From disgust to dignity: Criminalisation of same-sex conduct as a dignity taking and the human rights pathways to achieve dignity restoration

Abstract

Despite global advances in the rights of sexual and gender minorities, more than 70 countries worldwide still criminalise consensual same-sex conduct. Taking the case of Kenya, this article employs the concept of 'dignity takings' to underscore the direct and indirect costs of criminalising homosexuality. Criminalisation leads to a direct taking where it engenders forced examinations and medical tests, and indirect takings where the institutionalisation of stigma -labelling sexual and gender minorities as criminal -creates an environment that legitimises the use of violence against individuals on the basis of their real or perceived sexual orientation or gender identity. Viewing criminalisation as a dignity taking not only helps one to understand the direct effects by which the state is empowered to violate the bodies of lesbian, gay, bisexual and transgender persons, but also the more pernicious ways in which the state uses homophobia as a political weapon that can exclude individuals from meaningfully participating as citizens in the body politic. The article also examines the efforts of Kenyan LGBT activists to reclaim dignity by employing international human rights norms and institutions of the African regional human rights system. I argue that the pursuit of public, grassroots activism is an assertion of agency in the face of institutionalised AFRICAN HUMAN RIGHTS LAW JOURNAL 685 stigma and systemic violence, and that the strategic mobilisation of human rights norms has allowed activists to reframe LBGT rights in terms of fundamental rights to life and dignity guaranteed to all Africans, effectively countering the false claim that homosexuality is 'un-African'.