Global Gay Rights: The legality and illegality of homosexuality around the world
By: Julia Berry Lopez
Tags: Same Sex Marriage, Discrimination, Gay Rights, LGBT Rights, Civil Rights

Originally published September 2018

The following is a writing sample of freelance work I have done. It is intended as an explainer about a current hot topic, not as a blog or opinion piece.

The legality and illegality of homosexuality around the world

Homosexuality is treated quite differently throughout the world. In more than one-third of countries, homosexual sex acts are criminal (and in about 4 percent of countries, they are punishable by death). Conversely, in just over one-quarter of the world’s countries, same-sex marriage or civil partnerships are legal. And in between the two extremes lies a wide array of other forms of discrimination and protection.

Legislation regarding same-sex relations has changed significantly over the centuries. In 1791, France became the first country to decriminalize same-sex sexual acts between consenting adults with the adoption of a new penal code, which also applied to many of its colonized countries.

A number of countries decriminalized same-sex sexual acts throughout the 19th and 20th centuries. Some countries also formally criminalized same-sex relations in their penal codes during that period.

In the 21st century, the Netherlands became the first country to formally legalize same-sex marriage in 2000, with the legislation going into effect in 2001. The country was followed by Belgium, Canada and Spain over the next few years. The U.S. joined them in 2015 with a Supreme Court decision legalizing same-sex marriage throughout the country. Last year, Australia, Germany and the European island country of Malta all legalized same-sex partnerships or civil unions.

Same-sex marriage is legal in 22 countries, according to a 2017 International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) report. Additionally, another 28 allow for a legal civil partnership or civil union of same-sex couples — some offering the same rights as in marriages. (Of these 50 countries, 26 also allow for joint adoption of children by same-sex couples.)

Criminalization, legality and protections around the globe

Breakdown of categories

Death penalty for same-sex acts

These countries have laws allowing for capital punishment for same-sex sexual acts, and known cases of executions. In some of the countries, the death penalty for same-sex sexual acts is only applicable in certain regions.

Same-sex sexual acts are illegal

Laws in these countries criminalize same-sex sex acts, either for men or both men and women. Penalties for convictions on these offenses can include months or years in prison. A few of these countries also have the death penalty on the books, but do not enforce it.

Discriminatory laws against homosexual people or LGBT organizations

While same-sex relations are not specifically criminal in these countries, they have discriminatory laws against either homosexual people or LGBT organizations. For example, laws may prohibit public displays of affection by same-sex couples, disallow NGOs that advocate for same-sex rights, or other forms of discrimination.

Some discrimination or prohibition, some protections

There is both protection and discrimination in these countries. For example, in Botswana, same-sex sexual acts for both men and women are illegal under the 1964 Penal Code, yet there is also a 2010 law prohibiting employment discrimination on the basis of sexual orientation.

Neither notable legal protections nor criminalization

None of these countries have laws that criminalize same-sex sexual behavior. They also do not have laws expressly protecting rights of homosexual people.

Legal protections against discrimination

These countries have explicit laws prohibiting discrimination on the basis of sexuality — either equal rights guarantees in their constitutions, anti-hate crime laws, anti-discrimination laws for employment, or other protections.

Same-sex marriage or civil unions legal

In addition to having other legal protections for people on the basis or sexual orientation, these countries have legalized either same sex-marriage or same-sex civil partnerships.

Criminalization of same-sex sexual acts

As of last year, there were 72 countries where same-sex sexual acts between consenting adults were criminal, either for only men (27) or both men and women (45). That’s equivalent to roughly 37 percent of the countries in the world. In 2018, India’s Supreme Court overturned the law prohibiting consensual, adult same-sex relations, reducing the number of countries to 71.

The language of the laws that prohibit sexual acts between members of the same sex vary throughout the world: some prohibit any sexual act, some sodomy (anal sex), some buggery (anal or oral sex), some prohibit acts “against nature,” or use other wording. Globally, punishment for such offenses can vary from public lashings to prison time, and in some cases include capital punishment.

Of the 72 countries where same-sex sex acts are illegal, eight also carry out capital punishment for same-sex sexual intercourse in at least some areas. The countries are Iran, Saudi Arabia, Yemen, Sudan, specific provinces of Somalia and Nigeria, as well as areas of Iraq and Syria controlled by the Islamic State.

Additionally, five other countries (Afghanistan, Pakistan, Mauritania, Qatar, and the United Arab Emirates) have laws that technically allow for capital punishment for same-sex sexual acts, but are not believed to have carried out official executions in relation to these laws in recent decades, the ILGA reported. In the Asian country of Brunei Darussalam, a proposed law would allow for the death penalty for same-sex sexual acts; the legislation has not been finalized.

Legal discrimination

Legal discrimination can come in different forms — from restrictions on assembly to banning public expression of homosexual acts of identity (such as pride parades or holding hands between same-sex partners) to denying organizations that advocate for LGBT rights NGO status.

In Russia, for instance, while same-sex sexual acts were decriminalized in 1993, various “promotion” or “morality” laws prohibit expression of homosexual identity or advocacy work. A law prohibiting the “Promotion of Non-Traditional Sexual Relations Among Minors” was used to prosecute members of a St. Petersburg-based LGBT youth organization. Certain expressions of homosexual activity in public are punishable by jail time. Russia also drafted a U.N. resolution to deny benefits to same-sex partners of U.N. staff members.

Legal protections

More than one-third of the countries in the world have some explicit legal protections for homosexual people, according to data from ILGA.

Nine countries explicitly prohibit discrimination on the basis of sexual orientation in their constitutions. For example, Mexico’s constitution prohibits discrimination based on “sexual preferences.” In other countries, such as Canada, while the constitution’s wording does not explicitly mention sexual orientation, case law has established that equal rights and protections apply on this basis.

In September 2018, India’s Supreme Court ruled that all constitutional protections should apply to homosexual people and that discrimination on the basis of sexual orientation is illegal. The decision overturned a law that banned same-sex sexual acts.

Globally, in 2017, there were laws prohibiting certain workplace discrimination on the basis of sexual orientation in 72 U.N. member states, as well as in Taiwan.

Additionally, 43 countries in 2017 had laws against “hate crimes” that target people on the basis of sexual identity, and 39 countries had laws banning actions that incite hate towards homosexual people.

Non-legal forms of violence and discrimination

Legality is one thing, but discrimination and violence can come outside of the dictates of law. In the extreme, this can include extrajudicial killings and other “hate crimes” against people who are homosexual or perceived to be homosexual.

In Russia, aside from the discriminatory laws mentioned above, extrajudicial discriminations and violence have been reported. In 2017, a Russian newspaper reported that authorities engaged in extrajudicial imprisonment and torture of at least 100 men believed to be homosexual in Chechnya, in southern Russia. One anonymous Chechen man who was allegedly detained illegally told CNN in an interview that he was beaten and electrocuted.

The Russian news report alleged that the authorities illegally executed 27 of the men one night. Apart from authorities engaging in violence, civilians in the area have engaged in hate crimes against those believes to be homosexuals. One Chechen man told CNN that he feared that his family would murder him if they found out he was homosexual.

In the U.S., according to the FBI’s 2016 “hate crime” statistics, 16.7 percent of reported hate crimes were committed due to sexual orientation or perceived sexual orientation, totaling 1,255 incidents that year. Hate crimes are “crimes that manifest evidence of prejudice based on race, religion, sexual orientation, or ethnicity,” according to the definition in a U.S. law, and can include violence against people or property.

Beyond violence, other types of discrimination or unequal treatment can exist. In countries where homosexuality is legal and there are legal protections against discrimination, some people who are homosexual or perceived to be homosexual report instances of discrimination or “harassment” at school, in the workplace, in housing opportunities, while in public or while receiving medical care.

In the U.K., for example, where same-sex marriage is legal and discrimination on the basis of sexual orientation is illegal, a recent national government survey found that more than a quarter of LGBT respondents experience verbal harassment for their sexuality over the past year. Additionally, 6 percent reported they were physically threatened, and 4 percent said they were physically or sexually assaulted.

Sources: 76Crimes, Amnesty International, CNN, ILGA State-sponsored homophobia report, FBI UCR, Sibalis via GLBTQ Archive, HRW Report, The New York Times, UK LGBT Survey, UN OHCHR News, World Atlas