The news on lesbian, gay, bisexual, and transgender rights around the world has not been promising. Governments in Poland and Hungary use it as a wedge issue, to shore up their political fortunes, while undermining democratic norms and the rule of law. Russian President Vladimir Putin and the Patriarch Kirill of the Orthodox Church used “traditional values” as partial justification for the full-scale invasion of Ukraine, while the Duma extended the “gay propaganda” law to all age groups.
Ugandan President Yoweri Museveni claimed that the passage of extreme anti-LGBTQ+ legislation that includes the death penalty for repeat offenders is an anti-imperialist gesture. And an unprecedented slew of laws, many targeting transgender youth, have been introduced in state legislatures in the U.S. In May, a religious court in Pakistan rejected as “un-Islamic” key provisions of a five-year-old law protecting transgender people.
Notwithstanding these significant setbacks, there have also been bright spots of progress. It is Pride month, a time to celebrate progress and reflect on positive developments since last year.
Five more countries decriminalized consensual same-sex relations, including three Caribbean states: Antigua and Barbuda, Barbados, and St. Kitts and Nevis. The High Court of Justice for Antigua and Barbuda rejected discriminatory colonial-era laws on grounds of liberty, protection of the law, freedom of expression, protection of personal privacy, and protection from discrimination. Previously, a “buggery” provision in the penal code allowed for up to 15 years in prison, while a conviction under the “serious indecency” provision could have led to up to five years in prison.
As many post-colonial states, Antigua and Barbuda kept the laws on the books, but seldom or ever enforced them. However, these types of laws are ripe for blackmail and extortion and send a negative message that contributes to a climate in which violence and discrimination occurs, sometimes with impunity. Similar laws were struck down in Barbados by the High Court on grounds that prohibitions on same-sex intimacy contravened constitutional rights to privacy, liberty, equal protection and treatment under the law, freedom of expression, and freedom from discrimination on the grounds of sexual orientation. The court found that the constitutional right to liberty, “protects inherently private choices for all whether gay or straight.” The Eastern Caribbean Supreme Court rejected St. Kitts and Nevis’ 1873 prohibition on homosexual sex on privacy grounds.
After decades of trying, and several unsuccessful court challenges, activists in Singapore achieved a long-awaited albeit partial victory, when Prime Minister Lee Hsien Loong announced that Singapore would repeal a penal code provision that banned gay sex, but also introduced constitutional amendments to limit marriage to heterosexual couples in perpetuity. In the South Pacific, the Cook Islands decriminalized same-sex conduct. Pope Francis gave further impetus toward decriminalization by denouncing criminal penalties for same-sex conduct, reinforcing a long-held position of the Vatican that Catholic Church leadership in some countries does not share.
In the most significant UN decision on same-sex intimacy since Toonen v Australia (1994), the Committee on the Elimination of Discrimination against Women (CEDAW) found, in March 2022, that laws criminalizing consensual same-sex activity between women is a human rights violation. This means that all CEDAW signatories are now obliged to repeal these laws. The case — the first UN case focusing on lesbian and bisexual women — had been brought by veteran Sri Lanka activist Rosanna Flamer-Caldera.
The Sri Lankan Supreme Court and parliament members have since agreed to back a private member bill seeking the repeal of a colonial-era law criminalizing same sex relationships. In the 1994 case, the UN Human Rights Committee, the body that monitors compliance with the International Covenant on Civil and Political Rights (ICCPR), found that sexual orientation was included in the covenant’s anti- discrimination provisions as a protected status. And those laws criminalizing same-sex conduct, even when unenforced, violated the right to privacy.
A perennial problem for organizations working in countries where same-sex conduct is illegal is the ability to register and advocate for basic human rights. In February, Kenyan activists welcomed a Supreme Court ruling that the National Gay and Lesbian Human Rights Commission was entitled to register with the NGO Coordination Board, notwithstanding a criminal code prohibition on same-sex conduct. The case dates to 2013, when the organization was denied registration on grounds that it contained the words “gay” and “lesbian.”
Stigma and misinformation often undergird discrimination so activists in Vietnam welcomed a directive from the Health Ministry in August 2022 officially confirming that same-sex attraction and being transgender are not mental health conditions. In another blow to discrimination, in April the Inter-American Court of Human Rights issued a landmark ruling that found Perú responsible for violating a gay man’s rights to equality before the law and to judicial protection, after he and his partner faced discrimination in a commercial establishment and from Peruvian authorities.
In February, Spain passed comprehensive legislation to advance the rights of LGBTI people, including a provision allowing for legal gender recognition through a simple administrative procedure based on self- identification. And in the same month the Court of Final Appeal in Hong Kong ruled that the government’s requirement that transgender men undergo “full sex reassignment surgery” to change their legal gender is unconstitutional under the Bill of Rights.
The legal regulation of family life is often fraught terrain for same-sex couples. In May, Namibia’s Supreme Court ruled that the government must recognize same-sex couples who married abroad for residency rights. This does not change the fact that same-sex relations in Namibia are still a crime. In a similar development, in May the Supreme Court of Nepal instructed the government to recognize the same-sex foreign spouse of a Nepali citizen.
In March, Bolivia’s highest court recognized civil unions for same-sex couples. In February, a South Korean court ruled that a same-sex couple should receive the same benefits as different-sex couples through the National Health Insurance Service, the first time a court has recognized the rights of a same-sex couple in South Korea. In a boost for marriage equality in Japan, four district courts out of five ruled that the country’s prohibition on marriage for same-sex couples violated the constitution. Ultimately it will be Japan’s Supreme Court that decides whether the Diet needs to amend the law to recognize same-sex relationships or not.
In Taiwan, where marriage equality was achieved in 2019, the process for joint adoption in the civil code was revised in February so that it is now the same for any married couple. In September 2022, the British government committed to end discrimination against “female same-sex couples” seeking fertility services through the National Health Service. Cuba, where the right to vote has been severely restricted, held a referendum in September 2022, before adopting a revised family code, allowing same-sex couples to marry and adopt.
The long arc of history points to significant progress when it comes to advancing the rights of LGBTQ+ people. Beyond the headlines, and the vocal expression of political homophobia, the past year has seen many instances of progress around the world, testimony to the tenacity of activists, the compassion of some religious leaders, the role of independent judiciaries, and advances made by sympathetic lawmakers.
