State Regulation of Sexuality in International Human Rights Law and Theory

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