Decriminalising homosexuality worldwide

This is a snapshot into the progress made to decriminalise homosexuality worldwide, and the barriers that still exist.

Decorative only

This is a snapshot into the progress made to decriminalise homosexuality worldwide, and the barriers that still exist.

Illegality of homosexuality

  • In 2021, there are still over 70 countries in the world where homosexuality is illegal, with the majority concentrated in Africa, and none in Europe.
  • The most recent successful decriminalisation attempts were Botswana in July, 2019 and Gabon in June, 2020.
  • The most recent unsuccessful decriminalisation attempts were in Kenya in May 2019, when the Kenyan High Court refused to overturn its laws, and in Singapore in 2020, when the Singaporean High Court rejected calls to overturn s 377A of the Constitution.

What it means to decriminalise homosexuality

  • 'Criminalisation' refers to a broad spectrum of legal, social and cultural institutional instruments that subjugate LGBTIQ+ people (and their allies).
First and foremost, criminalisation of homosexuality refers to laws, whether legislation, case law or customary law, that criminalises consensual same-sex activity.

(The Human Dignity Trust, 2015)

  • In what has been a relic of gender and sex discrimination, it is less common for same-sex acts between women to be expressly criminalised - this is the case where penal codes refer explicitly to 'sodomy' as prohibited acts.
  • For some countries, the source of these laws dates back to colonisation as the colonising penal code was enforced.
  • At least half of the countries still criminalising homosexuality were subject to British colonisation and remnants of this penal law remains (or has been revised).

(O'Mahoney, Joseph and Han, Enze, 2018)

  • s 377 of the British Penal Code read: "Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
  • Though this provision doesn't explicitly refer to LGBTIQ+ communities, or same-sex acts, it was widely interpreted to mean same-sex acts.
  • This provision was seen (in varying ways), in the criminal codes of Australia, Bangladesh, Bhutan, Brunei, Fiji, Hong Kong, India, Kiribati, Malaysia, Maldives, Marshall Islands, Myanmar, Nauru, New Zealand, Pakistan, Papua New Guinea, Singapore, Solomon Islands, Sri Lanka, Tonga, Tuvalu, and Western SamoaBotswana, Gambia, Ghana Kenya, Lesotho, Malawi, Mauritius, Nigeria, Seychelles, Sierra Leone, Somalia, Swaziland, Sudan, Tanzania, Uganda, Zambia, and Zimbabwe.

(Human Rights Watch, 2008)

  • However, laws are not always the most reflective of the on-the-ground experience for LGBTIQ+ people, and is just one measure of the treatment of LGBTIQ+ people in a country.
  • Some countries have criminalising provisions in their Criminal Codes, despite charges not being laid under these sections for decades.
  • In others, they may have never had formal laws criminalising homosexuality, but in custom and culture, LGBTIQ+ people are targeted by law enforcement, media, public officials and the broader public.
  • Some countries that have decriminalised homosexuality have also made steps towards expunging the criminal records of those charged under the criminalisation records. In certain cases, expungement occurred decades after decriminalisation occurred, and those who had charges experienced discrimination and stigma because of the recorded conviction.

Factors influencing decriminalisation efforts

Decriminalisation efforts will be strongly influenced by:

  • Freedom of movement, expression and speech; including the right to protest;
  • Freedom of the press and thought, including the extent of tone of reporting on LGBTIQ+ communities;
  • The promotion of women's rights;
  • The separation of powers doctrine, including the rule of law and judicial freedom;
  • The separation of church and state, and the degree to which religion is separate from lawmaking;
  • The existence of a doctrine of rights;
  • Membership of international bodies and signatories to treaties; and
  • The rate and severity of policy brutality across the board, among others.

(spur: analysis of indicators)

Recent failed push: Singapore 2020

Section 377A of the Singaporean Constitution criminalises same-sex acts between men in public or private, with punishments of up to 2 years imprisonment. Like many countries who had legislated against same-sex acts, this section is a relic of British colonial rule. In 2020, three gay omen sought to have Section 377A overturned by the High Court on the grounds that it was unconstitutional. The Court rejected their argument, suggesting that it was ‘important in reflecting public sentiment and beliefs.

(Ong Ming Johnson v Attorney-General and other matters [2020] SGHC 63)

Recent successful push: Gabon 2020

In June 2020, Gabon lower house lawmakers voted 48-24 in favour, and its upper house 59-17 in favour of abolishing its criminalising provision. The provision dictated that same-sex acts were "an offence against morality," and attracted a period of imprisonment of up to 6 months and a fine of US$8,600. Unlike many countries surrounding it, Gabon did not have colonial legacy laws, and only formally criminalised homosexuality in 2019. The bill had been introduced by Prime Minister Julien Nkoghe Bekale, who reflected on the bill:

(The United Nations Human Rights Office of the High Commissioner, 2020)

Sources