it was mercantilist Britain, the great commercial trading nation, that exported anti-homosexual criminal laws to Asia and Africa, while Catholic Spain and France did not. Apparently being Christian had nothing to do with either domestic criminal law or the criminal laws on the export list.

Section 377 of the Indian Penal Code and its identical twins in Bangladesh, Malaysia, Singapore and a dozen countries in Africa is not a British law. It was never enacted in the United Kingdom. It was a British imperial law only. Not for domestic consumption.

Douglas Sanders

Jeffrey Dudgeon was a gay rights activist. He argued rights of ‘privacy’ all the way to the European Court of Human Rights. The last thing he wanted was for his sexual orientation to be private. He told everyone he was gay. He wanted his sexual orientation to be publicly recognized and respected. 

Dudgeon won his case in 1982. Since that time we have been able to say that criminal laws against homosexual acts are in violation of international human rights standards. So why has there been no change in South Asia, in Malaysia and Singapore, and in most former British colonies in Africa?

Laws against homosexual acts are said to enforce ideas of morality. Christianity is said to have biblical texts and traditions that say homosexual acts are immoral. 

But British colonialism was ‘mercantalistic’. It was not like Spain and France where priests were in the vanguard of expansion. The great British trading company in North America, the Hudson’s Bay Company, had initials that were said to represent Here Before Christ. Trade and profits first - evangelism second. Or third. Or tenth.

Yet it was mercantilist Britain, the great commercial trading nation, that exported anti-homosexual criminal laws to Asia and Africa, while Catholic Spain and France did not. Apparently being Christian had nothing to do with either domestic criminal law or the criminal laws on the export list.

Section 377 of the Indian Penal Code and its identical twins in Bangladesh, Malaysia, Singapore and a dozen countries in Africa is not a British law. It was never enacted in the United Kingdom. It was a British imperial law only. Not for domestic consumption.

Anti-homo domestic British law is widely thought to derive from the ‘gross indecency’ amendment at the end of the 19th century - the law used against Oscar Wilde. That is the period, says French philosopher Michael Foucault, when the West discovered homosexuals as a species.

The British late 19th century origins story does not wash in terms of law. The gross indecency law attracted little attention at the time. It was a backbench amendment, not a government bill. Apparently it was a response to a specific scandal in London. Prosecutions had occurred throughout the 19th century on a much earlier law against anal intercourse.

So what were the origins of the earlier ‘buggery’ law? It is said to have been taken over from ecclesiastical law. It is also said to have had an anti-Catholic purpose, justifying the take over of ecclesiastical properties on the basis of the same-sex sins of priests and nuns. 

So Britain had a criminal law going back a few centuries. Nasty. But largely unenforced. Such laws against consenting activities are largely unenforceable. 

When Jeffrey Dudgeon challenged the law in Northern Ireland he faced the problem of qualifying as a ‘victim’. Under the provisions of the European Convention on Human Rights, he had to be a ‘victim’ in order to press his case. He had not been prosecuted. He had to claim nervous agitation over his perilous state - which he knew was not perilous at all. 

Other ‘victims’ had equally implausible stories. The most unlikely was that of Senator David Norris in Ireland, a well known elite figure, an elected senator, whose case went to the European Court of Human Rights. Nicolas Toonen from Tasmania equally had to claim victimhood to advance his case to the UN Human Rights Committee, though like Dudgeon he was an activist who told everyone in sight that he was gay.

The US has very strict rules on who can bring cases. Nervous agitation is not enough. You have to be a real victim. So the two big cases both involved police mistakes. The seemingly improbable facts in both Bowers v Hardwick and Lawrence v Texas are that police broke into houses on false information about drugs and found, instead, real life fucking. 

There were some real victims. There were occasional raids on saunas and public toilets in Europe and North America. Various US jurisdictions used entrapment - cute police officers cruised parks and toilets in tight fitting jeans. The police learned they could catch homos anytime they wanted to. They knew this, but they rarely bothered. They had no illusions that arrests would deter people. The US was famous for moral clean-up raids in advance of local elections - often when public prosecutors were to be voted on. After the election the raids stopped again.

All these raids were random, occasional and only caught unpoliticised individuals who would never mount reform campaigns. Tragically, the victims were more likely to hang themselves in their jail cell out of shame than become activist campaigners.

So how do you make a convincing public case that 377 is a bad law, when it is largely unenforced and the few victims flee from any public campaign? 

Well, in the UK law reform campaign the major claim was not against the police but against private use of the law through blackmail. We see the same argument in India, where the threat of blackmail is held out as a dreadful result of the law. The Western blackmail stories of fifty years ago were in the context of the cold war, when sexual deviancy made elite gentlemen and top civil servants subject to blackmail by the nasty Russians. 

How many cases of blackmail were there in the UK - and how many are there now in India or other places with imported criminal laws? Of course we do not know. Blackmail, like homo-sexual sex, is usually kept secret.

Fighting 377 and its twins is primarily a campaign for visibility. 377’s main function is to shut us up about sex.

The existence of the criminal law is part of a system that keeps sexual variation out of public discourse. Society presents itself as heterosexual and heterosexuals as having a peculiar homogeneity. 

A host of ideas, orientations, interests, activities, ideologies are banished. This has created the very odd grouping of LGBTIQQ - all the sexual unorthodoxies grouped together. The fear of society is that if you loosen up on homos you will have to deal with much more - bisexuals, polygamists, sadists, machocists, transvestites, transsexuals, ladyboys, butches, intersexuals, youth sexuality…

And it’s true. Pandora’s box will not just introduce well-spoken gay men or lesbians into the parlor to discuss the latest novels and plays. Society will actually, over time, have to come to terms with sexual variation in its various forms.

And most threatening, of course, the variants are no longer ‘them’. The purity of the heterosexual majority will be undermined, revealing its mythological base. As Ann Landers said two decades ago in her advice column, most transvestites are heterosexual. As Kinsey said much earlier (and the India Today magazine more recently), the number of guys who have had gay sex is over one-third – though most are ‘not gay’ or just MSM or were drunk or just seeking a quick ‘release’ or just having ‘fun’. 

Repealing 377 is just a beginning. 

Douglas Sanders is Professor Emeritus, Faculty of Law, University of British Columbia and LL.M. Professor, Chulalongkorn University, Bangkok, Thailand. He has taught international human rights law, prepared expert background papers for UN human rights seminars, and written extensively on human rights issues relating to indigenous peoples and sexual and gender minorities.