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LGBTQ+ People Share Their Most Awkward & Embarrassing Healthcare Experiences

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For most people, going to the doctor’s is a bit of a pain. Let’s face it, being prodded by a stranger and talking them through your every ailment – in gruesome detail – isn’t most people’s idea of fun.
If you’re part of the LGBTQ+ community, however, a routine appointment can quickly turn into a tangle of awkwardness. Many questions asked by healthcare professionals – from checking a patient isn’t pregnant before an X-ray or operation, to standardised questions about sexual activity and preferred contraception – are geared squarely towards straight patients. Practitioners may also make assumptions about patients’ sexualities, forcing them to speak up. This effectively means they have to ‘come out’ at almost every appointment.
For some, that might just involve a clunky conversation and some forced laughter that they’d rather not repeat in a hurry. But for other people, disclosing their identity simply might not be a safe option, and fear of discrimination plays a major role in discouraging LGBTQ+ people from accessing care in the first place. The LGBT Foundation reports that one in five lesbian, gay and bisexual patients say that their sexual orientation is a factor in them delaying access to vital health services.
“Simply being lesbian, gay, bi or trans shouldn’t mean you should have to expect unequal treatment from healthcare services in Britain today,” says Laura Russell, head of policy at Stonewall. Meanwhile, members of the LGBTQ+ community are at a heightened risk of developing health problems.
Stonewall’s findings show that an alarming number of LGBTQ+ people have experienced depression, anxiety and suicidal thoughts, at a far higher rate than the general population (according to Mind, one in six people in England report experiencing a mental health problem in any given week). “Despite some outstanding progress by committed individuals and institutions, we are still seeing a bleak picture of health – both mental and physical,” Russell says. “Half of LGBTQ+ people have experienced depression, while 61% reported having episodes of anxiety,” she says, citing the charity’s 2018 report on the impact of discrimination in healthcare.
These statistics are even more worrying among the trans community; and a severe lack of training and awareness around transgender issues leads to a poor standard of care when assistance is sought. In Stonewall’s study, two in five trans people accessing general healthcare services in the last year said that staff lacked understanding of specific trans health needs, while many have been misgendered during appointments. The LGBT Foundation reports that three in four trans people have been called the wrong name or pronoun by a health professional.
Numerous myths and misconceptions can also prevent LGBTQ+ patients from receiving the care they need. Smear tests, for example, are sometimes denied to patients on the assumption that they are not at risk of contracting HPV (a sexually transmitted virus which can develop into cervical abnormalities, leading to cervical cancer). This is a misconception, confirms Kate Sanger of Jo’s Cervical Trust; she explains that the test is relevant to any person with a cervix who has had any sexual contact with anyone, regardless of sexuality or gender.
“We’ve had stories of gay women being told that they’re not at risk of contracting HPV because they’re not having penetrative sex with a man,” she says. “Sadly, some of those women have gone on to develop cancer as a result [of abnormalities not being detected by a smear test].”
Recognising the need for inclusive language, Jo’s is also changing the way it talks about cervical screening. “Obviously if you don’t identify as a woman, and you see all the messaging is about women, you may not think it’s for you,” Kate says, “or you may feel like an excluded group. We wanted to remove any barriers that were there, by talking in language that would include people.”
In many cases, a lack of diversity training plays a major role in patients’ negative experiences, and initiatives like the LGBT Foundation’s Pride in Practice are working closely with the NHS to improve awareness of the unique issues that queer people face. Until doctors can create a safe environment where LGBTQ+ people feel confident and safe in accessing healthcare, mental and physical health problems in the community will continue to increase.
Click through to read five LGBTQ+ people’s experiences of accessing healthcare…

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How the Feminist Conversation Around Sexual Harassment Has Evolved

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What do we understand when we identify ourselves as feminist?

The Wire’s Histories of Feminisms project is an attempt to emphasise that there is no linear or one way of understanding and experiencing feminism. Through a series of articles, The Wire draws your attention to some of the different narratives and debates that, over the decades, have come to define feminism. For instance, we recall the first generation of feminists in Kerala, the first women lawyers who surmounted formidable challenges to claim their rightful place in the legal system. We shine a light on women authors who pushed the boundaries of feminism in literature, bring before you the perspectives and experiences of feminist Dalit and Muslim women. We talk about how protagonists of many radical movements and uprisings in public memory are usually male.

Side by side, we bring you important debates around 19th-century cultural nationalism and gender reform, the discussions around sexual violence, the law and the MeToo movement.

This is the second article in a two-part analysis of sexuality, violence and the law. Read the first article here.

At the end of 2017, in the wake of the #MeToo moment in the US, a list of professors, alleged sexual harassers in Indian universities, was circulated. It was collated by two Indian women living in the US. They claimed these names had been sent to them by a large number of other women, but provided no explanation or context of the harassment. It included the names of

  • at least two men already found guilty of sexual harassment through university committees set up under the Vishakha Guidelines,
  • some men known to have had consensual affairs with their students (although the women involved made it clear that it was not they who had put the names of their former lovers on the List) and
  • a large number of other names.

All these names were simply listed, with the information provided above not mentioned, so that convicted men; men in inappropriate but not illegal consensual relationships; and other men who were supposed to be sexually predatory professors for unspecified behavior, were all on the same plane. It was also relevant in hindsight that all of them but one were upper-caste men. The one non-upper caste man on the List had died a year ago.

Hundreds of feminists in Indian universities have conducted militant political struggles for years, with varying degrees of success, to put in place procedures according to the Supreme Court’s Vishakha Guidelines, to deal with rampant sexual harassment on campuses between students as well as by teachers of students. The circulation of such a List with no accountability, information or context seemed to endanger the gains of decades of feminist politics that have succeeded in naming and defining what constitutes sexual harassment, and in building a climate in which students can speak up without fear.

Especially in a context in which university committees set up under the Vishakha Guidelines were being closed down under pretext of compliance with the Sexual Harassment of Women at Workplace Act (2013), we felt that the issuing of a mere list of names with no context, only strengthened the opposition to feminist politics. Some of us issued a brief statement raising these points and appealing to those who had circulated the List to withdraw it and work towards justice using ‘due process,’ in which we said the larger feminist community would back them.

This is an old tradition in Indian democratic politics, to conduct debates publicly through statements. For instance, some of the signatories to that statement had been on opposite sides of an earlier debate on the screening of India’s Daughter, a documentary on the 2012 gang rape. Vrinda Grover and others had asked NDTV not to show it for reasons of prejudice to the ongoing case, while Shohini Ghosh and myself among others, had publicly criticised this as feminist censorship. There was no personal animosity – we disagreed, we debated, and continued to work together. The statement, therefore, was not senior academics addressing young students, but one feminist voice addressing another.

The storm of recrimination that erupted on social media was unprecedented. Vicious personal attacks were made on the signatories to the statement alluding to their caste identity (12 are Savarna Hindus, one Muslim and one Christian), as the primary initiator of the List, Raya Sarkar, initially claimed to be Dalit, which the statement signatories were unaware of when they issued the statement.

The statement was made out to be Savarna women protecting ‘their’ Savarna men. Now, the two Savarna men on the List who had already been punished through due process, Bidyut Chakrabarty and B.N. Ray, had in fact been brought to justice by campaigns which some of the signatories to the statement had doggedly spearheaded at great personal cost. This was not made public because of an older feminist tradition of collective functioning. The current culture however, appears to be about demanding individual credit.

In an interview after India’s #MeToo exploded, Raya Sarkar is quoted as saying, “But I don’t mind how the [MeToo] movement is framed as long as it acknowledges my labour.” Sarkar acknowledges Bhanwari Devi in this interview, as we should. But there was a collective process by which Bhanwari Devi’s courage translated into the Vishakha Guidelines. A large number of feminist individuals, some of them lawyers, NGOs and political groups worked together with Bhanwari Devi to develop the intervention in the Supreme Court. They remain nameless. Because feminist politics has been about collective functioning, collective credit and collective blame taking.

Since Sarkar’s supposed Dalit identity became the key point of attack on the statement, it is important to note that gradually she publicly distanced herself from claiming to be Dalit, raising serious ethical questions which we shall let pass for now. Had this claim not been made, would the issue of sexual harassment and male privilege been foregrounded, rather than the caste identity of some feminists? After all, it was never claimed that the women who named men for the List were Dalit. Nor was there any disagreement between the List and the statement on the prevalence of sexual harassment; the disagreement was on how it should be dealt with.

Soon, a second List emerged, issued by Dalit-Bahujan students, which named mostly Dalit-Bahujan men, but this List received no attention. It became clear that the issue of rampant sexual harassment in the academy had been displaced by the equally real issue of Savarna privilege, except that the targets of attack were supposedly “powerful” feminists, not sexually predatory men or Savarna male elite.

Interestingly, the first List contained no names of right-wing professors (one was named in the second List), and almost all the universities named had been at the centre of dissent against the Hindu Right. As the feminists who had signed the statement were known for their public opposition to the Hindu Right, another front of attack rapidly opened up – Hindu right-wing Dalit activists, using their Dalit identity to attack them as anti-Hindu and anti-Dalit.

Problems with the List

There were some other troubling points about the politics of the List:

It individualised the occurrence of sexual harassment rather than seeing it as a structural problem which can be tackled only collectively.

It romanticised a politics of ‘rumour and gossip’ networks among women, over a feminist politics of women standing up to and facing down sexually harassing men. Even with the teacher-student power imbalance, it should have been possible anonymously to specify the behavior. Among the post facto justifications produced by the originators of the List was that this would identify the complainant to the harasser, and thus they justified a culture of victimised silence.

This was accompanied by the call to Believe all Women, which can never be a feminist position. Recognising the other power differentials that constitute the category “women”, how can we assume that women have no other solidarities than gender? Every claim made by a “woman”, even for equal rights, is not necessarily “feminist”. (For instance, #WomenAreNotUntouchable in the Sabarimala context is about upper caste privilege, not feminism; although there were anti-caste feminist assertions too, around temple entry.)

It had a strong streak of sexual conservatism, displayed in the equation of consensual relationships with sexual harassment. While most feminists agree that romantic liaisons between professors and continuing students creates a hostile work environment for other students, and should therefore be discouraged as a matter of policy, these cannot be treated as harassment in any simple sense.

One young critic of the List felt that its politics reduced feminist consciousness to trauma and sexual violation, thus creating a consensus that “the female body is always, already under threat”, in a discourse similar to the oppressive one it claimed to be fighting.

The List assumed what feminist politics has worked actively to produce – an understanding that certain kinds of behavior constitute sexual harassment – by not explaining the behavior that put the names of those men on the List. When Partha Chatterjee asked in a public statement what the allegation against him was, the two initiators of the List responded on social media, passing the buck to each other, saying they were not sure of details, but claiming they had ‘raw data’ on record. However, nothing was produced and soon they, along with others, challenged him to think of his own behaviour over the years to figure out what could have offended women students. Surely as feminists it is our responsibility to specify the many kinds of behavior that have been considered normal, but are offensive and must be transformed?

Where to go next

The politics of the List was, overall, one of abdicating responsibility, although it named a real issue. This is why it is incorrect to say that the List kick-started India’s #MeToo. In fact, the #MeToo movement in India learnt from the mistakes of the List, and marks a break with its politics. It draws its genealogy from the #MeToo movement in the US, as the claims, anonymous or otherwise, gave context and spelt out the violation. This enabled it to garner widespread support that went beyond the larger feminist community. Of course #MeToo also has resonances with the militant feminist campaigns around sexual violence and sexual harassment since the 1980s in India, including protests on the streets, in classrooms, seminar rooms.

Nevertheless new and troubling questions have emerged. Has “sexual harassment” become the label for the all-pervasive patriarchy and misogyny we face? Is all of that behaviour really ‘punishable’ or does it need to be made visible and transformed? Are bad/exploitative relationships, or consensual sex which ends up being about male pleasure alone, sexual harassment?

Here it is important to note the strong Dalit feminist critique by Asha Kowtal of “the toxic and unethical nature of online campaigns, which often don’t have a system in place to support survivors.” This is a serious problem with exclusively social media “activism”, with no roots or grounded link to movements. Of course a lot of democratic movements creatively use social media, so my own critique is of activism that remains only on social media, in which the instant opinion of any privileged twitter user has the same weight as someone who works on the ground.

Kowtal, Cynthia Stephen and others have pointed out that while women from Dalit and other marginalised voices face systematic harassment, their voices do not reach the public domain. Nevertheless, Kowtal asserts that a separate Dalit feminism is now “redundant”, and that we should all work towards an Ambedkarite feminist standpoint as the core of a transformative politics. In her vision, “centring the voices of Dalit women and other oppressed communities by establishing genuine camaraderie to combat Brahmanical class based hetero-patriarchy” is the way forward.

I join her in asking, is it possible to have multiple feminist conversations along the axes of class, caste, community and sexual/gender identity, not through mutual recrimination and accusations, but with mutual trust and in the hope of building solidarity? Just as oppression is not necessarily a permanent status, nor is privilege. Otherwise we would be saying that all politics is determined permanently by birth. We would also be denying the way in which different privileges and oppressions undercut one another – surely transformative politics is what destabilises both oppression and privilege? Is it this destabilisation, perhaps, that constitutes freedom?

Finally, what after the testimony? Once a man has been exposed as a sexual harasser, what sort of justice can we work towards? Is a current employer responsible for punishing behavior from a time when the harasser was not in their employ? What other strategies can we think of in such cases? Is justice only punitive, is it possible only through institutional means? Does the very exposure of these behaviours in the public domain help produce a new feminist normal? This is the point where we begin to think of restorative justice.

It is perhaps necessary to clarify here that ‘due process’ as the signatories to the statement used it, never meant law alone. A feminist practice of justice has been ready to play off eclectically, various systems of regulation against one another depending on the situation – laws against rules, rules against laws, judicial orders against government – and, when necessary, as a community, making public the violation with responsibility. All of this within the context of live feminist movements; demonstrations, protests, media campaigns – due process is all of this.

Recently, 1,500 women students of Jawaharlal Nehru University wrote to the president of India asking for the restoration of the Gender Sensitisation Committee Against Sexual Harassment. They underlined that one of the ways in which GSCASH had managed to ensure a relatively safe space was by enabling conversations surrounding such issues in the campus. This was the way Vishakha guidelines were interpreted in universities by feminist struggles, as not merely punitive but transformative.

The silence around sexuality, violence and desire was broken almost four decades ago by feminists in India. Gradually the other silences masked by that speech began to open up, and we must recognise that there is no moment of pure ‘speaking up’ that liberates absolutely. As speech proliferates, there will be more arguments, more conversations. Equality and freedom will always be horizons that structure our politics, but they will keep receding as new voices emerge, with new claims and new notions of freedom.

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She Decides Day: Speaking out for sexual rights

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On March 1, representatives from governments, UN agencies and NGOs, both from the international arena and Nepal, will come together to celebrate SheDecides Day. Last year, the first global SheDecides Day took place in Pretoria, South Africa.

SheDecides is a movement that was sparked in response to the reinstatement and expansion of the Global Gag Rule by US President Donald Trump in 2017. That year, governments, UN agencies, donors and NGOs came together, united by a vision, that we would step up, stand up and speak up for women’s and girls’ rights to decide for themselves and make choices on critical life decisions: Who to love? Who to marry, when to marry or not to marry at all? Whether or not to have children, when to have children, how many children to have and how often?

Sexual and reproductive health and rights have been highly contested terrains from time immemorial. In many conservative societies, abortion is used as the ‘deal-breaker’ issue to deny women and girls a comprehensive range of sexual and reproductive health services. But the real target of conservative attack is the fundamental idea of sexual and reproductive autonomy, and to whittle down these fundamental freedoms to naught. These include access to contraceptive services, comprehensive sexuality education, respect and recognition of sexual and gender diversity, and setting aside of a sound public health practice, a rejection of evidence-based policymaking, and the denigration of scientific and medical expertise.

This phenomenon is apparent across countries in the region. The reverse is also true. Societies which recognise and respect sexual and reproductive rights of women and girls, in particular, the right to safe abortion, tend to affirm and fulfil rights to contraceptive services, comprehensive sexuality education and sexual and gender diversity.

ARROW has been working in the Asia-Pacific region for the last 26 years, and in that time Nepal has transformed itself into one of the few countries in the region truly committed to gender equality. Nepal has given the region and the globe an idea of how much can be accomplished in a short span of time in a less developed country, premised on citizen’s aspirations and political will.

In March 2002, Nepal legalised abortion under the 11th Amendment to the Civil Code. In 2007, the Supreme Court of Nepal ordered the government to legally recognise a third gender category, audit all laws to identify those that discriminated against LGBT people, and form a committee to study legal recognition of same-sex relationships.

In August 2017, Nepal passed a bill which served to modernise the age-old Muluki Ain (General Code) to suit the new realities of women, and to help end age-old practices rooted in discrimination against women. These include the practices of Chhaupadi, dowry and property rights. In October 2018, Nepal passed the Safe Motherhood and the Reproductive Health Rights Act. All of these critical legal changes testify to Nepal’s commitment to the agency and autonomy of girls and women.

While legal changes are to be lauded, and the laws provide the framework for change to occur, there is still much work to be done by all stakeholders to improve and advance the agenda for gender equality.

At Nepal’s Committee on the Elimination of Discrimination against Women (CEDAW) review last September, the Nepal Shadow report by NGOs pointed out that sexual and reproductive health was one of the most common health problems for women aged 15 to 44 in Nepal, where early pregnancy, unsafe abortions, childbirth or harmful traditional practices like early marriage, menstrual exclusion endanger the lives of women and girls. According to the report, around one in every ten Nepali women suffer from uterine prolapse, and are subjected to further discrimination and increased violence due to the condition.

The report also noted adolescent girls lack access to both comprehensive sexuality education and youth-friendly sexual and reproductive health services due to stigma and shame. This then results in a negative cycle of unsafe sex, teenage pregnancy, unsafe abortion, Sexually Transmitted Infections (STIs) and HIV.

But this is a situation not unique to Nepal. Many of the adolescent pregnancies occur within the context of child, early marriage and forced marriage, which binds young girls within a cycle of disempowerment and vulnerability.

Girls and women from poor and marginalised communities are more affected by the triple phenomena of early marriage, lack of access to contraceptive and reproductive health services, including safe abortion services and resulting mortalities and morbidities.

We should have no doubts that when we step up, stand up and speak out for sexual and reproductive rights, it is to the benefit of all of us, especially the most marginalised and most vulnerable communities in our societies and in our region. And when we combine our voices and our strengths and we stand together, we can help create a world where every girl and woman can decide what to do with her body, with her life and with her future. Without question.

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The Gay Debate: Decriminalising Homosexuality in Kenya

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Private consensual sexual conduct between adults of the same sex is criminalised in Kenya and 32 other African countries. How did private consensual sexual conduct between adults become the subject of criminal laws in Kenya and most of these African countries? How does the secrecy surrounding matters related to sex and sexuality influence the implementation of these laws? Let’s take a journey through Kenya. According to legal historians, what is today known as Kenya started off as the British East Africa Protectorate in 1896. The protectorate was ruled under British law; prior to that period, no formal legal structure existed. Further, the name Kenya did not exist until it was named so as a colony in 1920 and as a country in 1963 (upon independence). Criminalisation of same sex relations in Kenya dates back to between 1897 and 1902, when the British colonial authorities applied the Indian Penal Code that had been drafted by the British and which criminalised same sex relations. The Indian Penal Code was a novel colonisation project aimed at using legislation to model British values and common law to govern British protectorates and colonies abroad. Research by Dr. Nancy Baraza characterises the history and rationale of the criminalisation of homosexuality as part of the disguise to civilize “natives”, stop slavery and spread Christianity. She found that it led to social coercion into British moral and Christian religious values whose aim was to standardise divergent ethnic sexualities for ease of ruling and colonising them. Dr. Baraza found that these colonial laws that policed sexuality and gender were closely tied to Judeo-Christian religious beliefs that gradually displaced African customary laws that recognised the harmony of gender, sexuality and spirituality. Upon Kenya’s independence in 1963, the pre-colonial Penal Code was adopted by the post-colonial state without substantive changes, save for the renamed title of the statute to reflect promulgation by the newly created sovereign Parliament of Kenya. Kenya, therefore, remained among those African countries that mete varying punishments for same sex relations. The death penalty is imposed for homosexual sex in Sudan, Nigeria (12 northern states), Somalia and Mauritania. Life sentences are prescribed by penal law in Tanzania, Uganda and Sierra Leone. Kenya imposes a fourteen-year imprisonment term. To prove the crime of homosexual sex, forced anal examinations are used to in Tanzania, Cameroon, Egypt, Tunisia and Uganda. (Kenya’s Court of Appeal banned the practice in 2018.) Attempts to commit homosexual sex are also punished in Kenya, including indecent acts between males. The crime of homosexual sex is framed as an “unnatural” offence, carnal knowledge against the order of nature, or indecent acts between adults. The legal challenges The African Commission on Human and Peoples Rights (ACHPR) has noted that individuals in Africa continue to face infractions due to real or imputed sexual orientation and/or gender identity. According to the ACHPR, common infractions include “corrective” rape, physical assaults, torture, murder, arbitrary arrests, detentions, extrajudicial killings and executions, forced disappearances, extortion and blackmail. In a 2014 resolution against violence on ground of sexual orientation or gender identity in Africa (resolution 275), the African Commission called on African states to take preventative actions and redress these violations, including through legal reform. This history of an imposed legal system in relation to criminalisation of same sex conduct in Kenya was slightly altered through Act No 5 of 2003 when section 162 of the penal code was amended to remove corporal punishment, which had existed as a supplementary punishment to the prison sentence of fourteen years for homosexual sex. This amendment also distinguished punishment for consensual unnatural offences (14 years) and non-consensual (sodomy) unnatural offences (21 years). Removal of corporal punishment for unnatural offences was part of general penal reforms to align Kenya’s laws to international obligations against torture and cruel, degrading or inhumane treatment and punishment. The African Commission on Human and Peoples Rights (ACHPR) has noted that individuals in Africa continue to face infractions due to real or imputed sexual orientation and/or gender identity. According to the ACHPR, common infractions include “corrective” rape, physical assaults, torture, murder, arbitrary arrests, detentions, extrajudicial killings and executions, forced disappearances, extortion and blackmail. By the time the nation was debating a new constitution, discrimination on the basis of sexual orientation was being discussed inconclusively by constituent assemblies, including at the subsequent 2010 referendum. The new 2010 Constitution entrenches an elaborate Bills of Rights that affords constitutional protection from discrimination. Article 27 states: “The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.” While being inclusive, Article 27 does not explicitly list sexual orientation or gender identity. On the contrary, the Constitution recognises only heterosexual unions in Article 45, which states that “every adult has the right to marry a person of the opposite sex, based on the free consent of the parties”. In addition, Section 158 of the Children’s Act of Kenya explicitly prohibits adoption of children by homosexuals, In brief, Kenya’s legal system is generally hostile to gays, lesbians, bisexuals and queer persons. The law is also vague on the constitutional protection from discrimination on the basis of sexual orientation and gender identity. There is no comprehensive or specific equality legislation to guarantee protection from sexual orientation and gender identity discrimination, particularly in employment, health, housing and other social economic spheres. In 2012, a Kenya National Commission on Human Rights (KNCHR) report on sexual and reproductive health rights in Kenya recommended decriminalisation of same sex relations. This was in order to ensure the realisation of the right to the highest attainable standard of health, including reproductive healthcare, as enshrined in article 43 of the Constitution 2010. Studies have shown that gay men suffer discrimination when they access health services in Kenya and taboos around homosexuality prevent many others from seeking health services. Similar findings on the effects of criminalisation on state health policies and recommendations on their decriminalisation have been made by the Kenyan Ministry of Health in its HIV and AIDS Strategic Plan (2009/10-2012/13 as well as the 2014-2019). The justification of the health ministry and the KNCHR is that decriminalisation will remove structural barriers that impede access to the provision of the highest attainable standard of health care to all, which is a constitutional right in Kenya. KNCHR and the ministry have been consistent every year on their recommendations on decriminalising homosexuality, including through supporting civil society and individuals working on this reform issue. These empirical findings and recommendations by the health and the state human rights institution stand in contrast with active prosecutions against suspected homosexuals in Kenya by the police and the Director of Public Prosecutions. Religion and politics The most common rhetoric against same sex relations in Kenya has been coming from the religious and political elite who often characterise homosexuality as being against African tradition and biblical teachings. Studies have found that this charge of homosexuality being exogenous to Africa is politically designed to erode the legitimacy of same sex sexualities in Africa and to assert a homogenous “cultural identity”. This makes the public dependent upon political and religious leaders for “a communal sense of self”. It reminds the public what the government is – that it is in charge, in power and working or aspires to work for their best interests and survival, including protecting the most vulnerable (especially children) from “recruitment” and securing the future of the nation (by securing reproduction). The law under study therefore becomes political bait, an attractive instrument to regenerate political power domestically and internationally. This is made possible when arguments intersect with popular religious doctrine and social anxieties over reproduction, marriage and the future. The most common rhetoric against same sex relations in Kenya has been coming from the religious and political elite who often characterise homosexuality as being against African tradition and biblical teachings. Studies have found that this charge of homosexuality being exogenous to Africa is politically designed to erode the legitimacy of same sex sexualities in Africa and to assert a homogenous “cultural identity”. The public discourse becomes more difficult when homosexuality is politicised with religious doctrines whose nature hardly allows deliberations, which are necessary for democratic progress. This politicisation of religion is conflated with social anxieties over reproduction and social security. Studies have found that economic inequalities give such political rhetoric traction. In this power analysis of law, the inflation of claims (such as saving the morality of the country) work to displace desires and failures within society and fix them on minority human objects who are generalised and whose presence or distinguishing factor (such as sexual orientation, in this case) is not distinctive or new to Kenya. We are a developing country that is struggling with poverty and a high population growth rate. Poverty, religious doctrine that does not allow reasoning or deliberations, and an education system whose compulsory curriculum teaches homosexuality to be a moral/social deviance can be seen as part of the key social economic factors involved in shaping the public posture against homosexuality. A convenient distraction Activists have argued that the political capital invested by the Kenyan state on homophobia is a tactic to distract the public from pressing economic issues, such as rampant corruption. Studies show that after the end of colonialism, arbitrary governments in most post-colonial African states “latched onto anti-homosexuality laws as ammunition in a battle for power”. Such political rhetoric has also been found to thrive more in countries with weak institutions, inadequate basic equality statutes, poor participatory rights and social protection law, increasing inequalities, high unemployment amongst youth, and a general restrictive civic space. Studies have also established that compared to full democracies, authoritarian regimes and flawed democracies have a higher propensity to criminalise homosexuality There are findings that support the need for reform on this issue. Research by the World Bank shows that a country’s economic growth is inversely correlated with the level of discrimination against ethnic, religious and sexual minorities under the law. The study found that criminalisation of homosexuality is connected with economic development with multiple links and that criminalisation costs as much as 1.7 per cent of a country’s GDP. Other studies have argued that criminalisation of homosexuality is “irreconcilable with good governance” because it hinders progress within a country, particularly in regard to democracy, the rule of law, human rights, public health, and economic development The economic benefits of ending discrimination using the rule of law, therefore, resonate with many aspirations of middle- and low-income African countries. Continued discrimination against sexual and gender minorities through law is a grave economic concern in emerging African economies such as Kenya, which is currently working to achieve inclusive development. In the social-cultural sphere, Kenya’s creative/arts scene has increasingly become a mirror of the diversity in Kenya’s gender and sexuality fluidity. Notable among them are the films Stories of Our Lives and Rafiki, whose same sex themes have been banned locally but have spiked local and international demand. Art galleries and cultural centres in Kenya have in recent years been hosting Lesbian Gay Bisexual Trans Intersex and Queer (LGBTIQ) art and cultural events without state sanction. Reputed artists, such as Michael Soi, with his provocative paintings on sexuality and Kawira Mwirichia, with her Kanga love art, also continue to highlight the changing social landscape on matters sexuality and gender in Kenya. Although the education curriculum in primary and secondary schools still teaches that homosexuality is a social deviance, many public universities and colleges have been pushing back with a much more inclusive curriculum, especially in law schools. In addition, student-led bodies in universities and colleges have been engaging in research, internships, moot courts and other public service partnerships with civil society organisations dealing with LGBTIQ equality in Kenya. Enforcement of gay laws The existing laws against homosexual offences are actively enforced in Kenya. In 2015, a “Ministerial statement on non-enforcement of anti-gay laws in Kenya” indicated that between 2010 and 2014, the Kenya Police had prosecuted 595 cases of homosexuality across Kenya. An independent due diligence report of this police report found gross errors and conflation of homosexuality with bestiality and defilement charges. The conflation was either deliberate or was meant to increase social opprobrium towards homosexuality (by conflating consensual private adult same sex intimacy with bestiality and defilement). It could also be due to mistakes due to poor record-keeping by the police whose documentation remains largely manual. The existing laws against homosexual offences are actively enforced in Kenya. In 2015, a “Ministerial statement on non-enforcement of anti-gay laws in Kenya” indicated that between 2010 and 2014, the Kenya Police had prosecuted 595 cases of homosexuality across Kenya. An independent due diligence report of this police report found gross errors and conflation of homosexuality with bestiality and defilement charges. In addition, civil society organisations continue to document human rights violations based on sexual orientation and gender identity. In 2010, the Kenya Human Rights Commission (KHRC) found that LGBTIQ persons in Kenya are routinely harassed by police, evicted from housing by landlords, fired from jobs, denied access to healthcare and cut off from families, religious groups and social support structures. The National Gay and Lesbian Human Rights Commission (NGLHRC) has since 2012 been responding to and documenting violations against LGBTIQ persons. Annual legal aid reports from NGLHRC indicate that recurrent violations include “corrective” rape, physical assaults, arbitrary arrests, detentions, extrajudicial killings and executions, forced disappearances, extortion and blackmail, entrapment, among others. NGLHRC has been litigating on some of these violations, including challenging the use of forced anal examination to prove sexual orientation, forced evictions by landlords, dismissals from work, denial of government services and documents, etc. Interpreting anti-homosexuality laws Be that as it may, Kenya’s judicial jurisprudence on this issue demonstrates a compelling state interest to extinguish legal discrimination on the basis of sexual orientation and gender identity that is often justified and excused by the existence of criminal sanctions against LGBTQ persons. In Petition 440/2013 that sought to register the National Gay and Lesbian Human Rights Commission with the NGO Board, Justices Lenaola Odunga and Mumbi Ngugi ruled unanimously that sexual orientation was constitutionally protected from discrimination in Kenya and allowed the registration of the NGO. In February 2018, the Court of Appeal struck down the use of anal examination to prove homosexual orientation after the NGLHRC challenged anal examination, which had been performed on two suspected gay men at the Coast General Hospital. In the Baby A case, the court found that intersex persons in Kenya have the right to be recognised as persons before the law and went further to task the relevant state organs to develop relevant policy to secure recognition of intersex persons as persons before the law. Courts in Kenya have also allowed the registration of transgender groups and the change of gender markers on official documents issued by the government to transgender persons. The first stream is an internal analysis of the legal system using Kenyan law jurisprudence from which finds that there is arbitrary interpretation and application of the criminal rule under study which is inconsistent with the rule of law. The courts have become aware of this inconsistency and framed it as a constitutional issue, thereby triggering public discourse. The second stream is external in that it makes observations “outside” of the law on the performance of this criminal rule and characterises the performance of this law as political instrumentalisation of arbitrariness. This arbitrariness is more instrumentalised by the democratic branch of government through inflated paternalistic moral and religious claims within the domestic and international public spheres. I conclude by predicting how the criminal rule under study is under imminent foreclosure through court action under a rule of law analysis. Moving towards a less homophobic society I predict that criminalisation of homosexuality will grow into an exceptional doctrine in criminal law and will incrementally be foreclosed by courts as erroneous and excluded within the general domain of law. Criminal law is meant to prevent harm to society and enhance harmony and order within persons. To achieve order, the law can regulate how humans relate by way of justifiable legal stipulations and legal constrains. Over time, equality and non-discrimination will become the dominant theories in the transformation of the law in Kenya, but the foreclosure of the criminalisation described in this essay is a necessary first step. Claims against the negative effects of criminalisation of homosexual conduct will continue to sharpen the consciousness of the courts on the structure, meaning and effects of this law. The claims will allow the courts to be the public repository of accounts of discrimination on the basis of sexual orientation. The critical studies movement has taught us that we can reform our legal practice to deliver legal justice without breaking legality. This reformed legality supports the foreclosure of criminalisation with the aim of protecting the constitutional/immunity rights of persons affected by this law because these rights already exist in our constitutional texts. The ongoing litigation work by LGBTIQ individuals are therefore democratic efforts by citizens and organised groups to instill the rule of law, human rights and good governance in Kenya. Such efforts fulfill the civic duty that individuals and social movements have in promoting the democratic values of their communities and the country through institutional enforcement of their rights in courts. It is also a follow-up from constitutional drafting conferences that appreciated the issue as contentious but offered no closure to the affected. Individuals and social movements are using the judiciary to communicate and document their discriminatory lived experiences. By framing these claims as constitutional breaches, individuals are building public value of human rights as an essential part of their democracy and societal values. Courts therefore become entry points of building human rights and democratic values into social and political pillars of society. Claims against the negative effects of criminalisation of homosexual conduct will continue to sharpen the consciousness of the courts on the structure, meaning and effects of this law. The claims will allow the courts to be the public repository of accounts of discrimination on the basis of sexual orientation. The fact that these cases are being entertained, processed and resolved without dismissals due to technicalities and despite the fact that there are existing laws that criminalise homosexuality are green shoots and omens that suggest that access to justice is being realised in Kenya, which is a score for our democracy. It shows that the courts in Kenya are rooting for the rule of law and the constitutional constraints in the law’s predictability. Because the Constitution of Kenya 2010 was promulgated through a public referendum, courts enjoy sole curatorship of the Constitution, arguably raising the public acceptance of their decisions and the democratic pedigree of their legitimacy. Their decisions, therefore, play a leading role in public discourse. Foreclosure through decriminalisation will, however, need enforcement. This might translate to a reduction of arrests and prosecutions of suspected homosexuals as well as reduced social and economic exclusion. It is possible that LGBTIQ persons have begun to value their constitutional rights and will take more chances for equal protection within the civic commons. It is also possible that sexuality, citizenship and belonging will remain a live constitutional issue for judges in Kenya for the next decade as the cases move to the appellate stages through the courts. Regardless of the outcome of these cases, Kenya’s legal consciousness on how continued criminalisation of homosexuality undermines our constitutional principles and goals has already been established by courts, individuals, movements, state human rights organs and government health agencies. By litigating towards decriminalisation of homosexuality, activists are implementing evidence-based recommendations of state agencies as well as upholding the constitutional promise of non-discrimination, including equal benefit and equal protection under the law. The day may finally come when homosexuality in Kenya will truly be a “non-issue”, as President Uhuru Kenyatta recently stated in a televised interview.

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