Rights in Retrograde? LGBTIQ Legal and Legislative Developments in 2023

Slouching toward equal marriage in Asia

In Asia, several courts turned their attention to marriage. Expectations were high for India, whose 2018 Supreme Court ruling decriminalizing same-sex intimacy read as a clarion call for undiminished equality: one of the judges had opined unambiguously that “lesbians, gays, bisexuals, and transgenders have a constitutional right to equal citizenship in all its manifestations.” But the court’s October 17 ruling this year on marriage equality deflated the hopes of same-sex couples, punting marriage equality to the legislature based on the claim that the court lacked constitutional authority to rule on this matter. Once again, the court waxed poetic on human dignity, but it failed to deliver equal citizenship. Still, some Indian activists saw the ruling as a glass half-full: for instance, it ordered the establishment of a committee to address issues faced by same-sex couples, signifying a commitment to rectifying injustices.

The “marriage by committee” approach puts India sixteen years behind its immediate neighbor, Nepal, whose plodding progress toward marriage equality dates to 2007. That year, Nepal’s Supreme Court identified an “inherent right of an adult to have marital relation with another adult with her/his free consent and according to her/his will.” The court established a committee to identify a way forward, and the committee in 2015 recommended full marriage equality. Although Nepal has been a consistent trailblazer in the establishment of queer-friendly legal frameworks, it was only in October 2023 that an interim Supreme Court order allowed a queer couple successfully register their marriage, and Nepal still lacks legislation that protects this right in all cases. One hopes that India’s committee will move faster, and not leave tens of millions of queer people waiting decades for the right to marry.

In Hong Kong, in the case of Sham Tsz Kit v. Secretary for Justice (2023), plaintiffs challenged the lack of legal recognition of a same-sex marriage entered into in the United States. The Court of Final Appeal dismissed the plaintiff’s claim that Hong Kong’s Basic Law provided for a constitutional right to marriage equality. But it ruled that the state must provide some “alternative framework” to recognize same-sex couples. The court reasoned that same-sex couples merit access to hospitals, inheritance, and–more ephemerally and perhaps more importantly–”a sense of legitimacy which dispels any sense of them belonging to an inferior class of person whose committed and stable relationships are undeserving of recognition." The government has two years to comply with this order.  

While Asia’s courts largely failed to deliver on marriage equality in 2023, Thailand’s parliament on 21 December began considering a marriage equality bill. The passage of the bill would make Thailand the third country in Asia, following Taiwan and Nepal, to introduce marriage equality.

Law as a tool for denial and delegitimization of queer existence

Both courts and legislatures in 2023 sought to wield the law to write queer people out of existence. Uganda passed a law rooted in genocidal ideology that would have the state execute its own people for some consensual same-sex acts. The law turns citizens into spies, imposing mandatory reporting of sexual diversity. In a test of judicial independence, Uganda’s constitutional court is currently deliberating on a challenge to the law. Apparently inspired by Uganda, an Iraqi  parliament member introduced a strikingly similar bill in August that would institute the death penalty or life imprisonment for "acts of sexual deviance," which include "homosexual relations" and "acts of effeminacy."

Attempts to eradicate queer people don’t need to rely on such crude measures as the death penalty. In its own attempt to wipe out queerness, Russia’s Supreme Court on 30 November declared the “international LGBT social movement” to be “extremist” and illegal. The ruling flagrantly violates international human rights standards and poses a grave threat to the safety and well-being of LGBTIQ activists in Russia by casting them as enemies of the state. It expands the restrictions already established by a 2014 law prohibiting exposing minors to “gay propaganda” – a law that Kyrgyzstan copied and pasted into law in August, despite the well-documented harms Russia’s law and Hungary’s similar provision have inflicted on LGBTIQ children.  

In May, Pakistan’s Shariat court struck down provisions of the pioneering 2018 Transgender Persons Act, which had recognized Pakistan’s centuries-old khawaja sira third-gender identities and provided for gender recognition by self-determination. The ruling asserted that changing one’s gender “at will” was un-Islamic. It also borrowed from the Western anti-gender movement’s moral panic tactics, asserting that trans women pose a threat to cisgender women. Activists are appealing the ruling to the Supreme Court. Meanwhile, the Senate is pursuing legislative gutting of the transgender law and its replacement with a Khunsa Persons (Protection of Rights) Bill, 2023.  which substitutes the term “transgender” with “khunsa” (intersex), introduces a medical board for gender recognition, and criminalizes gender-affirming healthcare. The move seeks to divide trans and intersex people, pitting one marginalized group against another. 

Intersex legal justice rising

Intersex people elsewhere pushed back against enforced invisibility, inflicted on them through medical violence in the name of “normalizing” intersex bodies to fit heterosexual, cisgender norms. Australia’s Capitol Territory enacted legislation that protects intersex people’s bodily autonomy. Athlete Caster Semenya won a discrimination case at the European Court of Human Rights related to World Athletics’ exclusion of women with differences of sex development (DSD) from sport, a policy that compels some women with DSD to alter their natural hormonal levels through medication in order to compete.

Conclusion 

Queer individuals wield transformative power in dismantling oppressive systems that negate bodily autonomy, freedom of expression, privacy, and non-discrimination. Through active engagement with legal frameworks and relentless advocacy within the courts, LGBTIQ advocates continue to advance inclusive democracy for all by challenging exclusionary norms. As democracy continues to be contested, those who seek to defend it against authoritarianism should align themselves with LGBTIQ movements and demand that the law be a tool to protect the people from abuses of power and to improve lives–not a weapon to protect the powerful few from purported threats of diversity and dissent.