Following the publication of a recent report, Lewis Brooks and Dr Felicity Daly say that the Commonwealth approach to LGBT rights emphasises respectful dialogue, building consensus and providing practical support to policymakers and diplomats.
The need for a constructive approach to the sensitive issue of upholding the rights of Lesbian Gay Bisexual and Trans (LGBT) people is based on diplomatic necessity and practicality. Violations of the rights of LGBT people have been widely covered in the media, eliciting condemnations and counter-condemnations from various global political leaders. This has undoubtedly created a degree of diplomatic tension between many countries that might otherwise have more cordial and productive relationships. There is a danger of concentrating on the worst violations, but this can overshadow the positive progress that countries have quietly made to support the rights of their LGBT citizens. Discussing the rights of LGBT people and highlighting examples of progress may well prove to facilitate diplomatic discourse among governments. In addition to healing divisions, such an approach may also be of more practical use to governments who are seeking policy options to support sexual and gender minorities in their countries.
Across the world, governments have found a variety of ways to support LGBT citizens through policy. New research published by The Royal Commonwealth Society, Kaleidoscope Trust and the Commonwealth Equality Network, has used the Commonwealth network to compile examples of these policies from every region. A Commonwealth Toolkit for Policy Progress on LGBT Rights draws together positive policies from the legislative, judicial and executive branches of government that fellow governments can learn from, adapt and implement in their own countries.
The legislative branch of government provides the most concrete way of creating policy change in most societies. By passing new laws and reforming out-of-date legal codes, parliaments and assemblies can establish the state’s exact policy towards its citizens and take steps to ensure that other actors within society interact appropriately. The Seychelles is one of the countries to most recently decriminalise same-sex activities between consenting adults. It did this by repealing outdated penal-code provisions imposed by the British Empire, and the law is now waiting the President’s ratification. Seychelles follows several other countries that have repealed similar provisions left in Commonwealth countries by the British Empire. Mozambique repealed similar provisions left by Portuguese colonialists as recently as 2015. Lesotho’s 2012 review of its penal code also effectively decriminalised consensual same-sex acts between adults by replacing the old laws with those that target perpetrators of non-consensual acts and those against minors and children. Parliaments within many Commonwealth countries have also shown leadership in outlawing hate crimes against LGBT people and strengthening gender identity laws. Several have also sought to support the economic rights of LGBT citizens by banning discrimination on the basis of sexual orientation in employment laws. This is an approach taken by countries as diverse as the Seychelles, Botswana, St Lucia and Samoa.
The judicial branch of governments have a key role in interpreting legislation and acting as a check and balance on unconstitutional actions by individuals and other branches of government. In 2009 the Supreme Court of Pakistan ordered that ‘eunuchs’ be given national identity cards and asserted that they had the same constitutional rights as any citizen. The Supreme Court of India made a similar decision in 2014 outlining a ‘third gender’ based on cultural understandings of Hijra and Kothi identities, as well as other trans persons, and upholding the rights of Indian citizens to determine their own gender. In Kenya, the High Court has upheld the right of the Transgender Education Authority and the National Gay and Lesbian Human Rights Commission to register with the government as non-government organisations, citing constitutional rights to freedom of association and freedom from discrimination.
Heads of governments and their executive branches have the most important role in implementing laws and judgements and steering societal debate. Many political leaders have used their office to highlight the plight of minority groups and speak out in defence of their rights. The Prime Minister of St Kitts and Nevis, the Hon Dr Timothy Harris, as well as the former Presidents of Botswana and Mozambique, have spoken out in favour of ending discrimination on the basis of sexual orientation and gender identity, particularly in order to ensure a more effective response to HIV. Meanwhile, the government of Belize has passed a gender policy that respects the diversity of all Belizeans, including ‘persons of all ages who come from diverse races, cultures, ethnicities, faiths, sexual orientations, socio-economic situations and behavioural lifestyles’. Ministers have also declared the non-enforcement of colonial-era bans on homosexuals entering the country, an approach that could be a temporary solution for other governments while they reform discriminatory laws. Jamaica’s government has supported the education of society through the Ministry of Education’s support for anti-bullying campaigns and the Ministry of Health, which has educated health-care providers about issues specific to LGBT people.
While the Commonwealth Toolkit shows the changes governments are making to support the rights of LGBT people, there is also growing evidence of the economic and developmental benefits to society if countries unlock the full potential of LGBT people. Non-discrimination has also been supported by resolutions by the UN, EU, African Union and Organisation of American States. The Commonwealth presents an opportunity to promote an expansion of the policy progress of its states.
Currently, 40 of the 53 Commonwealth members still criminalise consensual same-sex relations between adults in some way and many do not adequately recognise trans citizens. In most cases, these laws were inherited from the British Empire, but common legal systems and language present an opportunity for countries to support each other in repealing and rolling back the toxic imperial legacy of homophobia and transphobia. The Commonwealth, as a diverse network, can also support the sharing of technical expertise and experience of policy progress. Governments can request technical assistance from Commonwealth institutions, access professional expertise from Commonwealth associations and build knowledge exchange between fellow governments.
Civil society can play an essential role in promoting community dialogue to support legal and policy change and the local LGBT community can assist with policy design, implementation and education, as they have in several Commonwealth countries from Malta to Barbados. The record of progress on the rights of LGBT people within the Commonwealth and its members represents hope for greater collaboration, progressive dialogue and ultimately policy change in more member states. While lagging behind other intergovernmental bodies in protecting and promoting the rights of sexual and gender minorities, the Commonwealth network has the potential to support its members in a way that many other organisations lack, a potential that its members should seize with open arms.