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India, Singapore, and Myanmar repealed or attempted to repeal sodomy laws.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

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