10:32pm Wednesday 13 December 2017

Protecting the rights of LGBTI people: Are things getting better or worse?

 

Associate Professor Paula Gerber

Associate Professor Paula Gerber

There have been new crimes of ‘aggravated homosexuality’ created in Uganda and Nigeria, while Brunei announced that it will be introducing the death penalty for people convicted of engaging in homosexual conduct.

Further north, Russia continues to be a dangerous place for LGBTI people, with ‘anti-gay propaganda’ legislation emboldening homophobic people to not only attack gay men but also record their violence and proudly upload the footage onto various Russian websites. Now Kyrgyzstan is following suit, proposing laws that are even more odious than Russia’s. In particular, anyone who creates ‘a positive attitude toward non-traditional sexual relations’ can be punished with imprisonment up to a year.

It is depressing, that in this modern era, there are still 79 countries that treat homosexuality as a crime, and the majority of these are members of the Commonwealth of Nations. Indeed, 42 of the 53 countries that make up the Commonwealth consider homosexuality to be a crime, and the refusal of most members to even discuss this issue at the most recent Commonwealth Heads of Government Meeting (CHOGM), suggests reform within these countries will be slow. Thankfully, organisations such as Kaleidoscope Australia Human Rights Foundation, are actively campaigning for the repeal of all laws criminalising homosexuality, and working with local activists to improve the lives of LGBTI people in these countries.

Amongst all this doom and gloom, there are, however, a few bright spots for LGBTI persons in some corners of the world. Same-sex couples were able to marry for the first time in England and Scotland, while in Luxemburg marriage equality comes into effect in 1 January 2015. Following the landmark decision of the US Supreme Court in Windsor v United States, in 2013, more and more of the 50 states of the United States have been upholding marriage for same-sex couples.

On the international front, the United Nations Human Rights Council passed a resolution (http://www.un.org/ga/search/view_doc.asp?symbol=A/HRC/27/L.27/Rev.1) expressing grave concern at acts of violence and discrimination committed against individuals because of their sexual orientation and gender identity, and requested the High Commissioner to update the report ‘Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity’ with a view to sharing good practices and ways to overcome violence and discrimination. This resolution was a follow up to a similar resolution in 2011, and one that many thought would not be achieved in the current climate of hostility towards LGBTI people in some regions.

Closer to home, there have also been welcome developments in protecting the rights of LGBTI people. Palau became the latest country to decriminalise homosexual conduct after a new criminal code was enacted which did not include any offences relating to homosexuality. This leaves eight countries in the Pacific, and 12 in Asia, that still criminalise consensual sexual conduct between men, and in some cases, women.

In Australia, long overdue reform to expunge historic convictions for homosexuality related offences was finally enacted in both Victoria and New South Wales. Victorian Parliament passed the Sentencing Amendment (Historical Homosexual Convictions Expungement) Bill 2014, with Premier Napthine noting that: 

‘It is now accepted that consensual sexual acts between adult men should never have been a crime. These historical convictions have caused ongoing harm and hurt to those who were prosecuted and have led to significant personal difficulties, particularly in regard to employment and travel as well as the stain on their characters, the psychological effects and the effects on people who know they have a conviction on their record. They were convictions that should never have appeared there, and it is about time they were expunged.’

The negative impact of convictions for gay sex are being felt today, more than ever. As Hugh de Kretser, executive director of the Human Rights Law Centre observed:

‘Whatwe’re seeing with massive increase in criminal record checks is that this has much greater potential for discrimination and stigma than it had, say 20 or 30 years ago when these offences were decriminalised.’

While these recent reforms are most welcome, there is still more that needs to be done to ensure LGBTI people in Australia are able to lead lives of dignity and equality. Obviously, marriage equality has still not been achieved, despite a poll, in July 2014, revealing that 72 per cent of Australians think same-sex couples should be allowed to marry.

In Victoria, same-sex couples are not permitted to adopt children, although they have been allowed to be foster parents for many years. However, if Labor wins the November election this will change, since it has announced that it will reform the law to permit adoption by same-sex couples, which would bring Victoria into line with NSW, Western Australia, Tasmania and the ACT.

This brief look at the extent to which there has been progress in protecting and promoting the rights of LGBTI people, reveals that 2014 has been a year of both advances and setbacks. Whilst we should celebrate the many hard fought for successes, we must continue our efforts to achieve respect and equality for LGBTI people in all parts of the world.

Dr Paula Gerber is an Associate Professor at Monash University Law School and Deputy Director of the Castan Centre for Human Rights Law.

This article has appeared on the Amnesty International – Monash website.


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