Criminalization on the Basis of Sexual Orientation and Gender Identity: Reframing the Dominant Human Rights Discourse to include Freedom from Torture and Inhuman and Degrading Treatment

Abstract

This article examines the evolving discourse under the international human rights legal framework regarding laws that criminalize people on the basis of their actual or perceived non-normative sexual orientation and/or gender identity. Legislation typically outlaws specific types of sexual activity or any sexual activity between persons of the same sex. Some laws specifically dictate adherence to a gender identity and/or gender expression according to a traditional notion of a male/female binary by banning conduct such as “imitating the appearance of the opposite sex.” These laws have predominantly been interpreted by United Nations human rights mechanisms, regional human rights mechanisms, and national courts as a breach of the rights to privacy, equality, and non-discrimination. However, some mechanisms and courts are increasingly acknowledging the impact of these criminal sanctions on the right to freedom from torture and other cruel, inhuman, or degrading treatment. In particular, these mechanisms and courts are demonstrating a greater understanding of the ways in which such criminalization serves to foster and reinforce the stigmatization of lesbian, gay, bisexual, transgender, and intersex (LGBTI) individuals and increases their vulnerability to inhuman and degrading treatment and, in some cases, torture. The evolution of this discourse is important because, in appropriate cases, the assertion of the non-derogable, customary law prohibition against torture and other cruel, inhuman, or degrading treatment may provide legal recourse to those challenging LGBTI criminalization in the national context where it would not otherwise be available under the privacy/equality/non-discrimination paradigm. Moreover, in instances where the persecutory impacts of LGBTI criminalization are being assessed in refugee claims based on sexual orientation and/or gender identity, decision makers can be encouraged not only to look at the number of prosecutions but also to assess specific information about the way such criminalization reinforces the vulnerability of LGBTI asylum seekers to inhuman and degrading treatment and sometimes torture.