Arrests and prosecutions for consensual same-sex sexual acts, also known as gay sex, and on the grounds of diverse gender expressions, continued to take place across the world in 2023 and in previous years, a report by ILGA World revealed in November.

Despite limited official data available, ILGA World documented evidence of enforcement in at least 32 United Nations member states in the first six months of 2023 alone. 

For the second edition of its ‘Our Identities Under Arrest‘ report, the organisation reviewed more than one thousand cases over the last two decades in which law enforcement subjected LGBT and gender-diverse persons to fines, arbitrary arrests, prosecutions, corporal punishments, imprisonments and more – up to (possibly) the death penalty. However, the actual numbers may be much higher: formal records are often inaccessible or non-existent. In addition, many cases may have either never been registered or reported on in unclear and biased manners.

Unpredictable

Documented cases show the unpredictable nature of these arrests and prosecutions. 

“Countries widely regarded as ‘safe’ or ‘quiet’ have seen sudden shifts on relatively short notice”, Kellyn Botha, research consultant at ILGA World and author of the report, says. 

“Growing hate speech against sexual and gender diversity – be it from political figures, religious and community leaders, also with the complicity of the media – regularly turns into crackdowns or organised campaigns, whose length, extent, and violence cannot be foreseen.”

“We have witnessed this in 2023, too: Uganda adopted aggressive new legislation, the negative impact of which is already being felt across the region. Kenya, Tanzania, Nigeria, Ghana and Senegal have made attempts to also aggravate existing legislation, while Iraq, Niger and Mali have experienced increased efforts to formally criminalise our communities where no law existed before. Despite the positive developments witnessed in Singapore, the Cook Islands, and Mauritius, where consensual same-sex sexual acts were decriminalised, the path to equality is rarely a straight line.”

Enforcement

When it comes to how these laws are enforced, the picture is particularly bleak. 

“Imprisonment terms imposed by courts vary greatly across time and regions, ranging from a couple of months to even 30 years in certain cases”, Lucas Ramón Mendos, research manager at ILGA World, says. 

“There is overwhelming documentation of police beating, humiliating, torturing, raping, extorting bribes or otherwise abusing LGBT and gender-diverse people they arrested or detained. Many victims of such violations do not make formal complaints for fear of re-victimisation.”

How you look

The majority of criminalising laws specifically target consensual same-sex sexual acts, and yet, diverse gender expressions appear to be a central element triggering a disproportionate number of arrests. 

“In many jurisdictions, the way a person dresses, acts or talks can already be considered ‘proof’ of ‘homosexuality’ and be enough to warrant an arrest”,  Mendos continues. 

“It is far more likely for someone to be targeted for their non-conforming appearance or mannerisms than for any verifiable ‘illicit’ sexual act.”

Under constant threat

This bleak scenario has direct repercussions on the daily lives of LGBT and diverse people. 

“The mere existence of criminalising laws means that, in many parts of the world, our communities live under a constant threat”, Gurchaten Sandhu, director of programmes at ILGA World, comments. 

“This is not only true for grassroots populations hit by sudden waves of hostility, but also for asylum seekers who – based on botched assessments of safety – risk being sent back to countries where they will be persecuted.”

Rule of law?

“Our communities are often targeted even without explicit criminalising provisions on their books”, Sandhu continues. 

“This is particularly true in areas where the rule of law has faded, and insurgent groups have taken over. Not being among the 63 UN member states that explicitly criminalise consensual same-sex sexual acts is simply not enough for a country to be considered a safe place for LGBT and gender-diverse persons.”

Behind the black-letter of the law, there are thousands of real-life stories of people being negatively impacted by unjust criminalising legislation.

“We keep uncovering what the impersonal legal jargon means in practice, affecting people’s lived experiences in ways that demand attention and action,” Luz Elena Aranda and Tuisina Ymania Brown, co-Secretaries General at ILGA World, conclude. 

“It is these stories that urge us to continue our advocacy and activism with renewed vigour, amplifying the voices of those rendered voiceless by systems of power.”

Main findings

• Arrests and prosecutions for consensual same-sex sexual acts or diverse gender expressions continued to take place in 2023 and previous years, and are likely considerably underreported across regions.
• Consensual same-sex sexual acts continue to be punished with fines, imprisonment, corporal punishment and (possibly) the death penalty in several countries.
• Authorities and law enforcement officials enforce criminalising provisions in ways that are unpredictable and difficult to anticipate, and even countries widely regarded as ‘safe’ have seen sudden shifts on relatively short notice.
• Gender expression plays a critical role in numerous instances of enforcement.
• Binary and essentialist notions of gender make trans and gender-diverse people prone to being targeted for so-called ‘same-sex’ sexual acts.
• Police abuse and mistreatment of detainees appear to be present in almost all documented instances of enforcement.
• Specific arrest methods and forms of ‘evidence’ are commonly used across different regions. These include raids, arbitrary stops and searches, entrapment, informant tip-offs and community allegations, amongst others.
• Judicial prosecution is a poor indicator to assess levels of enforcement, which can vary significantly in frequency and intensity on short notice.
• Mainstream and social media can play an important role in how states enforce criminalising provisions.
• A person’s economic status can play a crucial role in evading enforcement. 

 2023 developments

• As of November 2023, 63 UN member States continue to criminalise consensual same-sex sexual acts. Depending on how you count and which you call a country, 66 countries criminalise gay sex.
• In 2023, three jurisdictions decriminalised such acts: Singapore, Cook Islands and Mauritius.
• Again, in 2023, Uganda passed a new ‘Anti-Homosexuality Act‘, which introduces harsher penalties for consensual same-sex sexual acts – including the death penalty for “aggravated homosexuality” in cases where the individual convicted is a “serial offender” or when “the person against whom the offence is committed contracts a terminal illness”. In the months since, ILGA World has noted a rise in arrests, violence, eviction and discrimination against LGBT Ugandans.

Russia

Cynically, on the same day ILGA World published its report, the Supreme Court of Russia added the “international LGBT public movement” to a list of extremist organisations. 

The LGBTQIA+ movement’s activities within Russia are said to “incite social and religious discord” in violation of the country’s anti-extremism laws. 

“This violently disproportionate decision, which has been classified as a state secret and is therefore not open to scrutiny, makes imprisonment a very real scenario for participating in activism, sharing information about LGBTI people’s human rights, or simply speaking up. It is an attempt to completely shut down any LGBTI organising and instil fear of prosecution and imprisonment among LGBTI people in general, as well as those who support them”, ILGA-Europe reacted to the news. 

“Adding ‘the international LGBT movement’ to a list of over 100 banned ‘extremist’ groups in Russia, it also extends beyond Russia’s borders, opening gates to prosecution of any entity or person at home or abroad involved in LGBTI activism as ‘extremist’.”

Since 2013

ILGA-Europe condemns this abhorrent attack on LGBTI people and human rights groups in Russia. 

“This ban is unprecedented in our region and outlaws organisations and individuals who have been withstanding harsh state-led attacks since 2013, both those targeting the rights of LGBTI people and those targeting independent civil society and media.”

“We stand in solidarity with LGBTI activists in Russia, who have remained resilient and determined in the face of repeated and escalating attacks on their work, lives and freedom.” 

ILGA-Europe has been working to directly support and empower the LGBTI movement in Russia through providing resources, learning, networking and convening opportunities, as well as mobilisation of solidarity networks, for more than 15 years. 

“We are committed to continue doing so while learning about what is needed as the situation evolves. In our consultations and meetings, Russian activists are saying loud and clear that action is needed now more than words. While organisations will feel the need to comment on today’s decision, we ask those who hold resources to do more than simply condemn.” 

“We urge them to recommit to staunchly supporting LGBTI organising in Russia through funding, security assistance, logistical and diplomatic support to relocations of those at risk, and other forms. In doing so, it is paramount to centre the strategies, guidance, knowledge and experience of LGBTI activists and groups that operate in the country and directly engage LGBTI communities in their work.”

Police raids

During the weekend after 30 November, police raided queer and gay bars to register patrons and photograph their passports. In Russia, there is a domestic passport. 

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