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2023 in review: the new laws affecting LGBTI communities worldwide

Read a comprehensive summary of the legal developments shaping the rights of lesbian, gay, bisexual, trans and intersex people across the world during the past 12 months.

As the curtains draw on the tumultuous world stage of 2023, we reflect upon a year of unprecedented intensity marked by monumental strides and considerable setbacks. In this briefing note, ILGA World invites our readers to embark on a retrospective journey through the legal landscapes that have shaped the rights of lesbian, gay, bisexual, trans, and intersex (LGBTI) communities in 2023. This note will focus on the legal developments regarding the criminalisation of consensual same-sex sexual acts.

Criminalisation of consensual same-sex sexual acts

The global trend towards decriminalisation of consensual same-sex sexual acts continued in 2023 with the addition of two UN Member States to the list of countries that repealed their criminalising provisions. Legislative advancements were observed in Singapore, while in Mauritius, it was the Supreme Court that rendered a decision in favour of decriminalisation. Consequently, the tally of UN Member States retaining criminalising provisions diminished from 65 to 63. The Cook Islands, an affiliated territory of New Zealand, similarly revoked its sodomy provisions, and one UN Member State (Venezuela) put an end to the criminalisation of consensual same-sex sexual acts within its military forces. Additionally, efforts to decriminalise were monitored in at least 3 UN Member States (Sri Lanka, Lebanon, and Namibia).

Notwithstanding these positive developments, a significant setback occurred when Uganda joined the list of UN Member States imposing the death penalty for consensual same-sex sexual acts. As demonstrated in ILGA World’s latest publication, “Our Identities under Arrest”, these provisions are far from dormant, and they have been actively applied in 2023 to arrest, prosecute and sentence people of diverse SOGIE in more than 60 countries. Furthermore, ILGA World monitored numerous regressive legislative initiatives, debates, and deliberations, within the Middle East and African regions, particularly in Bahrein, Ghana, Iraq, Kenya, Niger, and Tanzania. Of particular concern are bills with expansive scopes that extend beyond criminalising sexual acts to encompass the very identification as LGBT (Ghana) and others proposing heightened penalties, including the imposition of the death penalty (Iraq). In 2023, multiple judicial proceedings and rulings were centred on the issue of criminalisation of consensual same-sex sexual acts. Regrettably, a substantial proportion of these cases yielded unfavourable outcomes, with some still pending resolution.

 

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Freedom of expression

Legal debates around freedom of expression regarding sexual and gender diversity have become a critical battleground for our quest for equality. On a global scale, 2023 was marked by a considerable number of regressive initiatives, with a proliferation of bills and policies across various regions. Even though there is a notable overlap, these initiatives are extending well beyond criminalisation jurisdictions, including North and South America, as well as Europe. These measures target a spectrum of issues, including gender nonconformity, public advocacy, media regulations, school curricula, and even rainbow symbolism. These measures are often presented as efforts to protect children from “depravity” or to safeguard “family values” and to combat the so-called “promotion” of homosexuality or the LGBT agenda. These arguments, discussions, and implemented measures constitute a significant dimension within the contemporary legal discourse, which is highly relevant to our advocacy work at the local and international levels.

By the close of 2023, no fewer than 54 UN Member States maintained legal barriers to freedom of expression, explicitly or implicitly engaging with matters related to sexual orientation, gender identity, gender expression, and sex characteristics. While there were limited instances of positive legislative actions, the prevailing overall trend in 2023 was the consideration or effective implementation of new formal barriers coupled with the enforcement of existing regulations. Significantly, novel regulations and coordinated initiatives aimed at restricting SOGIESC issues in the media were identified in at least five UN Member States. Moreover, ILGA World documented new efforts to systematically exclude content concerning sexual and gender diversity from educational settings and libraries, either by law or policy, in at least nine UN Member States. Additionally, new instances of authorities confiscating or investigating rainbow-coloured items were recorded in at least five different UN Member States in 2023, with such actions being prompted by a belief that these objects were employed to “promote homosexuality.”

 

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Freedom of association

The fundamental principle of freedom of association, particularly for civil society organisations dedicated to addressing issues of sexual, gender, and bodily diversity, has faced escalating constraints in recent years. As of the conclusion of 2023, no fewer than 58 UN Member States have retained provisions with legal barriers to the formal registration and effective operation of LGBT organisations. In 2023, there were two noteworthy victories in the advancement of freedom of association in Kenya and in Eswatini, albeit met with localised resistance. Notably, much of this progress was achieved through litigation before the courts rather than legislative channels.

The majority of developments documented within this category predominantly manifest as negative measures, further constraining or impeding the existence of a space wherein civil society organisations can actively work towards advancing equality. These measures are compounded by the restrictions on the right to freedom of expression detailed above.

 

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Protection from discrimination

ILGA World systematically monitors legal protections against discrimination related to sexual orientation, gender identity, gender expression, and sex characteristics across specific domains: (1) constitutional protection, (2) goods and services, (3) healthcare, (4) education, (5) employment, and (6) housing. As of the conclusion of 2023, constitutional protection based on “sexual orientation” is provided by 12 UN Member States, while 77 countries extend some form of employment discrimination protection on this basis. Notably, protections based on “gender identity” are comparatively less prevalent, with 46 UN Member States offering such employment protection. Protections for “gender expression” and “sex characteristics” exhibit the lowest prevalence, with 20 and 18 UN Member States, respectively, providing employment protection based on these grounds.

Antidiscrimination protections, spanning diverse domains and encompassing various grounds, were enacted in at least seven UN Member States: Bulgaria, Cuba, Japan, Moldova, Spain, the Netherlands, and Colombia (via a decision of the Constitutional Court). Moreover, in six UN Member States, bills were introduced with the intent of expanding discrimination protections, potentially to be adopted in 2024. However, efforts to backtrack protections and concrete instances of regression were also observed in some jurisdictions, particularly in Georgia, the Community of Madrid (Spain), the United Kingdom, and the United States.

 

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Hate crime laws

These provisions establish standalone criminal offences explicitly targeting harm inflicted due to the victim’s sexual orientation, gender identity, gender expression, or sex characteristics and introduce legal measures granting the judiciary the authority to enhance penalties when the crime is motivated by these attributes. These enhancements, commonly known as “aggravating circumstances”, can be applied to specific crimes like murder and assault or extend broadly to encompass all offences outlined in a Penal Code.

In 2023, there was limited progress in this category, with only one UN Member State joining the list of countries with hate crime laws (Bulgaria). Notably, this addition pertained specifically to crimes motivated by “sexual orientation”. Additionally, the US territory of the Northern Mariana Islands adopted a new hate crime law for crimes motivated by SOGIE. At present, at least two jurisdictions (South Africa and Queensland, Australia) are actively deliberating on bills aimed at addressing hate crimes.

 

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Hate speech / Incitement to violence, hatred, or discrimination

Laws addressing the incitement of hatred, violence, or discrimination exhibit significant diversity in both language and scope. Some statutes explicitly focus on “hate speech” or language directly inciting violence, while others employ a more comprehensive set of terms, such as vilification, debasement, or humiliation of specific social groups, either through overarching legislation or specific statutes regulating broadcasting services. Noteworthy developments were relatively sparse for this category, with major strides observed in only two UN Member States (Bulgaria and Brazil), each with distinct scopes of protection. Additionally, two UN Member States are presently in the process of considering bills on the matter.

 

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Regulation of so-called “conversion therapy”

The term “conversion therapy” serves as the umbrella term for any sustained effort aimed at altering a person’s sexual orientation, gender identity, or gender expression. For additional information on the emerging legal debates and discussions, read ILGA World’s report “Curbing Deception”. Encouragingly, in 2023, three UN member states—Cyprus, Iceland, and Spain—successfully enacted legislation to curtail these unscientific and harmful practices at the national level, elevating the total of UN Member States with nationwide regulations to 13, an increase from the 10 recorded in 2022. Moreover, more regulations were instituted at the subnational level in the United States and Mexico, further contributing to this positive trajectory. The favourable trend persisted, with at least eight UN Member States discussing bills regulating “conversion therapies” during 2023.

 

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Same-sex marriage and civil unions

In 2023, a persistent trend of legalising same-sex marriage and other forms of civil unions continued, with four UN Member States—Andorra, Estonia, Nepal, and Slovenia—joining the list of countries where same-sex marriage is now legal. The addition of four nations to this list is relatively uncommon, having occurred only in 2013 and 2017 prior to this instance. Furthermore, Bolivia made strides by allowing same-sex civil unions, and progress at the subnational level continued in Japan, with more prefectures legalising same-sex civil partnerships. Throughout 2023, ILGA World monitored bills for same-sex marriage and the recognition of registered partnerships and civil unions in at least eight UN Member States.

However, less encouraging developments emerged from four other UN Member States—India, Lithuania, Panama, and Suriname—where judicial claims for same-sex marriage were rejected. Notably, Namibia stood out as a particular case where a positive court decision on the matter triggered a substantial backlash, ultimately leading to the introduction and approval of regressive bills. Finally, in at least one jurisdiction, the British Virgin Islands (United Kingdom), the initiative to hold a referendum on same-sex marriage appears to be progressing.

 

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Adoption by same-sex couples

Several states and jurisdictions have recognised the human right of same-sex couples to establish a family, enacting laws that allow them to adopt children. Two UN Members—Liechtenstein and Estonia—along with the non-UN Member Taiwan passed legislation affirming the right of same-sex couples to jointly adopt children in 2023. However, regressive policies, bills, and laws related to adoption were identified and monitored in several UN Member States.

 

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Restrictions on interventions on intersex minors

In recent years, informed debates regarding surgical interventions on intersex minors have garnered increased attention. However, these medically unnecessary and non-consensual interventions remain legal in the vast majority of UN Member States worldwide. In 2023, Spain emerged as the sole new UN Member that enacted protections at the national level. Additionally, the Australian Capital Territory made history by becoming the first subnational jurisdiction in the country to pass legislation safeguarding the human rights of intersex individuals and deferring irreversible and non-urgent medical procedures until individuals are old enough to make their own decisions.

Furthermore, in 2023, bills aimed at restricting interventions on intersex minors were introduced before legislatures in at least three UN Member States. Simultaneously, regressive legal developments were tracked in at least three other UN Member States. By the close of 2023, only 8 UN Member States had progressive measures on this matter, with two more countries imposing restrictions in at least one subnational jurisdiction.

 

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Legal gender recognition

In 2023, several UN Member States saw significant advances in legal gender recognition (LGR), ensuring positive steps towards the full participation of trans and gender-diverse persons in society. Three UN member states—Spain, Finland, and New Zealand—enacted legislation allowing gender marker change based on self-identification. Additionally, in continuing this positive trend, 8 different jurisdictions saw progress in laws, policies, or judicial decisions, effectively removing mandatory surgical requirements to amend gender markers on IDs. Legislative attempts to allow for LGR based on self-determination or with simplified requirements and procedures were also monitored in at least 6 different jurisdictions.

In contrast to these positive developments, several UN member states have introduced legal measures to restrict or outlaw legal gender recognition throughout 2023. By the end of 2023, there were at least 22 UN Member States where LGR is based on self-determination. In 16 of these, self-determination is available nationwide, while in four, it is available in some subnational jurisdictions only. Additionally, two more UN Member States offer LGR based on self-determination only for non-binary gender markers.

 

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