Strategic Litigation and LGBTQ Human Rights Jurisprudence in the Global South

• In Event: Gender, Sexuality, and Constitutional Equality

Abstract

In this paper, I chart the evolution of decriminalization jurisprudence and the underlying legal concepts since 1997 in the Global South. In the past twenty-five years, legal mobilization has produced judgments concerning the decriminalization of homosexual sex in Ecuador, South Africa, Zimbabwe, Botswana, Fiji, Hong Kong, Nepal, India, Singapore, Belize, Trinidad and Tobago, Kenya, Jamaica, and Malaysia. With few exceptions, this jurisprudence has not generated much analysis, particularly comparative analysis. I identify the types of claims made – for example spatial privacy rationales versus decisional privacy rationales, and sex or gender discrimination claims versus sex orientation discrimination claims; I examine the governments’ (and intervenors’ and amici’s) arguments counter arguments; I compare and critique the jurisprudential frameworks and balancing test(s) applied in different legal contexts; I identify textual and jurisprudential grounds for the claim; and I scrutinize the quantity and function of references to foreign and international case law. I thus update scholarship on the most recent developments in this area of LGBTQ+ rights. I also examine aspects of the “legal opportunity structure” that influence strategic litigation decisions and judicial reasoning – locus standi, the presence or absence of binding human rights treaties and “soft law”, extant legal precedents, persuasive authorities, savings clauses, and express constitutional permission or requirements to consider international law while addressing fundamental rights claims. The paper provides evidence for assessing the role of strategic litigation (i.e., of activists, lawyers, NGOs, and judges) in human rights norm generation and norm diffusion processes. It will be of interest to social movement and legal mobilization scholars, to human rights law and comparative constitutional law scholars, to scholars of LGBTQ politics, and to theorists of norm diffusion in international relations.

Author

• Ayodeji Kamau Perrin, University of Pennsylvania