The Experiences of Denying Constitutional Protection to Sodomy Laws in the United States, Australia and Malaysia: You've Come a Long Way Baby and You Still Have a Long Way to Go

Throughout history, views have been expressed in religious documents attempting to control non-procreative sexual activity. Sodom was a city in biblical times where the residents allegedly performed an assortment of sexual activities, the perpetration of which resulted in God's obliteration of the city. Sodomy later became punishable as violative of religious order and was subject to reprimand by courts consisting of members of the clergy. The term homosexual did not emerge as a separate class of individuals in discourse until the 19th century. The sodomy laws were later used to target homosexual activity.

The founding of the United Nations in the aftermath of the atrocities committed during the Second World War gave rise to an International Bill of Human Rights consisting of the Universal Declaration (a General Assembly resolution reflecting the consensus of the global community) and two important international treaties concerning political and civil rights as well as economic, social and cultural rights. This provided the preliminary basis for fostering the observance of basic human rights. The doctrine of crimes against humanity has come to symbolize human rights are a justifiable concern of the international community and the treatment of individuals within nation states is no longer just a matter of domestic concern. Emerging global norms of human rights have been frequently extended since the early beginnings of the human rights movement after the Second World War to address such issues as the elimination of all forms of racial discrimination and discrimination against women as well as torture. While prohibiting discrimination on the basis of sexual orientation is gaining greater currency as another potential extension of the growth of the international human rights movement, it is also encountering continued resistance in both international and domestic environments.

While sodomy laws have been repealed in many nations, such as the United States and Australia, as of May 2008, such laws still exist in 86 states which are members of the United Nations. The repeal of such laws in many countries is reflective of advances in the human rights movement globally and the increasing recognition that certain key principles of human rights, such as privacy, personal dignity, autonomy and equality, necessarily subsume within their reach the recognition of freedom with regard to Lesbian, Gay, Bisexual, Transgender and Intersex ('LGBTI') orientation.

This article will explore the factors contributing to the ultimate repeal of these laws in the United States ('US') and Australia - as well as the factors militating against the repeal of such laws in Malaysia. This piece argues that the sodomy laws in Malaysia should be repealed for the same reasons they have ultimately been repealed in the US and Australia. The historical experiences with the sodomy laws in all three contexts provide an insight into the evolution of the human rights movement globally.

The repeal of such laws in the US and Australia is reflective of advances in the human rights movement globally and the growing recognition in international and domestic legislative and judicial fora that freedom to enjoy one's own homosexuality is a key aspect of other basic fundamental human rights. In Australia, the Commonwealth Parliament passed legislation to comply with its obligations under the ICCPR as such obligations had been construed by the United Nations Human Rights Committee ('UNHRC') which resulted in the ultimate repeal of the sodomy laws in Tasmania, the last state in Australia to legalize homosexuality. International legal scholars and highly internationally respected members of the Bench, such as Australian High Court Justice Michael Kirby, have persuasively reasoned that a certain 'transnational jurisprudence' has materialized as one aspect of globalization in most ultimate courts throughout the globe. This has been manifested by greater recourse to international human rights law in the process of constitutional interpretation. Ruling the sodomy laws unconstitutional by the US Supreme Court has been cited as one such example.

Failure to repeal the sodomy laws in Malaysia is reflective of the resistance which emerging international human rights norms have encountered in domestic jurisdictions in which political leaders and the judiciary view such developments as encroachments on state sovereignty and national identity. The prominence of the sodomy trial and subsequent conviction against the former Deputy Prime Minister in Malaysia Anwar Ibrahim ('Anwar') demonstrated the power of vilifying the homosexual 'other' through use of the term 'sodomy' and all of its associated connotations. The sodomy conviction of Anwar was ultimately overturned. Though the sodomy laws in Malaysia have still not been repealed, it is arguable that vilification of the homosexual 'other' for political purposes has been disempowered recently.

The factual circumstances in Malaysia arguably reflect 'the backward looking and the forward looking' in relation to recognition of freedom to enjoy one's own homosexuality as an aspect of basic human rights principles.

The author asserts the situation in Malaysia is in some respects similar to the factual circumstances fostering both human rights and constitutional milestones in the US and Australia. All three instances have actually served to strengthen the international human rights movement for recognition of freedom with regard to LGBTI orientation. The author recognises that the repeal of these laws will not result in the elimination of homophobia, as such fear is perpetuated by a complex mix of arguably historical, political, religious and other factors (including gender, age, education and socio-economic background) that remain relevant within all three countries. Nonetheless, as with human rights principles generally, it is extremely important symbolically to begin with the repeal of the sodomy laws. Addressing homophobia requires multi-disciplinary approaches that transcend changes in the law and include the involvement of, and consultation with, all communities to foster a greater understanding and respect for the international human rights principles of privacy, dignity, autonomy and equality - as reflected in the freedom to form intimate associational homosexual relationships.