The Washington PostDemocracy Dies in Darkness

The British colonial origins of anti-gay laws

People protesting in London in December 2009 against anti-gay measures in Uganda. ( Shaun Curry/AFP/Getty Images)

During the past half-century, many countries have eliminated criminal laws against what are variously called “homosexual offences”, “sodomy,” “unnatural acts” or  other terms used to describe consensual sexual relations between people (often specifically men) of the same sex.

Yet, the decriminalization of homosexual conduct is an uneven process and several countries are moving in the opposite direction. The Nigerian, Ugandan, and Gambian legislatures have recently passed laws increasing penalties for existing offences and have added new anti-homosexuality provisions (although the Ugandan law was later annulled by the Constitutional Court).  The Indian Supreme Court last year overturned a previous ruling by the Delhi High Court decriminalizing homosexual acts.  A new draft bill under consideration in Chad criminalizes same sex conduct and requires jail sentences of 15 to 20 years and hefty fines.  And on Oct. 29, the Singaporean Highest Court upheld the law that criminalizes sex between men.

Among such criminalization cases, a common narrative is that acceptance and tolerance of homosexuality is a foreign, or alien, Western imposition on indigenous cultures.  For example, Zimbabwean President Robert Mugabe has called homosexuality an invention of the West that will “disturb the African moral fabric.” Similarly, Gambian President Yahya Jammeh called homosexuals “satanic”, and President Ellen Johnson Sirleaf framed Liberia’s anti-sodomy laws as “traditional values”.

At a news conference led by Bishop Arthur Gitonga of the Redeemed Church in Kenya, one participant said that, “Homosexuality is equivalent to colonialism and slavery.”  In Russia, even though homosexual acts are still legal, the Foreign Ministry has accused the European Union of “queer propaganda” and president Vladimir Putin has defended a new law in Russia making the promotion of homosexuality illegal by framing criticisms from the U.S. and Europe as interference in the tradition and culture of the Russian people.

Here stands one of the biggest ironies.  The idea that the so-called tolerance towards homosexuality somehow sprang from a western source doesn’t hold.  As our research shows, this narrative is not only wrong-headed but the opposite of the historical facts.  Instead, for many countries, including some of those mentioned above, criminalization laws were based on British imperial legal instruments, like the Indian Penal Code Section 377A, introduced and imposed on these countries by Britain when they were colonized.

We investigated whether and why there is variation in laws regulating and punishing homosexual conduct around the world.  Looking at a variety of data on 185 countries, we found that former British colonies are much more likely to have laws that criminalize homosexual conduct than former colonies of other European powers, or than other states in general.  For example, 57 percent of states with such a law have a British colonial origin.  Almost 70 percent of states with a British colonial origin continue to criminalize homosexual conduct.

It seems that when the British Empire was introducing legal systems around the world, one of the laws they included was the law against sodomy, which was not decriminalized in England and Wales until 1967. By this time, most of the “Winds of Change” wave of decolonization had left former colonies independent of changes in British legislation.  By contrast, after the French Revolution, the French Empire decriminalized sodomy between consenting adults, and spread this Enlightenment legacy among its colonies.  So, as the figure below illustrates, former French colonies were much quicker to decriminalize.

While other researchers have suggested that individual countries’ anti-gay laws came as part of the colonial inheritance, this new research provides systematic evidence that this is a reason for the prevalence of those laws around the world today. Furthermore, in our research we show that this finding still holds when we control for other factors like religion, religiosity, democracy, modernity, or wealth. As the figure below shows, the finding also holds within sub-Saharan Africa, where former British colonies are much more likely to criminalize homosexual conduct than former French conduct.

Highlighting the colonial origin of anti-gay legislation is an important way to counter the narrative that tolerance of homosexuality is a neo-colonial imposition.  The Economist simultaneously downplays the importance of the colonial legacy and claims that Western criticism of the new anti-gay laws allows post-colonial governments to paint themselves as forging an independent path.  This confused message misses the potential power of undercutting the false narrative that tolerance of homosexuality is equivalent to colonialism.  Another strategy is to publicize the numerous examples of accepted homosexual practices and relations in various pre-colonial African cultures.

Having said that, our research also indicates that there is no reason to believe that on average British colonies take longer to repeal repressive anti-gay laws than anyone else.  For example, we found that the average time in between when a colony became independent and when it decriminalized homosexual conduct was similar for British and Spanish colonies as well as other states.  The reintroduction of criminalization laws has also been more prevalent in French ex-colonies like Algeria, Cameroon, Mauritania, and perhaps Chad.  This implies that while the British Empire spread such laws, it did not uniquely “poison” the prospects for liberalization.  Given the progress that has been made in many countries around the world, this finding should bring hope to those campaigning and working hard to end the regimes of terror and repression under which so many LGBT people live.

Enze Han is a Senior Lecturer (Associate Professor) at the Department of Politics and International Studies at SOAS, University of London, United Kingdom. Joseph O’Mahoney is Assistant Professor at the School of Diplomacy and International Relations, Seton Hall University, United States.