Decriminalizing same-sex sexual activity: Jurisprudence from the Global South

Abstract This article contends that the Global South’s jurisprudence on decriminalizing same-sex sexual intimacy has distinctive features that are missing from the Global North’s jurisprudence. In this article, I examine decriminalization cases from courts in Belize, Botswana, India, Fiji, South Africa, and Trinidad and Tobago, as well as cases from the Eastern Caribbean Supreme Court and the Inter-American Commission on Human Rights. I juxtapose these cases with canonical cases from the Global North—namely, cases from the United States and the European Court of Human Rights (ECtHR). This analysis reveals four distinctive features of the Global South’s jurisprudence. First, many of the Global South’s judicial opinions traced sodomy bans to their colonial origins and framed their repudiation of the bans as an act of anticolonialism. Second, compared with cases from the United States and the ECtHR, the Global South’s cases often identified a broader set of rights violations. The ECtHR and US decisions were based on rights to privacy or liberty. In contrast, many of the Global South’s judgments went further, expounding on why sodomy bans violate other rights, including rights to health, substantive equality, and freedom of expression. Third, certain Global South cases innovated the notion of “constitutional morality” in adjudication. Fourth, compared with the cases from the United States and the ECtHR, many of the Global South’s judgments spoke more emphatically about protecting sexual minorities out of a respect for difference and pluralism. This article discusses these jurisprudential innovations’ significance to ongoing debates and future research concerning LGBTQ rights.