International Lesbian, Gay, Bi, Trans, and Intersex Law Association

The rights and privileges of individuals who identify as LGBT are heavily regulated across the globe. While many countries have begun to embrace laws that recognize those in the LGBT community as equals, it can still be dangerous to identify as lesbian, gay, bi, or trans. The International Lesbian, Gay, Bi, Trans, and Intersex Law Association (ILGLaw) strives to unite people around the world who are dedicated to equality under the law. Advocacy efforts can help to create laws and regulations that benefit, rather than harm, the LGBT community.

LGBT & The Law

Many different areas of law can affect members of the LGBT community. Some laws directly target the LGBT community by criminalizing all homosexual activity, while other regulations are tangentially related to LGBT rights. It is important to understand the extent to which LGBT lives are regulated around the world. Only then can efforts be undertaken to (a) support laws recognizing and protecting LGBT individuals and (b) eliminate laws criminalizing or reprimanding LGBT behaviors.

Sexual Orientation

No state’s law should dictate whether or not a person’s sexual orientation is permitted. As of 2018, 122 states belonging to the United Nations (UN) do not have laws on the books that punish a person for willfully engaging in consensual sexual activities with a person of the same sex. Some of these countries, including Poland and Vietnam, have never penalized a person for their sexual orientation. Others, including Belize and Seychelles, have recently amended state laws to remove anti-LGBT provisions.

Unfortunately, sexual orientation and same-sex sexual activity are heavily regulated in many states around the world. Today, 72 countries explicitly prohibit sexual activity with a member of the same sex. Approximately one-third of these laws only apply to men. In 8 of these countries, same-sex sexual activity is punishable by death. At least 3 of these countries are believed to enforce the death penalty for same-sex crimes.

Anti-Discrimination

While some countries may not expressly prohibit or criminalize same-sex activities, other laws on the books may not protect those in the LGBT community from discrimination. Anti-discrimination laws help to prevent LGBT individuals from facing unnecessary and crippling discrimination in regard to housing, employment, education, and civil rights.

In the Constitutions of 9 countries across the globe, including Kosovo and Nepal, sexual orientation is specifically mentioned as a protected classification. This is the highest level of protection that can be guaranteed. Many other countries, including South Africa, recognize LGBT protections through other laws or court decisions.

In states where no anti-discrimination laws exist, members of the LGBT community face higher rates of discrimination, oppression, and ostracization.

Same-Sex Marriage

Laws recognizing same-sex marriage and offering equal rights to same-sex couples are relatively new. Today, 22 UN member states allow same-sex couples to marry and enjoy the same legal rights and privileges as heterosexual couples. Why is allowing and recognizing same-sex marriage important? According to Steven Fernandez, an attorney that routinely handles divorce cases in Los Angeles, the ability to make decisions about one’s own personal journey is intimate, personal, and defining. As a Certified Family Law Specialist, Fernandez has seen, first-hand, the impact same-sex marriage laws have had in California.

“California law now applies equally to all individuals, regardless of their sexual orientation and preference,” he explains. “Prior to the legalization of same-sex marriage, same-sex couples had significantly fewer rights and protections in family law matters. The new law ensures that all individuals secure the right to make decisions about their own personal lives.”

Many of the same-sex marriage laws that are now in effect are a direct result of LGBT equality advocacy efforts across the globe.

Adoption

Same-sex marriage victories do not necessarily extend the right to have a family. Since same-sex couples, alone, are not biologically capable of producing a child, adoption is often at the center of the conversation.

However, a startling number of states around the world make it impossible or very difficult for same-sex couples to adopt. In regard to same-sex couples, adoption is generally classified as either (a) joint adoption or (b) second-parent adoption.

Joint adoption is when neither individual requesting custodial and parental rights is the biological parent of a child. Today, only 26 countries – including Austria and Finland – permit joint adoption by same-sex couples. In all other countries, joint adoption by same-sex couples is prohibited.

Second-parent adoption is when one individual is the biological parent of a child, and their partner requests to be that child’s second parent. For same-sex couples, this type of adoption is easier to achieve than joint adoption. Unfortunately, many countries still have laws prohibiting a same-sex partner from begin legally recognized as a parent of their partner’s biological child.

LGBT-Influenced Laws and Regulations

Laws do not have to specifically mention or regulate same-sex sexual activity or sexual orientation to negatively and adversely affect the LGBT community. Certain laws – including those pertaining to general sexual behavior and children – can tangentially touch on and diminish LGBT equality under the law.

Sodomy

Today, 74 countries criminalize acts of sodomy. Sodomy is not always explicitly defined by law. Instead, sodomy can be generally understood to mean sexual behavior that is unnatural or immoral, and therefore illegal. Since sodomy is not always defined, courts have latitude to determine who should be punished. As a result, sodomy laws disproportionately affect same-sex sexual activities.

Promotional Laws

Some countries, including the United States, have passed laws that prohibit the promotion or positive discussion of same-sex sexual behavior. In Alabama, for example, a state law requires all sex education teachers to emphasize that “homosexuality is not a lifestyle acceptable to the general public.” Students in Alabama must also be made aware that same-sex sexual activity is a crime in the state. These No Promo Homo regulations make it impossible for the LGBT community to secure equality and equal protection under the law.

Barriers to NGO Operation

Certain countries, including Uganda, prohibit non-governmental organizations from forming if their purpose is to advance LGBT rights or equality under the law. These prohibitions reflect hostility to the LGBT community and an unwillingness to embrace positive change.

Hate Crime Protections

Hate crimes are those committed, in part, because of a victim’s defining characteristic. Many countries punish hate crimes more harshly than crimes committed without a hateful motive. In order to be classified as a hate crime, the motive for a person’s actions must be based on a lawful protection. These hate crime protections only extend to the LGBT community if their country has listed same-sex sexual orientation, transgender identity, or intersex persons as protected classes.

Bathroom Bills

When countries embrace LGBT rights at the national level, smaller provinces and states may strike back with laws that specifically target and adversely affect the LGBT community. Bathroom bills, including those that have become notorious in North Carolina, are a prime example. These bills require individuals to use the restroom that correlates with the gender they were assigned at birth. While these laws may not specifically mention transgender individuals, the purpose is to prevent those identifying as transgender from using the bathroom of their choice. This directly affects the ability to be seen as equal under the law.

Recognizing Gender Identification

Some countries prevent intersex and/or transgender individuals from having their chosen gender legally recognized under the law. Others do not legally recognize a “non-binary” classification, which limits the personal and intimate choices that a person can make about their own body.

Blood Donation Prohibitions

In the 1980s, the LGBT community was chosen as the villain in the AIDS epidemic. Many countries advanced laws and propaganda that supported the myth that the gay community and homosexual activity were responsible for causing and spreading AIDS. Today, many gay men around the world are still prohibited from donating blood for fear that it is tainted with HIV.