Part I Experiences of being lesbian, gay, bisexual, transgender and intersex in the Asia Pacific 2.2. DIGNITY AND CRIMINALISATION In May 2015, 75 UN member States still criminalised consensual adult same-sex activity.83 That is more than a third of the UN’s membership. The number of criminalising States has been decreasing slowly over the past two or three decades.84 In the Asia Pacific region consensual adult same-sex activity is not criminalised in 25 States and the larger parts of another two States.85 In some it has never been criminalised and in others it has been part of a gradual process of decriminalisation spanning many decades, with Palau the most recent to decriminalise.86 Fiji has moved the furthest, including in its Constitution a specific prohibition of discrimination on the basis of sexual orientation.87 Nonetheless, 31 States and the remaining parts of the other two States in the region continue to criminalise consensual adult same-sex activity.88 Some States are enacting new, more severe legislation in this area.89 Criminalisation today can take many forms. It can be directed to punish: • certain sexual behaviour, usually same-sex activity • acting or dressing in ways that do not conform to dominant cultural expectations, including cross dressing, based on an assumption that a feminine man is gay and a masculine woman is lesbian90 • statements or publications or actions that discuss or refer to lesbian, gay and bisexual people and ‘gay lifestyles’, often described as ‘gay propaganda’. Foundational texts in Judaism, Christianity and Islam have passages that have been interpreted as absolute condemnations of consenting sexual acts between men, imposing the death penalty.91 This interpretation passed into the legal systems in European States, initially as part of religious law, then as part of regular criminal law systems. The Napoleonic Penal Code in the early 19th century spread throughout half of Europe, ending any prohibition of same-sex acts in the laws of France, the Netherlands, Spain and Portugal. As a result, their colonies in Asia also had no prohibition. The United Kingdom reformulated its criminal prohibition in the Indian Penal Code in 1860, which was copied for its colonies in Asia, Africa, Oceania and the Caribbean. Those colonial-era prohibitions continue in force in all former British colonies in Asia and the Pacific, with the exceptions of Australia, Fiji, Hong Kong and New Zealand, and a modification in Singapore. The same interpretation is reflected in the law in many States with majority Muslim populations, although it is notable that the State with the largest Muslim 83 International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) (A Carroll and LP Itaborahy) State Sponsored Homophobia 2015: A world survey of laws: criminalisation, protection and recognition of same-sex love, May 2015, p. 8; at http://ilga.org/what-we-do/state-sponsored-homophobia-report/. Also available in Arabic at the same web address. 84 The number of States with criminal penalties for consensual adult same sexual acts was 92 in 2006. See ILGA report, State Sponsored Homophobia 2015, p. 8. 85 Australia (various dates between 1972 and 1997 in different Australian states and territories), Bahrain (1976), Cambodia, China (1912 and 1997), East Timor (1975), Fiji (2010), most parts of Indonesia, Israel (1988), Japan (1882), Jordan (1951), Kazakhstan (1998), Kyrgyzstan (1998), Laos, Marshall Islands (2005), Micronesia, Mongolia (1961), Nepal (2008), New Zealand (1986), North Korea, Palau (2014), Palestine (West Bank 1951), Philippines, South Korea, Tajikistan (1998), Thailand (1957), Vanuatu and Vietnam. See ILGA report, State Sponsored Homophobia 2015, pp. 26-27; at http://ilga.org/what-we-do/state-sponsoredhomophobia-report/. 86 States that were once French, Dutch, Portuguese or Spanish colonies have never had criminal sanctions for consensual adult same-sex activity. 87 Article 26(3). 88 Afghanistan, Bangladesh, Bhutan, Brunei Darussalam, Cook Islands, India, Indonesia (South Sumatra and Aceh Province), Iraq, Iran, Kiribati, Kuwait, Lebanon, Malaysia, Maldives, Myanmar, Nauru, Oman, Pakistan, Palestine (Gaza), Papua New Guinea, Qatar, Samoa, Saudi Arabia, Singapore, Solomon Islands, Sri Lanka, Syria, Tonga, Turkmenistan, Tuvalu, United Arab Emirates, Uzbekistan and Yemen. See ILGA report, State Sponsored Homophobia 2015, p. 28; at http://ilga.org/what-we-do/statesponsored-homophobia-report/. 89 In 2014, particularly harsh new laws were enacted in Brunei Darussalam and also, outside the Asia Pacific region, in Kenya, Nigeria, Russia and Uganda. Only phase 1 of the Brunei law has been implemented and so its harshness has not yet been felt and may never be. The law in Uganda was struck down by the courts. 90 As cross-dressing laws are most frequently used to prosecute transgender people, particularly transgender women, they are discussed in greater depth in Chapter 3. 91 For example, in the Judaeo-Christian tradition, the Book of Leviticus 18:22 and 20:13; in Islam, Qur’an Sura 7:80-84 and Sunan Abu-Dawud 38:4447. Chapter 2: Being lesbian, gay and bisexual in the Asia Pacific | 31