Abstract:
Within the last sixty years, there has been a noticeable trend towards the decriminalization of the gay and lesbian community. A great number of nation-states have repealed their anti-sodomy laws, and a number of those States have affirmed their reasoning for doing so in public international agreements or statements recognizing the human right to engage in adult consensual same-sex relations. With the abundance of the recent repeals, academics, judges, and persons interested in international law have discussed the emergence of a customary international law norm prohibiting State-sponsored anti-sodomy laws. However, the discussion of the existence of the norm has revolved around the right to privacy, as many of the States’ anti-sodomy laws were repealed through nations’ right to privacy laws.
While there may be a customary international law norm protecting the right to privacy, it does not necessarily follow that it includes the right to engage in same-sex activity. An assessment of customary international law rules, then, is essential to establishing whether a prohibition on State-sponsored anti-sodomy laws is present notwithstanding the arguments encompassing the norm under the right to privacy. Because customary international law rules are difficult to ascertain, a practical approach to locating a customary rule is needed. Comparing the proposed norm with a crystallized customary international law rule and a norm that did not fully reach the stage of crystallization provides a useful assessment for determining where the norm is currently located and predicting whether it will crystallize in the future. Additionally, a closer look at whether there is support for a regional customary international law norm emerging is necessary. The debate about the existence of a norm prohibiting State-sponsored anti-sodomy laws has not yet touched on this issue.
Noting that international human rights law imposes an absolute prohibition of discrimination in regard to the full enjoyment of all human rights, civil, cultural, economic, political and social, that respect for sexual rights, sexual orientation and gender identity is integral to the realization of equality between men and women and that States must take measures to seek to eliminate prejudices and customs based on the idea of inferiority or the superiority of one sex or stereotyped roles for men or women, and noting further that the international community has recognized the right of persons to decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free from coercion, discrimination and violence.