The criminalization of sexual minorities in international human rights law: an appraisal

Through the lens of international human rights law (IHRL), this article critically examines the domestic statutes that criminalize sexual orientation, gender identities and expressions, and sexual characteristics that deviate from the heteronormative model (SOGIESC). These statutes, which have been traditionally justified through the enforcement of religious and moral standards, the protection of children, and the defence of local culture against foreign influence, have dramatically expanded in the last two decades. This article assesses their compatibility with IHRL, ultimately finding that they do not comply. The analysis demonstrates that domestic and supranational courts and bodies have interpreted the relevant treaty provisions in an evolutive manner by recognizing SOGIESC as a discursive category within IHRL. This interpretation commands decriminalization. The authors conclude that the limitation clauses in these treaties do not permit states from opting out of their obligations concerning SOGIESC, not even when local culture is allegedly at stake. Against the cultural sovereignty claims that certain states have recently raised to justify an escalation in the criminalization of SOGIESC, this article explains that these claims have failed their test against the standards set by IHRL.