State regulation of sexuality in international human rights law and theory.

Author:Fellmeth, Aaron Xavier


In Part I, this Article presents the first published, worldwide survey of international practice in interpreting and applying various international human rights norms to the issue of sexual freedom, with a special emphasis on the rights to privacy, family life, and freedom from arbitrary discrimination based on sexual orientation. Although progress toward general recognition of such rights by international authorities and states has been extremely rapid over a very short period, such recognition continues to vary geographically and according to the subject matter. For example, some rights, such as the right to consensual, adult, private intercourse have achieved more widespread recognition than others, such as equal rights to nondiscrimination in employment or equal access to marriage. The respective roles of legislative and judicial reforms in these developments are explored in this part as well. In Part II, the Article analyzes the rationales adopted by state elites for accepting or denying equal rights to sexual minorities and discerns a trend toward a complex approach of sometimes applying libertarian theories of human rights law, sometimes applying increasingly nuanced nondiscrimination norms, and sometimes using both approaches at once. Countervailing pressures, especially widespread religious opposition to the recognition of equal human rights, as well as the problems of using libertarian theories, are explored. The Article further discusses the limits of the role that international human rights law has played in the evolution of state practice on this subject and explains how international human rights law is balanced unstably between the incomplete application of human rights to sexual minorities and the disadvantages of logical and theoretical inconsistency in human rights doctrine. It concludes by observing how the case of evolving human rights in this field illustrates the potential power of ideational norms in shaping state expectations and behavior.

TABLE OF CONTENTS I. THE TROUBLED RELATIONSHIP BETWEEN SEXUALITY AND HUMAN RIGHTS LAW A. Decriminalization of Unconventional Sexual Behavior B. Nondiscrimination 1. Comprehensive Prohibitions 2. Limited Prohibitions 3. Military Service 4. Protection Against Persecution C. Moves Toward Family Law Rights 1. Same-Sex Marriage 2. Equal Parental Rights II. INTERNATIONAL HUMAN RIGHTS THEORY AND SEXUALITY A. Sexual Minority Group Discrimination Theories B. Legal Moralism, the Harm Principle, and Privacy 1. The Harm Principle in State Practice 2. Social Benefits of Punishing Immorality 3. Sexuality, Religion, and Human Rights C. Intimate Exceptionalism and Opinio Iuris CONCLUSIONS I. THE TROUBLED RELATIONSHIP BETWEEN SEXUALITY AND HUMAN RIGHTS LAW

A large part of the international community continues to deny many of the protections of human rights law to homosexuals, bisexuals, and other sexual minorities. Few states do so in the conviction that sexual minorities lack the same basic human needs as everyone else. Nor, if they are forthright, do states deny them human rights because they believe sexual minorities undermine national security, economic prosperity, or other legitimate state interests. Nor yet do they do so because sexual minorities infringe on the human rights of others by their intimate personal choices and conduct. They do so primarily because political elites or their constituents, or both, are offended by unconventional sexuality for cultural and religious reasons.

It may seem strange that most of the world's states systematically deny millions of individuals equal treatment and vigorously force them into the position of an underclass, causing them humiliation and material disadvantage in life, because of preferences so minutely affecting anyone but themselves. Unraveling the mystery of how so many states have arrived at the conclusion that the perceived evils caused by the unconventional sexuality of a few outweigh that minority's fundamental human rights to freedom of conscience and speech, public and intimate association, privacy, and family life teaches much about the underlying theories of international human rights law that states practice within their own borders. Additionally, a close view of the conflict between majority prejudices and minority claims for equal rights in this case offers lessons about how states cope with opposition in their internal power structures against evolving norms of the international community.

Part of the explanation may be implicit in the rationales offered by the states that have recently reversed longstanding positions on the human rights of sexual minorities. The acceptance within the international community that some, if not all, international human rights laws should protect sexual minorities specifically, and unconventional sexual practices generally, is both recent and radical. While the decriminalization of homosexual intercourse spread throughout most of western Europe in the nineteenth century, it remained widely illegal elsewhere until the end of the twentieth century. Most laws taking the further step of prohibiting discrimination against sexual minorities and recognizing equal rights to family life date back less than twenty years almost everywhere they have been adopted. Why, then, the sudden change of attitude? Does it merely reflect changing social perceptions of sexual minorities in some geographical regions? If so, are international human rights sufficiently flexible to accommodate the sacrifice of minority group interests in every case of majority disapproval, so long as that disapproval is framed in moral or cultural terms? Or is international law evolving toward requiring principled limitations on lawmaking by states whenever their laws and policies threaten human rights? If so, are sexuality and intimacy treated differently, and should they be treated differently, than other human interests? A study of the rapid expansion of human rights to sexual minorities in the international community offers important insights into the answers to these questions.

This study is complicated by the lack of specificity on sexual matters in the major international human rights instruments. Far from offering clear guidance on the content of human rights law relating to sexuality, these documents merely state general norms of personal and familial privacy and free association intended to protect individuals from arbitrary government intrusion into intimate relations. Most of these instruments include express guarantees of freedom of association, (1) rights against arbitrary or unlawful interference with privacy, (2) and protection of family life and the right to marry. (3) In this context, the right to privacy is usually construed not merely as the freedom to maintain secrecy, but as freedom of intimate conduct, association, and expression without fear of arbitrary state interference. (4) These rights have obvious, but as yet largely unrealized, implications for sexual minorities and others who practice unconventional sexuality.

Another accepted norm of international human rights law is nondiscrimination in the protection of human rights or grant of state benefits based on specific intellectual, cultural, or physical attributes of a class of persons, such as race or sex. The major human rights instruments do not necessarily guarantee uniformly the same kinds of rights or interests from the same kinds of discrimination, but they contain catch-all protected categories requiring state parties to guarantee all of the human rights set forth in the respective instruments without distinction based on sex, birth, or "other status." (5) With the notable exception of the ECHR, these instruments extend the nondiscrimination obligation beyond the rights enumerated in each respective instrument to encompass unequal treatment under any law. (6) Like the guarantees of privacy, association, and family life, this guarantee would seem to offer sound protection against arbitrary discrimination based on sexual orientation or sexual minority status, but it has been interpreted this way only recently and not uniformly. (7)

A single major human rights instrument--the European Charter of Fundamental Rights and Freedoms of the European Union (European Charter)--grants explicit rights to nondiscrimination based on sexual orientation or sexual minority status. (8) Sexual minorities get cold comfort even from this concession; the European Charter applies only to the limited membership of the EU (9) and is not legally binding even there. (10) At best, it may be used as an interpretive resource for other EU sources of law. Nonetheless, together, the norms of free intimate association, privacy, family life, and nondiscrimination might be thought to suggest that states bear a heavy burden to justify singling out a specific class of persons and regulating their private sexual behavior, or basing legal and political restrictions or advantages on specific sexual or gender characteristics. Today, a minority of states continue to criminalize homosexual intercourse and, while state-sponsored or tolerated discriminatory treatment against sexual minorities remains rampant, it has become much rarer and often less virulent in form. Doors formerly closed to sexual minorities, such as state-recognized relationships carrying some of the benefits of marriage, have cracked open. (11)

The source of contention may be traced to a qualification to many human rights expressed in the relevant treaties that include explicit exceptions for measures taken by the state to maintain public morals and welfare. The ICCPR allows states to restrict the exercise of association by any laws that "are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others." (12) Article 11 of the ECHR...

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