More than two centuries ago Mary Wollstonecraft laid the foundations for feminist thought with a simple premise: lack of equal opportunity diminished individual self-worth and hobbled social progress. In A Vindication of the Rights of Woman (1792), Wollstonecraft made a “wild wish” for equality between the sexes. When women are treated as less than equal in law and society, she argued, it affects not only the practicalities of everyday life, but encroaches on autonomy, dignity and agency.
Her arguments apply today to people marginalized by prevailing social norms, including those who do not conform to sexual and gender stereotypes. It is these same issues – autonomy, dignity, equality and agency – that were addressed in 2018 in three landmark court judgments in India, Trinidad and Tobago, and Guyana.
These decisions – each one striking down discriminatory laws – herald new legal dispensations and life possibilities for lesbian, gay, bisexual and transgender people in these countries. But the judgments go much further than striking down archaic and discriminatory laws. They trace ignoble colonial histories, highlight the negative impact on individuals and society, and seek avenues for redress. In doing so they draw on and develop jurisprudence from countries in the global South, each grappling with the legacy of colonialism.
It is not often that a judgment reflects on the meaning of human existence and the nature of desire, but the long-awaited decision of the Indian Supreme Court, handed down in September, did so, poetically. The court drew on literature, philosophy, social science, queer theory and individual testimony to invalidate Section 377 of India’s penal code, which punished “carnal intercourse against the order of nature” with 10 years to life in prison. In doing so, the court upheld individual autonomy, equality, privacy and dignity, stating that “homosexuality is a completely natural condition, part of a range of human sexuality.”
The decision rejected the idea that individual lives should be limited by “the bondage of dogmatic social norms, prejudiced notions, rigid stereotypes, parochial mindsets and bigoted perceptions.” It railed against the “tyranny of the majority” and reasserted the role of the court as a “threshold against an upsurge in mob rule.” By using “constitutional morality” to protect minorities against “societal morality,” the courts protect freedom for all: “Our ability to survive as a free society will depend upon whether Constitutional values can prevail over the impulses of the time.”
The India judgment references a broad sweep of comparative law from around the world, including Belize, Canada, Colombia, Ecuador, Fiji, Hong Kong, Nepal, South Africa, Trinidad and Tobago, the US and the United Kingdom. Invoking the “sodomy” laws as a residual “yoke” of British rule, the court declared that “history owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.” The Indian Penal Code served as a template for similar laws imposed throughout the British Empire. Its demise will register globally; it is already referenced in a legal challenge to a similar Kenyan law and is inspiring a new challenge to Singapore’s colonial sodomy law as well.
The High Court in Trinidad and Tobago similarly ruled sections of the Sexual Offences Act that criminalize “buggery” and “serious indecency” unconstitutional, pointing out that – even when dormant – these laws send a message that “society hates homosexuals.” The judgment asserted the rights of individuals, including members of unpopular groups, above vague concepts such as tradition and religious morality. The court stated: “this is a case about the dignity of the person and not about the will of the majority or any religious debate.” The court also reflected that it was unfortunate when individual traits of race, gender, age, or sexual orientation were used as yardsticks to measure worth: “That is not their identity. That is not their soul.” In coming to these conclusions, judges referenced foreign precedent from courts in South Africa, Nepal, Fiji and Belize.
In November, the Caribbean Court of Justice struck down as unconstitutional a 125-year-old law against cross-dressing for an “improper purpose.” This law had been used disproportionately against transgender women in Guyana. The court traced the origins of the law, part of a suite of laws against vagrancy, to the coercive labor practices imposed in the aftermath of slavery and rejected them as relics of an oppressive past. The primary objective of vagrancy laws was to restrict mobility and force former slaves back to plantations as a way of maintaining a steady supply of cheap labor.
The court found that the law violated fundamental rights to equality, non-discrimination and freedom of expression. It condemned the role of gender stereotypes in restricting gender equality and individual self-determination. Pointing out that “[l]aw and society are dynamic, not static,” the court asserted the value of tolerance for individuals and society as a whole, recalling that “[t]oday’s heresy may easily become tomorrow’s gratefully embraced orthodoxy.” In this the court echoes the prescient insights of the feminist frontrunner Wollstonecraft and her wild wish:
A wild wish has just flown from my heart to my head, and I will not stifle it, though it might excite a horse-laugh. I do earnestly wish to see the distinction of sex confounded in society, unless where love animates the behaviour.
Taken together, these landmark judgments go to the heart of how restrictive and discriminatory laws harm individual lives and hamper social progress. When free expression is denied, said the Caribbean Court of Justice, “On the one hand, the human spirit is stultified. On the other, social progress is retarded.”
January 16, 2019