The world has been witnessing a ‘polarized progress’ with the rise of right-wing, populist, and fundamentalist forces threatening to roll back all the rights achieved not just by the LGBTIQ+ communities but by other minorities as well.
Disclaimer: This article is an ambitious attempt to present a summary of the current state of LGBTIQ+ rights in the world. However, given the vast and complex nature of LGBTIQ+ organizing in various contexts and parts of the world, it is simply not possible to capture the whole picture in a limited space without running the risk of homogenization and selection bias to a certain extent. Moreover, the developing nature of the movement means some data presented here may become obsolete anytime. Hence, readers are encouraged to check the references and links for a more detailed and updated information.
Last year, in 2019, the world celebrated the 50th anniversary of the Stonewall Riots, which is widely considered as a major turning point in the history of LGBTIQ+ organizing in the United States and subsequently in many parts of the world. These series of events have led to an unprecedented visibility and assertion of LGBTIQ+ rights making it a new frontier in the civil rights movement in many countries. There have been rapid and affirmative changes in the laws, policies, constitutions, people’s psyche, and socio-political spaces in the last 50 years, thanks to the fearless, steadfast, and strategic organizing of LGBTIQ+ individuals. However, the violence and oppression against LGBTIQ+ people have also multiplied at the same time leaving the community as one of the most marginalized and vulnerable groups. The world has been witnessing a ‘polarized progress’ with the rise of right-wing, populist, and fundamentalist forces threatening to roll back all the rights achieved not just by the LGBTIQ+ communities but by other minorities as well.
To capture some of the progresses and gaps in the current global LGBTIQ+ movement, this article is divided up in some important human and civil rights areas instead of the geographic location and community specificities. While talking about data and statistics on the LGBTIQ+ community, it should be stressed that there is a dearth of information on the community because of criminalization, stigma, taboo, and exclusion. It is also extremely difficult to find disaggregated data based on sexual orientation, gender identity and expression, and sex characteristics (SOGIESC) given how they vary in cultures and contexts. Hence, it is not possible to grasp the lived realities of LGBTIQ+ individuals in their entirety in a quantifiable manner. Therefore, this article mostly focuses on the legal and policy changes that are at the heart of ensuring a just and equitable society. However, it should be mentioned here that having legal protection does not mean there is widespread social support or that the environment is safe for LGBTIQ+ people. As evident by the other articles published in this issue, LGBTIQ+ people face violence and discrimination disproportionately all over the world. All the data provided here, except otherwise referenced with hyperlink, are from the State-Sponsored Homophobia 2019: Global Legislation Overview Update report authored by Lucas Ramón Mendos and published by the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA World).
Legal status of being LGBTIQ+
The legality of LGBTIQ+ identities can be separated under sexual orientation, and gender identity and expression though most of the legal protections are connected to sexual orientation. Even within these categories, the extent of the law varies on factors such as male or female sexuality, specific sexual acts, expressions of support or intimacy, and frequency of the ‘crime’ etc.
Currently, there are a total of 123 countries[1] where same-sex sexual acts are not criminalized. The majority of these countries are in Europe, Latin America, and North America. The rest 70 countries not only criminalize same-sex relationship but also have laws and policies to further persecute LGBTIQ+ people.
LGBTIQ+ people are being killed in 12 countries which have the death penalty for consensual same-sex sexual acts between adults. In Iran, Saudi Arabia, Yemen, and Sudan this death penalty is imposed across the county. LGBTIQ+ people can be punished by death in some provinces of Somalia and Nigeria also. A further six countries have legal or religious provisions that allow for the death penalty for consensual same-sex sexual acts between adults. In Afghanistan, Brunei, Mauritania, Pakistan, Qatar, and the United Arab Emirates, the law exists but there is little data on the implementation.
On June 29, Gabon became the latest country in the world to decriminalize consensual same-sex relations after it actually criminalized the community only a year before. This makes Gabon one of the 22 countries, out of 54, in Africa with no legal consequences for having same-sex sexual orientation. The other countries are Angola, Benin, Botswana, Burkina Faso, Cape Verde, Central African Republic, Congo, Cote d’Ivoire, Democratic Republic of Congo, Djibouti, Equatorial Guinea, Guinea Bissau, Lesotho, Madagascar, Mali, Mozambique, Niger, Rwanda, Sao Tome & Principe, Seychelles, and South Africa.
Similar to Africa, the legal situation of same-sex sexual acts in Asia is also grim and complex. Out of the 42 countries in the biggest continent, only 20 countries have legalized homosexuality. And in many countries it happened mostly due to historical events rather than homegrown movement. Bahrain, Indonesia (most parts), Jordan, Kazakhstan, Kyrgyzstan, and Tajikistan are the Muslim-majority countries where homosexuality is legal. Since Palestine (West Bank) region follows the Jordanian penal code of 1960, same-sex sexual acts are also legal there. Other regions with no criminalization in Asia are Taiwan, Hong Kong, and Macau.
Among the countries in Latin America and the Caribbean (LAC), same-sex sexual acts are legal in 24 countries out of 33, a majority in the region. Except for Guyana, the 9 countries that criminalize homosexuality are mostly in the Caribbean; they are Antigua & Barbuda, Barbados, Dominica, Grenada, Jamaica, St Kitts & Nevis, St Lucia, and St Vincent & Grenadines.
In Oceania, homosexuality is legal in 8 countries out of 14. Meanwhile, there are no countries in Europe and North America that criminalize same-sex sexual acts. However, many countries in these regions have some draconian laws, which may not persecute based on sexual orientation but are frequently used to restrict LGBTIQ+ people from having a dignified, meaningful life.
There are laws that restrict freedom of expression of same-sex intimacy, open support for LGBTIQ+ rights or positive portrayal of the community in media. These restrictions are imposed on individuals as well as on institutions. Morality codes pertaining to public discussion have long been in force in some Arabic States. However, a new legal vehicle, known as “propaganda laws”, has been employed more recently to criminalize expressions of affirmation or support for homosexuality. Some countries have also recently introduced laws that criminalize communications between individuals on same-sex dating applications or websites and even aggravate penalties if that communication leads to sexual encounters.
Such laws restricting the lives of LGBTIQ+ people exist in Africa (15), Asia (15), Europe (2) and Latin America (1). But nowhere these laws had made more impact than in Russia, which continues to restrict LGBTIQ+ organizing in the name of saving the ‘minors’ and ‘traditional family values. In Cameroon, electronic communication between individuals of the same sex for sexual proposition is criminalized. Penalties are enhanced when the communication is followed by sexual intercourse. Sections 264 of the Penal Code (2016) further criminalizes the public utterance of any immoral speech and the drawing of the public’s attention to any occasion of immorality.
Moving from laws related to sexual orientation, the set of laws that are the most important for the trans community is the Legal Gender Recognition (LGR) laws. Most transgender people across the world are unable to obtain any official identification documents that reflect their gender identity. This lack of gender recognition fosters widespread social exclusion, stigma, discrimination, and violence when individuals are perceived to deviate from gender norms because their gender identity and/or expression does not coincide with their sex assigned at birth. The degree of legal recognition provided to transgender people varies widely throughout the world. Some countries allow legally changing name and gender without any medical procedure while some countries require specific medical and surgical procedures.
According to the Legal and Social Mapping conducted by Transgender Europe in 2014, it is possible to change gender marker without any challenges in 51 countries, out of 126 mapped. However, 54 countries/territories require a psychiatric diagnosis and 29 countries/territories require sterilization and/or surgery to change gender marker legally. If the trans person is married, 35 countries would require the person to be divorced before being able to change gender marker. And only 22 countries/territories provide privacy protection to the trans person during this process. Apart from being able or not being able to change name and gender marker, trans people continue to face legal hurdles in accessing trans-inclusive healthcare.
Intersex people also face obstacles when it comes to legal recognition. According to Organization Intersex International (OII) Europe, 1 in every 5 intersex respondents in a survey conducted by European Union for Fundamental Rights (FRA) in 2020, said they faced barriers while trying to register their civil status or gender in a public document. These include bureaucratic obstacles, denial of service or ridicule or harassment by official, and violations of privacy.
In 2015, Malta became the first country in the world to outlaw medical practitioners or other professionals from conducting any involuntary or coerced surgical intervention on minors with intersex variations. The new law officially recognizes the right to bodily integrity and physical autonomy and protects intersex infants and children from non-necessary medical interventions. Albania followed suit in July 2020 to take a similar action when its Ministry of Health put a ban on unnecessary surgeries. Apart from Malta and Albania, the Indian state of Tamil Nadu, in 2019, issued an executive order banning medically unnecessary surgeries on children born with intersex variations. The order bans genital surgeries except in “life-threatening situations,” and warns against surgeons deliberately misinterpreting that clause to continue performing medically unnecessary operations.
Fighting discrimination, hate crimes and violence
All the UN member states have ratified the Universal Declaration of Human Rights (UDHR) and have signed on to a number of international conventions and treaties, all of which prohibit discrimination on the grounds of race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. However, it has been extremely challenging, if not impossible, to include SOGIESC in this range of grounds in many countries. This gap in the legal framework has allowed unrestrained discrimination against LGBTIQ+ people in education, employment, health, housing, provision of goods and services, and other opportunities that any citizen of a country should enjoy.
States usually have such discrimination grounds enshrined in their constitution, which is the main legal text for any judicial decision making. However, only 11 countries explicitly mention sexual orientation in their constitution’s non-discrimination clauses – just 6% of the world. Even then none of these constitutions mention gender identity and expression or sex characteristics as a protected ground.
When it comes to employment, 77 countries have legislation in place to fight discrimination based on sexual orientation. On June 15, 2020, the USA has become the latest country to outlaw workplace discrimination after the Supreme Court ruled that the Civil Rights Act of 1964 protects employees from discrimination based on sexual orientation or gender identity.
As of 2020, 93% of Fortune 500 companies have non-discrimination policies that include sexual orientation. Ninety-one percent have non-discrimination policies that include gender identity. Many companies also provide other benefits for same-sex couples. However, Out Leadership points out that less than 0.3% of Fortune 500 board directors are openly LGBTI.
Transgender workers are subject to different types of harassment than LGB workers. This includes administrative barriers to self-identification, bathroom accessibility, being deliberately referred to by incorrect pronouns, and having to tolerate inappropriate questions, which can lead to employee disengagement and avoidance.[2]
To fight hate crimes and violence[3] against the LGBTIQ+ community, only a handful of countries have enacted laws or have included SOGIESC in the existing texts. In restricting the freedom of such forms of speech, these laws recognize the paramount importance of securing the safety and protection of marginalized communities. The wording and scope of these laws vary greatly. Some statutes aim to prohibit “hate speech” or speech with the ability to directly incite people to commit “violence”, while others include a wide array of terms such as “hatred”, “harassment”, “discrimination”, “intolerance” or “segregation”.
So far only 43 countries, majority of them in Europe, have enacted laws that explicitly includes ‘sexual orientation’ as a protected ground. Despite these positive developments, most countries lack comprehensive policies to address human rights violations against LGBTQ and intersex people. Even where these are in place, most states do not collect relevant data to measure and evaluate their effectiveness. Policies by and large fail to take into account the diversity and heterogeneity of LGBTQ and intersex people. Many of them face multiple and intersecting forms of discrimination because of their skin color, ethnicity, gender, religion, age, or migratory status or because they are living with a disability or in poverty. Measures to address violence and discrimination faced by trans people lag far behind those adopted to address issues related to people who are lesbian, gay, or bisexual.
In 2020, ILGA World has released a ground-breaking report on the so-called ‘conversion therapy’: Curbing Deception is an extensive global research into laws banning ‘conversion therapies’ both at the national and subnational level. As the report details, gruesome practices – including electroshock ‘therapies’, forced internments in ‘clinics’ and exorcisms – are still applied in numerous countries, pushing people of diverse sexual orientations, gender identities and expressions to living self-loathing lives, up to the extreme consequences of committing suicide.
Victor Madrigal-Barloz, the UN Independent Expert on SOGIESC, in his latest report to the UN Human Rights Council on the so-called ‘conversion therapy’ gave a detailed account of such practices. Out of 8,000 respondents from 100 countries, in which a staggering 98 per cent of the 940 persons who reported having undergone those practices testified to having suffered damage. When asked to report the main consequence of the practice, 4.5 per cent of the victims reported suicidal thoughts, and other main forms of consequential damage reported were permanent physical harm (1.8 percent of victims), suicidal attempts (2.9 per cent), depression (5.9 per cent), anxiety (6.3 per cent), shame (6.1 per cent), self-hatred (4.1 per cent) and loss of faith (3.5 per cent).
Despite widespread condemnation and scientific evidence that the so-called ‘conversion therapy’ does not work, the cruel torture is only banned in four countries across the world. Albania was the most recent country to ban the practice joining the league of Brazil, Ecuador, Malta, and Germany. Israel, as the first country in the Middle East, just couple of weeks ago took steps to ban the ‘conversion therapy’ calling it a ‘sin’.
Forming rainbow families
In the current socio-political context and legal framework, marriage remains as one of the most venerated forms of official recognition of the relationship between two individuals; not to mention the benefits and rights it offers to the couple. Hence marriage equality is often considered (as well as criticized) as the end goal of the global LGBTIQ+ movement. In this context, an increasing number of states have extended the definition of marriage to include same-sex couples over the years.
Currently, there are 28 countries and one territory (Taiwan) that have equal marriage laws. There are 15 other countries where same-sex relationships are recognized in some forms, mostly as civil unions. Needless to say, most of these countries are from Global North followed by countries in the LAC. More recently, Thailand’s cabinet approved the civil partnership bill that will pave the way for same-sex unions (not marriage) with couples able to adopt a child and afforded rights to inheritance and joint property ownership.
Among the countries with same-sex marriage and unions, 27 have provisions for adoption by same-sex couples while 31 countries allow second-parent adoption, where one person adopts the children of the partner/spouse.
Attaining social acceptance
Despite the advances in the legal frameworks, LGBTIQ+ rights in the EU and across the globe are in a recession. A new EU FRA report finds that six in ten are scared to hold hands in public due to the threat of harassment and attack. The survey alongside the annual ILGA-Europe Rainbow map that shows half of Europe has made no progress on LGBT+ rights since last year. And for the second year in a row, it shows that countries are moving backwards on the Rainbow Index, as existing protections are disappearing.
According to the Global Acceptance Index (GAI), published in 2017 by the Williams Institute of UCLA, the average level of acceptance of LGBTIQ+ people has increased since 1981. Out of 174 countries surveyed, 131 experiences an increase while 27 countries showed no change. On the contrary, 16 countries actually experienced a decrease. With the level of acceptance, the polarization has amplified as well.
A similar trend has been observed by the Pew Research Center in this latest survey. Acceptance of homosexuality is rising broadly across the world even as sharp divisions persist by region and economic development. Countries with high income, social safety net, and higher percentage of education have shown more acceptance. Younger people were much more likely to accept being gay than their older peers, the survey found.
With the COVID-19 crisis continuing, many suspect LGBTIQ+ rights will suffer as countries see more inequalities exacerbated by increasingly authoritarian regimes. Michelle Bachelet, the UN High Commissioner for Human Rights, has recognized the “increase in homophobic and transphobic rhetoric” during the pandemic. Bachelet is now calling on all member states, like the U.K., Hungary and Poland who are actively making moves to erode rights, not to use the coronavirus crisis as an excuse to undermine LGBTIQ+ rights.
As said in the beginning, the article just tried to capture some of the key aspects of LGBTIQ+ lives in the current world. Needless to say, there are so many other legal, social, financial, and political hurdles that LGBTIQ+ individuals have to navigate every day. In short, the world has still a long way to go before the rights and dignity of every individual, regardless of sexual orientation, gender identity and expression, and sex characteristics, are respected and upheld.
Shakhawat Hossain Rajeeb is a gay rights activist who has worked with Boys of Bangladesh for 13 years before being forced to exile to Sweden, where he currently works with RFSL, the national Swedish LGBTQ organization.
[1] By ‘country’, this article refers to the UN member states only. This is to stay in line with the source, the State-sponsored Homophobia report 2019 by ILGA World, which being an organization with ECOSOC-accredited consultative status at the UN has to follow UN recommended language on the names of countries and territories.
[2] Joel Rudin, Tejinder Billing, Andrea Farro, and Yang Yang, “Bigenderism at Work? Organizational Responses to Trans Men and Trans Women Employees,” Organizational Management Journal (April 2020).
[3] For a broader understanding of the magnitude of hate crimes and violence against LGBTIQ+ people, please refer to the article Violence against the LGBTQ community: Understanding the magnitude and vulnerabilities by Asheque Haque published in this issue.
