How the World Inherited Anti-Gay Laws
Most countries that still criminalise homosexuality are former colonies. That’s not a coincidence.
Indians are among nearly 2.8 billion people who still live in countries that criminalize gay sex. Punishment varies by country. People can be fined, arrested, prosecuted and, if found guilty, imprisoned, whipped, or even executed.
These laws are often defended on the grounds that they are preserving an ancient or traditional ban on same-sex relationships. But the truth is they are far more recent. In fact, the history of anti-sodomy laws dovetails with the history of colonialism, according to data compiled by the Office of the UN High Commissioner for Human Rights.
For several months now, a team of researchers at the Commission has been documenting the history of laws that punish same-sex relations. Based on their data, and our own, we have built a map — starting in 1790, it shows when and where homosexuality was criminalised and, later, decriminalised.
“This map tells a story,” said Charles Radcliffe, one of the researchers who also heads the global issues team at the Commission. “There's clearly a link between the expansion of the European empires — especially the British, but also the Spanish and Portuguese empires — and the spread of punitive laws against homosexuality in the 18th, 19th and early 20th centuries.”
What does this map tell you?
More than half of the 76 countries that still have these laws are former European colonies, particularly British — India, Myanmar, Sudan, Zambia, Nigeria, Papua New Guinea, and so on. Even those countries that have since scrubbed the law from their books — such as Brazil or Argentina — did so only after they won independence.
“When the 19th century began, there were some 50 countries that we could identify that criminalized same sex relationships,” said Radcliffe. “By the time it ended, that number had doubled.” In those 100 years, Britain occupied large parts of Asia and Africa. Many of these countries, including India, didn’t have explicit laws on sexual orientation until they were colonised.
Is this a big deal?
Yes. It’s now a familiar argument that Section 377 of India’s Penal Code protects the county’s society and its values from decadent western influence. That’s what the Ministry of Home Affairs said in an affidavit submitted to the Delhi High Court in 2003: “When Section 377 was brought under the statute as an act of criminality, it responded to the values and mores of the time in the Indian society... Objectively speaking, there is no such tolerance to [the] practice of homosexuality/lesbianism in the Indian society.”
This was in response to a petition filed by Naz Foundation, a nonprofit that fights for LGBT rights, that sought to decriminalise homosexuality on constitutional grounds — to ban sexual relations between consenting adults, whatever their sex may be, is a violation of their right to freedom of expression and dignity.
Historians, lawyers and LGBT activists have long argued that Section 377 did not respond to Indian “values” at all. Rather, it reflected “the British Judeo-Christian values of the time,” as Naz Foundation pointed out in its response to the government's affidavit.
Defenders of Section 377 “like to believe that they are opposing ‘Western influence’ when they oppose ‘homosexuality,’” said Akhil Katyal, a Delhi-based author and prominent LGBT activist. “In fact, they are only parroting an old colonial prejudice.”
Does that mean homosexuality was legal in these countries before they were colonised?
That’s a tricky question. The map says “unknown” for so many countries in 1790 because they didn’t necessarily have a single codified set of laws that applied to everyone. Standardized civil and criminal codes that are used across the world now are a modern development — most have their origins in the 19th century. This doesn’t mean that these countries did not have laws. They did. But different tribes or communities had different laws, and some of them lived under multiple sources of law — a combination of custom, decree, religious laws, and precedents.
In India, for instance, Hindus and Muslims had different laws, and each community had a variety of laws within its ranks. Hindu law even varied by caste, community, and region.
What do we know about how homosexuality was viewed in these places?
We know that attitudes towards homosexuality and gender were diverse, complex, and hard to define in legal terms. The Nandi tribe in Kenya, for instance, allowed women to marry one another. The Mayans in Mexico, and the ancient Greeks, accepted sexual relations between men. Until the 17th century, Chinese poetry and songs celebrated homosexuality as a sign of “cultural elitism.” Native American tribes defined gender on a spectrum, and gave spiritual importance to people who identified as transgender or intersex. The Chukchi tribe in Siberia listed seven genders other than male and female. Prophet Muhammad is believed to have issued rulings about the rights of mukhannathun — people who identified as transgender.
How about India?
The Manusmriti, an important legal text for Hindus that dates to 2nd century BC, distinguishes consensual sex between women, on the one hand, and a woman raping another woman, on the other. The Indian Penal Code, which was drafted nearly 1,600 years later, made no such distinction.
Mubarak Shah Khilji, the last ruler of the Delhi Sultanate, was believed to be in love with the military leader Khusro Khan “to the point of distraction.” Ziauddin Barani, court chronicler and companion to Emperor Muhammad bin Tughlaq, condemned “sultans who lost their better judgment over male lovers and ths surrendered the crucial instruments of power.” Medieval Urdu poetry often described romantic and erotic interactions between men from different classes and even religions. Rekhti poetry, Urdu poems written in the female voice by male poets, was infamous for its “explicit depiction of female sexuality, especially lesbian sexuality.”
Right from the Kamasutra up to Bankim Chandra Chatterjee’s 19th century novels, Indian literature is full of references to same-sex relationships. This is the subject of an exhaustive book by Salim Kidwai and Ruth Vanita.
This isn’t to say that same-sex couples weren’t discriminated against, or that their relationships were openly encouraged. But definitions of sexuality and gender were far more varied and fluid than what was later allowed by law.
Why did Britain need to draft a whole new criminal code for India?
“The principle is simply this; uniformity when you can have it; diversity when you must have it; but, in all cases certainty.” That’s how Thomas Babington Macaulay, author of the Indian Penal code, defined an ideal legal system. India’s myriad laws, which often clashed and competed with one another, failed this test.
As Britain’s territory in India expanded and its revenue grew, the East India Company got more entangled in the lives and laws of Indians. When power passed to the crown in 1858, Indian law was the subject of a lot of debate in Britain. Historians believe Macaulay’s criminal code was actually the result of the need to reform Britain's laws: it was easier to enforce a new legal code in a colony than in a parliamentary democracy.
“Although opinions differ as to why the criminal law was first, it seems clear that events in England made it the most logical choice,” wrote historian David Skuy. “By the time Macaulay arrived in India, English criminal law had been at the forefront of a reform movement for half a century.”
Why did they criminalise homosexuality?
That’s a loaded question. We’ll try and keep it simple.
For one, sodomy had been illegal in Britain for a long time — at least ever since King Henry enacted The Buggery Act of 1533. “Although this was variously repealed and re-enacted in various forms, it acted as a basis for the law that was exported to the colonies,” said Aengus Carroll, a researcher for the International Lesbian, Gay, Bisexual, Trans and Intersex Association.
Second, colonialism is about control. Standardized laws — which defined what was acceptable and what was not — were one way to do this. India, governed as it was by rulers who drank, danced, maintained harems guarded by eunuchs, and enjoyed ghazals and poems written by men, and often about men, deeply bothered the sensibilities of Victorian England. India’s chaotic concoction of laws only proved how desperately the country needed order.
As Macaulay himself put it in 1833, “I believe that no country ever stood so much in need of a code of laws as India, and I believe also that there never was a country in which the want might so easily be supplied.”
Was Britain the only European country that exported anti-sodomy laws to its colonies?
No. Spain and Portugal introduced anti-sodomy laws in Mexico, the Caribbean, and Central and South America, where homsexuality figured prominently in customs, myths, and folktales.
“The Spaniards — who knew only a world where homosexuality was excoriated, feared, and all but hidden from public view — now encountered cultures where it was not only tolerated but openly avowed,” writes historian Louis Crompton in his book, Homosexuality and Civilization.
Crompton refers to several accounts of Spanish magistrates prosecuting and even killing sodomites. One such horrific incident describes a magistrate who orders 40 “sodomites” to be “given for a prey to his dogs,” an act for which he was praised by his fellow Spaniards.
Do we know how many people have been prosecuted under Section 377 in India?
One of the biggest problems with Section 377 is that it leaves no room for consensual same-sex couples. Instead, it punishes anyone who commits “sodomy,” including rapists and pedophiles.
“To the drafters, the act of ‘sodomy’ itself was so horrible that the harm seemed uniform: regardless of the other party’s age, and regardless of whether he consented or not,” writes Alok Gupta, a lawyer and queer rights activist who has studied the history of the law. “The ‘homosexual’ therefore emerged before the law deeply tarnished by the association with pedophilia and rape—as a sexual monster.”
As a result, there is no clear data on how many people have been arrested or prosecuted for consensual sex under the law. But human rights groups have recorded innumerable instances of harassment and abuse, especially by the police.
More importantly, they argue, Section 377 denies the LGBT community their basic rights. That’s the crux of the petition that a five-judge constitutional bench will soon hear. The question before them: irrespective of how many people have been tried or sentenced under this law, and irrespective of its origins, does it violate the constitutional rights guaranteed by a democracy?