Per Scientiam ad Justitiam? The Mythical Role of Emancipatory Science in the Decriminalisation of Same-sex Sexual Conduct through Constitutional Litigation

Abstract

ABSTRACT This article examines the role that emancipatory science on the innateness and aetiology of sexual orientation has played in the legal advancement of gay rights by analysing recent constitutional decisions on laws criminalising same-sex sexual conduct, in light of the global proliferation of such litigation. Standing at the intersection of comparative constitutional law and science and technology studies, it analyses how judgments on the criminalisation of same-sex sexual conduct across six jurisdictions, namely Belize, Trinidad and Tobago, Botswana, India, Kenya and Singapore, between 2016 and 2020, have dealt with arguments based on emancipatory science. Building on existing scholarship on the role of emancipatory science in the pursuit of queer justice, this article shows how such science has played a mythical role in judicial decisions on the constitutionality of same-sex sexual conduct. In addition to its empirical and theoretical contributions, this article cautions gay right activists and lawyers to carefully consider whether and why they intend to introduce the science of sexual orientation in constitutional litigation over laws criminalising same-sex sexual conduct.