Changing Landscapes: Societal Shifts And Transformative Legal Milestones For The LGBTQ
The recognition of the LGBTQIA++ community has been a revolutionary and
transformative socio-legal issue in the 21st century. The community has been a
topic of debate for the ongoing struggle for inclusivity, equality, and justice
in an era marked by increasing recognition of diverse identities and rejection
of discriminatory practices.
Recently, the verdict pronounced on 17th of October 2023, the Supreme Court of
India ruled denying legal recognition to same-sex marriages by a 3:2 majority
and devised it upon the Parliament to decide the legality of the same. In light
of the dramatically changing panorama of LGBTQIA++ rights worldwide, this
research paper aims to provide a comparative analytical approach to the
community's dynamics across various nations, anchored in a three-fold
exploration of jurisprudence, history, and contemporary approaches.
The jurisprudential aspect of this research forms the basis for describing and
comparing the standing of the community. Drawing insights from landmark cases
and legislative debates, it offers a nuanced understanding of the crucial role
played by them in the development and protection of same-sex rights.
Furthermore, retracing the historical narratives shall help to unearth the times
of systemic prejudice and discrimination to breakthrough of progressive change.
Whereas in the contemporary sphere, the research shall delve into the
present-day approaches, public opinionated trends and the policies drafted
appertaining to the issue.
Particularly in the area of marriage equality, the global movement to secure
protections for the LGBTQ community has made substantial strides in recent
decades. The term "LGBTQ" refers to a broad group of people who identify with
the following categories: lesbian, homosexual, bisexual, transgender, or
intersex. Neverthless, it is essential to observe that around the world people
use a range of other terms to denote their gender identity or sexual
'Gender identity' pertains to a person's profoundly experienced internal and
personal perception of their own gender, which might or might not align with the
birth or natal sex. Gender identity may pertain to an individual's
self-perception as either male or female, gender non-binary, or gender fluidity;
it may also encompass more than one gender, be it male, female, or none at all.
Meanwhile 'Sexual orientation' pertains to an individual's ability to experience
intense emotional, compassionate, and sexual longing for, as well as engage in
intimate and sexual activities with, others. While certain individuals are
asexual, which means they do not feel any sexual attraction. Sexual orientation,
like religion, defines both personal identity and societal division. Indeed,
throughout the twenty-first century, sexual orientation has progressively
eclipsed religion as the morally dividing and physically unnoticeable identity.
A person's social identity in the year 1900 was predominantly determined by
their religion, ethnicity, social class, and sex. A person's social identity in
the year 2000 and after that, have been and will be predominantly determined by
their ethnicity, socioeconomic status, gender, and sexual orientation.
The terminology that is used may exhibit significant variation contingent upon
historical, cultural, and societal milieus. International human rights law makes
it abundantly clear that states are obligated to protect the rights of LGBTQ
individuals. Under the law, every individual is safeguarded against
discrimination on the grounds of sexual orientation, gender identity,
expression, and other characteristics. Nonetheless, the community continues to
confront repression, imprisonment, and even the threat of being executed in a
number of nations.
A significant number of 64 countries worldwide that have criminalised
homosexuality do so as a result of European colonialism. Certain nations
including Brunei, Iran, Mauritania, Saudi Arabia, Yemen, Uganda, and the
northern states of Nigeria, impose capital punishment for consensual same-sex
activities. In addition to criminal prosecution, discrimination against LGBTQ
individuals can manifest in various ways, such as restricted healthcare access,
challenges in obtaining employment, workplace abuse or harassment, and numerous
other forms of mistreatment.
In practise, governments in a number of countries that have ratified
international treaties requiring them to protect human rights continue to pass
and enforce legislation that discriminates against, and singles out individuals
based on their gender identity and expression or sexual orientation.
Activism and an increasing number of governments have prioritised legislation
and safeguards to protect individuals from legal discrimination and political,
social, and economic marginalisation due to the severity and pervasiveness of
Objective Of The Paper
The research paper aims at systematically conducting a comparative analysis of
the dynamics of the LGBTQIA++ community's rights and recognition across various
nations. By integrating the three interconnected spheres of jurisprudence,
history, and contemporary approaches, this study aims to contribute to the
understanding of the community's ongoing struggle.
It attempts to shed light on the evolving legal aspects of this matter in the
twenty-first century, not only by highlighting the obstacles they have faced but
also by highlighting the progress that has been made internationally, where
several nations have taken the initiative to recognise, protect and advocate for
The community has been deprived of a legal status for centuries, first under
religious codes, specifically that imposed by the Abrahamic faiths, and then
under secular laws, which frequently drew significance from preceding
The proliferation of legal codes, which were initially established in Europe,
occurred during the colonial era. During their global expansion, European
countries were the firsts that criminalised LGBT. Indigenous societies and
customs, which had not traditionally stigmatised same-sex behaviour and gender
variation, were thus forced to adapt it. The British colonial penal codes shaped
several laws that are still in use today.
As this legacy of criminalization is being undone, the fight for LGBT equality
is far from ended. Although the British played a major role in shaping the anti-LGBTQ
laws, other ancient western legal traditons impacted the society, though not for
a long time. Peru's decriminalization of same sex activity in 1924, followed by
Denmark, Poland, Uruguay, Iceland, Switzerland, Sweden, Cambodia, Thailand,
Laos, Jordan, Greece, Palestine over time, shows that, despite the British
dominance, the countries managed framing laws that were not wholly threatening
to the LGBTQ community.
"Consensual ideas of the time were disregarded when the Wolfenden Report,
published in the United Kingdom in 1957," suggested that "private homosexual
activity between consenting adults should no longer be considered a criminal
offence." The Committee reached the conclusion that encroaching upon the private
lives of citizens was not within the purview of the law or state.
Also denied by the Committee was the notion that homosexuality constituted a
disease. Further The European Court of Human Rights rendered its seminal ruling
in Dudgeon v United Kingdom, the first successful case of its kind, in
which it determined that Northern Ireland's legislation criminalising same-sex
acts between consenting adults violated the European Convention on Human Rights'
(ECHR) right to privacy. The case was also relied upon in Toonen v Australia,
brought before the UN Human Rights Committee, which repealed Australia's last
The chronology of some the most impactful laws, is tabulated as under:
Ecclesiastical Law, 1290
The prevailing common law of the time, which was adjudicated in ecclesiastical
tribunals as opposed to secular ones, considered sodomy a sin against God
punishable by execution by burning or burial.
The Buggery Act 1533
It was the first civil sodomy law in England. Although the act technically
permitted convictions of anyone, the ones for the same sex were the most
The French Penal Code, 1791
France introduced an innovative penal code in 1791, which was based on the
premise that government intervention in private affairs involving private
persons was not justified.
The Napoleonic Code, 1804
Following the French Penal Code, the Napoleonic Code was implemented in the
majority of French-occupied countries in 1804. It popularised a criminal code in
which same-sex conduct was not criminalised in other nations. The French Penal
and Napoleonic Codes had profound implications for legal systems across the
globe, both directly and indirectly. Ultimately, these codes influenced the
adoption of criminal codes that abstained from criminalising same-sex activity.
Indian Penal Code, 1860
The Indian Penal Code 1860 (IPC) was established in accordance with Lord
Macaulay's suggestions with the aim of "instilling European morality in
resistant masses. "Thus ensued Victorian morality enforcement across the Empire.
As a "natural offence," section 377 of the Indian Penal Code imposed a life
sentence for "carnal intercourse contrary to the order of nature."
The discourse of the community although, mostly written by the British, yet
could be seen to choose different paths in different countries with time. This
part of the paper focuses on comparing the legal position of the community in
For a long time, the United States has been a critical battleground for LGBTQ
rights, with its leadership playing an iconic role in defending them overseas.
In the fifty years since the Stonewall uprising, LGBTQ rights have undergone a
remarkable transformation. In the last few years alone, individuals have been
granted "the right to marry",and their representation on television has reached
an all-time high.
The court initially rejected and then subsequently went on to upheld the rights
of LGBTQ individuals to engage in consensual sexual relationships and to enter
into unions and marriages.
One, Inc. v. Olesen, the Supreme Court clearly established that the
material published and circulated for gay audience was not inherently obscene.
Then in Baker v. Nelson, the first time, the Supreme Court denied marital
equality to the couple, who very much later got married anyway, and to add to it
in Bowers v. Hardwick , the court upheld the sodomy laws and criminalised the
However it was overruled in Lawrence v. Texas. In United States v. Windsor , The
Court ruled to abolish a provision of the Defence of marital Act (DOMA), 1996
which was one of the primary antecedents to marital equality that defined
marriage as a "legal union between one man and one woman as husband and wife."
Europe, following the American footsteps has its history set in a timeline from
the darkest times to the days of glitter for the LGBTQIA community. Despite
starting in America, European LGBT activism predates the riots by decades.
European organisations grew out of a need to decriminalise homosexuality during
the interwar period. Male homosexual relationships were common in ancient
civilizations until the Roman Empire adopted Christianity and institutionalised
Middle and Modern Ages saw little change, and thus began the saga when male
homosexuals and cross-dressers were often executed. In the 18th century,
homosexuality was discouraged across Europe, despite legal differences. Be it
France, Great Britain, Rome, Spain, or Denmark, the homosexuals were at the risk
of being executed by the worst ways imaginable.
From being hanged to death, castrated, stoned or burned to death, the
punishments were of harshest nature possible. Surprisingly, this remained the
situation, even during the 18th century. Finally the French lawmakers removed
homosexuality from the criminal code in 1791 after the French Revolution.
Monaco, Prussia, Luxembourg, and Belgium followed. The Netherlands, Portugal
(later retreated), the Ottoman Empire, San Marino, and Italy joined France in
the 19th century. However, open relationships were nearly impossible for
Even though the law allowed same-sex couples, societies still rejected them and
could charge them with indecency. It was during The World Wars where the
community suffered the major setbacks. Although a rise of institutions
protecting and promoting gay rights was visible after the First World War, the
birth of totalitarianism, shut it down altogether. Finally, it was the America's
Stonewall uprising that inspired the pride marches in Europe. By the late 1980s,
Pride was widespread in Western Europe.
In 1992 EuroPride was incepted, where Eastern Europen City-Capitals like Warsaw
and Riga were seen actively participating. The countries kept adding to the
number of accepting ones; Sweden, Spain, Denmark, Minsk, Belarus, Czech
Republic, Slovakia, Romania, to name a few. In 2001, the Netherlands became the
first country in the world to enact same-sex marriage law. Western Europe
epitomises marriage equality. Today, Austria, Belgium, Denmark, Finland France,
Great Britain, Iceland, Ireland, Luxembourg, Malta, the Netherlands, Norway,
Portugal, Spain, and Sweden allow same-sex marriage.
Russia's LGBT history has been heavily influenced by its rulers and the
political opinions Mediaeval Catholic-Protestant Europe shaped Russian
homosexuality attitudes the most. From homosexual activities being banned only
for soldiers, to decriminalizng it after the October Revolution and from again
recriminalizing it under Joseph Stalin to being openly practiced during Mikhail
Gorbachev's administration, the stance has never been constant.
The fall of the Soviet Union liberalised society, including homosexuality in
1993. A few years later, Russian criminal law equalised the age of consent and
crime punishments for heterosexual and same-sex relations. Transgender rights
allowed identity documented gender changes in 1997. Changing legal gender with a
medical certificate without surgery or hormone replacement therapy was
simplified in 2018.
However, since then, LGBTQ rights in the country have not improved. Sexual
orientation and gender identity discrimination are not legally protected
anymore. Since 2020, the Russian Constitution prohibits same-sex unions. Russia
is known for promoting 'traditional values'.
President Putin signed a new anti-LGBTQ law in December 2022, banning
'propaganda of non-traditional sexual relations' for all ages. Russian lawmakers
consider positive and neutral depictions of same-sex relations in media,
advertising, books, films, and other sources 'propaganda' and should be banned.
Public displays of LGBTQ symbols or topics may be considered propaganda. Russian
conservatism in the 21st century led to this anti-LGBTQ law.
British legislation established Australia's anti-homosexual laws. After its
independence in 1901, the country-continent could not in a snap get rid of its
draconian laws, but remains as one of the fastest to scrap them off. Up until
1924, there was life imprisonment as punishment prescribed for gay sex and in
Victoria, it was the death penalty. While Australia never enacted legislation
specifically targeting homosexuals as individuals, the offence of "loitering for
homosexual purposes" in Victoria served the purpose.
The scant prosecutions that did transpire in accordance with Australian buggery
laws were divided on the consensual nature of anal sex, focusing instead on the
sexual corruption of adolescents. While seldom prosecuted, the presence of
criminal legislation targeting buggery was frequently exploited to coerce
individuals and justify police harassment. Prior to the early 20th century,
criminal laws served as a deterrent to illicit desire and regarded homosexual
activity as something that could be enticed into by any man.
The establishment of the earliest gay rights organisations in Australia can be
attributed to the emergence of sexual liberation movements worldwide in the
1960s. C.A.M.P, or the Campaign Against Moral Persecution, was established in
September 1970 in Sydney, becoming one of the earliest homosexual rights
organisations in Australia. In 1975, South Australia became the first state to
decriminalise male homosexuality.
The inaugural homosexual rights march in Australia took place in Sydney in 1978,
drawing inspiration from the post-Stonewall movements. In the 1980s, the
majority of other jurisdictions reformed their criminal laws. However, until
1994, when the Human Rights (Sexual Conduct) Act 1994 was enacted by the Federal
Keating government, consensual homosexual sex between adults was a crime in
This act decriminalised the activity in a consistent manner across Australia.
Regarding homosexuals and lesbians, attitudes towards Australia's criminal
justice system have undergone a dramatic transformation in a relatively brief
period of time. The laws no longer portray illicit temptations as deterrents for
young men; rather, they now affirm that sexual diversity is cause for
celebration rather than criminalization.
Political fundamentalism, colonialism, and culture conflicts have all
contributed a fair share in strangling the sexual liberty in the Middle East
region. But, since ancient times, poets have not only spoken of but also praised
and written in abundance on the same sex activities. Be it Abu Nuwas from
Baghdad, or Hafiz and Rumi from Iran, their musings were not considered as
unusual or abnormal.
However the modern times evidently speak the contrary. Saudi Arabia, Yemen,
Iraq, Iran, Qatar have imposed death penalty for being homosexual, while Eqypt,
Syria, Libya, Oman, UAE have imposed imprisonments. Its Jordan and Turkey where
homosexuality, although legal but is often penalised. This radical change from
the ancient to modern approaches can be chalked down due to 2 major reasons.
One, the advent of British colonialism, as had a similar impact in India. The
British government criminalised homosexuality in 1885. Over half of the 70
countries that criminalise homosexuality today, are former British colonies.
The community struggles due to conservative 'sharia' interpretations in local
courts. Although homosexuality is not a crime in Egypt, ambiguous "morality"
laws are systematically utilized to prosecute persons accused of "promoting
sexual deviancy" and other offences. Two, Islamic fundamentalism-radicalism
collided with the gay rights movement in the American and European countries
thus hardening cultural divisions in the 1980s.
When homosexuality became
identified with the West, politicians stood to benefit from anti-LGBT sentiment
in the Middle East. The conservative attitude has tended to increase with the
passage of time and thus, let alone the rights, it is nearly impossible for the
community to even survive in this region.
CHINA AND NORTH KOREA
In the "Chinese Classification of Mental Disorders" (CCMD) version one, issued
in 1978, homosexuality was classed as a sexual illness in China. Despite the
"Chinese culture of Psychiatry's 2001" decision to declassify homosexuality as a
mental disease, members of the LGBT community face stigma and prejudice in
Chinese culture. China continues to lag behind developed Western nations in
terms of modernization.
Furthermore, in contrast to Western nations, the perspective of the Chinese
populace regarding the LGBT community is significantly influenced by the unique
cultural milieu of China. LGBT individuals are expected to encounter significant
adverse emotions, psychological anguish, and perceive substantial discrimination
within the cultural framework of traditional China.
The adherence to the 'rules of nature' holds significant importance in Chinese
culture, owing to the historical impact of Confucianism. Individuals are
required to adhere to the prevailing gender identities and sexual orientations
that are endorsed by the majority. This is consistent with the Doctrine of the
Mean ('Zhongyong'), a concept that in Confucianism literally translates to
"average" or "ordinary".
Furthermore, as a result of China's collectivist cultural orientation, the
Chinese populace is profoundly impacted by both familial and societal forces.
Currently there are no laws that protect the community in China, however sexual
activities have no explicit prohibition, and though there are no laws
recognising same sex marriage, yet in Hong Kong, several court decisions and
most notably court case Leung Chun Kwong v Secretary for the Civil Service
granted same-sex couples limited rights and benefits in the realm of
immigration, tax rights and inheritance.
Similarly, to the contrary depiction of North Korea to be hostile and anti-LGBTQ,
homosexuality is legal, though frowned upon. However same sex marriage is not
The current legal framework for transgender individuals in Japan reflects an
outdated perspective, hindering progress toward inclusive and rights-respecting
policies. Japan's Gender Identity Disorder Special Cases Act of 2003 perpetuates
harmful stereotypes by treating transgender identity as a mental health issue.
Despite global trends towards destigmatizing transgender identities, the
Japanese Supreme Court's rejection of Takakito Usui's appeal in 2019 underscores
the challenges faced by transgender individuals in the country.
The absence of legal recognition for same-sex marriage in Japan stands as a
stark contrast to the progressive strides made by many developed economies.
Despite widespread support, civil society engagement, and actions by local
governments, the national level remains unresponsive to the demand for legal
recognition of same-sex marriage.
The Japanese Constitution, particularly Article 24, has been cited as an
obstacle to same-sex marriage, emphasizing the need for a nuanced examination of
legal doctrines. In both the realms of transgender rights and same-sex marriage,
Japan faces pivotal moments requiring legislative reassessment. Achieving
comprehensive legal reforms in both these areas is not just a legal necessity
but a crucial step toward fostering a society that upholds the principles of
equality, dignity, and respect for all. The ongoing advocacy, legal challenges,
and international precedents provide a roadmap for Japan to embark on a more
inclusive legal journey.
Queer people have shaped India's culture, and ought to be celebrated as a rich
legacy not because they were part of it but because they deserve as much love
and respect as any other community. The country has steadily been adopting this
"new" viewpoint of tolerance and respect for everybody. However, the history
shows that this notion is not new.
Ancient India accepted and celebrated all forms of love. The Rigveda says
Vikriti Evam Prakriti-what is abnormal is natural. KamaSutra says lesbians were
called "Swarinis" they married and had children together. The 12th-century
Khajuraho temple in Madhya Pradesh has overt erotic sculptures showing gay
sexual flexibility. While homosexuality was disapproved of in mediaeval times,
LGBT persons were not shunned.
Society tolerated them and didn't harass them for their sexuality. After British
colonisation, section 377 of the Indian Penal Code criminalised sexual conduct
"against the order of nature" in 1861, including homosexuality. The scenario
then changed with time. Shakuntala Devi released "The World of Homosexuals" in
1977, India's first homosexuality research. It demanded "full and complete
acceptance and not tolerance and sympathy". Agra hosted the inaugural All-India
Hijra Conference in 1981, with 50,000 community members from throughout India
attending. Hijras gained third-sex voting rights in 1994.
First petition challenging section 377 filed by "AIDS Bhedbhav Virodhi Andolan"
in 1994 was rejected. But the dynamics took a sharp turn after 2000 through the
rapid and progressive judicial pronouncements and subsequent legislations
brought forth by the parliament. Naz Foundation filed a PIL in the Delhi High
Court challenging section 377. The Delhi High court ruled in 2009 that section
377 violated the "Indian Constitution's rights to life, liberty, privacy, and
equality", enshrined in the preamble.
The law no longer criminalised gay intercourse, but it was still not solidly
supported as legal by a legislation. Then the Supreme Court of India declared
transgenders as the third gender in 2014. It also allowed LGBTQ people to safely
express themselves, in 2017, thanks to the Puttaswamy cases, sexual orientation
was protected by the Right to Privacy.
Then on September 6, 2018, the SC struck down section 377 of IPC as a result of
Navtej Singh Johar v. Union of India. In 2019, Parliament passed "the
Transgender Persons (Protection of Rights) Bill". However, in October, this year
the Court denied the community, the right to marry. "This court cannot make law,
it can only interpret it and give effect to it," said Chief Justice Chandrachud,
and devised it upon the Parliament to decide the legality of the same.
The Role Of Public Opinion
Public opinion always plays a crucial role when it comes to an issue needing
immediate attention of the legislature to draft policies and make laws, in
democratic countries. Society acts as a catalyst in such procedures and not only
does it expedite the process but also, in most cases, ends up shaping the
outcome according to its wishes.
As seen, various countries discussed have undergone a dramatic change in framing
laws for the recognition, protection and upliftment of LGBTQIA rights after the
society embraced their existence, and acknowledged them as a part and parcel of
itself. Public feelings, values, and concerns strongly influence lawmakers'
agendas and decisions. Elected officials are sensitive to public opinion since
it reflects their constituency needs. Politicians base their platforms and goals
on constituent emotion, trying to align their laws with popular expectations.
Public opinion measures policy acceptance and success. Legislators closely
monitor public reactions and adjust proposals to ensure their viability and
appeal. The fight for civil rights, environmental reform, and healthcare shows
how public opinion may alter during social upheaval. The complex relationship
between public opinion and governance shows how the people and their
representatives work together to shape laws and policies.
Significant surges in global support for LGBTQ individuals and issues associated
with them have been observed in numerous nations over the past three decades.
Regarding these alterations, numerous scholarly investigations have scrutinised
the determinants that influence public sentiment.
The studies have shown that nations with more supportive legislation tend to
have more tolerant residents. 10% of Americans stated in 1973 that homosexual
relations are not immoral. This proportion exploded in the following decade as
2000 saw twice as many individuals to hold this view; by 2017, 50% of
respondents held this view.
In a similar vein, the percentage of Americans who believed that homosexuals
should be employed as elementary school teachers increased from 42% in 1989 to
nearly 70% in 2007. Prior to 2015, when the United States Supreme Court granted
federal recognition to same-sex marriages, support for their legalisation had
increased significantly. Consistent with the transformations occurring in the
United States, global public opinion has, on average, become more liberal.
According to data compiled by the WVS between 1981 and 2008, the percentage of
citizens in 52 countries where such data was accessible rose by about 67%. In
these countries, the proportion of citizens who believed that homosexuality was
always justifiable increased. Regarding North America and Europe, researchers
possess a vast amount more data in comparison to other regions.
Over the past three decades, attitudes in these locations, as well as in
Australia and New Zealand, have become considerably more tolerant. Knowledge
regarding the attitudes of individuals residing in the Middle East and Africa is
considerably limited. These inhabitants are, on average, less hospitable than
individuals from other regions of the globe.
The transition of generations during a population shift has the potential to
influence attitudes throughout an entire nation. An alternative process is an
intracohort change, which occurs simultaneously and involves the development of
more liberal perspectives among both older and younger individuals.
Numerous studies have demonstrated that the media significantly influences
attitudes. During the 1990s, a number of likeable homosexual and lesbian media
and television personalities emerged. Positive attitudes are more prevalent
among individuals who are more exposed to such media images. Consistent with the
significant impact that the media has had on attitude change, there has been a
substantial rise in face-to-face interactions with individuals who identify as
homosexual or lesbian since the 1990s.
Due to a multitude of factors, including the Coming Out Movement, the majority
of contemporary Americans know an LGBTQ individual in person. A greater degree
of support is associated with knowing someone who identifies as gay, according
to multiple studies.
Moreover, the level of interaction is significant. Individuals are more inclined
to hold favourable perspectives when they develop a more intimate connection
with a homosexual person. Discrimination and the expression of negative opinions
are more difficult to endure when directed at a close acquaintance or family
member. Despite the lack of outward disclosure by sexual minorities themselves,
research on transphobia has demonstrated that engaging in dialogues with
supportive individuals can effectively mitigate prejudice. Attitudes differ
across the majority of cultures with regard to gender, age, education, and
Apart from these micro-level factors, the 3 macro-level reasons behind changing
public opinion can be seen in the form of:
Religion, Politics and Economic Development. While more conservative religious
denominations tend to have a narrower approach then the liberal ones, politics
is often used as a tool to to secure votes of that section of the society, that
exerts dominance in number as well as opinions, thus working for the benefit and
whims and fancies of the polititians.
In the majority of significant cross-national studies, economic development, as
measured by the Human Development Index, appears to be the most influential
factor on attitudes. Richer nations have, on average, a greater proportion of
liberal citizens than impoverished nations. The prevailing rationale for this
correlation is Inglehart's scarcity thesis.
According to Inglehart, inhabitants of countries with low levels of economic
development possess limited material resources, compelling them to prioritise
survival-oriented concerns and resulting in a significant reliance on the larger
society. As nations, however, become more prosperous, the majority of
inhabitants begin to take survival for granted.
Their values and priorities undergo a transformation, placing greater emphasis
on autonomy, personal liberty, considerations regarding the standard of living,
and acceptance of diverse perspectives. The heightened perception of safety that
accompanies greater economic progress fosters a greater tolerance and acceptance
Despite the fact that LGBTQ rights have achieved substantial momentum in foreign
diplomacy over the last decade, worldwide community support for these rights
remains contentious. International bodies such as the United Nations have passed
pro-LGBTQ rights resolutions; nevertheless, formal statements are usually
greeted with hostility by member nations unwilling to evaluate their own track
records on the subject.
As a consequence of this schism, the preeminent diplomatic organisation
continues to deny official recognition to LGBTQ rights. In contrast, LGBTQ
rights are advocated for through informal coalitions like the LGBTI Core Group
and specific United Nations agencies.
In 2008, 66 nations declared their backing for LGBT rights at the UN General
Assembly. The declaration condemned sexual orientation and gender identity human
rights breaches. Russia, China, the United States, the Holy See, and the
Organisation of the Islamic Conference opposed it, accusing the 66 countries of
trying to "undermine the international human rights framework by trying to
normalise paedophilia, among other acts."
Following the 2008 declaration, a 2011 UN Human Rights Council study found LGBT
discrimination in law and society to persist. In 2015, the UN Human Rights
Council introduced a second report on LGBT violence and international law.
Despite UN efforts to promote LGBT rights, nations' resistant to change keep
postponing the progress. In his last year as Secretary General, Ban Ki-Moon
acknowledged that his LGBT rights advocacy often clashed with big strong member
nations. Despite calling LGBT rights an "institutional commitment," he thought
his efforts were mostly ineffective.
LGBT rights are not included in the final Sustainable Development Goals, the
UN's global development strategy. On September 29, 2015, 12 UN agencies issued a
declaration pledging to stop LGBT violence and prejudice. Ending Violence and
Discrimination Against LGBTI People, a statement, calls LGBTI discrimination a
breach of "international human rights law" and "a barrier to the Sustainable
The informal LGBTI Core Group of countries and NGOs represents LGBT rights at
the UN outside of regular UN entities and promotes Global North-Global South
collaboration, including Western and Latin American participation, as well as
Albania as its first Muslim-majority observer state. In 2010, the High
Commissioner for Human Rights joined the Core Group. Because of member-states'
resistance, the UN's official institutions struggle to gain support for LGBT
In 2016, the UN Human Rights Council selected an independent expert to
investigate global LGBT violence and prejudice. Several Western and Latin
American LGBT Core Group countries supported the measure, which passed 23-18 and
established an independent expert formalised LGBT Core Group work in UN
agencies. It analysed, promoted awareness of worldwide sexual orientation or
gender identity discrimination, collaborated with governments to enact
anti-discrimination laws, and provided anti-LGBT violence advice to states,
NGOs, and UN organisations.
Lastly, Universal Declaration of Human Rights, European Convention On Human
Rights, and various resolutions and treaties mention of right to life which
includes something more than mere animal existence to everyone, irrespective of
their genders or sexual orientation, which needs to be adhered to as a principle
of Jus Cogens in the field of International Law.
Global research demonstrates that only five countries in the worl: dBritain,
Bolivia, Ecuador, Fiji, and Malta, have granted LGBT people equal constitutional
rights, while most fail to safeguard the group from discrimination and abuse.
Despite 22 countries legalising same-sex marriage, LGBT persons face
discrimination and rights breaches due to constitutional inequality.
"While marriage equality is an important start, it is not enough to prevent
discrimination at work, in housing or many other spheres of life," said Jody
Heymann, founding director of WORLD and dean of the UCLA Fielding School of
Public Health. "It is crucial for constitutions to guarantee equal rights and
protection from discrimination to LGBT individuals in all spheres," she said.
Although the world has become a better place for the community overtime, yet
what it lacks is a concrete step taken in the regard. The public opinions,
societies' evolution, the policies and laws drafted accordingly have been a
kickstart, however what needs to be inculcated is protection guaranteed by the
most supreme authority of a land, the grundnorm, the lex suprema- the
constitution of any country. Moreover, the countries should take steps to
respect their commitments on an international basis, irrespective of the
political wind in its teritory.
To conclude, much of the evidence on norm transformation towards LGBTQI
acceptance and support comes from the global North, but a rising amount of
information from Southern countries and areas reveals that equality discourses
have taken hold in many locations. Internationally and nationally, activism is
the main force behind such changes, most evidently observed in the legal sphere.
Most attention to LGBTQI issues in underdeveloped nations has centred on human
rights. Some interventions may transform norms towards more inclusive, tolerant,
and supportive cultures. Interventions, methods, and campaigns usually use a
human rights rhetoric that promotes LGBTQI inclusion rather than systemic change
that challenges the gender binary.
This is a crucial starting step and not the goal, as Robert Frost puts it, "The
woods are lovely, dark and deep, But I have promises to keep, And miles to go
before I sleep, And miles to go before I sleep."
Written By: Aditi Pande, 3rd year student at Maharashtra National Law
Law Article in India
You May Like
Legal Question & Answers