3Out of the 54 states that make up the Commonwealth of Nations, 41 continue to criminaliseconsensual adult same-sex sexual activity. Laws that criminalise same-sex sexual conductdiscriminate against and oppress lesbian, gay, bisexual, transgender and intersex (LGBTI) persons.The majority of the laws that criminalise same-sex sexual conduct originate in British Colonial lawscriminalising ‘sodomy’.On the 15
of August 2011 at a conference facilitated by the Commonwealth Human Rights InitiativeLondon, LGBTI Rights Activists working across the Commonwealth devised the following statementof action on the decriminalisation of same-sex sexual conduct across the Commonwealth. This is astatement of action that relates both to the Commonwealth Secretariat and to Commonwealthmember states.
The incompatibility of the criminalisation of same–sex sexual conduct with Commonwealth values
1.1 Treating individuals in a discriminatory manner as a result of their sexual orientation isincompatible with Commonwealth values. Equality and non-discrimination on any groundshas been repeatedly affirmed as a core Commonwealth value, most recently by theSecretary General in his speech to the 2011 Law Ministers Meeting. The 2009 Port of SpainAffirmation of Commonwealth Values and Principles states in section 5 that a coreCommonwealth value is the “promotion of civil, political, economic, social and cultural rightsfor all without discrimination on any grounds” and that “rights are universal...and cannot beimplemented selectively.” This reaffirms the commitments to formal equality, found in the1979 Lusaka Declaration, and equality before the law, in the 1991 Harare Declaration.1.2 The universal equal application of human rights to all without discrimination on anygrounds is reinforced in the 2007 Yogyakarta Principles on the application of internationalhuman rights law in relation to sexual orientation and gender identity. In 2008 seventeenCommonwealth States signed up to the European Union backed Statement on HumanRights, Sexual Orientation and Gender Identity at the United Nations General Assemblywhich affirmed the ‘principle of non-discrimination which requires that human rights applyequally to every human being regardless of sexual orientation or gender identity’.1.3 At the Port of Spain Commonwealth Heads of Government Meeting (CHOGM)reaffirmed the agreement that states had made at the 2007 Kampala CHOGM that allCommonwealth members should ratify core international human rights treaties, includingthe International Covenant on Civil and Political Rights (ICCPR). In
Toonen v Australia
(1994)CCPR/C/50/D/488/1992 the Human Rights Committee held that the criminalisation of same -sex sexual conduct was incompatible with the right to privacy and the right to equalitybefore the law, as guaranteed under the ICCPR. The implementation and ratification of theICCPR by the vast majority of Commonwealth Countries means that states should take stepsto ensure that laws criminalising same–sex sexual conduct are repealed and amended.Further states that have not yet signed up to international human rights agreements shouldbe mindful of the commitments made at successive CHOGMs and implement international