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20 Austl. J. Asian L. 1 (2019-2020)

handle is hein.journals/ajal20 and id is 1 raw text is: Australian Journal of Asian Law, 2019, Vol 20 No 1, Article 1: 1-6

Special Issue
Legal Regimes of Sexual Orientation and Gender
Identity in Asia
Helen Pausacker* and Amanda Whiting,' editors
In May 2017 the Taiwan Constitutional Court ruled the prohibition on same-sex marriage to be
unconstitutional. and in September 2018 the Indian Supreme Court declared s377 of the Penal Code
unconstilutional. thereby (lecriminalising gay sex. To mark these important changes andI explore
other possibilities in the region. we. the elitors of the Aulstrlian Journawl of Asian Lawi inviledI
scholars to contribule lo this special issue on the legal siluation fIow ILGBTIQ people in Asia As the
articles in this volume explore. some countries are becoming more liberal. while, simullaneously. in
other countries righs ofl lesbian. gay. bisexual. transgenler. queer anI intersex persons have
weakened. In this intn>luction. we have electedI to use the shorthanI 'ILG IBT . We (do so fior simplicity
andi consistency wit h the usage adloptedl by many of our cont ributors, while acknowlediging that any
choice of Ierminology anI abbreviation prot ocol is f'raught.
.\sia has a wile (liversity in laws anI societal values. f'rom the criminalisation of homosexual
acts to a foirm of same-sex partnership being acknowleIgedI by the state (see IFigure 1 overleaf). The
articles in this special issue show fIour main factors which may influence community allilules - anI
thus laws - relating to I.(LBT people in the region. IFirst. inligenous attiludles anI beliefsystems that
existedI pre-colonisation anI before the arrival of the main worldI religions; second,. the major
religions,. uliimately alloptedI by a country; thirdI. whether the couni ries were colonisedI by IEuropean
couniries andI. if so. whelher anti-I.(BlT laws were containedI in the legal systems of colonisers. The
final influence on laws affecling 1.( lT people is the current political syst em within the country, that
is,. whether the count ry is authoritarian or (democrat ic anI the (legree oN which it supports the rights
of minorities.
Indigenous Culture and Laws
Prior to the arrival of colonisers and major 'world religions', most of the countries in Asia apparently
showed a greater tolerance (if not necessarily acceptance) of forms of homosexuality and transgender
people than countries in Europe.1 A number of areas, such as the region now Indonesia,2 practised a
type of animism and had ritual roles for forms of transgender behaviour. Countries which were not
colonised, such as Thailand and Bhutan, did not criminalise homosexual behaviour and, to date, have
shown no inclination to do so.
Colonial Background
Of the countries represented in our special issue, those that were subject to British colonial rule
inherited a version of the Indian Penal Code 1860, section 377 of which penalised 'carnal intercourse
against the order of nature'. Upon independence, countries represented in this special issue,
including India, Pakistan, Bangladesh, Singapore, Malaysia, Sri Lanka, Brunei, Bhutan, Hong Kong
Helen Pausacker is Deputy Director of the Centre for Indonesian Law, Islam and Society at the Melbourne Law School,
the University of Melbourne and Executive Editor of the Australian Journal of Asian Law.
*   Amanda Whiting is Associate Director, Malaysia, of the Asian Law Centre and an Associate Professor in the Melbourne
Law School
1   The five main internationally-widespread religions are most commonly given as: Christianity, Islam, Hinduism,
Buddhism and - although less common in Asia - Judaism.
2   See Wieringa, this special issue.

1

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