This Article argues that persecution based on sexual

orientation constitutes a crime against humanity under international law.

Unlike other scholarship that has focused on the definition of crimes against

humanity in the 1998 Rome Statute for the International Criminal Court—

which does not explicitly enumerate “sexual orientation” as a protected

classification—this Article looks to customary international law made up by

the practices of states.

Diligent research has revealed that between 1998 and 2022, at least 107

states enacted laws or revised existing laws decriminalizing sexual

orientation and/or categorizing sexual orientation as a protected

classification from discrimination. This is in addition to the sizable number

of states that already did so before 1998. Similarly, since 1998, a plethora of

United Nations (UN) and regional resolutions, as well as non-governmental

organizations (NGOs) as a subsidiary basis for customary law formation,

solidified sexual orientation as a protected classification. In short, the legal

landscape has changed dramatically in the intervening years since the Rome

Statute went into effect, and now argues more powerfully for the inclusion

of sexual orientation as a protected classification from persecution under

international law.

Finally, because persecution is a crime against humanity, all states have

jurisdiction to prosecute the perpetrators or hold them civilly accountable.

This Article hopes to provide the hard, empirical data and the sound legal

reasoning on which such arguments can be made.