LGBTQI+ rights: legislative changes indicative of worldwide state of flux
LGBTQI+ rights remain in a state of flux following legislative changes around the world, with some jurisdictions moving to enshrine the rights of their queer communities into law, while others roll back the rights of theirs.
In late May, Ugandan President Yoweri Museveni signed the Anti-Homosexuality Bill into law, after initially requesting amendments. The new Act criminalises those identifying as part of the LGBTQI+ community, imposing life imprisonment – and even the death penalty in some cases – for same-sex activities. ‘The censorship of LGBTQI+ rights is not a new trend’, says Joyce Karanja, Diversity and Inclusion Officer of the IBA African Regional Forum and Head of Bowmans’ competition practice in Nairobi. She cites colonial-era penal codes as the reason for the criminalisation of LGBTQI+ lifestyles, but says that many view anti-LGBTQI+ legislation as an attempt by governments to divert attention from other issues they may be facing.
More positively for LGBTQI+ communities, Spain became one of the first countries in the world to pass a law allowing people to change their gender with a simple declaration and without any medical supervision. Previously, trans adults had to provide medical documentation indicating gender dysphoria, as well as proof of two years’ hormone treatment, before being able to change their legally registered gender. The new law also allows those aged 14–15 to apply for a gender change with approval from their parents or legal guardians, but still requires those aged 12–13 to obtain a judge’s permission. Spain has further joined the likes of Brazil, France and New Zealand by banning conversion therapy, while the law contains additional provisions relating to abortion and menstrual leave.
In stark contrast, Russia has stripped away LGBTQI+ rights even further. In December 2022, President Vladimir Putin signed into law a bill that received unanimous approval from the Russian parliament and which significantly expands Russia’s restrictions on ‘gay propaganda’ – referring to any material relating to the LGBTQI+ community. The new law, nicknamed the ‘Answer to Blinken’ law after US Secretary of State Anthony Blinken criticised it, makes it illegal for anyone to promote same-sex relationships and normalise non-heterosexual orientations. It broadens the scope of its legislative predecessor, which banned the ‘propaganda’ of ‘non-traditional sexual relations’ among minors – now, adults are targeted too.
Because in the past, the legal community played a leading role in enforcing criminal laws, it must now take the lead in resisting implacably attempts to reintroduce discrimination
The Honorable Justice Michael Kirby
Former Chair, IBA’s Human Rights Institute Council
Attacks on the country’s LGBTQI+ community stem from anti-Western sentiments. Vyacheslav Volodin, the Speaker of the Duma – the lower house in Russia’s parliament – described the promotion of LGBTQI+ rights as ‘darkness’ spread by the US and European states. His words are a far cry from post-Soviet Russia, which had more liberal attitudes towards homosexuality and transgenderism in the 90s and early 2000s. Today, Russia is one of several ‘hotspots for continuing oppression against queer people’, according to The Honorable Justice Michael Kirby, former Chair of the IBA’s Human Rights Institute Council. ‘Many political leaders and others who support new oppressive laws are clearly jumping on the bandwagon to gather votes’ from citizens, says Justice Kirby.
Advocating hostility and discrimination against queer people is unscientific, cruel and often violent, says Justice Kirby. ‘The fundamental idea at the heart of hostility and discrimination against [the LGBTQI+ community] is an objection to the scientific fact of diversity in living creatures. Patriarchal attitudes in some societies find common voice and action in rolling back earlier progress made on women’s rights and queer rights’, he says.
Meanwhile in the US, the anti-trans and anti-drag legislative movement has expanded significantly. A national state of emergency was announced in early June by the US-based LGBTQI+ advocacy group the Human Rights Campaign (HRC), the first time in the organisation’s history it has done so. In a statement, the HRC cited the ‘unprecedented and dangerous spike in anti LGBTQ+ legislative assaults’, with over 75 anti-LGBTQI+ bills signed into law at state level so far in 2023 alone. In February, Tennessee became the first state to pass a law restricting drag performances, but in early June a federal judge ruled the legislation to be unconstitutional. The law would have criminalised ‘adult cabaret performances’ in public or in the presence of children and banned such events from taking place within 1,000 feet of schools.
The state also passed a law that bans transgender minors from receiving gender-affirming care – one of 20 such laws passed nationwide, according to the HRC – marking Tennessee as one of the US states most hostile to the LGBTQI+ community, alongside Florida and Texas. In contrast, Minnesota’s Governor Tim Walz signed an executive order in March that protects the rights of LGBTQI+ people and supports access to gender-affirming healthcare. There’s also pending legislation, authored by Minnesota Representative Leigh Finke – the state’s first openly transgender politician – that aims to make Minnesota a ‘trans refuge state’. This would mean that those travelling to Minnesota to seek out gender-affirming care would be protected from any legal repercussions arising out of laws in their states of origin.
As for Africa, persecution is still rife across the continent and queer people are even more at risk than before. ‘The future of LGBTQI+ rights in Africa seems unclear’, says Karanja, noting there may yet be a ‘slow shift in public opinion’. She says the legal profession can continue to support these communities and ‘achieve milestones through court cases and representation’. In a recent Kenya Supreme Court decision, the judges ruled that it’s discriminatory to deny the registration of an LGBTQI+ association, while in Botswana the courts have ruled against the criminalisation of same-sex relationships. In Angola, the country’s parliament has approved a new penal code that decriminalises same-sex acts. ‘Because in the past, the legal community played a leading role in enforcing criminal laws, it must now take the lead in resisting implacably attempts to reintroduce discrimination and to enforce cruelty that denies equality to all people’, says Justice Kirby.
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