Celebrating the Repeal of 377 in India – and Reflecting on What Is Next

At the beginning of 2018, more than 3 billion people lived under the cloud of colonial-era anti-LGBTIQ statutes prohibiting and penalizing ‘gay sex’ all around the world.

With the decriminalization of homosexuality for 1.3 billion people in India through a landmark decision by the Indian Supreme Court, a massive victory was won.

Those charged under this law have been subjected to intense violations of their human rights. One such case is of Indian LGBTIQ activist, Arif Jafar, who wrote about his experience of being held for 47 days in jail, where he was tortured physically and mentally after being arrested for alleged violations of section 377.

India is not the only country in which colonial-era anti-sodomy laws have been challenged. Human rights lawyers and LGBTIQ activists around the world have spent much of 2018 filing and continuing to work on challenges to the constitutionality of these statutes in numerous countries.

This blog serves as a reminder of the court-based activism and work that surrounds legalizing homosexuality and ‘gay sex’ which is being done around the world.

We've divided this work into two categories: cases we know to be scheduled and cases without a set date. Local advocacy from activists and government officials around the world is also noted at the end as a driving force behind legal actions.

Scheduled Cases

Kenya
Most rapidly approaching is a case in Kenya, in which Eric Gitari has taken his case against the attorney general of Kenya on the grounds that sections 162 and 165 of the penal code of Kenya violate his constitutional rights to equality, freedom from discrimination, human dignity, freedom, security of the person, privacy and the right to health.

A hearing is expected on September 20. Jonah Chinga, a spokesperson for the Gay and Lesbian Coalition of Kenya told the Independent that the Supreme Court of India’s affirmation of LGBT rights would “...set a momentous legal precedent across all the Commonwealth countries that maintain these discriminatory laws.” He added, “Judges in Kenya are certain to inspect the India ruling and other precedents closely when making their own judgments on the consolidated Kenya petitions.”

Trinidad and Tobago
Judge Devindra Rampersad of the High Court of Trinidad and Tobago will release his final judgement on the result of his April 2018 ruling that Sections 13 and 16 of the Sexual Offenses Act are unconstitutional (https://www.outrightinternational.org/content/judge-rules-buggery-law-un...) as applied to adult consensual acts on September 20. The judge has responded to criticism from conservative groups, saying, “This is not a case about religious and moral beliefs but is one about the inalienable rights of a citizen under the republican Constitution of [Trinidad and Tobago]; any citizen, all citizens."

Unscheduled Cases

Cameroon
Cameroon currently has two concurrent cases before the Supreme Court of Cameroon in which Cameroonian lawyer Alice Nkom is arguing against the constitutionality of the anti-gay statute, article 347.

Lebanon
A court of appeals in Lebanon in July 2018 ruled that article 534 – the statute which outlaws sexual acts that “contradict the laws of nature,” could not be used to persecute homosexuals.

Georges Azzi, executive director of the Arab Foundation for Freedoms and Equality and Outright International Felipa De Souza Awardee noted, “...Other courts could still convict people, but we’re very hopeful -- we’re seeing that the trend now is not to criminalize homosexuality.”

Jamaica
In Jamaica Attorney and activist Maurice Tomlinson is challenging Jamaica’s anti-buggery laws. He filed his case in 2015, however no date has been set for the hearing.

Nigeria
Nigerian attorney Oba Nsugbe has filed for a constitutional challenge against the Same-Sex Marriage Prohibition Act 2014 in the high court in Lagos to decriminalize homosexuality. The Same-Sex Marriage Prohibition Act 2014 also encompasses penalties for “the public show of same sex amorous relationship directly or indirectly,” and “registration of gay clubs, societies and organisations, their sustenance, processions and meetings.”

Botswana
University student Letsweletse Motshidiemang and the LGBTIQ rights group LeGaBiBo have brought about a constitutional challenge to section 164 and 167 of the Penal Code of Botswana. It was as recent as 2014 that the group arguing in court won the right to legal registration from the same high court.

[ Photo by: Thalefang Charles ]

Singapore
Singapore’s high court has twice upheld the constitutionality of Section 377A; entrusting any further action to the country’s parliament. After the decision to decriminalize homosexuality in India, Singaporean diplomat and lawyer Tommy Koh called for activists to raise another challenge to the law. A response to both this decision and calls from Koh has been seen with Johnson Ong Ming, also known by his stage name, DJ Big Kid. Ming brought a challenge before Singapore’s High Court to Section 377A of Singapore’s Penal Court just four days after the news from India had arrived. Currently in Singapore, 55% of residents still support section 377 according to a recent poll.

Barbados
Trans woman Alexa Hoffman, along with a gay man and lesbian woman who have chosen to remain anonymous to protect their safety, have filed their challenge to the constitutionality of the anti-buggery law (https://www.gaystarnews.com/article/my-life-depends-on-me-fighting-the-b...) in Barbados before the Inter-American Commission on Human Rights. No hearing has been set.

Political Movement

UK Prime Minister Theresa May apologized for the enactment of anti-homosexuality laws by the former British Empire, which still exist in the form of section 377 in both Singapore and Malaysia.

Malaysia
Malaysia has also seen a rising tide of homophobia through the introduction of a
bill to harshen punishments for muslim violators of sharia law by sharia courts as well as the utilization of the penal code to charge and punish two women with caning for attempted ‘lesbian sex’. Malaysian Prime Minister denounced the punishment via Twitter, stating that the caning “did not reflect the justice or compassion of Islam”.



[ Art by Malay Karmakar ]

Though these cases may vary in their countries of origin, states of progress, and the scope to which a judgment may speak... What they share in common is a loud and clear challenge from activists to colonial-era oppression in favor of human rights.

If you have any more information on relevant cases to nationally or regionally decriminalize homosexuality around the world, please send a message to nzeitlinger@outrightinternational.org.