This Expert Column is part of a series that examines the role of strategic litigation in advancing sexual and reproductive rights across different regions. The series offers an intersectional analysis of key concepts, achievements, impacts, and challenges in strategic litigation, aiming to amplify these efforts and share valuable lessons learned to strengthen advocacy and legal frameworks globally.

The right to sexual and reproductive health is an integral part of the right to health, and it is fundamental to the overall health and well-being of individuals, couples, and families, as well as the social and economic development of communities and countries. Sexual and reproductive health is not solely linked to the human ability to reproduce; it encompasses various aspects of life experience and requires an inclusive approach to the needs of all individuals in their diverse conditions, with the goal of “leaving no one behind.”

As the United Nations Special Rapporteur on the Right to Health, I have consistently emphasized the importance of centering substantive equality in implementing the right to health. Achieving this requires an unwavering commitment to the universal principles of human rights as articulated in the Universal Declaration of Human Rights and other key international instruments, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, and the Durban Declaration and Programme of Action. These frameworks are essential to effectively combating racism, racial discrimination, xenophobia, and related forms of intolerance, as well as addressing the systemic barriers that prevent individuals from accessing their rights on an equal footing.

At the core of this commitment lies substantive equality, which goes beyond formal equality by addressing structural and indirect discrimination and recognizing the complexities of power dynamics. Substantive equality also acknowledges the “dilemma of difference,” navigating the balance between ignoring and acknowledging differences among individuals to achieve true equality.

It becomes necessary to recognize that, in accessing sexual and reproductive rights, individuals constantly face a series of interrelated and entrenched obstacles that operate at different levels and overlap according to every individual characteristic. In this way, people face obstacles — ranging from access to medical care to access to sexual education or violence-free environments to live their sexuality — which frequently reflect social inequalities and power distributions based on income, gender, origin, citizenship status, age, disability status, systematic discrimination, and other factors.

This intricate relationship between social inequities and access to rights necessitates an understanding that sexual health-related issues encompass a broad spectrum of situations — including sexual orientation and gender identity, sexual expression, relationships, and pleasure. Addressing these issues demands a holistic approach that recognizes these intersections — ensuring that we truly “leave no one behind.”

In this quest for substantive equality in accessing sexual and reproductive rights, social movements across the globe have played a pivotal role. In various regions, organized groups of women, the LGBTQIA+ community, and people with disabilities, among others, have brought issues related to sexual and reproductive rights before national and international courts and organizations through different legal resources. Despite their diverse approaches, these movements have all used strategic litigation in their initiatives toward a common objective: enhancing access to sexual and reproductive health for all.

Strategic litigation can be understood as “the litigation of a public interest case that will have a broad impact on society beyond the specific interests of the parties involved.” Social movements have widely employed this strategy to advance their agendas on various issues. Some of the earliest instances include the civil rights movement in the United States, as exemplified by landmark cases about access to education or public spaces.

Social organizations around the world are actively litigating to ensure states fulfill their obligations to respect, protect, and guarantee rights. Using innovative strategies from various fronts, they aim to hold governments accountable. Strategic litigation plays a pivotal role in driving broader societal change through the legal system. It not only seeks favorable resolutions in specific cases but also amplifies their impact. These efforts elevate the voices of vulnerable groups, adopt a victim-centered perspective, influence public opinion, and serve as a critical force in advancing democratic reform.

Specifically in the realm of sexual and reproductive rights, it has been pivotal in driving public discourse on critical issues, such as access to abortion, assisted reproductive technologies, and reparations for acts of gender and sexual violence. Because of these efforts, we can now find a robust body of jurisprudence on the topic that has influenced how countries approach the issue from judicial and policy perspectives. Sexual and reproductive health issues also concern other human rights topics due to the interdependence of human rights and the intersectional approach used. Consequently, advancing this type of litigation has implications and impacts on the access of many groups in their struggles.

As sexual and reproductive rights face unprecedented challenges today, I intend to write a series of Expert Columns to review the lessons learned, address unresolved challenges, discuss changes in this field, and offer reflections based on studying this issue in different regions. Focusing on strategic litigation by region will provide specific insights into relevant issues worldwide, highlight some of the most important cases, and examine how organizations and groups have responded.

Through this study, I will analyze how strategic litigation has been used as a means for change, emphasizing that the law can be a catalyst and a strong ally in achieving the goals of social movements. Further, it can be a vital means of countering transnational anti-gender and anti-human rights attacks on sexual and reproductive health rights and bodily autonomy as a whole.

This Expert Column series will advance key sociopolitical issues within the realm of the right to health, such as sexual and reproductive health rights, policy and programs, sexuality and gender-based violence, health equity, and noncommunicable diseases, using anti-racist, anti-coloniality, and intersectional frameworks. Consequently, the litigation cases we will examine encompass a comprehensive understanding of the right to health.

The author would like to thank Isabel Rubio for her research support.

DISCLAIMER: The views and opinions expressed in this piece are those of the author and do not reflect the views of the O’Neill Institute.