A History of LGBT Criminalisation

Aside from the references found in the texts of antiquity, such as the story of Sodom and Gomorrah found in Genesis in the Bible, the first recorded references of criminalisation in English law date back to two medieval treatises: Fleta (1290, written in Latin) and Britton (circa the start of the 14^th century, written in Norman French).

The treatises show that the common law at the time, tried in ecclesiastical rather than secular courts, saw sodomy as an offence against God with the punishment of being buried alive in the ground or burnt to death. The latter punishment was applied to “sorcerers, sorceresses, renegades, sodomites and heretics publicly convicted.”

In England, when King Henry VIII made his break with the Catholic Church, much of the former ecclesiastic law tried in the ecclesiastical courts had to be revised and incorporated into secular law to be tried by the state. This included many sexual offences such as the Acte for the punishment of the vice of Buggerie, punishable by death, passed as an Act of Parliament during Henry VIII’s reign.

It was the country’s first civil sodomy law. While anyone could technically be convicted under the act, it was same-sex convictions that were the most common.

Although briefly brought back to the ecclesiastical courts on the ascension to power of the Catholic Queen Mary in 1553, the Act was reinstated by Queen Elizabeth in 1563. Only in 1828, when the Act was repealed and replaced by the Offences Against the Person Act 1828, did the offence focus solely on male same-sex activity.

Crucially, the 1533 Act provided the foundation for the sodomy laws that were eventually exported around the world under British colonial rule over 300 years later.

In 1791, France introduced a new penal code predicated on the belief that private acts by private individuals were not a matter for state intervention. Blasphemy, witchcraft, heresy, sacrilege, and sodomy were all omitted. This made the 1791 penal code the first western law to decriminalise same-sex sexual activity since classical antiquity. It was closely followed by the Napoleonic Code founded on the same principles.

Following in the footsteps of the French Penal Code, the Napoleonic Code, introduced in full in 1804, was adopted by most of the countries occupied by the French under Napoleon. It strongly influenced codes in other countries, helping to spread the model of a criminal code that did not criminalise same-sex activity.

Spain and Portugal, for example, adopted similar laws inspired by the Napoleonic Code in 1822 and 1852 respectively, until Spain re-criminalised in the mid-20th century and Portugal in 1886. However, during their period of decriminalisation, these codes were exported to many Spanish and Portuguese colonies.

The French Penal and Napoleonic Codes had a profound impact, directly and indirectly, on legal systems across the globe leading to the implemention of criminal codes that did not criminalise same-sex activity: Andorra (from 1791), Monaco (1793), Luxembourg (1795), Switzerland (some cantons in 1798 and nationwide from 1942), Belgium (1810 under French rule and 1830 upon independence), the Netherlands (1811 – this includes the Netherlands Associates of Aruba, Curaçao and St Maarten), the Dominican Republic (1822), El Salvador (1822), Brazil (1830), Bolivia (1832), Turkey (1858), Guatemala (1871), Mexico (1872), Benin (1877), Japan (1882, although it is recognised that Japan has largely never criminalised and the influence of the Napoleonic Code only stopped a very brief period of criminalisation), Paraguay (1880), Argentina (1887), Italy (1890), and Honduras (1899), Peru (1924), Poland (1932), the Philippines (1932), Denmark (1933) and Uruguay (1934).

Despite the absence of laws criminalising same-sex relations in the above countries, many nevertheless imposed restrictions on LGBT people in other ways. France’s export of criminalisation-free penal codes also did not extend to all of its colonies, as it maintained sodomy laws in some as a means of social control.

In England, it took nearly 300 years for the Buggery Act 1533, introduced by Henry VIII, to be replaced by the Offences Against the Person Act 1828. The new Act narrowed the offence to focus solely on male same-sex activity, still punishable by death.

This remained in force until the Offences Against the Person Act 1861, which replaced the death penalty for buggery with life imprisonment or hard labour ‘for any term not less than ten years’.

The last two men to be executed for same-sex acts in England, James Pratt and John Smith, were executed by hanging on 27 November 1835.

The Indian Penal Code 1860 (IPC) was drafted on the recommendations of Lord Thomas Babington Macaulay and devised to ‘inculcate European morality into resistant masses.’ So began the process of enforcing Victorian morality throughout the Empire. Section 377 of the IPC was the crime of ‘unnatural offences’ which criminalised ‘carnal intercourse against the order of nature’ with a penalty of imprisonment for life.

India, Pakistan, Bangladesh, Burma, Sri Lanka, Malaysia, Singapore and Brunei also were ruled by legislation based on Section 377.

It took until the 2018 landmark case, Navtej Singh Johar v. Union of India, for the Indian Supreme Court unanimously to rule that the section was unconstitutional.

Variations on IPC (e.g. the Queensland Code 1901, see below) were subsequently ‘copied and pasted’ in to laws in other parts of the British Empire.

The provisions in the Indian Penal Code (IPC) were almost immediately exported back to Britain itself. In the Offences against the Person Act 1861, the death penalty for buggery was replaced with life imprisonment or ‘for any term not less than ten years’, a sentence modelled on the IPC.

The Act was subsequently adapted, modified and incorporated into the codes of various British colonies throughout Africa, the Caribbean and South Pacific over the next half-century.

Introduced by Henry Labouchere, Section 11 of the Criminal Law Amendment Act 1885 made ‘gross indecency’ between men a crime for the first time with a punishment of imprisonment of at least two years with or without hard labour.

In effect the crime of ‘gross indecency’ could be interpreted in many ways, and meant that any intimacy and/or sexual activity between men, in public or private, was criminalised. In practice the law was used broadly to prosecute intimacy between men when the act of sodomy could not be proven.

It eventually became known as the Blackmailer’s Charter. Similar gross indecency laws were also later enacted in British colonies across the globe.

Oscar Wilde and Alan Turing were amongst the many convicted under Section 11.

In 1893, the prohibition against ‘cross-dressing’ for an improper purpose was enacted in Guyana. It took until 2018 for the law to eventually be repealed (see below).

To this day, at least 15 jurisdictions across Africa, Asia and the Middle East still impose criminal sanctions against people whose gender expression does not align with their sex as assigned at birth, using laws that criminalise so called ‘cross-dressing’, disguise, impersonation and/or imitation.

There are two principal historical sources of such laws. In the cases of Guyana, the Gambia and South Sudan, these laws were inherited from British colonial rulers who exported the sumptuary laws that were used to control attire according to occupation, class and gender, resting on a largely Christian ideal of social propriety and morality.

For other states, the criminalisation of gender expression under such ‘cross-dressing’ provisions is rooted in Sharia Law applied in addition to, or in the absence of a statutory criminal provision. For example, section 198(1) of Brunei’s Syariah Penal Code Order 2013, which sanctions “any man who dresses and poses as a woman” and “any woman who dresses and poses as a man”, is broadly used to harass transgender people. Those convicted under this provision are liable to face a fine of up to B$1,000, imprisonment of up to three months, or both.

The Criminal Code of the Australian colony of Queensland was drafted in 1899 by the colony’s chief justice, Sir Samuel Griffith, and came into force in 1901.

The Code expanded the terms of criminalisation established under the Indian Penal Code to criminalise both partners who engage in male same-sex activity.

At the time it was the second most influential penal code after the Indian Penal Code. It directly informed criminalising laws in Papua New Guinea, Nigeria, Kenya, Uganda, and Tanzania.

In England and Wales there was an attempt with the Criminal Law Amendment Bill 1921 to add a provision criminalising ‘gross indecency’ between females, an offence which had always been limited to males. The amendment was shelved due to fears of it being used for blackmail and a perceived lack of evidence that such acts actually took place. This reveals the general invisibility of female sexuality, particularly same-sex sexuality, that was reflected in British criminal law at the time, and was subsequently transported around the Commonwealth.

It was for this reason, rather than any tolerance or indifference, that sexual activity between women was never explicitly criminalised in the UK. However, it was in former British colonies, with many extending gross indecency laws to include sexual activity between women beginning in the late 20^th century after the abolition of British rule and the decriminalisation of same-sex sexual activity in the UK. The Bahamas, Barbados, Brunei, Botswana, the Gambia, Kenya, Malawi, Malaysia, Solomon Islands, Sri Lanka, Trinidad & Tobago, and Zambia expanded on their colonial era laws to criminalise sex between women in the late 20^th and earlier 21^st centuries. Nevertheless, the concept of gross indecency is of British origin.

This does not mean, however, that LBQ women were not subject to criminalisation prior to the introduction of laws explicitly criminalising sexual activity between women. Vaguely worded criminalising provisions, or other offences such as ‘public nuisance’ or ‘undermining public morality’ have been used to criminalise LBQ women in absence of more explicit offences.

Today, at least 41 countries criminalise sexual activity between women. Some do so through provisions explicitly criminalising intimacy between women, while others do so with gender-neutral provisions.

Article 272 of Peru’s 1863 Penal Code criminalised “sodomy”. However, the enactment of the 1924 Penal Code decriminalised private, consensual, same-sex sexual activity.

The legacy of the Napoleonic Code continued to be felt well over a century later as Poland (1932), Denmark (1933) and Uruguay (1934) decriminalised and adopted codes heavily influenced by it.

During this decade Iceland (1940), Switzerland (as a nation in 1942, although some cantons had previously decriminalised in 1798), and Sweden (1944) all decriminalised.

The 1950s saw two Southeast Asian states, Cambodia and Laos, achieve independence from France and model their Penal codes on the French system, meaning that they have never formally criminalised.

Other states that decriminalised in the 1950s were: Greece (1951), Jordan (1951), Palestine (1951) and Thailand (1957).

The Wolfenden Report, published in the UK in 1957 with disregard to the conventional ideas of its day, recommended that ‘homosexual behaviour between consenting adults in private should no longer be a criminal offence.’

The Wolfenden Committee determined that it was not the function of the law to intervene in the private life of citizens. The Committee also rejected the idea that homosexuality was a disease.

It took a further 10 years for the recommendations in the report to make their way into law in the form of the Sexual Offences Act 1967.

Similar to the 1950s in Southeast Asia, the 1960s saw a wave of African states attain independence from France and adopt penal codes that did not criminalise same sex sexual acts, such as Burkina Faso (1960), Côte d’Ivoire (1960), Madagascar (1960), Central African Republic (1961), Mali (1961) and Niger (1961).

Other states that decriminalised in the 1960s were: Mongolia (1961), Czechia/Czech Republic (1962), Slovakia (1962), Hungary (1962), UK – England & Wales (1967), Bulgaria (1968), Germany (1968-69), and Canada (1969).

The Sexual Offences Act 1967 decriminalised private, consensual “homosexual acts” between persons aged 21 and over in
England & Wales – although notably not Scotland or Northern Ireland which took until the 1980s and a decision of the European Court of Human Rights to force the UK government to reform (see 1980 and 1982 further below).

The decriminalisation of same-sex sexual activity in 1967 did not bring full legal equality for LGBT people in the UK. The age of consent for same-sex sexual activity remained at 21 until 1994 when it was lowered to 18, before being equalised with heterosexual sexual activity at 16 with the introduction of the Sexual Offences (Amendment) Act 2000.

Furthermore, it remained a criminal offence for more than two men to engage in consensual sexual activity in private until the introduction of the Sexual Offences Act 2003, and new regressive laws targeting LGBT people, such as section 28, continued to be introduced late into the twentieth century.

In 1969, the Criminal Law Amendment Act 1968-1969 came into effect in Canada decriminalising sodomy and gross indecency if done in private between two consenting adults. This reform was part of an omnibus bill first introduced in 1967 which served as a broader overhaul of the criminal code of Canada.

In a theme that presages developments throughout the 1980s and beyond, Spain’s transition to democracy in 1975 and its joining of the Council of Europe in 1977 led to the legalisation of consensual same-sex activity and equalisation of the age of consent, both in 1979. The role of the Council of Europe in ensuring decriminalistion in member states would only grow in subsequent years.

States that decriminalised in the 1970s were: Costa Rica (1971), Austria (1971), Finland (1971), Norway (1972), Malta (1973), East Timor (1975), Bahrain (1976), Croatia (1977), Montenegro (1977), Slovenia (1977), Cuba (1979), and Spain (1979).

The 1980s saw the landmark decision of the European Court of Human Rights in Dudgeon v United Kingdom (see below) that had far reaching consequences not only on the Council of Europe member states at the time but also on prospective member states that were lining up to join (see 1981 and 1990 below).

States in Europe and beyond that decriminalised in the 1980s were: Scotland (1981), Colombia (1981), Vanuatu (1981), Northern Ireland (1982), Micronesia (1982), Portugal (1983), New Zealand (1986), Israel (1988), and Liechtenstein (1989).

In 1980, the Criminal Justice (Scotland) Act 1980 was enacted – the equivalent of the Sexual Offences Act 1967 in England & Wales, decriminalising same-sex activity in Scotland subject to the same conditions.

As the first successful case of its kind, the European Court of Human Rights issued its landmark judgment in Dudgeon v United Kingdom finding that Northern Ireland’s laws criminalising same-sex acts between consenting adults were a violation of the right to privacy of the European Convention on Human Rights (ECHR).

This was the first case on the issue of criminalisation to succeed under human rights law anywhere in the world and formed the basis of successful litigation in relation to the Republic of Ireland (1988) and Cyprus (1993). Male same-sex activity was decriminalised in Northern Ireland the following year.

It has also had a much greater impact, as the principle of decriminalisation that it established under the ECHR became an express condition for prospective states to accept prior to being admitted to the Council of Europe and many states therefore repealed these laws prior to joining (see below).

The case was also relied upon in Toonen v Australia (see below), brought before the UN Human Rights Committee, which resulted in the repeal of Australia’s last sodomy laws.

As a sign of the growing importance and power of international institutions, and in the light of the decision of Dudgeon v United Kingdom, the Council of Europe adopted decriminalisation as a necessary condition to apply to all member states. Although a condition from the early 1980s, its effects became felt largely in the 1990s following the collapse of the Soviet Union and the disintegration of the former Yugoslavia, as most candidate states from Eastern Europe and the former Soviet bloc decriminalised prior to their accession (see below).

As a result of the 1981 case of Dudgeon v United Kingdom, the Homosexual Offences (Northern Ireland) Order 1982 was introduced to decriminalise same-sex sexual activity between men in Northern Ireland and give effect to the case of Dudgeon.

This case ensured the decriminalisation of same-sex activity between men throughout the UK.

Trinidad & Tobago added to its colonial-era ‘buggery’ provision a ‘serious indecency’ offence through the Sexual Offences Act 1986, which was not limited to men and therefore criminalised sexual acts between females for the first time.

This marked the beginning of a trend over the following decades in which a series of (mostly Commonwealth) countries expanded their criminalising provisions to explicitly include sexual activity between women. In 2018 all provisions criminalising same-sex sexual activity were declared unconstitutional in Jason Jones v Attorney General of Trinidad and Tobago (see below).

As the second successful case of its kind and building on Dudgeon v United Kingdom, the European Court of Human Rights held in Norris v. Ireland that the criminalisation of private, consensual same-sex sexual activity in Ireland violated Mr Norris’s right to privacy under Article 8(1) of the European Convention on Human Rights.

It notably determined that these provisions interfered with Mr Norris’s right to privacy, irrespective of the fact that he (unlike Mr Dudgeon) had not been the subject of any police investigation or prosecution.

Like Trinidad & Tobago, the Bahamas replaced its colonial-era provisions through the Sexual Offences Act 1989, explicitly criminalising sexual activity between women for the first time with the offence of ‘lesbianism’. Just two years later in 1991 all consensual same-sex sexual acts in private were decriminalised (see below).

In the first major post-colonial amendment of its Penal Code, Malaysia widened the scope of its ‘unnatural offences’ provisions, including making the ‘gross indecency’ provision gender-neutral, therefore criminalising sexual activity between women. Many states in Malaysia also apply Sharia law, which criminalises sex between women as ‘musahaqah‘.

The early 1990s saw a major expansion of the Council of Europe membership due to the collapse of the Soviet Union and the disintegration of the former Yugoslavia. In 1989, for example, there were 22 member states whereas by 2010 this had risen to 47.

To join the Council of Europe, new member-states must undertake certain commitments, including conforming their criminal laws to the European Convention on Human Rights (ECHR). As we know from the situation in Northern Ireland described in Dudgeon above, the ECHR right to privacy prohibits the criminalisation of same-sex activity. By the time candidate states from Eastern Europe and the former Soviet bloc applied for membership of the Council of Europe, it was a condition of their accession to decriminalise.

By way of example, the following countries decriminalised at or around the time they joined: Lithuania (joined the Council of Europe in 1993; decriminalised in 1993), Estonia (1993; 1992), Romania (1993; 1996), Serbia (2003; 1994), Ukraine (1995; 1991), Albania (1995; 1995), Latvia (1995; 1992), Macedonia FYROM (1995; 1996), Moldova (1995; 1995), Russia (1996; 1993), Bosnia and Herzegovina (2002; 1998-2001), Georgia (1999; 2000), Armenia (2001; 2003) and Azerbaijan (2001; 2000).

The Council of Europe’s efforts to spread democracy in Europe have therefore resulted in Europe being the only criminalisation-free continent.

It is worth noting that several states, east of the Iron Curtain, had already decriminalised much earlier, such as Poland (1932), Czechia/Czech Republic (1961), Slovakia (1962), Hungary (1962), Bulgaria (1968), Croatia (1977), Montenegro (1977) and Slovenia (1977).

Kazakhstan (1998), Kyrgyzstan (1998), Tajikistan (1998), all former Soviet states, have since also decriminalised largely under the influence of the Council of Europe and becoming eligible to apply for full membership, “Special Guest” or “Partner” status to the Council.

The 1990s also saw the European Court of Human Rights continue to make landmark decisions, for example highlighting differences in the age of consent in the criminal law which discriminated unjustifiably against homosexuals (see Sutherland v UK in 1997 below).

Other states that decriminalised in the 1990s were: the Bahamas (1991), Hong Kong (1991), Guinea Bissau (1993), Ireland (1993), Belarus (1994), Kosovo (1994), Serbia (1994), Ecuador (1997), Cyprus (1998), South Africa (1998) and Chile (1999).

Adrian Grycuk, CC BY-SA 3.0 PL, via Wikimedia Commons

The Solomon Islands amended its Penal Code to expand ‘gross indecency’ provisions to include women. This followed a ruling in DPP v Bowie in 1988 in which it was held that limiting ‘gross indecency’ to males was discriminatory, but that this would be remedied by making the offence gender-neutral, thereby also criminalising women.

In the Bahamas, the Sexual Offences and Domestic Violence Act 1991 was introduced and did not criminalise any same-sex sexual activity in private, reversing the position taken in the 1989 Act two years earlier. However, a higher age of consent was imposed as compared with opposite-sex sexual acts and continues to apply as of 2021.

In Hong Kong, consensual homosexual relations in private were made legal through an act of the Legislative Council repealing the sodomy laws.

With the introduction of the Sexual Offences Act 1992, Barbados expanded its criminalising provisions to cover same-sex sexual activity between women through the ‘serious indecency’ offence.

As the third successful case of its kind, building on Dudgeon v United Kingdom and Norris v. Ireland , the European Court of Human Rights determined in Modinos v. Cyprus that the criminalisation of “carnal knowledge… against the order of nature” under Section 171 of Cyprus’s 1959 Criminal Code violated the right to privacy under Articles 8 of the European Convention on Human Rights.

It further held that the Attorney-General’s “consistent policy of not bringing criminal proceedings in respect of private homosexual conduct… provides no guarantee that action will not be taken by a future Attorney-General to enforce the law” or that “the applicant’s private behaviour may be the subject of investigation by the police or that an attempt may be made to bring a private prosecution against him.” As such, the Court held that “the existence of the prohibition continuously and directly affects the applicant’s private life.”

Section 171 was subsequently repealed in 1998.

In 1994, the UN Human Rights Committee issued its decision in Toonen v Australia declaring that domestic laws in the Australian state of Tasmania criminalising consensual same-sex sexual acts, “sexual intercourse… against the order of nature” and “gross indecency” between males under Sections 122(a) & (c) and 123 of Tasmania’s Criminal Code, violated international human rights law.

In particular, it violated the rights to privacy (Art.17) and non-discrimination (Art.26) under the International Covenant of Civil and Political Rights (ICCPR) and crucially, it also held that the “continued existence” of these provisions violated Article 17, irrespective of their lack of enforcement.

In this deeply significant ruling, the decision went further and also established the principle that, “…reference to ‘sex’ in articles 2, para. 1, and 26 [of the ICCPR] is to be taken as including sexual orientation,” meaning that any country that has ratified the ICCPR must ensure equality before the law regardless of a person’s sexual orientation and prevent discrimination based on a person’s sexual orientation.

After continued resistance by Tasmania, the federal government of Australia, in reliance on the UN Human Rights Committee’s determination in Toonen, enacted the Human Rights (Sexual Conduct) Act 1994 to override the offending laws of the state of Tasmania. This was challenged by Tasmania in the High Court of Australia where Tasmania was not successful and finally conceded, repealing the anti-sodomy offence.

Sri Lanka amended its Penal Code to make the offence of ‘gross indecency’ gender-neutral, thereby criminalising sexual activity between women for the first time.

South Africa became the first jurisdiction in the world to provide express constitutional protection from discrimination on the basis of ‘sexual orientation’.

In Case No. 111-97-TC, the Constitutional Tribunal of Ecuador determined that the criminalisation of private, consensual same-sex sexual activity under Article 516(1) of the Penal Code was unconstitutional.

After continued resistance by Tasmania following the 1994 decision in Toonen (see above), the federal government of Australia enacted the Human Rights (Sexual Conduct) Act 1994 to override the offending laws of the state of Tasmania.

The European Court of Human Rights held in Sutherland v United Kingdom that the higher age of consent for sexual acts (18 instead of 16 years of age) between men was discriminatory and violated the right to privacy contained in the European Convention of Human Rights. This resulted in the 2001 law (see below) that equalised the age of consent.

In 1997, China’s ‘hooliganism’ laws, which are believed to have criminalised homosexuality, were repealed. Unlike many of the countries discussed in this timeline, since 1997 there has been no furtherance in China of the legal protection granted to LGBT people.

In National Coalition for Gay & Lesbian Equality & Ors. v. Ministry of Justice & Ors., the Constitutional Court of South Africa held that the criminalisation of private, consensual same-sex sexual activity under the common law offence of sodomy (and its inclusion within various legislation) violated the rights to privacy, dignity and equality before the law & non-discrimination under Sections 9, 10 and 14 of the Constitution of the Republic of South Africa 1996.

“In my view, the decision of this Court should be seen as part of a growing acceptance of difference in an increasingly open and pluralistic South Africa. It leads me to hope that the emancipatory effects of the elimination of institutionalised prejudice against gays and lesbians will encourage amongst the heterosexual population a greater sensitivity to the variability of the human kind.” Sachs J at [138]

Notably, South Africa’s post-apartheid Constitution is the first to explicitly prohibit discrimination on the grounds of “sexual orientation” (see 1996 above).

Botswana amended its Penal Code to expand the ‘gross indecency’ provision to include women. In 2003 a Botswanan court, in Kanane v The State, found that expanding gross indecency provisions to women rectified the previously discriminatory male-only provision. All criminalising provisions were declared unconstitutional in 2019 (see below).

At the turn of the century, the European Court of Human Rights continued to make history with landmark rulings for LGBT rights beyond Dudgeon and Sutherland (see above). Cases in this decade tackled the prohibition on gay men and lesbians joining the armed forces, the decision of which saw 16 member states alter their practices regarding gays or lesbians in the armed forces soon after. In addition a transgender woman from the UK successfully challenged the government’s refusal to allow her to draw a state pension at same age as other women. This led to the introduction of the UK’s Gender Recognition Act 2004.

States continued to decriminalise in the 2000s such as Azerbaijan (2000), Georgia (2000) and Armenia (2003), all prior to becoming members of the Council of Europe, and separately USA (2003), Cape Verde (2004), San Marino (2004), Marshall Islands (2005), Nepal (2007), Nicaragua (2008), and Panama (2008).

Legislation giving effect to Sutherland was achieved by way of the Sexual Offences (Amendment) Act 2000 which lowered the age of consent for homosexual sexual conduct to 16 years in line with heterosexual conduct.

Prior to the Sutherland decision, only about half of the Council of Europe member states had adopted an equal age of consent. This gap closed rapidly after Sutherland and the European Court of Human Rights once again proved itself a champion of LGBT rights and persuaded numerous other states to repeal or amend their discriminatory laws in this area.

Legislation giving effect to the European Court of Human Rights decision in A.D.T. v United Kingdom that the offence of gross indecency violated the right to privacy contained in the European Convention of Human Rights, was achieved.

The Sexual Offences Act 2003 repealed and replaced older sexual offences laws, including the Sexual Offences Act 1956 and Sexual Offences Act 1967. It removed the crime of gross indecency and was victim centred, removing any distinction between genders.

The Supreme Court of the United States held in Lawrence v. Texas that the criminalisation of private, consensual same-sex sexual activity under Texan law, and by extension such laws in any other US State, was protected by a right to personal and private life located within the due process clause of the US Constitution (the Fourteenth Amendment).

The High Court of Fiji in McCoskar v. State declared Sections 175(a) and (c) or Section 177 of the Penal Code (“carnal knowledge of any person against the order of nature” and “gross indecency” between males) violated the rights to equality and privacy and read down the offending provisions so they would be limited in their application only to non-consensual sexual acts. This was followed by the introduction of the Crimes Decree 2009 (which came into force in February 2010, see below), decriminalising private, consensual same-sex sexual activity.

The Gambia passed the Criminal Code (Amendment) Act 2005 which explicitly extended the ‘unnatural offences’ and ‘gross indecency’ provisions to include same-sex sexual activity between women.

Zambia amended its Penal Code to explicitly criminalise sexual activity between women under the ‘gross indecency’ provision for the first time.

In Leung v Secretary of Justice the Court of Appeal in the High Court of the Hong Kong Special Administrative Region ruled that differing ages of consent applicable to heterosexual and homosexual couples were discriminatory.

In Sunil Babu Pant & Others v. Nepal Government & Others, the Supreme Court of Nepal issued a writ of mandamus (court order) emphatically stating, inter alia, that LGBT people are equal in rights and citizenship and refuting any notion that their sexual orientation and/or gender identity is ‘unnatural’.

The Court of Final Appeal of the Hong Kong Special Administrative Region in Secretary for Justice v Yau Yuk Lung Zigo held that laws on buggery in public, violated the constitutional right to equality as there was no equivalent provision applicable to heterosexuals.

The Organisation of American States adopted its first resolution on sexual orientation and gender identity, condemning violence against LGBT persons. Similar resolutions were passed in 2009, 2010, 2011, 2012 and 2013.

The UN General Assembly was presented with the first Declaration on Human Rights, Sexual Orientation and Gender Identity supported by 66 countries (the 2008 General Assembly Declaration). A counterstatement was endorsed by 57 other member states (2008 General Assembly Counter Statement).

In the case of Naz Foundation v. Government of NCT of Delhi and Others, the Delhi High Court “read down” s. 377: the provision was held to be unconstitutional insofar as it criminalises consensual sexual conduct between adults in private, leaving the provision in place to continue criminalising non-consensual non-vaginal intercourse and intercourse with minors, thereby ensuring the rights of victims of sexual assault.

The High Court acknowledged, in line with domestic and international studies and case law, that criminal laws like s. 377 directly and disproportionately impact gay men, target not just conduct but human identity, and render all homosexual men unapprehended felons. It held that the criminalisation of consensual homosexual conduct was a violation of the rights to life and liberty, equality before the law and non-discrimination on grounds of “sex” (which the Court held as including sexual orientation) all guaranteed in the Indian Constitution.

The case was unfortunately later overturned by the Supreme Court in 2013 and it took until 2018 for a new case, Navtej Singh Johar v. Union of India (see below), to successfully decriminalise same-sex activity once again.

The 2010s saw an increasing amount of litigation across the world. For example, Fiji (2010), Northern Cyprus (2014), Belize (2016), Trinidad & Tobago (2018), India (2018) and Botswana (2019) all decriminalised as a result of the influence of various decriminalisation cases in their jurisdictions.

States that decriminalised in the 2010s were: Fiji (2010), Lesotho (2012), São Tomé & Principe (2012), Northern Cyprus (2014), Palau (2014), Mozambique (2015), Belize (2016), Nauru (2016), Seychelles (2016), Trinidad & Tobago (2018), India (2018), and Botswana (2019).

The UN General Assembly voted for an amendment to restore reference to ‘sexual orientation’ to a high profile resolution condemning extrajudicial, summary or arbitrary executions (the 2010 General Assembly Resolution Amendment: 93 in favour to 55 against, 27 abstentions, 17 non-votes/absent) which had been removed at an earlier vote made at a sub-committee level. This was significant as it included a number of States that had not supported the prior 2008 General Assembly Declaration.

Following the landmark 2005 ruling in McCoskar v. State (see above) the Crimes Decree 2009 came into force in February 2010, decriminalising private, consensual same-sex sexual activity.

The UN High Commissioner for Human Rights released her report in accordance with the earlier 2011 Human Rights Council Resolution. The High Commissioner expressly called for the repeal of laws criminalising homosexuality.

The UN Human Rights Council also issued a Joint Statement on Ending Acts of Violence based on Sexual Orientation and Gender Identity, sponsored by 85 member states (the 2011 Human Rights Council Joint Statement), and passed the first ever positive vote raised in the UN on Human Rights, Sexual Identity and Gender Identity (the 2011 Human Rights Council Resolution). It was passed by 23 states with 19 against with 3 abstentions and called on the UN High Commissioner for Human Rights to draw up the first UN report on LGBT people.

Malawi introduced a new offence of ‘indecent practices between females’, specifically criminalising sexual activity between women.

The new Penal Code Act 2010 entered into force. The new Penal Code Act does not include any provisions concerning sodomy or unnatural offences.

The former laws criminalising same-sex sexual conduct were repealed by the adoption of a new penal code, which took effect in November 2012.

The High Court in Kenya observed in Ali Abdi Shabura v Republic (Criminal Appeal 90 of 2007) that the phrase ‘against the order of nature’, used in its ‘unnatural offences’ provision, includes acts between women. Although there appears to be no cases where LBQ women have been prosecuted under this provision, this ruling leaves open the possibility of criminalisation.

The Inter-American Commission on Human Rights noted in its 2012 report on the human rights situation in Jamaica that even though laws do not expressly criminalise sexual acts between women, the effect of criminalisation and societal homophobia is to put women at risk of discrimination and violence, something which LBTQ women face in regularly in Jamaica. This demonstrates the impact that criminalisation can have on the whole LGBT community, even where the laws do not explicitly criminalise all identities.

On 11 March 2013, the Commonwealth Charter was adopted that included a clause opposing discrimination on certain listed or ‘other grounds’.

Read our recommendations for the new Commonwealth Charter.

On 11 December 2013, two judges of the Supreme Court of India overturned the landmark 2009 decision of Naz Foundation v. Government of NCT of Delhi and Others (see above) in which two judges of the Delhi High Court declared section 377 of the Indian Penal Code unconstitutional to the extent it makes consensual homosexual intimacy in private a criminal offence. The High Court decision was a global symbol of modern legal and constitutional analysis, in recognising that colonial-era ‘buggery’ laws violate basic human rights guaranteed to all human beings.

The Supreme Court reversal was widely criticised both inside and outside India as a legally flawed decision and it took until 2018 for a new case, Navtej Singh Johar v. Union of India (see below), to successfully decriminalise the provision once again.

In 2014, the Parliament passed legislation repealing laws criminalising consensual same-sex sexual conduct between consenting adults becoming the last jurisdiction in Europe to do so as a result of pressure from an impending case, H.Ç. v. Turkey, at the European Court of Human Rights, which was supported by the Human Dignity Trust.

Had the case gone ahead, this could have been the fourth case brought to the European Court of Human Rights to challenge the criminalisation of same sex activity on the basis of a violation of the right to privacy under Article 8 of the European Convention on Human Rights.

It shows the growing influence of regional courts and gave confidence to organisations to undertake litigation in other regional courts around the world, for example the two cases that have been lodged before the Inter-American Commission on Human Rights to challenge Jamaica’s criminalisation of same-sex relations, one of which involves the Human Dignity Trust (please read more here). They will be the first ever cases to challenge the criminalisation of homosexuality in the Inter-American system.

Read Human Dignity Trust’s Case Study on Northern Cyprus for more information on the process of decriminalisation.

Private, consensual same-sex sexual activity between gay men was decriminalised in Palau as part of a wholesale reform of its sexual offences, a new penal code containing no such provisions.

Read Human Dignity Trust’s Case Studies on Palau for more information on the process of decriminalisation.

The African Commission adopted, for the first time, Resolution 275 on Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity.

The resolution urged states “to end all acts of violence and abuse, whether committed by state or non-state actors, including by enacting and effectively applying appropriate laws prohibiting and punishing all forms of violence including those targeting persons on the basis of their imputed or real sexual orientation or gender identities, ensuring proper investigation and diligent prosecution of perpetrators, and establishing judicial procedures responsive to the needs of victims.”

Kano State, Nigeria, amended its State Penal Code to add a new offence of ‘lesbianism’, which carries a penalty of 14 years’ imprisonment. While this follows the trend of jurisdictions moving to explicitly criminalise sexual activity between women, it is notable as a non-British criminal formulation, as compared with other jurisdictions which expanded their colonial-era indecency provisions to do so.

Parliament approved, by consensus, the revised Penal Code, Law 35/2014, which replaced the former Penal Code from 1886. The new penal code removes articles 70 and 71, which had criminalised ‘vices against nature’. It came into force at the end of June 2015.

Read Human Dignity Trust’s Case Study on Mozambique for more information on the process of decriminalisation.

Fiji expanded its non-discrimination protections through its 2015 Constitution, which prohibits not only discrimination based on sexual orientation (as in the 1997 Constitution) but also based on gender identity and gender expression. This is particularly notable given Fiji’s influential position within the region.

In August 2016 , the Supreme Court of Belize ruled in favour of Caleb Orozco, finding that Section 53 of the Penal Code, which criminalised same-sex activity between men, was unconstitutional.

Caleb Orozco successfully challenged the criminalisation of private, consensual same-sex sexual activity under Section 53 of Belize’s Penal Code (“carnal intercourse against the order of nature”) before the Supreme Court in Caleb Orozco v. Attorney General of Belize.

The Court held that Section 53 of the Penal Code was unconstitutional and violated the rights to dignity, privacy, equality before the law & non-discrimination – on the grounds of sex – and freedom of expression to the extent that it applied to private, consensual same-sex sexual activity.

The Court of Appeal subsequently upheld the decision of the Supreme Court in 2019, in particular the determination that Section 53 violated the right to freedom of expression and that “sex”, as a characteristic protected from discrimination, encompasses sexual orientation.

Further information on the case is available here.

Read Human Dignity Trust’s Case Study on Belize for more information on how decriminalisation, and wider legislative reform of its sexual offences, was achieved.

Private, consensual same-sex sexual activity was decriminalised in Nauru through a wholesale reform of its wholesale review of its 1899 Criminal Code – resulting in the Crimes Act 2016.

Read Human Dignity Trust’s Case Study on Nauru for more information on the process of decriminalisation.

Private, consensual same-sex sexual activity was decriminalised in the Seychelles through the specific repeal of Sections 151(a) and (c) of the Penal Code 1952 (“carnal knowledge… against the order of nature”) with the introduction of the Penal Code (Amendment) Act 2016.

Read Human Dignity Trust’s Case Study on Seychelles for more information on the process of decriminalisation.

Against the clear global trend of decriminalisation, Section 354 of Chad’s 2017 Penal Code criminalises “sexual relations with persons of the same sex”, punishable with “imprisonment for three months to two years and a fine of between 50,000 and 500,000 francs”.

Read our country profile for more information.

In Jason Jones v. Attorney General of Trinidad & Tobago, the High Court of Trinidad & Tobago held that the criminalisation of private, consensual same-sex sexual activity under Sections 13 and 16 of the Sexual Offences Act (“buggery” and “serious indecency”) was unconstitutional. The government has appealed.

In Navtej Singh Johar v. Union of India, the Indian Supreme Court unanimously ruled that Section 377 (“carnal intercourse against the order of nature”), the colonial era provision that criminalises same-sex activity between men, was unconstitutional.

Significantly, the Supreme Court found that Section 377, to the extent that it criminalised private, consensual same-sex sexual activity, violated a broad array of constitutional protections, including the right to privacy, dignity, equality before the law & non-discrimination, freedom of expression, and health. The momentous judgment also emphatically recognised Section 377 as a harmful colonial legacy.

This followed years of campaigning and litigation, including a High Court win in 2009, which was later overturned at the Supreme Court in 2013.

Read Human Dignity Trust’s Case Digest for further information and analysis of the judgment.

The Caribbean Court of Justice determined that the law that criminalised the “wearing of female attire by man; wearing of male attire by woman” for “immoral purposes” was unconstitutionally vague, violated the appellants’ right to protection of the law and was contrary to the rule of law.

This followed rulings in the High Court of Guyana (2013) and the Court of Appeal (2017) which had found that, while it is not a criminal offence for a male to wear female attire and for a female to wear male attire in public, it was still a criminal act when done so for “immoral purposes.”

At least 15 jurisdictions across Africa, Asia and the Middle East still impose criminal sanctions against people whose gender expression does not align with their sex as assigned at birth, using laws that criminalise so called ‘cross-dressing’, disguise, impersonation and/or imitation.

There are two principal historical sources of such laws. In the cases of Guyana, the Gambia and South Sudan, these laws were inherited from British colonial rulers who exported the sumptuary laws that were used to control attire according to occupation, class and gender, resting on a largely Christian ideal of social propriety and morality.

For other states, the criminalisation of gender expression under such “cross-dressing” provisions is rooted in Sharia Law applied in addition to or in the absence of a statutory criminal provision. For example, section 198(1) of Brunei’s Syariah Penal Code Order 2013, which sanctions “any man who dresses and poses as a woman” and “any woman who dresses and poses as a man”, is broadly used to harass transgender people. Those convicted under this provision are liable to face a fine of up to B$1,000, imprisonment of up to three months, or both.

A complaint was filed to the Committee on the Elimination of All Forms of Discrimination against Women challenging Sri Lanka’s criminalisation of sexual activity between women. The case was brought by Rosanna Flamer-Caldera, Executive Director of EQUAL GROUND, the main LGBT organisation in Sri Lanka, with the support of the Human Dignity Trust. This is the first case anywhere which focuses on the criminalisation of sexual activity between women, and it draws attention to the intersectional nature of the discrimination faced by LBQ women. The CEDAW Committee released their decision on this case in March 2022 (see below).

In Motshidiemang v. Attorney General of Botswana, the High Court of Botswana held the Penal Code provisions criminalising private, consensual same-sex intimacy to be unconstitutional, thereby decriminalising such acts.

An appeal of the ruling by the government was unsuccessful in 2021 (see below).

Brunei announced its intention to fully implement the Shariah Penal Code Order 2013 from April 2019, including provisions which impose more severe punishments, up to the death penalty, for sexual activity between men, as well as criminalising diverse gender expressions and sexual activity between women for the first time. Following intense international backlash, boycotts and diplomatic pressure, the Sultan of Brunei extended a moratorium on the death penalty to the new law. Nevertheless, the criminalising provisions were implemented and LGBT people can be liable for other draconian punishments beyond the death penalty.

In 2019, against the clear global trend of decriminalisation, Article 402(5) of Gabon’s 2019 Penal Code criminalised “sexual relations between persons of the same sex”, punishable with “up to six months’ imprisonment and a fine of up to 5 million FCFA.”

However, in June 2020, lawmakers repealed the criminalising provision from 2019. On 24 June members of Gabon’s lower house of parliament voted to repeal the 2019 penal code that had introduced the criminalisation of same-sex activity. Forty-eight members of parliament backed the proposed initiative by the government to revise an article of the 2019 law. Twenty-four voted against, while 25 others abstained.

On 29 June, members of the Senate voted in favour of the amendment repealing the criminalising provision.

In 2020, Angola voted to decriminalise private, consensual same-sex sexual activity through the enactment of a new Penal Code, removing Portuguese colonial-era “vices against nature” provisions. The new Penal Code came into force in February 2021.

The Inter-American Commission on Human Rights made public a decision it took in 2019 in a case brought by two LGBT Jamaicans, with representation by the Human Dignity Trust and pro bono support from our Legal Panel. The Commission, in Gareth Henry and Simone Edwards v Jamaica, found Jamaica’s laws criminalising same-sex sexual activity violate international law and the rights of LGBT people.

This was the first time such a ruling had been made by the Commission. The case was also significant in that it demonstrated the effects that criminalisation has on LBQ women even where they are not explicitly criminalised under the law, as is the case in Jamaica.

As well as recommending the repeal of the criminalising provisions and that reparations should be made to the applicants, the Commission recommended that anti-discrimination legislation should be adopted, hate crimes against LGBT people should be monitored, and LGBT training/education should be provided for public officials and school children.

Following royal assent from King Druk Gyalpo, Bhutan’s Penal Code Amendment Act became law on 17 February 2021, marking the final step in the decriminalisation of same-sex activity in the Himalayan nation.

The process began in 2019 when the National Assembly, the lower house of the Bhutanese Parliament, passed a bill repealing the Penal Code’s Section 213 prohibiting “unnatural sex.”

The upper house, known as the National Council, unanimously adopted the Penal Code (Amendment) Bill. However, rather than re-affirming the vote of the lower house to remove the criminalising section, they instead chose to retain the provision and amend it, noting, “A defendant shall be guilty of the offence of unnatural sex, if the defendant engages in sexual conduct that is against the order of nature. However, homosexuality between adults shall not be considered unnatural sex.”

On 10 December 2020, a joint sitting of both houses approved the amended Bill, paving the way for the decriminalisation of consensual same-sex activity once signed into law by the monarch.

In November the Court of Appeal of Botswana upheld the 2019 decision of the High Court that the criminalisation of same-sex activity was unconstitutional. As the apex court, the ruling was final, securing the decriminalisation of LGBT people.

The decision marks only the second time that a final court in Africa has removed the provisions that criminalise same-sex activity, more than 20 years after South Africa’s Constitutional Court decriminalised same-sex activity in 1998 (see above).

On 23 March, the Committee on the Elimination of Discrimination against Women (CEDAW) found that the criminalisation of consensual, same-sex intimacy between women is a human rights violation. The case was brought by Rosanna Flamer-Caldera, Executive Director of EQUAL GROUND, the main LGBT organisation in Sri Lanka, with the support of the Human Dignity Trust.

This is only the second case ever at the UN to consider laws criminalising LGBT people – the first one being the landmark Toonen v Australia decision of 1994 (see above) – and the first case at any tribunal to focus solely on the criminalisation of lesbian and bisexual women.

CEDAW found that the Sri Lankan authorities subjected Ms Flamer-Caldera to gender-based discrimination and violence, and had not taken any legal or other measures to respect and protect her right to a life free from gender-based violence, or to eliminate the prejudices to which she has been exposed as a woman, lesbian and activist.

It also found that the authorities have breached her right to access to justice, since the criminal law constrains her ability to complain of abuses and urged Sri Lanka to decriminalise same-sex sexual activity.

In July, the High Court of Antigua and Barbuda struck down the laws that criminalised LGBT people.

Same-sex sexual activity was prohibited under the Sexual Offences Act 1995, which criminalised acts of ‘buggery’ and ‘serious indecency’. These provisions carried a maximum penalty of 15 and five years’ imprisonment, respectively. Both men and women were criminalised under the offences, which were originally imposed on the Caribbean country by the British during the colonial period.

The Court held that in criminalising private, same-sex sexual intimacy between persons aged 16 or older, the laws offended the Antiguan constitutional rights to liberty, protection of the law, freedom of expression, protection of personal privacy and protection from discrimination on the basis of sex, which the Court recognised includes sexual orientation.

The judge agreed with the Claimants that “the right to privacy extends beyond the right to be left alone and includes the concept of dignity of the individual, aspects of physical and social identity, and the right to develop and establish relationships with other human beings.”

The case marked another victory in the courts in the region, following successful litigation in Belize (2016 see above,), Guyana (2018 see above,) and Trinidad and Tobago (2018 see above), respectively challenging the criminalisation of same-sex activity and the gender expression of trans people.

In August, the High Court of Saint Kitts & Nevis the High Court struck down the discriminatory, colonial-era, criminal laws that targeted LGBT people.

Consensual sexual activity between men was prohibited under section 56 the Offences Against the Person Act 1986, which criminalised acts of ‘buggery’, referring to it as ‘the abominable crime’. Attempts to commit the ‘infamous crime’ were also criminalised, under section 57 of the Act. The laws carried a maximum penalty of ten years’ imprisonment with or without hard labour. The law was imposed on the Caribbean country by the British during the colonial period.

The High Court held that the criminal provisions were unconstitutional, as they contravened the fundamental rights to personal privacy and freedom of expression. It found that “[t]o the extent that [the Act] criminalises the private lives of gay persons in this way, the law is excessive and arbitrary.”

The Court also declared that the offences were “null and void” to the extent that they criminalised consensual sexual acts between adults in private.

In November, following almost a decade of legal cases, Singapore’s Parliament repealed Section 337a, the law that criminalised same-sex sexual activity between men in Singapore.

Same-sex sexual activity was prohibited in Singapore under Section 377a of the Penal Code 2008, which criminalised acts of ‘gross indecency’. This provision carried a maximum penalty of two years’ imprisonment and targeted any form of intimacy between male same-sex couples.

In February, the Singapore Court of Appeal reinforced a moratorium on the arrest of gay men engaging in consensual, same-sex sexual activity but declined to remove Section 377a from the statute books.

In August, Singapore’s Prime Minister Lee Hsien Loong announced plans to repeal Section 377A, prompted in part by the cases that had challenged the law. The Singaporean parliament voted to repeal the criminalising provision on 29 November.

In December, the High Court of Barbados struck down the colonial-era laws that criminalised same-sex activity between men and between women.

Sections 9 and 12 of the Barbados Sexual Offences Act, also known as the ‘buggery’ and ‘indecency’ laws, criminalised consensual same-sex activity. Under Section 9, punishment for breaking the law could be as severe as life imprisonment for men who engaged in same-sex sexual activity. Under Section 12, both men and women were criminalised and liable to imprisonment of up to 10 years.

In February, the Kenyan Supreme Court ruled that the National Gay and Lesbian Human Rights Commission (NGLHRC) must be allowed to officially register as a non-governmental organisation (NGO).

In their judgment, the Supreme Court judges held that, ‘(…) it would be unconstitutional to limit the right to associate, through denial of registration of an association, purely on the basis of the sexual orientation of the applicants.’

In 2013, Eric Gitari, the former Executive Director of NGLHRC, challenged the Executive Director of the Kenya NGO Coordination Board’s refusal to permit him to apply for registration of an NGO under a name containing the words ‘gay’ or ‘lesbian’. The judges ruled in his favour at the High Court in 2015 and again at the Court of Appeal in 2019.

In all three levels of the Courts, the binding decisions found that the refusal, which was on the purported basis that homosexuality is criminalised in the east African country, was unconstitutional, and directly in violation of the guarantee of freedom of association, irrespective of sexual orientation.

In April, the Parliament of the Cook Islands voted to decriminalise same-sex sexual activity between men.

The Crimes Act 1969 criminalised ‘indecent acts’ and acts of ‘sodomy’ with the provisions carrying a maximum penalty of five years’ imprisonment. Only men were criminalised under this law. The Crimes (Sexual Offences) Amendment Bill will remove these provisions from the Crimes Act 1969, coming into force on 1 June 2023. An explanatory note for the Bill said there was a growing acceptance to respect privacy and not discriminate against LGBT communities.

The Cook Islands, a self-governing territory in free association with New Zealand, inherited its criminalising provisions from the British during the colonial period, in which the English criminal law was imposed upon New Zealand and the Cook Islands.

In the Pacific region, LGBT people are still criminalised in Kiribati, Papua New Guinea, Samoa, Solomon Islands, Tonga and Tuvalu.

In October, Mauritius’ Supreme Court declared a law that criminalised same-sex intimacy between men unconstitutional.

The case, brought by Abdool Ridwan (Ryan) Firaas Ah Seek with the support of the Human Dignity Trust, challenged the constitutionality of Section 250 of the Mauritian Criminal Code, which dated back to 1838. The provision criminalised ‘sodomy’ and anyone convicted could face a maximum penalty of five years’ imprisonment.

In the judgment, the Supreme Court judges underlined the constitutionally protected right to non-discrimination, stating, ‘…are there any valid reasons for the State to discriminate against the plaintiff having sexual intercourse in the only way available to him? The present case concerns the most private and intimate aspects of the identity of homosexual men, namely the manner in which they have sexual intercourse. Accordingly, there must exist particularly serious reasons for the State to justifiably interfere with the manner in which homosexual men choose to have consensual sexual intercourse in private.’