Q&A: Path to LGBTQ+ decriminalisation takes courage, legal support

LONDON - As LGBTQ+ rights are rolled back globally and activists wage legal battles to decriminalise same-sex relations, courts have a vital role to play in protecting minorities, said Tim Otty, founder of London-based rights group Human Dignity Trust.

Same-sex relationships are still criminalised in 64 countries, the majority in Africa, and although activists have won victories - St Lucia decriminalised in July, while Namibia did the same in June last year - progress remains fragile. 

Multiple African countries, including Uganda, Ghana, Burkina Faso, and Mali, have recently moved to further criminalise LGBTQ+ people, while this year Trinidad and Tobago recriminalised same-sex activity after a high court ruling was overturned. 

Burkina Faso's bill was passed in September, but has not yet been signed into law by military junta leader Ibrahim Traore.

Otty, who founded the Human Dignity Trust in 2011 to support LGBTQ+ activists with strategic litigation, spoke to Context about the legal fight to protect LGBTQ+ rights.     

Why did you start the Human Dignity Trust?

In 2010, I was asked to write an opinion on anti-gay legislation in Uganda. As part of my research, I was very struck by how prevalent criminalisation legislation was across the Commonwealth.

Back then homosexuality was still criminalised in 42 Commonwealth countries and that was despite each of them having a written constitution, which contained express provisions protecting privacy, dignity and equality. 

They each also had a what's called a supremacy clause, which states that any law which is inconsistent with the rights protected in the constitution is void. That immediately identified for me a very clear pathway to challenging these laws. 

It's a historical truth that most criminalising jurisdictions, certainly within the Commonwealth, are only there as a result of the export of laws by the British Empire in the 19th century. 

Often it's argued by those resisting the challenges, whether it's churches or governments, that the litigation is attempting to impose Western values, but the truth is quite the contrary. 

These legal cases are removing relics of empire. And you see that history expressly reflected in some of the judgments that have been handed down, like the Belize case, the Mauritius case and the Indian Supreme Court case in 2013. 

What is it like representing activists who often risk everything by going public in these cases?

It's a great privilege to work with them. It takes sheer personal courage.

In Mauritius, there is video of Ryan Ah Seek's legal victory in 2023 and it captures the immense responsibility these activists have of quite literally carrying the fate of their community on their shoulders. It's a huge burden to carry. 

You can see in court Ryan is extremely poised and composed, then two minutes after hearing he'd won, the weight has lifted. Seeing that huge relief and pride is quite profound. 

That's the impact of cases of this kind. It allows people to be completely themselves for the first time.

I am very very conscious that litigation needs to be locally led and locally owned. We are there to provide personal security and support. Our work comes with a sense of luxury, we don't live in these countries and we are not faced with the many challenges that occur in the run-up to or the aftermath of these decisions.

In countries like Mauritius and Belize where you've won, have you been able to see tangible change?

One memory that stands out is during the case in Belize in 2016; the litigation was in all forms of the media and you really saw society change in real time. 

I remember driving to court and the driver had the radio on. There were these two Belize women talking and they were coming out for the first time. 

They said what had changed was the climate of respect the case had created. It had brought reason and a rational space for dialogue, and that had allowed them to be open. 

It was very profound, hearing ordinary people able to openly say they were gay.   

What are your concerns for how LGBTQ+ rights are changing globally?

We're seeing a surge in populism across many Western democracies and with that, major concern at how minority rights are to be protected. 

In that context, it seems to me that the courts will have a particularly critical role to play because their mandate in any constitutional democracy is to uphold the rights of all, not just the rights of the majority.

That role is likely to be tested - it's already being tested. It's a particularly important time for apex courts around the world to step up and do their constitutional duties, not just in this arena but across the board.        

This interview has been edited for length and clarity.

(Reporting by Lucy Middleton; Editing by Jon Hemming.)