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Rights in Retrograde? Unchecked Attacks on Queerness in the Name of the Law
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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 series 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 third commentary from our “Rights in Retrograde?” series, covering April to August 2024.
Opportunistic politicians continued to assail lesbian, gay, bisexual, transgender, and queer (LGBTQ) people’s human rights this quarter by advancing far-reaching legislation that rides roughshod over rights. The record in the courts was mixed, with the movement’s euphoria after a historic court victory in Namibia quickly dampened by a series of losses. In Asia, there were slight gains on trans and family rights, and a bill supportive of intersex rights advanced in the Philippines.
Legislative Attacks on LGBTQ Dignity and Equality
In 2024, a wave of anti-LGBTQ laws and the institutionalization of queerphobic sentiments permeate much of the world. Despite, or because of, significant global progress toward decriminalization of same-sex intimacy, the global LGBTQ advocacy community is playing whack-a-mole with new hostile legislation that expands upon colonial-era sodomy laws by encroaching on a wide range of fundamental rights of LGBTQ people, their allies, and the broader public.
These laws can be traced back to around 2013, when Russia passed its first “gay propaganda” ban, followed shortly thereafter by anti-LGBTQ laws in Uganda and Gambia that created offenses like “aggravated homosexuality.” (Uganda’s law, which also prohibited freedom of expression and association for LGBTQ people and their allies, was nullified by the Constitutional Court on a technicality but has since been resuscitated as the Anti-Homosexuality Act of 2023, while Gambia’s life sentence for “serial offenders” still stands despite other democratic reforms since the 2017 ousting of former dictator Yahya Jammeh.)
Now, for over the last decade, legislative houses, mandated to represent the people, have become the birthplace of discriminatory, exclusionary, and harmfully vague and arbitrary laws, masquerading under mandates of protecting families, children, and national identities.
This quarter, several legislative houses have passed or proposed laws tightening the screws on LGBTQ people. In Liberia, a Congress member on 18 July introduced a harsh anti-homosexuality bill that would expand the reach of a Penal Code that already criminalizes same-sex sexual relations. The bill extends punishment for “homosexuality” from a one-year prison sentence to 10 years and introduces the offense of “aggravated homosexuality,” punishing “serial” offenders, among others, with life imprisonment for adult consensual sex. In a brazen copy-paste of Uganda’s notorious law, the bill also extends its reach to anyone who “promotes” or “normalizes” queerness, potentially outlawing non-discrimination measures that are increasingly common in corporate, development, and humanitarian sectors. The bill further stigmatizes those who may come into contact with LGBTQ people through criminalizing the rental of property to queer people and defenders of their human rights.
This emerging pattern defies universal human rights standards and extends far beyond Africa. On 15 August Bulgaria’s president signed into law an amendment to Bulgaria’s education law that bans the “propaganda, promotion or incitement in any way, directly or indirectly, in the education system of ideas and views related to non-traditional sexual orientation and/or gender identity other than the biological one.” Georgia’s parliament is considering a similar bill, advanced by the ruling party. Kazakh authorities are deliberating on a petition that calls on the Ministry of Information and Culture to violate Kazakhstan’s constitution by creating laws that “fully ban open and hidden propaganda of LGBT.”
Notably, while in many cases the legislature is responsible for these attacks, executive powers may also have political agendas that endanger LGBTQ people’s human rights, as seen in Afghanistan, where the Taliban, which rules by decree, issued a morality law in August that explicitly prohibits same-sex sexual relations between women and between men. (The same law, sickeningly, prohibits women from speaking loudly in public.) And in Burkina Faso, the military junta—increasingly close to and dependent on support from Russia after cutting its ties with France—announced a draft law in July to criminalize same-sex relations. Burkina Faso had no previous colonial or post-independence history of criminalization of same-sex relations. The bill will be sent to a legislature which, since the 2022 coup, is composed of unelected officials who exercise, according to Freedom House, “few or no checks…on the junta’s decision-making capabilities.”
The only notable legislative advance that Outright tracked in this quarter was in the Philippines, where a bill that would allow intersex people to change their official gender markers is scheduled for deliberation in the lower house’s Committee on Justice on 28 August. While the bill, if successfully passed, will advance intersex people’s rights, it contemplates a process that depends on a doctor’s authorization, failing to meet international standards on self-determination.
Courts and Community: Rights Defenders Dismantling Damaging Laws
As lawmakers push through repressive laws, courts become crucial lifelines for LGBTQ individuals fighting for their rights. In 2024 the courtroom has become a battleground against dehumanizing, queerphobic legislation, driven by the activists’ sheer determination to improve protections and abolish discriminatory laws.
On 21 June, the High Court of Namibia delivered a landmark ruling, striking down a colonial-era law that criminalized “sodomy” between consenting adult males. This win did not happen overnight. As far back as 2013, Namibia’s Law Reform and Development Commission, after it commenced a project toward the repeal of obsolete laws and the promulgation of laws that were in line with international legal obligations and the Namibian Constitution, recommended the abolition of “sodomy” laws. Long-term awareness campaigns and collective advocacy played a major role in securing this historic decision, which emphasizes that according to Namibia’s post-colonial constitution, the “inherent dignity and the equal and inalienable rights of all members of the human family”—rights that “have for so long been denied to the people of Namibia by colonialism, racism and apartheid”—are “indispensable for freedom, justice and peace.”
Disappointingly, Namibia’s government swiftly appealed the decision, forcing queer movements in Namibia into a further prolonged court battle. Further, in July, a member of parliament introduced yet another restrictive Marriage Bill, directly motivated by the decriminalization ruling and based on the logic that “legislative reforms must be put in place in order to make it categorically clear and beyond any shadow of doubt that same sex marriages should not be recognised in Namibia because they are contrary to the cultural norms, tradition, ideology and religious beliefs of the Namibian people.” The new bill follows parliament’s passage of two anti-marriage equality bills in 2023, one that criminalized the mere support for marriage equality. Those bills remain pending the president’s assent.
Clinging to Colonialism: Alarming Patterns of Courts Rejecting Petitions for Decriminalization
On 24 June, Malawi’s High Court upheld the country’s discriminatory Penal Code provisions, imposed by British colonizers, that prohibit “carnal knowledge against the order of nature.” These laws apply to both men and women and carry a penalty of 14 years of imprisonment, plus the possibility of corporal punishment. The ruling indicates a judicial adherence to the status quo and reluctance to challenge deeply entrenched laws. The court shunted the question of LGBTQ equality to Parliament, claiming the laws were not, in fact, discriminatory, and did not breach fundamental human rights to privacy, human dignity, liberty, and equal protection of the law.
Meanwhile, in Ghana, a similar challenge to the colonial-era law against “unnatural offenses,” filed in 2021 by a law lecturer, also worked its way through the courts. On 24 July, Ghana’s Supreme Court upheld the law, dismissing the petitioner’s arguments that it violated the constitution and further finding that the conception of “private morality as a ground to limit or expand the constitutional right to privacy lacks sufficient context in the nation’s constitutional architecture.” The court relied on an interpretation of constitutional rights as inextricably linked with “traditional values,” in diametric opposition to the universality of human rights. This decision sets a challenging precedent for future interpretations of fundamental rights for the Ghana Constitution.
The more recent wave of anti-LGBTQ laws, in principle, offer even more opportunities to would-be petitioners to demonstrate grave rights violations. Unlike the colonial-era laws banning forms of sexual conduct, the sweeping new laws target entire movements and, indeed, the concept of tolerance itself. A challenge to Ghana’s draconian Human Sexual Rights and Family Values Bill, passed by parliament in February, remains pending and has been adjourned to 22 October. Given that a similar challenge to Uganda’s Anti-Homosexuality Act yielded disappointing results, with only parts of the act struck down, it is vital that the courts in Ghana move to break the pattern of unfavorable decisions, restoring hope in the courts as a last bastion of the rule of law. Another precedent, whether helpful or harmful, may emerge from Zambia, where an activist filed a challenge before the Constitutional Court in May regarding the constitutionality of its penal code provisions on "unnatural offenses."
East Asia’s Slow but Steady Judicial Advancement of Equality
East Asia, in comparison to Africa, has seen a series of cautious but on-balance positive judicial rulings on sexual orientation and gender identity, facilitated in part by a legal environment in which same-sex intimacy is not criminalized and a social and cultural context less heavily impacted than Africa by confrontational anti-gender movements and religious fundamentalisms. In South Korea, neither same-sex marriages nor civil unions are recognized, but on 18 July, the Supreme Court ruled that same-sex couples have the same right as heterosexual couples to receive dependent coverage under the country’s National Health Insurance Service. This decision may pave the way for increased protections across the rainbow umbrella.
In China, amidst a growing crackdown on LGBTQ civil society, rainbow families experienced a small but significant breakthrough in May when a court acknowledged for the first time that a child can have two legal mothers. The ruling, however, hinted at the arduous journey ahead for full recognition of same-sex parents in China: the plaintiff, estranged from her former spouse, was only granted visitation rights to the child she gave birth to, and not to another child carried by her former spouse.
In Japan, the High Court ruled in favor of a 30-year-old transgender woman who sought to change her gender marker without undergoing surgery. In relation to a 2003 law that requires that trans people seeking legal gender recognition “should have a body resembling the genital organs of the opposite gender,” the court found that physical change through hormone treatment, in the absence of genital surgery, was sufficient, thus expanding upon a landmark decision at the Supreme Court in October 2023 that struck down a requirement for sterilization in order to obtain a gender marker change. Collectively, the rulings inch Japan away from a harmful medical model that contravenes best practices regarding gender self-determination, but Japan has yet to move beyond the emphasis on some form of physical change as a precondition for trans people to be recognized as who they are.
Conclusion
Checks and balances are vital for any well-functioning democracy, and are particularly crucial for the protection of minorities. A president’s courageous refusal to assent to harmful legislation, as in Ghana, or a court’s objective determination that such legislation violates human rights, as in Namibia or Japan, can provide succor for embattled LGBTQ people in the face of legislators’ persistent efforts to propel themselves into the headlines or win votes through the violent othering of queer communities. Similarly, in principle, an independent parliament can halt a discriminatory bill being pushed by the executive—but where parliament lacks independence, as in Burkina Faso, LGBTQ communities are unlikely to be able to turn to their representatives for support or protection. Advocates and other stakeholders concerned with the advancement of LGBTQ people’s human rights should seek to safeguard independent institutions and the separation of powers, recognizing that anti-democratic efforts to concentrate power can close off crucial avenues for repair and redress.
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