The Law Has Never Been Neutral

There is a particular cruelty in using the law to persecute people for who they are. Not because law is above cruelty. It has never been. But because law carries with it the full weight of institutional legitimacy — the suggestion that what it prohibits is not merely inconvenient or offensive, but wrong in some foundational sense. When the state criminalizes a person's identity, it does not simply restrict behavior. It issues a verdict on a human being's right to exist in public life.

In 2026, same-sex relations remain criminalized in 64 countries. In eleven of them, the penalty is death. These are not relics of a distant past. Several of these laws are actively enforced. In Uganda, the Anti-Homosexuality Act — signed into law in 2023 and upheld after legal challenge — introduced the death penalty for what it calls "aggravated homosexuality." In Iran, executions for same-sex acts have continued for decades with near-total impunity. In Chechnya, credible reports of detention camps, torture, and extrajudicial killing of gay men have been documented by human rights organizations since at least 2017. None of this is historical. All of it is present tense.

What makes the legal persecution of queer people so durable is not that it is natural to human society. The historical and anthropological record is clear: it is not. What makes it durable is that it serves power. It consolidates nationalist identity around an imagined purity. It redirects social anxiety onto a visible minority. It gives authoritarian governments a mechanism to demonstrate dominance over the most intimate aspects of human life. The criminalization of queerness is, at its root, a technology of control.

The Colonial Export

It is worth being precise about where many of these laws came from. The majority of anti-sodomy statutes currently on the books in Africa, South Asia, and the Caribbean were not indigenous legal developments. They were colonial imports. British Penal Code Section 377 — introduced under Queen Victoria in 1861 — was exported across the British Empire and seeded into the legal systems of dozens of countries. The same pattern holds for French and Portuguese colonial territories. The colonizers left. The laws stayed.

This is not a minor historical footnote. When contemporary politicians in Uganda or Jamaica or Malaysia defend their anti-homosexuality laws as expressions of traditional culture, they are defending statutes written in London and imposed by force. The irony is not subtle. The postcolonial state, in many instances, chose to retain the most intimate instruments of colonial discipline while shedding other forms of imperial governance. That choice was not accidental. It was political.

India offers the clearest case study. Section 377 was used to criminalize same-sex intimacy from 1861 until 2018, when the Supreme Court of India issued its landmark ruling in Navtej Singh Johar v. Union of India. The Court did not merely decriminalize homosexuality. It delivered a 493-page judgment that excavated the colonial origins of the law, affirmed the dignity of LGBTQ+ individuals under the Indian Constitution, and declared that the moral views of the majority cannot be used to strip a minority of its fundamental rights. Justice D.Y. Chandrachud wrote separately that the right to sexuality is inseparable from the right to identity, and that the state has no business in the intimate lives of consenting adults. It was one of the most significant human rights rulings of the decade. It also took 157 years.

International Law and Its Limits

The international human rights framework was not designed with LGBTQ+ people explicitly in mind. The Universal Declaration of Human Rights, adopted in 1948, speaks of universal rights without reference to sexual orientation or gender identity. The International Covenant on Civil and Political Rights does the same. For decades, international bodies applied these instruments narrowly, treating sexual orientation as a matter of cultural relativism rather than universal right.

The shift began incrementally. The United Nations Human Rights Committee ruled in Toonen v. Australia (1994) that laws criminalizing same-sex conduct violated the right to privacy and the prohibition on discrimination under the ICCPR. It was the first time an international body had applied human rights law to protect same-sex intimacy. The Yogyakarta Principles, developed in 2006 by a group of international legal experts, went further: they articulated the application of international human rights law to sexual orientation and gender identity across 29 principles, later expanded to 38. They are not binding. But they represent the most comprehensive framework yet developed for understanding LGBTQ+ rights as human rights.

The European Court of Human Rights has been more direct. In a series of rulings since the 1980s, it has found that criminalization of homosexuality violates the right to private life under Article 8 of the European Convention. The Inter-American Commission on Human Rights has similarly expanded its protection of LGBTQ+ individuals. But these regional bodies have jurisdiction only over their members. For the 64 countries still criminalizing same-sex relations, the international legal framework offers moral authority without enforcement.

When the United States Looks Away

American foreign policy on LGBTQ+ rights has been inconsistent at best, cynical at worst. The Obama administration made same-sex rights a stated priority in diplomatic engagements, conditioning some foreign aid on non-discrimination commitments. The first Trump administration reversed much of this, and the current political climate has made the United States an unreliable advocate for queer rights abroad. The legalization of conversion therapy in multiple U.S. states, the legislative assault on trans healthcare, and the rhetorical framing of queer identity as a threat to children have not only harmed American LGBTQ+ people. They have handed authoritarian governments an argument: if the United States itself is rethinking these protections, perhaps they were never universal values at all.

This is the geopolitical consequence of domestic regression. Human rights are most persuasive when the nations invoking them are practicing them. When they are not, the moral authority dissolves, and the space for authoritarian justification expands. Uganda's government cited American evangelical lobbying as partial justification for its Anti-Homosexuality Act. The connection between what happens in American pulpits and legislative chambers and what happens in Kampala courtrooms is not metaphorical. It is documented.

The Stakes

The legal status of queer people globally is not a peripheral concern. It is a barometer of what a given society believes about the relationship between state power and individual dignity. Countries that criminalize homosexuality share, with striking consistency, other characteristics: restrictions on press freedom, weakened judicial independence, concentrated executive power, and diminished protections for minority groups of all kinds.

This is not a coincidence. The same instinct that drives a government to legislate who its citizens may love is the instinct that drives it to silence journalists, intimidate courts, and demonize dissent.

The law has never been neutral. It has always reflected the preferences and anxieties of those who write it. The question for every generation is whether the law will be used to expand human freedom or to police it. In 64 countries, the answer, in 2026, is still the wrong one.