Overview

Nancy Nicol

This anthology is one of the outcomes of a five-year (2011−16) international research collaboration entitled Envisioning Global LGBT Human Rights (Envisioning) for which I was the principal investigator. Envisioning was conceived of as a strategic partnership that would enhance connections between geographically dispersed partners which share a common legacy of British colonial laws criminalising same-sex intimacy and gender identity/expression. Envisioning sought to support and enhance links connecting community leaders, researchers, activists, legal experts and human rights defenders so that they might share data and knowledge from different contexts and locations. Its goals were to research and document the experiences of lesbian, gay, bisexual and transgender (LGBT) people, including human rights violations on the grounds of sexual orientation and gender identity (SOGI),¹ and to share knowledge on contemporary struggles to advance decriminalisation, human rights and equality. Working with the Envisioning partners and members of the research team has been an amazing, challenging and transformative journey.

Criminalisation and persecution of LGBT people has increasingly become a focus of international attention, policy and law. Although colonial-era laws have been removed in the West through a process of legal reform and social movement organising, they have been retained in post-independence countries throughout the Commonwealth. As a focus for the study, Envisioning identified regions in the Commonwealth in which strategies to challenge criminal code laws were underway or being considered. In order to research, document and analyse these processes, Envisioning established partnerships in Belize, Botswana, Guyana, India, Jamaica, Kenya and Uganda. We also included United and Strong in Saint Lucia, as a strategic partner in the Caribbean which could contribute knowledge and expertise. Envisioning partners in the Global South include grassroots LGBT groups, human rights groups, and HIV/AIDS education and prevention non-governmental organisations (NGOs). All of them work to advance awareness and rights on the basis of SOGI and a number of those in the Global South are involved in constitutional challenges to laws which criminalise people on that basis.

Secondly, through our link with ARC International, who work to advance SOGI issues at the UN, Envisioning sought to support connections and collaboration to enhance Global South partner access to international human rights mechanisms. Thirdly, focusing on Canada, Envisioning aimed to gather research on LGBT asylum seekers and refugees in order to better understand the dynamics that lead to forced migration, and to examine refugee policies, practices and settlement services in terms of the impact on and experiences of LGBT asylum seekers in Canada. This research was supported by partners from diverse ethnic communities in the Greater Toronto Area (GTA) who work with LGBT asylum seekers and refugees. Many of them were at the forefront of developing programmes to address the needs of these vulnerable populations during the 1990s, when a number of services were established in the GTA to respond to growing numbers of LGBT refugees seeking asylum in Canada.² To inform our understanding of their experiences, we also aimed to foster the sharing of knowledge between Canadian partners, and Global South and international partners.

Although Envisioning focused on researching laws, constitutional provisions, asylum and struggles to advance human rights, the information gathered was not only concerned with laws but, rather, with the ways in which LGBT people’s lives intersect with law and what their stories tell us − sometimes in horrifying ways and sometimes in inspiring ways − about their aspirations for a better world of equality, freedom and liberation. The Envisioning research team hoped to gain a better understanding of these processes, share knowledge and resources across the partnership, and contribute outcomes that would enhance awareness of these issues.

During the period of the project’s research, the cultural, social, legal and political landscape related to SOGI issues has been highly dynamic: characterised by sharp conflicts, shifting judicial terrain and ongoing human rights violations. At the same time, LGBT rights organising has grown significantly in the Global South and in international forums such as the United Nations (UN). These developments have coincided with dynamic changes in jurisprudence and legislative reforms that have advanced or negatively impacted LGBT rights in different contexts. At the same time, there has been deepening economic, political and environmental crisis, and an assault on civil liberties driven by neoliberal, nationalist and neo-colonialist forces. During this time, a worldwide refugee crisis intensified as people fled violence and persecution, a crisis to which global capitalism contributed through trade and economic policies. In the context of intensified fears in the era post the 9/11 terrorist attacks of 2001, states have stepped up policing of borders to regulate the intake of refugees and immigrants. Among those caught up in this crisis are LGBT asylum seekers, many of whom are stranded in refugee camps, living in highly precarious and dangerous conditions, exacerbated by the hostility they encounter due to their SOGI.

Whether as a result of Trumpism in the US or autocratic powers in Eastern Europe or sub-Saharan Africa, all too often sexual minorities have been in the crosshairs of forces of reaction. A Human Rights Watch report (2016) which examines the politics of fear and the assault on civil liberties notes:

By closing the political space in which civic groups operate, autocrats are trying to suck the oxygen from organised efforts to challenge or even criticise their self-serving reign … An increasingly popular method to crack down on civil society is to target organisations of lesbian, gay, bisexual, and transgender (LGBT) people or those that advocate on their behalf. Some repressive governments claim, much like their calls to limit the right to seek foreign funding, that LGBT people are alien to their culture, an imposition from the West (p. 19).

As its name suggests, Envisioning was inspired by a sense of hope and aspiration that reflected developments at the time it was initiated. In particular, in July 2009, a precedent-setting ruling of the High Court of Delhi read down Section 377 of the Indian Penal Code which criminalises ‘carnal intercourse against the order of nature’. The ruling was significant for a number of reasons. The colonial roots of criminalisation on the basis of sexual orientation may be traced back to Section 377 of the Indian Penal Code, introduced in 1861 by the British. From India the law spread throughout the British Empire (Gupta, 2002; Baudh, 2008; Human Rights Watch, 2008; Sanders, 2009). Today, this legacy remains accountable for half of the laws in the world that continue to criminalise ‘unnatural practices’, ‘sodomy’ or ‘buggery’ (ibid.). The Delhi High Court ruling in 2009 had implications for cases challenging similar laws across the Commonwealth and inspired hope for change in India and internationally (Narrain and Bhan, 2006; Narrain and Gupta, 2011).³

In addition to the Delhi High Court ruling, challenges to colonial-era laws in other Commonwealth countries, coupled with the growth of Global South organising and advances in recognition of SOGI in international human rights forums and jurisprudence, provided a tangible basis on which to develop an international research partnership. Envisioning brought together legal and human rights professionals, academic and community-based researchers, and 31 community partners based in Africa, the English-speaking Caribbean, Canada and India into an arena of mutual learning. Many of the Envisioning contributors, and the authors of this anthology, have been at the forefront of key battles to advance LGBT rights internationally in recent years. Their chapters bring to life critical struggles in Africa, the Caribbean and India. Moreover, Envisioning provided an opportunity to turn a Global South lens on the Global North, a perspective that infuses the pages of this anthology.

Following an introduction to each chapter, I will give an overview of Envisioning’s methodology, and examine some of its experiences, challenges and insights. Envisioning also made extensive use of participatory documentary as a way of gathering research and engaging community partners. An overview of the documentary outcomes, and the methodology and challenges of this work are discussed in chapter 14. Envisioning documentaries are also cited in relation to themes discussed in various chapters.

Anthology themes

The authors offer different perspectives reflective of their different contexts, but chapters tend to converge around three key themes: colonial legacies; neoliberalism and neo-colonialism; and resilience, resistance and hope. The term neo-colonialism⁴ is used in this volume to describe efforts by Global North-based Christian right evangelicals and organisations against advances in LGBT people’s rights, including efforts to resist decriminalisation of consensual same-sex acts − an effort which Kaoma (2012) describes as ‘colonis[ing] African values’. Chapters examine the legacy and impact of British colonial-era laws on SOGI rights, recent legal challenges to this legacy in the Global South, and organising efforts to advance social change and LGBT rights in the Global South and at the UN.

Neoliberalism and neo-colonialism are themes that cut across both parts of the anthology. In part one authors examine the impact of neoliberal policy and neo-colonialist interventions on legal and legislative developments in the Global South, and on policy affecting refugees and asylum in Canada. In part two, they examine the impact of neoliberalism and neo-colonialism on the lives and experiences of LGBT people, human rights defenders and on organising efforts to advance social justice and LGBT rights in Africa, the Caribbean and across the UN. Part two also examines activism and community building in the Global South and at the UN − speaking to the resilience, challenges and aspirations for the future of this dynamic struggle for change.

Challenging the British colonial legacy

The course of legal battles launched against colonial-era laws that criminalise people on the grounds of SOGI has proven to be prolonged and challenging. However between 2011 and 2016, laws that criminalise sexual practices have decreased and legislation that protects LGBT people from discrimination, as well as legislative recognition of same-sex relationships, has expanded (Carroll and Mendos, 2017). Nonetheless, legal developments in parts of Africa took a turn for the worse in 2014, where new laws were enacted that increased penalties for same-sex intimacy and broadened the scope of criminalisation (Carroll and Itaborahy, 2015; various chapters, this volume). Since 2012, five countries worldwide have decriminalised same-sex intimacy: Lesotho in 2012, Palau in 2014, Mozambique in 2015, and the Seychelles and Belize in 2016 (Carroll and Mendos, 2017). In India, the Supreme Court set aside the 2009 Delhi High Court ruling that decriminalised same-sex acts and on 11 December 2013 reinstated Section 377 – that case is still before the courts. At the time of writing, 71 countries still criminalise consensual same-sex acts. This includes 32 in Africa, 23 of which apply to both women and men; ten of the countries that make up the Commonwealth Caribbean (Caricom),⁵ of which five apply to both women and men (Carroll and Mendos, 2017).

Intersex, transgender and gender non-conforming (ITGNC) people are also impacted by the use of laws that criminalise ‘unnatural offences’ or ‘sodomy’, as well as by vagrancy laws.⁶ Moreover, there are specific measures that criminalise transgender persons, such as the colonial-era ‘cross-dressing law’ in Guyana.⁷ Such laws, as well as persecution by state and non-state actors, contribute to high levels of violence and discrimination against ITGNC persons. The Trans Murder Monitoring project (Transgender Europe, 2016) documented 2,016 reported killings of trans and gender-diverse people in 65 countries worldwide from 1 January 2008 to 31 December 2016.

On 10 August 2016, Caleb Orozco (chapter 9) and a coalition of allies celebrated a precedent-setting ruling when the Supreme Court of Belize struck down Section 53 of the Criminal Code, thus decriminalising same-sex intimacy in Belize. The first of its kind in the region, this legal victory was a result of years of community building locally and from across the region. In his chapter, Orozco, a litigant in the case and a founder of UNIBAM, gives a first person account of community organising and the struggle for decriminalisation in Belize. The author provides a window into what became a fiercely contested battle, as religious-based groups led street protests in opposition to decriminalisation. Launched in 2010, the case challenged the constitutionality of Belize’s colonial-era Criminal Code statute, Section 53, which bans ‘carnal intercourse against the order of nature’, punishable by ten years in prison.⁸ Orozco’s lawyers argued that Section 53 violates the provisions of the Belize Constitution that recognise individual rights to human dignity, freedom from arbitrary or unlawful interference with one’s privacy, and equal protection under the law.⁹

The decision in the Orozco case inspired hope for change in other jurisdictions across the Caribbean that have similar colonial-era laws. However, the path forward is highly contested. In Jamaica, the 1864 Offences Against the Person Act criminalises private consensual adult same-sex intimacy between men under Articles 76, 77 and 79 of the Criminal Code.¹⁰ In 2011, a challenge to the Jamaican anti-sodomy law was filed at the Inter-American Commission on Human Rights.¹¹ Several domestic court challenges were filed at the same time. In February 2013, a young outreach worker at Jamaica Forum for Lesbians, All-Sexuals and Gays (J-FLAG) initiated a domestic challenge against the sodomy law of Jamaica, after he was evicted from his home due to his sexual orientation.¹² The case asked the Supreme Court of Jamaica to rule on whether the law violates the claimant’s right to privacy under Jamaica’s Charter of Fundamental Rights and Freedoms. However, due to threats against him and his family the litigant was forced to withdraw the case. In his affidavit, he told the court: ‘Though the cause and the case are noble, I am no longer willing to gamble with my life or the lives of my parents and siblings’.¹³ Sadly, this outcome demonstrates how violence and intimidation result in denial of access to justice for gay men in Jamaica. J-FLAG documented discrimination and violence affecting LGBT persons in Jamaica, including an interview with the litigant, as part of Envisioning’s participatory documentary work: see Nicol (chapter 14).¹⁴

Figure 3. Caribbean research team, Emancipation Park, Kingston, Jamaica, 10 July 2013. Photo credit: Ulleli Verbeke, Society Against Sexual Orientation Discrimination and Envisioning Global LGBT Human Rights.

Pere DeRoy and Namela Baynes Henry (chapter 5) examine LGBT rights in Guyana in the context of the cross-dressing law that imposes a fine on anyone who ‘being a man, in any public way or public place, for any improper purpose, appears in female attire; or being a woman, in any public way or public place, for any improper purpose, appears in male attire’. The authors draw on Envisioning research data that found high levels of discrimination and violence towards transgender persons. Henry spoke on the findings at the 2014 World Pride human rights conference in Toronto:¹⁵

We had one person who was brutally attacked … when the police came, because she was a transgender person they left her lying on the road. She was taken to the public hospital where she was left unattended for almost eight hours … Because they’re excluded from the education and economic aspects of the society, most of the transgender persons end up doing sex work. That’s another nightmare … police would come around and pick up the transgender persons and take away their money … they extort money from the client as well as the transgender persons doing the sex work. That is a norm.

In February 2009, following the conviction of seven individuals for violating the cross-dressing law, the Society Against Sexual Orientation Discrimination (SASOD) joined a case challenging the law.¹⁶ The applicants contested the law as unconstitutional on the grounds that it was vague in scope and contravened the prohibition against sex and gender discrimination in the Constitution of Guyana. On 6 September 2013, the court dismissed these claims, finding that the act does not discriminate on the basis of sex, because the prohibition treats both men and women in the same manner. However, Chief Justice Ian Chang stated that, ‘cross-dressing in a public place is an offence only if it is done for an improper purpose.’ The appellants appealed the decision, seeking greater clarity from the court on the meaning of ‘improper purpose’, and objecting to the judge’s decision to strike out SASOD as a valid litigant in the case.¹⁷ The appeal court upheld the former ruling and unanimously dismissed the appeal. The appellants appealed this ruling to the Caribbean Court of Justice (CCJ).

Despite these challenges recent developments in Latin America and the Caribbean have inspired hope for change. In a landmark decision on 9 January 2018, the Inter-American Court of Human Rights ruled that countries under its jurisdiction must recognise the rights of trans people to change their gender markers and name in all public records and official documents. Further, the court stipulated that the process should be confidential, free, and not require surgery or hormone treatment. The court also ruled that same-sex couples must have rights and legal protections, including the right to civil marriage.

The opinion is legally binding on 20 Latin American and Caribbean countries¹⁸ that are signatories to the American Convention on Human Rights. Of those countries, only five jurisdictions – Argentina, Colombia, Brazil, Uruguay and parts of Mexico – currently recognise same-sex marriage. The ruling is particularly timely in Panama, Chile and Costa Rica where national debates on equal marriage have taken place recently. The most groundbreaking aspect of the opinion is with regard to legal gender recognition, given that most Latin American countries do not currently allow it. Some countries do, but only through complex, costly and time-consuming processes (Berezowsky Ramirez, 2018b).

The decision is a result of activism and work by Latin American-based NGOs and activists, including the work of the LGBTTTI Coalition of Latin America and the Caribbean, working in the context of the Organization of American States (OAS). Turning the court’s ruling into a reality will require ongoing work, however, the court’s decision has shifted the grounds of the debate throughout the region and has given SOGI rights advocates an important and inspirational resource (Berezowsky Ramirez, 2018a).

Later in 2018, on 12 April, the High Court of Justice in Trinidad and Tobago ruled that laws criminalising same-sex intimacy between consenting adults are unconstitutional. Section 13 of the Sexual Offenses Act of Trinidad and Tobogo, a colonial-era law, imposed 25 years in prison for same-sex intercourse. Further, Section 16 imposed up to five years imprisonment on a person who is sexually intimate with a person of the same sex without having intercourse. Following the Belize decision, this case marks the second ruling to strike down such laws in the region. The case was brought by Jason Jones, an openly gay citizen of Trinidad and Tobago, who had left the country because of discrimination on the basis of his sexual orientation. The ruling affirmed that people must be able to make decisions about whom they love and with whom they wish to form a family. Attorney General Faris Al-Rawi said on 13 April that he would appeal the High Court ruling (Human Rights Watch, 2018).

Arvind Narrain (chapter 1) examines five cases under Section 377 in India spanning the period between the first reported use of the law in 1884 and 2014, and contrasts the Delhi High Court ruling of 2009 that struck down Section 377 with the Supreme Court decision of 2013 which overturned the High Court ruling.¹⁹ Narrain argues that the concept of ‘constitutional morality’²⁰ articulated in the Delhi High Court ruling shifted consideration of homosexuality within law from ‘tolerated’ to ‘something that needs to be protected … at the heart of the freedoms guaranteed under the constitution.’ This space of dignity however, Narrain continues, was cut all too short by the Supreme Court ruling in 2013 that upheld Section 377, reinstating the nation’s ban on same-sex sexual relations. The ruling failed to consider the affidavits of those impacted by the law and sidestepped the constitutional arguments in the case. Further, Narrain examines the Section 377 ruling of the Supreme Court in light of a decision four months later by a different bench of the Supreme Court, on transgender rights.²¹ The judges in this case, Narrain writes, ‘traced a place for the transgender community in both Indian mythology and history’ and opined that the current abject status of hijra people²² is due to ‘colonial intervention’ which, the author points out, includes the use of Section 377 against transgender persons in the first documented case under Section 377 in 1884. Finally, Narrain notes that the litigation against Section 377 came to ‘represent the entire community’. Reaction against the Supreme Court ruling was swift with demonstrators pouring into the streets across India and internationally. The parties supporting the Naz petition filed a ‘curative’ petition²³ requesting that the Supreme Court review the case.²⁴ In August 2017, a Supreme Court bench in a separate case declared that the 2013 Supreme Court ruling in Koushal v. Naz, had gravely erred in annulling the Delhi High Court verdict and held that ‘privacy is a fundamental right’, and ‘Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual’.²⁵ In the meantime, additional petitions against Section 377 were filed. In January 2018 the Indian Supreme Court decided to re-examine its 2013 decision. Hearings began on 10 July 2018 and a decision is expected by October 2018. Legal experts and activists in India are hopeful that the court will finally now overturn the law. (Jha, 2018; Reuters, 2018). Coupled with developments in Latin America and the Caribbean, should the Indian court strike down Section 377, a critical tipping point in the battle to decriminalise same-sex intimacy will be reached. Nonetheless, the path ahead remains highly contested, particularly in Africa.

Monica Tabengwa and Adrian Jjuuko (chapter 2) write about ‘expanded criminalisation’²⁶ to describe a process in post-independence African countries to further criminalise same-sex conduct across Africa today, a process which the authors argue represents ‘a big departure from the status quo in Africa before 1990 where homosexuality was largely not discussed and where arrests for same-sex relations were largely unheard of.’ The authors identify three key strategies in the expansion of criminalisation: 1) expanding or reinterpreting existing colonial-era laws, as Uganda revised the law in 1990 to increase the punishment for ‘carnal knowledge against the order of nature’ from 14 years imprisonment to life; 2) invoking constitutional prohibition, as Uganda introduced a constitutional amendment in 2005 prohibiting same-sex marriages, a trend that rapidly spread to Nigeria, Zimbabwe, Rwanda, the Democratic Republic of Congo, Liberia, Cameroon, Malawi, Kenya, Tanzania and the Gambia; and 3) developing new expanded laws, as with, in 2014, Nigeria’s Same-Sex Marriage (Prohibition) Act,²⁷ other laws in Malawi, Burundi, Cameroon and Uganda, and the criminalising of ‘homosexual propaganda’ introduced in Algeria, Nigeria, Burundi, Cameroon and Uganda.

The right to form organisations that advocate for LGBT people’s human rights has been severely limited or denied in countries where same-sex conduct is criminalised. Mbaru, Tabengwa and Vance (chapter 6) discuss recent litigation and significant incremental gains in case law, based on constitutional protections that guarantee freedom of association in Botswana, Kenya and Uganda. In March 2012, Lesbians, Gays and Bisexuals of Botswana (LeGaBiBo) and the Botswana Network on Ethics, Law and HIV/AIDS (BONELA) launched a constitutional challenge over LeGaBiBo being denied registration under the Societies Act of Botswana. On 17 March 2016, the Appeal Court of Botswana upheld LeGaBiBo’s right to register, arguing that to deny it violated the rights to freedom of expression, assembly and association protected by the Botswana Constitution. In this milestone decision, the High Court ruled that ‘carrying out political lobbying for equal rights and decriminalization of same-sex relationships is not a crime’ and that ‘It is also not a crime to be a homosexual’²⁸ (although the penal code provisions that criminalise same-sex intimacy in Botswana remain in place). In Kenya, the National Gay and Lesbian Human Rights Commission (NGLHRC) pursued a similar strategy to challenge the refusal to register an LGBTI organisation.²⁹ In April 2015, the Kenya High Court ruled in NGLHRC’s favour. See also, Jane Wothaya Thirikwa (chapter 11) on the Kenya case. In Uganda (June 2016), Sexual Minorities Uganda (SMUG) and Human Rights Awareness and Promotion Forum (HRAPF) filed a constitutional challenge against the Uganda Registration Service Bureau, whose registrar had refused to reserve the name, ‘Sexual Minorities Uganda’. Authors Mbaru, Tabengwa and Vance (chapter 6) also examine recent case history in Uganda where earlier gains in recognising constitutional protections for LGBT persons were not translated in the 2012 freedom of association case that challenged the actions of the ethics and integrity minister for raiding a workshop on LGBT issues.³⁰ The High Court in Uganda held that the minister’s actions were justified, broadly interpreting the scope of Section 145 of the Penal Code Act, which defines ‘unnatural offences’. Finally, the authors note that decriminalisation of homosexuality in Mozambique was expected.³¹ That country is one of the three in Africa, including South Africa and Botswana, to provide protection against discrimination based on sexual orientation, a provision that has been in effect there since 2007.

Figure 4. SMUG participatory documentary team, International Day Against Homophobia, Nairobi, Kenya, 17 May 2012. Left to right: Richard Lusimbo (research), Nkyooyo Brian and Junic Wambya (videography), with Yoon Jin Jung (MFA, York University) and Phyllis Waugh (Envisioning knowledge mobilisation coordinator). Photo credit: Envisioning Global LGBT Human Rights.

Adrian Jjuuko and Fridah Mutesi (chapter 10) examine resistance to the Anti-Homosexuality Act (AHA) in Uganda and give a first-hand account of the constitutional challenge to the act. Morality codes limiting public discussion have been in force for many years in some countries;³² however, there has been a recent uptick of new laws, like the AHA, criminalising ‘promotion’ or ‘propaganda’, or banning the ‘promotion of non-traditional sexual relations to minors’ (Carroll and Mendos, 2017). Targeting human rights defenders and LGBT rights organising specifically, such laws emerged in Russia in 2006. Recent anti-promotion laws have been passed in the Russian Federation in 2013, in Lithuania (2014), Algeria (2014), Nigeria (2014) and Indonesia (2016). In Uganda similar laws were passed in August 2014 but were rescinded by a constitutional court five months later. The laws, which target media, social media, organisations, public activity or human rights work that seeks to support SOGI rights or to portray homosexual behaviour as ‘normal’, constitute a profound assault on freedom of association and even on freedom of speech. Violence with impunity against LGBT people spiked in Uganda following the passage of the AHA (SMUG, 2014) and is documented in the SMUG/Envisioning documentary, And Still We Rise.

In addition, some countries have recently sought to regulate NGOs to create barriers to the establishment or registration of those that support LGBT rights, thus limiting their ability to access funding and repressing their ability to organise. For example, in Uganda following the constitutional court ruling that struck down the AHA in 2014, the Non-Governmental Organizations Act (NGO Act) was passed and assented to by President Museveni on 30 January 2016.³³ The latter act states that, ‘an organisation shall not be registered under this Act, where the objectives of the organisation as specified in its constitution are in contravention of the laws of Uganda’. For a discussion of these developments in terms of resistance to the AHA, see Jjuuko and Mutesi (chapter 10). Following these developments, SMUG and HRAPF initiated a legal challenge to the NGO Act that is currently in process.

For information about Envisioning documentary films dealing with legal challenges and organising, see Nicol (chapter 14). They include: Botho: LGBT Lives in Botswana (2013), on LeGaBiBo’s constitutional challenge to the penal code in Botswana; A Short Film on Kenya LGBTI Stories (2012), on the Gay and Lesbian Coalition of Kenya (GALCK) decriminalisation strategy; And Still We Rise (2015), on the impact of and resistance to the AHA in Uganda; and No Easy Walk to Freedom (2014), which traces the struggle against Section 377 of the Indian Penal Code.

Neo-colonial and neoliberal impacts on SOGI human rights

Authors in the first section of the anthology provide reflections and insights on globalisation, neoliberalism and neo-colonialism with respect to SOGI issues in the Global South and asylum in Canada. Amar Wahab (chapter 4) argues for the need to address human rights from the perspective of broader struggles for self-determination in the context of neoliberal globalisation, and speaks to the need for a reorientation to decolonise queer studies and for ‘a return of the gaze northwards from the Global South.’ Monica Mbaru, Monica Tabengwa and Kim Vance (chapter 6) examine the debate on ‘tradition’ in the African context and at the UN. Nick J. Mulé and Kathleen Gamble (chapter 7) offer critical perspectives on neoliberal policy and LGBT refugee issues in Canada, focusing on the refugee determination system and mental health. Gary Kinsman (chapter 3) gives a critical perspective on national identity, border security, and the assimilation and depoliticisation of queer liberation in Canada.

Wahab (chapter 4) notes that ‘heterosexuality has been increasingly mobilised by the postcolonial state’ as ‘crucial to both national solidarity and a sense of sovereignty’. The author argues that homophobia and human rights cannot be separated from the broader tensions of the struggles for self-determination in the context of neoliberal globalisation. Citing studies on the impact of structural adjustment and neoliberal policies, the author provides a critical examination of globalisation with regard to self-determination in post-independence Caribbean countries. Wahab notes that postcolonial states that are marked by legal homophobia, ‘are often misrecognised as excessively hetero-normative/homophobic and by default, without histories of non-normative sexualities, intimacies, desires…’

Further, drawing on Puar’s (2007) concept of homonationalism and Massad’s (2002) critique of ‘the gay international’, Wahab challenges the dominant discourse of the West and the ‘imperialist drive to civilise the Global South.’ He contextualises the Envisioning interview data from Saint Lucia, pointing out that it suggests the need to rethink ‘homophobia’ on the island. Wahab challenges the essentialist construction of Saint Lucia as transhistorically homophobic, which effectively silences the local LGBT subjects, denying their agency in lieu of intervention by Western LGBT human rights advocates. In considering global LGBT human rights discourse, he argues that the presumption of freedom of LGBT subjects as dependent on legalised public visibility has ‘grave implications for how we think about the archive of queer history in the Global South’, noting that both postcolonial nationals and global LGBT human rights advocates may construct queerness in ways that fail to recognise sexuality and desire which do not conform to Western LGBT subjectivity or ‘which are not only about “sexuality” per se.’

Mbaru, Tabengwa and Vance (chapter 6) provide a detailed legal-activist historical overview of the debate on ‘traditions’ at the African Commission and at the UN through the lens of Africa. The overview explores the intersection of colonial legacies with contemporary influences that oppose decriminalisation across Africa. The authors argue that women’s reproductive rights, and SOGI rights, have become a ‘cultural and religious battleground’, seen by African fundamentalists as an attack on the continent’s traditional values and culture. These forces seek to uphold the ‘traditional’ African family and conservative views on the role of women, and to render homosexuality more visible and marked for exclusion, contempt and violence. The authors explore these battles at the national, regional and international levels, tracing recent activity at the UN, the African Union and the African Commission, and discuss the impact of these processes on LGBT Africans. The contributors note that while traditionalists argue that same-sex sexuality is ‘un-African’, same-sex intimacy and gender diversity have existed in African cultures for centuries.

Turning the lens on Canada, authors Gary Kinsman (chapter 3) and Nick J. Mulé and Kathleen Gamble (chapter 7) examine neoliberal policies in Canada and their impact on LGBT asylum. During the period of this research (2011−16), the Canadian government introduced significant changes to refugee and immigration policy which made it much more difficult to claim asylum in Canada, with particular negative effects for those doing so on the basis of SOGI.

Mulé and Gamble analyse and discuss data from Envisioning’s research with LGBT refugees and service providers, focusing on mental health issues, including the impact on service provision of policies and procedures in the context of a neoliberal environment. The Immigration and Refugee Board (IRB) of Canada, in assessing SOGI refugee claims, requires ‘proof ’ of the claimant’s SOGI. That process places the onus on LGBT claimants to produce highly personal evidence to substantiate their SOGI status. Prior to their arrival in Canada, many of the LGBT refugee claimants who participated in this study lived lives of silence and social isolation due to discrimination and fear of persecution. The immigration and refugee regime throws newcomers, grappling with identity issues which may be deeply private, into a highly stressful situation where their SOGI must be demonstrated, often in ways conforming to Western and stereotypical assumptions of LGBT identity (Envisioning, 2015). Mulé and Gamble discuss how the claims process itself can make LGBT refugees feel persecuted and/or threatened and the requirement to prove SOGI identity can trigger painful memories, all of which impacts on the mental health of an already highly traumatised minority. In addition to the refugee claims process, they look at how experiences of escaping violence and later settling in Canada can also affect mental health and wellbeing.

Kinsman analyses border policing, refugee policy and the claims process and raises significant questions with regard to the current asylum regime in Canada, noting that ‘who gets to define what queerness is … can also be part of a new regulatory regime imposing Western hetero/homo-derived classifications and LGBT definitions on the experiences of people coming into Canada.’ Kinsman examines how a decidedly neoliberal agenda and changes to refugee and asylum policy in Canada shifted responsibility, including financial responsibility, from state agencies to community organisations, agencies and churches. Moreover, that shift is within the context of tightening borders, intensification of surveillance, detention, deportation and ‘normalisation’ in the post 9/11 era. Contrasting neoliberalism in the Global South and the Global North, in its implications for LGBT advocacy, the author argues that ‘Neoliberalism in much of the world maintains a moral conservative approach to women, gender and sexual diversity’, while ‘Non-moral conservative forms of neoliberalism’, based on legal equality for queers in countries like Canada, have led to ‘the emergence of the neoliberal queer’, who has abandoned liberationist perspectives challenging the social relations of exploitation and inequality inherent in capitalism. Rather than a rights approach, Kinsman argues that activists need to address and learn from border struggles and ‘interrupt regimes of detention, deportation, surveillance and normalisation.’

Resistance, resilience and hope

Global South organising continues to grow, demonstrating tremendous courage and resilience in the face of discrimination and violence. That spirit infuses the chapters in this second section. Legal obstacles and the absence of human rights protections continue to hamper the work of organisations and human rights defenders. Activists face highly negative public discourse in the media as well as from local politicians, religious leaders and the wider civil society, which in turn places those who advocate for LGBT rights at risk. Yet, despite these challenges, activists and LGBT and human rights organisations continue to pursue strategies to advance LGBT human rights: building community, creating local and regional coalitions, developing civil society allies and pursuing international human rights protections, as well as filing constitutional challenges in the courts.

Authors explore a range of concerns and questions in relation to advocacy and resistance while tracing some key developments in the Global South and at the UN in the advancement of SOGI issues, rights and recognition. They also provide critical perspectives on the impact of religious right evangelical forces (often based in the Global North) that oppose efforts to advance recognition of SOGI issues at the UN and LGBT rights in the Global South. Two studies that are most relevant to these tensions are: a Southern Poverty Law Center report (2013) on the role of the US religious right in the struggle for decriminalisation in Belize, and a study by Kapya John Kaoma (2012) on the influence of the US Christian Right in supporting discriminatory laws and policies in Africa. Orozco cites the Southern Poverty Law Centre report, which identified the prominent Christian legal powerhouse Alliance Defending Freedom’s (ADF) support for Belize Action (which led the way in bringing together Catholic, Evangelical and Anglican Churches as interested parties to oppose the challenge to Section 53). Founded in 1994 by 30 prominent Christian leaders in response to what they saw as growing attacks on religious freedom, ADF has an annual budget of more than US$30 million. Adrian Jjuuko and Monica Tabengwa (chapter 2) cite the work of Revd Dr Kapya Kaoma, a noted authority on the ties between US religious leaders and local politicians. He researched the role of the American Center for Law and Justice (ACLJ), Human Life International, and Family Watch International (or The Family), US-based organisations which were, according to Kaoma, ‘steadily building political networks and legal infrastructure across Africa, working to renew and expand colonial-era proscriptions on sexual rights; and to impose a decidedly American conservative theological understanding of family values onto Africa’ (p. 4). Kaoma highlighted the force with which African politicians and newspapers reframed the human rights struggle of African sexual minorities as an import by Western powers, arguing that decriminalisation of same-sex intimacy is the antithesis of their respective cultures, playing the sovereignty card in their appeal to ‘traditional values’. By claiming that homosexuality is ‘un-African’, neo-colonial religious right conservatives exploit the politics of postcolonial identity that reject Western influences, using the myth of a foreign homosexual conspiracy to discredit opposition parties and divert attention from their own inadequacies, corruption and attacks on the population (ibid.).

Vance, Mulé, Khan and McKenzie (chapter 8) give an overview of SOGI issues at the UN, mapping the progress of SOGI initiatives and the engagement of civil society. Beginning with the efforts of lesbian women in the 1970s and 1980s, the authors trace key developments such as the first resolution on sexual orientation and human rights at the UN Commission on Human Rights in Geneva in 2003, and the first independent trans organisation working at the international level, Global Action for Trans* Equality (GATE), founded in 2010. The contributors discuss key developments such as the Yogyakarta Principles in 2006 and their ongoing relevance and influence,³⁴ and the adoption of the first resolution on human rights and SOGI by the UN Human Rights Council on 17 June 2011. In September 2016, the Council appointed Vitit Muntarbhorn, as the first ever independent expert on SOGI issues, to study and report annually on the nature and extent of discrimination faced by LGBT persons. The first report was delivered in June 2017.³⁵

Caleb Orozco (chapter 9) situates the Section 53 constitutional challenge in Belize within a historical and activist context, arguing that the case was strategic. Orozco details how it built on local, regional and international organising efforts, beginning with the founding of UNIBAM in 2006, and a legal review by the National AIDS Commission that called for repeal of Section 53 in 2008. Speaking of 2013 as ‘a time of turmoil in Belize’, when the Section 53 case was heard and the Gender Policy, which included sexual orientation, was introduced, Orozco recounts the debate on LGBT rights that rocked Belize. Orozco notes, ‘The case against s. 53 in Belize rendered our opponents visible for the first time’. It exposed the role of evangelical Christians who resisted change and coordinated ‘constitutional marches’ in opposition to decriminalisation.

Intersectional approaches and coalition building are prominent themes from Global South authors in this volume, who contribute insights on building alliances and coalitions. Jjuuko and Mutesi (chapter 10) and Lusimbo and Bryan (chapter 12) discuss their efforts to locate LGBTI rights within the broader human rights agenda, including the formation of the Civil Society Coalition on Human Rights and Constitutional Law which brought together 50 civil society organisations to oppose the AHA, and connected the assault on LGBT rights with a wider attack on civil liberties. Similarly in Kenya, the movement took ‘a multi-tiered approach’,³⁶ holding annual consultative meetings in East Africa and partnering with allies such as women’s rights organisations. This method was adopted by GALCK, created in 2006 to bring together isolated LGBT groups across Kenya. Kenyan author, Jane Wothaya Thirikwa, writes how mobilising efforts widened their scope to include health, security, an enabling legal environment and quality citizenship. Similarly, Orozco discusses how Caribbean activists formed regional alliances and sought to advance their rights through regional bodies such as the Organization of American States.

Lusimbo and Bryan (chapter 12) challenge overly simplistic perceptions depicting LGBTI lives in Uganda as a ‘single story of tragedy’ and give a detailed historical and activist history of LGBTI mobilising in Uganda starting from 1999. Beginning with the precolonial history of homosexuality in Uganda, the authors explore Western anti-homosexuality influences from the colonial era to the passage of the AHA in 2014. They trace the growth of organising by LGBTI Ugandans, resulting in their greater public visibility in the country. They also outline regional LGBT organising in East Africa and Southern Africa, and efforts including litigation which initially led to progress being made in Uganda in 2008. The authors note that the introduction of the Anti-Homosexuality Bill (AHB) in 2009, coupled with a surge of homophobic media, forced SMUG to shift priorities in order to focus on stopping the bill from being passed. They recount the growing persecution suffered by the community, and the negative impact on services and organisations in the context of the AHA. Lusimbo and Bryan also emphasise the resilience of the LGBTI movement in Uganda as its organisations continued to build in the face of violence and discrimination.

Jjuuko and Mutesi (chapter 10), lawyers on the team that successfully challenged the AHA, write: ‘This was one of the most memorable moments in the history of LGBTI organising in Uganda; people wept, shouted, and danced, and the rainbow flag was triumphantly waved in the courtroom.’ The authors detail the key provisions of the law, the arbitrary arrests that ensued, and the mobilising strategies, including the process of building the constitutional challenge. The team of seven lawyers ‘risked their careers to stand up for what they believed in.’ Ten petitioners joined the case, strategically selected to represent a broad spectrum of society. The contributors show how local, national and international politics played a key part, from the five years it took to get the law in place, to the court case that struck it down in five months.

Thirikwa (chapter 11) examines LGBT activism in Kenya and religious-based opposition to LGBT rights, noting a clampdown on the rights of LGBT people in Kenya, ‘ fuelled by morality dogmas’ and ‘by right-wing legislators seeking political mileage’ following the introduction of the AHB in Uganda. Thirikwa discusses the influx of heavily funded American Christian evangelicals including the American Center for Law and Justice, which maintains its East African Centre for Law and Justice office in Kenya, and Family Watch International, which has set up a base in Kenya in addition to its work in Uganda. Thirikwa writes that a network of religious groups continue to instigate violence and discrimination against LGBT people by ‘purporting that homosexuality is taboo, ungodly, “un-African” and a threat to the “normal” family unit.’

Guillit Amakobe, Kat Dearham and Po Likimani (chapter 13) focus on organising by ITGNC Kenyans, and call for an intersectional approach to community-building. They also speak to the growing militarisation of Kenyan society and targeting of terrorism since the Iraq war, leading to increased surveillance and an assault on civil liberties which impact LGBTI people. Structuring their chapter as a conversation, the authors draw on their experience as co-founders of Jinsiangu, a community-based group focused on the provision of psychosocial aid for ITGNC Kenyans. Reflecting on the tensions and implications that can arise, they analyse the intersections between LGBTI and ITGNC organising, class, exclusion and community-building, and examine the impact on organising of the heavy presence of the development industry, donor dependence, the human rights framework and the rights-based perspective. They argue that these often undermine intersectional approaches which seek to better link LGBTI concerns with other issues. Crucially, they contend that these influences fail to meet the needs of a community ridden with poverty, self-esteem issues, lack of information and limited resources. The contributors argue for an intersectional, culturally more appropriate way of organising that will connect LGBTI matters to those concerned with land rights, labour and economic justice, rather than treating LGBTI matters separately. See also Nicol (chapter 14) on Envisioning documentaries: And Still We Rise (2015), on mobilising against the AHA in Uganda and the role of US-based evangelical Christians in Uganda; No Easy Walk to Freedom (2014) on intersectional approaches to queer organising in India; and The Time Has Come (2013), on SOGI work at the UN.

Envisioning methodology and goals

Integral to Envisioning was the incorporation of perspectives from grassroots partners alongside the aim of supporting international exchange. Envisioning sought to develop global partnerships that respect cultural, economic and social differences, informed by a critical analysis of neoliberalism and the imposition of normalised heterosexuality and minoritised homosexuality on indigenous forms of same-sex eroticism and gender identity and expression. While LGBT identities exist in non-Western countries, terms such as LGBT and SOGI are rooted in Western concepts which inadequately describe the indigenous practices, including gender transfer or third-sex, that exist in the regions covered by this study. Further, colonialism shaped understandings of gender, sexuality, family and women’s social position, a process that continues today through capitalist global relations. Policing sexual and gender identities and expressions is entangled with issues of power and inequity inherent in capitalism, racism, colonialism, neoliberalism and imperialism (Drucker, 2000; Gupta, 2002; Reddy, 2006; Human Rights Watch, 2008; Kidwai and Vanita, 2000; Tamale, 2011; Lennox and Waites, 2013; chapters in this volume).³⁷ Colonial laws contributed to discrimination and violence against people on the basis of SOGI and expression throughout the world.³⁸ Moreover, during the period of this research, neo-colonial and neoliberal forces, in conjunction with local political and religious-based forces, worked to expand existing laws and introduce new forms of criminalisation of sexual and gender identities and expression.³⁹

Envisioning developed an interdisciplinary research methodology, drawing on theory and literature from sociolegal studies, sociology, history, and gender and sexuality studies. Although research was undertaken in multiple sites, the study was not comparative. As conditions in each country are historically produced and geographically specific, a qualitative study probing the antecedents to laws criminalising LGBT people and civil society responses to them must be tailored to each site. The work required sensitivity to cultural differences and a critical stance towards the imposition of Western definitions that fail to engage with the diverse practices and understandings of SOGI in the Global South. This was particularly important given that those opposing LGBT rights in the Global South often appeal to nationalist and anticolonial histories, arguing that homosexuality is a Western import which is contrary to their values.

Setting up the partnership also required a response to structural inequality that would facilitate and encourage equal participation. A number of critiques of North-South partnerships note that imbalances of power and differences of perception consistently undermine initiatives to involve intended beneficiaries and thus fail to generate locally appropriate knowledge (Cooke and Kothari, 2001). Considering imbalances of power from the vantage point of a colonised indigenous Australian, Linda Tuhiwai Smith (1999) speaks eloquently to the challenges of research in a context of structures of inequity and power imbalance:

The term ‘research’ is inextricably linked to European imperialism and colonialism. The word itself … is probably one of the dirtiest words in the indigenous world’s vocabulary. When mentioned in many indigenous contexts, it stirs up silence, it conjures up bad memories, it raises a smile that is knowing and distrustful (p. 1).

Ugandan law professor Sylvia Tamale (2011) points to unequal relationships in research where it was assumed that only the researcher ‘can create legitimate, scholarly knowledge’ and that those being investigated were ‘naive subjects’ (p. 13). In particular, with regard to studies on sexuality, Tamale writes, ‘Nowhere were assumptions regarding the “knower”, the known, and the “knowable” more taken for granted than in sexuality research conducted on colonised populations such as those found in Africa’ (ibid.).

Furthermore, the conditions faced by Global South LGBT organisations, human rights defenders and researchers were particularly difficult. A 2009 Human Rights Watch report found that, ‘Global South LGBT organisations are under-resourced and severely isolated’; and ‘individual LGBT people and activists face extraordinary levels of abuse, rights violations and violence’ (pp. 2−5). The report recommended that ‘building better networks for support and communication is crucial’ (ibid.). In this context the first challenge Envisioning faced was to develop ways of addressing structural inequality and isolation to support the full and equal participation of Global South partners.

Envisioning aimed to address these challenges, a process that required ongoing monitoring and assessment. It took two years of consultation and travel to build a research team and incorporate partner insights and goals into Envisioning’s design. That process enriched and clarified the methodology, built relationships, and developed a basis for genuine collaboration. Partners contributed to the development of Envisioning’s goals, were signatories on the funding applications, and were directly involved in defining and developing the research and − once Envisioning was underway − in the co-production of knowledge. Envisioning provided funding to support community partner staff time and to create and support research and participatory video staff positions. It also provided resources, equipment, travel and capacity enhancement to Global South community partners. Envisioning’s governance structure consisted of five research teams (Africa, Caribbean, India, Canada, and law and human rights mechanisms – the latter provided technical advice to the regionally based teams). An executive team, composed of the principal investigator, the chairs of each research team, and a knowledge mobilisation coordinator, guided the work of the project overall. This structure fostered participation by partners and members from all the regions involved through regular team meetings, sharing of resources, discussion and assessment of changing conditions and developments, and collective decision-making.

In practice, the concept ‘nothing about us without us’⁴⁰ guided our work. We recognised that, only through Global South partners leading the research in their local area, would Envisioning produce outcomes both appropriate and useful to those particular regions. Through foregrounding the voices of Global South partners, researchers and activists, Envisioning sought to mediate against dominant discourses from the West. Sharing resources and knowledge helped to overcome isolation, strengthen capacity and increase our opportunities to learn from each other through South-South and North-South exchange. During its first year, Envisioning’s executive team developed guiding principles that all research team members reviewed and voted upon. These codes committed Envisioning to an integrated anti-oppression analysis and a critical perspective on globalisation and neoliberalism and, in keeping with its community-based collaborative principles, they encouraged co-authorship by university and community team members. The document also affirmed an expanded definition of authorship beyond formal academic criteria, in order to acknowledge community-based experience as a contribution to authorship, and it called upon research team members to ‘respect and appropriately acknowledge the contribution of interviewees to authorship’ (Envisioning, 2011, p. 3).

This anthology therefore names and acknowledges, where possible, interview participants’ contributions and insights.⁴¹ However, where disclosure of their identity could place a person at risk, they are referred to as ‘anonymous’.

Envisioning drew on multi-methods including qualitative interviews, focus groups and participatory documentary, informed by participatory action research (PAR) (Hall, 1979; Kondrat and Julia, 1997; Smith, 1997). The latter builds the development and application of the findings into educative materials to inform public policy and actions, as defined by those who took part (Rutman et al., 2005). Envisioning took a proactive approach, not merely for the sake of knowledge development, but also to apply community development theory to research, a process that merges into practice by benefiting affected participants (St Denis, 2004) and one which arises from the perspective that research has a responsibility to contribute to social knowledge and to effect social change (Lather, 1986). Envisioning merged community-based and academic-based participants in order to produce results that would benefit the particular group around which the investigations were based (Reitsma-Street and Brown, 2004). For more on Envisioning’s methodology see Nicol et al. (2014).

Working with Global South partners, Envisioning used participatory documentary extensively in combination with PAR. Through these means and through capacity enhancement, Envisioning worked with community partners to develop research, documentation skills and community-based authorship which would translate first-hand experiences into effective interventions. The data collected contributed significantly to that goal and to a better understanding of the issues affecting LGBT people. The participatory approach also enhanced partner outreach and strengthened community engagement, resulting in outcomes useful to the partners for public awareness and knowledge mobilisation.

Envisioning supported regional and international meetings in Kenya, Saint Lucia, Jamaica and Canada, to facilitate exchange and collaboration. The first of these conferences was the International Dialogue and Training on LGBT Human Rights: Focus on Strengthening the Caribbean Response. Held in Saint Lucia in 2012, it was co-organised by ARC International and United and Strong (Saint Lucia). The dialogue brought together 60 participants from the Caribbean, India, Asia/Pacific, Africa, Europe, the USA and Canada to discuss regional mobilising, international human rights mechanisms, legal and community organising strategies, human rights violations and documentation.⁴² In 2014, in conjunction with World Pride in Toronto, Envisioning brought international research team members together. It contributed five panel presentations involving participants from Africa, Canada, the Caribbean and India, at the World Pride Human Rights Conference, University of Toronto, and mounted an exhibition of photography and participatory documentary at the Canadian Lesbian and Gay Archives.⁴³ Over the lifetime of the project, Envisioning supported research team members from all the regions involved to take part in domestic and international conferences in the areas of law; social-legal studies; women, gender and sexuality studies; LGBT histories of organising; and asylum, immigration and refugee issues. These efforts contributed significantly to knowledge exchange and collaboration across the team.

Figure 5. United and Strong participatory documentary team, International Dialogue, Saint Lucia, 5 February 2012. Left to right: Kenita Placide (research), Nancy Nicol (Envisioning principal investigator), Avellina Stacy Nelson (videography), Yoon Jin Jung (MFA, York University), Montgomry Dalton (videography), and seated: Bary Hunte (videography). Photo credit: Envisioning Global LGBT Human Rights.

Gathering information on sexuality and gender diversity is highly challenging, complicated by prejudice, violence, fear, shame, trauma, exclusion, isolation, poverty and racism, as well as the fact that to talk about sex is taboo in many cultures. Complicating matters further, local or national discourse or animus with regard to religious, cultural or ethnic minorities also limited partners’ and researchers’ ability to gain access to populations in working class, impoverished or rural areas. A number of community researchers made groundbreaking efforts to travel to different parts of their country to gather data and reach out to new populations.

Throughout the period of the investigations, researchers and partners in the Global South were working under conditions of criminalisation and discrimination that impacted their organisations and everyone involved. Global South partners and researchers were often forced to negotiate between constraints and societal openings to conduct their work. The safety and security of team members and of participants was a priority that required an ongoing response. In Canada, Envisioning partners working with LGBT asylum seekers were experiencing stresses due to fiscal restraint and decreased funding, coupled with significant changes to refugee and immigration policy in Canada under the then Conservative government (Envisioning, 2015).

Figure 6. Envisioning Global LGBT Human Rights research team, World Pride, Toronto, Canada, 29 June 2014. Photo credit: Envisioning Global LGBT Human Rights.

Conclusion

Envisioning built a collaborative partnership with leadership and involvement from grassroots and international groups, bringing together diverse experiences and contexts. Despite many challenges, a high level of engagement by partners, community researchers and participants was evident over the project’s lifetime. Envisioning produced a significant body of research outcomes, including this anthology, which represents a culmination of our work together.

I hope that our work will contribute to awareness and knowledge on SOGI issues and to supporting efforts to advance human rights and social justice. However, drawing on some insights in this anthology, it is clear that more research and analysis is required that will address SOGI issues, while at the same time working to analyse and support intersectional approaches that connect SOGI concerns together and alongside of issues of inequality, racism and exploitation in relation to the broader economic and political impact of global capitalism. More resources are needed to aid the work of human rights defenders in the Global South and to facilitate exchange. And more education is needed to raise awareness of the discrimination that LGBT people face and to acknowledge the tremendous courage and resilience of defenders in the Global South, and well as their leadership and contribution to the worldwide struggle to advance social justice and human rights.

We confront a global system that is in crisis: environmental crisis, economic crisis, refugee crisis. International dialogue and organisation is essential to confront threats to human rights and social justice. Partnerships that incorporate a critical examination of neoliberalism and global capitalist relations are best positioned to expose the workings of the systems that contribute to inequality and exploitation, and thereby to work more effectively to advance social justice and change. The challenges we face are significant, but if we aspire to building a more inclusive world, we must work hard and keep hope alive.

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Tabengwa, M. with N. Nicol (2013) ‘The development of sexual rights and the LGBT movement in Botswana’, in C. Lennox and M. Waites (eds.) Human Rights, Sexual Orientation and Gender Identity in the Commonwealth, Struggles for Decriminalisation and Change (London: Human Rights Consortium, Institute of Commonwealth Studies).

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Documentary films

A Short Film on Kenyan LGBTI Stories (2012) dir. I. Reid, C. Kaara and J. Muthuri (Kenya and Canada: Gay and Lesbian Coalition of Kenya and Envisioning Global LGBT Human Rights), available at: https://vimeo.com/73786260.

And Still We Rise (2015) dir. R. Lusimbo and N. Nicol (Uganda and Canada: Sexual Minorities Uganda and Envisioning Global LGBT Human Rights, available at: https://vimeo.com/178217397.

Botho: LGBT lives in Botswana (2013) dir. N. Nicol (Botswana and Canada: Lesbians, Gays and Bisexuals of Botswana and Envisioning Global LGBT Human Rights), available at: https://vimeo.com/69577157.

IDAHO (2012) dir. N. Nicol (Kenya and Canada: Gay and Lesbian Coalition of Kenya and Envisioning Global LGBT Human Rights), available at: available at: https://vimeo.com/46496713.

No Easy Walk to Freedom (2014) dir. N. Nicol (India and Canada: Naz Foundation (India) Trust, Naz Foundation International and Envisioning Global LGBT Human Rights), available at: https://vimeo.com/87912192. For information and trailer see: www.noeasywalktofreedom.com.

The Time Has Come (2013) dir. K. Vance, J. Fisher and S. Kara (Paris, Brasilia, New York, Nairobi, Kathmandu, Oslo, Geneva and Toronto: ARC International and Envisioning Global LGBT Human Rights), available at: http://vimeo.com/67796115.

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1 Note on terminology: the use of terms with regard to sexual orientation or gender identity (SOGI) and expression is complex, with historical, regional, cultural, class and activist implications. The terms lesbian, gay, bisexual, transgender (LGBT) and SOGI are adopted by many activists and human rights workers internationally, and were employed by the Envisioning research team. Our use of LGBT or SOGI is meant to be neither all-embracing nor exclusive. Envisioning researchers and partners also used ‘queer’, ‘sexual minorities’, and ‘LGBTI’ (lesbian, gay, bisexual, transgender, intersex) as well as other terms indigenous to members’ and partners’ language and region. As our research encompassed many international communities, we acknowledge that terminology differs from place to place or topic to topic. Different cultures and indigenous peoples worldwide use diverse descriptors that predate terms such as lesbian, gay, bisexual, transgender, and such naming often reflects differing concepts of identities and/or practices. Contributors to this anthology deploy a range of terminologies depending on their perspective, location and context.

2 Our study was limited to the GTA, which is Canada’s primary immigration and refugee destination, receiving two to three times as many immigrants as Montréal or Vancouver − the second and third Canadian destinations − according to Newbold and DeLuca (2007). Moreover, as Cooney (2007) states, Toronto is known to be the primary destination for LGBT newcomers to Canada.

3 Also explored in the Envisioning documentary No Easy Walk to Freedom (2014).

4 It should be noted that our use of the term ‘neo-colonialism’ runs counter to the way US-based evangelical Christian right bodies employ it. They label LGBT human rights supporters as ‘neo-colonialists’, contending that those who support LGBT rights are imposing sexual liberationist policies on Global South countries, thus positioning themselves in Africa as defenders of ‘African’ values, with the argument that homosexuality is ‘un-African’ (Kaoma, 2012; Van Zyl, 2011; Jjuuko and Tabengwa, ch. 2, this vol.; Mbaru et al., ch. 6, this vol.). US-based religious right groups make a similar argument in opposing LGBT rights in the Caribbean, purporting to defend ‘family values’ against the international ‘gay agenda’ (Southern Poverty Law Center, 2013; Orozco, ch. 9, this vol.). Such US-based groups have actively opposed SOGI rights in many Global South countries as well as at the UN (Human Rights Watch, 2017; Norwegian Agency for Development Cooperation, 2013).

5 The 11 Caricom nations are: Antigua and Barbuda, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, and Trinidad and Tobago.

6 For an excellent report on the use of vagrancy laws on LGBT and ITGNC communities, as well as sex workers, the poor and marginalised in Uganda see Jjuuko (2016b).

7 Commonly referred to as the cross-dressing law, Section 153 (1) (xlvii) of the Summary Jurisdiction (Offences) Act of Guyana was enacted in 1893 under the colonial administration.

8 Caleb Orozco v. attorney general of Belize, see: www.u-rap.org/web2/index.php/2015-09-29-00-40-03/orozco-v-attorney-general-of-belize (accessed 15 Feb. 2018).

9 The overall responsibility for the case rested with the University of West Indies Faculty of Law Rights Advocacy Project (U-RAP), see: http://u-rap.org/web2/index.php/2015-09-29-00-40-03/orozco-v-attorney-general-of-belize/item/2-caleb-orozco-v-attorney-general-of-belize-and-others (accessed 15 Feb. 2018). Lawyers for Orozco argued that the law contravenes his rights to protection of family life, personal privacy, and human dignity under s 3(c); equality and equal protection before the law under s 6(1); freedom of expression under s 14(1); privacy under s 14(1); and non-discrimination under s 16(1) of the Constitution of Belize.

10 Art. 76 criminalises ‘the abominable crime of buggery’ (anal intercourse) subject to being ‘imprisoned and kept to hard labour for a term not exceeding ten years.’ Art. 77 extends the scope of the law to cover any attempt to commit sodomy, subject to imprisonment ‘for a term not exceeding seven years, with or without hard labour.’ Art. 79 criminalises ‘any act of gross indecency with another male person’, subject to two years’ imprisonment with or without hard labour, see: http://jflag.org/?s=what+jamaican+law+says+about+homosexuality (accessed 15 Feb. 2018).

11 A.B., S.H. v. Jamaica P-1249-11.

12 Javed Jaghai v. attorney general of Jamaica, 2013 HCV 00650.

13 See http://jflag.org/javed-jaghai-withdraws-from-constitutional-challenge-to-anti-gay-laws/ (accessed 15 Feb. 2018).

14 Litigation against the criminal code provisions in Jamaica is ongoing. On 27 Nov. 2015, Jamaican lawyer Maurice Tomlinson filed a constitutional challenge to the anti-sodomy law, with the support of the Canadian HIV/AIDS Legal Network and AIDS-Free World.

15 During her talk, ‘Telling Our Stories: LGBT lives in the Caribbean − Guyana’, 27 Jun.

16 McEwan, Clarke, Fraser, Persaud and SASOD v. attorney general of Guyana.

17 For more information on the case, see: www.sasod.org.gy/sasod-blog-cross-dressing-appeal-case-judgment-2017 and www.u-rap.org/web2/index.php/2015-09-29-00-40-03/mcewan-others/item/1-mcewan-clarke-fraser-persaud-sasod-v-attorney-general-of-guyana (both accessed 10 Sep. 2017).

18 The case is immediately legally binding on Costa Rica, which brought the case, and on Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname and Uruguay.

19 In 2009 the Delhi High Court ruling in the case Naz Foundation v. Government of NCT of Delhi struck down Section 377 on constitutional grounds. The decision was appealed to the Supreme Court by a range of religious-based organisations and individuals. On 11 Dec. 2013, the Supreme Court ruling in Suresh Kumar Koushal and another v. Naz Foundation and others set aside the Delhi High Court ruling and re-instated Section 377, recriminalising same-sex intimacy in India.

20 The concept of constitutional morality was articulated by Dr B.R. Ambedkar, a leader of the Dalit movement in India, in his speech ‘The draft Constitution’, delivered on 4 Nov. 1948. In striking down Section 377 IPC, the High Court of Delhi drew on Ambedkar stating, ‘popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21. Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjective notions of right and wrong. If there is any type of ‘“morality” that can pass the test of compelling state interest, it must be “constitutional” morality and not public morality’, Naz Foundation v. Government of NCT of Delhi and others, WP(C) no.7455/2001: para 79, 2 Jul. 2009.

21 In the case, National Legal Services Authority v. Union of India.

22 Please see Narrain, ch. 1, for information about the hijra community in the Indian context.

23 Art. 136 of the Constitution of India, 1950, guarantees appeals to judgments passed by courts, including the apex court. The curative petition came into being after a 2002 case, where the Supreme Court may reconsider its judgment/order in order to ‘cure gross miscarriage of justice’. See www.firstpost.com/india/rainbow-at-the-end-of-the-tunnel-curative-petition-on-section-377-a-last-legal-remedy-to-toss-draconian-law-out-2605384.html (accessed 15 Feb. 2018).

24 For a summary of the grounds of the curative petition see: Briefing Paper: The Section 377 Curative Petition, International Commission of Jurists, ICJ 2016, available at: http://orinam.net/377/wp-content/uploads/2016/03/India-QA-art-377-Advocacy-Analysis-brief-2016-ENG.pdf (accessed 15 Feb. 2018).

25 Justice K.S. Puttaswamy (retd.) and ANR v. Union of India and ORS, Judgment 24 Aug. 2017, para. 126.

26 Thirty-two countries across Africa have laws that criminalise same-sex intimacy, with a variety of punishments ranging from small fines to lengthy prison sentences and, in some jurisdictions, the death penalty (Carroll and Mendos, 2017).

27 Same-Sex Marriage (Prohibition) Act, Nigeria, 2013, see: www.placng.org/new/laws/Same%20Sex%20Marriage%20(Prohibition)%20Act,%202013.pdf (accessed 15 Feb. 2018).

28 Thuto Rammoge and others v. attorney general of Botswana. MAHGB-000 175-13.

29 Eric Gitari v. Non-Governmental Organisations Co-ordination Board and four others, 2015, eKLR (accessed 6 Nov. 2017).

30 Jacqueline Kasha Nabagesera, Frank Mugisha, Julian Pepe Onziema, Geofrey Ogwaro v. attorney general and Rev. Fr. Simon Lokodo, see: https://globalfreedomofexpression.columbia.edu/wp-content/uploads/2015/06/Judgment.pdf (accessed 24 Oct. 2017).

31 The Criminal Code law in Mozambique was a hangover from Portuguese colonial laws and had not been enforced since independence in 1975.

32 Egypt (1937), Jordan (1962), Iraq (1969), Iran (1986), Kuwait (1960) Lebanon (1943), Libya (1953), Morocco (1962), Qatar (2004), Saudi Arabia (2001), Somalia (1964), Tanzania (1981), Tunisia (1913), Syria (1948) (Carroll and Mendos, 2017, pp. 41−2).

33 For more see Jjuuko (2016a).

34 The Yogyakarta Principles address a broad range of international human rights standards and their application to SOGI issues. On 10 Nov. 2017 a panel of experts published additional principles expanding on the original document reflecting developments in international human rights law and practice since the 2006 Principles, The Yogyakarta Principles plus 10. The new document also contains 111 ‘additional state obligations’, related to areas such as torture, asylum, privacy, health and the protection of human rights defenders. The full text of the Yogyakarta Principles and the Yogyakarta Principles plus 10 are available at: www.yogyakartaprinciples.org (accessed 20 Nov. 2017). For more information see Narrain (2016).

35 The independent expert’s report on ‘Protection against violence and discrimination based on sexual orientation and gender identity’, seventy-second session is available at: https://static1.squarespace.com/static/55098723e4b011797c300d41/t/59f1f4b47131a528acd740a8/1509029045468/IE+2nd+report.pdf (accessed 20 Feb. 2018)).

36 M. Kareithi, 17 May 2012, in the documentary IDAHO (2012).

37 Also expressed by Saleem Kidwai when interviewed on 16 Nov. 2011 by Nancy Nicol for the documentary, No Easy Walk to Freedom (2014).

38 Legal terminology differs in different countries and is complex to interpret. Most criminal code laws do not mention ‘homosexuality’. Criminal codes may refer to: ‘sodomy’, ‘buggery’, ‘the habitual practice of debauchery’, ‘indecency’, ‘carnal intercourse against the order of nature’, or ‘unnatural touching’. Moreover, laws are interpreted through domestic jurisprudence in complex ways. In some jurisdictions laws are unenforced, yet calls for their removal are resisted. In many different jurisdictions, our study found that formal charges were often not laid, but the existence of criminal code provisions led to incidents of police intimidation, extortion, entrapment, imprisonment without trial, and custodial violence and rape.

39 See Jjuuko and Tabengwa, ch. 2.

40 From the Latin Nihil de nobis, sine nobis, this is a concept with a long and complex history but, coupled with the goals of participatory action research, we essentially understood that no research, representation or outcome from Envisioning should be done without the full and direct involvement and consent of members of the group being investigated.

41 All participants gave verbal and written informed consents. The intended use of the research data was explained to everyone taking part. Consent forms were translated into local languages or translated verbally on site.

42 For more information see the final report at: http://arc-international.net/strengthening-capacity/international-dialogues (accessed 21 Feb. 2018).

43 As part of the exhibition, Imaging Home: Resistance, Migration, Contradiction. See https://clga.ca/past-exhibitions/imaging-home-resistance-migration-contradiction/ (accessed 21 Feb. 2018). Video documentation of the exhibition may be found at: http://envisioning-tellingourstories.blogspot.com.