An Indian court ruled on Wednesday that the country’s anti-sodomy law was legal — a landmark setback in the global march forward for LGBT rights, and in particular the fight in commonwealth countries to repeal British colonial era same-sex bans.
“The 2009 ruling was a real beacon of hope to other struggles against similar laws,” UK LGBT rights activist Alistair Stewart told BuzzFeed in an email, referring to the court’s initial overturning of the law, before it was referred back to the supreme court. “To have overturned it would have been an incredibly important symbolic victory.”
The Indian Penal Code of 1860 was the first law to outlaw sodomy in the British colonies. It went on to serve as the model for anti-sodomy laws throughout the commonwealth. Of the 76 countries that criminalize homosexuality, more than half do so using laws from the British colonial era, according to Stewart.
England decriminalized “homosexual conduct” in 1967, followed by several other commonwealth countries or former territories, including New Zealand, Hong Kong,
Australia, and Fiji. But activists worry that the India ruling may have negative legal repercussions for cases in other commonwealth countries that, like India, still maintain a similar legal system. As a 2008 Human Rights Watch report “This Alien Legacy,” argued: “Eliminating these laws is a human rights obligation. It means freeing part of the population from violence and fear. It also means, though, emancipating post-colonial legal systems themselves from imported, autocratically imposed, and artificial inequalities.”
As the world continues to react to the ruling, here’s a rundown of some of the other commonwealth countries currently in the midst of critical fights against sodomy bans based on similar colonial era laws.
In Jamaica, the colonial-era law banning sodomy is known as the “buggery law.” The 150-year-old law bans anal sex and sets a maximum of 10 years imprisonment and hard labor. Anything judged to be “gross indecency” between men can bring two years in prison. LGBT activists say these laws translate into violence and LGBT persecution.
While campaigning in 2011, Jamaican Prime Minister Portia Simpson-Miller suggested that she might put the law to a vote; so far, her government has not taken any legislative action.
As BuzzFeed recently reported, opposition to changes in Jamaica has gained an international following: activists from the United States and United Kingdom opposed to LGBT rights have urged Jamaican Christian conservatives to resist repealing the law, arguing that homosexuality is a choice and connected to pedophilia.
In June, Javed Jaghai, an LGBT activist, brought a rare court challenge to the 1864 anti-sodomy law. His case is still pending.
Section 53 of Belize’s Criminal Code, written in 1888 and derived from India’s 1860 law, mandates that “every person who has carnal intercourse against the order of nature with any person or animal shall be liable to imprisonment for 10 years.”
A current case is underway in Belize challenging the law. Caleb Orozco sued the attorney general in 2012, arguing that the anti-sodomy law violates constitutional guarantees to freedom of conscience, freedom of expression, and the right to non-discrimination to all citizens. He is awaiting the Supreme Court’s ruling.
For the second time this year, Singapore High Court Judge Quentin Low in October dismissed a challenge to Singapore’s law criminalizing sex between men, a law also based on the British legal code.
Tan Eng Hong brought the case after being arrested for having oral sex in a public bathroom at a mall. In court, Hong’s lawyers presented several scientific studies that proved that homosexuality is as incontrollable as having blue eyes; the sodomy statute, Hong’s side argued, violates the Singapore constitution’s ban on “absurd and entirely arbitrary” laws. In response, the defense argued, based on one study, that “no consensus has been reached” on the “contentious issue” of homosexuality’s causes.
Hong has appealed the ruling.
Uganda has gained a reputation as one of the most dangerous countries for LGBT rights, in part because of recent moves to strengthen its already restrictive anti-homosexuality laws inherited from the British. Under the current law, gay people face 14 years to life. Since 2009, some Ugandan lawmakers have been pushing to enact an “Anti-Homosexuality Bill” that would impose even harsher penalties — and potentially death. In November, authorities arrested a key LGBT rights activist, sparking fear that darker days lie ahead. International attention — and pressure — on these cases continues.
In Nigeria, homosexuality has long been punishable by jail (up to 14 years) based on colonial-era legislation that deems sodomy “against the order of nature”. But a bill passed by Nigeria’s National Assembly in May 2013 severely raised the stakes: the law criminalizes gay marriage, same-sex “amorous relationships” and even membership in gay rights groups, carrying penalties of up to 14 years in prison. The law is still pending the president’s approval.
Several states in northern Nigeria also operate under a form of Shariah law in which homosexuality is punishable by death for men and whipping and/or imprisonment for women.
Malawi law has long criminalized same-sex relations between men (carrying a maximum of 14 years in prison); in 2011, Malawi also outlawed same-sex relations for women, making it punishable by up to five years in prison. In 2010, authorities arrested two Malawian men and charged them with public indecency after they announced their engagements.
After taking office in 2012, President Joyce Banda called for an end to these laws; she later distanced herself from this stance, facing opposition, but has enforced a still-standing moratorium on prosecution.
According to Malaysia’s archaic penal code: “Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to whipping.” Several other states in this predominantly Muslim country have enacted a form of Shariah law that criminalizes homosexual acts for both men and women, with possible penalties of lashes and imprisonment.
Malaysia’s opposition leader Anwar Ibrahim has twice been accused of sodomy, though charges have ultimately been dropped.
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