—Mara Malagodi, The Chinese University of Hong Kong, Faculty of Law
[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]
In this second post in the two-part series on new frontiers of gender constitutionalism in Asia, I explore the constitutional treatment of gender identity and sexual orientation in the region. Sexual and gender diverse people (SGPD) have made significant yet uneven strides in claiming equal citizenship in the constitutional arena across several Asian jurisdictions. As such, these constitutional innovations warrant detailed and context-specific comparative scrutiny.
Since decolonisation, the great majority of jurisdictions in Asia have adopted in their constitutional and legal frameworks a binary classification of gender as either male or female based on sex assigned at birth, coupled with a heteronormative framing of sexuality. This position reflects a combination of colonial legal legacies (or transplants in the few Asian jurisdictions that were never colonised such as Thailand, Japan, Nepal, and Bhutan) and the cultural and religious norms of dominant groups. The uneven advancement of SGDP rights in the constitutional arena across Asia is explained by the highly context-specific nature of this phenomenon, which hinges on factors internal and external to the constitution. In particular, the strength of social movements and their ability to catalyse change in social attitude towards gender and sexual diversity have a profound impact on legal reform and – most importantly – on the everyday life of queer individuals and groups. Over the last two decades, the constitutional sphere has become both a key instrument to advance SGDP rights and a crucial symbolic target of activism in itself to affirm gender justice.
The advancement of SGDP rights in the constitutional arena can be conceptualised as taking place along two axis: removal of harm (e.g. decriminalisation of certain forms of conduct, constitutional norms and/or legislation forbidding discrimination, etc.) and the granting of positive entitlements (e.g. forms of recognition, affirmative action, quotas, etc.).
Under the axis of removal of harm, perhaps the most obvious example is the ongoing battle to decriminalise same-sex intimacy in a number of former British colonies. India succeeded in decriminalising via constitutional litigation in the landmark Navtej Johar decision of the Supreme Court in 2018. As Shreya Atrey and Gautam Bhatia astutely remark, the case was the culmination of almost two decades of litigation and the result of formidable, sustained social activism. Unlike India where the Supreme Court enjoys wide powers and a consolidated history of bold judicial activism, in Singapore constitutional litigation was unsuccessful in displacing the colonial-era criminalisation of same-sex intimacy in 2014. The Supreme Court relied on separation of power arguments and refused to entertain substantive considerations to invalidate Art. 377A of the Penal Code on the basis on unconstitutionality. This points both to the historically limited role of judicial review to advance social rights in Singapore, and the legal and political difficulties for activists to mobilise effectively in the country. Significantly, the criminalisation of same-sex intimacy endures in all former British colonies in Asia that obtained independence before 1967, when sodomy laws were repealed in the UK. To this effect, Sri Lanka’s Supreme Court stated in a 2016 criminal appeal that, even if the criminalisation of buggery and gross indecency under the 1883 Penal Code was introduced during colonial times and has now been repealed in England, “the offence remains very much a part of our law”. By contrast, in Hong Kong the Legislative Council followed the UK and repealed the offence in 1991. Forms of discrimination between heterosexual and homosexual conduct, however, persisted under the criminal law and were progressively dismantled post-handover through constitutional litigation supported by two decades of queer activism.
Another instance of the removal of harm against SGDP across Asia is the elimination of forms of discrimination via constitutional litigation, which also opened the door to forms of recognition. An early example of this strategy is the landmark decision of the Supreme Court of Nepal in the 2007 Sunil Babu Pant case where the court ordered the government to introduce legislation to prevent discrimination against sexual and gender minorities, including “third gender” individuals such as hijras. The Supreme Court of Pakistan in 2009 followed the same approach, but only with respect to “eunuchs” (gender non-conforming individuals as defined under the colonial Criminal Tribes Act 1871), and so did the Supreme Court of India with respect to the transgender community in the monumental NALSA judgment of 2014. These South Asian jurisdictions (including Bangladesh, but solely via policy intervention) explicitly recognised the historical existence in their societies of gender non-conforming individuals and communities, and the violence and indignities to which they are regularly subjected. In a radical break from colonial practice, the postcolonial constitutional sphere now explicitly recognises the duty of the state to treat gender diverse individuals like all other citizens.
These cases had a cascading effect that led to the translation of non-discrimination into positive entitlements for SGDP individuals and groups through policies and legislative interventions in favour of transgender individuals, such as the Pakistan Transgender Persons (Protection of Rights) Act 2018 and the India Transgender Persons (Protection of Rights) Act 2019. These measures include securing citizenship documents and passports other than in the sex assigned at birth, being counted separately in the census, being granted quotas in educational institutions, etc. In this respect, in the South Asia context the emphasis on gender identity as an autochthonous socio-cultural identity marker has also been instrumentally deployed by the state to overshadow questions of sexual orientation. Nepal is a case in point where many queer activists now fiercely oppose the “third/other gender” label used in policy documents since 2012 for the entire queer spectrum – in clear contravention of the Supreme Court’s decision of 2007; this is because it erases the identities of binary-identifying transgender and gender non-conforming individuals, alongside those identities based on sexual orientation.
In this context the battle for marriage equality in Asia remains an uphill one. The only country in the region that recognises same-sex marriage is Taiwan since the landmark decision of the Constitutional Court in 2017, implemented two years later. In other Asian jurisdictions that do not criminalise same-sex intimacy such as Hong Kong and Nepal, same-sex couples legally married in foreign jurisdictions have managed to secure via constitutional litigation several entitlements – from spousal visas to joint tax assessments. However, even if social attitudes are rapidly shifting across many parts of Asia, there remains vehement political opposition from conservative forces and legal barriers to marriage equality as many constitutions, or at least ordinary pieces of legislation, continue to enshrine, privilege, and protect a heteronormative vision of the family. In fact, the majority of Asian jurisdictions allow for electing a gender other than the sex assigned at birth only after gender reassignment surgery (GRS). A few Asian jurisdictions have recognised marriages as valid unions because one spouse had undertaken GRS, for instance, in 1996 Singapore passed an amendment to the Women’s Charter to that effect, while Hong Kong did so via constitutional litigation in 2013.
Finally, the politics of recognition of SGDP rights has culminated in their inclusion in the constitutional text. Nepal’s current constitution promulgated in 2015 is the only one in Asia –and one of the few in the world – to recognise explicitly the rights of sexual and gender minorities. A similar attempt by the Public Representations Committee has been made in Sri Lanka to recognise explicitly SGDP rights during the 2016 constitutional reform process, but the process came to a halt in 2019. It remains to be seen whether the Drafting Committee appointed in 2020 under the 20th Amendment will include such feature. While queer activism and socio-legal scholarship aptly remind us that gains in the constitutional sphere are merely a starting point, the recognition of sexual and gender diversity by legal means is crucial to securing freedom, protection, and dignity for queer individuals and groups.
Suggested citation: Mara Malagodi, New Frontiers of Gender Constitutionalism in Asia (2): Gender Identity and Sexuality, Int’l J. Const. L. Blog, Jul. 14, 2021, at: http://www.iconnectblog.com/2021/07/new-frontiers-of-gender-constitutionalism-in-asia-2-gender-identity-and-sexuality/
 Navtej Johar v Union of India AIR 2018 SC 4321.
 Lim Meng Suang and another v Attorney-General and another appeal and another matter  1 SLR 26.
 Daryl WJ Yang and Jaclyn Neo “Gender Equality in Singapore: Wither the Constitution?” in W. Chang, K. Loper, M. Malagodi, and R. Rubio Marín (eds.) Gender, Sexuality, and Constitutionalism in Asia (Hart Publishing, forthcoming 2022).
 Lynette Chua “Rights Mobilization and the Campaign to Decriminalize Homosexuality in Singapore” Asian Journal of Law and Society 1:1, 205-228 (2014).
 Former British colonies in Asia that continue to criminalise same-sex intimacy are Pakistan, Bangladesh, Sri Lanka, Malaysia, Myanmar, and Brunei. Instead, the majority of Asian jurisdictions that were not British colonies display a sort of “legal silence” with respect to same-sex intimacy. These include Indonesia, the Philippines, Taiwan, China, Vietnam, Thailand, South Korea, Nepal, etc. Japan briefly criminalised sodomy in the 19th century, only to decriminalise a few years later via legislative intervention. Bhutan followed the same path and criminalised in 2004, only to decriminalise in 2021 by amending its Penal Code. See the chapters by Sadaf Aziz and Angbeen Mirza on Pakistan, Mario Gomez on Sri Lanka, Dian Shah on Malaysia, Simon Butt on Indonesia, Bo Tiojanco on the Philippines, Wen-Chen Chang on Taiwan, Yoon Jin Shin on South Korea, and Akiko Ejima on Japan in W. Chang, K. Loper, M. Malagodi, and R. Rubio Marín (eds.) Gender, Sexuality and Constitutionalism in Asia (Hart Publishing, forthcoming 2022).
 Galabada Payalage Sanath Wimalasiri v Officer in Charge, Police Station, Maradana SC SPL LA N.304/2009 (Decided on 30 November 2016).
 Sunil Babu Pant v Government of Nepal NKP 2065 Vol. 50 N. 4 at 485.
 Dr Khaki v Rawalpindi, Supreme Court of Pakistan (4 November, 20 November, 23 December 2009).
 National Legal Services Authority (NALSA) v Union of India AIR 2014 SC 1863.
 JY Interpretation N. 748 (24 May 2017).
 In Hong Kong, see: Leung Chun Kwong v Secretary for the Civil Service and Commissioner of Inland Revenue  HKCFA 19; QT v Director of Immigration  HKCFA 28. In Nepal, see: Suman Panta v Ministry of Home Affairs et al. (Writ. No. 073-WO-1054). Decided on 23 October 2017.
 Hong Kong: W v Registrar of Marriages  HKCFA 39.
 Only five other constitutions recognise SGDP rights explicitly: Bolivia’s 2009 constitution, Fiji’s 2013 constitution, Malta’s 1964 constitution as amended in 2014, Ecuador’s constitution as amended in 2018, and Cuba’s 2019 constitution.
 Mario Gomez “Women, Gender and the Constitution in Sri Lanka” in W. Chang, K. Loper, M. Malagodi, and R. Rubio Marín (eds.) Gender, Sexuality and Constitutionalism in Asia (Hart Publishing, forthcoming 2022).