Courts, the Law, and LGBT Rights in Asia

Abstract

Courts have played an integral part in advancing the rights of lesbian, gay, bisexual, and transgender (LGBT) communities in many parts of Asia. Yet courts in other parts of Asia have entrenched LGBT subordination. A vast expanse separates Asia’s most progressive LGBT judicial decisions from the most oppressive. This divergence stems from various factors, including differences among Asian courts’ judicial philosophies and cultural backdrops. Judicial developments in Asia have disrupted conventional narratives in Anglophone literature about LGBT rights. Conventional wisdom says there is a standard sequence for developing LGBT rights. It is commonly believed that countries will protect sexual orientation rights before gender identity rights; that they will legislate against discrimination before legalizing same-sex marriage; and that legal protections of LGBT rights begin in the West, and then the rest of the world subsequently imports these legal constructs. Developments in Asia have, however, challenged these narratives. While many Asian courts have galvanized reforms to protect LGBT rights, it is important to remember that these courts are nonetheless constrained in their ability to effectuate change. Case studies from Asia demonstrate that protecting LGBT rights often requires political branches of government to cooperate with courts. Political actors may resist implementing court-ordered reforms, especially if public opinion does not support the reforms.