Rainbow Charter is a column on international law and queer rights, with a keen focus on macro international law as well as deeper micro LGBTQ laws. This column also maps the current LGBTQ laws based on geographic regions and also aims to summarise progressive LGBTQ judgements from around the world and how it shapes the international context.
Apart from the legal frameworks governing the interests of the LGBTQ persons on a national level, several countries follow and are bound by various regional mechanisms. These regional mechanisms are different from international mechanisms in as much as they bind together a group of countries belonging in a particular region specifically. This 5 part series will focus on the development of LGBTQ rights from the perspective of regional organizations.
Many Asian countries have been forthcoming in recognizing the rights of the LGBTQ community in the recent past. However, it is also true that it is within Asia that some of the most regressive laws criminalising homosexuality are found. Generally, the trend has been to first, decriminalise consensual sex between persons of the same sex followed by the introduction of anti-discrimination legislation. Subsequently, the governments focus on affording them equal rights of partnership as heterosexual couples and then move on to recognizing their rights of adoption and family. In the following paragraphs, an attempt is made at breaking down LGBTQ laws in different parts of Asia in order to gauge the overall attitude of the continent toward their well-being. There are no uniform regional instruments governing the entire continent but there exist some sub-regional multilateral charters which may be of relevance.
The ASEAN Declaration of Human Rights, is known to have deliberately kept rights relating to sexual orientation and gender identity and expressions outside the scope of the human rights charter. Similarly, these concerns still remain largely unaddressed by the ASEAN even in conversations revolving around the protection of the rights of women and children. The community in Asia has repeatedly asserted the need for a comprehensive regional law on the protection of the LGBTQ persons without which they would be put in an extremely vulnerable state.
What do the statistics say?
When it comes to laws which specifically denounce any and all forms of discrimination based on sexual orientation and gender identity, many countries do not find the need for a special legislation. Very few countries such as South Korea, Taiwan, Mongolia, Macau and India have anti-discrimination laws. Even these laws are not comprehensive as most of them are, for example, only applicable to selected (government) institutions leaving private entities to behave in a discriminatory fashion without any legal consequences. Most of the countries who have adopted a progressive attitude towards the LGBTQ community have been in favour of decriminalising homosexuality. India, along with almost over thirty other countries has decriminalised homosexuality. Interestingly, a few countries such as Uzbekistan distinguish between gays and lesbians holding the former to be illegal and the latter to be legal. However, these numbers do not hold up when it comes to the recognition of same-sex marriages. One of the leading countries in Asia championing the cause of the LGBTQ community is Taiwan with its legislature being the first one to legalize same sex marriages. By recognizing their right to marry, it can serve as an example to the rest of the region which by virtue of a diverse and complex set of values differs greatly on its views on the treatment and recognition of LGBTQ rights. Considering that only one country has upheld the right of same-sex couples to marriage, it is evident that even though many Asian countries have decriminalised homosexuality, they are not willing to recognize the need for civil rights such as these as integral to their integration into the mainstream society. Taiwan is accompanied by Vietnam which is also hailed for having lifted the ban on same-sex marriages. Evidently, adoption rights are further diminished with not one Asian country granting the community the right to adopt.
Political Homophobia and “Traditional Asian Values”
In discussions relating to the universality of the LGBTQ rights and trends, reference is made to the European Union or the United States of America which have both made notable contributions to this field. However, oftentimes, it is forgotten that different areas of the globe are necessarily governed by unique and distinct cultural norms and mores. This is especially true in Asia considering that at the national level, there is little to no uniformity in the treatment of the LGBTQ community as it harbours some of the most progressive nations while also being home to some of the most regressive ones going to the extent of awarding the death penalty for engaging in homosexual activities. (eg. Saudi Arabia).
This is also evidence of the fact that while states can be institutions which have the potential of protecting and safeguarding the rights of the community, they can also be the very institutions sanctioning wide-spread homophobia. This is especially true in countries such as Indonesia where the government is publicly allowing the arrest and detention of the LGBTQ persons in order to ‘rehabilitate them’. Philippines’ resistance against the introduction of a special anti-discrimination law has worked towards the disadvantage of the community who despite no law criminalising homosexuality suffer at the hands of the local law enforcement agencies. Malaysia too suffers from state officials and police officers imposing a morality code on its citizens with the constant rise of violence against the community.
To conclude, what makes the treatment of the community in Asia unique is not only the existence of different states across the continent but also the fact that despite belonging to the same continent, they remain widely disjoint from each other politically, ethnically and culturally. To make the effort to universalise their rights in order to bring them in tandem with international obligations or to work towards a uniform regional framework will be fruitless. It is essential therefore to understand their rights in the context of the country’s history, character and the interaction between the country’s local inhabitants and the law.
Uttanshi Agarwal is the Program Officer with the Feminist Justice Vertical at One Future Collective.
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