The rapid progress of affording legal rights to LGBT people in Europe has been astonishing. Within the space of a generation we have seen consensual same-sex relations go from being a criminal offence throughout most of the continent, to achieving marriage equality in the UK, France, Belgium, Spain, Portugal, Luxembourg, the Netherlands, Denmark, Finland, Sweden, Norway, Iceland, and Ireland – the first country to do so by popular referendum. This story, of the triumph of equality and diversity, is also a story of the triumph of the rule of law.
In the landmark decision of Dudgeon v the United Kingdom 1981 at the European Court of Human Rights, the court decreed that the criminalisation of homosexuality amounts to a violation of a person’s right to privacy. This precedent was later applied by the court in relation to both Ireland and Cyprus. Moreover this judgment was incorporated into the eligibility criteria for the Council of Europe, which declared that states could not join the Council without removing bans on consensual same-sex intimacy. Following this, nineteen further countries across the continent, including Georgia, Serbia, and Ukraine, decriminalised. This wave of change is evidence of the law’s capacity to shape the world for the better.
However, despite the fact that the criminalisation of homosexuality has been proven to violate LGBT people’s fundamental human rights to privacy, dignity, and freedom from non-discrimination, 78 jurisdictions across the globe continue to maintain these persecutory laws which demean and degrade LGBT people. Their continued existence undermines the rule of law within these countries, by making the fundamental rights which should be afforded to all citizens not apply to LGBT people. Moreover these laws engender human rights violations against LGBT people, including mob violence, honour killings, and “corrective rape”. This is purely because criminalisation puts LGBT people beyond the reach of the law, making them vulnerable to vigilante-style violence, as crimes are not investigated, police forces turn a blind eye, and perpetrators go unpunished: impunity flourishes.
Other laws pertaining to LGBT people which have similarly devastating effects include the ‘anti-gay propaganda’ laws in Russia which violates LGBT people’s freedom of expression. Similarly, anti-gay organisation laws like those in Nigeria and soon to be in Uganda, remove LGBT people’s right to freedom of association. Nigeria’s law goes even further to criminalise same-sex couples living together. All of these laws persecute LGBT people on the arbitrary basis of identity, and undermine states like Russia’s professed commitments to inclusive democracy or the rule of law.
More damningly, most of the states which criminalise homosexuality are party to international accords which criminalisation conflicts with, like the UN’s International Covenant on Civil and Political Rights. Further, criminalising states claim to applaud the values of the Universal Declaration of Human Rights. This is blatantly absurd given this document was written to instil the idea that human rights apply to every human being without exception, and to protect vulnerable minorities from the tyranny of the majority. For LGBT people in these 78 jurisdictions, nearly half of the world, international law merely amounts to empty words.
The criminalisation of LGBT people poses one of the great tests for international law today. It fundamentally undermines any chance for global equality and diversity, and thus progress. As long as these criminalising penal codes remain all over the world, international law continues to look weak, hollow, and ineffectual. For if it cannot defend the most marginalised, those targeted by the very governments they live under, then it fails to defend those it was principally designed to protect.