Author: Rushika Rabha
Campus Law Centre, Delhi University
As the Global Pride month was celebrated in June, it was not only the celebration of LGBTQ culture but also a reminder of the LGBTQ community’s continuing journey towards equality. This essay gives a brief overview of the rights of LGBTQ people across the Globe or the lack thereof. While some countries are progressive and liberal towards the LGBTQ community, in many places the self-expression of their identity is considered a sin that is sometimes punished by death. It should be noted that legal safeguards against discrimination do not always translate to the absence of harmful attitudes and behaviours towards the LGBTQ community.
Homosexuality and transgenderism have existed since ancient times in many civilizations alongside cisgender heterosexual people. Homosexuality was present in many ancient societies namely in Greece, Egypt, and Rome. Individuals who did not conform to the gender binary of males and females were also present throughout history, for example, Muxes in Mexico, Sistergirls/ Brotherboys in the Aboriginal community of Australia, Hijras in south-east Asian countries and Two-Spirit people of Native America. European colonization, religious orthodoxy, and the classification of homosexuality as a psychiatric disorder are some of the factors that contributed to repression and intolerance of LGBTQ identities. Despite the gradual changes in orthodox attitudes towards LGBT people in many countries across the globe, heteronormative and gender-conforming societal norms continue to suppress and prohibit the expression of their identities. Discrimination, social ostracization, harassment, lack of legal protection are some of the problems faced by the community. Homosexual people are also subjected to death or conversion therapies in some countries. Due to a lack of access to proper healthcare machinery, transgenders face the risk of undergoing illegal gender reassignment surgeries and hormone therapy. Furthermore, many countries have made it mandatory to undergo reassignment surgery to change one’s gender officially in documents. Despite many people from the transgender community being opposed to mandatory surgery to identify as the opposite gender, they want self-identification to be recognized as being sufficient. The right to marry or form civil unions, right to adopt, right to employment and right to freedom of expression is still being denied to the LGBTQ community across several countries.
In a report about the global divide in acceptance of homosexuality, it was seen that countries in
Western Europe and the Americas are more accepting of homosexuality than countries in Eastern Europe, the Middle East, and Sub-Saharan Africa. Factors such as religiosity, economic wealth, and political inclinations of a country's population are related to the rate of acceptance of LGBT people. Countries that have religious affiliations tend to be less accepting of homosexuality. In wealthier economies with liberal policies, for example, Sweden, Netherlands, and Canada, people are the most accepting of homosexuality.
Currently, 30 countries allow same-sex marriage while same-sex civil unions and registered partnerships are recognized in countries like Andorra, Chile, Greece, Hungary, and Switzerland. In contrast, 72 countries have criminalized same-sex relationships and 15 countries criminalize gender identification and expression of transgenders. Furthermore, in ten countries homosexuality is punishable by death.
A concise region to region study of LGBTQ rights has been provided below.
1. SOUTH AND CENTRAL ASIA
The majority of the countries of this region including Bangladesh, Bhutan, Pakistan, and
Afghanistan has made same-sex relations illegal. Some countries like Turkmenistan and
Uzbekistan has made gay relations illegal but lesbian relations legal. In Pakistan and
Bangladesh Sec 377, the British colonial-era law has continued to make homosexuality illegal.
The same law was declared unConstitutional in India in Navtej Singh Johar v. Union of India (2018). Pakistan additionally has Hudood ordinances that outlaw homosexuality. In Nepal, the judgment in Sunil Babu Pant & Others v. Government of Nepal (2007) recognized the third gender and scrapped laws that discriminate based on sexual orientation or gender identity. Transgender people are recognized as the third gender in Pakistan (The Transgender Persons Protection of Rights Act), India, and Bangladesh. In India, the Transgender Persons (Protection of Rights) Act, 2019 has been under continuous scrutiny and objection from the civil society as well as LGBTQ organizations because this Act requires transgender persons to obtain an identity certificate from a District Magistrate after which they are to be conferred with the rights available to a transgender person. It mandates undergoing gender reassignment surgery to obtain that certificate. The implication of this rule is that it makes self-identification as transgenders look pointless and pushes for gender-reassignment surgery to qualify as a transgender.
2. PACIFIC RIM
Same-sex marriage is legal in Australia [Marriage Amendment (Definition and Religious Freedoms) Act, 2017], New Zealand [Marriage (Definition of Marriage) Amendment Bill, 2013], and Taiwan (Enforcement Act of Judicial Yuan Interpretation No.748). In China, homosexuality has been decriminalized in 1997. In countries like Japan, South Korea, Hong Kong, and Philippines homosexuality was either never criminalized or decriminalized. In contrast, homosexuality is criminalized Indonesia, Malaysia, Myanmar, and Brunei.
Some examples of anti-discriminatory laws are Sex Discrimination (Sexual Orientation, Gender
Identity and Intersex Status) Act, 2013 of Australia, Human Rights Act (1993), and New Zealand Bill of Rights Act, 1990 of New Zealand.
In official documents, one can change their gender in countries like Australia, New Zealand, South Korea, Taiwan, China, and Japan. However, this process is quite lengthy and mandates sex reassignment surgery or sterilization.
3. MIDDLE EAST AND NORTH AFRICA
In the Middle East and North Africa expression of LGBTQ identity is heavily suppressed and criminalized in many countries. In Saudi Arabia, Yemen, Iran, and the United Arab Emirates homosexuality can be punished with the death penalty. Israel stands out as the most progressive nation in the Middle East in terms of LGBTQ rights. Same-sex relationships were legalized in 1988, unregistered cohabitation between same-sex couples is recognized and homosexuals are allowed to serve in the military. However same-sex marriages are not legally recognized. It is interesting to note that Israel does allow registration of same-sex marriage performed elsewhere. In 2018, same-sex relations were declared not illegal by a Lebanese Court. Similarly, in Bahrain, Cyprus, Jordan, and Turkey homosexuality is legal. The Turkish government has persistently banned LGBTQ parades and events since 2017. In Egypt, although homosexuality is not technically criminalized, “debauchery” laws are used to arrest people involved in homosexual activity and gender minorities.
In Saudi Arabia, Kuwait, Oman, and United Arab Emirates expression of transgender identity is criminalized. It is seen as a perverted form of cross-dressing.
4. SUB-SAHARAN AFRICA
In Sub-Saharan Africa, homosexuality is criminalized in most countries and is punishable by death in Sudan, Somalia, Nigeria, and Mauritania. It has been decriminalized in some countries which include Angola, Botswana, Cape Verde, Guinea- Bissau, Lesotho, Mozambique, São Tomé and Príncipe, Seychelles and South Africa. Data collected by Afrobarometer(2016-2018), a “pan-African, nonpartisan survey research network”, showed that 78% of Africans across 34 countries did not approve of homosexuals being their neighbours. South Africa is the only country in Africa to legalize same-sex marriage after its parliament voted in favour of same-sex marriages in 2006.
In Nigeria, South Sudan, and Malawi the expression of transgender identity is criminalized. Progress made towards formulating laws protecting the LGBTQ community has been sporadic and people's attitudes towards the community continues to be traditionalistic and homophobic.
The western European region is one of the most progressive regions in the world when it comes to LGBTQ rights. In the Netherlands, Belgium, Spain, Norway, Sweden, Portugal, Iceland, Denmark, France, the United Kingdom, Luxembourg, Ireland, Finland, Malta, Germany, and Austria same-sex marriage is legal. The Netherlands was the first country to legalize same-sex marriage in 2001. In Italy, although same-sex marriages have not been legalized, civil unions were legal from 2016.
In sharp contrast to Western Europe, Eastern European countries lag far behind in their progress towards the acceptance of LGBTQ people even though consensual same-sex acts are not criminalized. In the 1990’s Russia decriminalized homosexual relationships and Transgenders were allowed to change their names in the official documents. However, Putin’s government has stalled the progress of LGBTQ laws and instead pushed for traditional and conservative laws that target the country’s LGBTQ community. Russia’s LGBTQ groups and people are targeted using Anti-LGBT propaganda laws and foreign agent laws. Russia’s “Gay Propaganda” Law which prohibits “promotion of nontraditional sexual relations to minors” has been used to deny access to information about LGBTQ issues by shutting down websites. It has also been employed to silence activists and media. Similarly, the Foreign Agent legislation has been used to fine LGBTQ organizations and to discredit their work by labelling them as a 'Foreign Agent'. Similar laws that target LGBTQ values, ideas, and people under the guise of protecting family values and traditions are also present in Belarus and Lithuania. Some other European countries have also tried to pass similar laws but have either not passed or are still under deliberation.
In many Eastern European countries although transgenders have the right to change their gender in documents, transgenders continue to face problems expressing their gender identity. Hate crimes are also committed against transgenders with legal protection being provided. Transgenders face problems and barriers while accessing healthcare too.
6. THE AMERICAS
Northern American countries are known to have LGBTQ friendly laws but what is lesser known is that many Latin American countries also have progressive legislation that protects LGBTQ people.
In Latin America, Ecuador, Argentina, Brazil, Colombia, Costa Rica, and Uruguay same-sex marriages are legal. While Argentina was the first Latin American country to legalize same-sex marriage in 2010, Uruguay introduced civil partnerships in 2008 and was the first in the region to legalize adoption by same-sex couples in 2009. Most of the countries of Latin America have laws that protect people from discrimination based on their sexual orientation. Brazil and Ecuador have banned conversion therapies being amongst the very few countries that have done so. Guyana is the only country in Latin America where homosexuality is still illegal and the maximum punishment is life imprisonment.
Transgenders can change their gender in official documents without surgery or medical evaluation or legal procedure in Argentina, Bolivia, Colombia, Chile, Ecuador, Brazil, and
Uruguay. Argentina was the first country in the world to allow changing one’s gender entirely on self-identification. Uruguay has a law that stipulates that 1% of all government employees must be transgender. Despite such progressive legislation homosexuals and transgenders in Latin America are still subject to hate crimes and violence in many parts of the region.
In the Caribbean, homosexuality has been outlawed in most of the countries-Antigua & Barbuda,
Barbados, Dominica, Grenada, Jamaica, St. Kitts & Nevis, St. Lucia and St. Vincent & Grenadines. In most of these countries, male homosexuality is illegal while female homosexuality is legal. In 2019, Cuba added a provision in its Constitution which prohibits discrimination based on sexual orientation.
In Central America, homosexuality is legal in all the countries and same-sex marriages are legal in Costa Rica.
In the North America, homosexuality is legal in all countries. In 2005, Canada was the first country in the Americas to legalize same-sex marriage. Same-sex marriages are legal in all North American countries except Mexico where it is legal only in some parts of the country. In the United States of America before the Supreme Court ruling in Obergefell v. Hodges (2015), gay marriage was banned in many states. This ruling removed the bans and made gay marriages legal nationwide.
OTHER IMPORTANT ISSUES IN THE LGBTQ MOVEMENT
Although popular debate and discussion on the LGBTQ movement and their rights mainly centre around the issue of acceptance of homosexuality or gay-marriages and the rights of transgender people, there are issues within this movement that also needs to be addressed. Homosexual couples are not legally allowed to adopt children in most parts of the world. Only in Western Europe, North America and some parts of Latin America adoption have been made legal.
Bisexuality is often ignored and stigmatized in heteronormative narratives. However, even within LGBTQ spaces bisexuals face erasure and are made to feel invisible. Bisexuals are also one of the likely to face mental health issues amongst the LGBTQ community. Alongside homophobia, bi-phobia is also prevalent. Pansexuality is another lesser-known sexual identity regarding which there is little to no awareness in social spaces.
Genderqueer or non-binary people face discrimination in almost all spheres of life which includes discrimination in the healthcare and legal field. Genderqueer or non-binary people are people who do not identify as either male or female. Due to a lack of representation of non-binary people in mainstream media, there is widespread misinformation and harassment.
While seeking help from mental health professionals, many people from the LGBTQ community criticize the lack of adequate understanding of their gender and sexual identity issues, discriminatory behaviour, and infantilizing attitudes.
For heterosexual people, some rights like the right to be free from discrimination based on one’s sexual orientation or the freedom to marry feel like natural rights upon which there should be no scrutiny or deliberation by policymakers. These natural rights that are present in all societies across the globe since time immemorial but have not been extended to people who do not fit into the image of an ideal heteronormative society. To this day, while some countries have changed their regressive ideals, helped in upliftment. LGBTQ identities, and given them their rights. Many countries across the globe still treat LGBTQ identities as a perversion or a mental illness. Hate crimes, violence, and public humiliation are a reality for LGBTQ people in many parts of the world. LGBTQ organizations continue to face problems and hurdles in voicing their problems and expressing their identities with pride. Until LGBTQ people are recognized and treated as equals with respect, their struggle will continue.