The Effect of British Colonial Law and Rule on Gender Binaries and Sexual Freedoms

by Emily Peacock | @emilydpeacock

Many laws and policies worldwide discriminate against LGBTQ and gender non-conforming people and communities. This paper examines the history of those laws and policies, as well as the cultures they affect, both before and after their implementation, while linking them to a common denominator: British colonialism. (Photo credit: Ian Taylor on Unsplash)

On Sept. 6, 2018, homosexuality was legalized in India following the repeal of Section 377, a colonial-era law forbidding “consensual same-sex relations.” This landmark triumph for India’s LGBTQ+ community gave 1.3 billion Indians the freedom to love whom they please and express their sexualities without fearing prosecution. The newfound freedom catalyzed support for LGBTQ+ groups throughout the nation and legal reform internationally (Wong, 2021). 

Following this milestone repeal, in June 2019, the Supreme Court mandated that the Indian government end human rights violations and discrimination based on “perceived sexual orientation, gender identity, and expression.” The International Commission of Jurists (ICJ) then released a 152-page report on the conditions that the Indian LGBTQ+ community still endures to spread awareness of the barriers hindering the LGBTQ+ community and to incite broader action. The repressive policies that the ICJ report highlights include gendered rape laws, bathroom regulations for transgender individuals, and housing limitations, among others (Hawkes, n.d.). 

While these actions benefit the Indian LGBTQ+ community, inequalities and discrimination against LGBTQ+ individuals continue to persist in India and worldwide. Many of these barriers and discriminatory policies can be traced back to British colonial rule, which drove inequalities surrounding an enforced gender binary and heterosexual favoritism, not just in India but all throughout its empire.

Gender and Sexuality

Gender refers to the socially constructed characteristics, norms, and behaviors often attached to the sexes. Gender identity can differ from assigned sex at birth, and views of gender vary across cultures, changing over time while intersecting with sexuality, race, socioeconomic status, and other aspects of life (World Health Organization). Gender is significant in one’s perception of self, bodily comfort, and one’s self-expression. Sexuality, which is different from but related to gender, is also an integral aspect of one’s identity. Sexuality pertains to one’s sexual preferences, including heterosexual, homosexual, pansexual, and bisexual attractions, among others.

The gender binary, or the belief that there are only two genders, male and female, with social constructs depicting masculine and feminine identity (Dictionary.com, n.d.), can damage society, especially for women and those who are gender nonconforming. Social responsibilities and status, economic opportunity, domestic roles, acts of violence, and attire are all affected by gender norms. For example, globally, women are more likely to be in poverty, less likely to access basic education, more likely to be caretakers, and along with LGBTQ+ people, experience more gender-based violence (GBV) (“Understanding gender,” 2015). GBV is violence enacted based on the gender or identity of the victim and includes, but is not limited to, sexual, physical, and psychological abuse (Jensen, 2019). Transgender people, especially trans women of color, are also subjected to some of the highest levels of hate crimes globally (“Hate crimes – HRC,” n.d.). And suppose cis-men do not assume the responsibilities associated with masculinity or are perceived as emotional and feminine; they may become subject to ridicule and harassment by their peers as well.

Women are also traditionally left out of decision-making positions. As of September 2022, there were only 13 countries that had a woman head of state, 15 countries that had a woman head of government, only 21 percent of government ministers were women, and 26 percent of national parliamentarians were women (“Facts and figures: Women’s leadership and political participation,” n.d.). This disparity means that systems and institutions that affect everyone, regardless of gender or sexuality, are controlled mainly by men, leaving women and the LGBTQ+ community vulnerable to policies and regulations that do not have their well-being, safety, or opportunities in mind.

These gender disparities and sexual biases are highly connected to and exacerbated by British colonial law and its imposition of Christianity. This is because Christianity centers its moral ideals around the gender binary and a gendered power imbalance: men are the leaders and decision-makers, while women are subservient caregivers (A & Burke, n.d.).

British Colonial Rule and Law

Colonialism is the practice of powerful nations settling in another state while controlling that state’s less powerful government (HarperCollins Publishers Ltd, n.d.). For over 300 years, the British empire encompassed large regions in the Americas, Australia, New Zealand, Asia, and Africa, and at its peak in 1922, ruled over 485 million people, making it the largest colonial empire ever to exist (“British Empire Facts!,” 2021). British colonists exploited their controlled states and enforced British cultural values upon various civilizations. The British government validated its reform in these areas by claiming they were saving “savage” and uncivilized nations (Blakemore, 2021). 

To the colonizers, “barbarian” nations were considered states that did not follow the British or Western European way of life, such as practicing Christianity and abiding by British legal standards (Blakemore, 2021), which were primarily aimed at maintaining social order and control. Previous indigenous laws, rights, and norms in colonized states were deemed “unhelpful to maintaining Christian ideals” and disbanded by the British regime (Shomade, 2022). British colonial rule, and colonization in general, often meant imposing taxes, forcing religious conversions, creating ethnic rivalries, denying human rights of indigenous populations, mass murders, slavery, degrading the environment by exploiting natural resources, and criminalizing cultural identities (Corissajoy, 2016). 

With British colonial rule heavily connected to Christianity, gender roles and norms were highly influenced by Christian ideals. Foundational Christian ideology asserts that men and women were created differently, with women expected to be the ‘helper’ to men. Women were, and in many places still are, confined to childbearing, caretaking, and other domestic duties, while men were the financial providers and decision-makers (A & Burke, n.d.). Sodomy and homosexual relations were also seen as evil and unnatural, and laws such as Section 377 in India were passed across most British colonies. These themes and practices are reflected in the aforementioned gendered responsibilities and persist in attitudes and laws despite shifts in religious values and governance regimes. Today, a Human Rights Watch report shows that “more than half of the world’s remaining ‘sodomy’ laws — criminalizing consensual homosexual conduct — are relics of British colonial rule” (“‘Sodomoy’ laws show survival of colonial injustice,” 2020). 

To properly evaluate the effects of British colonial rule on gender and sexual freedom, three former colonies, each with distinct cultural, religious, economic, geographic, and demographic characteristics are analyzed.

India

The British Raj, or the power of the British Crown that ruled present-day India and Pakistan, lasted from 1858 to 1947 (Boundless, n.d.). During this time, the British outlawed customs of gender and sexuality that had long been accepted throughout India. Section 377, which the British passed as part of the Indian Penal Code in 1860, criminalized sodomy. The British also outlawed “eunuchs,” India’s transgender people, also known as hijras, calling them a “criminal tribe” (“‘Sodomoy’ laws show survival of colonial injustice,” 2020). 

Hijras were once thought to bless fertility and would live with husbands and adopted children (Biswas, 2019), but under British rule, if a hijra was spotted in public, they could face up to two years in jail. Hijras were also often associated with sodomy, a fact that further aggravated their prosecution rates (“‘Sodomoy’ laws show survival of colonial injustice,” 2020). 

Moreover, British rulers considered hijras “ungovernable,” painting them in connection to “filth, disease, contagion, and contamination,” creating stigmas amongst Indian communities and subjecting hijras to violence and harassment. They were no longer allowed to present themselves as they pleased, usually in feminine clothing, nor could they grow their hair. If they did not submit to these rules, police forces would publicly strip them and cut their hair, subjecting them to humiliation and degradation. Men who dressed as women to perform in theaters or took on feminine gender roles were also policed by the British in an effort to stamp out any gender nonconforming people (Biswas, 2019).

Since the end of colonial rule in India, the nation has made landmark strides in undoing its biased laws and social norms. Along with the abandonment of Section 377 in 2014, the Indian Supreme Court also formally recognized a third gender, which includes eunuchs and hijras (Biswas, 2019). These exciting changes in India inspire nations worldwide to follow suit, including Singapore and Kenya. And though not all attempts at legal reform in these states have been successful, the drive for change still remains, and many are discovering newfound hope (Wong, 2021).

Nigeria

The British colonized the area of Nigeria in 1884, combining two separate states into what is today Nigeria, which gained its independence in 1960 (dai.441, n.d.). Before British colonization, there was a “completely different attitude towards sexual and gender identities. Many African countries did not see gender as a binary in the way that their European colonizers did, nor did they correlate anatomy to gender identity.” LGBTQ+ people were not prosecuted anywhere in Africa before colonization (Buckle, 2021). Instead, people were allowed to present as they felt comfortable, take on whatever roles and responsibilities they saw fit, and love and sleep with whomever they pleased.

While decades have passed since Nigeria became a free state, the influence of Christianity imposed by British rule is still felt today. In May 2013, the Nigerian House of Representatives passed a bill banning same-sex marriage and criminalizing same-sex relations. Entering into a same-sex marriage risks up to 14 years in prison, and same-sex intimate relations are punishable with up to a 10-year sentence. Chapter 42, Section 214 of the law states the sentence is “imprisonment for carnal knowledge against the order of nature.” The bill infringes on the human rights of all Nigerians (Kmills, 2013). 

Various organizations, such as Outright International, advocate for progressive action and change in Nigeria to liberate its LGBTQ+ population, including implementing programs that center on ending conversion therapy with The Initiative for Equal Rights (TIERS). However, there is still much to be done. The push of Western influence worsens conditions for those adversely affected by these laws, and even acts of affection of the same sex remain reasonable grounds for arrest throughout the state (Kmills, 2013). What was once a place with sexual and gender freedom has become one of the most hostile to the LGBTQ+ community.

The United States

The United States earned its independence from Britain in 1783 with the Treaty of Paris after more than 150 years of British rule (“Explore by timeline: Colonial America and the revolution,” 2017). Before colonization, Native American tribes were far less rigid with the gender binary and issues of sexuality. Some tribes, such as the ​​Lakota, Mohave, Crow, and Cheyenne (“Two-spirit: Health Resources,” n.d.), even celebrated those who encompassed both masculine and feminine energies, otherwise known as two-spirit. The two-spirit people were cherished as spiritual leaders, healers, matchmakers, and counselors. Many also identified as LGBTQ+ and enjoyed sexual freedom. Other native gender and sexual norms included tolerance of the Berdache, or men who married men, and the Passing Women, who were people born female but who took on masculine gender roles (Flores, n.d.). After colonization, though, the two-spirit community was quickly demonized and persecuted or forced to assimilate into British culture (“Two-spirit,” n.d.).

In Hawai’i, a third gender, Mahu, also thrived in Kanaka culture and was seen as the middle of man and woman. Holding a very similar place in society as the two-spirit people, they were healers and teachers of tradition. Bisexuality, known as aikane, was common in Kanaka culture. And like the two-spirit, the Mahu, aikane, and most other Kanaka were murdered or driven from their homes (Driver, 2022). Today, only 6% of Hawaiians are Kanaka (Driver, 2022).

The United States has a long history of anti-LGBTQ+ rhetoric and practices, with same-sex marriage not becoming legal until 2015, following the Supreme Court case of Obergefell v. Hodges (“The journey to marriage equality in the United States – HRC,” n.d.). Today, new laws threaten women and the LGBTQ+ community. “Don’t say gay” laws in Florida and Texas limit dialogue on queer topics in schools (Phillips, 2022), and Roe v. Wade was overturned, limiting women’s reproductive rights and abortion access (Totenberg et al, 2022). Additionally, only one state has overturned a legal doctrine that reduces sentences for the murder of wives by their husbands to manslaughter if she has committed adultery (Bangs et al, 2021). “Christian nationalist legislation” is being blamed throughout the U.S. for these discriminatory regulations (Guardian News and Media, 2021).

Conclusion: The Lasting Effects of Colonial Law and Christianity

Today, the undoing of British colonial rule is slowly coming to light amongst the former colonies, as seen with the repeal of Section 377 in India. However, the effects still have a firm grasp on post-colonial cultures and states worldwide. 

The administration of Christianity in colonized states, which enforces the gender binary and persecutes homosexuality, has both created and exacerbated environments of inequality, bias, and violence against women, gender nonconforming, and queer individuals around the world. People are still being imprisoned for their identities and relationships. And, for states that did not prosecute LGBTQ+ individuals before British colonial rule, independence has not completely reversed colonization’s effect on gender identities and sexual freedoms. 

Overall, there is still a plethora of work to be done to decolonize perceptions of gender and sexuality, as well as overturn discriminatory laws and implement policies that protect the LGBTQ+ community. The world should echo the sentiments of the former prime minister of India, Lal Bahadur Shastri, who said, “We would consider it our moral duty to lend all support to ending colonialism and imperialism so that people everywhere are free to mold their own destiny.”

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