OPINION: Laws don’t sleep: LGBTQ+ people are at constant risk when homosexuality is criminalised

by Julia Ehrt | ILGA World
Monday, 12 September 2022 15:50 GMT

Revellers dance as they celebrate LGBTQ+ rights during the annual Pride parade in Brasilia, Brazil July 3, 2022. REUTERS/Ueslei Marcelino

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The possibility of these ‘dormant’ laws striking down at any time means LGBTQ+ and gender-diverse people live perpetually under threat

Julia Ehrt is the Executive Director at ILGA World.

In 2021, two women were sentenced to five years behind bars on the basis that they had slept in the same house overnight. Years before, two men were arrested as one of them was supposedly “walking like a woman”.

Stories like these are all too common around the world. But how are they even possible?

To date, around one third of United Nations member States continue to criminalise consensual same-sex sexual acts between adults.

This black-letter law approach, however, is hardly the full picture. In societies where same-sex relations are criminalised, and any deviation from gender norms can be read as evidence of homosexuality.

In this way, how a person looks, dresses and talks can become indicative of probable ‘criminal activity’ and be enough to warrant an arrest.

More than any ‘illicit’ - and yet consensual - sexual act, non-conforming gender expression is at times all it takes to be in trouble.

During the past few weeks, the global push to repeal criminalising provisions has gained new momentum: first Antigua and Barbuda, and then Saint Kitts and Nevis, declared laws criminalising same-sex sexual acts to be unconstitutional.

The Prime Minister of Singapore has vowed for his country to do the same soon.

And yet, despite this good news, we cannot ignore that the targeting of LGBTQ+ and gender-diverse persons continues unabated across the world.

A recent report by ILGA World detailed hundreds of cases over the last two decades in which LGBTQ+ people were subjected to fines, arbitrary arrests, prosecutions, corporal punishment, imprisonment and more – including the possibility of the death penalty.

The documented cases are likely only the tip of the iceberg, as many instances may not have been formally reported. Public records also might not exist or could have got lost or been destroyed.

Incomplete data and inaccessible archives help governments shrug off any call to repeal its criminalising provisions. States have often dismissed such laws as ‘dormant regulations’ – but there is now plenty of evidence that these laws never really sleep.

In recent years, countries that at one point in time may have been regarded as relatively ‘safe’ or ‘quiet’ have seen sudden shifts in rhetoric and enforcement.

The possibility of these laws striking down at any time means LGBTQ+ and gender-diverse people live perpetually under threat, even when seeking asylum.

Claims that a law is rarely enforced are simply not enough to make a country a safe place to be sent back to.

Moreover, other less explicit provisions are also used to target our communities. At times, even necessary measures to contain the Covid-19 pandemic presented a danger to LGBTQ+ lives.

Under criminalising laws, people of diverse sexual orientations, gender identities and expressions have also been arrested even when trying to report a crime they are the victim of.

In many instances, there is little to no proof of any illicit activity to support these arrests. Reports show how forced anal examinations or confessions - at times allegedly extracted through torture and beatings - have also been used in search of ‘evidence’ of any same-sex activity.

With a constant Sword of Damocles hovering over their heads for simply just being, a large part of the population is excluded from participating in public life, and from contributing to society.

The consequences are hard to ignore: discrimination can take a toll on the mental health of LGBTQ+ people, and on their capacity to secure themselves housing, education, or even access the formal labour market.

Exclusion has an effect on the economy as well: a 2016 study estimated the cost of homophobic laws and social norms to be holding back the global GDP to the tune of more than a hundred billion dollars a year.

Today, calls to repeal criminalising laws are becoming stronger and stronger. As the UN Independent Expert on Sexual Orientation and Gender Identity pointed out, “There is no reason why we should not demand to live in a world free of the scourge of criminalisation of diversity in sexual orientation or gender identity by 2030.”

States have a duty to leave no one behind. But more voices need to join in that call: civil society at large, multilateral institutions, churches and religious leaders, the private sector, and many more actors can all play their own part in striving towards equality.

Criminalising laws continue to hamper the livelihood of millions of people. Allowing everyone to participate in society, each to their own capacity, is a responsibility of us all.

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