The judgment of the constitutional and human rights division of Kenya’s high court must have been a great disappointment to the gay community there. In the decision, the three judges give no sense that they understand the very real dangers that this community experiences, with the bench merely observing that no evidence of any such danger, threats or discrimination had been provided to the court.
The judges come across as quite without empathy for this most vulnerable group, a stance all the more strange since the individual members of the bench have, in previous constitutional litigation, shown themselves to be conscious of the need to protect those at the mercy of the powerful.
It’s a long and laboured judgment with a surprising amount of space spent on the argument that decriminalizing sexual relations between consenting same sex couples in private, cannot be allowed because of a “flood gates” concern, namely that it will open the doors to an argument for gay marriage.
But while the judges of this court turned their faces from the gay petitioners who risked their lives bringing the legal action, their colleagues in Brazil had a completely different stance, with the country's top judges acting to protect the gay community now coming under increasing attack.
In 1989 racism was criminalized in Brazil, attracting sentences of up to five years. Now, however, the Supreme Court judges have decided that homophobia is to be considered a crime, just as racism is. Discrimination or violence against trans-gender people is also to be regarded as a crime.
According to a report by The Organisation for World Peace, six of Brazil’s 11 Federal Tribunal judges have voted to make homophobia and transphobia crimes. The remaining five judges will make their positions known on June 5, but whichever way they vote it will not change the outcome as a majority has already been secured.
This is the culmination of virtually 20 years’ work aimed at having homophobia declared a crime in Brazil. The court’s decision has been welcomed by the gay and transgender community as well as human rights groups. It comes as violence against gay people has significantly increased, with the new far-right President saying he would rather have a dead son than a homosexual son. Commenting against this background, a prominent activist says the Supreme Court has taken on responsibility to protect the gay community. "Homophobic crimes are as alarming as physical violence," Supreme Court Vice-President Luiz Fux said on his vote, citing "epidemic levels of homophobic violence".
According to Reuters, at least 320 LGBT+ people were killed in Brazil in 2018, while a watchdog group Grupo Gay da Bahia, list 126 such murder so far this year.
The report also quotes the Trans Murder Monitoring project as saying that Brazil is the most dangerous country in the world for trans people, with at least 167 people killed in the 12 months up to September 2018.
