Love and the Law

The Delhi High court in India recently decriminalized homosexuality, by overturning a 19th century British colonial law which bans engagement in consensual sex with an individual of the same sex as ‘carnal intercourse against the order of nature.' The court found that section 377, the law criminalizing homosexuality, reflected an understanding of sexual orientation that is ‘at odds with the current scientific and professional understanding.' It acknowledged that law has been used to "brutalis[e]" members of the gay community and other men who have sex with men, abuses that have long been documented by human rights organisation. The Judges ruled that popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights set forth in the Indian Constitution.

Decriminalization is not the whole answer, but it is a key step towards respecting, protecting and fulfilling the human rights of lesbian, gay, bisexual, same-sex practicing and transgender people. Liberalisation of the law does not equate to state recognition of the right to be lesbian, gay or bisexual, have adult consensual sex with someone of the same sex, or be transgender. The legacy of criminalization can last for years. This legacy can be seen in a number of East European countries where some Pride events are banned outright, in violation of international law. Authorities breach their obligations claiming security concerns and the violation of what they perceive as spiritual and moral values. When activists do secure official permission to hold the march, participants too often still face threats and official hostility. They are jeered, spat at, and pummelled with bottles, eggs, excrement, and fists by protesters, sometimes while police look on.

In many countries there is a lack of explicit legislative initiatives to provide criminal and disciplinary sanctions for discrimination against people based on their sexual orientation or gender identity. In South Korea in 2007, a proposal to include sexual orientation as one of the categories that might be the basis of discrimination in the Anti-Discrimination Bill failed. Gender identity was not even included in the final draft because the clause defining ‘gender’ had been deleted from an earlier draft. Responding to activists’ queries as to why ‘sexual orientation’ had been deleted from the draft bill, the Ministry of Justice stated that the original list of protected categories had been ‘too numerous’ and ‘[t]herefore, we reduced the categories to stipulate representative grounds of discrimination.’

In most parts of the world, lesbians and gay men are denied legal recognition of their partnerships and are not permitted to marry. There are discriminations in civil marriage laws on the basis of sexual orientation or gender identity. Lesbians and single women may not be able to realise their reproductive rights, with some countries ruling that they have no right to use donor insemination or in-vitro fertilisation services. In most parts of the world, legal recognition of non-biological parents is denied to lesbian, gay, bisexual and transgender people and same-sex couples may not be allowed to adopt children.  In some countries, sex reassignment surgery is illegal; in others it is not provided or may be prohibitively expensive. Even in countries where transgender people can have official documents reflecting their gender choice they often experience difficulties in changing or obtaining such identification. Individuals who are transitioning, undocumented immigrants, homeless people or those who do not meet the requirements for altering the gender listed on their identification because, for example, they cannot afford hormones, or cannot afford or do not wish to undergo sex reassignment surgery, may not be able to obtain identification consistent with their gender expression.

In most parts of the world, lesbian, gay, bisexual and transgender people are systematically denied housing. Transgender individuals in particular can experience huge obstacles in finding paid employment and are thus likely to live in poverty. Rights of freedom of association and expression are denied to lesbian, gay, bisexual and transgender individuals and organizations via anti-propaganda laws, censorship and other discriminatory bans and practices. Claims by lesbian, gay, bisexual, same sex practicing and transgender people to their human rights may be brooked, but only up to a point. For example, in 2003 the Prime Minister of Singapore stated, ‘[g]ays must know that the more they lobby for public space, the bigger the backlash they will provoke from the conservative mainstream. Their public space may then be reduced.’

Without the fundamental protection of legality, it is impossible for lesbian, gay, bisexual and transgender people to form organizations and campaign for their rights or even to meet in public. Even where homosexuality is not criminalized, the authorities may seek to limit the freedom of association for organizations working on the human rights of lesbian, gay, bisexual, same-sex practicing and transgender people. For example, in 2000, the Honduran organization Grupo Prisma submitted a request for personería jurídica, official registration, and approval of the statutes of the organization to the Ministry of the Interior and Justice, as required by law. This was rejected because ‘the Statutes breach morality, public order, proper behaviour…” (los Estatutos violentan la moral, el orden público, las buenas costumbres…).

The new NGO law in Russia, possibly together with the law on combating extremist activities, has been used to prevent the registration of the NGO Rainbow House (Raduzhnii Dom), an organization of lesbian, gay, bisexual and transgender rights activists from Tiumen, Siberia. Their registration as an NGO has been repeatedly denied by the Federal Registration Service (FRS). Without registration, the organization’s activities, including cooperation and dialogue with other NGOs and state bodies, are severely hampered. It also prevents the organization opening a bank account. One reason not to register the organization given by the regional department of the FRS in Tiumen in December 2006 was that the charter of the organization listed activities which amounted to propaganda for a non-traditional sexual orientation, which could constitute ‘extremist activities.' The FRS also allegedly argued that the aims of the organization were in conflict with the spiritual values of Russian society, were directed towards reducing the population and were therefore considered to be a threat to state security. Turkish authorities have regularly targeted organizations working on human rights and sexual orientation and gender identity in recent years. In September 2005, the Ankara Governor’s Office accused the Ankara-based group KAOS-GL of ‘establishing an organization that is against the laws and principles of morality.’ Similarly, the Ankara Governor’s Office attempted in July 2006 to close the human rights group Pembe Hayat (Pink Life), which works with transgender people, claiming that the association opposed ‘morality and family structure.’ In both cases, prosecutors dropped the charges. In May 2008 Lambda Istanbul was ordered to close after the Civil Court of First Instance in the Beyoglu district of Istanbul ruled in favour of a complaint brought by the Istanbul Governor’s Office in early 2007, claimed that the objectives of the organization were offensive to Turkish ‘moral values and its family structure.'

Decriminalization is the first step to achieving social acceptance of the right of lesbian, gay, bisexual and transgender people to be open about their sexuality and gender identity or expression without fear of criminal prosecution, where they know that they can obtain recourse to justice when they are the victims of violence by other individuals and where individuals can form associations and peacefully assemble to campaign for their human rights. As Hina Jilani, UN Special Representative to the Secretary General on Human Rights Defenders, has noted, ‘Of special importance will be women’s human rights groups and those who are active on issues of sexuality, especially sexual orientation and reproductive rights. These groups are often very vulnerable to prejudice, to marginalization and public repudiation, not only by State forces but by other social actors.’

Dismantling the prejudices against people on the basis of sexual orientation or gender identity will also impact the lives of heterosexual women and men. The fear of being labelled lesbian or gay keeps women and men in their “places” with respect to sex role behaviour and also maintains the inequities in the power balance within both interpersonal relationships and the structure of society. In defiance of the intended effect, time and again criminalization has proven to be basis for mobilisation by lesbian, gay, bisexual and transgender human rights defenders. By legislating against certain consensual sexual behaviours or identities, the state effectively creates new political constituencies, such as categories of people called ‘homosexual’ or ‘lesbians.' This starts to erode the invisibility of lesbian, gay, bisexual and transgender people and brings people together at the local, national and international level to demand equality. Combined with the power to be gained from working in community with others as a way of obtaining a sense of belonging and affirm a sense of self, mobilising against decriminalization and other human rights abuses against lesbian, gay, bisexual, same-sex practicing and transgender people, far from destroying identities and behaviours, is ensuring them and increasing claims for citizenship.

As the Naz Foundation, an Indian sexual rights organization which brought the case against Section 377, told: ‘It's an incredible day, it's been a long battle. Today homosexuality has been decriminalized but not legalized. It is a baby step but finally India has entered the 21st century.’

 

Comments

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