On 24 August 2017, the Supreme Court of India issued a judgment on the protection of the right to privacy under the Constitution of India. Crucially, it was recognised (at para. 126) that “sexual orientation is an essential attribute of privacy.” The Court was also explicitly critical of the approach previously adopted by the Court in Suresh Koushal v. Naz Foundation (2013).
The Appellants were arrested in a bar in Diani on 18 February 2015 on suspicion of engaging in same-sex sexual activities and distributing pornographic material. They were taken to Makadara General Hospital and subjected to anal examinations and forcibly tested for HIV/AIDS and Hepatitis B. The Court of Appeal held that there was no proper basis for issuing the order compelling the Appellants to undergo medical examinations and testing and the examinations were found to be not only unconstitutional, but unreasonable and totally unnecessary.
The Supreme Court found that a law criminalising consensual sexual conduct between adults in private, including same-sex intimacy, violates the constitutional rights to dignity, privacy, equality before the law, and non-discrimination on grounds of sex, and cannot be justified on the basis of ‘public morality’. The Court also found that international treaty obligations must inform the interpretation of the Constitutional rights. As a result, the law was declared void and struck out to the extent that it captures consensual sexual conduct between adults in private. The court awarded costs to the Claimant.
This note contains a summary of the parts of the recently issued Sri Lankan Report on Public Representations on Constitutional Reform that recommend the recognition and implementation of the rights of LGBT people. It considers the implications of this Report for the decriminalisation of same-sex relationships in the country and wider protections against persecution of and discrimination against LGBT people.
Our report Breaking the Silence: Criminalisation of Lesbians and Bisexual Women and its Impacts shows that is illegal to be a lesbian in almost a quarter of all the countries in the world. This is the first ever global in-depth analysis of how laws against homosexuality specifically impact lesbians and bisexual women.
The Botswanan LGBT rights organisation, LEGABIBO, had their right to freedom of association upheld at the Court of Appeal following their High Court victory in November 2014. The Court of Appeal found that all persons, whatever their sexual orientation, enjoy an equal right to form associations, with lawful objectives for the protection and advancements of their interests. The refusal of the Minister to allow the registration of LEGAbibo was unconstitutional.