* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.The UN holds that laws criminalising lesbian and bisexual women violates women's rights in a landmark decision
Téa Braun is chief executive of the Human Dignity Trust
If you are one of the 32 million lesbian and bisexual women around the world living in any of the 43 countries where same-sex intimacy between women could land you in jail, you may be breathing a sigh of relief today.
You could still go to jail – or worse – because the law in your country tells you that if you are intimate with another woman, you are a criminal. But you might feel one step closer to having your humanity recognised, because a recent landmark decision by the United Nations has recognised that your rightful place is not jail. It’s a place called freedom, with, if you so wish, the partner of your choosing.
The case in point is Rosanna Flamer-Caldera v Sri Lanka, brought by my organisation, the Human Dignity Trust, to the UN Committee on the Elimination of Discrimination Against Women (CEDAW), which monitors the compliance by states with their legal obligations under a widely ratified international treaty often described as a bill of rights for women. The Committee held, for the first time since its creation in 1979, that laws criminalising lesbian and bisexual women violate the treaty.
The unjust law in this case is Sri Lankan, and it labels Rosanna a criminal should she be so brazen as to express her sexual orientation in a consensual, intimate relationship. But that’s not all it does. It tells her neighbours, her community and her entire society that she is a criminal. That society then targets her for violence, calls her a paedophile, threatens her with rape or raids the office of the LGBTQ+ rights organisation she leads. It forces her to have security cameras in her home and even in her car; to constantly look over her shoulder.
For many of the other 32 million women who are similarly criminalised, it means being forced into a heterosexual marriage, enduring what can only be seen as a lifetime of state-sanctioned sexual abuse. It means being raped, often by people within their family, in an effort to ‘turn them straight’; to conform or suffer the brutal consequences.
In 15 countries as wide-ranging as Sri Lanka, Barbados, Antigua, Uganda and Tanzania, the criminal offence is ‘gross indecency’ for same-sex intimacy between women, modelled on the colonial-era British offence, but modified from the original male-only model to also capture women.
Others, from Yemen and Ethiopia to Senegal and Cameroon, either simply ban all sexual activity between persons of the same sex or use specific references to same-sex sexual conduct between women, in some cases with reference to religious standards and punishments.
The Islamic Penal Code of Iran criminalises intimacy between women with 100 lashes, or the death penalty upon a fourth conviction. In a state in Nigeria, as recently as 2014, a new offence of ‘lesbianism’ was enacted, with a punishment of 14 years imprisonment.
The UN case spotlights Sri Lanka, but its findings will have implications in most of the 43 countries that have similar laws. CEDAW noted that “the criminalization of same-sex sexual activity between women exacerbates gender-based violence against women,” and that “decriminalization of consensual same-sex relations is essential to prevent and protect against violence, discrimination and harmful gender stereotypes.”
The decision is only the second case ever at the UN to consider laws criminalising LGBTQ+ people – the first one being the landmark Toonen v Australia decision of 1994. Together, they make clear that all the 71 jurisdictions globally that criminalise consensual same-sex intimacy, whether between men or women, are in clear violation of international law.
If you are one of the 32 million women who are criminalised, you would be right to breathe a sigh of relief today. It is you who are right, and it is your state that is wrong.
But you’ll still be looking over your shoulder, at least until your government complies with the law and repeals its archaic criminal provisions. Until it stops telling your neighbours, your community, your entire society that you are a criminal. Until it stops telling you that you could land yourself in jail tomorrow simply because of who you are or who you love.
Sri Lanka has six months to report to the UN on what it has done to comply with CEDAW’s findings. It remains to be seen how much longer Rosanna, and so many others, will need to keep looking over their shoulder.