“Discriminalization”: Sexuality and the Carceral Turn in Human Rights Law

After decades of pressing for the decriminalization of same-sex conduct, advocates around the globe have increasingly urged states to use the power and authority of criminal law to address bias against lesbian, gay, bisexual, and transgender (LGBT) persons. In dozens of countries as diverse as Angola, Ecuador, Malta, Mongolia, and Taiwan, lawmakers have criminalized various forms of anti-LGBT conduct and proscribed them with lengthy periods of incarceration. This embrace of criminalization has often been articulated in the language of human rights, using that framework to expand rather than curb the scope of criminal law. In this Article, I look to debates over LGBT rights to analyze what I call discriminalization, or the adoption and application of carceral penalties for discriminatory conduct. I argue that the growing use of discriminalization raises difficult questions about anti-discrimination law and human rights, which necessitate an appreciation of the injuries inflicted by discrimination, the injuries inflicted by carceral punishment, and the complexities of a framework that meaningfully protects human rights when these harms are in tension. The Article explores these questions in three parts. Part I reviews critiques of criminalization, and particularly carceral punishment, as a response to offenses targeting marginalized groups. I draw in particular from racial justice literature and critiques of carceral feminism to map out some of the complexities of using criminal law to demonstrate that targeted violence is being taken seriously. Part II documents some of the ways that LGBT advocates have embraced discriminalization in recent years, focusing on three issues – discrimination in areas such as employment, housing, and the provision of goods and services; demeaning or degrading speech; and so-called “conversion therapy,” or efforts to change someone’s sexual orientation or gender identity. Using a data set of LGBT-inclusive anti-discrimination laws in these three areas, I chart how discriminalization has been enshrined in law and practice, and raises questions that extend beyond the LGBT context to anti-discrimination law more generally. Part III asks whether the human rights framework offers any useful tools for those who wish to take stigmatic harm seriously while keeping the creep of the carceral state at bay. I consider dignity-maximizing approaches, abolitionist frameworks, and proportionality as three avenues that human rights advocates might take to mediate this tension. By drawing a distinction between the doctrinal strictures of human rights law and the discretion that human rights advocates utilize in practice in deciding when and how to advance LGBT rights, I propose a modified proportionality approach for advocates that attends to both the specificities of anti-LGBT hostility and the conditions of criminalization in a given context. Such an approach is more flexible, pragmatic, and attuned to grounded notions of justice than the absolutist positions that have thus far guided discriminalization debates. I conclude by acknowledging the limits of such an approach, arguing for a principled retreat from discriminalization and a stronger emphasis on proactive measures to address stigma.