Maurice Tomlinson is a senior policy analyst with the Canadian HIV/AIDS Legal Network who is challenging Jamaica’s anti-sodomy law. He also represents three LGBTI Barbadians who are challenging a similar statute in their country.
Tomlinson told the Washington Blade that even though the India Supreme Court ruling is not binding in other Commonwealth countries, it “will still be very persuasive.” Tomlinson also noted the India Supreme Court ruling said the country’s colonial-era sodomy law, known as Section 377, “was exported across the Commonwealth as part of the British colonizing project.”
Jamaica and Barbados, along with Antigua and Barbuda, St. Kitts and Nevis, Dominica, St. Lucia, Grenada, St. Vincent and the Grenadines, Guyana, Gambia, Sierra Leone, Ghana, Nigeria, Cameroon, Uganda, Kenya, Tanzania, Zambia, Zimbabwe, Namibia, Botswana, Malawi, Swaziland, Mauritius, Pakistan, Sri Lanka, Bangladesh, Malaysia, Singapore, Brunei, Papua New Guinea, Solomon Islands, Tonga, Tuvalu and Samoa, still have colonial-era sodomy laws that are similar to India’s Section 377.
A judge on Trinidad and Tobago’s High Court in April struck down the country’s colonial-era sodomy law. The chief justice of the Belize Supreme Court in 2016 ruled a statute that criminalized consensual same-sex sexual relations in the country is unconstitutional.
The National Gay and Lesbian Human Rights Commission in Kenya is challenging the country’s sodomy law.
British Prime Minister Theresa May in April said she “deeply” regrets colonial-era sodomy laws the U.K. introduced in India, which is the world’s second most-populous country, and in other Commonwealth nations. British Ambassador to the U.S. Kim Darroch in June told the Blade during an interview before he hosted a Pride month reception at the British Embassy in D.C. that Commonwealth countries that have yet to decriminalize consensual same-sex sexual relations should do so.
“We just urge all of our friends and partners in other countries around the world to move on as we have done to make their societies more open, more liberal, to embrace anti-discrimination in relation to the LGBT community as we have,” said Darroch. “It just makes your society a better place.”
“Not only has Britain apologized for imposing and exporting this law, but the constitutional rights that are violated by this egregious statute are present in most Commonwealth countries,” he told the Blade.
A State Department spokesperson told the Blade the U.S. “welcomes the decision by India’s Supreme Court on Section 377.” The U.S. Embassy in India was illuminated in rainbow colors last week to celebrate the ruling.
Victor Madrigal-Borloz, the U.N.’s LGBTI rights watchdog, praised the ruling. He also urged countries that have yet to repeal their sodomy laws to do so.
“It is my sincere hope that, today, all other countries that still criminalize homosexuality and other forms of sexual orientation and gender identity, will carefully examine this ruling and decide that the time has come to bring themselves to full compliance with this human rights imperative,” he said.
— U.S. Embassy India (@USAndIndia) September 10, 2018
Singapore faces ‘no real surrounding pressure’ to repeal sodomy law
The Delhi High Court in 2009 struck down Section 377, but the India Supreme Court in 2013 overruled the ruling. Indian lawmakers in 2015 rejected a bill that would have repealed 377.
Jean Chong, co-founder of Savoni, an organization for queer women in Singapore, told the Blade on Tuesday during a Skype interview the India ruling has sparked “a great deal of excitement” among advocates in her country.
Chong pointed out Singapore’s penal code since 1997 has only criminalized consensual sexual relations between two people of the same-sex. Chong told the Blade the Singapore government will likely ignore calls from the U.K., the U.S. and the U.N. to repeal the country’s sodomy law, in part, because Malaysia and other neighboring countries, such as Brunei, have not done so.
Two women who were convicted of having sex in a car were publicly caned in a Sharia court in the Malaysian state of Terengganu on Sept. 3. Those who are convicted of homosexuality in Brunei face the death penalty under the country’s penal code.
Advocates also continue to express concern over the ongoing anti-LGBTI crackdown in Indonesia, which is the world’s most populous Muslim-majority country.
“If we look at our region, there is no real surrounding pressure to do the same,” Chong told the Blade, referring to Singapore and calls to repeal the country’s sodomy law.
Botswana activist optimistic country will repeal sodomy law
Kat Kai Kol-Kes, a transgender rights advocate in Botswana who contributes to the Blade, on Monday said the India Supreme Court ruling “has been received with some jubilation” in her country.
“But I recognize that it seems distant to the greater LGBT+ population in Botswana,” she added.
Batswana LGBTI rights advocates in recent years have celebrated a number of legal victories.
The country’s highest court in 2016 ruled Lesbians, Gays and Bisexuals of Botswana, an LGBTI advocacy group, should be allowed to register with the government of Botswana. Kol-Kes reported a court last November ruled in favor of a trans man who wanted to change the gender marker on his documents.
Botswana in 2016 deported Steven Anderson, an anti-LGBTI pastor from the U.S., after he told a radio station the government should kill gays and lesbians and described the victims of the Pulse nightclub massacre as “disgusting homosexuals who the Bible says were worthy of death.”
Kol-Kes told the Blade that LGBTI Batswana “aren’t quite living in isolation from the rest of the Commonwealth LGBT+ populations.” She nevertheless added their reaction to the India Supreme Court has been tempered somewhat, in part, because the country is preparing for elections that will take place next year.
“We still have a ways to go, but I think we are well on our way to seeing Botswana achieve what India did in 2009 without the 2013 hiccup,” said Kol-Kes, referring to India. “I face the 2018 ruling with hope that history won’t repeat itself and that LGBT+ people of India can map their lives without looking over their shoulders in case they are used as political pawns.”