More Progress, More Stagnation, More Setbacks: A Global Picture of Legal Recognition of Same-Sex Orientation
Kees Waaldijk, McDonald/Wright Chair of Law & Visiting Professor of Law, The Williams Institute, UCLA School of Law
April 23, 2014
UCLA School of Law
*Lunch will be provided.
Abstract: This talk will present two ways to assess legal progress – and the lack thereof – in the field of sexual orientation across the world. On the one hand there is what I call “the right to relate”, and what some of the most important courts in the world have articulated as “the right to establish and develop relationships with other human beings”. And on the other hand I have been developing a Global Index on Legal Recognition of Homosexual Orientation, capturing different aspects of sexual orientation law into a numerical indicator that can be used to visualize the legal development in all countries of the world since 1966 – and to analyze how this correlates with social and economic indicators.
I submit that the right to relate reflects what sexual orientation is really about: not sex, gender, or identity, but the possibility to relate to others. This is the common theme in decriminalization of homosexual sex, in prohibiting discrimination on grounds of sexual orientation, in recognition of same-sex couples, and in allowing people to come out individually and collectively. (See: Kees Waaldijk, ‘The Right to Relate: A Lecture on the Importance of “Orientation” in Comparative Sexual Orientation Law’, 24 Duke Journal of Comparative & International Law 161-199 (2013), http://scholarship.law.duke.edu/djcil/vol24/iss1/4.)
At first sight, it seems clear that during the last 50 years many countries have shown progress in the legal recognition of homosexuality: sex between same-sex adults has been decriminalized (in some 65 countries since the 1960s), forms of sexual orientation discrimination are now prohibited (in some 60 countries), and same-sex couples have started to get legal recognition (in some 40 countries). International human rights bodies have mirrored and accelerated these developments by ruling that same-sex sex should not be criminalized, that sexual orientation is covered by international prohibitions of discrimination, that same-sex couples should not be treated worse than unmarried different-sex couples, and that expressions about same-sex orientation are protected. And legal issues around same-sex orientation are getting more attention in national and international politics and media, than ever before.
However, this progress is not universal. Sex between people of the same-sex is still a crime in some 50% of all countries. A large majority of countries still allow many forms of sexual orientation discrimination, and continue to not recognize same-sex couples. In fact, the global process of legal recognition of homosexuality seems to be slowing down since the turn of the century. Progress is becoming harder. In some places things are actually getting worse. Arrests and prosecutions for same-sex offences have gone up in Cameroon, and also in parts of the Middle East. And a growing number of countries have enacted major legal setbacks: introduction of crime of same-sex sex (Burundi 2009); constitutional entrenchment of heterosexual exclusivity of marriage (Uganda 2005, Honduras 2005, Latvia 2006, Dem Rep of Congo 2006, Bolivia 2009, Hungary 2012, plus parts of the USA); prohibition of promotion of homosexuality (Russia 2013, Nigeria and Uganda 2014); introduction of death penalty for same-sex sex (Brunei 2014).