For many people, sexuality is something private and personal, and something that should have nothing to do with the state. Yet sexuality is intimately woven into questions of law, legitimacy and regulation. Various dimensions of our sexuality are moulded by the law through the ways in which media is controlled, schools are regulated and through considerations by social services for instance. Law also regulates our own sexuality and relationships, by defining in criminal and civil law what a family is and how it should behave, through defining childhood and adulthood, by granting – or denying – access to condoms, abortions or legalising and by criminalising particular sexual practices including sex work.
The Sexuality, Poverty and Law Programme at IDS started in 2012 and together with our partners around the world we have witnessed significant changes to the law and its intimate relationship with sexuality in the last two years. For example, just two months time, same-sex marriage will be legal in the UK; earlier this year, in January 2014, Morocco amended its Penal Code to criminalise marital rape; last year, in November 2013, Germany became the first country in Europe to legally recognise a third sex outside of the male/female binary; and in August, 2013, New Zealand legalised same sex marriage.
But it has not all been good news. The high profile cases of Nigeria, Jamaica, Uganda, India, and Ghana – to name a few – demonstrate the ongoing challenges for those who risk persecution and criminalisation on the basis of their sexuality. These examples are vivid reminders that, as Kapur reminds us, ‘culture and sexuality are not uncontested categories in law’ (1999: 362).
Law is an ambivalent source of power. On the one hand, it acts as an arbitrator of justice allowing citizens to demand their rights and secure the benefits of citizenship. On the other hand, for many people marginalised because of their sexuality, the law can be extremely restrictive - both powerful and difficult to challenge.
Following Susan Boyd, we believe that ‘it is crucial to bring the political economy of sexuality and gender more firmly into our analyses of law’s contradictory role in emancipatory politics’ (1999: 370). With this in mind, the Sexuality, Poverty and Law Programme has sought to uncover the dynamics of law and sexuality through in-depth country case studies which make apparent the struggles and contestations taking place over sexuality and law and ask what comparative lessons can be learnt. Five countries – Cambodia, South Africa, Nepal, Uganda and Egypt- served as case studies to explore these struggles.
Each country was selected as it was uniquely positioned in relation to the rule of law and, in each, a different issue relating to sexuality was examined:
- In Egypt, Mariz Tadros explored the public and sexual harassment of politicised men and women before the fall of President Mohamed Morsi;
- Cheryl Overs examined Cambodia’s recent changes to the laws on sex work and human trafficking and their implications;
- In Nepal, Paul Boyce and Daniel Coyle explored the introduction of progressive legislation around sexuality in light of the country’s complex social context and contested and multiple sexual subjectivities;
- Adrian Jjuuko and Francis Tumwesige analyse the implications of Uganda’s Anti-Homosexuality Bill on its legal system; and
- In South Africa, Alex Muller and Hayley MacGregor provide an examination of the undermining of HIV-positive women’s sexual and reproductive health rights in relation to sexuality, contraception, HIV testing and fertility; while Tessa Lewin, Kerry Williams and Kylie Thomas explore criminal violence, and the associated legal processes, as experienced by lesbian women and gay men.
These diverse studies offer rich and detailed descriptions of what is happening in particular countries in relation to sexuality and law. In Uganda and Cambodia, the cases provide shockingly vivid illustrations of how citizens can be denied basic rights because their sexuality is different to that prescribed by law. Cases from Egypt and Cambodia show complex relationships between national and international law which can be used both as a driver for repressive law or policy and as a tool to help communities and activists resist the law. In South Africa and Nepal, the cases demonstrate the challenges of implementation despite progressive legal frameworks.
Looking across the case studies, the synthesis (by Linda Waldman and Cheryl Overs) highlights a number of key challenges and tensions. It clarifies the need for legal training amongst activists’ and NGOs’ and for increasing their capacity to take on legal cases. It illustrates the dangers of engaging with and challenging the law; including the risks attached to strategic litigation and of dealing with corrupt law enforcement agencies. With limited resources and little capacity, these tasks are even more challenging.
The synthesis also lays bare the ways in which law puts pressure on people to conform to societal expectations of how men and women should behave (within this binary construct) within a framework that idealises particular forms of citizenship. This creates a particular form of vulnerability and fragility that, for some, results in marginalisation from mainstream society and exclusion from opportunities to benefit from economic and social development. Assumptions about conventional gendered behaviours are, in turn, often reinforced in law making it difficult for people to stand apart from the norm.
The synthesis highlights tensions in the use of specific sexual identities – such as LGBT or gay. These provide entry points and modalities for legal recognition and for accessing funding, but in ways that can be restrictive and exclusionary. As such, these terms and categories are simultaneously both useful and problematic. For this reason we argue that it is necessary for donors and others to provide opportunities to draw on international LGBT discourse, but also to recognise times when this language is inappropriate.
And yet, despite potent obstacles, there are many stories of success. The synthesis also illustrates that opportunities and spaces have opened up and provided platforms for activism and community intervention to challenge the law and to support victims of violence and discrimination. But most of all, the use of a comparative case study approach has made us realise how significant the law is for any discussion of rights in relation to sexuality. While law is positioned as a means through which to protect people by upholding neutrality, we have found that it simultaneously regulates and intervenes in our lives at the most intimate level; and in ways that are not entirely neutral nor in ways that uphold each individual’s rights irrespective of sexuality. In showing how the political economy of sexuality is embedded in law, we hope this work exposes law’s contradictory role in the politics of sexuality and contributes towards greater emancipation for all, regardless of their sexuality.