One of the most harmful effects of British imperialism is the continuing illegality of homosexuality in many Commonwealth jurisdictions.
In an attempt to dictate Victorian mores UK legislation was exported to the empire, criminalising “unnatural acts”.
It seems incredible that homosexuality was only declared legal in the UK in 1967, but for the gay men and lesbians living in countries that became independent of the British Empire before that time, living freely is still a distant dream.
Of course, it is not only in Commonwealth countries in which homosexuality is illegal. In much of the Middle East homosexual acts are punishable by death, while on the West Coast of Africa a host of countries imprison LGB people for anything from five years to life.
Aside from the threat of punishment in countries where laws are enforced, anti-gay legislation has a huge impact on the lives of LGB citizens. The risk of stigma and the silence around the issue creates a chilling effect, limiting choice and inciting fear.
The Human Dignity Trust (HDT) launched in 2011. The London-based NGO challenges the legality of the laws banning homosexuality around the world.
Instead of expending its efforts campaigning, HDT goes straight to the heart of the issue: challenging nations’ judiciaries to ensure their criminal laws conform to both international human rights and their own constitutions. HDT works with a panel of law firms; among them is the US firm Debevoise & Plimpton, which has been on board since the organisation’s inception.
The firm established its connection with HDT through the connections of one of its London lawyers, international counsel Jessica Gladstone. One of her former colleagues from the Foreign Office got in touch with Gladstone with a recommendation, and it went from there. The rest of the Debevoise team included associates Nicola Leslie and Conway Blake and Lord Peter Goldsmith QC, co-managing partner of the London office and chair of the firm’s European and Asian litigation practice.
At its inception, HDT’s strategy was to map out the laws surrounding homosexuality in countries around the globe. It then began to identify the jurisdictions in which there was a particular case or feeling of momentum where it might be able to offer assistance. It identified Belize as a front-runner, as Belizean citizen Caleb Orozco was bringing an independent case.
Debevoise had some experience in challenging constitutionality in Belize, albeit on different topics, so in May 2013 the firm represented Orozco at a hearing in Belize, with Goldsmith as lead advocate.
In line with HDT’s tactic of arguing that laws forbidding homosexuality are contrary to countries’ constitutions and international human rights, Debevoise used novel legal arguments, drawing on international interpretations of human rights.
“We believe our arguments are strong arguments and that they will ultimately prevail,” says Gladstone. “When making a constitutional challenge – saying, ‘Here is the constitutional standard, this is what you are required to live up to, and this legislation does not meet that standard’ – it is hugely influential to have the case heard.
“Raising it as an issue about rights rather than criminality, and putting it in the context of the human rights attached to it is also incredibly important.”
At the time of going to press, judgment had not yet been handed down. Although nearly 18 months have passed, waiting for judgments from the Belizean judiciary is a lengthy process, and the situation is not unprecedented. But despite no law changing as yet, the case has powerfully affected Belize.
“This issue was just not talked about,” says HDT legal director Téa Braun. “LGB people weren’t part of public discourse. Their stories weren’t out there before – they were a marginalised group. One of the unexpected results of the case was that the issue was front and centre in the public consciousness all the time.”
The team heard about the case on radio and TV every day, witnessing the Belizean media and public deliberate and dispute its laws and attitudes.
“You could see people’s minds changing as they talked about the case,” adds Braun. “Maybe there is no other way to get into the public consciousness in quite the same way. If you look back in history at any issue it is usually resisted and often forced into the public consciousness, and then people begin to learn and grow.”
Debevoise’s work in Belize led to it being appointed as adviser to Singaporean couple Gary Lim and Kenneth Chee. Although Lord Goldsmith was unable to represent the couple as foreign advocates are unable to work on any cases except in Singapore’s commercial court, the team worked behind the scenes, liaising with Lim and Chee’s Singaporean counsel before the hearing in April 2014.
As with the case in Belize, judgment had not been handed down at the time Lawyer 2B went to press. That is the only similarity between the two cases, however. While Belize had lacked a public dialogue on the subject, Singapore has held an annual pink dot rally since 2009 at which protesters campaign for gay rights, while politicians debated the question in parliament in 2007.
Neither these discourses nor Singapore’s wealth and cosmopolitan outlook have made any difference to its LGB citizens.
“Singapore is one of our more difficult cases,” acknowledges Braun. “It has a narrow legal framework, unlike Belize. They have not ratified the relevant international treaties, they have narrow constitutional protection for human rights and they do not have highly developed human rights jurisprudence.
“I don’t know how much chance the case stands there and if it loses there is no appeal process, though of course other cases would be brought in the future. It would be a huge victory if it did win, as it’s such an uphill struggle.”
Whatever the outcome of each case, it is important to remember that while legislative challenges may not bring instant success, any discussion around an issue that is still so vilified and suppressed cannot come soon enough.
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HDT: the Debevoise connection
Lord Peter Goldsmith QC, London co-managing partner and chair of European and Asian litigation
Lord Goldsmith (pictured) joined Debevoise & Plimpton in 2007, before which he was UK attorney-general for six years. Prior to his term as attorney-general, he was a barrister at Fountain Court Chambers. He became a QC in 1987, when he was just 37.
Conway Blake, associate
Blake joined Debevoise in 2012 after being an international law consultant to NGOs. He was awarded the Law Society’s Junior Lawyers Division Pro Bono Award this year.
Nicola Leslie, associate
Leslie joined Debevoise in 2012 after working as a legal adviser for the New Zealand government, which she represented before the UN at international negotiations on climate change and at the Antarctic Treaty.
Jessica Gladstone, international counsel
Gladstone joined Debevoise in 2010 from the Foreign Office, where she was a legal adviser, representing the UK at the UN and the European Court of Human Rights.