Since 1985, 86 countries have decriminalized homosexuality. In many of these countries, legal threats to the right to exist as an LGBTQ person have been replaced by a range of public conversations on everything from adoption rights to employment protections. As LGBTQ rights have grown more robust, LGBTQ issues and icons have become more visible. One example: The once niche RuPaul’s Drag Race, one of America’s most ostentatious presentations of LGBTQ identity, has earned five Emmys in the last three years. Even so, challenges remain, as 71 countries still criminalize homosexuality. Going forward, it is important to recognize that the tool most productive for advancing LGBTQ visibility and most essential for future civil rights struggles is the legal right to privacy.
The right to individual autonomy has long been used to protect actions once deemed morally unacceptable, as exemplified in the landmark abortion rights case Roe v. Wade. For LGBTQ people, the right to privacy has been key to removing restrictions on private interactions, particularly laws banning sodomy or other “unnatural sex acts,” which essentially criminalized expressions of homosexuality. More generally, the right to privacy can be applied to protect LGBTQ rights “without explicitly recognizing LGBTQ individuals as a protected class.” This critical framework was first highlighted by the European Court of Human Rights’ 1981 decision in Dudgeon v. United Kingdom, which decriminalized sodomy in the U.K. and relies on the fact that privacy is universally-protected: The Universal Declaration of Human Rights and its successors—the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights, and the American Convention on Human Rights—all include a right to privacy. Thanks to these protections, the right to privacy can be invoked to fight discrimination across the globe, even where national constitutions do not explicitly grant it.
One example of international privacy protections overriding more conservative domestic laws comes from Tasmania in 1992. Nicholas Toonen, a gay man and activist, brought a complaint to the Human Rights Committee, arguing that Tasmanian laws criminalizing sodomy were an invasion of his right to privacy under Article 17 of the ICCPR. The court concurred; Australia changed its laws to prevent any such invasions of privacy in the future. The success of Toonen v. Australia in decriminalizing homosexuality via the ICCPR suggests that even in a relatively conservative country or state, the right to privacy in international courts could provide an angle of attack on draconian laws.
While not an international court, the Indian Supreme Court also relied upon the right to privacy in declaring Section 377 of the Indian Penal Code, an anti-sodomy law, to be unconstitutional. Clearly, the right to privacy still has relevance in the contemporary global LGBTQ rights struggle.
Today, as anti-discrimination laws become more commonplace, privacy has fallen by the wayside as a legal tool to protect and expand LGBTQ rights. In the future, however, anti-discrimination and privacy must go hand-in-hand. Often, positive public opinion of LGBTQ people comes after decriminalization, as the public, including institutions like the police and government, becomes more accepting and responsive to the unique needs of LGBTQ populations. Therefore, even as global opinions on LGBTQ issues progress, legal advocates for LGBTQ rights in nations with more restrictive anti-gay legislation must recognize privacy as a potent tool for decriminalization.
The right to privacy exists regardless of protected status or anti-discrimination laws, making it a useful legal tool in the global struggle for LGBTQ rights. Even as LGBTQ rights become increasingly recognized as human rights, the gap between countries with protections and those without becomes even more apparent. In a world where rights to personal autonomy are often threatened, it is essential to acknowledge the importance of privacy and the protection it provides to all.