Is the criminalisation of homosexuality in the Commonwealth a relic of the British Empire?

By Associate Professor Paula Gerber

Last week The Conversation published an article by Timothy Jones entitled ‘Colonialism, Homophobia and the legality of gay sex in the Commonwealth’. Jones was highly critical of a recent report published by the Kaleidoscope Trust, entitled Speaking Out: the rights of LGBTI citizens from across the Commonwealth. He states that the report “offers a fairly simple explanation for why LGBTI discrimination is so prevalent in the Commonwealth: homophobic legislation is a relic of British Imperial rule.” He spends the remainder of the article suggesting that, rather than colonialism, it is cultural factors that are responsible for LGBTI discrimination in the predominantly “poorer and less developed states in Africa, Asia, the Middle East and the Caribbean” which still ban homosexual activity.  This is a curious assertion to make, and one that does not withstand close scrutiny.

Approximately 80% of Commonwealth nations continue to criminalise same-sex sexual conduct. This is in stark contrast to non-commonwealth countries, where only 25% have laws criminalising homosexuality. It is also clear that before Britain colonised the countries that now make up the Commonwealth, they had no laws criminalising homosexuality. These odious laws were introduced by the British and retained by the majority of Commonwealth countries in the post-colonial era.

Yes, it is true that several of these countries have sought to ‘improve’ these laws by expanding their reach and increasing penalties. For example, in Sri Lanka, up until 1995, the law criminalising homosexuality applied only to men. However eight years ago it was amended to become gender neutral, meaning that lesbians can now also be arrested and prosecuted. Although human rights activists campaign for equality for women, this retrograde step is not the kind of equality they seek.

The fact remains, however, that within Commonwealth countries, there is a clear and direct correlation between colonisation and the criminalisation of homosexuality, and Jones’ assertion to the contrary is simply incorrect.

Timothy Jones further asserts that attempts by groups such as the Kaleidoscope Trust to campaign for the decriminalisation of homosexuality “repeats the narrative of colonisation that it is ostensibly attempting to remedy. In this case, it is sexual liberation – rather than repression – that is being exported to the former colonial world from the former colonial center.”  Once again, this is an erroneous assertion.

The Speaking Out Report was compiled by the Kaleidoscope Trust to give voice to LGBTI individuals from across the Commonwealth.  It is the antithesis of neocolonialism. Rather than seeking to impose western views on Commonwealth governments, it is encouraging such governments to listen to the voices of their own people.  The report is made up of one page summaries of the situation in every Commonwealth country, and in the majority of cases includes details of what is happening on the ground as recounted by LGBTI people themselves. The following examples are taken from the Report:

KC, is 33 years old and from South-Eastern Nigeria.

“I was attacked beaten and paraded naked on the street of Dakwo village, Abuja in July 2013 on the allegation that I am gay. People brought several video camera and mobile phone to record my nakedness. This inhuman degrading treatment has ruined my life and I have been banished from Dakwo village by the village chief whose house I was taken to during the incidence. My life has been ruined. The video went viral and I could not control how people distribute it. I can’t go back to my hometown.”

Jasmine Kaur is an activist with Oceania Pride in Fiji

“Fijian society is homophobic and people are subjected to violence and discrimination on the basis of sexual orientation and gender identity on a daily basis. However younger people are somewhat tolerant and engaging on discussion about homosexuality. There is a lot that needs to be done for the LGBTIQ people in Fiji and groups and networks all over Fiji are doing their best to combat homophobia.”

Anonymous 9th grader in Bangladesh

“Homophobia ruined my childhood. As a child, I wasn’t strong enough to bear the insults and the punches all the other kids threw at me. I used to come home and cry every day, and the worst part was that I couldn’t tell anybody else. If only the society was a bit more tolerant, and parents taught their children that it is okay to be different, I could have had a nice childhood.”

Thus, far from being about Westerners imposing their views of sexual liberation on former colonies, the Speaking Out Report amplifies the views of the LGBTI people living under laws that discriminate against them, or criminalises their conduct. The Report also highlights the success stories, including the relatively recent decriminalisation of homosexuality in five Commonwealth countries, namely:  Bahamas, South Africa, Vanuatu, India and Fiji.

Far from seeking to impose Western mores on non-western Commonwealth countries, the Kaleidoscope Trust, and its ‘sister’ organisation in Australia, the newly formed Kaleidoscope Human Rights Foundation, adopt a rights based approach to their efforts to decriminalise homosexuality in the 78 countries where consensual same-sex conduct is still an offense. Such an approach uses international human rights norms as the framework for informing and guiding all work with sexual minorities. It requires a tailored approach that seeks to meet the needs of rights holders in different countries, and involves empowering LGBTI individuals and organisations to work towards the goal of achieving respect for the universal, inherent, indivisible and inalienable rights of people of all sexual orientations and gender identities.

The ongoing criminalisation of homosexuality in nearly 80% of Commonwealth countries is an unfortunate legacy of the British Empire. The way forward is to empower local LGBTI communities to use universal human rights norms to advocate for the repeal of these abhorrent discriminatory laws that prevent them from leading lives of dignity and equality, which the Universal Declaration of Human Rights says they are entitled to as members of the human family.

Associate Professor Paula Gerber is a Deputy Director of the Castan Centre, and a member of the Board of the Kaleidoscope Human Rights Foundation.

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