Hiding in the Shadow: The Legacy of Colonial Sodomy Laws and Strategies for Their Repeal

• Author: John Reilly
• Position: Independent Scholar
• Pages: 541-584

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2017 e Institute for Migrant Rights Press

I would like to express special thanks to Professor Marsha Garrison for her guidance

and encouragement to write and publish this article. I would also like to thank

my partner, Jonathan, parents Donna and John, and my family and friends whose

support is vital to all my successes.

hiding in thE shadows

THE LEGACY OF COLONIAL SODOMY LAWS AND

STRATEGIES FOR THEIR REPEAL

John Reilly

Independent Scholar

E-mail: john.reilly@brooklaw.edu

Asia is home to an estimated 220 million LGBTQ people across forty-nine coun-

tries; however in twenty-one of these countries, LGBTQ people are still subject-

ed to prosecution under colonial-era sodomy laws. e common characteristic

amongst the majority of the countries that criminalize sodomy today? ey are

former British colonies.

is article tracks the implementation of sodomy laws in former British

colonies in Asia, describes how these former colonies addressed sodomy laws af-

ter becoming sovereign nations, and compares how multiple countries, including

India, Singapore, and Myanmar repealed or attempted to repeal sodomy laws.

is article also recommends strategies to encourage the acceptance of LGBTQ

rights and ultimately to repeal the remaining sodomy laws. ese recommen-

dations are based on successful strategies used in Asia and address how people,

non-governmental organizations, and the government can stimulate changes.

Keywords: Human Rights, Asia, LGBT, Section 377, Myanmar, Colonialism

VII Indonesian Journal of International & Comparative Law 541-584 (October 2020)

542

Reilly

INTRODUCTION

“One day I will leave and never come back. You won’t hear my laugh

or my voice ever again.”1 ese are some of the haunting last words

posted on Facebook by Kyaw Zin Win, a 25-year-old librarian from

Myanmar who committed suicide due to the harassment he faced at

work.2 Alongside screenshots of homophobic text messages, Win de-

scribed the brutal harassment he faced at work and online aer being

forced to admit his sexual orientation at a sta meeting.3 He stated that

he tried to bear the bullying, but could no longer do so.4 “I was afraid to

do this, but I am afraid of people more. Forgive me and remember me,”

he wrote directly to his grandma and aunt in one of two nal Facebook

posts.5

“Kyaw Zin Win has sacriced his life to show how deep gender

and sexual orientation based discrimination is at the workplace and

schools,” Hla Myat Tun, an LGBTQ6 Activist and deputy director of

Color Rainbow, an LGBTQ rights group in Myanmar, explained.7

e response from the Myanmar National Human Rights

Commission (“MNHRC”), and the Yangon police provide evidence

that discriminatory attitudes run very deep.8 Despite Kyaw Zin Win’s

statements tying the bullying to the suicide, the MNHRC concluded

1. Nyein Nyein, Sorrow, Demand for Change Aer LGBT Suicide, T I

(June 25, 2019), https://www.irrawaddy.com/news/burma/sorrow-demand-

change-lgbt-suicide.html

2. Id.

3. Id.

4. Id.

5. Id.

6. For the purposes of this article, the term “LGBTQ” will be used to reference

the modern day Lesbian, Gay, Bisexual, Transgender, and Queer community.

When referring to same-sex intimacy during the colonial era, this article will

use the term “men who engage in same-sex intimacy.”

7. Nyein, supra, note 1.

8. Zue Zue, Myanmar LGBT Activists Demand Release of Report on Librarian’s

Suicide, T I (August, 27 2019), https://www.irrawaddy.com/

news/burma/myanmar-lgbt-activists-demand-release-report-librarians-

suicide.html

543

Hiding in the Shadow: e Legacy of Colonial Sodomy Laws and Strategies for eir Repeal

Reilly

that his suicide “had resulted from mental weakness on the part of the

young man,” not “being forced to reveal his sexual orientation or of

bullying by coworkers.”9 e police made no statement. ese ocial

responses mirror the fact that Myanmar provides no legal protection

for LGBTQ people. Instead, like most other former British colonies

in Southeast Asia, it continues to criminalize consensual same-sex

relationships.

In this paper I describe how and why sodomy laws were

implemented by colonial powers throughout Asia. I then analyze the

extent to which the acceptance of LGBTQ rights across the globe has

aected sodomy laws in former British colonies in Southeast Asia. A

series of recommendations is then made to repeal existing sodomy

laws based o of previous successful strategies.

In section I of this paper, I compare the history and implementation

of sodomy laws by the British and the French before and during the

colonial era. en, I discuss the evolution of sodomy laws in India,

Singapore, Myanmar, and Hong Kong in depth. In section II, I analyze

the historical legal argument that former British colonies in Asia should

decriminalize same-sex intimacy as a way to distance themselves from

their colonial heritage. In section III, I continue with a human rights

analysis section that delves into the issues LGBTQ people in Myanmar

face today because Section 377 is still current law. Section IV provides

recommendations, using examples drawn from Hong Kong, India, and

Singapore, on how LGBTQ advocates in former colonies that continue

to criminalize same-sex relationships can most eectively combat

discriminatory attitudes and legislation. Finally, in section V, I conclude

with an evaluation of the current progress being made in Myanmar and

the likelihood of striking down Section 377.

9. Id.