tag:theconversation.com,2011:/au/topics/same-sex-8607/articlesSame sex – The Conversation2023-10-12T13:31:06Ztag:theconversation.com,2011:article/2152702023-10-12T13:31:06Z2023-10-12T13:31:06ZMauritius is the latest nation to decriminalise same-sex relations in a divided continent<p>The Mauritius Supreme Court has <a href="https://www.humandignitytrust.org/wp-content/uploads/2023/10/Judgment-AH-SEEK-.pdf">declared</a> unconstitutional a law that criminalises consensual same-sex acts between adult men. The decision boosts the trend in the Southern African Development Community (SADC) region towards decriminalisation. Now, a slight majority – nine out of 16 member states – do not prohibit gay and lesbian sexual relations. </p>
<p>I have researched and taught human rights law in Africa, including the rights of sexual minorities, for over three decades, and closely follow the work of the <a href="https://achpr.au.int/">African Commission on Human and Peoples’ Rights</a>. </p>
<p>The African Commission, as the continent’s human rights custodian, should lend its unequivocal support to the decriminalisation trend. This is particularly significant as attempts are made to further criminalise and stigmatise sexual minorities in parts of Africa.</p>
<p>The commission has not yet expressed its view on the decision. Its <a href="https://achpr.au.int/en/events/2023-10-20/77os-public">77th ordinary session</a>, starting on 20 October 2023 in Arusha, Tanzania, is an opportunity to do so. It should build on its 2014 <a href="https://achpr.au.int/en/adopted-resolutions/275-resolution-protection-against-violence-and-other-human-rights-violations">guidance</a> to African states on eradicating violence based on sexual orientation and gender identity. </p>
<h2>Mauritius court ruling</h2>
<p>The Mauritian Supreme Court <a href="https://www.humandignitytrust.org/wp-content/uploads/2023/10/Judgment-AH-SEEK-.pdf">found</a> that section 250 of the <a href="https://sherloc.unodc.org/cld/uploads/res/document/mus/criminal-code_html/Mauritius_Criminal_Code.pdf">1838 Mauritius Criminal Code</a>, which criminalises anal sex between two consenting adult men, violates the <a href="https://cdn.accf-francophonie.org/2019/03/maurice-constitution2016.pdf">1968 Mauritius constitution</a>. </p>
<p>The litigant, Ah Seek, a gay Mauritian man and board member of the Mauritian NGO <a href="https://www.actogether.mu/fr/trouver-une-ong/collectif-arc-en-ciel">Collectif-Arc-en-Ciel</a>, invoked a number of constitutional grounds. However, the court based its decision on the most directly relevant ground: the right not to be discriminated against.</p>
<p>In addressing two issues that could militate against a finding in Ah Seek’s favour, the court relied on the approach of other courts in the SADC region. The 2021 <a href="https://www.humandignitytrust.org/wp-content/uploads/resources/2021.11.29-AG-Botswana-v-Motshidiemang.pdf">judgment</a> by Botswana’s Court of Appeal was particularly relevant. This judgment held that the constitutionally protected ground of “sex” in the Botswana constitution encompassed “sexual orientation”. </p>
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<p>The first issue was the contention that Mauritius’ constitution does not explicitly prohibit discrimination based on “sexual orientation”. The relevant provision (<a href="https://www.constituteproject.org/constitution/Mauritius_2016">section 16</a>) forbids discrimination on the basis of seven specified grounds, including sex. </p>
<p>The Mauritian court concluded that the word “sex” in section 16 of the constitution includes “sexual orientation”. </p>
<p>The court also emphasised the country’s international human rights commitments. It said that, as a state party to the <a href="https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-4&chapter=4&clang=_en">International Covenant on Civil and Political Rights</a>, Mauritius was expected to interpret its constitution in line with this <a href="https://juris.ohchr.org/casedetails/702/en-US">treaty</a>. </p>
<p>The second issue was whether the rarity of prosecutions removed the need for the court to decide. Referring to a <a href="https://www.saflii.org/za/cases/ZACC/1998/15.html">judgment</a> by the South African Constitutional Court, the Mauritius court held that the mere threat of arrest, prosecution and conviction</p>
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<p>hangs like the sword of Damocles over the heads of homosexual men.</p>
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<p>The court therefore concluded that the constitution protected everyone from discrimination based on their sexual orientation, whatever it might be. </p>
<p>When it was given an opportunity to show any legitimate purpose for this form of discrimination, the state merely made reference to same-sex relations as a “highly sensitive issue” due to the “delicate socio-cultural and religious fabric of Mauritian society”. Rejecting these as justifications for discrimination, the court underlined that Mauritius was a secular state. </p>
<h2>Regional trend</h2>
<p>Greater societal acceptance of homosexuality can be both a catalyst for and a consequence of decriminalisation of same-sex relationships. </p>
<p>In a recent survey by the independent African surveys network <a href="https://www.afrobarometer.org/wp-content/uploads/2023/05/AD639-Uganda-a-continental-extreme-in-rejection-of-people-in-same-sex-relationships-Afrobarometer-9may23-.pdf">Afrobarometer</a>, Mauritius featured prominently as a country in which tolerance (towards an LGBT person as neighbour) had increased from 2014 to 2022. </p>
<p>Nine of the 11 African countries with an above-average tolerance percentage towards LGBT persons were from the SADC. All of these 11 states, except Eswatini, have decriminalised “sodomy laws”. </p>
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<p>The conditions for decriminalisation seem to be converging in Eswatini. Its population displays a relatively high level of acceptance (of 42%) in the survey. Also, its Supreme Court has <a href="https://eswatinilii.org/akn/sz/judgment/szsc/2023/23/eng@2023-06-16/source.pdf">signalled</a> some openness to uphold LGBT persons’ rights. </p>
<p>Besides Eswatini, other SADC member states that still retain “sodomy” laws are Comoros, Malawi, Namibia, Tanzania, Zambia and Zimbabwe. With the exception of the Comoros, the laws of these states are relics from British colonial times, when “sodomy” laws were imposed as part of a colonial “civilising” mission. The Mauritius Supreme Court <a href="https://www.humandignitytrust.org/wp-content/uploads/2023/10/Judgment-AH-SEEK-.pdf">noted</a> that, as a colonial import, section 250 did not reflect Mauritian values and was not the “expression of domestic democratic will”. </p>
<p>Today, just over half of the SADC states do not criminalise same-sex relationships between consenting adults. The Democratic Republic of Congo never legislated on this matter. In <a href="https://media.lesotholii.org/files/legislation/akn-ls-act-2012-6-eng-2012-03-09.pdf">Lesotho</a> (2012), the <a href="http://www.seychellesnewsagency.com/articles/5198/Seychelles+parliament+passes+bill+to+decriminalize+sodomy">Seychelles</a> (2016), <a href="https://mg.co.za/article/2015-06-29-mozambique-scraps-colonial-era-homosexuality-and-abortion-bans/">Mozambique</a> (2015) and <a href="https://africlaw.com/2021/03/05/decriminalisation-of-consensual-same-sex-acts-in-angola-and-the-progress-of-lgbti-human-rights-in-lusophone-africa/">Angola</a> (2019), the legislature in the last decade or so adopted a new version of the penal code. These offences, stemming from the <a href="https://www.hrw.org/report/2008/12/17/alien-legacy/origins-sodomy-laws-british-colonialism">English common law</a> or the <a href="https://www.ahry.up.ac.za/garrido-r#pgfId-1119589">1886 Portuguese Penal Code</a>, were omitted. In Madagascar, the <a href="http://www.vertic.org/media/National%20Legislation/Madagascar/MG_Code_Penal.pdf">penal code</a> criminalises consensual same-sex acts only with a person under 21 years old. </p>
<p>Still, the situation remains in flux. In <a href="https://www.theguardian.com/global-development/2023/jul/14/religious-groups-march-in-malawi-before-court-case-on-lgbtq-rights">Malawi</a> and <a href="https://www.washingtonblade.com/2023/03/13/namibian-supreme-court-hears-three-lgbtq-rights-cases/">Namibia</a>, litigation on related penal code provisions is pending. In Malawi, then President Joyce Banda in 2012 <a href="https://www.theguardian.com/world/2012/may/18/malawi-president-vows-legalise-homosexuality">committed to repealing these laws</a>. There was also a moratorium on arrests and prosecutions between 2012 and 2016, and a <a href="https://www.hrw.org/report/2018/10/26/let-posterity-judge/violence-and-discrimination-against-lgbt-people-malawi">court-ordered review</a> of the constitutionality of “sodomy laws”. </p>
<p>In Namibia, the Supreme Court <a href="https://namiblii.org/akn/na/judgment/nasc/2023/14/eng@2023-05-16">decided in 2023</a> that Namibia must recognise same-sex marriages validly concluded outside the country.</p>
<h2>Diverging trend</h2>
<p>In the rest of Africa, the position of sexual minorities is much more precarious. Thirty-one (almost 58%) of countries still <a href="https://76crimes.com/76-countries-where-homosexuality-is-illegal/">criminalise consensual same-sex acts between adults</a>. The trend is towards more restrictive laws and harsher punishment.</p>
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<li><p>In Uganda, President Yoweri Museveni has <a href="https://www.parliament.go.ug/news/6737/president-assents-anti-homosexuality-act">signed into law</a> the <a href="https://www.parliament.go.ug/sites/default/files/The%20Anti-Homosexuality%20Act%2C%202023.pdf">Anti-Homosexuality Act</a>.</p></li>
<li><p>In Ghana, the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill is <a href="https://www.parliament.gh/epanel/docs/bills/Promotion%20of%20Proper%20Human%20Sexual%20Rights%20and%20Ghanaian%20Family%20Values%20Bill,%202021.pdf#viewer.action=download">being considered</a>. </p></li>
<li><p>In Kenya, the anti-gay <a href="https://www.africanews.com/2023/09/20/kenyas-anti-gay-bill-proposes-50-year-jail-term//">Family Protection Bill</a> carries a 50-year jail term. But the Supreme Court decided in February 2023 to allow the NGO National Gay and Lesbian Rights Commission <a href="https://www.humandignitytrust.org/wp-content/uploads/2023/09/SC-Application-No.-E011-of-2023-George-Kaluma-v.-NGO-Others.pdf?pdf=George-Kaluma">to be registered</a>. </p></li>
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Read more:
<a href="https://theconversation.com/being-queer-in-africa-the-state-of-lgbtiq-rights-across-the-continent-205306">Being queer in Africa: the state of LGBTIQ+ rights across the continent</a>
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<p>These laws were initiated as private members bills. They are driven by individuals rather than any political party’s agenda, and bolstered by an anti-LGBT solidarity <a href="https://glaad.org/rachel-maddow-traces-anti-lgbtq-legislation-uganda-activists-arizona/">conference</a> of African parliamentarians. </p>
<h2>African Commission’s role</h2>
<p>Against this background of opposing forces and divergent trends, the role of the African Commission is all the more important. The commission itself has sent mixed signals. It <a href="https://achpr.au.int/en/adopted-resolutions/resolution-promotion-and-protection-rights-intersex-persons">affirmed</a> the right to dignity and bodily integrity of sexual and gender minorities. But it also <a href="https://theconversation.com/lgbtq-rights-african-union-watchdog-goes-back-on-its-own-word-197555">refused</a> to grant observer status to NGOs working to promote these rights.</p><img src="https://counter.theconversation.com/content/215270/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Frans Viljoen does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The trend towards decriminalising same sex relations in the SADC region contrasts with moves towards harsher punishment in other parts of Africa.Frans Viljoen, Director and Professor of International Human Rights Law, Centre for Human Rights, University of PretoriaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1926272022-11-17T19:03:44Z2022-11-17T19:03:44ZWhy is the Qatar FIFA World Cup so controversial?<p>The 2022 men’s FIFA World Cup, starting on Monday, promises to add to Qatar’s status as the Middle East’s sporting hub and a burgeoning global power in <a href="https://oxfordbusinessgroup.com/overview/full-pelt-infrastructure-investment-and-business-partnerships-are-supporting-country%E2%80%99s-rise-become">the business of sport</a>. </p>
<p>The spectacular <a href="https://www.aspirezone.qa/index.aspx?lang=en">Aspire City</a> regularly welcomes <a href="https://repository.lboro.ac.uk/articles/chapter/Qatar_global_sport_and_the_2022_FIFA_World_Cup/9616793/files/17264456.pdf">international teams and tournaments</a>, while the <a href="https://www.cntraveler.com/activities/doha/3-2-1-qatar-olympic-and-sports-museum-qosm">3-2-1 Olympic and Sport Museum</a> features iconic artefacts from global sport. </p>
<p>Although Qatar is hardly renowned as a sports performer, it has brought the world of sport <a href="https://www.sciencespo.fr/kuwait-program/wp-content/uploads/2021/11/sciencespo-kuwait-program-2021-elias-tarek.pdf">to its door</a>. Indeed, sport – along with <a href="https://www.iosrjournals.org/iosr-jbm/papers/Vol22-issue8/Series-5/C2208052333.pdf">tourism</a> – is expected to be a key part of <a href="https://invest.qa/en/media-and-events/news-and-articles/qatar%E2%80%99s-sports-sector-eyes-post-2022-horizon">Qatar’s economic future</a> given its finite reserves of oil and gas.</p>
<p>Yet Qatar’s status as World Cup host has been highly controversial. Why is that so? And how have FIFA and Qatar manoeuvred to deflect criticism?</p>
<h2>Bend it like FIFA</h2>
<p>In 2010, Qatar was the surprise winner of a FIFA vote to stage the 2022 World Cup, a decision critics put down to <a href="https://www.nytimes.com/2020/04/06/sports/soccer/qatar-and-russia-bribery-world-cup-fifa.html">nefarious influences</a> beyond <a href="https://digitalhub.fifa.com/m/3041e390c9c0afea/original/fd4w8qgexnrxmquwsb7h-pdf.pdf">the bid</a> itself.</p>
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<p>It was difficult to reconcile how Qatar, with average daytime summer temperatures over 40°C, was an ideal environment for this tournament.</p>
<p>A few years later, in an <a href="https://theconversation.com/the-world-cup-in-qatar-in-winter-it-might-not-be-all-bad-38005">unprecedented pivot</a>, FIFA allowed Qatar to move the event to its winter, even though that would disrupt prestigious football schedules in the northern hemisphere. </p>
<p>So, despite some critics calling for the World Cup to be <a href="https://bleacherreport.com/articles/1964708-six-reasons-why-the-world-cup-should-be-taken-away-from-qatar">taken from Qatar</a>, this spatially tiny Gulf country with an <a href="https://www.businessinsider.com/how-qatar-got-so-rich-so-fast-2015-5?op=1">exceptionally rich</a> economy from oil and gas, had defiantly retained the imprimatur of the FIFA family.</p>
<h2>Renewed pressure</h2>
<p>However, FIFA’s endorsement of Qatar was soon under renewed pressure, for two main reasons.</p>
<p>First, critics reasserted their dismay that the host nation is hostile to same-sex culture. In 2010, FIFA was well aware of Qatar’s position that homosexuality is an affront to Islam, but it also accepted that Qatar would not resile from its <a href="https://dohanews.co/not-tolerate-homosexuality-qatar/">cultural norms</a>.</p>
<p>In response, then FIFA president Sepp Blatter clumsily quipped that LGBTQI+ football fans might “<a href="https://theconversation.com/world-cup-russia-isnt-safe-for-lgbt-fans-and-qatar-2022-will-be-worse-99540">refrain</a>” from amorous activities while in Qatar.</p>
<p>Second, Qatar had allowed vulnerable <a href="https://www.bbc.com/news/world-60867042">foreign workers</a> – who were central to building World Cup infrastructure – to be exploited, with employment and living conditions consistent with <a href="https://repository.gchumanrights.org/server/api/core/bitstreams/331fa5fc-5699-4969-b879-f79df6f0648c/content">modern slavery</a>. </p>
<p>While it’s <a href="https://www.lemonde.fr/en/les-decodeurs/article/2022/11/15/world-cup-2022-the-difficulty-with-estimating-the-number-of-deaths-on-qatar-construction-sites_6004375_8.html">difficult to procure precise figures</a>, a February 2021 investigation by The Guardian estimated there were around <a href="https://www.theguardian.com/global-development/2021/feb/23/revealed-migrant-worker-deaths-qatar-fifa-world-cup-2022">6,500 workplace fatalities</a> in the decade after Qatar was awarded the World Cup. While not all were working specifically on tournament facilities, <a href="https://www.theguardian.com/global-development/2021/feb/23/revealed-migrant-worker-deaths-qatar-fifa-world-cup-2022">experts say</a> most were employed on infrastructure developments that support the event.</p>
<p>FIFA was well aware that stadium construction would rely on the import of foreign labourers under the Middle East’s notorious “<a href="https://www.cfr.org/backgrounder/what-kafala-system">kafala system</a>”, which empowers wealthy employers to <a href="https://harvardpolitics.com/monetizing-movement-migrants-of-the-kafala-system/">oppress</a> impoverished workers.</p>
<h2>Human rights</h2>
<p>The Western-led reticence towards Qatar being anointed World Cup host undoubtedly spurred an awakening of what has been described as “<a href="https://tilburglawreview.com/articles/10.5334/tilr.189/">FIFA’s sensitivity to human rights</a>”. Two developments stand out.</p>
<p>First, facing concerted pressure about <a href="https://www.tandfonline.com/doi/abs/10.1080/21534764.2012.736204">human rights</a>, the FIFA statutes were amended in 2013 to declare that discrimination on the basis of <a href="https://digitalhub.fifa.com/m/6b5a4157fe01234c/original/bjfuvw5z34ozo0ckqdp6-pdf.pdf">“sexual orientation”</a> is “strictly prohibited and punishable by suspension or expulsion” from football. </p>
<p>However, <a href="https://www.bbc.com/news/world-europe-33044898">World Cup hosts</a> Russia (2018) and Qatar (2022) already held contracts to stage the event in accordance with their own <a href="https://www.vox.com/first-person/2018/6/15/17468282/world-cup-fifa-russia-2018-lgbt-rights">laws and customs</a>, which are <a href="https://digital.sandiego.edu/cgi/viewcontent.cgi?article=1001&context=ilj">hostile to homosexuality</a>. FIFA, by choosing not to press the issue of sexual freedom with either scheduled host, was in effect delaying the application of the <a href="http://fifa.pressfire.net/media/newsletter/Diversity-and-Anti-discrimination-at-FIFA-June-18.pdf">anti-discrimination measures</a> embedded in its amended statute of 2013. </p>
<p>Indeed, for the <a href="https://scholarship.law.umassd.edu/cgi/viewcontent.cgi?article=1212&context=fac_pubs">2026 World Cup</a>, human rights were now a core element of the host city selection process, with candidates required to “<a href="https://www.fifa.com/social-impact/human-rights/news/human-rights-key-focus-for-fifa-world-cup-2026-tm">develop detailed human rights plans</a>”.</p>
<p>Second, facing concerted pressure from <a href="https://www.semanticscholar.org/paper/Building-a-New-Future%3A-The-2022-FIFA-World-Cup-as-a-Crocombe/0473422c9adef6c453eb340a04fd53ec94b90c41">worker rights bodies</a>, FIFA committed to upholding the conventions of the International Labour Organisation. FIFA’s inaugural 2017 <a href="https://www.fifa.com/about-fifa/organisation/news/fifa-publishes-landmark-human-rights-policy-2893311">Human Rights Policy</a> therefore accorded with the <a href="https://www.undp.org/india/publications/united-nations-guiding-principles-business-and-human-rights">UN Guiding Principles on Business and Human Rights</a>. Once again, though, this was a <a href="https://www.hrw.org/news/2017/11/22/time-fifa-act-human-rights">new position</a> – bid agreements for Russia and Qatar were already signed.</p>
<p>FIFA could, if it chose, threaten to <a href="https://researchrepository.wvu.edu/cgi/viewcontent.cgi?article=1060&context=wvlr">withdraw either host contract</a>. But it had no appetite for logistical consequences or potential legal impacts. Instead, in the case of Qatar, <a href="https://insider.espn.com/soccer/fifa-world-cup/story/4617958/fifa-president-gianni-infantino-lauds-qatars-labour-reforms">FIFA comforted itself</a> by advocating for reforms to the working conditions of foreign labourers.</p>
<p>Incremental <a href="https://www.fifa.com/about-fifa/president/news/fifa-welcomes-recognition-of-improved-labour-rights-in-qatar">improvements</a> have indeed followed, notably a move away from the <a href="https://www.bbc.com/news/world-middle-east-38298393">draconian kafala system</a>. </p>
<p>However, according to a report by <a href="https://www.equidem.org/reports/if-we-complain-we-are-fired">Equidem</a>, a human rights and labour rights charity, the <a href="https://www.usatoday.com/story/sports/soccer/worldcup/2022/11/10/2022-world-cup-abuse-migrant-workers-qatar-continues/8315599001/">exploitation of migrant workers has continued</a>, meaning that promised reforms have not been adequately implemented.</p>
<p>What’s more, <a href="https://japantoday.com/category/fifa-world-cup-2022/qatar-rejects-compensation-fund-for-world-cup-migrant-workers">Qatar has fiercely rejected</a> claims by human rights bodies – <a href="https://abcnews.go.com/Sports/wireStory/fifa-open-compensation-fund-migrant-workers-qatar-91442759">along with FIFA</a> – that it ought to compensate the families of foreign workers killed on World Cup infrastructure projects.</p>
<h2>Extraordinary lengths</h2>
<p>Qatar has gone to extraordinary lengths to stage the World Cup, spending an estimated <a href="https://www.webuildvalue.com/en/global-economy-sustainability/qatar-100-billion-on-world-cup-infrastructure.html">US$100 billion on infrastructure</a>. Daytime winter temperatures can often reach around 30°C, so all eight stadiums (seven of which are new) will be <a href="https://www.fifa.com/tournaments/mens/worldcup/qatar2022/news/dr-cool-the-mastermind-behind-qatar-2022-s-air-cooled-stadiums">air-conditioned</a> to at least 24°C.</p>
<p>To move patrons around venues, the <a href="https://propeciapharm.com/2022/09/26/doha-metro-the-perfect-way-to-move-between-the-2022-world-cup-stadiums-soccer/">Doha Metro railway</a> has been created, supplemented by a new <a href="https://www.qatar-tribune.com/article/29506/latest-news/winning-world-cup-bid-led-to-an-overhaul-of-qatars-public-transport-system-minister">bus transit system</a>.</p>
<p><a href="https://www.thenationalnews.com/fifa-world-cup-2022/2022/09/20/11-new-hotels-opening-in-qatar-ahead-of-the-world-cup/">Eleven luxury hotels</a> opened just prior to the World Cup, with the <a href="https://www.statista.com/chart/28707/rooms-in-qatar-for-world-cup/">volume of rooms</a> across Qatar tripling over the past decade. Yet this will be insufficient to house the <a href="https://www.statista.com/chart/28708/number-of-matches-by-fifa-world-cups/">near three million fans</a> who are slated to travel to Doha.</p>
<p>Adding to the mix are <a href="https://en.as.com/en/2020/09/24/soccer/1600949292_830783.html">cruise ships</a> and mini “<a href="https://thepeninsulaqatar.com/article/19/01/2020/16-floating-hotels-to-accommodate-Qatar-World-Cup-2022-fans">floating hotels</a>”, as well as tiny porta cabins and tents in the <a href="https://www.thesun.co.uk/sport/20376109/qatar-world-cup-rooms-fans-village-2022/">fan village</a>.</p>
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<p>Qatar claims the World Cup will be <a href="https://www.goal.com/en/news/qatar-2022-what-is-a-carbon-neutral-world-cup-what-does-it/blt6fd277744519c32e">carbon neutral</a> courtesy of <a href="https://gulfnews.com/business/energy/qatar-inaugurates-solar-plant-as-fifa-world-cup-approaches-1.1666114146214">renewable energies</a> and <a href="https://www.ctvnews.ca/sports/explainer-carbon-offsets-for-world-cup-in-qatar-1.6142306">carbon offsets</a>, such as the ten-fold growth of <a href="https://www.qatar-tribune.com/article/28820/latest-news/qatars-green-space-increased-10-times-since-2010-minister/amp">green spaces</a> around Doha, including over one million new trees.</p>
<p><a href="https://www.pbs.org/newshour/world/qatars-carbon-neutral-world-cup-raises-doubts-from-climate-experts">Some climate experts</a> have questioned the robustness of such claims.</p>
<p>But the deployment of <a href="https://www.agbi.com/articles/qatar-may-change-dismantling-plans-for-world-cup-stadiums/">recycled shipping containers</a> in stadium construction, as well as the planned <a href="https://timesofindia.indiatimes.com/sports/football/top-stories/qatar-looking-beyond-world-cup-2022-for-stadium-usage/articleshow/88718245.cms">donation of temporary seating</a> in several arenas, speak to Qatar’s rising <a href="https://www.qatar2022.qa/en/sustainability">commitment to sustainability</a>.</p>
<h2>Temporarily adjusting local norms</h2>
<p>Qatar, though staging a global event, is doing so through a local prism. It’s the first Muslim country to host the World Cup, and therefore brings its own world view to FIFA’s showpiece.</p>
<p>Two issues are likely to test both the hosts and football fans.</p>
<p>First, the World Cup has long been associated with the demonstrative consumption of copious amounts of alcohol. Although alcohol is available in Qatar, drinking in public is <a href="https://www.dohaguides.com/drinking-alcohol-in-qatar/">against the law</a>.</p>
<p>This position has been modified for the World Cup: alcohol will be sold in stadium compounds, but not during games. Fans will have to quench their thirst in a time frame of <a href="https://www.reuters.com/lifestyle/sports/exclusive-soccer-qatar-allow-beer-sales-world-cup-games-3-hours-before-kickoff-2022-09-03/">three hours before kick-off, and one hour after kick-off</a>. </p>
<p>Meanwhile, though, Qatar’s 40,000 capacity <a href="https://www.timeoutdoha.com/sport-wellbeing/world-cup-qatar-2022-fan-zones">Fan Zone</a> allows the sale of alcohol from 6:30pm to 1:00am, so watching evening games on a big screen while chugging a beer is feasible. But those who drink too much risk being temporarily housed in “<a href="https://africa.espn.com/football/fifa-world-cup/story/4769547/qatar-to-send-drunk-fans-to-sobering-up-areas-during-world-cup">sobering tents</a>”.</p>
<p>Second, Qatar has tried to assure football fans of any sexual orientation they will be <a href="https://www.pinknews.co.uk/2019/09/27/qatar-world-cup-2022-fifa-anti-gay-sex-homosexuality/">safe and welcome</a>, though with the caveat that public displays of affection – of any kind – are generally “frowned upon” locally.</p>
<p>As with alcohol, it now appears Qatar will temporarily accommodate different standards. According to a <a href="https://nltimes.nl/2022/11/11/qatar-says-wont-prosecute-drunk-football-fans-lgbti-world-cup-report">report by a Dutch news site</a>, which said it had seen documents shared between tournament organisers and Qatari police, people from the LGBTQI+ community who “show affection in public will not be reprimanded, detained, or prosecuted. They may carry rainbow flags. Same-sex couples can share a hotel room”.</p>
<p>The world has come to Qatar and, for a time at least, it’s adjusting its local norms. A more enduring World Cup legacy has been incremental reforms to the treatment of foreign workers, though an <a href="https://www.humanrights.unsw.edu.au/research/commentary/explainer-human-rights-fifa-world-cup-qatar">absence of an effective remedy</a> for the families of deceased workers continues to raise a bloody red card upon Qatar.</p><img src="https://counter.theconversation.com/content/192627/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Daryl Adair does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>And how have FIFA and Qatar manoeuvred to deflect criticism?Daryl Adair, Associate Professor of Sport Management, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1166522019-09-20T12:36:15Z2019-09-20T12:36:15ZAn origin story for the queer community<figure><img src="https://images.theconversation.com/files/280110/original/file-20190618-118505-19o6qgq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Same sex sexual behavior is common to many species and evolved millions of years ago.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/happy-gay-couple-spending-time-together-771563650?src=Ww18IcfUgUdoUVbIwBZsJg-1-5&studio=1">oneinchpunch/Shutterstock.com</a></span></figcaption></figure><p>I came out to a Christian counselor during a therapy session in 2001 when I was 14. He convinced me to engage in conversion therapy, a pseudoscientific practice to change an individual’s sexual orientation based in the assumption that such behaviors are “unnatural.” He produced an article describing a <a href="https://www.nytimes.com/2001/05/09/us/study-says-gays-can-shift-sexual-orientation.html">talk at that year’s American Psychological Association conference that indicated the therapy worked</a>.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/285210/original/file-20190722-11376-8jtale.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/285210/original/file-20190722-11376-8jtale.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/285210/original/file-20190722-11376-8jtale.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=484&fit=crop&dpr=1 600w, https://images.theconversation.com/files/285210/original/file-20190722-11376-8jtale.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=484&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/285210/original/file-20190722-11376-8jtale.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=484&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/285210/original/file-20190722-11376-8jtale.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=608&fit=crop&dpr=1 754w, https://images.theconversation.com/files/285210/original/file-20190722-11376-8jtale.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=608&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/285210/original/file-20190722-11376-8jtale.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=608&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Andrew Cuomo speaks before signing an anti-discrimination bill into law in New York, Jan. 25, 2019.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Transgender-Discrimination/d2fb1385af4548439274d07361dc603b/50/0">AP Photo/Bebeto Matthews</a></span>
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<p>This painful experience encouraged me, when I started my scientific career, to examine queerness in biology. </p>
<h2>The queer community, 25 million years (or more) in the making</h2>
<p>Understanding how complex human relationships developed requires a complete picture of our social behavior during evolution. I believe leaving out important behaviors, like same-sex sexual behavior, can bias the models we use to explain social evolution. </p>
<p>Many researchers have postulated how queer behaviors, like same-sex sexual behavior, <a href="https://doi.org/10.1086/300145">may have developed</a> or how they are expressed. Recently, scientists at the Broad Institute of Harvard and MIT published a paper suggesting <a href="https://theconversation.com/stop-calling-it-a-choice-biological-factors-drive-homosexuality-122764">a genetic component to same-sex sexual behavior expression</a> in modern humans. </p>
<p>However, no studies provide an argument of when queer behavior may have arisen during humans’ evolution. Such research would push back against the assertions I encountered during my youth, that queerness is a modern aberration. </p>
<p>A <a href="https://doi.org/10.1007/s10508-018-1377-2">new paper I was the principal researcher on</a>, published in the Archives of Sexual Behavior, argues that queer behavior appeared well before humans.</p>
<p>My paper relies on a systematic review of published literature to lay out a relationship between the loss of a gene called TRPC2 and same-sex sexual behavior. </p>
<p><a href="http://doi.org/10.1007/978-3-540-34891-7_3">No modern humans carry a working copy of the TRPC2 gene</a>. TRPC2 was functional in a primate-like animal 65 million years ago. This animal would evolve into two lineages. One branch would lead to new world monkeys and another to old world monkeys and apes. The ancestor of new world monkeys never lost the TRPC2 gene. However, the primate-like ancestor of humans and our closest primate relatives – apes and old world monkeys – <a href="https://doi.org/10.1073/pnas.1331721100">lost function of TRPC2</a> some time between <a href="https://doi.org/10.1073/pnas.0636123100">23-40 million years ago</a>. </p>
<p>New world monkeys do not, or very rarely, display same-sex sexual behavior. However, same-sex sexual behavior is routinely expressed by individuals in virtually all primate species that did not receive a functional TRPC2 from their ancestor. </p>
<p>One way to test this hypothesis would involve removing TRPC2 from animals with an intact gene and observing how their behavior changes. Fortunately, this experiment has been done and, indeed, loss of TRPC2 induces same-sex sexual behavior in <a href="https://doi.org/10.1073/pnas.082127599">mice</a>.</p>
<p>I find it interesting that same-sex sexual behavior is also common in <a href="https://doi.org/10.1093/molbev/msq207">other animal groups that have lost TRPC2</a> such as <a href="https://doi.org/10.4404/hystrix-22.1-4478">bats</a> <a href="https://doi.org/10.1093/molbev/msq027">and</a> <a href="https://us.macmillan.com/books/9780312253776">whales</a>.</p>
<p><figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/285211/original/file-20190722-11355-11gomlk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/285211/original/file-20190722-11355-11gomlk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/285211/original/file-20190722-11355-11gomlk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/285211/original/file-20190722-11355-11gomlk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/285211/original/file-20190722-11355-11gomlk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/285211/original/file-20190722-11355-11gomlk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/285211/original/file-20190722-11355-11gomlk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/285211/original/file-20190722-11355-11gomlk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Bats and whales (below) both display same sex and opposite sex, sexual behavior.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/fruit-bat-hanging-on-tree-forest-1146803030?src=7BI3hcSW5UIyWOdmXl1NZQ-1-3&studio=1">jekjob/Shutterstock.com</a></span>
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<a href="https://images.theconversation.com/files/285212/original/file-20190722-11370-12q7wcd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/285212/original/file-20190722-11370-12q7wcd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/285212/original/file-20190722-11370-12q7wcd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/285212/original/file-20190722-11370-12q7wcd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/285212/original/file-20190722-11370-12q7wcd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/285212/original/file-20190722-11370-12q7wcd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/285212/original/file-20190722-11370-12q7wcd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/285212/original/file-20190722-11370-12q7wcd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/1379323232?src=ivG704QpzkYAaBXX4U0CIg-1-7&studio=1">Earth theater/Shutterstock.com</a></span>
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<p>In my article, co-authored with <a href="https://msu.edu/%7Ebjlab/index.html">Cynthia Jordan and Marc Breedlove</a>, I suggest that TRPC2 gene loss introduced queer behavior into our evolution. I connect the loss of TCRP2 to published changes in the nervous system of primates and the emergence of same-sex sexual behavior and have examined this connection in the brains of mice in which TRPC2 has been disabled. </p>
<p>As part of my own research, I utilized mice lacking TRPC2 and showed that their unique behaviors are accompanied by altered cell populations in the brain. A fascinating finding given TRPC2 expression lies outside the central nervous system. Perhaps these changes to neural pathways in the brain contribute to same-sex sexual behavior in mice. It is fascinating to imagine similar changes may have occurred in the brains of human ancestors after they lost TRPC2, allowing the same behavior.</p>
<p>Importantly, TRPC2 is not a “gay” gene – the largest population without the gene are heterosexuals. TRPC2 loss presents one possible origin for same-sex sexual behavior: the time point when it first appeared during our evolution. In the absence of TRPC2, species appear to have more diversity in sexual partners, which certainly shaped the evolution of primate sexuality. This leads me to hypothesize that same-sex sexual behavior is expressed by some humans in part because our ancestors lost TRPC2. Still, the ability to express same-sex sexual behavior represents only a small step toward <a href="https://doi.org/10.1007/s10508-015-0490-8">developing the complex human identities</a> that exist today. </p>
<h2>Queer in science</h2>
<p>When I first heard of the <a href="http://doi.org/10.1038/nature06089">TRPC2 knockout mice</a> in 2009 and that no human has the gene, I was immediately captivated. </p>
<p>While studies have shown that the environment in STEM fields can be <a href="https://doi.org/10.1126/sciadv.aao6373">homophobic</a> and <a href="https://doi.org/10.3390/socsci6010012">transphobic</a>, I was persistent and found supportive mentors. I started working with <a href="https://perl.calpoly.edu/">Emily Taylor</a> and <a href="https://bio.calpoly.edu/content/Strand">Christy Strand</a> examining hormones, the brain and behavior. I felt drawn to the field of sex differences and I joined a graduate neuroscience program to study them with <a href="https://msu.edu/%7Ebjlab/">Cynthia Jordan and Marc Breedlove</a>.</p>
<p>I introduced TRPC2 knockout mice to the <a href="https://msu.edu/%7Ebjlab/">Breedlove/Jordan lab for neuroscience research</a>. While investigating previous work on these mice, I examined the information through the lens of my own queer experiences and needs. Eventually, I produced my argument on the origin of same-sex sexual behavior in human ancestry, which led to the recently published paper in <a href="https://doi.org/10.1007/s10508-018-1377-2">the journal Archives of Sexual Behavior</a>.</p>
<p>Some queer individuals may find this study affirms their experiences and I hope to continue supporting the queer community in my future career by addressing our unique health concerns through translational research.</p>
<p>[ <em>Like what you’ve read? Want more?</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=likethis">Sign up for The Conversation’s daily newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/116652/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Daniel Pfau received funding from a National Science Foundation Graduate Research Fellowship while developing their manuscript. They are a lead organizer for the Lansing Queering Medicine grass-roots organization.</span></em></p>Conversion therapy has been pushed on some in the LGBQ community by those who think same-sex sexual behavior is ‘unnatural.’ But such behavior seems to have evolved millions of years before humans.Daniel Pfau, PhD candidate Department of Neuroscience, Michigan State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1227642019-09-03T13:40:36Z2019-09-03T13:40:36ZStop calling it a choice: Biological factors drive homosexuality<figure><img src="https://images.theconversation.com/files/290563/original/file-20190902-175705-15kuqu2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Biological factors shape sexual preference.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/lgbt-lesbian-couple-moments-happiness-concept-575079754?src=-1-53">Rawpixel.com/SHutterstock.com</a></span></figcaption></figure><p><a href="https://doi.org/10.1126/science.aat7693">Across cultures, 2% to 10% of people report having same-sex relations</a>. In the U.S., <a href="https://www.statista.com/topics/1249/homosexuality/">1% to 2.2% of women and men</a>, respectively, identify as gay. Despite these numbers, <a href="https://www.pewresearch.org/global/2013/06/04/the-global-divide-on-homosexuality/">many people still consider homosexual behavior to be an anomalous choice</a>. However, biologists have <a href="https://us.macmillan.com/books/9780312253776">documented homosexual behavior in more than 450 species</a>, arguing that same-sex behavior is not an unnatural choice, and may in fact play a vital role within populations.</p>
<p>In <a href="https://doi.org/10.1126/science.aat7693">a 2019 issue of Science magazine</a>, geneticist Andrea Ganna at the Broad Institute of MIT and Harvard, and colleagues, described the largest survey to date for genes associated with same-sex behavior. By analyzing the DNA of nearly half a million people from the U.S. and the U.K., they concluded that genes account for between 8% and 25% of same-sex behavior. </p>
<p><a href="https://www.nature.com/news/sex-redefined-1.16943">Numerous studies have established that sex is not just male or female</a>. Rather, it is a continuum that emerges from a person’s genetic makeup. Nonetheless, misconceptions persist that same-sex attraction is a choice that warrants condemnation or <a href="https://www.apa.org/pi/lgbt/resources/just-the-facts">conversion</a>, and leads to discrimination and persecution.</p>
<p><a href="https://wjsulliv.wixsite.com/sullivanlab">I am a molecular biologist</a> and am interested in this new study as it further illuminates the genetic contribution to human behavior. As the author of the book, <a href="https://www.penguinrandomhouse.com/books/608709/pleased-to-meet-me-by-bill-sullivan/9781426220555/">“Pleased to Meet Me: Genes, Germs, and the Curious Forces That Make Us Who We Are,”</a> I have done extensive research into the biological forces that conspire to shape human personality and behavior, including the factors influencing sexual attraction.</p>
<h2>The hunt for ‘gay genes’</h2>
<p>The new finding is consistent with multiple earlier studies of twins that indicated same-sex attraction is a heritable trait.</p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/290580/original/file-20190902-175663-baya3w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/290580/original/file-20190902-175663-baya3w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=1200&fit=crop&dpr=1 600w, https://images.theconversation.com/files/290580/original/file-20190902-175663-baya3w.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=1200&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/290580/original/file-20190902-175663-baya3w.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=1200&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/290580/original/file-20190902-175663-baya3w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1508&fit=crop&dpr=1 754w, https://images.theconversation.com/files/290580/original/file-20190902-175663-baya3w.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1508&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/290580/original/file-20190902-175663-baya3w.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1508&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A new study suggests that genes are responsible for between 8% and 25% of same-sex preference.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-illustration/dna-multi-color-isolated-on-white-717211195?src=-1-47">Guru 3D</a></span>
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<p>The 2019 study is the latest in a hunt for “gay genes” that began in 1993, when Dean Hamer <a href="https://doi.org/10.1126/science.8332896">linked male homosexuality to a section of the X chromosome</a>. As the ease and affordability of genome sequencing increased, additional gene candidates have emerged with potential links to homosexual behavior. So-called <a href="https://doi.org/10.1038/s41598-017-15736-4">genome-wide association studies identified a gene called <em>SLITRK6</em></a>, which is active in a brain region called the diencephalon that differs in size between people who are homosexual or heterosexual.</p>
<p>Genetic studies in mice have uncovered additional gene candidates that could influence sexual preference. A 2010 study <a href="https://doi.org/10.1186/1471-2156-11-62">linked sexual preference to a gene called fucose mutarotase</a>. When the gene was deleted in female mice, they were attracted to female odors and preferred to mount females rather than males. </p>
<p>Other studies have shown that <a href="https://doi.org/10.1038/nature06089">disruption of a gene called <em>TRPC2</em></a> can cause female mice to act like males. <a href="https://doi.org/10.1126/science.1069259">Male mice lacking <em>TRPC2</em></a> no longer display male-male aggression, and they initiate sexual behaviors toward both males and females. Expressed in the brain, <em>TRPC2</em> functions in the recognition of pheromones, chemicals that are released by one member of a species to elicit a response in another.</p>
<p>With multiple gene candidates being linked to homosexuality, it seemed highly unlikely that a single “gay” gene exists. This idea is further supported by <a href="https://doi.org/10.1126/science.aat7693">the new study</a>, which identified five new genetic loci (fixed positions on chromosomes) correlating with same-sex activity: two that appeared in men and women, two only in men, and one only in women.</p>
<h2>How might these genes influence same-sex behavior?</h2>
<p>I find it intriguing that some of the genes from men identified in Ganna’s study are associated with olfactory systems, a finding that has parallels to the work in mice. Ganna’s group found other gene variants that may be linked with sex hormone regulation, which other scientists have previously suggested plays a large role in shaping the brain in ways that influence sexual behavior. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/290575/original/file-20190902-175691-1l5i9pk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/290575/original/file-20190902-175691-1l5i9pk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=846&fit=crop&dpr=1 600w, https://images.theconversation.com/files/290575/original/file-20190902-175691-1l5i9pk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=846&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/290575/original/file-20190902-175691-1l5i9pk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=846&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/290575/original/file-20190902-175691-1l5i9pk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1063&fit=crop&dpr=1 754w, https://images.theconversation.com/files/290575/original/file-20190902-175691-1l5i9pk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1063&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/290575/original/file-20190902-175691-1l5i9pk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1063&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Conditions in the uterus during pregnancy are thought to influence the sexual preferences of the child.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/beautiful-pregnant-woman-shopping-bags-outdoors-503149633?src=-1-18">Anna Om/Shutterstock.com</a></span>
</figcaption>
</figure>
<p>Males with a genetic condition called <a href="https://ghr.nlm.nih.gov/condition/androgen-insensitivity-syndrome">androgen insensitivity syndrome</a> can develop female genitalia and are usually brought up as girls, despite being genetically male – with an X and Y chromosome – and they are attracted to men. This suggests that testosterone is needed to “masculinize” a prenatal brain; if that doesn’t happen, the child will grow up to desire men. </p>
<p>Similarly, girls who have a genetic condition called <a href="https://www.nichd.nih.gov/health/topics/cah">congenital adrenal hyperplasia</a> are exposed to unusually high levels of male hormones like testosterone while in the womb, which may masculinize their brain and increase the odds of lesbianism. </p>
<p>It’s also possible that hormonal shifts during pregnancy could affect how a fetus’ brain is configured. In rats, <a href="https://doi.org/10.1210/en.2011-0277">manipulation of hormones during pregnancy</a> produces offspring that exhibit homosexual behavior.</p>
<h2>Why does homosexual behavior exist?</h2>
<p>Several hypotheses have been advanced to explain how homosexuality can be beneficial in perpetuating familial genes. One idea involves the concept of kin selection, whereby people work to ensure the passage of their family’s genes into subsequent generations. Gay uncles and aunts, for example, are “<a href="https://doi.org/10.1177/0956797609359623">helpers in the nest</a>” that help raise other family members’ children to nurture the family tree.</p>
<p>Another idea suggests that homosexuality is a “trade-off trait.” For example, certain genes in women help increase their fertility, but <a href="https://doi.org/10.1111/j.1743-6109.2008.00944.x">if these genes are expressed in a male</a>, they predispose him toward homosexuality.</p>
<p>Sexual behavior is widely diverse and governed by sophisticated mechanisms throughout the animal kingdom. As with other complex behaviors, it is not possible to predict sexuality by gazing into a DNA sequence as if it were a crystal ball. Such behaviors emerge from constellations of hundreds, perhaps thousands, of genes, and how they are regulated by the environment.</p>
<p>While there is no single “gay gene,” there is overwhelming evidence of a biological basis for sexual orientation that is programmed into the brain before birth based on a mix of genetics and prenatal conditions, none of which the fetus chooses.</p>
<p>[ <em>You’re smart and curious about the world. So are The Conversation’s authors and editors.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=youresmart">You can read us daily by subscribing to our newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/122764/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bill Sullivan does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A new study of nearly 500,000 individuals finds that many genes affect same-sex behavior, including newly identified candidates that may regulate smell and sex hormones.Bill Sullivan, Professor of Pharmacology & Toxicology, Indiana University School of MedicineLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1187132019-06-12T14:11:59Z2019-06-12T14:11:59ZBotswana court ruling is a ray of hope for LGBT people across Africa<figure><img src="https://images.theconversation.com/files/279163/original/file-20190612-32321-qestc4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Botswana's LGBTI community is celebrating the decriminalisation of gay sex.</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Botswana’s High Court has ruled that private consensual sex between adults of the same sex is <a href="https://www.iol.co.za/news/africa/botswana-decriminalises-homosexuality-in-historic-court-ruling-25898215">no longer criminal</a>. The decision gives hope to lesbian, gay, bisexual and transgender (LGBT) people in African countries that still have similar laws in place. Most share a common history, with criminalisation finding its way into local law through British colonial penal codes inspired by <a href="https://study.com/academy/lesson/victorian-code-of-morality.html">Victorian-age morality</a>. In total, 32 African states <a href="https://76crimes.com/76-countries-where-homosexuality-is-illegal/">still criminalise</a> same-sex acts.</p>
<p>Sixteen years ago, Botswana’s courts took a different view. Responding to a similar challenge, the High Court in 2003 invoked public morality to justify keeping these provisions of the Penal Code. This decision was confirmed by the Court of Appeal, <a href="http://www.elaws.gov.bw/desplaylrpage.php?id=1910&dsp=2">which found that</a> there was no evidence that the “approach and attitude” of the society “required a decriminalisation of those practices”. The Court did observe that the “time has not yet arrived to decriminalise homosexual practices even between consenting adult males in private”.</p>
<p>By placing less emphasis on public opinion, and questioning public morality as the basis of its decision, the latest High Court decision shows that times have indeed changed. </p>
<p>People who face human rights violations often turn to the judiciary on matters of changing morality, especially when issues are controversial. The scrapping of similar laws across the globe has often come about as a result of judicial decisions, as was the case <a href="https://www.aljazeera.com/indepth/opinion/india-decriminalises-gay-sex-win-supreme-court-180907072522252.html">in India in 2018</a>.</p>
<p>But, pockets of resistance remain. Weeks ago, the Nairobi High Court <a href="http://kenyalaw.org/caselaw/cases/view/173946/">decided differently</a>. An appeal in this case is however pending. </p>
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Read more:
<a href="https://theconversation.com/homosexuality-remains-illegal-in-kenya-as-court-rejects-lgbt-petition-112149">Homosexuality remains illegal in Kenya as court rejects LGBT petition</a>
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<p>What factors made this judgement possible? Are there lessons to take on board by the Kenyan Court of Appeal Kenya and other courts in Africa?</p>
<h2>Factors that led to change</h2>
<p>An important factor is that civil society prepared the ground by organising, over an extended period, the integration of LGBT issues – such as the risk and effects of HIV infection – into general human rights concerns.</p>
<p>The most prominent LGBT organisation in the country, <a href="https://legabibo.wordpress.com/">Lesbians, Gays and Bisexuals of Botswana</a>, has been around since 1998. In its foundation and growth, the organisation closely associated itself with two “mainstream” human rights organisations – <a href="https://www.eldis.org/organisation/A35588">Ditshwanelo - Botswana Centre for Human Rights</a> and <a href="https://www.bonela.org/">Botswana Network on Ethics, Law and HIV/AIDS</a>.</p>
<p>The organisation built a public profile and fostered broad collaboration. It sought but was denied official registration in 2005. But in the process, it involved a prominent public figure, former High Court <a href="https://web.archive.org/web/20130414234448/http:/www.sundaystandard.info/article.php?NewsID=16588&GroupID=1">Judge Unity Dow</a>. It finally got official recognition in 2016 which enabled it to formally support the recent case, by acting as a <a href="https://legal-dictionary.thefreedictionary.com/Friend-of-the-court+brief">friend of the court</a>.</p>
<p>The state, through its three arms of government – legislature, executive and judiciary – also played its part, in various ways, by publicly recognising the equal dignity of LGBT persons.</p>
<p>In 2010, the legislature amended the <a href="https://www.icj.org/sogi-legislative-database/botswana-sogi-legislation-country-report-2013/">Employment Act</a>, to prohibit discrimination based on sexual orientation in employment. Similar laws exist in only a few African states, like <a href="http://www.labour.gov.za/DOL/downloads/legislation/acts/employment-equity/eegazette2015.pdf">South Africa</a>, <a href="https://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---ilo_aids/documents/legaldocument/wcms_361981.pdf">Mozambique</a> and the <a href="https://www.ilo.org/dyn/travail/docs/2100/Employment%20Act%201995%20-%20amended%20to%20Act%204%20of%202006%20-%20www.employment.gov.sc.pdf">Seychelles</a>.</p>
<p>The country’s courts also played a role in establishing that LGBT persons are protected under Botswana’s <a href="https://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---ilo_aids/documents/legaldocument/wcms_125669.pdf">Constitution</a>. Apart from the ruling on Lesbians, Gays and Bisexuals of Botswana, which was confirmed by the <a href="https://www.bbc.com/news/world-africa-30054459">Court of Appeal</a> the High Court made two crucial judgements. One included ruling that a refusal to change the gender markers in transgender persons’ identity documents violated a number of constitutional rights, including privacy, freedom of expression, and equal <a href="https://www.southernafricalitigationcentre.org/2017/09/29/press-release-botswana-high-court-rules-in-landmark-gender-identity-case/">protection of the law</a>. </p>
<p>But members of the executive made the most telling contribution in preparing the ground for the High Court’s favourable 11 June finding. In 2018, President Mokgweetsi Masisi <a href="https://www.mambaonline.com/2018/12/10/botswanas-new-president-acknowledges-lgbti-peoples-rights/">publicly acknowledged that</a> </p>
<blockquote>
<p>(people in same-sex relationships in Botswana) have been violated and have also suffered in silence for fear of being discriminated. </p>
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<p>Former President Festus Mogae also <a href="https://www.telegraph.co.uk/news/worldnews/africaandindianocean/botswana/8839131/Botswana-should-decriminalise-homosexuality-says-former-president.html">urged</a> greater tolerance and acceptance of LGBT persons in the country, although he only did so after he had stood down. </p>
<p>Even former President Ian Khama, who was generally much more muted on the subject, ordered the arrest and deportation of a US pastor Steven Anderson in 2016 after he called for the <a href="https://www.reuters.com/article/us-botswana-lgbt-idUSKCN11Q1CS">killing of gays and lesbians</a>.</p>
<p>Other factors also promoted a favourable climate. One was HIV. Botswana was able to turn around a very high prevalence rate by focusing on making sure people had <a href="https://www.viivhealthcare.com/en-gb/our-stories/advancing-hiv-treatment-and-care/helping-botswana-treat-all-people-living-with-hiv/">access to treatment</a>, and through public debate that stimulated more open and honest discussions about sexuality. </p>
<p>All these factors contributed to greater acceptance among the general public. In a <a href="http://afrobarometer.org/sites/default/files/publications/Dispatches/ab_r6_dispatchno74_tolerance_in_africa_eng1.pdf">2014/15 survey</a> by Afrobarometer, the independent African research network, 43% of respondents in Botswana showed tolerance towards homosexuals. </p>
<h2>A landmark and precedent</h2>
<p>This decision is a landmark. It sets a precedent on which other African courts can rely. These includes the Kenyan Court of Appeal. But the situation in Kenya differs in important respects. Its political elite has not taken a public stance that accepts LGBT people. Also, the 2014/15 Afrobarometer survey put public acceptance of LGBT people in Kenya at <a href="http://afrobarometer.org/sites/default/files/publications/Dispatches/ab_r6_dispatchno74_tolerance_in_africa_eng1.pdf">only 14%</a>.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/abolition-of-angolas-anti-gay-laws-may-pave-the-way-for-regional-reform-111432">Abolition of Angola's anti-gay laws may pave the way for regional reform</a>
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<p>The legal landscape also differs. Article 45(2) of <a href="http://www.kenyalaw.org/lex/actview.xql?actid=Const2010">Kenya’s Constitution </a> states that:</p>
<blockquote>
<p>(adults have) the right to marry a person of the opposite sex, based on the free consent of the parties.</p>
</blockquote>
<p>This has been interpreted as a ban on same-sex relationships, and was pivotal in the recent Kenyan High Court decision.</p>
<p>Perhaps other southern African courts hold more promise. Of the seven most “tolerant” countries in the Afrobarometer survey, five are from southern Africa. They are South Africa, Mozambique, Botswana, Mauritius <a href="http://afrobarometer.org/sites/default/files/publications/Dispatches/ab_r6_dispatchno74_tolerance_in_africa_eng1.pdf">and Namibia</a>.</p>
<p>Laws criminalising consensual same-sex relations have been scrapped in South Africa, Mozambique and Botswana. But they remain in place in Mauritius and Namibia. These two countries seem to provide fertile ground for the next challenges to eventually ensure that Africa is rid of colonial relics that continue to deny the full humanity and citizenship of many people on the continent.</p><img src="https://counter.theconversation.com/content/118713/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Frans Viljoen works for the University of Pretoria. He has received funding from the National Research Foundation. </span></em></p>By placing less emphasis on public opinion, and questioning public morality as the basis of its decision, the latest High Court decision shows that times have indeed changed.Frans Viljoen, Director and Professor of International Human Rights Law, Centre for Human Rights, University of PretoriaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/845922017-09-27T20:01:26Z2017-09-27T20:01:26ZWhat economics has to say about same-sex marriage<p>Love and companionship make most people happy and generally represent two of the key reasons why couples marry.</p>
<p>In the economists’ view, love and companionship are a particular type of commodity: they cannot be purchased or traded on a market, but they can be produced by a household to generate happiness for its members.</p>
<p>There are potentially many other of these “household-produced” commodities, including raising children, preparing meals, caring for each other, and achieving economic stability. </p>
<p>The question is then how to produce these commodities more efficiently so that people are happier.</p>
<p>Efficiency in this case does not just mean “more”, but also “better quality” commodities. For instance, the happiness of a person is not just determined by the number of meals prepared and consumed, but also by their quality. </p>
<p>Economists look at marriage in this context. Examining the commodities marriage can produce helps us understand why people marry, how individuals sort each other into married couples, and what this means for society as a whole. </p>
<p>It turns out that economics does a pretty good job at explaining and predicting patterns in marriage that would otherwise appear irrational. For example economics can help explain why there is a difference between married and non-married people when it comes to if, and eventually how much, they want to work. </p>
<h2>We marry because…</h2>
<p>The fundamental economic view of marriage goes back to the <a href="http://www.nber.org/chapters/c2970.pdf">theory</a> of Nobel Laureate Gary Becker.</p>
<p>People can produce household commodities in some amount without necessarily having to marry. However, when people marry, they pool their resources together (the most important one being time) and can specialise in certain tasks. This allows them to produce more and better quality household commodities.</p>
<p>For instance, by sharing tasks such as shopping and cleaning, a married couple can produce better quality meals than two individuals that shop, clean and cook separately. </p>
<p>In principle, the same productivity gains could arise from a co-habitation or de facto relationship. However, in this case, the two people in the relationship would also have to set up contracts to figure out important arrangements like household finance and inheritance (among other things). </p>
<p>There also is some <a href="https://theconversation.com/explainer-what-legal-benefits-do-married-couples-have-that-de-facto-couples-do-not-83896">significant costs</a>, not only in money but in time, in working all of this out. Whereas a marriage contract already embeds some of these aspects. That in itself is an efficiency gain associated with marriage over cohabitation or de facto relationship.</p>
<p>So, if people want the commodities we mentioned: love, company, doing tasks together, they are better off (i.e. happier) if marriage is permitted. </p>
<p>This whole framework doesn’t require people to be of the same or different sex. Heterosexual and homosexual couples will generate different patterns in terms of what commodities they produce. Still, marriage will generate some productivity and efficiency gains for couples, irrespective of their gender. </p>
<h2>What economics has to say about the effect on the rest of society</h2>
<p>From an economic perspective, the fact that same-sex marriage allows people to achieve some productivity and efficiency gains (which some of us might call happiness!) does not automatically mean that it should be established by law. For example, if same-sex marriage were to produce some negative effects on the rest of the society.</p>
<p>In this regard, the public debate has focused on how permitting same-sex marriage would (or would not) reduce overall marriage in society, increase divorce rates, or lessen the importance of having children in marriage. </p>
<p>In fact, there’s now a growing body of empirical research, published across various fields (from economics, to demography, sociology, and public policy), that estimates the impact of permitting same-sex marriage on marriage, abortion, and divorce rates (or couple stability).</p>
<p><a href="http://onlinelibrary.wiley.com/doi/10.1111/j.1540-6237.2009.00618.x/abstract">A study in 2009</a>, using US data, found no statistically significant adverse effect from allowing gay marriage. Another <a href="https://link.springer.com/article/10.1007/s13524-013-0277-2">US study in 2014</a> found no evidence that allowing same-sex couples to marry reduces the opposite-sex marriage rate.</p>
<p>One <a href="https://link.springer.com/article/10.1007/s13524-016-0490-x">more study indicated</a> that same-sex couples experience levels of stability similar to heterosexual couples. That study also found that for couples (both same-sex and different-sex) living in a state with a ban against same-sex marriage there was an associated instability.</p>
<p>To some extent, findings from this line of research are still preliminary and have to be taken with caution. This is because same-sex marriage, even where permitted, has been introduced only recently. Therefore only a relatively short time span is available to observe its effects. So the jury is still out.</p>
<p>However, my own reading of the research produced so far is that there is generally little evidence of significant negative societal effects of same-sex marriage.</p>
<p>Going forward, as more data becomes available, empirical research will allow for a more refined assessment of the impact of same-sex marriage on society and the extent to which permitting same-sex marriage could (or not) weaken the social purpose of traditional marriage.</p><img src="https://counter.theconversation.com/content/84592/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Fabrizio Carmignani receives funding from the Australian Research Council for a project on the estimation of the piecewise linear continuous model and its application in macroeconomics.</span></em></p>It’s better for the economy for more people to be married because of productivity and efficiency gains. This whole framework doesn’t require people to be of the same or different sex.Fabrizio Carmignani, Professor, Griffith Business School, Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/812842017-09-01T07:40:29Z2017-09-01T07:40:29ZThe British Empire’s homophobic legacy could finally be overturned in India<p>In a landmark <a href="http://www.independent.co.uk/news/world/asia/india-sexual-orientation-freedom-sexuality-fundamental-right-ruling-openly-lgbt-gay-lesbian-a7913681.html">ruling</a>, India’s Supreme Court has confirmed an individual’s right to privacy – including sexual orientation – under the country’s constitution. The ruling on August 24 offers new hope for the LGBTQ+ community in India, still living under the homophobic legacy of the British Empire which criminalised same-sex relationships. A formal judgement on the law, known as Section 377, is <a href="https://www.hrw.org/news/2017/08/24/indias-supreme-court-upholds-right-privacy">still pending</a> and the hope is that the court will repeal this toxic colonial hangover.</p>
<p>This legacy dates back 157 years to a dark part of imperial history. In 1860, the British Raj – the empire in India – had been in place for three years. The British East India Company had given way to crown control after the <a href="https://www.britannica.com/event/Indian-Mutiny">1857 Sepoy Rebellion</a> and justified its conquest with a promise of bringing “civilisation” to its colonies. Part of this civilising rhetoric was tied in with reforming the ways in which desire and love were practised and accepted.</p>
<p>At the time, a multitude of social norms existed within the borders of the Indian subcontinent largely influenced by religion, geography and occasionally by ethnicity. Suggesting there was a monolithic and singular attitude to anything was misleading. In contrast, there was a rich diversity in the ways in which sexuality was understood. Even in socially conservative areas, same-sex intimacy was simply a part of life.</p>
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<p>Awadh, in modern-day Lucknow, had a ruler who would practice living as the opposite gender at times, including <a href="http://envisioninglgbt.blogspot.co.uk/p/no-easy-walk.html">changing sexual partners</a>. Bengali novels from the late 19th century such as <a href="https://books.google.co.uk/books?id=ofDIAAAAQBAJ&pg=PA132&lpg=PA132&dq=Indira+bengali+novel+lesbian&source=bl&ots=yzfyqqEjIV&sig=n6gzDDKqfifF7iJh02N2kNCiy4o&hl=en&sa=X&ved=0ahUKEwjovJLUpf_VAhWoI8AKHU0ZDYkQ6AEILjAB#v=onepage&q=Indira%20bengali%20novel%20lesbian&f=false">Indira</a> describe lesbian relationships. Texts such as the <a href="https://books.google.co.uk/books/about/The_Complete_Illustrated_Kama_Sutra.html?id=llwoDwAAQBAJ&source=kp_cover&redir_esc=y">Kama Sutra</a> contain advice for consensual same-sex intercourse. And Sufi Muslim texts in East India explicitly mention homosexual male romance.</p>
<p>This clashed with the British crown’s idea of how a society should be. In a system <a href="http://nottspolitics.org/2015/10/29/reclaiming-south-asian-queer-voices-the-legacy-of-section-377/">dictated by Victorian Christian morality</a>, any form of intimacy that was not geared towards having and raising children was unacceptable. Homosexual desire was the worst of these offences. </p>
<p>With such a rigid vision in mind, the empire implemented <a href="https://www.hrw.org/report/2008/12/17/alien-legacy/origins-sodomy-laws-british-colonialism">Section 377</a> in the Raj. The law made it a criminal offence to engage in any form of “unacceptable carnal desire”. Perpetrators could be jailed, given a heavy fine, or both. The law was exported to Australia, South-East Asia and African British colonial outposts as well.</p>
<h2>No united opposition</h2>
<p>Historically, Section 377 did not explicitly target homosexuals. It was meant to deter any type of sex that was not for the purposes of having children. This theoretically included protected sex between a heterosexual couple and also effectively outlawed forms of birth control. But in practice, this proved impossible to police, and over the decades, the implementation of the law came to focus purely on homosexual desire.</p>
<p>India’s diversity of sexual expression proved to be a weakness against this relentless campaign. The lack of a united narrative about homosexuality across India meant that there was no singular dissenting voice against the forced implementation of Section 377 in 1860. This was combined with a powerful propaganda machine which linked British military success with rigid masculinity and the Indian conquest with femininity among men. In particular, historical pamphlets and writings on the military victory in 1857 and the earlier victory in Bengal (the Battle of Plassey) made clear reference to the “inferiority of the <a href="https://books.google.co.uk/books/about/Colonial_Masculinity.html?id=8RQNAQAAIAAJ">effeminate Indians”</a>.</p>
<p>There was also a concentrated and largely successful effort to alienate and undermine the agency of women and of gender non-binary communities, such as Hijra – a third gender <a href="https://thequeerness.com/2017/08/20/the-hijra-community-and-the-complex-path-to-decolonising-gender-in-bangladesh/">identity</a> who are born male or intersex but present as feminine in dress. Today, Hijra are recognised and protected by law in <a href="https://www.theguardian.com/society/2014/apr/16/india-third-gender-claims-place-in-law">India</a>, <a href="http://foreignpolicy.com/2012/03/30/a-first-for-pakistans-third-gender/">Pakistan</a> and <a href="http://www.csbronline.org/wp-content/uploads/2016/08/ShaleAhmed_HjraRights_CSBR-ILGAAsia2015.pdf">Bangladesh</a>.</p>
<p>This resulted in the firm establishment of legalised homophobia (and also misogyny and wider queer discrimination) in the subcontinent over the course of the Raj. By the time the Indian independence movement began to gain viable momentum in the 20th century, the challenges to Section 377 had died out and any narrative of queer emancipation was erased from both sides of the debate.</p>
<h2>Homophobic laws retained</h2>
<p>At the moment of their birth, Pakistan and India moved towards new constitutions and penal codes, yet many remnants of colonial control remained. Section 377 was retained in their respective statute books. When Bangladesh gained its independence from Pakistan in 1971, it was maintained there as well. It is still maintained in all three countries of the erstwhile Raj – India, Bangladesh and Pakistan.</p>
<p>In fact, of the 72 countries of the world where homosexuality is illegal today, 36 punish homosexuality due to some version of 377. It is a toxic hangover which makes the <a href="http://www.commonwealthequality.org/about/">52-strong Commonwealth of Nations</a> the most homophobic global block of countries.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"891237422876561408"}"></div></p>
<p>Two key commemorations of British history are being marked in 2017. The 50th anniversary of the <a href="https://www.theguardian.com/world/2017/jun/22/sexual-offences-act-at-50-share-your-memories-and-experiences">1967 Sexual Offences Act</a>, which partially decriminalised homosexual sex between consenting adults in Britain, and the 70th anniversary of the <a href="https://theconversation.com/uk/topics/india-partition-41839">partition</a> of India and Pakistan, which brought British imperial rule on the Indian subcontinent to an end. Both anniversaries are being celebrated as a triumph of progress and equality. </p>
<p>The UK, Pakistan and India are all correct to celebrate the long journeys they have taken. But it is vital that marginalised voices are heard, too. To confine colonialism to the history books, all of its legacies must be dealt with and erased completely. India’s Supreme Court could be on the way to making this happen. A petition is in the process of being submitted in the Bangladeshi Supreme Court but no progress has been reported, and there is no explicit case in Pakistan as of yet. Until this is redressed, there can be no true freedom.</p><img src="https://counter.theconversation.com/content/81284/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ibtisam Ahmed has been the Commonwealth Decriminalisation Coordinator for Nottinghamshire Pride for 2017, and the LGBT History Month Project Coordinator for the Centre for Research in Race and Rights at the University of Nottingham. Both are unpaid positions.</span></em></p>Section 377, which criminalises homosexuality, could finally be relegated to the history books.Ibtisam Ahmed, Doctoral Researcher, Faculty of Social Sciences, University of NottinghamLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/475652015-09-30T19:41:46Z2015-09-30T19:41:46ZNot every partnership is about sex<figure><img src="https://images.theconversation.com/files/96592/original/image-20150929-30964-1o2g98.jpg?ixlib=rb-1.1.0&rect=231%2C141%2C1772%2C1258&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Many animals form life-long partnerships, but they're not always about sex.</span> <span class="attribution"><span class="source">Brett Sayer/Flickr</span>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></span></figcaption></figure><p>Many species form long-term partnerships in life. When we see such pair bonds, our first assumption tends to be that the two individuals are a male and female, and the partnership is based on mating.</p>
<p>And for the most part <a href="http://www.sciencemag.org/content/341/6145/526.abstract?sid=f156aea7-bc29-40d0-b391-d2bd9eebd0eb">this is indeed the case</a>. Monogamous pair bonds have typically evolved where it takes two parents working together to successfully raise offspring.</p>
<p>We made the same assumption about partnerships being for mating when we saw pairs of <a href="http://australianmuseum.net.au/rabbitfishes">rabbitfish</a> in apparent long-term relationships. </p>
<p>But a recent discovery turned this notion on its head, and gave us deeper insight into why some animals form long-term partnerships for reasons other than raising young.</p>
<h2>How do we know it’s about the sex?</h2>
<p>It’s difficult to tell the sex of a rabbitfish on first glance, so we assumed that one of the pair was male, one was female and that they were paired in order to mate together. However, no-one had documented the <a href="ftp://ftp.fao.org/docrep/fao/009/y0870e/y0870e27.pdf">actual process of reproduction in the wild</a> among the 14 pairing species of rabbitfish to know whether this assumption was true.</p>
<p>So we used tiny acoustic tags implanted inside one of these pairing species of rabbitfish, <em>Siganus doliatus</em>, to track their movements for six months to see if we could find out more about their reproduction. </p>
<p>We <a href="http://rsos.royalsocietypublishing.org/content/2/9/150252">discovered</a> that at the time of the new moon in October, November and December, individuals all migrated away from their home territories along the same route, returning home two to three days later.</p>
<p>These apparent coordinated group migrations during the mating season suggest that the pairing species of rabbitfish reproduce in mass aggregations. In addition, partnerships are not always of the opposite sex, and <a href="http://onlinelibrary.wiley.com/doi/10.1111/jfb.12131/abstract">same-sex pairings can exist</a>. </p>
<p>The existence of some same-sex couples within a species doesn’t necessarily mean that pairing is not for mating. But, together with our latest findings, it raises the question of why rabbitfish partner up when they can get access to mates at a regular gathering. </p>
<h2>Why pair if you’re mating in a group?</h2>
<p>Pairs can form as cooperative alliances in order to gain access to resources, like the male cheetahs that form <a href="http://www.cheetahspot.com/brothers.php">life-long alliances</a> in order to defend a territory. But often these alliances are ultimately based on access to reproductive resources (such as mates) and therefore come back down to sex. </p>
<p>In fact, when you think about it, cooperation between two unrelated individuals is not an easy thing to explain. Natural selection favours selfishness in many ways. This is because when you help someone else at a cost to yourself, you might raise their chance of having offspring (and passing on their genes to the next generation) while reducing your own reproductive chances. </p>
<p>Two of the main theories proposed to account for cooperative behaviour are <a href="http://greatergood.berkeley.edu/images/uploads/Trivers-EvolutionReciprocalAltruism.pdf">reciprocal altruism</a> and <a href="https://kuscholarworks.ku.edu/bitstream/handle/1808/677/annurev.es.13.110182.pdf?sequence=1">mutualism</a>. While mutualism (“you do your thing, I’ll do mine, and we’re both better off”) is <a href="http://journals.plos.org/plosbiology/article?id=10.1371/journal.pbio.0040431">well-demonstrated empirically</a>, reciprocity (“you scratch my back, I’ll scratch yours later”) has yet to receive the <a href="http://www.nature.com/nature/journal/v462/n7269/full/nature08366.html">same support</a>.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/95142/original/image-20150917-12722-c0snni.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/95142/original/image-20150917-12722-c0snni.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=238&fit=crop&dpr=1 600w, https://images.theconversation.com/files/95142/original/image-20150917-12722-c0snni.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=238&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/95142/original/image-20150917-12722-c0snni.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=238&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/95142/original/image-20150917-12722-c0snni.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=299&fit=crop&dpr=1 754w, https://images.theconversation.com/files/95142/original/image-20150917-12722-c0snni.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=299&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/95142/original/image-20150917-12722-c0snni.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=299&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Pairing species of rabbitfish tend to feed from cracks and crevices in the reef.</span>
<span class="attribution"><span class="source">Author provided</span></span>
</figcaption>
</figure>
<h2>Rabbitfish sentinels?</h2>
<p>In the case of rabbitfish, one reason why they pair may lie in their feeding behaviour. Research has shown that these pairing species tend to <a href="http://link.springer.com/article/10.1007/s00338-012-0945-5">forage deep into cracks and crevices</a>, meaning that their vision can be temporarily blocked.</p>
<p>This could be risky. So it might be worth their while teaming up with another fish, to have a partner where <a href="http://link.springer.com/article/10.1007/s00338-013-1108-z">“you watch my back, I’ll watch yours”</a>. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/95143/original/image-20150917-12756-18x0prt.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/95143/original/image-20150917-12756-18x0prt.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=449&fit=crop&dpr=1 600w, https://images.theconversation.com/files/95143/original/image-20150917-12756-18x0prt.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=449&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/95143/original/image-20150917-12756-18x0prt.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=449&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/95143/original/image-20150917-12756-18x0prt.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=565&fit=crop&dpr=1 754w, https://images.theconversation.com/files/95143/original/image-20150917-12756-18x0prt.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=565&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/95143/original/image-20150917-12756-18x0prt.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=565&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">System of vigilance displayed by pairs of rabbitfish when feeding in visually occluded habitats on coral reefs.</span>
<span class="attribution"><span class="source">Author provided</span></span>
</figcaption>
</figure>
<p>After all, just like Starsky and Hutch, or Butch Cassidy and the Sundance Kid, sometimes you do just need someone to watch your back and give you a better chance of survival.</p>
<p>No-one yet knows how rabbitfish pairs form, and which fish chooses which. If we can learn more about the process of pair-formation, their mating behaviour at spawning aggregations and whether there are specific fitness benefits from the vigilance behaviour when feeding, we can determine whether reciprocity rather than mating could constitute an evolutionary basis for pairing. </p>
<p>In the meantime, just be careful what you assume when you see a partnership in nature, because it may not necessarily be all about the sex.</p><img src="https://counter.theconversation.com/content/47565/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rebecca Fox receives funding from the University of Technology Sydney and from Australia's Integrated Marine Observing System (IMOS) AATAMS Division. The research reported in this article was funded by the Australian Research Council (through the Centre of Excellence for Coral Reef Studies) and an equipment loan from IMOS's AATAMS Division.</span></em></p>Many animals, including humans, form long-term partnerships, but some are same-sex, suggesting they’re not all about raising offspring but some other form of cooperation.Rebecca Fox, Postdoctoral Research Fellow , University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/436842015-06-29T19:03:34Z2015-06-29T19:03:34ZThe surprises in the Supreme Court’s same-sex marriage decision<figure><img src="https://images.theconversation.com/files/86731/original/image-20150629-9072-sqeedq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A protestor outside the Supreme Court during the oral argument for Obergefell v Hodges.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/taedc/17113823229">Ted Eytan/flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>The Supreme Court’s decision in Obergefell v Hodges fulfilled predictions that the court would affirm marriage equality nationwide as a fundamental constitutional right. </p>
<p>However, the case also offered a few surprises and a few disappointments. </p>
<p>To understand those, one needs to put the decision into its historical and legal frameworks.</p>
<h2>From sacrament to contract</h2>
<p>For centuries of Western history, the question of who controls the legal aspects of marriage has been highly contested. </p>
<p>Until the 16th century, the Catholic Church defined the conditions for marriage. Since the Reformation, there has been a continuous debate between ecclesiastical authorities and civil authorities about issues including who can marry and what rights and responsibilities marriage confers. </p>
<p>Over time, however, marriage shifted from being a sacrament to a civil contract as governments took the power to define marriage from religious sources. </p>
<p>In the United States, it was the legislature within each state that defined the criteria for entry into marriage by prohibiting some pairings, such as interracial marriages and marriages between minors, and imposing blood tests and registration requirements. </p>
<p>Marriage in the United States has always been a civil contract entered into between the two parties and the state and, although it can be performed by religious authorities, its validity is determined by reference to civil law. </p>
<p>This arrangement is mandated by the constitutional prohibition against an established religion and is the result of this country being governed by a secular legal system.</p>
<p>Until the late 20th century, the question of same-sex marriages wasn’t even up for debate because same-sex relationships were criminalized in most states. </p>
<p>Requesting a marriage license, in other words, was tantamount to confessing to a crime. </p>
<h2>Gay rights and equal protection</h2>
<p>As the gay rights movement began to flourish in the years after the <a href="http://www.history.com/this-day-in-history/the-stonewall-riot">Stonewall riots of 1969</a>, states started decriminalizing same-sex intimate relations. And as that happened, gay couples sought greater and greater legal protections against discrimination.</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/86733/original/image-20150629-9096-f6c8nc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/86733/original/image-20150629-9096-f6c8nc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/86733/original/image-20150629-9096-f6c8nc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=920&fit=crop&dpr=1 600w, https://images.theconversation.com/files/86733/original/image-20150629-9096-f6c8nc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=920&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/86733/original/image-20150629-9096-f6c8nc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=920&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/86733/original/image-20150629-9096-f6c8nc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1157&fit=crop&dpr=1 754w, https://images.theconversation.com/files/86733/original/image-20150629-9096-f6c8nc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1157&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/86733/original/image-20150629-9096-f6c8nc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1157&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Stonewall Inn’s sign in September of 1969, after the riots earlier that year.</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/Stonewall_riots#/media/File:Stonewall_Inn_1969.jpg">Wikimedia Commons</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<p>Most of these efforts, however, were <a href="http://www.infoplease.com/ipa/A0194028.html">initially rejected</a> by state courts and state legislatures, including all efforts to obtain equal marriage rights. </p>
<p>In 1972, in <a href="http://www.leg.state.mn.us/webcontent/lrl/issues/SameSexMarriages/BakerNelson.pdf">Baker v Nelson</a>, the Supreme Court refused to hear an appeal from a Minnesota Supreme Court decision upholding a Minnesota law defining marriage as between a man and a woman, on the grounds that it did not present a federal question. </p>
<p>In other words, marriage was a state’s rights issue and the federal Constitution had nothing to say about the matter. </p>
<p>Baker came just five years after the court’s landmark decision in <a href="http://www.oyez.org/cases/1960-1969/1966/1966_395">Loving v Virginia</a>, which struck down Virginia’s law banning interracial marriages. </p>
<p>Since the early 20th century, the court has held that certain civil liberties - such as speech, privacy, and the decision about whom to marry - are so fundamental to human dignity and autonomy that they cannot be infringed by state or federal laws. </p>
<p>These fundamental rights are protected by the Fifth and Fourteenth Amendments’ prohibition against the deprivation of life, liberty or property without due process of law.</p>
<p>The recognition that the liberty element of the due process clause contains protections for substantive legal rights beyond just the right to physical liberty has been one of the most controversial aspects of 20th-century constitutional jurisprudence.</p>
<h2>Marriage cases highlight tension in the theory of ‘fundamental rights’</h2>
<p>These two marriage cases – Baker and Loving – illustrate the due process controversy and created a profound tension in the court’s theory of fundamental rights. </p>
<p>Marriage was deemed a fundamental right protected by the US Constitution in Loving, but the prohibition against same-sex marriage was deemed a purely states’ rights issue in Baker, making marriage in this case a nonfundamental right. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/86734/original/image-20150629-9102-eywf16.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/86734/original/image-20150629-9102-eywf16.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/86734/original/image-20150629-9102-eywf16.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=748&fit=crop&dpr=1 600w, https://images.theconversation.com/files/86734/original/image-20150629-9102-eywf16.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=748&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/86734/original/image-20150629-9102-eywf16.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=748&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/86734/original/image-20150629-9102-eywf16.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=940&fit=crop&dpr=1 754w, https://images.theconversation.com/files/86734/original/image-20150629-9102-eywf16.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=940&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/86734/original/image-20150629-9102-eywf16.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=940&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Chief Justice Earl Warren wrote the unanimous majority opinion in Loving v Virginia, declaring marriage a fundamental right.</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/Earl_Warren#/media/File:Earl_Warren.jpg">Harris & Ewing</a></span>
</figcaption>
</figure>
<p>Ultimately, there is a further question to be asked. Surely a state may impose limitations on certain marriages without running afoul of the Constitution, such as when it prohibits marriages between minors or coerced marriages? </p>
<p>The underlying question in all of these marriage cases, in other words, is figuring out when a state’s regulation of marriage is a permissible regulation that furthers important public policies, and when it is an infringement of the fundamental right to marry. </p>
<p>In Obergefell, the majority opinion resolved this tension in favor of Loving, and expressly reversed Baker. But not without controversy.</p>
<p>As the dissenters argued, Loving merely held that traditional marriage (ie, between a man and a woman) cannot be denied on the basis of race. It did not hold that any arrangement that someone wanted to call a “marriage” carries constitutional protections. </p>
<p>But Chief Justice Roberts opined that the majority’s decision about the dignity of marriage applied with equal force to plural marriages. He said: </p>
<blockquote>
<p>It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. </p>
</blockquote>
<p>Although the decision in Obergefell merely adds same-sex marriages between two consenting adults to the category of marriages protected as a fundamental right, because they are so closely akin to opposite-sex marriages, the chief justice is not off base to recognize that raising marriage to a fundamental right raises the specter of constitutional protections for <a href="http://www.npr.org/templates/story/story.php?storyId=90857818">polygamy</a>. </p>
<h2>The court cracks open the equal protection door</h2>
<p>At the same time the Supreme Court was developing its robust theory of personal liberties, it was also <a href="https://supreme.justia.com/cases/federal/us/404/71/case.html">mapping out</a> a robust theory of the equal protection clause of the Fourteenth Amendment that carefully scrutinized state or federal laws that “<a href="http://law.justia.com/constitution/us/amendment-14/69-judging-classifications-by-law.html">classified</a>” people by race, gender, age, alien status, illegitimacy and other immutable characteristics. </p>
<p>Since the 1990s, there has been a strong push by gay-rights advocates to have sexual minorities recognized as a so-called “suspect class” deserving of heightened protections because they have been historically subject to legal and social discrimination. </p>
<p>Just as laws infringing upon fundamental rights are carefully scrutinized by the court, laws that disadvantage certain groups have also been carefully scrutinized by the court under the Fourteenth Amendment’s prohibition against denying people the equal protection of the laws. </p>
<p>Laws mandating racial segregation or denying women equal educational opportunities have been struck down on the grounds that race and gender classifications in law do not serve a compelling public purpose. </p>
<p>If sexual minorities were recognized as a suspect class, like racial minorities, then laws treating them differently from the majority population would likely be struck down as unconstitutional.</p>
<p>In all prior gay-rights decisions, however, the Supreme Court has refused to take up the possibility of recognizing sexual minorities as a suspect classification. </p>
<p>This is why the biggest surprise in Obergefell was Justice Kennedy’s discussion – albeit brief – of the equal protection implications of same-sex marriage bans. </p>
<p>Justice Kennedy explored the possibility that sexual minorities have equal protection rights when he stated:</p>
<blockquote>
<p>It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry. </p>
</blockquote>
<p>I predict that it is this passage from Obergefell that will have the most significant legal effect. Its implication is that laws cannot disadvantage gay and lesbian people in their exercise of fundamental liberties, which include not just marriage, but also their rights to safety, employment, housing and educational opportunities. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/86767/original/image-20150629-9096-17l40bj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/86767/original/image-20150629-9096-17l40bj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/86767/original/image-20150629-9096-17l40bj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=762&fit=crop&dpr=1 600w, https://images.theconversation.com/files/86767/original/image-20150629-9096-17l40bj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=762&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/86767/original/image-20150629-9096-17l40bj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=762&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/86767/original/image-20150629-9096-17l40bj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=958&fit=crop&dpr=1 754w, https://images.theconversation.com/files/86767/original/image-20150629-9096-17l40bj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=958&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/86767/original/image-20150629-9096-17l40bj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=958&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Associate Justice Anthony Kennedy delivered the majority decision in Obergefell v Hodges.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Anthony_Kennedy_official_SCOTUS_portrait.jpg">Collection of the Supreme Court of the United States</a></span>
</figcaption>
</figure>
<p>The fact is that to date, <a href="http://www.hrc.org/state_maps">most states</a> do not include provisions in their state laws prohibiting discrimination on the basis of sexual orientation. </p>
<h2>The dissenters</h2>
<p>Not surprisingly, the four conservatives of the court issued dissents that focused their criticism primarily on the judicial activism of the majority and – as they see it – the blows to democracy and states’ rights that occur when the court affirms any individual right as deserving of constitutional protections. </p>
<p>Of course, any time a court strikes down legislation, it is engaging in anti-majoritarian law-making. But that is the point of the Bill of Rights - to protect individuals from the “tyranny of the majority.”</p>
<p>And the losers in this debate are already gearing up to represent the issue as one of religious liberties caught in the crossfire.</p>
<p>The majority opinion acknowledged the rights of those who disapprove of same-sex marriage to continue to believe that homosexuality is a sin. Nor are religious groups obliged to perform same-sex marriages. Justice Kennedy explains that, </p>
<blockquote>
<p>The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. </p>
</blockquote>
<p>But he also acknowledged that their First Amendment rights do not allow them to impose their views on the rest of the population through the coercive arm of the law. </p>
<p>As the religious battleground heats up, the real question, to my mind, is going to be whether the conservatives on the court are willing to maintain the separation of church and state mandated by the First Amendment, which places marriage firmly in the side of secular law.</p><img src="https://counter.theconversation.com/content/43684/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Danaya Wright does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>What are the consequences of defining marriage as a “fundamental liberty”? And what difference will this ruling make to discrimination against gays and lesbians in other areas of life?Danaya Wright, Professor of Law, University of FloridaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/409432015-04-30T15:28:22Z2015-04-30T15:28:22ZCould a Supreme Court ruling decide the same-sex marriage argument or set off another round in the culture wars?<figure><img src="https://images.theconversation.com/files/79850/original/image-20150429-6238-1112eo0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Supreme Court US</span> </figcaption></figure><p>On April 28, the Supreme Court heard <a href="http://www.scotusblog.com/case-files/cases/obergefell-v-hodges/">arguments </a>in Obergefell v Hodges, challenges arising in four states (Ohio, Tennessee, Kentucky, and Michigan) to anti-same-sex marriage laws. </p>
<p>The Court asked the parties to address two specific questions: 1) Does the Fourteenth Amendment require a state to license a marriage of two people of the same sex? and 2) Does the Fourteenth Amendment require a state to recognize a marriage of two people of the same sex when their marriage was lawfully licensed and performed out-of-state?</p>
<p>The federal circuit courts of appeal are currently split on these issues. All circuit courts that have addressed them since the Supreme Court’s <a href="http://www.supremecourt.gov/opinions/12pdf/12-307___6j37.pdf">Defense of Marriage Act (DOMA)</a> decision in US vs Windsor (2013), except the Sixth Circuit, have found a federal constitutional right for same-sex couples to marry. </p>
<p>It is the contrary decision of the Sixth Circuit which is now before the Supreme Court. </p>
<p>While any decision by the Court is unlikely to quiet public debate, a decision does have the potential to allow same-sex marriage throughout the country. </p>
<h2>The key role of Justice Kennedy</h2>
<p>Justice Anthony Kennedy is often the swing vote on the Court. </p>
<p>Kennedy’s importance on questions of LGBT issues is magnified because he has written the three landmark opinions of the modern Supreme Court vindicating the rights of LGBT Americans. They are: </p>
<ul>
<li><a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=u10179">Romer v. Evans</a> (1996), which invalidated a state constitutional amendment barring the state and its political subdivisions from protecting sexual minorities from discrimination;</li>
<li><a href="https://supreme.justia.com/cases/federal/us/539/558/"> Lawrence v. Texas</a> (2003), which prohibited states from criminalizing private, consensual, non-commercial sexual conduct between consenting adults; </li>
<li>United States v. Windsor (2013), which struck down Section 3 of federal DOMA which had prohibited the United States from recognizing same-sex marriages validly entered into in a state.</li>
</ul>
<p>Although Kennedy acknowledged during the oral argument that opposite-sex marriage has held sway for “millennia,” he had a much shorter time frame in mind when contemplating the pace of legal change. Kennedy compared, on the one hand, the length of time between Obergefell’s argument and Lawrence v. Texas; and on the other hand the landmark civil right case <a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=347&invol=483">Brown v. Board of Education</a> (1954) and <a href="https://www.law.cornell.edu/supremecourt/text/388/1">Loving v. Virginia</a> (1967).</p>
<p>Kennedy asked Solicitor General Donald Verrilli, “Haven’t we learned a tremendous amount … since Lawrence, just in the last ten years?” </p>
<p>This is a striking rhetorical strategy. The Brown decision declared that racial segregation in public schools violated the Equal Protection Clause, and Loving concluded the same as to prohibitions of interracial marriage. Kennedy thus explicitly referenced the progression from racial segregation to racial equality in marriage regulation as a possible model for an evolution from criminalizing homosexual activity to nationwide legalization of same-sex marriage. His comparison seems to indicate the skepticism with which he views statutes limiting marriage to one man and one woman.</p>
<p>Justice Kennedy also directly confronted the Michigan Special Assistant Attorney General as to the purpose of marriage. </p>
<p>John J. Bursch centered his explanation of limiting marriage to opposite-sex couples on procreation, explaining that marriage is used as the glue to link children with their biological parents. </p>
<p>Kennedy seemed baffled by Bursch’s insistence that marriage is merely social regulation, saying that “the whole purpose of marriage” is to “bestow[…] dignity on both man and woman.” </p>
<p>Kennedy’s past opinions are built upon a bedrock of the importance of the “dignity as free persons,” and the “status and dignity […] of a man and woman in lawful marriage.” </p>
<p>If supporters of marriage equality have won Justice Kennedy, however, they have just as likely lost the other potential swing vote on the court: Chief Justice Roberts. </p>
<p>The Chief Justice is generally a member of the conservative wing, but has broken rank in the past as in his opinion upholding the Affordable Care Act or Obamacare in <a href="https://www.law.cornell.edu/supremecourt/text/11-393">National Federation of Independent Business v. Sebelius.</a> </p>
<p>Such a switch by Roberts seemed unlikely given what happened during Tuesday’s arguments. </p>
<p>Roberts noted that if supporters of marriage equality “prevail here, there will be no more debate,” meaning that the closing of debate would also “close minds” and halt any societal acceptance of same-sex marriage. As Roberts put it, “People feel very differently about something if they have a chance to vote on it than if it's imposed on them by … the courts.” </p>
<h2>The specter of Roe v Wade hovers in the background</h2>
<p>The unspoken comparison is to abortion. </p>
<p>Although Roe v Wade was a victory for abortion rights, many commentators believe that because the Supreme Court displaced a political debate into constitutional law, each ideological side entrenched into its own base. </p>
<p>One of us (Dara E. Purvis) has <a>previously written</a> on the inapplicability of this argument to marriage equality. The comparison is inapt for one core reason: visibility. Women who have had abortions still face stigma and rarely discuss the topic openly. </p>
<p>By contrast, marriage equality is by definition visible – and one of the key factors determining an individual’s support of LGBT rights generally and marriage equality in particular is whether that individual <a href="http://maristpoll.marist.edu/wp-content/misc/usapolls/us140804/Same-Sex%20Marriage/Complete%20August%2015,%202014%20McClatchy_Marist%20Poll%20Release%20and%20Tables.pdf">knows</a> a gay or lesbian person.</p>
<p>It is always a dangerous, even foolish, exercise to try to predict the outcome of a case based on the oral argument. </p>
<p>In the case presently in front of the court, there are several possible outcomes. The most troubling would be if one of the Justices becomes unable to participate in the decision – Justice Ginsburg, for example, has recently suffered some bouts of ill health – in which case a vote could split 4-4. </p>
<p>In that situation, the Court could either hold the case over to next term, or issue a 4-4 decision, which would have the effect of upholding the Sixth Circuit and the challenged statutes, but leave the current circuit split unresolved. </p>
<p>Or a majority of the Court could find that there is no constitutional right to marriage equality for same-sex couples. This would allow over a dozen states currently issuing marriage licenses to same-sex couples under orders from federal courts to seek relief from those orders to stop issuing such licenses. Then, if they were successful, they would try to figure out how to deal with those marriages that have already been solemnized. </p>
<h2>The possible scenario of a split court</h2>
<p>Alternatively, the Court could split on the two issues before it, finding that while the Constitution does not require states to grant marriage licenses to same-sex couples, states must recognize same-sex marriages performed in other states. This would be in effect a practical victory for marriage equality, since marriage rights could be had for the cost of crossing state lines. </p>
<p>And finally the Court could find that the Fourteenth Amendment’s guarantees of equality and liberty mean that states must allow same-sex couples to marry, in which case it would not likely reach the interstate marriage recognition issue.</p>
<p>Even if the Court strikes down the challenged statutes, it would not mean that full equality would be immediately achieved by sexual minorities. </p>
<p>In some states, such as Pennsylvania where your authors reside, the state anti-discrimination law does not protect sexual minorities. </p>
<p>There are now highly visible battles, such as the one that recently played out in Indiana, over whether business owners can assert a religious objection to providing venues, catering or photography for same-sex weddings. </p>
<p>Still, a decision to strike down all anti-same-sex marriage laws would surely have immense importance in the everyday lives of millions of Americans.</p>
<p><em>You can listen to the audio of the oral arguments in Obergefell v Hodges <a href="http://www.supremecourt.gov/oral_arguments/audio/2014/14-556-q1">here.</a></em></p><img src="https://counter.theconversation.com/content/40943/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Prof. Rains co-authored an amicus brief on behalf of the respondent in United States v. Windsor.</span></em></p><p class="fine-print"><em><span>Prof. Purvis signed onto the family law professors’ amicus brief in support of petitioners in Obergefell.</span></em></p>The Supreme Court is the final word on the country’s laws but its decisions don’t necessarily end culture debates. Two scholars look at same sex-marriage arguments made before the court.Robert E. Rains, Professor of Law, Emeritus , Penn StateDara E. Purvis, Assistant professor of law , Penn StateLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/220972014-01-17T06:28:51Z2014-01-17T06:28:51ZLook to LGBQ and older couples for good relationship advice<figure><img src="https://images.theconversation.com/files/39227/original/4z8t7mcm-1389888209.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C1024%2C680&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Out and about.</span> <span class="attribution"><span class="source">Guillaume Paumier</span></span></figcaption></figure><p>Holding hands with someone you love in public may seem like a carefree display of affection, but for people in same sex relationships it is still a risky thing to do.</p>
<p>Despite progress in our attitudes to gay partnerships, the findings of <a href="http://www.open.ac.uk/researchprojects/enduringlove/files/enduringlove/file/ecms/web-content/Final-Enduring-Love-Survey-Report.pdf">Enduring Love?</a>, our two-year study into how modern couples maintain relationships, suggest that some among the Lesbian, Gay, Bisexual and Queer (LGBQ) community still fear reprisals that prevent them from giving this outward sign of affection. </p>
<p>The 2013 Natsal (National Survey of Sexual Attitudes and Lifestyles) and 2008 British Social Attitudes surveys show increasing social tolerance of lesbian and gay lifestyles in Britain and <a href="https://theconversation.com/britons-have-sex-sooner-older-but-less-often-20735">greater sexual experimentation</a> among women and young queer couples. Same sex marriage is being legalised this year. While homophobia is still a live issue, it may still come as a surprise that some gay couples are still disinclined or afraid to hold hands while walking among the wider public.</p>
<p>Despite this our study found that same sex couples and child-free couples reported being among the happiest in their relationship. Our study included a large survey of about 5000 people (around 12% of whom where LGBQ) and in depth interviews with 50 couples (70% heterosexual, 30% LGBQ), where we discussed relationships, hopes and fears.</p>
<p>Despite the concern some expressed at “going public” with their relationship in the interviews, LGBQ respondents to the survey revealed that in general they were more positive about the quality of their relationship than their heterosexual equivalents. Responding to questions on sex, intimacy, being together and sharing values they rated their relationships more highly. And it appears their commitment to making their relationship work and their appreciation of everyday practices is greater than heterosexual counterparts who are perhaps more inclined to take things for granted. </p>
<p>Of course, same sex couples weren’t the only ones who were happy. The face-to-face interviews revealed that the older heterosexual couples and those who were in a second long-term relationship were often more inclined to reflect on how their relationship was working. Rather than writing off past relationships as a mistake or failure, couples were able to draw on lessons learned to enrich their lives today. </p>
<h2>Mums and dads</h2>
<p>Being spontaneous and putting time into one’s relationship can be harder when children come along and the survey found parenthood shapes relationship quality more than any other factor. Among survey respondents, who came from all ages and backgrounds, we found it was more difficult for parents to carry out relationship “maintenance” than it was for child-free couples. </p>
<p>But again, LGBQ parents scored higher on this than heterosexual couples. This may mean that LGBQ parents prioritise their relationship more than heterosexual ones but relationship duration may also play a part here. It was found that 44% of heterosexual survey participants had been in their relationship for 20+ years, compared with LGBQ parents whose relationship was likely to be between six and 10 years long. What is clear is that tensions between parenting and partnering uniformly have an adverse impact on relationships.</p>
<p>Although having children does affect the amount of work today’s couples are able to put into the relationship, this doesn’t mean parents are miserable. In fact, mothers came out as the happiest in their lives overall. They cited their children as the most important people in their lives, over and above their partners, which suggests that having a child brings extra value and dimension to women’s lives. </p>
<p>Conversely, fathers were more likely to name their partner as the most important person in their lives and, overall men placed more emphasis on the importance of sex in the relationship, whereas mothers were extremely keen to receive a cup of tea in bed, with or without the sex.</p>
<p>In a society where much research has been conducted into the stresses on relationships and marriage breakdowns, these findings reveal some positive and affirming things about couples. They are concerned with the quality of their relationships, they value the seemingly mundane and small gestures (that cup of tea in bed, stacking the dishwasher, putting out the bins) and seem prepared to work through difficulties – some of which reinforce their relationship, rather than pulling it apart. </p>
<p>But if there’s one thing we learned from our study, it’s that there is no single notion of the happy couple.</p><img src="https://counter.theconversation.com/content/22097/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jacqui Gabb receives funding from ESRC</span></em></p>Holding hands with someone you love in public may seem like a carefree display of affection, but for people in same sex relationships it is still a risky thing to do. Despite progress in our attitudes…Jacqui Gabb, Senior Lecturer in Social Policy, The Open UniversityLicensed as Creative Commons – attribution, no derivatives.