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Indian gay rights activists shout slogans during a protest.

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

Photograph by Altaf Qadri, AP          

Michael Lokesson and Anna Kordunsky

for National Geographic

Published December 11, 2013

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While former British colonies like Canada, Australia, New Zealand, and others repealed the buggery laws in the 1960s and 1970s, a large majority of nations in Africa, the Caribbean, and South Asia have kept theirs on the books.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.

Map showing global legality of homosexual acts in 2013. Countries and regions are colored by 4 categories: legal, illegal, illegal and punishable with death penalty (including parts of southern Somalia) or unclear.

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."

11 comments
s h
s h

The bible says we are not to eat shrimp, so do we outlaw that as well?

David Alan McPartland
David Alan McPartland

Being gay is a dead end lineage wise. Their genes will never be passed on. It surprises me the government doesnt think about this more. The production of future taxpayers and voters is limited by gay people. They can adopt, but the pecentage of offspring (future taxpayers, voters) is reduced compared to the offspring a straight couple can produce. If everyone was gay, it would mean human extinction. Maybe our ancestors realized this when the anti-gay laws were passed. They knew it was wrong well before any historical religion came into play as well. Put all the gay people on  their own island and see how long they survive. They will wipe themselves out in 100 years unless they figure out what god made woman for.

Richard Rachman
Richard Rachman

Let us be free from the tyranny of another man's judgement. Let us be free from the bondage of religious dogma. Let us be free from the harsh prosecution and physical abuse of those that do not understand, and will not allow themselves to understand, a way of life that is different than their own. Let us simply be free to love whomever we so choose. Let us be free, let us be free.

Mary Waterton
Mary Waterton

I applaud India for having the good sense and enlightenment not to legalize this crime against nature.

Miguel Castillo
Miguel Castillo

Is easy to blame the hormones and condone homosexuals.  That's a big mistake.  This nation is far from her root's, her Jewish-christian roots.  Many are here now giving their backs to God and worshiping technology, money, or many other 'gods'.  Recently I read a book on Thanksgiving, my son borrowed it from the library, and it says that on this day we give thanks, and we gather as a family.  It says many things, but the only phrase that matters (and it's sad) is: "In this day we give thanks".   Wow, what a coward nation this has become!  The book never mentions GOD.  What a cowards!    GOD    GOD   This nation was founded on the belief in God.  We celebrate Thanksgiving and Christmas, to give thanks to the Holy and only God, the Creator of the Universe and Creator of our very lives.  The Holy βιβλία is the record given by inspiration of God, to tell the people the truth.  From 1900 all the way back to the beginning of the history, the Bible has been respected and followed, and nations called bad "bad", and they called good "good".  But nowadays we boast ourselves, now we are "the postmodernism", we don't have absolutes, and that's our absolute.  We think and do whatever we please.  The end of this nation is close.

Dr. Guy
Dr. Guy

I think dictating to a foreign country what they need to believe to be immoral or illegal is not what we, the United States, should be involved with.

The converse is always true: what if they were to dictate to us that we should ban homosexual practice? Are we going to just do it because they say so?

What if India decides to stop shipping any goods to USA because they do not agree with our morality codes? 

I believe in freedom for the individual. I do not condone homosexuality in any form. As a victim of homosexual predators and having lived and worked with homosexuals in San Francisco I know the real depth of the problems that accompany a hormonal chemical imbalance: a mental imbalance. They are "not right", plain and simple. 

However, I believe they have the right to exist, the right to practice what they wish behind closed doors like all heterosexuals.

This does not make me "homo-phobic", I fear them not.

it makes me "hetero-centric" and that is my core belief.

Like it or don't:  I do not care what you think.

Melissa Usik
Melissa Usik

@David Alan McPartland Perhaps that is a good thing, seeing as how the world can't currently sustain the number of people living on it. Why should you or anyone else deny queer people love and acceptance only in hopes that they will someday conform to old, outdated values of reproduction that are of little benefit in modern society? There will not be a time where everyone is gay. At the moment, only 5-10% of people label themselves as gay. Are we really losing that much of society by not having quite so many kids? Or are you afraid you won't be able to sustain your upper class lifestyle after you retire if you don't have an army of young taxpayers carpeting your floors in money. 

Gay people are, in all honesty, a benefit to society. Gay people do not produce more children to place a strain on our planet, yet they are often eager to adopt the children that heterosexual couples can no longer support or never wanted in the first place. They are no more likely to be sexual predators than you, I, or anyone you may meet because the myth that gay people are dangerous and sexually aggressive is a lie created and propagated by the church to deter people from associating with homosexual individuals and to isolate and slander gay folks. In the bible it says a man must not lay with another man in the way he lays with a woman. Does that mean he must not be homosexual? No, it means he must not treat a man the way he would treat a woman; as someone weak and inferior to him. as we can see, that is incredibly sexist and really has no place in modern society where, at least in first world countries, it is not acceptable to stone your wife for not being a virgin before marriage or sell your daughter in to slavery. 

On that note, your last comment is pretty sexist- women were not created to simply bear men's children.

Angie Deslauriers
Angie Deslauriers

Crime against nature? What do you make of animals who have displayed homosexual attraction as well as activities? Fracking, genetic modification and dolphin trapping are crimes against nature. What is your position on those things??

Angie Deslauriers
Angie Deslauriers

@Dr. Guy - this whole blurb makes you egocentric. Don't take your eyes off of your belly button, you might see what the real world looks like...

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