The Judicialization of LGBT Human Rights in South Africa, the US, and India

• In Event: Strategies for Advancing and Hindering LGBTQ Rights in the Law and Courts

Abstract

In 2018, the Indian Supreme Court declared unconstitutional Section 377 of the Indian Penal Code. Section 377 of the Indian Penal Code prohibits consensual sex between adults of the same sex. It is a provision that dates back to 1864, when India was a colony of the British Empire. The Court’s decision was the final chapter in a twenty-year battle to overturn Section 377. The justices of India’s highest court, like jurists and legislators in a growing number of states, recognized that the criminalization of homosexual sex violates the equal protection and non-discrimination norms that are pillars of modern constitutions and codified in global and regional human rights treaties. In decriminalizing, India joined common law jurisdictions like the United Kingdom (1967), Canada (1969), New Zealand (1986), Hong Kong (1991), Ireland (1993), Australia (1997), South Africa (1998) and the United States (2003).

In this article, I examine decriminalization as the outgrowth of the judicialization of LGBT rights movements in three national legal (constitutional) contexts – the United States, South Africa, India – situated within a shifting international legal context. I investigate how the different domestic and transnational cultural and legal frames available to the social movement in each case influenced their choice of strategy (or strategies), the timing of their legal mobilization, the nature of the constitutional court’s discourse, and the legal and social outcomes in each case – including backlash effects such as non-compliance with the judgment by government actors and countermovement mobilization.

Aggrieved populations have at their disposal a repertoire that may include disruptive strategies and tactics such as protest rallies and sit-ins as well as more “institutionalized” activism such as lobbying the government or putting forward electoral candidates. Activists and social movement organizations (SMOs) may also mobilize legally, making claims in domestic courts. They may also litigate claims in foreign and international courts, relying on human rights norms and law, for example. Activists may combine several of these tactics in a multipronged strategy.

The framework for this article is to consider the dynamic relationship between domestic, foreign, and international law, norms, and policy in the human rights space. The twentieth century witnessed a confluence of human rights and constitutionalism, as the global and regional expansion of the human rights regime, beginning in the immediate aftermath of World War II, and waves of decolonization and democratization mutually constituted each other. This confluence led scholars of political science and law to spearhead projects of compiling and comparing constitutions, and to consider the convergence of constitutions in the context of treaty ratification and human rights – to speak of global constitutionalism.

LGBT rights movements face distinct opportunities (or “opportunity structures”) for activism, however, including different cultural and legal frames (historical, social, and constitutional contexts and judicial precedents). And this article explores these different frames and the consequences they have for mobilization, jurisprudence, and social change. For example, the United States Constitution does not include a catalog of statuses (e.g., race, religion, national origin) that are specifically protected from discrimination. Conversely, the South African constitution includes a catalog that specifically prohibits discrimination on sexual orientation grounds. Consider also the different cultural and legal frames – Judeo-Christian heritage, federalism, and LGBT mobilization dating back to the 1969 Stonewall Riots in the United States; the domestic and transnational anti-apartheid movement and democratization context in South Africa; and Hindu nationalism in India.

In this article, I discuss the colonial origins of criminal prohibitions on homosexual sex, the emergence of LGBT rights movements and organizations, and backlash following movements’ judicial successes; and I compare the domestic and transnational political and legal contexts (opportunity structures and frames) for SMO activism and the constitutional jurisprudence of the high courts. I conclude with a discussion of nascent movements and transnational activism in the Commonwealth (English-speaking) Caribbean. As was the case in 1980s Ireland, where David Norris lost his decriminalization case in domestic courts and resorted to an international judicial forum – the European Court of Human Rights, LGBT rights activists in the Commonwealth Caribbean have pursued remedies in the Caribbean Court of Justice when domestic litigation efforts failed. This too may be the fate of African LGBT rights movements.

This article engages scholarship on social movements, judicialization, and comparative constitutional law, and should be of interest to scholars of international relations and law, comparative politics, sociology, and law and society working in those areas.

Author

• Ayodeji Kamau Perrin, Northwestern University