2. International Human Rights Commitments Sexual orientation is a deeply rooted aspect of each individual’s personality. Rules that make distinctions based on sexual orientation constitute a challenge not only to the principle of non-discrimination but also to the right to privacy. Prohibition of discrimination Art. 26 of the International Covenant on Civil and Political Rights affirms that: the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status. As the UN Human Rights Committee has concluded, Art. 26 “prohibits discrimination in law or in fact in any field regulated and protected by the public authorities”, whether or not the legislation covers a right guaranteed in the covenant.278 Though Art. 26 of the ICCPR does not make explicit reference to discrimination based on sexual orientation, the Human Rights Committee has interpreted the ICCPR’s prohibition on discrimination based on sex to include discrimination on the basis of sexual orientation.279 The principle of non-discrimination is reaffirmed in Art. 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and in Art. 13 of the Treaty establishing the European Union, which mandates the Council to take appropriate action to combat discrimination based, among other things, on sexual orientation. On the basis of this article, the Council of the European Union adopted an EU employment directive that establishes a general framework for equal treatment in employment and occupation matters and adequate means of legal protection in cases of discrimination.280 The directive stipulates that discrimination based on, inter alia, sexual orientation, is forbidden. Art. 3, which defines the scope of the directive, states that the directive applies to the entire public and private sector, and there appears to be no exception for national security. According to the same article, armed forces of EU member states are only allowed to discriminate on the basis of age or disability in order to safeguard combat effectiveness.281 This implies that sexual orientation cannot be a justification for banning gays and lesbians from working in the armed forces.282 The prohibition of discrimination does not mean that no distinctions are permissible. The directive recognizes that, in very limited circumstances, a difference of treatment may be justified where a characteristic related to “religion or belief, disability, age or sexual 278  United Nations, Office of the High Commissioner for Human Rights, Human Rights Committee, “General Comment 18: Non discrimination”, para. 12, 37th session, 1989, in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.1, p. 26, 1994. 279  Nicholas Toonen v. Australia, United Nations Human Rights Committee, 4 April 1994, International Human Rights Reports, Vol. 1, 1994, p. 97. 280  Art. 3.4: “Member States may provide that this Directive, in so far as it relates to discrimination on the grounds of disability and age, shall not apply to the armed forces.” See <http://ec.europa.eu/employment_social/ news/2001/jul/directive78ec_en.pdf>. 281  Ibid., Arts. 1, 3.1, and 3.4. 282  Bearing in mind the now sceptical attitude of international judges to claims that the presence of gays and lesbians in the armed forces affects efficiency or morale, such a claim is very unlikely to succeed. See Lustig-Prean and Beckett v. the United Kingdom, op. cit., note 4, p. 548. 132 Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel