Litigation and the Decriminalization of Homosexuality

Abstract

British colonial penal codes contained prohibitions on consensual same-sex intercourse. These laws are increasingly recognized as constraints on the human rights and freedoms of lesbian, gay, bisexual, and transgender (LGBT) persons, contributing to an environment of insecurity and having perverse public health consequences. LGBT transnational advocacy networks in the Commonwealth have used litigation as one strategy to initiate a process of law reform. However, London-based NGOs encounter resistance, most notably by opponents of LGBT rights who are increasingly organized in their own networks, often funded by the American evangelical movement and other religious interests. Most grassroots LGBT organizations have been open to litigation as a possible tool for change. Undoubtedly, some activists have called into question this litigation as less of a priority than other LGBT rights issues, and certainly a litigation strategy may not always be practical. Nonetheless, “sharing” of jurisprudence on anti-sodomy laws among courts in the Commonwealth has helped to generate momentum toward legal protections for LGBT persons, as the successful recent decisions in Belize and India illustrate.