From punishment to empowerment: sexuality and gender identity laws in Asia and the Pacific

HIV Australia | Vol. 11 No. 4 | November 2013

By John Godwin

In 2012, the Global Commission on HIV and the Law highlighted the harmful impacts of punitive laws on the health and human rights of men who have sex with men (MSM) and on transgender people.

The Commission called for an end to police abuses, the repeal of sodomy offences, the enactment of anti-discrimination laws and legal recognition of transgender people.¹

It has been over a year since the Commission reported, yet the legal environment for MSM and transgender communities remains highly punitive. Countries in which sex between men remains illegal include:²

• in Asia: Afghanistan, Bangladesh, Bhutan, Brunei, Malaysia, Maldives, Myanmar, Singapore, Pakistan and Sri Lanka
• in the Pacific: Cook Islands, Kiribati, Nauru, Papua New Guinea, Palau, Samoa, Solomon Islands, Tonga and Tuvalu.

There have been some attempts to challenge punitive laws, such as the Naz Foundation case, a constitutional challenge to India’s sodomy law, which succeeded in 2009.

The decision was appealed and the Supreme Court of India is due to hand down its decision on the appeal in late 2013.³ It is expected that the court will uphold the decision decriminalising homosexual conduct in India.

If so, it will set an important precedent that will be helpful for challenges to other countries’ discriminatory laws. For example, there is an ongoing challenge to Singapore’s law that criminalises sex between men as an ‘outrage on decency’.

In 2013, a Singapore court dismissed a constitutional challenge to this offence. The decision is being appealed.⁴ Police abuses against MSM and transgender people continue to be widely reported. For example, in Myanmar police have targeted men for simply socialising after dark.

In one case, police assaulted and detained a group of MSM and transgender people and forced them to strip. Some had to pay bribes and some were forced to sign pledges that they would not wear women’s clothing.⁵ In other recent cases, sexual assaults of MSM by police have been reported.⁶

Although the environment remains highly punitive for many, there have also been some notable positive developments in 2012–13:

• Three cities in the Philippines (Davao City, Cebu City and Angeles City) have introduced laws prohibiting discrimination on the grounds of sexuality and/or gender identity.^{7, 8, 9}
• Fiji’s new Constitution states that a person must not be unfairly discriminated against because of health status, sexual orientation, gender identity or gender expression.¹⁰
• In a landmark case, a Hong Kong court granted a postoperative transgender woman the right to marry.¹¹
• In Cambodia, the age of consent is 15 for both homosexual and heterosexual sex.¹² The government has issued guidelines that confirm a right to free expression of sexual identity and to comprehensive access to HIV services for MSM and transgender people without discrimination, and has included violence protection measures for transgender people in national policy.^{13, 14}
• The Thai Parliament is debating a bill for legal recognition of same-sex relationships as civil partnerships, which is supported by the National Human Rights Commission.¹⁵
• The government of Vietnam has acknowledged the need for legal recognition of same-sex relationships. Fines are no longer to be imposed for informally celebrating same sex ‘marriages’ and in late 2013 Vietnam’s National Assembly is to consider a proposal for a de facto relationships property law for heterosexual and homosexual couples.¹⁶
• New Zealand became the first Asia-Pacific country to legalise same-sex marriage. Soon after, the Australian Capital Territory became the first Australian jurisdiction to legislate for same-sex marriage, although Australia’s federal government is contesting the validity of the Territory’s new law through the courts.¹⁷

More liberal community attitudes towards sexual diversity and gender identity are resulting in progressive reforms to some national laws.

This is very good news for both human rights and public health. The winds of change are a-blowing.

References

1 Global Commission on HIV and the Law (2012). Rights, risks and health, UNDP, New York.

2 Godwin, J. (2010). Legal environments, human rights and HIV responses among men who have sex with men and transgender people in Asia and the Pacific, UNDP, Bangkok.

3 Supreme Court reserves judgment in Naz Foundation (2012). Bar and Bench.

4 Kriegler, Y. (2013, July 11). Goldsmith to challenge Singaporean government on anti-gay laws, The Lawyer.

5 Asian Human Rights Commission (2013). Statement: Burma: Police torture of gay and transgendered people, Asian Human Rights Commission, Hong Kong.

6 Servando, K. (2013, March 14). Hope for Myanmese gays living in a secret world, South China Morning Post.

7 Passage of Cebu’s anti-discrimination law lauded (2012, October 18). Sun Star.

8 Ordinance to protect gay rights in Cebu up in next PB session. (2013, February 17), Cebu Daily News.

9 LGBT leaders renew push for anti-discrimination bill, local ordinances. (2013, July 27), Outrage.

10 Government of Fiji. (2013). Draft Constitution of the Republic of Fiji 2013, Article 26.

11 Hong Kong court supports transsexual right to wed (2013, May 13), BBC News online.

12 Royal Government of Cambodia, Law on Suppression of Human Trafficking and Sexual Exploitation 2008.

13 National AIDS Authority. (2011). National guideline for STI and HIV/AIDS response among MSM, transgender and transsexual people, Phnom Penh.

14 Government of Cambodia. (2013). National Action Plan to Prevent Violence Against Women (2013–2017).

15 Sanders, D. (2013, August 30), How Thailand and Vietnam are moving on same-sex ‘marriage’, Gay Star News.

16 ibid.

17 Abbott government to challenge ACT same-sex marriage law. (2013, October 22). The Australian.

John Godwin is an HIV and Development Consultant.