Re: Laws criminalising same-sex sexual conduct in Commonwealth nations

Published: October 13, 2011

I write on behalf of The Equal Rights Trust (ERT), an independent international organisation whose purpose is to combat discrimination and promote equality as a fundamental human right and a basic principle of social justice. ERT is concerned at the widespread legal discrimination against lesbian, gay and bisexual persons across the Commonwealth of Nations. It is our firm view that the criminalisation of same-sex sexual conduct is contrary to international law and to Commonwealth Values and Principles. In light of the increasing numbers of homophobic campaigns, criminal cases and violent attacks against lesbian, gay and bisexual persons, we call for urgent action on this matter.

We should be grateful if you would ensure that this submission is circulated to all Heads of Government at the 2011 meeting, in order that it may inform an urgent debate on the problem of legal discrimination on the basis of sexual orientation across the Commonwealth.

The Impact of Criminalisation
Same-sex sexual conduct is currently prohibited in 421 of the 542 countries which are members of the
Commonwealth of Nations.3 In 25 of these cases, the prohibition applies only to sexual conduct between men, while in the remaining 17 states sexual conduct between women is also illegal.4 These laws allow for the discriminatory punishment of persons on account of their sexual orientation.
Furthermore, criminalisation has a broad impact on the enjoyment of all human rights by lesbian, gay and bisexual persons. It increases the level of stigmatisation and prejudice they face, and so feeds patterns of discrimination in all areas of life. Such legislation legitimises persecution and victimisation.

This is reflected in recent events in several Commonwealth countries, which have attracted international
attention. For example, in July 2011, Ghana’s Western Region Minister, Paul Evans Aidoo, ordered the
immediate arrest of all lesbian, gay and bisexual persons in the region and the Christian Council of Ghana issued a statement condemning same-sex sexual conduct.5 In Uganda, the press has incited hatred and violence and violated the right to privacy, including through the publication of names, photos and addresses, of 100 lesbian, gay and bisexual persons with the headline “Hang them!” in Rolling Stone in 2010.6 Violent homophobic attacks, including physical attacks, gang-rape, mob attacks and violent police raids on gay clubs, have also been reported in Jamaica, where these attacks have generally met with
impunity.7

In restricting lesbian, gay and bisexual persons’ ability to freely express themselves in this fundamental area of human experience such laws must also be seen as an attack on human dignity. As the Constitutional Court of South Africa has noted:

Just as apartheid legislation rendered the lives of couples of different racial groups perpetually at risk, the sodomy offence builds insecurity and vulnerability into the lives of gay men. There can be no doubt that the existence of a law which punishes a form of sexual expression for gay men degrades and devalues gay men in our broader society. As such it is a palpable invasion of their dignity […]8
International Law

The rights to equality and non-discrimination are protected under a number of international conventions which almost all Commonwealth nations have ratified. The International Covenant on Civil and Political Rights (ICCPR), in articles 2(1) and 26, requires states to refrain from discrimination, including through discriminatory laws, policies and practices, on grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The Human Rights Committee has long recognised that sexual orientation is a prohibited ground of discrimination under the ICCPR.9

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