The rainbow connection

Around half of the countries that still criminalise gay sex are members of the Commonwealth. Natalie Healey explores the impact these laws have for LGBTQ communities, and what is needed to further progress on this issue

Laws are supposed to protect us but sometimes they lead to immense pain. In the 1980s at the height of the AIDS crisis, a children’s story book called Jenny Lives with Eric and Martin inspired legislation that caused shame and confusion for many gay, lesbian, bisexual, trans and queer (LGBTQ) people in the UK. Margaret Thatcher’s notorious section 28 prohibited local authorities from ‘promoting homosexuality’. Introduced in 1988, it left teachers unable to support pupils questioning their sexuality and to fear they’d be sacked if they challenged homophobic bullying. Activists tirelessly campaigned against the contentious legislation, but it was 15 years before it was repealed in England.

Section 28 may be gone – and the UK is now considered one of the most liberal places for LGBTQ rights – but Britain’s homophobic past has a lasting legacy in other parts of the world. During the colonial period, the country enforced ‘decency’ and ‘morality’ laws across the Commonwealth, derived from the 1553 ‘Buggery Act’ that first criminalised homosexuality under Henry VIII’s reign. Consensual gay sex was finally legalised in 1967 in England and Wales. But in many former British colonies, it is still a criminal offence. In Jamaica, sexual intimacy between men is punishable by up to ten years in prison. In Kenya, it’s up to 14 years. While Bangladesh, Barbados and Uganda have maximum sentences of life imprisonment. In parts of northern Nigeria, the death penalty is imposed. Out of the 72 countries which still criminalise gay sex, almost half of them (34) are members of the Commonwealth.

Colonialism isn’t necessarily the full explanation for anti-LGBTQ legislation in the Commonwealth today though. Some former British colonies have strengthened the laws since independence, according to lawyer and researcher Lucas Ramón Mendos from the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA). In places such as Sri Lanka and Uganda, the original legislation has been updated to criminalise sex between women as well as men. “Saying that these are remnants of the British occupation and that’s the whole story can dismiss the fact that some countries have made explicit decisions to keep these laws on their books or expand their scope,” Mendos says.

Stigma and discrimination

Criminalising sexual orientation or gender identity causes harm in numerous ways. In countries where gay and trans rights are restricted, LGBTQ people are more likely to be harassed, exposed to violence and suffer poor mental health. This is even the case in countries that rarely enforce these rules. Yvee Oduor, an activist from the Gay and Lesbian Coalition of Kenya (GALCK) says while there have been few convictions for homosexuality in their country, “laws which continue to criminalise same sex acts in Kenya have perpetuated the notion that queer people are ‘illegal’”.

“The deeper, more evil mischief of these laws is the constant underlying stigma, the discrimination they create, and the violence they enable,” agrees Téa Braun from the Human Dignity Trust, a global organisation that challenges legislation that persecutes people for their sexual orientation and/or gender identity. She says LGBTQ people are often deterred from reporting hate-based crimes to the police for fear they will be ‘outed’ to the authorities and their local communities, leading to ostracisation, isolation, and further violence.

Many LGBTQ people in the Commonwealth are also unable to access vital support services, says Mendos. “They might deny medical assistance if they feel obliged to conceal that they engaged in same-sex relations.” Or, the healthcare provided might not be specific to that person’s needs. This is a particular problem for groups at greater risk of contracting HIV, such as men who have sex with men. In places that criminalise homosexuality, there is generally lower awareness of the virus, which means people are less likely to use condoms. And many health professionals feel unable to offer advice on the sexually transmitted disease, afraid they could be accused of abetting criminal activity. In Caribbean countries where homosexuality is against the law, one in four men who have sex with men have HIV. This figure goes down to one in 15 in Caribbean nations where same-sex relations are legal, according to research from the United Nations Programme on HIV/AIDS (UNAIDS). “These laws push people underground,” says Braun. “They’re not going to seek healthcare information that reveals their sexual practices if those sexual practices are criminalised.”

There is some room for optimism though. Many Commonwealth countries are beginning to acknowledge the harms anti-LGBTQ legislation can cause. “There’s been a lot of progress and everything is moving in the right direction overall,” says Braun. When the Human Dignity Trust formed ten years ago, 80 countries criminalised homosexuality, compared with the 72 today. A prominent example of positive change is India which overturned its 160-year-old law banning sex ‘against the order of nature’ in 2018. “That was absolutely huge,” says Braun. “But it was a long struggle.” Similarly in 2016, Belize’s Supreme Court declared the country’s anti-sodomy law unconstitutional. Belize held its first pride week in August 2017.

Other nations have furthered LGBTQ rights not by directly repealing their laws but by adding new ones that protect groups from discrimination. “It’s a paradox, but it’s an opening some organisations are exploring very effectively,” says Mendos. It means some countries such as Kenya and Sri Lanka have laws that protect LGBTQ people at the same time as legislation that criminalises them. In Bangladesh, gains were made for trans people in 2013 when the government recognised hijras as a ‘third gender’, but gay sex remains illegal there.

It remains true that the majority of Commonwealth members criminalise same-sex intimacy, so there’s no time for complacency, Braun warns. “The Commonwealth needs bold leadership to recognise that this is a Commonwealth problem and it’s a Commonwealth problem that’s not going away”. She points out that some nations have even taken a backwards step in recent years and made it harder for LGTBQ organisations to help people in need. While Mendos fears the Covid-19 crisis could spell bad news for gay rights. “We’re seeing religious groups attributing the pandemic to the progress that many countries were making.”

Many Commonwealth countries are beginning to acknowledge the harm anti-LGBTQ legislation can cause

Own up to the past

Homophobic attitudes must be challenged, but some well-intentioned approaches have fallen flat in recent years. In 2011, then UK Prime Minister David Cameron attempted to sway countries to reconsider anti-LGBTQ legislation by threatening to withhold aid from governments that still have it in place. This may have inadvertently exacerbated the situation. “Attempts to exert pressure through cuts in international aid creates this narrative by which LGBTQ people are the ultimate culprits of the country not receiving the funds,” says Mendos. A better course of action is rerouting that money and making sure it reaches local organisations that are actually helping LGBTQ people on the ground, suggests Oduor.

There is power in acknowledging the problem can be traced back to the colonial era. In April 2018, during her keynote speech at The Commonwealth Heads of Government Meeting, Theresa May, UK Prime Minister at the time, expressed ‘deep regret’ for the country’s legacy of homophobic laws. “I am all too aware that these laws were often put in place by my country. They were wrong then, and they are wrong now,” she said. She urged Commonwealth nations still subscribing to these codes to overhaul the legislation. “Progress starts with the taking of responsibility,” says Oduor. “Then we can work together to make a change.”

A compelling way to push for that change might be to highlight the positive difference LGBTQ rights can foster for everybody. More progressive legislation may be good for a nation’s economy according to the US Agency for International Development. It found that each additional right a country grants its LGBTQ citizens equates to a $320-per-capita increase in its GDP. And beyond economics, communities are more likely to thrive if people feel free to be themselves. “Awareness about these issues has helped societies realise that LGBTQ people are everywhere,” says Mendos. “It’s not that people are starting to be more gay, lesbian, or bisexual, but rather they are coming out, telling their story and being open about who they are and who they love. That adds up to a community where everyone is allowed to live the life they want.”

Though there has been progress, of the 72 countries which still criminalise gay sex, 34 are members of the Commonwealth

Though there has been progress, of the 72 countries which still criminalise gay sex, 34 are members of the Commonwealth