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Rights in Retrograde? LGBTIQ Legal and Legislative Developments in 2023





Neela Ghoshal
Michelle Yesudas
Published Date

Queer people’s human rights are under attack - but against a landscape of exclusion and inequality, we continue to make progress. “Rights in Retrograde,” a new series to be published every Mercury retrograde, will assess legal developments that impact lesbian, gay, bisexual, transgender, queer, and intersex (LGBTIQ) people. The title carries a dual significance: firstly, it aims to spotlight governments’ efforts to deploy the law to threaten queer people’s rights. Secondly, it highlights positive legal developments, shining a beacon of hope during a period that might pose challenges for some of our star-aligned queer siblings.

As the curtain falls on 2023, democracy is in crisis, threatened by rising authoritarianisms that silence detractors and prop themselves up through military might. For authoritarian leaders who seek to curry public favor by constructing enemies that must be defeated, queer people are an easy target, with some governments challenging our very existence.

In a context in which 62 countries criminalize same-sex intimacy and discrimination prevails the law can be a tool of oppression or liberation. While LGBTIQ advocates propel forward legislation that advances human rights, unscrupulous politicians mobilize around laws that institutionalize exclusion. In some countries, the judiciary has been a bulwark against repression, challenging colonial legacies or forging incremental change. In others, courts lack the vision, independence, and courage to lead in the realization of our rights. With anti-democratic agendas taking root worldwide, LGBTIQ activists will need to continue to demand justice through the courts while rallying allies to reject exclusionary laws in favor of a politics of inclusion.

An independent judiciary: protecting rights through decolonizing the law

In a historic victory for human rights, the Supreme Court of Mauritius on 5 October decisively affirmed the constitutional values of non-discrimination and equality by overturning Section 250 of the Mauritian Penal Code, which criminalized "sodomy." The official acknowledgment that the law was a relic of an oppressive colonial past, not an articulation of Mauritian values, is monumental, setting an example for other countries that have localized, repurposed, and weaponized imported laws as supposed bastions of local values. The court’s decision drew eloquently on the UN Human Rights Committee’s Toonen opinion and from decriminalization rulings in South Africa, India, Hong Kong, and the United States, identifying sodomy laws as a “sword of Damocles” that reduces gay men to “unapprehended felons.”


An independent judiciary: abolishing archaic barriers to legal gender recognition

Japan's Supreme Court delivered a groundbreaking ruling on 25 October, deeming unconstitutional a requirement for individuals to undergo surgery before legally changing their gender. The 2003 Act on Special Cases in Handling Gender Status had only allowed legal gender recognition for a person who “does not have gonads or permanently lacks functioning gonads.” The plaintiff, a transgender woman who had not undergone gender affirmation surgery, argued that these conditions violated constitutional articles 13 and 14, safeguarding individual rights and equality. The Supreme Court agreed, pointing to evolving medical insights and acknowledging transgender people’s right to retain fertility. The decision recognizes the undue hardship imposed on transgender people by restrictive conditions that violate bodily autonomy.


An independent judiciary: affirming that fundamental rights apply to all 

In September, Kenya’s Supreme Court dismissed a challenge to its ruling in February that the National Gay and Lesbian Human Rights Commission (NGLHRC) must be permitted to officially register as a non-governmental organization (NGO). The decision concludes a legal battle initiated in 2013 when former NGLHRC executive director Eric Gitari challenged the Kenya NGO Board’s refusal to allow the organization’s registration under a name containing “gay” or “lesbian.”

The court's decision on the freedom of association reinforces queer Kenyans’ constitutional right to meet, organize, and advocate for change, despite the ongoing criminalization of same-sex intimacy and regardless of the popularity of the views being promoted. As Kenyan legislators propose new draconian legislation to attempt to silence queer voices, the ruling stands as a beacon of hope.

Photo credit: Reuters by Anushree Fadnavis - Students and supporters of Students' Federation of India (SFI) take part in an LGBT+ Pride vigil at North Campus in New Delhi, 18 October 2023

Slouching toward equal marriage in Asia

In Asia, several courts turned their attention to marriage. Expectations were high for India, whose 2018 Supreme Court ruling decriminalizing same-sex intimacy read as a clarion call for undiminished equality: one of the judges had opined unambiguously that “lesbians, gays, bisexuals, and transgenders have a constitutional right to equal citizenship in all its manifestations.” But the court’s October 17 ruling this year on marriage equality deflated the hopes of same-sex couples, punting marriage equality to the legislature based on the claim that the court lacked constitutional authority to rule on this matter. Once again, the court waxed poetic on human dignity, but it failed to deliver equal citizenship. Still, some Indian activists saw the ruling as a glass half-full: for instance, it ordered the establishment of a committee to address issues faced by same-sex couples, signifying a commitment to rectifying injustices.

The “marriage by committee” approach puts India sixteen years behind its immediate neighbor, Nepal, whose plodding progress toward marriage equality dates to 2007. That year, Nepal’s Supreme Court identified an “inherent right of an adult to have marital relation with another adult with her/his free consent and according to her/his will.” The court established a committee to identify a way forward, and the committee in 2015 recommended full marriage equality. Although Nepal has been a consistent trailblazer in the establishment of queer-friendly legal frameworks, it was only in October 2023 that an interim Supreme Court order allowed a queer couple successfully register their marriage, and Nepal still lacks legislation that protects this right in all cases. One hopes that India’s committee will move faster, and not leave tens of millions of queer people waiting decades for the right to marry.

In Hong Kong, in the case of Sham Tsz Kit v. Secretary for Justice (2023), plaintiffs challenged the lack of legal recognition of a same-sex marriage entered into in the United States. The Court of Final Appeal dismissed the plaintiff’s claim that Hong Kong’s Basic Law provided for a constitutional right to marriage equality. But it ruled that the state must provide some “alternative framework” to recognize same-sex couples. The court reasoned that same-sex couples merit access to hospitals, inheritance, and–more ephemerally and perhaps more importantly–”a sense of legitimacy which dispels any sense of them belonging to an inferior class of person whose committed and stable relationships are undeserving of recognition." The government has two years to comply with this order.  

While Asia’s courts largely failed to deliver on marriage equality in 2023, Thailand’s parliament on 21 December began considering a marriage equality bill. The passage of the bill would make Thailand the third country in Asia, following Taiwan and Nepal, to introduce marriage equality.


Law as a tool for denial and delegitimization of queer existence

Both courts and legislatures in 2023 sought to wield the law to write queer people out of existence. Uganda passed a law rooted in genocidal ideology that would have the state execute its own people for some consensual same-sex acts. The law turns citizens into spies, imposing mandatory reporting of sexual diversity. In a test of judicial independence, Uganda’s constitutional court is currently deliberating on a challenge to the law. Apparently inspired by Uganda, an Iraqi  parliament member introduced a strikingly similar bill in August that would institute the death penalty or life imprisonment for "acts of sexual deviance," which include "homosexual relations" and "acts of effeminacy."

Attempts to eradicate queer people don’t need to rely on such crude measures as the death penalty. In its own attempt to wipe out queerness, Russia’s Supreme Court on 30 November declared the “international LGBT social movement” to be “extremist” and illegal. The ruling flagrantly violates international human rights standards and poses a grave threat to the safety and well-being of LGBTIQ activists in Russia by casting them as enemies of the state. It expands the restrictions already established by a 2014 law prohibiting exposing minors to “gay propaganda” – a law that Kyrgyzstan copied and pasted into law in August, despite the well-documented harms Russia’s law and Hungary’s similar provision have inflicted on LGBTIQ children.  

In May, Pakistan’s Shariat court struck down provisions of the pioneering 2018 Transgender Persons Act, which had recognized Pakistan’s centuries-old khawaja sira third-gender identities and provided for gender recognition by self-determination. The ruling asserted that changing one’s gender “at will” was un-Islamic. It also borrowed from the Western anti-gender movement’s moral panic tactics, asserting that trans women pose a threat to cisgender women. Activists are appealing the ruling to the Supreme Court. Meanwhile, the Senate is pursuing legislative gutting of the transgender law and its replacement with a Khunsa Persons (Protection of Rights) Bill, 2023.  which substitutes the term “transgender” with “khunsa” (intersex), introduces a medical board for gender recognition, and criminalizes gender-affirming healthcare. The move seeks to divide trans and intersex people, pitting one marginalized group against another. 

Intersex legal justice rising

Intersex people elsewhere pushed back against enforced invisibility, inflicted on them through medical violence in the name of “normalizing” intersex bodies to fit heterosexual, cisgender norms. Australia’s Capitol Territory enacted legislation that protects intersex people’s bodily autonomy. Athlete Caster Semenya won a discrimination case at the European Court of Human Rights related to World Athletics’ exclusion of women with differences of sex development (DSD) from sport, a policy that compels some women with DSD to alter their natural hormonal levels through medication in order to compete.



Queer individuals wield transformative power in dismantling oppressive systems that negate bodily autonomy, freedom of expression, privacy, and non-discrimination. Through active engagement with legal frameworks and relentless advocacy within the courts, LGBTIQ advocates continue to advance inclusive democracy for all by challenging exclusionary norms. As democracy continues to be contested, those who seek to defend it against authoritarianism should align themselves with LGBTIQ movements and demand that the law be a tool to protect the people from abuses of power and to improve lives–not a weapon to protect the powerful few from purported threats of diversity and dissent.   

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