Courts, the Law, and LGBT Rights in Asia
Courts, the Law, and LGBT Rights in Asia
- Holning LauHolning LauSchool of Law, University of North Carolina at Chapel Hill
Courts have played an integral part in advancing the rights of lesbian, gay, bisexual, and transgender (LGBT) communities in many parts of Asia. Yet courts in other parts of Asia have entrenched LGBT subordination. A vast expanse separates Asia’s most progressive LGBT judicial decisions from the most oppressive. This divergence stems from various factors, including differences among Asian courts’ judicial philosophies and cultural backdrops.
Judicial developments in Asia have disrupted conventional narratives in Anglophone literature about LGBT rights. Conventional wisdom says there is a standard sequence for developing LGBT rights. It is commonly believed that countries will protect sexual orientation rights before gender identity rights; that they will legislate against discrimination before legalizing same-sex marriage; and that legal protections of LGBT rights begin in the West, and then the rest of the world subsequently imports these legal constructs. Developments in Asia have, however, challenged these narratives.
While many Asian courts have galvanized reforms to protect LGBT rights, it is important to remember that these courts are nonetheless constrained in their ability to effectuate change. Case studies from Asia demonstrate that protecting LGBT rights often requires political branches of government to cooperate with courts. Political actors may resist implementing court-ordered reforms, especially if public opinion does not support the reforms.
- Politics, Law, Judiciary
Courts have played an integral part in advancing the rights of lesbian, gay, bisexual, and transgender (LGBT) communities in many parts of Asia. For example, Taiwan’s highest court ruled in 2017 that it was unconstitutional to exclude same-sex couples from marriage (J. Y. Interpretation No. 748, 2017). As a result, in 2019, Taiwan became the first jurisdiction in Asia to legalize same-sex marriage (Kuo, 2019). Among judicial decisions from Asia, Taiwan’s marriage ruling has gone the furthest in affirming same-sex relationships, but it is not alone in vindicating the rights of gay men, lesbians, and bisexuals. Courts in Asia have also advanced transgender rights. For example, building on earlier cases from Nepal and Pakistan, the Indian Supreme Court stated in National Legal Services Authority (NALSA) v. Union of India (2014) that transgender persons have a right to select gender markers on identity documents based on self-determination. The judgment also directed the government to implement affirmative action programs to support transgender communities. NALSA (2014) broke new ground, not only for Asia but for the world.
While LGBT rights advocates have celebrated these court victories, litigation to advance LGBT rights has failed in other parts of Asia. Indeed, courts in some parts of Asia have entrenched LGBT subordination. A vast expanse separates Asia’s most progressive judicial decisions from the most oppressive. The landscape of judicial decisions is further complicated by the fact that it continues to change rapidly. This article examines this mixed and quickly changing landscape of judicial developments concerning LGBT rights in Asia.
This article starts by providing an overview of the divergent roles that Asian courts have played with respect to LGBT rights (see “Divergence Within Asia”). It then highlights—and offers preliminary answers to—three questions prompted by the judicial development of LGBT rights in Asia: (a) What factors have contributed to the divergence among Asian jurisdictions (see “Factors Contributing to Divergence”)? (b) How should developments in Asia inform existing narratives about the development of LGBT rights (see “Challenging Conventional Narratives”)? (c) How do politics and public opinion affect courts’ ability to advance LGBT rights in Asia (see “Popular and Political Constraints on Courts”)?
Divergence Within Asia
Commentators sometimes treat Asia as though it were a monolithic region, but Asian courts’ positions on LGBT rights belie this reductionist portrayal. An appreciation of the divergence among Asian courts is important to understanding the region. This section of the article highlights developments that illustrate this divergence. This section will first address both ends of the spectrum. It will discuss some of the most conservative judicial developments (see “Entrenchment of Subordination”), and then it will draw a stark contrast by discussing some of the most progressive judicial developments (see “Forefront of Reform”). The section will then close by discussing a few jurisdictions that fall between both ends of the spectrum (see “Middle of the Road”).
Entrenchment of Subordination
Many commentators view decriminalizing same-sex sexual intimacy and decriminalizing non-normative gender expression to be important precursors to achieving further LGBT rights (e.g., Eskridge, 2000). Some courts in Asia have reinforced the subordination of LGBT communities by upholding such criminal prohibitions against constitutional challenges. For example, in Lim Meng Suang v. Attorney-General (2014), Singapore’s highest court entrenched antigay bias by upholding Section 377A of Singapore’s Penal Code, which criminalizes sexual intimacy between men. The court dealt a setback to LGBT rights by rejecting arguments that Section 377A violated constitutional guarantees of privacy and equality. Although Singapore has only enforced Section 377A occasionally in recent years, the preservation of this criminal provision is a gesture that condones antigay prejudices.
In some parts of Asia, criminal prohibitions of same-sex sexual activity do not only remain on the books; courts have played a role in enforcing the prohibitions through extreme violence. For example, since 2017, Islamic courts in Aceh, Indonesia, have punished men for having gay sex by subjecting them to public canings (Human Rights Watch, 2018). Likewise, in 2018, an Islamic court in Terengganu, Malaysia, sentenced two women to public caning because they attempted to have sex with each other (Ramzy, 2018).
Malaysia also provides an example regarding gender expression. In 2015, Malaysia’s highest court—the Federal Court—rejected three transgender women’s constitutional challenge to a criminal ban on cross-dressing.1 The Court of Appeal in Malaysia had ruled that the criminal provision violated constitutional rights (Muhamad Juzaili bin Mohd Khamis v. State Government of Negeri Sembilan, 2015). The Federal Court, however, ultimately dismissed the applicants’ challenge on procedural grounds (State Government of Negeri Sembilan v. Muhammad Juzaili Mohd Khamis, 2015).
Forefront of Reform
In striking contrast to the courts discussed above in “Entrenchment of Subordination,” other courts in Asia have taken big strides to protect LGBT rights. Judgments from the highest courts of Taiwan, Hong Kong, India, and Nepal exemplify this divergence. As mentioned earlier, the Taiwan Constitutional Court (TCC) ruled in favor of same-sex marriage. It directed Taiwan’s legislature, the Legislative Yuan, to legalize same-sex marriage by 2019 (J. Y. Interpretation No. 748, 2017). The TCC stated that if the legislature were to fail at passing relevant legislation within two years, same-sex marriage would become legal automatically. The TCC’s judgment is a stark contrast to the Singapore Supreme Court’s decision to uphold the criminalization of sexual intimacy between men. Far from calling same-sex sexual activity criminal, the TCC affirmed the dignity of same-sex couples by affording them the legal recognition and protection that marriage engenders.
The TCC’s same-sex marriage decision is remarkably progressive, not only because it resulted in Taiwan becoming the first Asian jurisdiction to legalize same-sex marriage, but also because of the decision’s reasoning. The equality clause in Taiwan’s constitution explicitly lists sex, religion, race, class, and party affiliation as protected categories. Although the constitution does not explicitly mention sexual orientation, the TCC reasoned that the constitutional text’s list of protected categories is not exhaustive, and that sexual orientation is protected as well. Accordingly, the TCC declared that governmental discrimination based on sexual orientation must satisfy “heightened scrutiny.” This legal test makes it extremely difficult for the government to justify treating people differently based on sexual orientation. The TCC concluded that the exclusion of same-sex couples from marriage could not satisfy heightened scrutiny.
The U.S. Supreme Court serves as a foil that illuminates the TCC’s progressiveness. Although the U.S. Supreme Court legalized same-sex marriage in Obergefell v. Hodges (2015), some commentators fault that decision for not going far enough because it did not declare sexual orientation to be a protected category that triggers heightened scrutiny (e.g., Nicolas, 2015). Had the U.S. Supreme Court done so, it would have established a stronger legal precedent for combatting sexual orientation discrimination in future litigation.
Hong Kong’s highest court has also ruled in favor of legally recognizing same-sex relationships, but under limited circumstances. In Q. T. v. Director of Immigration (2018), the Hong Kong Court of Final Appeal (HKCFA) held that a same-sex couple who registered as domestic partners abroad must be extended immigration-visa rights that were previously limited to different-sex couples. In Leung Chun Kwong v. Secretary for the Civil Service (2019), the HKCFA ruled that the government must recognize a same-sex couple’s marriage abroad for the purposes of civil-servant spousal benefits and joint tax-filing status. These decisions add to a long list of cases in which Hong Kong’s courts have advanced sexual orientation rights, including cases concerning inequalities under criminal law and a case that rejected antigay bias in media regulation (Loper, 2019; Petersen, 2013; Wan, forthcoming). In cases that are still pending in Hong Kong, applicants are seeking full marital rights for same-sex couples.2
Hong Kong’s constitutional documents do not explicitly mention sexual orientation. However, like the TCC, the HKCFA has declared that sexual orientation discrimination warrants the same rigorous judicial review that applies to discrimination based on race, sex, and other protected categories (Secretary for Justice v. Yau Yuk Lung Zigo, 2007).
Although the apex courts of Taiwan and Hong Kong are among Asia’s most rights-protective regarding sexual orientation, they have not been at the forefront of protecting transgender rights. The TCC has yet to hear a case directly concerning transgender issues. Meanwhile, the HKCFA advanced transgender rights in W. v. Registrar of Marriages (2013), but its ruling was much more modest than was India’s NALSA (2014) decision. Pursuant to the constitutional right to marry, the HKCFA ruled that a transgender woman is entitled to be recognized as a woman for marriage purposes (Tso, 2015). The HKCFA gave Hong Kong’s Legislative Council (LegCo) one year to enact legislation to stipulate the criteria that transgender persons must satisfy, and the process that they must undertake, to be recognized in their current sex for marriage purposes. The legislature, however, failed to act. As a result, Hong Kong defaulted to requiring that transgender people complete so-called “full” sex-reassignment surgery, including sterilization (Yap, forthcoming). This surgical requirement contradicts the position, taken by other courts and human rights experts, that a surgical requirement is too onerous and violates human rights (Lau, 2020).3
Unlike W (2013), the main judicial opinion in NALSA (2014) stated that surgery cannot be required. Indeed, when it was decided, NALSA (2014) was at the forefront of advancing transgender rights. It was deeply progressive in at least four regards. First, the Indian Supreme Court stated that individuals have a constitutional right to determine how to classify their own sex and gender, and this right is not contingent on any medical treatment.4 The court thus supported the self-determination model of gender identity.5 Second, the court ruled that individuals are entitled to be recognized in a third sex category if they do not self-identify within the male-female binary. Third, the court stated that gender identity discrimination is a form of sex discrimination that is encompassed by the constitution’s explicit prohibition of sex discrimination. Fourth, the court directed the government of India to devise reforms to address social inequalities suffered by transgender communities, such as affirmative action in education, measures for providing healthcare, and social-welfare programs. In this regard, the court sought to advance the substantive equality of transgender communities, not just formal equality. Although implementation of the NALSA (2014) decision has been slow and frustrating to many, NALSA (2014) was indeed groundbreaking.
India has not been a frontrunner with respect to sexual orientation rights. Several months prior to deciding NALSA (2014), the Supreme Court of India rejected a constitutional challenge to Section 377 of India’s criminal code, which criminalized same-sex sexual intimacy, among other sexual acts (Suresh Kumar Koushal v. Naz Foundation, 2014, decided in 2013). It was not until the case of Navtej Singh Johar v. Union of India (2018) that the Supreme Court overturned the 2013 decision and deemed Section 377 unconstitutional to the extent that it prohibited consensual sex between adults of the same sex. Although decriminalizing same-sex sexual conduct in the year 2018 does not position India as a frontrunner in Asia, the Navtej Singh Johar (2018) decision is remarkable in other regards. For example, the judgment—consisting of four concurring opinions adding up to nearly 500 pages—is incredibly comprehensive and contains soaring passages about LGBT persons’ rights to privacy, equality, expression, and dignity (Narrain, 2018).
India’s NALSA (2014) judgment built on earlier court cases from around the world, including cases from Pakistan and Nepal that had recognized constitutional rights to nonbinary gender recognition (Dickson & Sanders, 2013). The case of Sunil Pant v. Nepal (2007), decided by the Nepal Supreme Court, was itself groundbreaking. The court stated that individuals have a right to be recognized as a third gender based on “self-feeling” (pp. 280–282). In response, the government eventually added a third-gender category to government-issued identity documents. Nepal became the first country in the world to include a third-gender category on its national census (Editorial: How did Nepal 2017). The court also called on Nepal to identify and abolish all laws that discriminate against lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons, and it directed the government to form a commission to study the possibility of legalizing same-sex marriage. The Pant (2007) opinion, however, was unclear about whether individuals have a constitutional right to change their legal gender from male to female, or vice versa, instead of opting for the third gender category.
Although Pakistan’s Supreme Court has also recognized the constitutional right to nonbinary gender recognition, its jurisprudence is less progressive than that of India and Nepal because it is not grounded in a self-determination model of gender identity. While the Supreme Court has recognized the rights of nonbinary individuals, it has also pathologized nonbinary gender. The court has stated that third-gender individuals suffer from gender disorder, and it instructed government authorities to use medical tests, based on hormones and other factors, to identify nonbinary persons (Redding, 2015). Subsequently, however, Pakistan enacted legislation that allows adults to identify as male, female, or a nonbinary gender based on self-perception instead of medical evidence (Hashim, 2018; Redding, 2019).
Middle of the Road
This article has thus far examined two ends of the spectrum from conservative to progressive. Having discussed these two ends, it is worth acknowledging that many Asian jurisdictions lie somewhere in between. South Korea, the Philippines, and Japan are examples of jurisdictions that occupy this in-between space. Court decisions in these countries have advanced LGBT rights, but not to the greater extent of the progressive jurisdictions discussed earlier (see “Forefront of Reform”); some courts in these jurisdictions have also produced setbacks for LGBT rights.
South Korea does not maintain any outright ban on same-sex sexual activity, but it does criminalize same-sex sexual conduct involving military personnel. On three separate occasions, the Constitutional Court of Korea has upheld such criminal prohibitions: in 2002, 2011, and 2016. The 2016 case concerned a male service member who touched another male service member’s genitals, which violated a ban on “indecent conduct,” including consensual activity (In re Constitutional Complaint against Article 92–5, 2016; Knight, 2017). The KCC said that the criminal provision was not unconstitutionally vague and did not excessively impinge upon gay service members’ rights to sexual self-determination, privacy, physical freedom, or equality. In its analysis of equality, the court applied a legal standard that is deferential to the legislature, echoing its 2011 decision, which stated that sexual orientation discrimination does not require the same level of judicial scrutiny as discrimination based on sex, religion, or social status (Cho, 2016).6
Although these cases in the military context are setbacks for LGBT rights, Korean courts have protected LGBT rights in other domains. For example, in 2017, the Supreme Court of Korea affirmed the right of an LGBT organization named Beyond the Rainbow to register with the Ministry of Justice as a charitable organization (In re Rejection of Organization Registration, 2017).7 In 2013, the Supreme Court rejected the appeal of a lower-court ruling that the Korea Media Rating Board was impermissibly biased against a gay film (In re Screening of Movie “Just Friends?,” 2013). In 2006, the Supreme Court held that transgender individuals who have undergone genital surgery have a right to change their gender in Korea’s Family Registry (In re Change of Name and Correction of Family Register, 2006). Subsequently, the Seoul Western District Court ruled that genital surgery is not necessary for changing one’s gender designation in the Family Registry (Um & Park, 2013).8
The Philippines has also had successful LGBT rights litigation, but it has not been at the vanguard of change. In 2010, the Supreme Court of the Philippines held that the Philippines Elections Commission violated rights to expression, association, and equality when it denied accreditation to Ang Ladlad (Out of the Closet), a political party formed by individuals who openly identified as LGBT. The court said that the denial could not even satisfy a “rational basis” review that is deferential to the legislature (Ang Ladlad LGBT Party v. Commission on Elections, 2010). The decision dodged the question of whether sexual orientation discrimination could ever trigger the more rigorous judicial scrutiny that applies to other grounds of discrimination, such as race and sex. In 2019, the Supreme Court dodged another major question by dismissing a same-sex marriage case on procedural grounds; this decision allowed the court to avoid ruling on whether excluding same-sex couples from marriage is unconstitutional (Zaugg, 2019).
On transgender rights, the Philippines Supreme Court delivered a setback in 2007. It ruled that neither the civil code nor principles of equity provided a postoperative transwoman the right to change her first name and modify her birth certificate to comport with her gender identity (Silverio v. Republic of the Philippines, 2007). The court did not consider any constitutional arguments. Interestingly, in a subsequent case, the Supreme Court ruled that an intersex individual had the right to change her gender markers from female to male because the individual experienced physiological changes from “simply let[ting] nature take its course” (Republic of the Philippines v. Jennifer Cagandahan, 2008). The court thus distinguished the intersex applicant from transgender individuals whom the court considers to have transitioned unnaturally through elective surgery (United Nations Development Programme [UNDP] & Commission on Human Rights of the Philippines, 2018).
Japan is yet another example of modest judicial protection of LGBT rights. Japan’s Supreme Court has long had a reputation for being reluctant to declare laws and government actions to be unconstitutional, although that has begun to change (Matsui, forthcoming). Accordingly, it is perhaps unsurprising that the Supreme Court’s only ruling on constitutional law concerning LGBT rights disappointed the LGBT community; it rejected a constitutional challenge to Japan’s sterilization requirement for transgender gender recognition (Yamaguchi, 2019).9 Still, there have been some judicial victories for LGBT rights. For example, in a widely cited case from 1997, the Tokyo High Court held that the local government violated rights to free association, equality, and education when it prohibited an LGBT youth group from staying at a government-owned hostel (In re Futyu Hostel, 1997). More recently, the Tokyo High Court ruled that a golf course had impermissibly discriminated against a postoperative transwoman by rejecting her membership application (X. v. Y., 2015). In light of the nondiscrimination norms in the Japanese Constitution and the International Covenant on Civil and Political Rights, the court held that the golf course committed a tortious act.
In 2013, the Supreme Court also ruled to protect a postoperative transman’s right to be recognized as a parent of a child born to his wife (Saikō Saibansyo, 2013). This ruling was, however, based on the enforcement of Japan’s gender recognition law, which has been criticized for placing overly stringent criteria on transgender persons who seek to change their legal gender listed on government identity documents (Human Rights Watch, 2016). These criteria include the sterilization requirement that the Supreme Court upheld in 2019.
It is worth noting that in both the Philippines and Japan, there has been progress protecting LGBT rights outside of the courts. For example, the city of Tokyo and numerous local government entities in the Philippines have passed legislation to prohibit discrimination based on sexual orientation and, in some cases, gender identity (Manalastas, n.d.; Osumi, 2018). In addition, several ward governments in Tokyo and several city governments in Japan now offer limited recognition of same-sex unions in the form of partnership certificates (Amnesty International, 2017). These developments serve as reminders that law reforms to protect LGBT rights are not always rooted in judicial action.10
Factors Contributing to the Divergence
The divergence among courts in Asia prompts the question: what animates this divergence? This section of the article offers some preliminary observations about a few factors that help to explain the divergence among Asian apex courts, specifically with respect to their consideration of LGBT constitutional rights.11 Some patterns exist that may not be readily apparent to observers who are not familiar with Asian courts. The outcomes in constitutional cases have been shaped in large part by courts’ overarching philosophies about judicial review and globalization. In this sense, constitutional adjudication on LGBT rights has been a mirror that reflects court dynamics that are not specific to LGBT issues.
Both Taiwan and Hong Kong are leaders in Asia with respect to judicial protection of same-sex couple rights (see “Forefront of Reform”). Prior to deciding cases concerning sexual orientation discrimination, these jurisdictions had already developed robust judicial review (Law, 2015). Their courts had significant experience with striking down laws. They had chosen not to always defer to the other branches of government. Considering Taiwan’s and Hong Kong’s history of robust judicial review, their apex courts were well positioned to declare that sexual orientation is a protected category that triggers rigorous judicial review, ultimately leading the courts to reject laws that disadvantaged same-sex couples.
We can contrast the apex courts of Hong Kong and Taiwan with that of Singapore, which upheld Section 377A, Singapore’s ban on sexual intimacy between men. Singapore serves as a paradigmatic example of weak judicial review. Indeed, constitutional scholar Po Jen Yap has called judicial review in Singapore “merely symbolic” (Yap, 2016, p. 438). Throughout its history, only once has the Supreme Court deemed legislation unconstitutional. Moreover, in that case, the decision to strike down the law was made by the Supreme Court’s High Court (lower division), and was eventually overturned by the Supreme Court’s Court of Appeal (upper division) (Taw Cheng Kong v. Public Prosecutor, 1998). In light of this history, it is not all that surprising that Singapore’s Supreme Court upheld Section 377A.
Although Singapore’s constitution establishes the judiciary as a coequal branch of government, judges still face pressure from Singapore’s ruling party to exercise great deference to the political branches of government (Yap, 2016). This is evident in the Court of Appeal’s opinion in the Section 377A case, Lim Meng Suang v. Attorney-General (2014). The opinion is peppered with dicta about the courts’ limited power and the importance of making sure courts do not become “mini-legislatures” (e.g., paras. 70, 77). The opinion also used a highly deferential legal standard to evaluate Section 377A (Lee, 2015, 2016; Neo, 2016). This deference contrasts with the rigorous judicial review in Hong Kong and Taiwan.12
Recall that India’s and Nepal’s apex courts were leaders in the domain of legal gender recognition. They are also known to be among the most activist courts in the world—sometimes criticized for overreaching into political matters (Malagodi, forthcoming; Sathe, 2003). They stand in contrast to Malaysia’s apex court—the Federal Court—which declined to strike down a ban on cross-dressing (see “Entrenchment of Subordination”). Unlike India and Nepal, Malaysia’s Federal Court is known to be extremely deferential to the political branches of government, although such deference may recede in coming years (Tew, forthcoming; Yap, 2016).
In addition to robustness of judicial review, judicial philosophy on globalization has also been a factor in apex court adjudication on LGBT rights. The highest courts of Taiwan, Hong Kong, India, and Nepal are all known to be receptive to foreign law as persuasive authorities when interpreting their own constitutions. The last three jurisdictions—Hong Kong, India, and Nepal—have substantial experience citing foreign law (e.g., Law, 2015; Malagodi, 2018; Thiruvengadam, 2013). Indeed, these three courts cited international and comparative law in their groundbreaking decisions on LGBT constitutional rights. Meanwhile, the TCC does not cite foreign law frequently because, following civil law tradition, the TCC cites very few sources overall. Nonetheless, the TCC’s justices regularly consult foreign law (Law, 2015). The TCC’s same-sex marriage judgment comports with the court’s willingness to draw inspiration from abroad. The opinion openly cites Obergefell v. Hodges (2015), the same-sex marriage case from the United States. Commentators have also noted similarities between the TCC’s decision and U.S. jurisprudence (Kuo & Chen, 2018).
We can contrast these examples with Singapore and Malaysia. Both jurisdictions have long displayed a reluctance to draw inspiration from abroad. In a series of cases, Singaporean courts adopted the “four walls doctrine” that was first articulated by Malaysian courts. This doctrine requires that the constitution be interpreted primarily “within its own four walls” instead of referring to comparative law (Chan Hiang Leng Colin v. Public Prosecutor, 1994, para. 51; Government of the State of Kelantan v. Federation of Malaya, 1963, p. 359). Commentators have suggested that the four walls doctrine has weakened over time in Singapore; nonetheless, Lim Meng Suang (2014) reflects Singapore’s reluctance to engage the large body of comparative and international law that calls sodomy bans into question (Thiruvengadam, 2016).
By the time Singapore’s Court of Appeal grappled with Lim Meng Suang (2014), countries around the world had already developed a large body of jurisprudence to support decriminalization of same-sex sexual conduct and to extend additional protections to sexual orientation minorities (Novak, 2018). To be sure, some exceptional cases have upheld criminal prohibition of same-sex sexual intimacy (e.g., Quansah, 2004), but most of the case law around the world supports decriminalization. In addition, United Nations treaty bodies have interpreted human rights treaties to require decriminalization, as have regional human rights bodies (Novak, 2018). Singapore’s Court of Appeal, however, chose hardly to engage these foreign and international developments. Lim Meng Suang (2014) summarily stated that foreign laws “should be approached with circumspection because they were decided in the context of their unique social, political and legal circumstances” (para. 48). The court failed to consider the possibility that similarities across jurisdictions might outweigh differences.
There is also a considerable body of comparative law that supports striking down bans on cross-dressing (International Commission of Jurists, 2011). Because Malaysia’s Federal Court dismissed its cross-dressing case on procedural grounds, it did not engage substantive law from foreign jurisdictions. It remains to be seen whether the Federal Court would engage foreign law if and when it hears a new case concerning the constitutionality of cross-dressing bans.
To be sure, other factors beyond philosophies of judicial review and globalization also influence outcomes in LGBT cases. For example, it is perhaps unsurprising that the courts of India and Nepal were pioneers in articulating a constitutional right to nonbinary gender recognition based on self-determination. Both India and Nepal have long cultural traditions of recognizing nonbinary gender (Knight, 2015; Nanda, 1996). As the Indian Supreme Court noted, the “historical background of Transgenders in India . . . [is such] that they were once treated with great respect, at least in the past, though not in the present” (NALSA v. Union of India, 2014, para. 44). In that spirit, Kyle Knight has explained that “the third-gender category’s legal battle [in Nepal] gained traction in part because it carried historical echoes of South Asia’s hijara culture” (Knight, 2015).
Cultural traditions alone, however, cannot explain the fragmentation of Asian jurisprudence. For example, there are many cultural similarities among Taiwan, Hong Kong, and Singapore. All three jurisdictions are home to predominantly ethnic Chinese populations with living standards of highly developed economies. In addition, public-opinion polling from 2017 suggests that only a minority of people in all three jurisdictions disagree with the statement “It is possible to respect my culture and be accepting of people who are romantically or sexually attracted to people of the same sex.” The percentages of the public disagreeing with that statement in Taiwan, Hong Kong, and Singapore were 17, 20, and 21%, respectively, according to the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA, 2017). Yet, the judicial development of same-sex couple rights has been remarkably different, with Taiwan and Hong Kong on one hand and Singapore on the other. Divergence in philosophies about judicial review and globalization helps to explain these contrasting outcomes.
Challenging Conventional Narratives
How do the judicial developments in Asia relate to existing narratives about the development of LGBT rights? This section offers several observations in response to this question.13 It explores three ways in which courts in Asia have challenged conventional narratives. First, Anglophone literature has presented and critiqued the fact that protections of gender identity rights lag behind protections of sexual orientation rights. (e.g., McGill, 2014; Minter, 2000–2001). However, certain parts of Asia, especially South Asia, present major aberrations to this description about the order in which rights become protected. For example, over a series of decisions, Pakistan’s Supreme Court ordered the government to recognize nonbinary gender and take affirmative steps to protect nonbinary persons in contexts including education, employment, law enforcement, and voting (Dickson & Sanders, 2013).14 Subsequently, Pakistan enacted legislation to recognize gender identity based on self-determination and to protect people against discrimination based on gender identity (Hashim, 2018). As Dickson and Sanders (2013) have observed, although Pakistan is at the forefront of protecting gender identity rights, “its society and legal institutions remain notably hostile toward homosexuality as such. Sodomy is still criminalized, and gay/lesbian groups operate in the shadows” (p. 341).
Gender identity rights also preceded sexual orientation rights in India. In 2014, the Indian Supreme Court handed down its sweeping NALSA (2014) ruling on transgender rights; however, several months earlier, the Supreme Court rejected a constitutional challenge to India’s criminalization of same-sex sexual conduct. It was not until 2018 that the Indian Supreme Court struck down the criminalization of same-sex sexual activity. As discussed earlier, South Asia has a long cultural history of conceptualizing gender beyond two rigid categories (see “Factors Contributing to Divergence”). This context may help to explain why India and Pakistan present challenges to the narrative about sexual orientation rights preceding gender identity rights.
The second narrative that Asian jurisdictions challenge concerns the sequential order of developing sexual orientation rights. Commentators have observed that the development of sexual orientation rights often follows a familiar sequence. Kees Waaldijk (2000, 2003) has observed that European countries tended to follow a similar path: a country would first decriminalize sodomy, then equalize age-of-consent laws for same-sex and different-sex sexual activity, then pass national antidiscrimination legislation pertaining to sexual orientation, then offer same-sex couples some form of legal recognition short of marriage, which would be followed by full marriage equality. Drawing on Waaldijk’s research, scholars such as William Eskridge (2000) and Yuval Merin (2012) have written that a similar pattern might be expected in the United States. The early European experience became conventional wisdom. Over time, however, the United States deviated from the European sequence (Lau, 2018). Likewise, some Asian jurisdictions have veered from the European trajectory. This deviation may indicate how other Asian jurisdictions will evolve in the future.
In Hong Kong, for example, courts have played a pivotal role in advancing LGBT rights. The HKCFA ruled that Hong Kong must recognize, for certain legal purposes, the unions of same-sex couples who entered a civil partnership or marriage abroad. Commentators believe that this case law has paved the way for the HKCFA to rule in favor of recognizing same-sex relationships for a host of other rights (e.g., Loper, 2019). Although Hong Kong’s courts have ruled that sexual orientation is a prohibited ground of discrimination under constitutional law, those constitutional provisions do not regulate private contexts. Meanwhile, Hong Kong’s government has declined to ban sexual orientation discrimination in private domains through legislation. Because Hong Kong’s law reform has been led by courts applying constitutional rights, Hong Kong seems poised to continue expanding same-sex couples’ recognition rights before addressing discrimination in contexts such as private employment, which would require legislative action. This sequence stands in contrast to the sequence from Europe and is more akin to the situation in the United States. The U.S. Supreme Court legalized same-sex marriage nationwide in 2015, but there is no federal law prohibiting sexual orientation discrimination in the private sector; a majority of states within the United States also lack state-level legislation banning sexual orientation discrimination in the private sector (Lau, 2018).
The situation in Taiwan also challenges the European narrative. Unlike the European countries studied by Waaldijk, Taiwan legalized same-sex marriage without first going through a substantial period of time when civil partnerships (or some other alternative to marriage) were provided as a compromise. Only some Taiwanese municipalities had established domestic partnership registries, and they conferred nominal legal rights (Kuo & Chen, 2018). Taiwan is more like the United States than Europe (Lau, 2018). When Waaldijk studied Europe, the countries that had legalized same-sex marriage had done so through legislation without prompting by courts. In the United States and in Taiwan, however, courts have been much more integral to the legalization of same-sex marriage. These courts have been comfortable skipping the so-called stepping-stone of civil partnerships on the path to same-sex marriage.15
A third familiar narrative states that legal protections of LGBT rights begin in the West, and then the rest of the world subsequently imports these legal constructs. Indeed, writers sometimes describe the development of LGBT rights protections around the world as a form of “Westernization” (Lau, 2013). Such Westernization narratives, however, are riddled with flaws. To be sure, by some important measures, the so-called West16 leads in developing protections against sexual orientation and gender identity discrimination. For example, most countries that have extended marriage rights to same-sex couples are part of the Western world. Nonetheless, there are significant holes in Westernization narratives.
As mentioned above in “Forefront of Reform,” courts in South Asia have been at the vanguard of prohibiting discrimination based on nonbinary gender identities. On this issue, the apex courts of Nepal, Pakistan, and India were early leaders among courts from around the world (Dickson & Sanders, 2013). Additionally, when NALSA (2014) was decided, it was perhaps the most extensive judgment to support the self-determination model of gender identity.17 Westernization narratives regrettably imply that knowledge is transferred unidirectionally from the West to the rest of the world. Such narratives thus obscure the fact that Western jurisdictions could learn from non-Western jurisdictions regarding certain LGBT issues. For example, courts in the West could benefit from noting that South Asian jurisdictions unsettle assumptions about the binary nature of sex and gender categories.
India provides another example of Asia disrupting Westernization narratives. The Indian Supreme Court’s judgment decriminalizing same-sex sexual activity cited legal cases from other parts of the world, including but not limited to the West. To characterize the decision as “Westernization,” however, would be deeply flawed. The criminal provision at issue had been established by colonial British rulers. Thus, in a sense, Navtej Singh Johar (2018) was an undoing of earlier Western influence.18 Moreover, while the judgment drew on case law from the West to support its conclusion, it also transcended those cases. The Indian decision is more comprehensive when compared to landmark cases from the West such as Lawrence v. Texas (2003) from the United States. It went further than Lawrence (2003) in describing the constitutional infirmities of sodomy bans and the harms that such laws inflict.19 Accordingly, Navtej Singh Johar (2018) disrupts the narrative that Asia simply imports LGBT rights as legal constructs from the West. Instead, Asia is a site of knowledge production concerning LGBT rights.
Popular and Political Constraints on Courts
To what extent do public opinion and politics constrain judicial power to advance LGBT rights in Asia? This section of the article explores this question. Consider some of the Asian jurisdictions that have gone the furthest in advancing LGBT rights. In Hong Kong, courts have debated the role that public opinion should play. Lower courts in Hong Kong have explicitly invoked public opinion to reject LGBT constitutional rights (W. v. Registrar of Marriages 2012; Leung Chun Kwong v. Secretary for the Civil Service, 2018). The HKCFA, however, has rejected this approach. It stated in the transgender-marriage case of W v. Registrar of Marriages, (2013) that “reliance on the absence of a majority consensus as a reason for rejecting a minority’s claim is inimical in principle to fundamental rights” (para. 116). The HKCFA reiterated this position in Leung Chun Kwong (2019) when it ruled in favor of recognizing a same-sex couple’s marriage abroad for the purposes of civil servant spousal benefits and tax filing status in Hong Kong.
Yet even if courts do not invoke public opinion to reject LGBT rights, public opinion may influence the way that courts remedy violations of rights. For example, in Taiwan’s same-sex marriage case, the TCC did not order the government to begin registering and recognizing same-sex marriages immediately. Instead, the TCC granted a remedial grace period (Kuo & Chen, 2018). The Legislative Yuan was given two years to enact legislation to extend “equal protection of the freedom of marriage” to same-sex couples (J. Y. Interpretation No. 748, 2017). As scholars have suggested, remedial delays can sometimes mitigate concerns about courts moving too far ahead of public opinion (Jacobi, 2006; Lau, 2016). A court may enhance the perceived legitimacy of its decision if it elicits the political branches’ cooperation in legalizing same-sex marriage during the grace period. Controversy over same-sex marriage may also diminish over the course of time as cultural mores shift. As Kuo and Chen (2018) have suggested, the two-year remedial delay was “evidence of the TCC’s awareness of the controversial nature of same-sex marriage and the court’s concern about the judgment’s legitimacy in the general public” (p. 108).
The effects of the TCC’s remedial delay are, however, unclear. The remedial delay has perhaps made same-sex marriage more controversial in Taiwan. During the grace period, opponents of same-sex marriage put the issue on a referendum, and a majority of voters rejected same-sex marriage. This vote was only symbolic, because it could not override the TCC’s ruling in favor of same-sex marriage (Drillsma, 2018). Accordingly, Taiwan’s legislature legalized same-sex marriage prior to the court-imposed deadline. Nonetheless, the referendum’s symbolism has loomed large. Some critics have cited the referendum to condemn Taiwan’s legalization of same-sex marriage (Kuo, 2019). The referendum also loomed in the background when Taiwan’s legislature decided not to grant married same-sex couples the same rights that married different-sex couples have for adopting children (Kuo, 2019). The situation in Taiwan warrants further research from scholars interested in the interplay between courts, politics, and public opinion.
The HKCFA also delayed the remedy in one of its major LGBT cases. In W v. Registrar of Marriages (2013), the HKCFA held that a transgender woman had the right to be recognized as a woman for marriage purposes. Because of a lack of public-opinion data, it is unclear how controversial that ruling was. The court perhaps mitigated controversy by suspending its declaration that Hong Kong’s marriage law violated W’s constitutional rights. The HKCFA gave the LegCo one year to enact legislation to clarify what criteria transgender individuals must satisfy to be recognized, for marriage purposes, as the gender that comports with their gender identity. The HKCFA also suggested that LegCo adopt comprehensive legislation to protect transgender persons against discrimination.
One year passed with LegCo failing to enact any relevant legislation. The HKCFA’s judgment in W v. Registrar of Marriages, (2013) foresaw this possibility and specified that if LegCo were to do nothing, at the very least W would have the right to marry as a woman at the end of the one-year remedial grace period. In addition, any transgender person similarly situated to W—meaning anyone who undergoes so-called “full” male-to-female sex reassignment surgery—would be legally recognized as a woman for marriage purposes. The HKCFA seemed to acknowledge, however, that this default left constitutional questions unresolved. It stated,
If such legislation does not eventuate, it would fall to the Courts, applying constitutional principles, statutory provisions and the rules of common law, to decide questions regarding the implications of recognizing an individual’s acquired gender for marriage purposes as and when any disputed questions arise.(W v. Registrar of Marriages, 2013, para. 147)
Other jurisdictions have held that requiring a transgender person to undergo surgery to be recognized in their gender identity violates human rights (Lau, 2020).
Even in cases in which courts demand reform more aggressively, there is the risk that other branches of government will resist compliance with the courts’ orders. Two landmark opinions from South Asia illustrate this point. The Indian Supreme Court’s NALSA (2014) decision ordered sweeping reforms related to gender identity, but years have passed and little reform has been implemented (Jyoti, 2017). Similarly, in 2007, the Supreme Court of Nepal ordered the government of Nepal to take various steps to address discrimination against LGBTI persons and allow individuals to be recognized as a third sex. Implementation has, however, been slow. It was not until 2011 that Nepal’s census included a category for the third sex (Knight, 2015).
These examples are reminders that the power of courts is limited. Courts play an important—sometimes leading—role in galvanizing reforms to protect LGBT rights, but reforms often require cooperation from other branches of government. Elected officials may resist cooperating, especially if public opinion does not support LGBT rights. Still, even when cooperation is lacking, judicial recognition of LGBT rights can serve an expressive function, what some may call “discursive justice” that amplifies the dignity of LGBT communities (cf. Webster, 2017). Sometimes there are even silver linings to losing in court. Commentators have explained that activists can “win through losing” (e.g., NeJaime, 2011). Even when there is a defeat in court, well-publicized litigation can thrust an issue into the public square and stimulate public education and discourse in important ways. A loss in court can also inspire greater LGBT mobilization fueled by discontent. In this vein, Chua and Hor (2016) have observed that LGBT rights activism in Singapore and other parts of Asia has “persisted and grown in spite of and perhaps because of the intransigence” among these jurisdictions’ courts and legislatures (p. 7, emphasis added).
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1. “Malaysia has 13 states and 3 federal territories. All have state-enacted Islamic laws that criminalise trans women based on their gender identity and gender expression, while some criminalise trans men” (Asia Pacific Transgender Network & SEED Malaysia, 2017, p. 30).
2. Two men in Hong Kong filed separate lawsuits seeking the right to marry someone of the same sex. In another case, a lesbian has sought the right to have her same-sex relationship recognized as a civil partnership or to be granted some other comparable status.
3. Two cases concerning transgender rights are working their way up Hong Kong’s court system. In a case that has been appealed, Hong Kong’s Court of First Instance ruled that the applicant, a transgender woman, did not have the right to be housed in a women’s facility when she was incarcerated; however, the court also ruled that it was “unreasonable” to deprive the inmate of her hormone treatment, and that body searches should not be conducted on transgender inmates based strictly on their biological sex at birth (Navarro Luigi Recasa v. Commissioner of Correctional Services, 2018). In another appealed case, the Court of First Instance upheld the requirement that transgender individuals undergo “full” sex reassignment surgery in order to change the gender marker on their Hong Kong Permanent Identity Card (Q., R., & Tse v. Commissioner of Registration, 2019).
4. The main opinion of NALSA v. Union of India (2014), written by Justice Radhakrishnan, repeatedly emphasized “self-identification” and “self-determination.” He stated that “no one shall be forced to undergo medical procedures, including SRS, sterilization or hormonal therapy, as a requirement for legal recognition of their gender identity” (para. 20), and that “self-identified gender can be male or female or a third gender” (para. 70). Furthermore, the judgment declared that “transgender persons’ right to decide their self-identified gender is . . . upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender” (para. 129). It is worth noting, however, that Justice Sikri’s concurring opinion creates some confusion. Justice Sikri said he was “entirely in agreement” (para. 78) with Justice Radhakrishnan’s main opinion, including “every word” (para. 82). Yet Justice Sikri’s concurrence contains confounding passages that suggest he believed the government is permitted to maintain a surgical requirement for persons who wish to change their legal gender from male to female or vice versa (paras. 105–106).
5. For background about the “self-determination” and “medical” models of gender identity, see Romeo (2005). Although Justice Radhakrishnan’s main opinion repeatedly supported self-determination, it described self-determination as “following the psyche of the person in determining sex and gender” (para. 75), and it indicated that psychology is more important than biology in determining a person’s gender. This mention of psychology may unfortunately undermine self-determination. Readers might seize upon this invocation of psychology to argue for giving psychology professionals a role in evaluating transgender persons’ gender recognition claims (Ram, 2019). Giving this gatekeeping role to psychology professionals would be inconsistent with the principle of self-determination.
6. In 2013, the government amended the Military Criminal Act so that anal intercourse is explicitly included in the definition of “indecent act.” The 2016 case did not address this revised version of the law. LGBT rights advocates have challenged this revised version of the law in pending litigation (Human Rights Watch, 2019).
7. LGBT organizations existed legally in South Korea prior to this ruling, but they generally did not seek to become registered with a government ministry.
8. An additional Korean case worth noting is In re Rectification of Registers (2016), in which the applicants argued that the term “marriage” in Korean laws should be interpreted to encompass same-sex marriage. The Seoul Western District Court ruled against the applicants, and the applicants decided not to appeal.
9. In February 2019, 13 same-sex couples in Japan filed a lawsuit seeking the right to marry (Associated Press, 2019). This case may eventually require the Supreme Court to decide the constitutionality of excluding same-sex couples from marriage.
10. Thailand is an example of a country pursuing notable law reform unprompted by litigation. Thailand’s legislature has indicated that it may develop civil partnership rights for same-sex couples (Fullerton, 2018).
12. In fall 2018, two new lawsuits were filed to challenge again the constitutionality of Section 377A in Singapore (Alkhatib, 2019). For these constitutional challenges to succeed, Singapore’s Supreme Court would need to depart from its history of weak judicial review and overrule Lim Meng Suang (2014).
15. Civil partnership schemes are not always developed as stepping-stones on the path toward same-sex marriage. A government may choose to develop a civil partnership registry, or some other alternative to marriage, at the same time as (or after) it extends marriage rights to same-sex couples. For example, South Africa began allowing same-sex and different-sex couples to register as civil partners at the same time that it began allowing same-sex couples to marry (Lau, 2017).
17. As discussed in notes 4 and 5, some aspects of NALSA (2014) were inconsistent with its overarching support of self-determination. For a post-NALSA (2014) case that further advanced the self-determination model of gender identity, see Advisory Opinion OC-24/17 (2017) from the Inter-American Court of Human Rights.
18. It is worth noting that many parts of Asia either never criminalized same-sex sexual intimacy, or they decriminalized it quite early—earlier than decriminalization in the United States (Lau, 2013). This fact further disrupts Westernization narratives.