Celebrating the Repeal of 377 in India – and Reflecting on What Is Next

At the beginning of 2018, more than 3 billion people lived under the cloud of colonial-era anti-LGBTIQ statutes prohibiting and penalizing ‘gay sex’ all around the world.

With the decriminalization of homosexuality for 1.3 billion people in India through a landmark decision by the Indian Supreme Court, a massive victory was won.

Those charged under this law have been subjected to intense violations of their human rights. One such case is of Indian LGBTIQ activist, Arif Jafar, who wrote about his experience of being held for 47 days in jail, where he was tortured physically and mentally after being arrested for alleged violations of section 377.

India is not the only country in which colonial-era anti-sodomy laws have been challenged. Human rights lawyers and LGBTIQ activists around the world have spent much of 2018 filing and continuing to work on challenges to the constitutionality of these statutes in numerous countries.

This blog serves as a reminder of the court-based activism and work that surrounds legalizing homosexuality and ‘gay sex’ which is being done around the world.

We've divided this work into two categories: cases we know to be scheduled and cases without a set date. Local advocacy from activists and government officials around the world is also noted at the end as a driving force behind legal actions.

Scheduled Cases

Update: The much anticipated ruling for case in Kenya on February 22, 2019, of petition 150 of 2016, challenging the constitutionality of sections 162 a) c), 163 and 165 of the Penal Code has been postponed to May 24, 2019, at 10:30 am.

The National Gay and Lesbian Human Rights Commission of Kenya ( National Gay and Lesbian Human Rights Commission ), Gay and Lesbian Coalition of Kenya ( Gay and Lesbian Coalition of Kenya), and the Nyanza, Rift Valley and Western Kenya Network (NYARWEK) together with other partners initiated the constitutional challenge.

Jonah Chinga, a spokesperson for the Gay and Lesbian Coalition of Kenya told the Independent that the Supreme Court of India’s affirmation of LGBT rights would “...set a momentous legal precedent across all the Commonwealth countries that maintain these discriminatory laws.” He added, “Judges in Kenya are certain to inspect the India ruling and other precedents closely when making their own judgments on the consolidated Kenya petitions.”

In an interview with The Economist, Njeri Gateru, Director of the National Gay and Lesbian Human Rights Commission commented, “Decriminalization would mean for the first time LGBT Kenyans would start to participate within the Kenyan democracy as equals. We are going to be a step closer to figuring out how an equal Kenya looks like.”

Update: Botswana High Court Hearing on Decriminalization of Homosexuality Begins. University student Letsweletse Motshidiemang and the LGBTIQ rights group LeGaBiBo have brought about a constitutional challenge to sections of the Penal Code of Botswana. It was as recent as 2014, the group argued in court and won the right to legal registration from the same high court. [ Photo by: Thalefang Charles ]

The Washington Blade reported that according to human rights organization, LEGABIBO (Lesbians, Gays, Bisexual of Botswana), the hearing of the case challenging the constitutionality of sections 164(a), 164(c) and 167 of the Penal Code will be heard before a full bench of the Botswana High Court, comprising of the Honorable Judge A.B. Tafa, the Honorable Judge M. Leburu and the Honorable Judge J. Dube on March 15, 2019. The aforementioned sections criminalize “carnal knowledge of any person against the order of nature” and “indecent practices between persons” (whether in private or public) respectively.

Trinidad and Tobago
Judge Devindra Rampersad of the High Court of Trinidad and Tobago will release his final judgment on the result of his April 2018 ruling that Sections 13 and 16 of the Sexual Offenses Act are unconstitutional (https://www.outrightinternational.org/content/judge-rules-buggery-law-un...) as applied to adult consensual acts on September 20. The judge has responded to criticism from conservative groups, saying, “This is not a case about religious and moral beliefs but is one about the inalienable rights of a citizen under the Republican Constitution of [Trinidad and Tobago]; any citizen, all citizens."

UPDATE: Judge Devindra Rampersad of the High Court of Trinidad and Tobago released his final judgment on sections 13 and 16 of the Sexual Offences Act which criminalises buggery and serious indecency even between consenting adults on September 20. The judge modified the legislation to no longer apply to adult consensual acts. Stating his decision was the "least intrusive" choice, Rampersad refused to strike out the legislation in its entirety.

Fyard Hosein of Trinidad and Tobago’s legal team also confirmed that the state plans to appeal this case to the highest appellate court in the country, the Privy Council for a final determination. The judge has responded to criticism from conservative groups, saying, “This is not a case about religious and moral beliefs but is one about the inalienable rights of a citizen under the Republican Constitution of [Trinidad and Tobago]; any citizen, all citizens."

Unscheduled Cases

Cameroon currently has two concurrent cases before the Supreme Court of Cameroon in which Cameroonian lawyer Alice Nkom is arguing against the constitutionality of the anti-gay statute, article 347.

A court of appeals in Lebanon in July 2018 ruled that article 534 – the statute which outlaws sexual acts that “contradict the laws of nature,” could not be used to persecute homosexuals.

Georges Azzi, executive director of the Arab Foundation for Freedoms and Equality and Outright International Felipa De Souza Awardee noted, “...Other courts could still convict people, but we’re very hopeful -- we’re seeing that the trend now is not to criminalize homosexuality.”

In Jamaica, Attorney and activist Maurice Tomlinson is challenging Jamaica’s anti-buggery laws. He filed his case in 2015, however no date has been set for the hearing.

Nigerian attorney Oba Nsugbe has filed for a constitutional challenge against the Same-Sex Marriage Prohibition Act 2014 in the high court in Lagos to decriminalize homosexuality. The Same-Sex Marriage Prohibition Act 2014 also encompasses penalties for “the public show of same sex amorous relationship directly or indirectly,” and “registration of gay clubs, societies and organizations, their sustenance, processions, and meetings.”

Singapore’s high court has twice upheld the constitutionality of Section 377A; entrusting any further action to the country’s parliament. After the decision to decriminalize homosexuality in India, Singaporean diplomat and lawyer Tommy Koh called for activists to raise another challenge to the law. A response to both this decision and calls from Koh has been seen with Johnson Ong Ming, also known by his stage name, DJ Big Kid. Ming brought a challenge before Singapore’s High Court to Section 377A of Singapore’s Penal Court just four days after the news from India had arrived. Currently in Singapore, 55% of residents still support section 377 according to a recent poll.

Trans woman Alexa Hoffman, along with a gay man and lesbian woman who have chosen to remain anonymous to protect their safety, have filed their challenge to the constitutionality of the anti-buggery law (https://www.gaystarnews.com/article/my-life-depends-on-me-fighting-the-b...) in Barbados before the Inter-American Commission on Human Rights. No hearing has been set.

Political Movement

UK Prime Minister Theresa May apologized for the enactment of anti-homosexuality laws by the former British Empire, which still exist in the form of section 377 in both Singapore and Malaysia.

Malaysia has also seen a rising tide of homophobia through the introduction of a
bill to harshen punishments for muslim violators of sharia law by sharia courts as well as the utilization of the penal code to charge and punish two women with caning for attempted ‘lesbian sex’. Malaysian Prime Minister denounced the punishment via Twitter, stating that the caning “did not reflect the justice or compassion of Islam”.

[ Art by Malay Karmakar ]

Though these cases may vary in their countries of origin, states of progress, and the scope to which a judgment may speak... What they share in common is a loud and clear challenge from activists to colonial-era oppression in favor of human rights.

If you have any more information on relevant cases to nationally or regionally decriminalize homosexuality around the world, please send a message to nzeitlinger@outrightinternational.org.