By Alice Gould
Last month, Brunei announced that it would be introducing a multitude of new laws. Whilst many of these laws were an affront to international human rights standards, the one that really caught the media by storm was the anti-LGBTI law that made sex outside of marriage and anal sex punishable by stoning to death.

This news was rightly met with global outrage and, amongst boycotts of Brunei-owned hotels, many European countries demanded the repeal of the laws and for the decriminalisation of LGBTI persons and acts. It was announced last week by Brunei that these laws will not be enforced after the global outcry (though they will remain as part of the law). Whilst this is at least somewhat good news, it must be remembered that this was Brunei: a country with substantial income from overseas investment and foreign entrepreneurship. For the sake of human rights and dignity the decriminalisation of LGBTI persons and acts must continue, however, this blog considers that Western nations demanding decriminalisation is not the best way to further the development of LGBTI rights in many countries, and in various cases this can actually be harmful to LGBTI individuals.

According to Human Rights Watch there are still at least 69 countries where same-sex relations between consenting adults is illegal and at least six countries with laws that specifically target trans persons. That precludes counting laws such as Russia’s famous ‘anti-propaganda’ laws which also target LGBTI persons. Any legal system that directly, or indirectly, discriminates against LGBTI people brings vulnerability and a risk of extra-judicial discrimination, violence, and death. In addition to Brunei six other UN Member States impose the death penalty on consensual same-sex acts, with a further five having it as a possible punishment, according to the 2019 ILGA State Sponsored Homophobia Report. However, within these countries the risk to LGBTI person’s lives is much greater outside the judicial process than the threat of the death penalty. Much LGBTI based violence and murder is done with the complicity of states, and where there are laws against LGBTI persons they cannot be protected by the State. For example, in many countries honour killings focused on this issue are not only tolerated but mechanisms are in place which either reduce or eliminate sentences for the culprits.

One thing that is very important to consider when discussing the West, criminalised homophobia, and transphobia globally is the persistent historical influence of Western imperialism and how colonialism affected criminal laws relating to LGBTI persons (additionally, the post-colonial situation of formerly colonised states are virtually never unfree from influence of the colonial experience). A prevalent example can be found in India, where prior to British colonialism hijra, a third gender, were revered. British colonial law created several laws that targeted them, including the famous (and only recently repealed) Section 377 which vaguely prohibited ‘unnatural acts’ and was used to prosecute gay sex and LGBTI persons. Of the countries in which same-sex consensual sex acts are illegal, over half are former British colonies.

“Of the countries in which same-sex consensual sex acts are illegal, over half are former British colonies.”

Whilst LGBTI criminalisation must end, many organisations working directly on LGBTI rights in countries where such criminalisation exists believe that Western governments calling for global decriminalisation can be a hindrance to LGBTI persons living in those countries. To begin with LGBTI criminal laws are just the tip of the iceberg, and there is more that must be done to stop LGBTI based violence. However, another reason is the worrying trend for certain countries to equate being LGBTI with the West, or that it is a Western export, as opposed to a fundamental part of human identity. For a Western country to demand changes in legislation to fit in with Western ideals only consolidates this further, entrenching the othering of LGBTI persons in these States and potentially causing further LGBTI related abuse both from state and non-state actors.

This February at the 7^th World Congress Against the Death Penalty Yahia Zaidi, a social worker who works with the Omnya association for sexual diversity and homophobia shared a harrowing story that occurred on 10 February 2019. Assil Belalta, a 21 year old Algerian medical student was murdered, and written on the wall in his blood were the words “He’s Gay.” In his talk Zaida queried why this phrase was written in English, a language not commonly spoken in Algeria when they have many of their own pejorative terms for homosexuality in Arabic, French and Spanish. He hypothesised that the use of English consolidated the idea of being gay as a Western export, not something Arabic or Algerian, but that this person, as a gay man, was an agent of the West. Zaida believed that by not only outing Belalta, but by doing so in English, the killer was trying to validate the murder, make their victim more disposable and socially ostracise him even in death. By writing in English, he equated being gay with the continuing threat of Western domination of cultural discourse, and imperial presence in the post-colonial state. This case is an example of how the West imposing its views on other States can actually lead to the harm of LGBTI persons and diminish their legal protection. When concluding his talk at the Congress, Zaidi made it clear that he believed that international communities and Western governments demanding the decriminalisation of LGBT activities could make things worse: as being LGBT is often considered a product of the West and calls for decriminalisation could reaffirm this.

“Western governments calling for decriminalisation can other LGBTI persons from their communities, which could be harmful.”

So what can be done? The criminalisation of LGBTI identities is clearly a breach of human rights and human dignity, something that via colonialism and their continuing problematic role in the post-colonial world the West had two red hands in creating, and therefore ought to have some responsibility in forming a resolution. However, if calling for decriminalisation can other LGBTI persons even more from the community, this could in fact be harmful. On the same panel as Mr Zaida at the 7^th World Congress Against the Death Penalty was Nikki Brörmann from COC Netherlands, a group that strives for the social acceptance of LGBTI persons around the world. During the panel she emphasized that in order to support and create change for LGBTI, instead of demanding decriminalisation, it is for Western organisations and governments better to help aid strengthen and support local movements with recourse to the transfer of knowledge without privileging modes of Western culture. If governments sincerely desire to help LGBTI persons the best thing that they can do is to provide safe spaces, embassies, emergency responses and most of all aid local organisations who work on the ground.

Alice studied her undergraduate degree in Law with European Law at the University of Nottingham in the UK with her Eramus in Lund University in Sweden. Since graduating in 2016 she has worked in a death penalty clinic in the US, an educational human rights NGO in Georgia and as an English teacher in China. Her interests include LGBTI and gender rights.