Abstract
The right to non-discrimination promises equality for all persons and freedom from discrimination, based on certain individual and group-based characteristics. Ideally, this should delineate states' obligations to protect all persons. Yet, this right is usually not applied to every person depending on the prevailing social and moral mores of respective jurisdictions. Sexual minorities are part of such excluded individuals and groups, which are deemed undeserving of legal recognition and protection against discrimination based on their unconventional sexual orientation and gender identity/expression. Instead of equality and inclusion, retribution is the consequence for failure to conform to mainstream societal and moral values. This drives sexual minorities into the fringes of society, with hardly any assurance that the law can be used to protect them. It is within this context that this chapter interrogates whether the right to non-discrimination can be advanced for sexual minorities, leading to meaningful changes in domestic laws.
TopBackground
The idea of consensual same-sex intimacy and transgender and intersex identity has been a sore subject for many decades (Gerber et al., 2021, pp. 5-7). Although homosexuality was delisted as a mental illness by the American Psychological Association [APA] in 1973, same-sex intimacy and transgender identity are still regarded as perversions of human nature and as contrary to God’s design (Briggs, 2018, paras. 4, 6, 8, 10-11; Brill, 1998, p. 219; Gerber et al., 2021, pp. 5-7; Nfobin, 2014, pp. 73-74). In many African countries, sexual minorities are stigmatised, chastised and criminalised, leading to widespread discrimination (Aimar, n.d.; Gerber et al., 2021, pp. 5-6; Rudman, 2015, pp. 1-5). Lawmakers in these countries continue to reinforce old colonial anti-sodomy laws or introduce new legislation which sometimes contains stiffer penalties (Anozie, 2020, pp. 516-517; Rudman, 2015, pp. 1-5). About 3 African countries currently punish homosexuality with death, whilst others prescribe terms of imprisonment for homosexual, lesbian and transgender acts, ranging from 2 months to as much as 25 years (Anele, 2018). Additionally, in Ghana, lawmakers have vowed to pass a new anti-homosexuality law by the end of 2021, which would criminalise public displays of same-sex affection, ban same-sex marriages, recommend conversion therapy as treatment for homosexuality and punish anyone who supports same-sex relationships with a 10-year jail term, etc. (Mckenzie & Princewill, 2021, paras. 30-31).
Key Terms in this Chapter
Protection: To be shielded from harm or abuse; to be guaranteed rights to equal recognition and enjoyment of rights.
Homosexuality: Sexual intercourse between men and between women, respectively. The term is also used to categorise relationships falling outside of the mainstream, i.e., heterosexual relationships.
Sexual Orientation: Refers to how a person experiences sexual desire towards others. It involves attraction, behaviour, and identity. For a person with a heterosexual orientation, the desire is towards persons of the opposite sex; for those with a homosexual orientation, the desire is towards persons of the same sex; for those with a bisexual orientation, the desire is towards both the male and female sex; for transgender and intersex persons, the desire is towards persons who are regarded by society as unsuitable for the transgender or intersex person, because of the transgender or intersex person’s non-conforming gender identities and sex characteristics, etc.
Constitution: The foremost law of a country which binds the government and the governed, and denotes the duties and rights of both, respectively.
Gender Identity or Gender Identity/Expression: Refers to a deeply personalised experience of one’s gender, which could differ from the identity assigned at birth or perceived by others. It relates to both transgender and intersex identities, and the ways in which these identities are expressed.
Human Rights: The rights that all people have by virtue of being human; also known as rights which attach automatically to all persons from birth.
Equality: Refers to being treated equally in terms of access to rights, benefits and advantages guaranteed to other citizens. Equality also means the right to recognition as a person of equal value and a person deserving of equal protection under the law.
Courts: The judicial arm of a government which interprets existing laws, protects citizens’ rights and lays down precedent through decision-making.
Same-Sex: Belonging to the same biological sex. Refers also to relationships between persons of the same-sex or relationships between persons with sexual and gender identities, which depart from the binary sexes of male and female.