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Decriminalising LGBT+ people: global report highlights “progress and peril”

Hester Phillips

14 December 2023

Analysis of 194 countries shows two-thirds no longer criminalise same-sex sex and their HIV responses are more successful as a result. But some countries are making laws more punitive, putting public health at risk

Young man celebrates wrapped in a rainbow flag
Photos are used for illustrative purposes. They do not imply health status or behaviour. Credit: iStock/FG Trade

A review of the legal status of same-sex sex in countries across the world has found a general trend toward decriminalisation, with more countries scraping homophobic laws in 2022 than in any other year in the past two decades. So what does it mean for the HIV response?

What is this report about?

The HIV Policy Lab has assessed HIV and global trends on LGBT+ decriminalisation in 194 countries. Progress and the Peril: HIV and Global De/criminalization of Same-Sex Sex has been produced in partnership with UNDP and GNP+.

Why is it important?

Globally, HIV prevalence among transgender people is 10.3%, and among gay men and other men who have sex with men it is 7.5%. This is far higher than HIV prevalence among the general global adult population, which is 0.7%. Criminalisation is one of the biggest factors driving these high prevalence rates. Until it ends, the HIV epidemic will continue.

United Nations member countries have committed to create supportive legal environments for groups most affected by HIV, including LGBT+ people. By 2025, the aim is for 90% of countries to have non-discriminatory laws.

What does the report say?

As of 2022, two-thirds of countries analysed (129 out of 194) did not criminalise consensual same-sex sex. This means 63% of people with HIV (24.6 million) live in countries where same-sex sex is legal.

Between 2017 and 2023, 13 countries stopped criminalising same-sex sex. These countries are Angola, Antigua and Barbuda, Barbados, Bhutan, Botswana, Gabon, India, Mauritius, Singapore, St. Kitts and Nevis, the Cook Islands, Trinidad and Tobago and Venezuela. 

In 2022 alone, four countries (Antigua and Barbuda, Barbados, Singapore, and St. Kitts and Nevis) decriminalised consensual same-sex sex. This is more countries than in any other year in the past 25 years.

Among countries where same-sex sex is legal, just over half (78 countries) have laws and policies against discrimination on the basis of sexual orientation as well as independent human rights institutions. A total of 49 have protections against discrimination based on both sexual orientation and gender identity.

In countries and regions where laws and policies are supportive of LGBT+ people, greater progress is being made towards ending AIDS.

In Africa, HIV prevalence is five times higher among gay and other men who have sex with men in countries that criminalise same-sex sex compared to countries that don’t. It is 12 times higher in countries that enforce laws against gay men and other men who have sex with men compared to countries where no recent prosecutions have been made.

Worldwide, countries that criminalise same-sex sex also have much lower rates of viral suppression among all people with HIV (8% lower on average). Knowledge of HIV status among adults is also 11% lower on average.

Globally, the cost of homophobia is estimated to be US$126.1 billion per year, representing 0.17% of global GDP.

Despite this, 65 countries (34% of the world) still criminalise same-sex sex. And some countries are imposing harsher penalties, such as Brunei, Ghana and Uganda.

Among the countries that criminalise same-sex sex, 41 have made recent prosecutions. The remaining 24 countries are not prosecuting people. These countries include Eswatini, Kenya, Liberia, Namibia, Sierra Leone and South Sudan. All countries that recently made same-sex sex legal started by not enforcing laws that criminalise gay people. This suggests a possible path forward for these 24 countries.

Between 13 and 20 countries have laws that directly criminalise transgender and gender non-conforming people. But in many other countries, transgender and gender non-conforming people are criminalised under laws that criminalise same-sex activity. Even in places where same-sex sex is legal, the report finds there is a “rising tide of laws” that are criminalising and discriminating against transgender people.

What does this mean for HIV services?

HIV services will be more effective if they can operate in environments where LGBT+ people are not criminalised and are legally protected against discrimination.

The report includes case studies from countries around the world that have recently decriminalised same-sex sex. This shows the different political and legal routes to decriminalisation. Not long ago, many of these countries were viewed as places that would not decriminalise same-sex sex. If you are an LGBT+ rights advocate these examples may be useful. Particularly if you are in a country where the criminalisation of same-sex sex is not enforced.

In the report’s foreword, Winnie Byanyima, UNAIDS’ executive director, says: “It is time for the leaders in the 1/3 of countries that still criminalize to step up and catch up. We must not ignore the dangerous counter-trend. Those who are pushing in the opposite direction, toward deepening criminalization and harsher treatment of LGBTQ+ people, are on the wrong side of public health, the wrong side of economic growth, and the wrong side of history.”

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