UN Experts Exceed their Mandates on Same-Sex Relations

By | March 31, 2022

WASHINGTON, D.C. April 1 (C-Fam) The expert committee that monitors compliance with the UN’s treaty on women’s rights has told Sri Lanka the country must decriminalize same-sex sexual conduct between women. Homosexual advocates say the communication is a “landmark decision.”

The Committee on the Elimination of Discrimination against Women, or CEDAW Committee, reviews the human rights records of countries that have ratified the treaty known as CEDAW.  As with all UN multilateral human rights treaties, the text of the treaty itself is binding but hardly enforceable on those countries that have ratified it. Obligations include undergoing periodic reviews by the committee associated with the treaty.  However, the communications of the treaty body, such as the one issued to Sri Lanka, are not legally binding, not remotely, and certainly not a “decision” landmark or otherwise.

At issue is the provision in the Sri Lankan penal code labeling “carnal intercourse against the order of nature” a criminal offense.  The law previously referred only to men but was amended in 1995 with more inclusive language encompassing women as well. Sri Lankan parliamentarians were considering repealing the law but instead applied it to both sexes.

The CEDAW Committee’s comment, and the complaint that prompted it, focused on the Sri Lankan law’s impact on lesbians rather than homosexual activity more broadly.  It made the case that lesbians suffered particular discrimination as compared with other women.

The Sri Lankan government said that while the law remains in effect, recent Supreme Court rulings have held that jailing consenting adults was inappropriate.

The woman making the complaint to the CEDAW Committee, described as a lesbian who “dresses in what is considered “masculine” attire and wears her hair short,” was neither arrested nor charged with violating the law.  Rather, she argues, the law is particularly discriminatory against lesbians “by virtue of the intersecting forms of discrimination they face as women and as sexual minorities.”

The text of CEDAW contains no direct references to lesbians, homosexuality, or sexual minorities, and its use to create new categories of human rights protections in these areas is controversial and not supported by states parties to the treaty.  Nevertheless, the CEDAW Committee has used its communications to advance such a standard on numerous occasions, particularly in the last two decades.

Since 2015, the CEDAW Committee has pressured countries on issues pertaining to sexual orientation and gender identity in 58% of its concluding observations following their periodic reviews.  Other treaty monitoring bodies—whose respective treaties also do not include reference to sexual orientation or gender identity—have similarly exceeded their mandates.

The CEDAW Committee was the first of the expert bodies associated with UN human rights treaties to pressure countries to change their abortion laws in the mid-1990s, another highly contested issue that is not mentioned in the treaty itself.  Since 2015, the CEDAW Committee’s pressure to countries regarding abortion has expanded to over 80% of its reviews.  In its most recent session, which concluded at the end of February, each of the eight countries reviewed were pressured to decriminalize abortion, expand the legal grounds where it is permitted, or make it more accessible, referring to abortion restrictions as “a form of gender-based violence against women.”

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