themselves from deep flaws. Either they promote discrimination by limiting the number of protected categories, or, by including all meritorious categories, they would dramatically limit free speech. While sexual minorities within longstanding, stable and prosperous democracies should generally enjoy all human rights, it is argued that they should not seek the protection of hate speech bans, which run real risks of betraying fundamental principles of human rights law.