By Jonathan Cooper
As long ago as 1981 the criminalisation of consensual sex between two adult men was found to be a violation of international human rights law. Mr Dudgeon took on the United Kingdom and argued that his human rights were violated under the European Convention on Human Right (ECHR) because sex between two men was still a crime in Northern Ireland, whereas there had been decriminalisation across the rest of the United Kingdom.
The European Court of Human Rights could have dealt with the issue as a straight forward discrimination question. Why was criminalisation of gay sex only in force in one part of the jurisdiction? To have approached the case from that perspective would have been simple and straightforward. The Court would have found a prima facie violation on the prohibition of discrimination. But the Court went further and held that to criminalise gay men was a violation of the most “intimate” aspect of their right to respect for private life. The Court was categoric that the right to respect for private life protects against the criminalisation of a gay or lesbian sexual orientation. Fundamental human rights principles forbade the targeting of lesbian, gay, bisexual and trans (LGBT) people with the criminal law.
Subsequent cases against Ireland and Cyprus were, therefore, straight forward. To apply the criminal law to gay men enjoying consensual intimacy with other men was an arbitrary interference with their private life rights. As new member states joined the Council of Europe from the East they were required to decriminalise homosexuality if such laws existed on their statute books.
In a recognition that the notion of privacy in the context of criminalising sexual orientation is not just a European concept, in 1994 the UN Human Rights Committee found that criminalising gay men in Tasmania also amounted to a violation of the right to respect for private life, protected by the International Covenant on Civil and Political Rights (ICCPR).
What is staggering, therefore, is the fact that approximately half the countries of the world continue to criminalise homosexuality. Seventy-five jurisdictions have laws criminalising gay men on their statute books, and in approximately half of these the laws also apply to women who have sex with women. The majority of the countries that continue to criminalise inherited their sexual offences laws from the United Kingdom, either as a direct result of colonial rule or that the British, acting in some form of supervisory or quasi-colonial role, revised these jurisdictions sexual offences laws to include the criminalisation of gay men. Egypt is a good example of such a situation. From the Pacific to the Caribbean to India, large swathes of Asia and sub-Saharan Africa virtual carbon copies of the UK’s laws targeting gay men were left in place across former colonies or protectorates. Even the laws criminalising gay men in the USA had their roots in England’s Thirteen Colonies.
The other source of laws criminalising gay men emerges from Islam.
Arguably, the fact that large numbers of countries which have ratified the ICCPR but still continue to criminalise LGBT people is evidence of the weakness of the global human rights project. How has this situation been allowed to continue? The damage caused by criminalising people simply for whom they love is considerable. Not only is there an emotional cost to all concerned, but criminalising gay men has broader implications. It undermines public health, it is bad for the economy and it distorts the justice system.
To its credit, the Office of the High Commissioner for Human Rights at the UN does what it can to highlight the human rights violations that flow from criminalisation, and a UN Expert on Sexual Orientation and Gender Identity has recently been established. But the reality is, to end the agony that the LGBT community is subjected to will require individuals standing up to their states and pursuing litigation. Those that have taken on states in this way include Jeff Dudgeon and Nicholas Toonen, who initiated litigation as a meaningful way forward. Other more recent notable examples are Sunil Pant in Nepal, John Lawrence, who finally outlawed criminalisation in the United States, Thomas McCosker and Dhirendra Nadan in Fiji, and Caleb Orozco in Belize. Gareth Henry and Simone Edwards have a case pending before the Inter-American Commission against Jamaica, and Jason Jones has just embarked upon a challenge to the criminal laws in Trinidad and Tobago. Eric Gitari is pursuing a similar route in Kenya, and challenges to establish the notion that LGBT people have rights have occurred in Uganda and Botswana. There are ongoing cases in all of these and other jurisdictions. Additionally, the criminal laws in Lebanon have been found not to include consensual sexual intimacy between men, but these have only been decisions at lower level courts.
Without question, the preferred route to end LGBT persecution is by legislative reform. Laws governing sexual offences should be victim centred and gender neutral. Where such laws exist it is not possible to target people of the same sex who enjoy intimacy with one another in private. The only effective way to address the consequences of abusive sexual assault and rape can only come from a legislative model that doesn’t target people on the basis of their sexual orientation. Sexual offences laws that go after LGBT people end up distorting the entire sexual offences regime and making everyone less safe.
But in the absence of leadership and legislative reform, litigation in a number of countries that criminalise is the only realistic prospect to end the persecution of people simply because they are gay or lesbian. As a result of the fact that the majority of these laws emanate from the UK, London-based lawyers can be well suited to work with local lawyers to establish why these criminal laws are unconstitutional and/or violate international human rights laws. Many, if not most, countries with these laws are also common law countries and there are powerful arguments that criminalising people for being gay is contrary to the spirit of the common law.
Lawyers involved need to be prepared to use the law creatively; even if the human rights issues are, on their face, straight forward, inevitably there are multiple complications in establishing a successful case. Is privacy the best way forward or does using privacy rights to protect gay men simply entrench difference and discrimination? If these criminal laws do persecute isn’t it more appropriate to end that torment by relying upon the prohibition of inhuman and degrading treatment and punishment. Aren’t equality arguments also the preferred outcome?
The British, in their wisdom, in a number of jurisdictions not only left a legacy of human rights violating sexual offences laws, they also built in saving clauses to a number of constitutions before granting independence. Saving clauses became a major hurdle in death penalty litigation. Can these be overcome? On top of these problems, some countries do not have fully formed privacy rights, others have limited equality laws. However, assuming the umbrella of international human rights law is available, these obstacles can be challenged. And for the LGBT community there is no option but to assert their rights.
Jonathan Cooper has broad experience in litigating LGBT issues. He was the most junior counsel in the UK Gays in the Armed Forces case (ex parte Smith & Grady). He also helped establish trans equality rights (KB v NHS Pension Agency). He has advised on LGBT legal issues all over the world from Uganda to Belize, Nigeria to Indonesia. Jonathan has written extensively on LGBT matters and is considered to be a global expert on LGBT rights.