Courts, the Law, and LGBT Rights in Asia
Oxford Encyclopedia of LGBT Politics & Policy (Don Haider-Markel, ed.) (2020).
Oxford Research Encyclopedia of Politics (2020).
33 Pages Posted: 13 Apr 2020 Last revised: 10 Aug 2020
Date Written: March 1, 2020
Courts have played an integral part in advancing the rights of lesbian, gay, bisexual, and transgender (LGBT) communities in many parts of Asia. For example, Taiwan’s highest court ruled in 2017 that it was unconstitutional to exclude same-sex couples from marriage. As a result, in 2019, Taiwan became the first jurisdiction in Asia to legalize same-sex marriage. Among judicial decisions from Asia, Taiwan’s marriage ruling has gone the furthest in affirming same-sex relationships, but it is not alone in vindicating the rights of gay men, lesbians, and bisexuals. Courts in Asia have also advanced transgender rights. For example, building on earlier cases from Nepal and Pakistan, the Indian Supreme Court stated in 2014 that transgender persons have a right to select gender markers on identity documents based on self-determination. The judgment also directed the government to implement affirmative action programs to support transgender communities. This judgment broke new ground, not only for Asia but for the world.
While LGBT rights advocates have celebrated these court victories, litigation to advance LGBT rights has failed in other parts of Asia. Indeed, courts in some parts of Asia have entrenched LGBT subordination. A vast expanse separates Asia’s most progressive judicial decisions from the most oppressive. The landscape of judicial decisions is further complicated by the fact that it continues to change at a rapid clip. This article examines this mixed and quickly changing landscape of judicial developments concerning LGBT rights in Asia.
This article starts by providing an overview of the divergent roles that Asian courts have played with respect to LGBT rights. It then highlights — and offers preliminary answers to — three questions prompted by the judicial development of LGBT rights in Asia: (1) What factors have contributed to the divergence among Asian jurisdictions? (2) How should developments in Asia inform existing narratives about the development of LGBT rights? (3) How do politics and public opinion affect courts’ ability to advance LGBT rights in Asia?
Keywords: Asia, sexual orientation, gender identity, LGBT rights, human rights
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