How 47 countries have revoked their anti-LGBT laws since 1982. (Graphic courtesy of OHCHR)
A total of 47 countries have repealed their anti-LGBT laws since 1982, leaving a total of 73 countries with such laws in place, according to a new publication from United Nations human rights specialists.
That tally is included in the report “Living Free and Equal” from the Office of the U.N. High Commissioner for Human Rights. It analyzes more than 200 examples of how countries are combating violence and discrimination against LGBTI people.
The OHCHR report describes “Pathways to Decriminalization” thus:
Globally, there is a trend towards decriminalization of consensual same-sex relationships, which has intensified since the findings of the European Court of Human Rights in the case of Dudgeon v. the United Kingdom in 1982 [which found that U.K. laws against consensual same-sex intimacy violated the European Convention on Human Rights].
Since then, and as of mid-2016, 47 countries have taken steps to decriminalize same-sex relationships between consenting adults. Of these, at least 22 had done so as part of a broader review of their penal codes, 12 had specifically repealed criminalizing legislation, and ten had brought about the change as a result of the findings of a judicial body.
Nevertheless, as of mid-2016, 73 States continue to criminalize same-sex conduct between consenting adults, with at least 44 countries continuing to criminalize same-sex conduct between women.
73 nations have anti-LGBT laws, according to the U.N. High Commissioner for Human Rights, including 44 which extend the ban to include consensual lesbian sex. (Graphic courtesy of OHCHR)
Some of the most recent countries to undertake decriminalization in this area are Mozambique, Nauru, Palau, Sao Tome and Principe and Seychelles, all of which have revised their penal codes following recommendations received during the Universal Periodic Review (UPR) of the United Nations Human Rights Council.
In many cases, legislation does not make explicit reference to same-sex relations, but, instead, contains vague references to so-called ”acts against the order of nature” or “vices against nature”. Such terms may be open to multiple interpretations, making it important that States address any legal ambiguity and related uncertainty through an explicit review and repeal of discriminatory provisions in order to remove consensual same-sex activity from the ambit of the law.
Mozambique adopted a new Penal Code in 2014 that removed colonial-era provisions of the former penal code that prohibited so-called “vices against nature”.
Similarly, the penal code of Sao Tome and Principe, adopted in 2012, contains no provision for criminalization, dropping former references to “acts against nature” in the former colonial-era penal code.
The OHCHR report also noted reversals of some anti-trans laws and vague worded anti-LGBT laws:
Transgender people also face criminalization on the basis of their gender identity or expression. At least eight countries criminalize so-called “cross-dressing”. In many more countries, transgender people also face arrest and prosecution on the basis of other, often vaguely defined laws. All such provisions should be repealed.
Samoa removed provisions on “impersonation of a female” – used to arrest and fine transgender persons including the fa’afafine – when it revised its penal code in 2013. A 2014 Court of Appeal decision in Malaysia found a prohibition on cross-dressing in Negeri Sembilan to be unconstitutional, though this judgment was subsequently voided by the Federal Court in 2015 on procedural grounds, requiring new proceedings.
Vague provisions used to criminalize people on the basis of their sexual orientation and gender identity have also been challenged in court. In a 2014 case, a judge in Lebanon ruled that a legal provision that penalizes so-called “unnatural” relations could not be applied to same-sex relations because these are not unnatural. The judgment also affirmed a person’s right to have their gender identity recognized based on that person’s self-perception.
The OHCHR report countered the argument that unenforced anti-LGBT laws don’t need to be repealed:
Some States have sought to argue, including when responding to recommendations to repeal such laws by United Nations human rights bodies and within the framework of [periodic reviews of individual countries’ human rights record], that although the law may criminalize same-sex relationships, relevant provisions are not enforced. Nevertheless, as the United Nations Human Rights Committee already stated in 1994, non-enforcement of a law does not equate to decriminalization, and still violates human rights.
The mere existence of such a law, even if unenforced, can instill a chilling effect in the group being targeted, restricting other rights, such as freedom of expression or association. Even in States that have a policy of non-enforcement of such legislation, arrests and harassment by law enforcement officials have still been documented, as well as high levels of blackmail and extortion. In order to meet their obligations under international human rights law, States must implement formal decriminalization.
Much work remains to be done, the report acknowledged:
Significant challenges remain: the pace of change has slowed with regard to decriminalization, and new laws are being proposed and adopted in a number of countries that would:
- Create criminal sanctions for same-sex relations where they did not exist before;
- Increase penalties of existing laws; or
- Broaden their application to also criminalize the work of civil society organizations and human rights defenders working to protect the rights of LGBT persons.
Several countries have expanded discriminatory provisions of their criminal codes to encompass sexual conduct between women. Laws that criminalize transgender people on the basis of their gender expression remain in place in several countries.
Anti-LGBT laws should be struck down because they violate international standards for human rights, the report states:
Laws that criminalize consensual, same-sex relationships or expression of gender identity and other such discriminatory laws give rise to a number of separate but interrelated human rights violations.
Such laws violate:
- An individual’s right to be free from discrimination, which is enshrined in article 2 of the Universal Declaration of Human Rights and core international human rights treaties, and
- The rights to be protected against unreasonable interference with regard to privacy and arbitrary detention, protected by articles 12 and 9 of the Universal Declaration and articles 17 and 9 of the International Covenant on Civil and Political Rights.
Furthermore, laws that impose the death penalty for sexual conduct violate:
- The right to life, as guaranteed by article 3 of the Universal Declaration and article 6 of the International Covenant on Civil and Political Rights.
Such laws, even if they are not enforced, breach State obligations under international human rights law.