The International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) have released the second edition of Our Identities Under Arrest: A global overview on the enforcement of laws criminalising consensual same-sex sexual acts between adults and diverse gender expressions. 

Arrests and prosecutions for consensual same-sex sexual acts, and on the grounds of diverse gender expressions, continued to take place across the world in 2023 and in previous years, a report by ILGA World revealed.

Despite limited official data available, ILGA World documented evidence of enforcement in at least 32 United Nations member States in the first six months of 2023 alone. For the second edition of its Our Identities Under Arrest report, the organisation reviewed more than one thousand cases over the last two decades in which law enforcement subjected LGBT and gender-diverse persons to fines, arbitrary arrests, prosecutions, corporal punishments, imprisonments and more – up to (possibly) the death penalty. However, the actual numbers may be much higher: formal records are often inaccessible or non-existent. In addition, many cases may have either never been registered or reported on in unclear and biased manners.

Documented cases show the unpredictable nature of these arrests and prosecutions. “Countries widely regarded as ‘safe’ or ‘quiet’ have seen sudden shifts on relatively short notice,” explained Kellyn Botha, research consultant at ILGA World and author of the Our Identities Under Arrest report. “Growing hate speech against sexual and gender diversity – be it from political figures, religious and community leaders, also with the complicity of the media – regularly turns into crackdowns or organised campaigns, whose length, extent, and violence cannot be foreseen. We have witnessed this in 2023, too: Uganda adopted aggressive new legislation, the negative impact of which is already being felt across the region. Kenya, Tanzania, Nigeria, Ghana and Senegal have made attempts to also aggravate existing legislation, while Iraq, Niger, and Mali have experienced increased efforts to formally criminalise our communities where no law existed before. Despite the positive developments witnessed in Singapore, the Cook Islands, and Mauritius, where consensual same-sex sexual acts were decriminalised, the path to equality is rarely a straight line.”

When it comes to how these laws are enforced, the picture is particularly bleak. “Imprisonment terms imposed by courts vary greatly across time and regions, ranging from a couple of months to even 30 years in certain cases,” explained Lucas Ramón Mendos, Research manager at ILGA World. “There is overwhelming documentation of police beating, humiliating, torturing, raping, extorting bribes or otherwise abusing LGBT and gender-diverse people they arrested or detained. Many victims of such violations do not make formal complaints for fear of re-victimisation.”

The majority of criminalising laws specifically target consensual same-sex sexual acts, and yet, diverse gender expressions appear to be a central element triggering a disproportionate number of arrests. “In many jurisdictions, the way a person dresses, acts or talks can already be considered ‘proof’ of ‘homosexuality’ and be enough to warrant an arrest,” continued Mendos. “It is far more likely for someone to be targeted for their non-conforming appearance or mannerisms than for any verifiable ‘illicit’ sexual act.”

This bleak scenario has direct repercussions on the daily lives of LGBT and diverse people. “The mere existence of criminalising laws means that, in many parts of the world, our communities live under a constant threat,” comments Gurchaten Sandhu, Director of programmes at ILGA World. “This is not only true for grassroots populations hit by sudden waves of hostility, but also for asylum seekers who – based on botched assessments of safety – risk being sent back to countries where they will be persecuted.”

“Our communities are often targeted even without explicit criminalising provisions on their books,” Sandhu continued. “This is particularly true in areas where the rule of law has faded, and insurgent groups have taken over. Not being among the 63 UN member States that explicitly criminalise consensual same-sex sexual acts is simply not enough for a country to be considered a safe place for LGBT and gender-diverse persons.”

Behind the black-letter of the law, there are thousands of real-life stories of people being negatively impacted by unjust criminalising legislation.

“We keep uncovering what the impersonal legal jargon means in practice, affecting people’s lived experiences in ways that demand attention and action,” concluded Luz Elena Aranda and Tuisina Ymania Brown, co-Secretaries General at ILGA World. “It is these stories that urge us to continue our advocacy and activism with renewed vigour, amplifying the voices of those rendered voiceless by systems of power.”

Our identities under arrest – Main findings

• Arrests and prosecutions for consensual same-sex sexual acts or diverse gender expressions continued to take place in 2023 and previous years, and are likely considerably underreported across regions
• Consensual same-sex sexual acts continue to be punished with fines, imprisonment, corporal punishment and (possibly) the death penalty in several countries
• Authorities and law enforcement officials enforce criminalising provisions in ways that are unpredictable and difficult to anticipate, and even countries widely regarded as “safe” have seen sudden shifts on relatively short notice
• Gender expression plays a critical role in numerous instances of enforcement
• Binary and essentialist notions of gender make trans and gender-diverse people prone to being targeted for so-called “same-sex” sexual acts
• Police abuse and mistreatment of detainees appear to be present in almost all documented instances of enforcement
• Specific arrest methods and forms of ‘evidence’ are commonly used across different regions. These include raids, arbitrary stops and searches, entrapment, informant tip-offs and community allegations, amongst others
• Judicial prosecution is a poor indicator to assess levels of enforcement, which can vary significantly in frequency and intensity on short notice
  
• Mainstream and social media can play an important role in how States enforce criminalising provisions
• A person’s economic status can play a crucial role in evading enforcement.

Data related to 2023 developments

Source: ILGA World Database

• As of November 2023, 63 UN member States continue to criminalise consensual same-sex sexual acts
• In 2023, three jurisdictions decriminalised such acts: Singapore, Cook Islands and Mauritius
  
• Again, in 2023, Uganda passed a new Anti-Homosexuality Act, which introduces harsher penalties for consensual same-sex sexual acts – including the death penalty for “aggravated homosexuality” in cases where the individual convicted is a “serial offender” or when “the person against whom the offence is committed contracts a terminal illness.” In the months since, ILGA World has noted a rise in arrests, violence, eviction and discrimination against LGBT Ugandans.

Read the full report here.

Citation:
ILGA World: Kellyn Botha, Our identities under arrest: A global overview on the enforcement of laws
criminalising consensual same-sex sexual acts between adults and diverse gender expressions, 2nd
Edition (Geneva: ILGA, November 2023).