Under international criminal law, persecution is a crime against humanity. As codified in Article 7 of the Rome Statute creating the International Criminal Court, the crime entails the “intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.” Such persecution is particularly pernicious because victims are not only deprived of their rights, but they are also targeted for that deprivation by reason of their identity. Yet what “identity” counts? If perpetrators target victims because of their race, religion, ethnicity, nationality, political beliefs, or culture, international law is clear: such abuses may constitute persecution. If a victim is singled out because of their real or perceived sexual orientation or gender identity, however, it is far less clear that a court would recognize this harm as a crime of persecution under international law.

This Article explains the distinct harm caused by persecution based on real or perceived sexual orientation or gender identity (“SOGI-based persecution”) and the importance of recognizing it as a crime of persecution. It argues that the history of the crime of persecution has been one of steady change, with protected classes expanding over time to protect vulnerable groups. Rather than being etched in stone, the crime has long been responsive to changes in social context. The time is ripe for the law to adapt once again. This Article maps two paths toward recognizing SOGI-based persecution as an international crime—first, through the International Criminal Court and, second, through domestic courts. It shows that Colombia has already begun to lead the way, offering lessons for domestic and international courts. These two paths can and should be pursued in tandem, establishing both international and domestic protections from and accountability for SOGI-based persecution.