India's Anti-Gay Sex Ruling Casts Light on Other Countries With Anti-Gay Laws

The U.K.'s anti-gay "buggery laws" were exported to all its colonies, including India. Other countries have adopted harsh anti-gay laws more recently.

Indian gay rights activists protest after the country's top court issued its ruling on Wednesday.


India's Supreme Court on Wednesday restored a colonial-era law banning gay sex, overturning a 2009 lower court ruling that deemed the 1861 law unconstitutional—and igniting controversy around the world.

The Indian justices ruled that a lower court had overstepped its bounds and that only Parliament could rescind the law criminalizing "carnal intercourse against the order of nature with man, woman or animal."

A conviction under the law carries up to a ten-year prison sentence.

Known in India as Section 377, the law is a holdover from the British colonial administration.

"The old Victorian law got exported by the United Kingdom to all its colonies—India as well as Jamaica and the Caribbean Islands—and there it's called 'buggery law,'" Boris Dittrich, advocacy director of the LGBT rights program for Human Rights Watch, told National Geographic earlier this year. "But it's the same kind of law which criminalizes homosexual conduct."

"Buggery," an archaic British term for sodomy, is limited to males, and lesbian relations rarely result in criminal sanction in countries where such laws are still in effect. The degree to which these laws are enforced also varies widely, and most have seen less and less usage over the decades, if not outright repeal.

Canada, for instance, had strict anti-sodomy laws through much of its history. Adopting the British anti-sodomy law as its own in 1859, the act was punishable by death until 1869. The law was broadened in 1892 to include all male homosexual acts under the term "gross indecency."

The law was changed again in the mid-20th century, when it labeled gay men as "criminal sexual psychopaths" and "dangerous sexual offenders." Everett George Klippert was prosecuted and sentenced to indefinite "preventative detention" (essentially a life sentence) as a sex offender under the law in 1965. Canada decriminalized homosexual activity in 1969; Klippert was released two years later.

While former British colonies like Canada, Australia, New Zealand, and others repealed the buggery laws in the 1960s and 1970s, a large majority of nations in Africa, the Caribbean, and South Asia have kept theirs on the books. While enforcement is rare, their existence furthers LGBT stigmatization, according to Grace Poore, regional coordinator for Asia and Pacific Islands at the International Gay and Lesbian Human Rights Commission (IGLHRC).

"These laws create a certain kind of climate, and this makes people fearful," Poore said. "Many people will be afraid to come out because they are afraid they are going to be criminalized."

Police and other officials can use the laws to blackmail people, even if criminal prosecutions don't take place, according to Poore.

Former British colonies are not the only countries that criminalize homosexual sex. Despite positive recent developments for LGBT people in the United States and other parts of the world, consensual same-sex relations remain a crime in at least 76 countries, according to a United Nations report released in 2011.

The following eight nations have recently adopted or have especially harsh anti-gay laws.

Cameroon

"Homosexual conduct is criminalized in 38 states in Africa, and in many, laws are becoming stricter," said Dittrich. "In several of these countries, LGBT people are being arrested and detained, sentenced to prison by the judge, simply because they are gay."

He pointed to Cameroon as a prime example. Homosexual conduct there is punishable with a fine and up to five years in jail.

Broader hostility toward homosexuality is on the rise in the country. In July, Eric Ohena Lembembe, Cameroon's most prominent and outspoken LGBT rights activist, was found murdered in his home after having been tortured.

Homosexuals, especially gay men, are regularly prosecuted in Cameroon, and it sometimes takes as little as a text message to another man expressing love or having an appearance perceived as overly effeminate to be put behind bars.

Attacks on advocacy organizations like the Cameroonian Foundation for AIDS, where Lembembe was executive director, or Alternatives Cameroun, whose office was burned down in June, are also common.

Jamaica

Jamaica is one of 11 former British colonies in the Caribbean that still have the British buggery laws on the books prohibiting male homosexual relations.

Jamaica's anti-gay laws (formally, the Offenses Against the Person Act) were instituted in 1864. While almost never enforced, the laws can still carry a sentence of up to ten years of hard labor.

Uganda

In Uganda, home to some of the harshest anti-gay laws in Africa—with sentences for homosexuality ranging from 14 years to life imprisonment—some political forces have been seeking to pass an even harsher anti-homosexuality bill.

While the bill includes such headline-grabbing provisions as the death penalty for "aggravated homosexual conduct," the scope of the proposed law is what has many gay activists most worried, said Human Rights Watch's Dittrich.

One clause in the legislation states that anyone, including family members of LGBT people, can be prosecuted for not notifying authorities within 24 hours if they know someone who is gay, with sentences of up to three years in prison. Another clause states that Ugandan citizens can be prosecuted for homosexual activities that take place outside the nation's borders.

In response to international criticism, the bill has been tabled for now.

Burundi

In April 2009, Burundi's lower house of government passed a law outlawing homosexual activity, with prison sentences for the convicted ranging from two months to three years. President Pierre Nkurunziza led the criminalization effort and worked with the country's National Assembly to sign the act into law, even after its senate overwhelmingly rejected the proposal.

Burundi, a landlocked Francophone nation in East Africa, previously had some of the most lenient policies toward the LGBT community in the region, particularly when compared with Kenya (10 years hard labor), Uganda (14 years to life imprisonment), and Tanzania (20 years to life in prison).

A 2011 report by the U.S. State Department found that no one in Burundi had been arrested or prosecuted under the anti-gay law that year, feeding the suspicions of the president's critics that the move was a political ploy.

That some of the more vicious crackdowns on LGBT communities are taking place in sub-Saharan Africa's poorest countries is not a coincidence, said the International Gay and Lesbian Human Rights Commission's Jessica Stern, since the attention they generate can sometimes provide a useful distraction from other pressing priorities.

"It's a great political strategy—find those who are the most hated and pick on them," she said earlier this year. "And then people forget to think about whether or not schools are being fixed up for their children, and whether the rich are getting richer at the poor's expense."

Iran

Under the penal code of the Islamic Republic of Iran adopted after the 1979 revolution, death is a potential punishment for homosexuality. Kissing another man or woman in public may result in 60 lashes.

International human rights groups have collected evidence that Iran has executed men on homosexuality charges, and documented cases of arrests, imprisonment, and physical abuse of LGBT persons based on their sexual orientation or association with other members of the LGBT community.

An updating of Iran's penal code in May 2013 criminalized homosexual identity, rather than specific acts, making it punishable by 31 to 74 lashes.

Homosexuality was described by the secretary general of Iran's high council for human rights as "an illness and malady," and by former President Mahmoud Ahmadinejad as something that "we don't have in our country." A Tehran journalist who interviewed several Iranian homosexuals to show that they do indeed exist received 60 lashes and a four-year jail term.

Qatar

Qatar's anti-homosexuality laws have come under increased scrutiny as it prepares to host the 2022 World Cup. Qatari law considers homosexuality a criminal offense punishable by up to seven years in jail (or a life term when one of the parties is under 16 years of age).

Along with the civic penal code, Islamic Sharia law is on the books in Qatar, though it applies only to Muslims. It dictates death for homosexual acts committed by married persons and flogging for homosexual acts by unmarried individuals.

Singapore and Malaysia

As former British colonies, both nations still have Section 377 laws outlawing gay sex between men. In 2007 Singapore modified its laws to permit oral and anal sex between heterosexuals and lesbians, but male homosexual sex remains criminalized.

"As recently as a few years ago, two men [in Singapore] were arrested and charged under 377A for having sexual relations" in a bathroom stall, said IGLHRC's Poore. They were prosecuted under the lesser charge of "gross indecency," however.

The Indian Supreme Court's ruling is a setback, according to Poore, for movements in both Singapore and Malaysia that are currently contesting the 377A law's constitutionality in the courts, since both movements reference the 2009 Delhi court ruling in making their cases.

"[Today's ruling] will have repercussions beyond the borders of India."