The Fight to Decriminalize Homosexuality Since the Repeal of Section 377

Almost a year ago, on September 6th, 2018, the Supreme Court of India ruled that the application of Section 377 was unconstitutional. Section 377 was a colonial-era law which prohibited consensual same-sex sexual relations. The Supreme Court’s decision to abandon Section 377 effectively decriminalized homosexuality for 1.3 billion Indians and was a major LGBTIA+ victory.

In the year since the repeal of Section 377, there has been continued progress for LGBTIA+ rights in India, but there is a long way to go before full equality. To name a few successes, the Madras High Court of India band sex reassignment surgery for intersex children, the LGBT video service GagaOOlala launced, and a clinic for transgender people opened in Tamil Nadu. However, the International Commission of Jurists released a report detailing the ongoing discrimination faced by a member of the LGBTIA+ community in India, indicating that there is still plenty of work to be done.

Many LGBTIA+ activists were hopeful that the victory for human rights in India would spur further progress in the fight for the decriminalization of homosexuality. In many cases, these hopes were well-founded, but the news is not all good. At the 3rd Global Decriminalization Convening in Barbados, which took place from July 24th to July 26th, 2019, LGBTIA+ activists gathered to discuss the implications of the victory in the Indian Supreme Court as well as the current state of the effort to decriminalize globally.

What follows is a summary of the changes and challenges to laws which criminalize homosexuality around the world, since the repeal of Section 377 in India.

Angola decriminalized homosexuality, on January 23rd, 2019, when Angola’s parliament removed the “vices against nature” provision from its penal codes. This passage, which banned same-sex relations, was originally included in the penal codes 133 years ago when the country was still a Portuguese colony. 

The parliament did not stop at the decriminalization of homosexuality, they also banned discrimination on the basis of sexual orientation. Although LGBTIA+ activists welcome the renunciation of this discriminatory law, they also cite rampant hate crimes against members of the LGBTIA+ community as evidence that there is still much work to be done.

In a petition to the Inter-American Commission on Human Rights (IACHR), three Barbadians LGBTIA+ activists challenged the countries Sexual Offences Act and buggery laws, which criminalize same-sex sexual relations and heterosexual sex that is not strictly vaginal. The petition, submitted in June 2019, states that, although Barbados is a signatory to the American Convention on Human Rights, these anti-LGBTIA+ laws infringe upon human rights and should be discarded.

Bhutan’s lower house of parliament voted to decriminalize homosexuality by an overwhelming majority, on July 7th, 2019, by amending their penal code. The amendment would delete Sections 213 and 214 of the penal code, which criminalizes “unnatural sex” and have been widely read as criminalizing homosexuality. For the bill to become law, it still needs to pass the upper chamber and obtain royal assent. 

In June 2019, Botwana’s High Court unanimously rejected sections of their penal code that imposed up to seven years in prison for same-sex relationships. The anonymous petitioner was supported by the Botswana based- non-governmental group, LEGABIBO, and challenged the penal code on the bases that such laws “infringe on basic human dignity.”

An anonymous man filed a lawsuit challenging Dominica’s homophobic laws that criminalize “buggery” and “gross indecency,” on July 18th, 2019. Gregor Nassief, a successful Dominician hotelier and businessman, wrote a well-publicized letter to Dominica News Online in support of the anonymous man's fight for human rights, which gives some activists hope that the lawsuit will succeed.

On May 24th, the High Court in Kenya ruled not to decriminalize gay sex. In 2016, Eric Gitari filed a discrimination lawsuit which challenged the constitutional validity of two sections of Kenya’s colonial-era penal code, which criminalize same-sex sexual relations. Gitari lost the original lawsuit. The suit was petitioned to the High Court in Kenya and was lost earlier this year.

Unfortunately, the High Court ruling means that Sections 162(a) and (c), 163 and 165 of Kenya’s penal code will remain in place and homosexual relations in Kenya remain criminal. In response to this blow to LGBTIA+ rights, Njeri Gateru, director of the National Gay and Lesbian Human Rights Commission, told Outright Action International, “The continued existence of these long outdated laws gives a green light for harassment and discrimination of LGBTQ people. The ruling issued today is a horrific reminder of this. It establishes once again that LGBTQ people in Kenya are not only second-class citizens, but even criminals, merely for loving whom we love.”

Saint Vincent and the Grenadines:
On July 26th, 2019, a lawsuit was filed by two men, challenging St. Vincent and the Grenadines “buggery” and “gross indecency” laws. These laws are another example of anti-LGBTIA+ laws which were inherited during the British colonial rule, and which functionally criminalize homosexuality. The two challenges are expected to be heard by the High Court in Kingstown.

Trinidad and Tobago:
The High Court of Justice in Trinidad and Tobago ruled on April 12th, 2018, that the country’s anti-buggery and serious indecency laws are unconstitutional. The decision was made official on Sep 21, 2018, when Judge Devindra Rampersad modified sections of the Sexual Offences Act. The state is set to appeal Judge Rampersad’s decision in late 2019.

Source: Human Rights Watch