2022 in worldwide LGBT rights progress – Part 3: Africa and Oceania – Erasing 76 Crimes

2022 turned out to be a major year for the advancement of LGBT rights with huge developments in every corner of the world. To celebrate this progress and highlight some of the challenges ahead for the global LGBT community, 76crimes is presenting this six-part series looking at the wins and losses queer people achieved in 2022.

A number of positive developments for LGBT rights happened across Africa and Oceania in 2022, including advances for intersex rights, bans on conversion therapy, several states ending capital punishment, and even some territories that began recognizing same-sex marriage.

This article originally appeared on 76crimes Contributing Editor Rob Salerno’s personal blog.

Earlier in this series – Part 1: North America | Part 2: Latin America and Caribbean

Africa

Signs of progress were few and far between, but LGBT people are increasingly claiming space and asserting their rights on this continent of a billion people.

Right now, South Africa remains the only independent country where same-sex marriage is legal, and sodomy is criminalized in 33 of the 55 independent states in Africa.

Namibia: A lower court ruled that it could not legalize same-sex marriage, as the Supreme Court had previously ruled against it. The judges explicitly called on the Supreme Court to change its previous ruling on appeal, however, I haven’t actually heard anything about the plaintiffs pursuing the case further.

Several cases related to same-sex parents grabbed attention this year, particularly one case that nearly left twin newborn girls stateless because Namibia refused to recognize the children as being related to a Namibian without a DNA test. The government eventually relented. The Supreme Court also issued a narrow ruling ordering the government to reconsider its decision to deny residency to a Mexican national who is the same-sex spouse of a Namibian. The only certainty is that these cases will continue through the new year.

Meanwhile, the government began a reform of its marriage legislation this year, but failed to include LGBT people in consultations.

The President at one point hinted at plans to repeal the colonial-era common law sodomy offence but has not tabled legislation to do so – and it wasn’t included in another bill that repealed several other pieces of outdated colonial legislation.

Kenya: Parliament passed a the Children Act, which includes broad protections for intersex people, including a ban on cosmetic genital surgeries on intersex children, allows intersex people to select an “I” gender marker, and guarantees equal access to education, medical care, and other services.

Mauritius: A lawsuit seeking to strike down the country’s sodomy laws has been ongoing since 2020. The Supreme Court last held a hearing on it in June.

Mauritius is one of those bizarre countries where sodomy is illegal, but so is discrimination based on sexual orientation (It’s the green and orange dot on the map above).

Seychelles: The president met with LGBT activists to discuss trans issues, equal marriage, and adoption rights. Activists also launched a media campaign to promote equality.

Eswatini: The High Court issued a bizarre ruling affirming the government’s decision to deny registration to an LGBT organization while simultaneously affirming the constitutional rights of LGBT people to association, privacy, and expression. What? Eswatini also maintains a sodomy law in its books.

Ghana: Parliament continued debating a draconian anti-LGBT bill, but it hasn’t passed (as of yet).

Nigeria: Lawmakers had proposed a bill to ban cross-dressing as part of an ongoing moral panic, but withdrew it in December, after the Speaker noted that it didn’t adequately address the country’s multicultural nature, where some cultures wear clothing that might be considered cross-gender in other cultures.

Later in December, reports emerged of a mass arrest at an alleged same-sex marriage in Kano state. 

Equatorial Guinea, Central African Republic, and Zambia all abolished the death penalty. A death penalty abolition bill passed the Senate of Liberia and awaits a vote in the lower house. Death penalty abolition for non-military crimes is being debated in Ghana. Courts in Malawi reversed an earlier ruling banning the death penalty there, and legislators defeated a proposal to ban it again, however, a moratorium on its use remains in place. A clear trend away from the death penalty is emerging in Africa, where 25 of the 55 sovereign states have completely abolished it, 1 has abolished it for non-military crimes, and a further 15 have a moratorium on its use.

Former French colonies Gabon and Togo both joined the Commonwealth of Nations (what some people erroneously call the British Commonwealth). Togo criminalizes sodomy while Gabon doesn’t, so their membership doesn’t change the ratio. We’ll discuss the Commonwealth more in a few days.

Oceania

Progress in Oceania continues to be slow, although in absolute terms, since most people in the region live in Australia and New Zealand, about 80% of the population already lives in an equal marriage state. The percentage is even higher if you include people living in French and US territories and Hawaii.

Eight countries in the region criminalize same-sex sexual relations, though reports of prosecutions are extremely rare and half of those states also prohibit employment discrimination based on sexual orientation.

Australia: The previous government had attempted to pass a “religious discrimination” bill that would have allowed anti-LGBT discrimination, but they shelved it ahead of national elections. The more LGBT-friendly Labor Party won federal elections in May, but there hasn’t been any major policy developments nationally as of yet.

The state of Victoria banned conversion therapy, while Tasmania and Western Australia have announced plans to ban it in the new year. They would be the fourth and fifth of Australia’s eight states and territories to pass a ban. Activists are petitioning for a national ban.

Western Australia‘s government announced legislation to modernize its gender recognition system, removing the surgical requirement and streamlining the application process. The proposal is thus far silent on offering a non-binary option. Western Australia, Queensland, and New South Wales are the only Australian states that currently require surgery for gender change, and Western Australia and Queensland are the only that don’t allow a nonbinary gender option.

New Zealand: The government banned conversion therapy.

In the New Zealand associated state Cook Islands, Parliament failed to pass the new Crimes Bill (first proposed in 2017!) as it wasn’t returned from review by Crown Law in New Zealand before Parliament was dissolved for August elections. As those elections were inconclusive and subject to numerous court challenges, the new Parliament hasn’t met since. I believe the court challenges have recently been resolved and the new Parliament is expected to finally debate the Crimes Bill next March.

Once again, I am including Niue as a state that criminalizes same-sex intercourse. It appears that ILGA erroneously removed the tiny (population < 2,000) country from their list in 2006, when New Zealand revised the Niue Act, which contained the territory’s criminal law. However, Niue never accepted New Zealand’s revisions (which is a necessary step in a New Zealand-initiated law), and in any event, Niue reaffirmed its older Criminal Law Code when it reprinted its legislation in 2007 and 2019.

New Zealand has also announced that it will support Cook Islands’ membership in the UN. While it is rare for states that aren’t fully sovereign to become UN members, it’s not unprecedented: Belarus, Ukraine, India, and Philippines all joined before they became independent, and technically, so did New Zealand. The UN has recognized Cook Islands’ and Niue’s sovereignty and treaty-making capacity already and in the past the primary objection to membership was from New Zealand, which didn’t want to allow them membership when they share New Zealand citizenship. Related, the US quietly pledged to recognize Cook Islands and Niue as fully sovereign states in the future, following consultations. This may be an effort to strengthen democracy in the region as China attempts to build influence (including a new security agreement with Solomon Islands).

Fiji: National elections in December saw candidates of all stripes rushing to attack same-sex marriage or deny that they support it. The elections saw the governing party lose its majority for the first time in 16 years. The new government will be a coalition propped up by a deeply Christian party.

Papua New Guinea: The government formally repealed capital punishment. Next year, the government is expected to begin the formal ratification process for Bougainville’s independence. The breakaway state is in the process of drafting its new constitution. Upon independence, unless PNG decriminalizes sodomy first, Bougainville is likely to become a new state with criminal sanctions on sodomy.

Easter Island: Same-sex marriage became legal in this territory of Chile. (Read more in the section on South America).

American Samoa: The Supreme Court refused to take a case this term seeking to overturn the insular cases and declare residents of American Samoa citizens of the US (rather than their current designation, “US nationals”). If the court had ruled in their favor, then the US Constitution would apply there fully, and the Obergefell ruling would have required the territory to finally allow same-sex marriage.

Still, in the Respect for Marriage Act, the US Congress specifically required all US territories, including American Samoa, to recognize legal same-sex marriages performed in other jurisdictions, a first for the territory. We haven’t yet seen how it will play out. In theory, American Samoa residents could travel to Hawaii, or even to New Zealand to have a same-sex marriage that would be recognized at home. They could also opt for the entirely online zoom wedding services that were launched in Utah during the pandemic and have become popular in many countries without same-sex marriage, like Israel and Venezuela.

Tomorrow, we’ll take a look at Asia.

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