INTERNATIONAL HUMAN RIGHTS

LAW AND THE CRIMINALIZATION

OF SAME-SEX SEXUAL CONDUCT

ICJ BRIEFING PAPER

MAY 2010
2 ICJ BRIEFING PAPER

I NTRODUCTION
This ICJ Briefing Paper outlines the current state of international law as it relates to
the criminalization of sexual activity between consenting adults of the same sex.

In December 2008, 66 states signed a statement presented to the United Nations

General Assembly that affirmed the principle that international human rights law
protects against violations based on sexual orientation and gender identity.1 A
counter-statement, signed by 57 states, expressed concern “at the attempt to
introduce to the United Nations some notions that have no legal foundations in any
international human rights instrument.” Indeed, a common refrain in the debate over
sexual orientation, gender identity, and human rights is that the very concept of
“sexual orientation” is not part of “universally accepted” human rights discourse.

Much of this debate arises in the context of laws that criminalize sexual activity
between same sex partners. In many countries around the world, sexual conduct
between consenting adults of the same sex is a criminal offence. The punishments
range from a few months in prison to the death penalty. Although in some cases
these laws are a colonial legacy, in others criminal offences or stiffer penalties have
been only recently introduced. The laws are often defended on the grounds of public
morality. Do such laws violate rights guaranteed under international human rights
instruments? In other words, is someone’s sexual orientation or private sexual
activity a matter covered by international law? Does international law really speak to
what people do in their own bedrooms or whom they choose to do it with?

The short answer is yes. A review of international human rights standards and their
authoritative interpretation by treaty bodies and human rights courts makes clear
that the criminalization of same-sex sexual conduct is a violation of rights guaranteed
under international law. Moreover, domestic courts, interpreting the same language
or parallel provisions in domestic constitutions, have also found decriminalization of
same-sex sexual conduct to be required under international law. International law
protects individuals from discrimination based on fundamental personal
characteristics. International law also protects individuals’ private lives and their
decisions to form intimate personal relationships, which includes the right to engage
in sexual activity. Thus sexual orientation is very much a part of human rights law.

The purpose of this ICJ Briefing Paper is to identify and explain the legal sources of
the prohibition on the criminalization of same-sex sexual conduct. While the
Yogyakarta Principles summarize the application of international law to human rights
violations based on sexual orientation and gender identity, the ICJ felt it would be
useful to offer a detailed legal analysis of a single specific issue. 2 Since international
human rights arguments are increasingly being heard in national courts, domestic
jurisprudence is also considered.

1
A/63/635, 22 December 2008. In March 2009, the United States joined the list of
signatories.
2
The criminalization of same-sex sexual activity is of course not the only human rights issue
involved when we speak about sexual orientation and gender identity. By focusing on this
issue, the ICJ does not intend to diminish the importance of other pressing human rights
concerns.
 THE CRIMINALIZATION OF SAME-SEX SEXUAL CONDUCT 3

U NIVERSALITY OF H UMAN R IGHTS

Human rights apply to everyone simply because they are born human. This means
that all human beings, regardless of whether they are lesbian, gay, bisexual or
transgender or intersex, are entitled to the full enjoyment of all human rights. As the
Vienna Declaration and Programme of Action, adopted unanimously by all States at
the World Conference on Human Rights in 1993, states, “Human rights and
fundamental freedoms are the birthright of all human beings; their protection and
promotion is the first responsibility of Governments.”3 This principle of the
universality of all human rights is enshrined in the Universal Declaration of Human
Rights and reflected in all other universal and regional human rights instruments.

 Article 1 of the Universal Declaration of Human Right (UDHR): “All human

beings are born free and equal in dignity and rights. They are endowed
with reason and conscience and should act towards one another in a spirit
of brotherhood.”
 Preamble of the International Covenant on Civil and Political Rights
(ICCPR): “Considering that, in accordance with the principles proclaimed in
the Charter of the United Nations, recognition of the inherent dignity and
of the equal and inalienable rights of all members of the human family is
the foundation of freedom, justice and peace in the world.”
 Article 1 of the European Convention for the Protection of Human Rights
and Fundamental Freedoms: “The High Contracting Parties shall secure to
everyone within their jurisdiction the rights and freedoms defined in
Section I of this Convention.”
 Article 1(4) of the Arab Charter on Human Rights: “The present Charter
seeks, within the context of the national identity of the Arab States and
their sense of belonging to a common civilization, to achieve the following
aims . . . To entrench the principle that all human rights are universal,
indivisible, interdependent and interrelated.”
 Article 19 of the African Charter on Human and Peoples’ Rights: “All
peoples shall be equal; they shall enjoy the same respect and shall have
the same rights. Nothing shall justify the domination of a people by
another.”

Laws that criminalize same-sex sexual activity4 carve out a category of humans for
separate and discriminatory treatment. Although such laws purport to regulate
conduct and not status, the reality is that criminalizing sexual conduct between
partners of the same sex has the effect of marking individuals as criminal on the
basis of their sexual orientation. Thus a conduct crime becomes a status crime.

In Leung v. Secretary for Justice, the High Court of Hong Kong noted, “When a group
of people, such as gays, are marked with perversity by the law then their right to

3
A/CONF.157/23, 12 July 1993, at para. 1.
4
These laws are sometimes referred to as “sodomy laws.” That name, however, is misleading
because some of these laws prohibit sexual activity between consenting female partners and
some laws prohibit any kind of sexual contact between consenting male partners, regardless of
whether it is sodomy.
4 ICJ BRIEFING PAPER

equality before the law is undermined.”5 Or, as Justice O’Connor wrote in her
concurrence in Lawrence v. Texas, in which the U.S. Supreme Court invalidated as
unconstitutional a Texas state law criminalizing anal sex between men, “[T]here can
hardly be more palpable discrimination against a class than making the conduct that
defines the class criminal.”6

Even where laws criminalize the same conduct regardless of the sex of the partners –
as is the case, for example, where anal sex between a man and a woman is
criminalized – their true impact, in the words of Justice Ackermann of the
Constitutional Court of South Africa, is to

punish[] a form of sexual conduct which is identified by our broader society

with homosexuals. Its symbolic effect is to state that in the eyes of our legal
system, all gay men are criminals.7

National courts recognize that human rights are universal. In the 2008 case of
Victor Mukasa and Yvonne Oyo v. Attorney General, the High Court of Uganda at
Kampala heard the case of two individuals who were identified as lesbian and who had
been subjected to arbitrary arrest, detention, and physical mistreatment by law
enforcement officers. The High Court found that the police had violated a number of
human rights instruments, including the Universal Declaration of Human Rights. The
Court then quoted Article 1 in its entirety, thus reaffirming the universality of all
human rights.

T HE R IGHTS TO N ON -D ISCRIMINATION AND E QUALITY

Laws that criminalize same-sex sexual conduct treat individuals differently on the
basis of their sexual orientation.8 Because this difference in treatment cannot be
justified, as courts around the world have recognized, it amounts to discrimination.9
The right to be free from discrimination is guaranteed by international law provisions
on non-discrimination and equal protection of the law. While the right to non-
discrimination protects against discrimination in the enjoyment of other human
rights, the right to equal protection of the laws is an autonomous right. It prohibits
“discrimination in law or in fact in any field regulated and protected by public
authorities.”10

This right to non-discrimination is not limited to enumerated grounds. Every

international and regional human rights instrument that protects against
discrimination includes “other status” or language equivalent thereto.

Non-discrimination in International Law

5
Leung TC William Roy v. Secretary for Justice, High Court of the Hong Kong Special
Administrative Region, 24 August 2005, HCAL 160/2004, at para. 115.
6
Lawrence v. Texas, 539 U.S. 558, 585 (2003) (quoting Romer v. Evans, 517 U.S. 620, 641).
7
National Coalition for Gay and Lesbian Equality v. Minister of Justice, 1998 ZACC 15, at para.
28.
8
The limitations of defining any person by reference exclusively to sexual behavior have been
criticized elsewhere. The conflation of conduct with status, however, persists and it is a
principal reason for courts finding that sexual activity laws are in fact discriminatory.
9
See National Jurisprudence Section for examples of cases from the USA, South Africa, India,
and Fiji.
10
UN Human Rights Committee, General Comment No. 18, 10 November 1989, para. 12.
 THE CRIMINALIZATION OF SAME-SEX SEXUAL CONDUCT 5

 Article 2 of the UDHR: “Everyone is entitled to all the rights and freedoms
set forth in this Declaration, without distinction of any kind, such as race,
colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status.”
 Article 2(1) of the ICCPR: “Each State Party to the present Covenant
undertakes to respect and to ensure to all individuals within its territory
and subject to its jurisdiction the rights recognized in the present
Covenant, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status.”
 Article 2(2) of the International Covenant on Economic, Social and
Cultural Rights (ICESCR): “The States Parties to the present Covenant
undertake to guarantee that the rights enunciated in the present
Covenant will be exercised without discrimination of any kind as to race,
colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status.”
 Article 2 of the African Charter on Human and People’s Rights (African
Charter): “Every individual shall be entitled to the enjoyment of the rights
and freedoms recognised and guaranteed in the present Charter without
distinction of any kind such as race, ethnic group, colour, sex, language,
religion, political or any other opinion, national and social origin, fortune,
birth or any status.”
 Article 1 of the American Convention: “The States Parties to this
Convention undertake to respect the rights and freedoms recognized
herein and to ensure to all persons subject to their jurisdiction the free
and full exercise of those rights and freedoms, without any discrimination
for reasons of race, color, sex, language, religion, political or other
opinion, national or social origin, economic status, birth or any other social
condition.”
 Article 14 of the European Convention: “The enjoyment of the rights and
freedoms set forth in this Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin, association with a
national minority, property, birth or other status.”

Equal Protection in International Law

 Article 26 of the ICCPR: “All persons are equal before the law and are
entitled without any discrimination to the equal protection of the law. In
this respect, 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.”
 Article 3 of the African Charter: “Every individual shall be equal before
the law. Every individual shall be entitled to equal protection of the law.”
 Article 24 of the American Convention: “All persons are equal before the
law. Consequently, they are entitled, without discrimination, to equal
protection of the law.”
6 ICJ BRIEFING PAPER

Although the instruments listed above do not include “sexual orientation” among the
enumerated categories, these categories are clearly intended to be illustrative and
not exhaustive. The use of the phrase “or other status” means that the list of
categories is open-ended. The Explanatory Report to Protocol 12 of the European
Convention explains that the option of expressly including additional grounds, such as
disability or sexual orientation, was rejected

not because of a lack of awareness that such grounds have become

particularly important in today’s societies as compared with the time of
drafting of Article 14 of the Convention, but because such an inclusion was
considered unnecessary from a legal point of view since the list of non-
discrimination grounds is not exhaustive, and because inclusion of any
particular additional ground might give rise to unwarranted a contrario
interpretations as regards discrimination based on grounds not so included.

The UN Committee on Economic, Social and Cultural Rights offered a similar

explanation of the term “other status:”

The nature of discrimination varies according to context and evolves over

time. A flexible approach to the ground of “other status” is thus needed to
capture other forms of differential treatment that cannot be reasonably and
objectively justified and are of a comparable nature to the expressly
recognised grounds in Article 2(2). These additional grounds are commonly
recognised when they reflect the experience of social groups that are
vulnerable and have suffered and continue to suffer marginalisation.11

Decisions of UN treaty bodies interpreting international treaties and regional courts

interpreting parallel non-discrimination provisions make clear that discrimination on
the basis of sexual orientation is prohibited under international law and, furthermore,
that criminalization of same sex conduct is a form of prohibited discrimination.

In the 1994 case of Toonen v. Australia, the UN Human Rights Committee, the body
mandated under ICCPR article 40 with monitoring states’ compliance with its
provisions, found that laws in Tasmania criminalizing consensual same-sex sexual
conduct violated the privacy provision of the ICCPR. The Human Rights Committee
further noted that the reference to “sex” in Articles 2 and 26 were taken as
“including sexual orientation.”12 Later decisions of the Human Rights Committee
have found that discrimination based on sexual orientation violated Article 26.13
Since 1994, the Human Rights Committee has repeatedly called on countries to
repeal laws that penalized consensual same-sex sexual activity.14

11
General Comment No. 20, Committee on Economic, Social and Cultural Rights, 10 June
2009, at para. 27.
12
Toonen v. Australia, Communication No. 488/1992, UN Doc. CCPR/C/50/D/488/1992, 4
April 1994, at para. 8.7.
13
Edward Young v. Australia, Communication No. 941/2000, UN Doc.
CCPR/C/78/D/941/2000, 12 August 2003; X v. Colombia, Communication No. 1361/2005,
UN Doc. CCPR/C/89/1361, 30 March 2007. Relying on Articles 17 and 26 of the Covenant,
the Human Rights Committee has urged Kenya to repeal laws that criminalized homosexuality.
See, e.g., UN Doc. CCPR/CO/83/KEN, 28 March 2005, at para. 27.
14
UN Doc. CCPR/CO/83/KEN, 28 March 2005, at para. 27 (Kenya); UN Doc.
CCPR/C/BRB/CO/3, 11 May 2007, at para. 13 (Barbados); UN Doc. CCPR/CO/76/EGY, 28
November 2002, at para. 19 (Egypt); UN Doc. CCPR/C/79/Add.111, 28 July 1999, at para.
 THE CRIMINALIZATION OF SAME-SEX SEXUAL CONDUCT 7

The UN Committee on the Elimination of Discrimination Against Women, which

oversees the implementation of the Convention on the Elimination of All Forms of
Discrimination Against Women has also expressed concern about laws that classify
sexual orientation as a sexual offence and has recommended that such penalties be
abolished.15

The UN Committee on the Rights of the Child, which monitors States’ compliance
with provisions of the Convention on the Rights of the Child, issued a General
Comment in 2003 explaining that under the non-discrimination provision of Article 2,
prohibited grounds of discrimination included “adolescents’ sexual orientation.”16

The UN Committee Against Torture, in General Comment No. 2, stated the following:

The principle of non-discrimination is a basic and general principle in the

protection of human rights and fundamental to the interpretation and
application of the Convention. . . States parties must ensure that, insofar as
the obligations arising under the Convention are concerned, their laws are in
practice applied to all persons, regardless of . . . sexual orientation,
transgender identity. . . or any other status or adverse distinction.17

Most recently, the UN Committee on Economic, Social and Cultural Rights, which
monitors implementation of the ICESCR, stated that “‘Other status’ as recognized in
article 2(2) includes sexual orientation” and gender identity.18 The Committee had
earlier noted that individuals were protected against discrimination based on sexual
orientation in its general comments on the right to health and the right to water.19

In the 1999 case of Salgueiro da Silva Mouta v. Portugal, the European Court of
Human Rights concluded that the applicant had been discriminated against on the
basis of his sexual orientation, “a concept which is undoubtedly covered by Article
14 of the [European] Convention. The Court reiterates in that connection that the
list set out in that provision is illustrative and not exhaustive, as is shown by the
words ‘any ground such as’ (in French ‘notamment’).”20

16 (Romania); UN Doc. CCPR/C/79/Add.106, 18 April 1999, at para. 13 (Lesotho); UN Doc.

CCPR/C/79/Add.104, 30 March 1999, at para. 20 (Chile); UN Doc. C/79/Add.85, 29 July
1997, at para. 8 (Sudan).
15
Concluding Observations on Kyrgyzstan, UN Doc. A/54/38, 20 August 1999, at para. 128.
CEDAW has also commended states for enacting laws protecting against discrimination on the
basis of sexual orientation. Concluding Observations on Sweden, UN Doc. A/56/38, 31 July
2001, at para. 334; Concluding Observations on Ecuador, UN Doc. CEDAW/C/ECU/CO/7, 2
November 2008, at para. 28.
16
Committee on the Rights of the Child, General Comment 4, UN Doc. CRC/GC/2003/4, 1 July
2003, at para. 6.
17
Committee Against Torture, General Comment 2, UN Doc. CAT/C/GC/2,
24 January 2008, at para. 21.
18
Committee on Economic, Social and Cultural Rights, General Comment 20, UN Doc.
E/C.12/GC/20, 10 June 2009, at para. 32.
19
See General Comment No. 14, UN Doc. E/C.12/2000/4, 11 August 2000, at para. 18; and
General Comment No. 15, UN Doc. E/C.12/2002/11, 20 January 2003, at para. 13.
20
Judgment of 21 December 1999, Case of Salgueiro da Silva Mouta v. Portugal, Application
No. 33290/96, at para. 28.
8 ICJ BRIEFING PAPER

In Zimbabwe NGO Human Rights Forum v. Zimbabwe, the African Commission on

Human and Peoples’ Rights observed: “Together with equality before the law and
equal protection of the law, the principle of non-discrimination provided under Article
2 of the Charter provides the foundation for the enjoyment of all human rights . . .
The aim of this principle is to ensure equality of treatment for individuals irrespective
of nationality, sex, racial or ethnic origin, political opinion, religion or belief, disability,
age or sexual orientation.”21

At the domestic level, the reasoning of the Supreme Court of Canada is instructive.
Section 15 of the Charter of Rights and Freedoms guarantees equality and prohibits
discrimination on certain enumerated grounds. In a series of cases, the Supreme
Court has identified analogous grounds that also qualify for protection against
discrimination. In Egan v. Canada, the Court held that sexual orientation was an
analogous ground to the ones enumerated in section 15 of the Charter.22 In Corbiere
v. Canada, the Supreme Court explained:

[W]hat these grounds have in common is the fact that they often serve as
the basis for stereotypical decisions made not on the basis of merit but on
the basis of a personal characteristic that is immutable or changeable only at
unacceptable cost to personal identity. . . .To put it another way, s. 15
targets the denial of equal treatment on grounds that are actually immutable,
like race, or constructively immutable, like religion.23

Similar reasoning has been used by the Constitutional Court of South Africa. In
addition to the grounds specified in the equality provision of the Constitution, a
difference in treatment amounts to “discrimination on an unspecified ground if it is
based on attributes or characteristics which have the potential to impair the
fundamental dignity of persons as human beings, or to affect them adversely in a
comparably serious manner.”24

Furthermore, arresting or detaining someone under a provision that criminalizes

same-sex sexual activity also violates rights under international law. Arrest or
detention on the basis of sexual orientation constitutes an arbitrary deprivation of
liberty. On several occasions, the UN Working Group on Arbitrary Detention has
explained that the detention and prosecution of individuals “on account of their
homosexuality” is arbitrary because it violates the ICCPR’s guarantees of “equality
before the law and the right to equal legal protection against all forms of
discrimination, including that based on sex.”25

21
Communication 245/2002 – Zimbabwe Human Rights NGO Forum/Zimbabwe, 21st Activity
Report, EX.CL/322(X), Annexure III at para. 169.
22
Egan v. Canada, [1995] 2 S.C.R. 513 at 528.
23
Corbiere v. Canada, (1999), 2 S.C.R. 203, at para. 13.
24
Harksen v. Lane, (19997) ZACC 12, at para. 46.
25
Report of the Working Group on Arbitrary Detention, UN Doc. E/CN.4/2004/3, 15
December 2003, para. 73; see also Working Group on Arbitrary Detention, Opinion No. 7/2002
(Egypt), para. 27, UN Doc. E/CN.4/2003/8/Add.1; Opinion No. 22/2006 (Cameroon), para.
19, UN Doc. A/HRC/4/40/Add.1.
 THE CRIMINALIZATION OF SAME-SEX SEXUAL CONDUCT 9

T HE R IGHT TO P RIVACY
Just as individuals are protected from discrimination on grounds of sexual
orientation, sexual activity between consenting adults is protected from interference
by the right to privacy.

 Article 12 of the UDHR: “No one shall be subjected to arbitrary

interference with his privacy, family, home or correspondence, nor to
attacks upon his honour and reputation. Everyone has the right to the
protection of the law against such interference or attacks.”
 Article 17(1) of the ICCPR: “No one shall be subjected to arbitrary or
unlawful interference with his privacy, family, or correspondence, nor to
unlawful attacks on his honour and reputation.”
 Article 11(2) of the American Convention: “No one may be the object of
arbitrary or abusive interference with his private life, his family, his home,
or his correspondence, or of unlawful attacks on his honor or reputation.”
 Article 8 of the European Convention: “Everyone has the right to respect
for his private and family life, his home and his correspondence. There
shall be no interference by a public authority with the exercise of this
right except such as in accordance with the law and is necessary in a
democratic society in the interests of national security, public safety or
the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
 Article 21 of the Arab Charter: “No one shall be subjected to arbitrary or
unlawful interference with regard to his privacy, family, home or
correspondence, nor to unlawful attacks on his honour or his reputation.”
 Article 11(2) of the American Convention on Human Rights: “No one may
be the object of arbitrary or abusive interference with his private life, his
family, his home, or his correspondence, or of unlawful attacks on his
honor or reputation.”

As long ago as 1981, the European Court found that such laws violated the privacy
provision of the European Convention. Specifically, in Dudgeon v. United Kingdom,
the European Court held that laws that criminalized sexual acts between consenting
adult males constituted an “unjustified interference with [the applicant’s] right to
respect for his private life” and thus breached Article 8 of the European
Convention.26 The European Court has consistently reaffirmed this holding.27

In 1994, in finding that the Tasmanian penal code was inconsistent with Australia’s
human rights obligations under the ICCPR, the Human Rights Committee noted, “[I]t
is undisputed that adult consensual activity in private is covered by the concept of
‘privacy.’”28

26
Dudgeon v. United Kingdom, Application No. 7525/76, Judgment dated 23 September
1981, at para. 63. Article 8 provides: “Everyone has the right to respect for his private and
family life, his home and his correspondence.”
27
See, e.g., Norris v. Ireland, Application No. 10581/83, Judgment dated 26 October 1988;
Modinos v. Cyprus, Application No. 15070/89, Judgment dated 22 April 1993.
28
Toonen v. Australia at para. 8.2.
10 ICJ BRIEFING PAPER

It is important to recognize that privacy is both spatial – the home and the bedroom
are places that the State may not invade without compelling cause – and also
decisional. Thus a person is entitled to privacy for decisions he or she makes about
personal relationships and activities. In Lawrence v. Texas, which held
unconstitutional a Texas state law criminalizing sexual conduct between men, the
U.S. Supreme Court explained that decisional privacy involves “the most intimate and
personal choices a person may make in a lifetime, choices central to personal dignity
and autonomy.”29

In National Coalition for Gay and Lesbian Equality, the Constitutional Court of South
Africa held:

Privacy recognises that we all have a right to a sphere of private intimacy and
autonomy which allows us to establish and nurture human relationships
without interference from the outside community. The way in which we give
expression to our sexuality is at the core of this area of private intimacy. If, in
expressing our sexuality, we act consensually and without harming one
another, invasion of that precinct will be a breach of our privacy.30

N ATIONAL J URISPRUDENCE
The European Court of Human Rights decided the case of Dudgeon v. United Kingdom
in 1981 and the UN Human Rights Committee issued its decision in Toonen v.
Australia in 1994. In more recent years, a number of national courts have heard
challenges to laws criminalizing same-sex sexual activity. 31

National court decisions striking down these criminal laws share several common
features. First, in addition to finding that such laws violate rights to privacy and
equality, courts also pay attention to the concept of dignity. Dignity, which is closely
related to privacy, is protected in many national constitutions as well as the African
Charter on Human and Peoples’ Rights. Article 5 of the Charter provides in part:
“Every individual shall have the right to respect of the dignity inherent in a human
being and to the recognition of his legal status.”

In National Coalition for Gay and Lesbian Equality, the Constitutional Court of South
Africa held that “the constitutional protection of dignity requires us to acknowledge
the value and worth of all individuals as members of our society.” The Court then
concluded:

29
Lawrence v. Texas, U.S. Supreme Court, 539 U.S. 558, 574, 26 June 2003.
30
National Coalition for Gay and Lesbian Equality, at para. 32.
31
See National Coalition for Gay and Lesbian Equality v. Minister of Justice, South Africa
Constitutional Court,1998 ZACC 15, 9 October 1998; Lawrence v. Texas, U.S. Supreme Court,
539 U.S. 558, 26 June 2003; Nadan & McCoskar v. State, High Court of Fiji at Suva, 26
August 2005; Naz Foundation v. Government of NCT of Delhi and Others, High Court of Delhi
at New Delhi, WP(C) No. 7455/2001, 2 July 2009. In Hong Kong, recent decisions have
struck down as discriminatory provisions related to differing ages of consent and public sexual
activity between same-sex partners. See Leung v. Secretary for Justice, CACV 317/2005, 20
September 2006, and Secretary for Justice v. Yau and Another, FACC No. 12 of 2006, 17 July
2007. In Nepal, the Supreme Court ruled that transgender individuals should be recognized as
a third gender should be recognized and protected from discrimination. See Writ No. 917 (Blue
Diamond Society), 21 December 2007.
 THE CRIMINALIZATION OF SAME-SEX SEXUAL CONDUCT 1
1
Just as apartheid legislation rendered the lives of couples of different racial
groups perpetually at risk, the sodomy offence builds insecurity and
vulnerability into the daily lives of gay men. There can be no doubt that the
existence of a law which punishes a form of sexual expression for gay men
degrades and devalues gay men in our broader society. As such it is a
palpable invasion of their dignity and a breach of section 10 of the
Constitution.32

Similarly, the High Court of Delhi at New Delhi recently found that Section 377 of the
Indian Penal Code (IPC), which criminalized consensual same-sex sexual conduct, was
unconstitutional. In explaining the concept of dignity, the Court stated, “At the root
of the dignity is the autonomy of the private will and a person’s freedom of choice
and of action.”33 The Court held that Section 377 “denies a person’s dignity and
criminalises his or her core identity solely on account of his or her sexuality . . . As it
stands, Section 377 IPC denies a gay person’s right to full personhood which is
implicit in the notion of life under Article 21 of the Constitution.” 34

Second, the courts squarely confront and reject public morality as a claimed
justification for laws that criminalize same-sex sexual activity. In general, the courts
reason that public morality, when applied to behavior that is consensual and causes
no harm, is a thin veil for prejudice. Writing for the majority in Lawrence v. Texas,
Justice Kennedy stated that considerations about morality “do not answer the
question before us, however. The issue is whether the majority may use the power of
the State to enforce these views on the whole society through operation of the
criminal law. Our obligation is to define the liberty of all, not to mandate our own
moral code.” In her concurrence, Justice O’Connor wrote:“[L]egal classifications
must not be drawn for the purpose of disadvantaging the group burdened by the law.
Texas’ invocation of moral disapproval as a legitimate state interest proves nothing
more than Texas’ desire to criminalize homosexual sodomy. . . . And because Texas
so rarely enforces its sodomy law as applied to private, consensual acts, the law
serves more as a statement of dislike and disapproval against homosexuals than as a
tool to stop criminal behavior.”35

In National Coalition for Gay and Lesbian Equality, Justice Ackermann wrote: “The
enforcement of the private moral views of a section of the community, which are
based to a large extent on nothing more than prejudice, cannot qualify as such a
legitimate purpose. There is accordingly nothing, in the proportionality enquiry, to
weigh against the extent of the limitation and its harmful impact on gays. It would
therefore seem that there is no justification for the limitation.”36

Likewise, in Naz Foundation v. Union of India, the High Court of Delhi at New Delhi
rejected the argument that Section 377 had the legitimate purpose of protecting
public morality. “The criminalisation of private sexual relations between consenting
adults absent any evidence of serious harm deems the provision’s objective both
arbitrary and unreasonable. The state interest ‘must be legitimate and relevant’ for

32
National Coalition for Gay and Lesbian Equality at para. 28.
33
Naz Foundation at para 26.
34
Naz Foundation at para. 48.
35
Lawrence v. Texas, 539 U.S. at 583.
36
National Coalition for Gay and Lesbian Equality at para. 37.
12 ICJ BRIEFING PAPER

the legislation to be non-arbitrary and must be proportionate towards achieving the

state interest. If the objective is irrational, unjust and unfair, necessarily the
classification will have to be held as unreasonable. The nature of the provision of
Section 377 IPC and its purpose is to criminalise private conduct of consenting adults
which causes no harm to anyone else. It has no other purpose than to criminalise
conduct which fails to conform with the moral or religious views of a section of
society.”37

In Nadan and McCoskar v. State, the High Court of Fiji held, “Despite the margin of
appreciation given to the State to restrict sexual acts on the grounds of morality, the
suggested limitations by criminal sanction are wholly disproportionate to the right of
privacy. The criminalization of carnal acts against the order of nature between
consenting adult males or females in private is a severe restriction on a citizen’s right
to build relationships with dignity and free of State intervention and cannot be
justified as necessary.”38

A third common feature is the extent to which diverse national courts rely upon
international human rights law in reaching their conclusions. Although none of the
courts sit in Member States belonging to the Council of Europe, they quote cases
from the European Court of Human Rights, including Dudgeon v. United Kingdom.
They refer to the reasoning of the UN Human Rights Committee in Toonen v.
Australia. They cite international instruments such as the Universal Declaration of
Human Rights and the International Covenant on Civil and Political Rights, in their
analyses of non-discrimination and privacy. In short, the courts view their obligation
to interpret domestic law in conformity with international human rights law as
requiring the invalidation of laws that criminalize same-sex sexual activity. For these
courts, the fact that international instruments do not explicitly contain the words
“sexual orientation” is of no moment. To them it is clear that international human
rights law, in practice, protects individuals from discrimination on the basis of their
sexual orientation.

C ONCLUSION
The argument that sexual orientation and private sexual activity are not protected by
international human rights law is based on a series of false assumptions. The first is
that the listing of prohibited grounds of discrimination contained in international
instruments is a closed one. To the contrary, in every international and regional
human rights treaty, the drafters were careful to ensure that the lists were open-
ended. The second is that treaty bodies and courts play no role in the development
of international law. Yet just as constitutional courts contribute to our
understanding of national constitutions as “living” texts that must be interpreted in
light of present-day conditions, so too do treaty bodies and regional human rights
courts. The authoritative jurisprudence of these bodies is part of international law.
Finally, the argument that sexual orientation is not part of “universally recognized”
human rights ignores the first principle of human rights law – which is that human
rights are universal.

37
Naz Foundation at para. 92.
38
Nadan and McCoskar v. State.