“Sexual Orientation and Gender Identity” and International Law
C-Fam Statement on June 14, 2023
The following statement is in response to requests for clarifications about the status of “sexual orientation” and “gender identity” in international law during legislative debates in Sri Lanka.
Recent debates on the use of the terms “sexual orientation” and “gender identity” within the United Nations and national legislatures in reference to individuals who identify as lesbian, gay, bisexual, and transgender (LGBT) are often conducted with the assumption that these notions are clearly defined in science and law.
In fact, there is no scientific consensus on how to define “sexual orientation” and “gender identity.” These terms remain highly subjective and imprecise. They continue to defy any widely recognized scientific or legal consensus. Very few countries treat individuals that identify as LGBT as a discrete class of persons, and many proscribe homosexual conduct because of moral and public health concerns.
States have the sovereign prerogative to legislate on health and morals to protect their populations, including through public decency laws. Such laws are exclusively within their domestic jurisdiction and the United Nations and other international bodies do not have any authority to say these laws abuse human rights. Sexual behavior outside of marriage is not protected by international law and cannot overrule sovereign prerogatives.
There are no binding human rights instruments that contain any legal obligations in relation to sexual orientation and gender identity. There is no binding UN treaty that mentions sexual orientation and gender identity, and no UN treaty can be fairly interpreted to include these notions. Nor is there a colorable argument that a customary international norm exists regarding these notions.
This does not mean that human rights protections do not apply to individuals who identify as LGBT. All human beings possess the same fundamental rights by virtue of their inherent dignity and worth, but international law does not protect unfettered sexual autonomy. It only protects free sexual choices between consenting adults in the context of marriage between a man and a woman.