LGBTQ Human Rights Mobilizations in Domestic and International Courts: A Transnational Perspective on the Judicialized Decriminalization of Homosexual Sex

Perrin, Ayodeji Kamau

doi:https://doi.org/10.21985/n2-2ka2-5n23

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LGBTQ Human Rights Mobilizations in Domestic and International Courts: A Transnational Perspective on the Judicialized Decriminalization of Homosexual Sex

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This dissertation centers gay and lesbian activists, their lawyers, and public interest litigation organizations in a genealogical understanding of the evolution of human rights law in the LGBTIQ+ issue space. I ask why sexual minorities turned to the courts in pursuit of the decriminalization of homosexual sex. Empirically, I examine the “first wave” of decriminalization litigation in Europe, the United States, Australia, and South Africa between the 1950s and 1990s. A comparative analysis of the social movement (legal) mobilizations behind the judgments reveals similarities in the legal and political factors driving the judicialization of gay and lesbian identity politics. I observe that, in general, across cases, decriminalization litigation can be explained by a version of political disadvantage theory – aggrieved sexual minorities lacked access to legislative processes, but had access to constitutional rights and judicial review (the United States and South Africa) or had access to treaty-based human rights and international courts and quasi-judicial mechanisms (Northern Ireland, Ireland, and Australia). On the basis of these cases, I construct a generalizable model of social movement legal mobilization. I also demonstrate that the emergence of a body of homosexual sex decriminalization jurisprudence over the past forty-five years as well as transnational networking influenced the generation and diffusion of the decriminalization norm and of LGBTIQ+ rights. Building on concepts such as epistemic communities, transnational advocacy networks, transnational judicial dialogue, and transnational litigation networks, I suggest an expanded concept – transnational jurisprudential communities – that incorporates the role of aggrieved individuals and groups, social movement organizations, cause lawyers and public interest litigation organizations, and groups allowed to intervene as interested parties or as amicus brief writers, in generating, shaping, and disseminating human rights norms. In this dissertation, I argue that a more complete understanding of how norms such as LGBTQ human rights emerge and spread requires a better appreciation for the role of litigation – whether strategic or reactive. Far from suggesting pride of place for judges and courts, however, I argue that pride of place belongs to the aggrieved individuals and groups without whose activism judges would not be confronted with legal claims to resolve. These aggrieved individuals, groups, and organizations, their cause lawyers, and allies filing amicus briefs, not judges (or at least not only judges), are the true norm entrepreneurs in the norm lifecycle. Especially for repeat players such as Lambda Legal in the United States or the UK’s Human Dignity Trust, which has supported cases from Jamaica, Singapore, and Northern Cyprus, courts are their platforms.

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