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Rights in Retrograde: The Law’s Dual Edge
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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 the multi-faceted 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. This is the second commentary from our “Rights in Retrograde” series, covering January through April of 2024.
The law can be a powerful tool in the pursuit of justice and equality. But some societies have also imbued the law with the power to strip people of life, and of dignity, altogether.
Caribbean Courts: Paving the Way for Justice, Decolonization, and Rights
The Caribbean stands out as a trailblazer in rights-based activism and robust decolonization efforts, particularly in advancing queer rights through the courts. Through strategic litigation and grassroots mobilization, Caribbean nations have made significant strides in dismantling colonial-era prejudices and discriminatory practices targeting people of diverse sexual orientations and gender identities. Of the many marks left by British colonialism, efforts to control Caribbean queer sexualities have had a particularly tenacious grip. Only in recent years have these antiquated legacies begun to be dismantled.
On 22 April 2024, the High Court of Dominica ruled that sections 14 and 16 of the Sexual Offences Act (SOA), which prohibited “buggery” and “gross indecency,” violated constitutional protections of the right to liberty, freedom of expression, and privacy and home life. The court's ruling followed a constitutional challenge mounted by an unnamed gay man, with support from Minority Rights Dominica (MiRiDom) and the HIV Legal Network. The judgment, which found that such laws “cannot be said to be reasonably justifiable in a democratic society as they do not pursue any legitimate objectives,” echoed a series of sound court decisions, drawing on a growing jurisprudence of decolonization and decriminalization from India to Belize. In decriminalizing same-sex sexual relations, Dominica joins Belize, Trinidad and Tobago, Antigua and Barbuda, Saint Kitts and Nevis, and Barbados: other Caribbean nations that have in recent years recognized the inherent dignity and rights of all individuals, regardless of sexual orientation, through court rulings aligned with international human rights standards.
These landmark decisions not only advance the protection of rights for lesbian, gay, bisexual, transgender, and queer (LGBTQ) people, but they also mark a crucial step in building public trust in the legal system. By dismantling discriminatory laws and fostering an environment of inclusivity and respect, these countries are demonstrating their dedication to upholding the principles of justice and fairness. It is worth noting, however, that St. Lucia, Guyana, Grenada, Jamaica, and St. Vincent and the Grenadines, all former British colonies, retain buggery and gross indecency laws, with a constitutional challenge pending in St. Lucia.
Law’s Lurking Threat: Depriving Queer Individuals of Their Dignity and Fundamental Rights through Perilous Legislation
On the opposite end of the law and rights spectrum, Uganda’s Constitutional Court on 3 April upheld almost all provisions of an Anti-Homosexuality Act rooted in genocidal ideology. The Constitutional Court struck down the notorious “duty to report” provision, which effectively turned all Ugandans into spies, and a provision that prohibited landlords from renting spaces to tenants who might fall afoul of the law. But it maintained death by hanging as a penalty for consensual same-sex intimacy, along with sweeping prohibitions on freedom of expression, a ban on human rights organizations that “normalize” sexual and gender diversity, and a ban on funding such organizations. In doing so, the judiciary cemented the state’s power to exert control over LGBTQ people’s bodies and lives, using harsh penalties to instill fear and suppress dissent.
The Ugandan ruling epitomized the judicialization of prejudice. The court repeatedly trotted out anti-LGBTQ tropes and eschewed evidence, asserting that the Anti-Homosexuality Act served the legitimate purpose of combatting “the overt super-imposition of homosexuality on Ugandan culture by the recruitment of children into the practice.” It disregarded most international legal precedent, but cited the U.S. Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe v. Wade and upended the right to abortion, claiming that in Dobbs:
[T]he US Supreme Court considered the nation’s history and traditions, as well as the dictates of democracy and rule of law, to over-rule the broader right to autonomy. …. That is precisely what was done with the issue of homosexuality in Uganda.
In other words, “tradition” and a popular desire to eradicate LGBTQ people, for Uganda’s Constitutional Court, outweigh the fundamental right to exist. Activists have filed an appeal of the deeply flawed ruling at the Supreme Court.
Just weeks before the Uganda ruling, in February, Ghana’s national legislature unanimously passed the Human Sexual Rights and Family Values Act, through which members of parliament seek to wield the power of the law to codify the gender binary and assert government authority over social norms. The bill contains broad prohibitions on consensual same-sex sexual conduct, LGBTQ identities and expression, allyship, and marriage, and attempts to codify the gender binary.
Two separate petitioners have challenged the bill at the Supreme Court. Seeking to sidestep the risk of a veto that could be overruled, President Nana Akufo-Addo has declined to receive the bill from Parliament, stating that Parliament should await the court’s decision before transmitting to him any version of the bill. In response, an anti-LGBTQ petitioner also took to the courts, seeking to compel the president to move on the bill. The Office of the Attorney General and Ministry of Justice filed an affidavit at the High Court in opposition to the petitioner’s writ, and as of this writing, it remained to be determined whether the president would be required to take a stance on the bill.
Russia leaned into its persecution of LGBTQ people in the new year, actively enforcing the Supreme Court’s 2023 ruling labeling LGBTQ people and supporters as "extremists" in a bid to consolidate power and silence dissent. Courts throughout the country sentenced individuals to prison time and imposed fines for offenses such as wearing rainbow earrings and posting images of rainbow flags on social media. By equating LGBTIQ advocacy with extremism, the government aims to control public discourse and marginalize LGBTIQ individuals, effectively holding their lives hostage to oppressive ideologies. Developments in all three countries deeply entrench the power of the state to control or eradicate groups that defy state-sanctioned social norms, beginning with queerness and its allies. They lay bare the way anti-gender narratives are easily repurposed around the globe, masquerading as protections, when they actually shield authoritarian states against accountability and allow them to shirk their duties of protecting people.
Self-Determination, Autonomy, and Resistance
While deflecting attacks, queer people also continue to cultivate self-determination through different routes, including the law. These practices include actively making personal choices, affirming self-identity, advocating for familial rights, and navigating community dynamics safely and collectively. Self-determination requires striking a balance between resistance efforts and acknowledging the limits and potential for change held by legal structures.
In February 2024, in Japan, the Okayama Family Court's Tsuyama Branch recognized a transgender man's petition to legally change his gender: an apex court ruling that prohibited the requirement of sterilization. While this groundbreaking decision jettisons an antiquated medical model, affirming rights, it also illustrates what can be a long road to the full realization of self-determination through legal gender recognition: the petitioner had first faced a court rejection in 2016.
Intersex people saw a significant victory with potential legal implications in April when the UN Human Rights Council adopted its first-ever resolution specifically addressing discrimination, violence, and harmful practices against persons with innate variations in sex characteristics. The resolution, achieved through the hard work of activists and years of lobbying, condemns invasive surgeries and encourages states to examine “best practices, including legal protection and remedies, especially when addressing the realization of the right to the enjoyment of the highest attainable standard of physical and mental health.”
Meanwhile, Thailand is poised to become the first country in Southeast Asia to see marriage equality after the House of Representatives, in March, passed a marriage bill by an overwhelming majority.
But other forces pushed back against self-determination and bodily autonomy. In February, the Supreme Court of the U.S. state of Alabama ruled that the state’s Wrongful Death of a Minor Act applied to frozen embryos, curtailing access to in vitro fertilization (IVF). The ruling limits access to the creation of families, eliminating the option for many queer people and others seeking conception support to have a family of their choice.
Sanctioning this perspective with religious fervor, in January 2024 Pope Francis issued a far-reaching condemnation of surrogacy, calling it a “commercialization” of pregnancy and a threat to human dignity universally. Such statements stigmatize and deprecate diverse forms of families, undergirding anti-gender and anti-LGBTIQ laws.
Conclusion
In the face of mounting challenges to LGBTIQ rights globally, it is imperative that we consider the dual nature of legal developments, exposing both the threats posed by oppressive legislation and the progress achieved through collective action. By prioritizing self-determination, autonomy, and resistance, this piece intends to celebrate the power of queer individuals, communities, and collectives to assert their rights and challenge oppressive structures as seen in the overturning of many oppressive laws.
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