It found that 41 of the 53 member states still criminalise homosexual sex. This equates to almost 80% of the Commonwealth members, and over half of the 78 states globally in which gay sex is illegal.
But contrary to the report’s explanation, homophobia in the Commonwealth isn’t just a relic of colonialism.
CHOGM and human rights
The report was timed to influence the forthcoming Commonwealth Heads of Government Meeting (CHOGM) in Colombo, which starts tomorrow and follows on from previous attempts to address discrimination at the forum. In March 2013, a new Commonwealth Charter was adopted which states that:
We are implacably opposed to all forms of discrimination, whether rooted in gender, race, colour, creed, political belief or other grounds.
The charter failed, however, to include LGBTI identities in the list of protected attributes.
Human rights have already become a major theme in the lead-up to CHOGM. Several heads of government have signalled they will not be attending in protest against Sri Lanka’s human rights record. Media attention has so-far focused on alleged war crimes perpetuated in Sri Lanka’s recent brutal civil war.
The Kaleidoscope report draws attention to other rights violations, including the criminalisation of homosexual sex and the harassment of LGBTI activists.
Other Commonwealth nations have also made global headlines recently for persecuting homosexuals. In 2009, the Ugandan parliament debated a bill that would have introduced the death penalty for serial offenders, HIV-positive people who engage in homosexual activity, and people having homosexual sex with a disabled partner. A revised version of the bill was debated in 2012.
The Kaleidoscope Trust report offers a fairly simple explanation for why LGBTI discrimination so prevalent in the Commonwealth: homophobic legislation is a relic of British Imperial rule.
When the British invaded and took possession of their various colonies around the world, ‘the unreformed law of England was transported through criminal codes by imperial masters to far flung outposts of empire’. This included legislation against ‘sodomy’, ‘attempted sodomy’, and, after 1885, ‘gross indecency’ between men.
The British Empire began to be dismantled following World War Two. Decolonisation was largely accomplished by 1967 when gay law reform first passed in England and Wales.
Crudely speaking then, legislation banning gay sex in the Commonwealth is a legacy of colonisation. Homophobic law and ‘the attitudes that had followed the law’ were imposed on colonised societies, and largely remained after decolonisation.
But it’s not so simple
While I unequivocally support the decriminalisation of same-sex acts, the explanation of Commonwealth homophobia presented in the report disturbs me. And for a number of reasons.
Ironically, the campaign for LGBTI rights in the Commonwealth repeats the narrative of colonisation that it is ostensibly attempting to remedy. In this case, it is sexual liberation - rather than repression - that is being exported to the former colonial world from the former colonial center.
The Kaleidoscope Trust is based in the United Kingdom, and its report explicitly locates its agenda in the legacy of British decriminalisation. The report’s preface commends the wisdom of Sir John Wolfenden, whose 1957 report recommended decriminalisation in Britain.
That wisdom must now inspire us in the countries of the Commonwealth to rid ourselves of this archaic legal inheritance.
The majority of countries in which gay sex is illegal are the poorer and less developed states in Africa, Asia, the Middle East and the Carribean. But the focus on non-white former colonies sidelines rights abuses in countries where gay sex is legal. The continued exemptions from anti-discrimination legislation given to religious organisations in Britain and Australia are one obvious example (although, to be fair, they are also mentioned in the report).
And it is also easy to forget how late decriminalisation came in these places too. Scotland did not reform its law till 1980, Northern Ireland until 1982, and the last Australian decriminalisation legislation did not pass until 1997.
Furthermore, the neocolonial narrative implicit in the report presents acceptance of homosexual rights as a marker of Western modernity. This may not be an attractive conjunction in countries still struggling with the legacy of colonialisation. It lends itself to the (not unfounded) critique that homosexuality is being imposed in a neocolonial manner on former colonial possessions.
Framing the debate in terms of LGBTI rights also obscures the diversity of non-western sexual orientations and gender identities. ‘LGBTI’ are remarkably recent ways for sexually and gender diverse people to self identify. Even in the west, men didn’t start to refer to themselves as ‘gay’ until the 1970s.
It is illustrative that on the very same day that Kaleidoscope released its report, the Bangladesh government recognised Hijras as a third gender. Traditional transgendered people have been able to be legally recognised in a society in which gay sex has not yet been able to be made legal.
Finally, and most importantly, the colonial explanation of Commonwealth homophobia ignores non-Western sources of opposition to sexual freedom. Why have places like Sri Lanka and Uganda criminilised sex between women when that was never illegal in colonising Britain? What about non-Christian religious opposition to LGBTI rights?
Locating homophobia (and LGBTI activism) in the colonial domain fails to recognise or engage with either the agency of postcolonial activists or that of postcolonial homophobes.
First published on The Conversation on 14 November 2013.
Dr Timothy Jones is an ARC DECRA Research Fellow at the Australian Research Centre in Sex, Health and Society at La Trobe University.