Legislating for progress – assessing the impact of law changes on our communities

The historical relationship between laws and gender and sexual minorities has often been fraught. Across the world, consensual same-sex relationships are still criminalised in 66 countries, and in at least 14 jurisdictions, people can face legal consequences for expressing a gender that doesn’t align with the sex they were assigned at birth. Furthermore, we now see new laws being discussed or enacted in parliaments all over the world that further discriminatory practices, and threaten the exercise of LGBTI+ people’s fundamental freedoms.

This tension has long spurred activists to advocate for a crucial change – the protection, not persecution, of LGBTI+ individuals through legal reform. Not only to make sure that outdated colonial laws specifically targeting the LGBTI+ community are being struck down, but also to ensure that other laws (either new or pre-existing) are not unintendedly causing harm to LGBTI+ people.

While the repeal of colonial laws has seen progress (since the early 1990s nearly 50 countries have decriminalised consensual same-sex intimacy and many jurisdictions have implemented laws which offer protection from discrimination and legal recognition of our identities and relationships), the analysis of other bodies of law is more complex. Once a new law is in place, how do we ensure that it is actually making a difference to the people it’s meant to protect? What if it causes more harm than good? That’s where post-legislative scrutiny comes in.

Last month we supported partners from Kenya, Mauritius and Namibia – along with members of our staff – to participate on an intensive online course on innovations in post-legislative scrutiny that was co-organised by the Westminster Foundation for Democracy (WfD) and the London Institute of Advanced Legal Studies (IALS).

This in-depth course provided representatives from LGBTI+ civil society organisations with the opportunity to engage with academics, experts, MPs and committee staff from parliaments worldwide on the theory and practice of post-legislative scrutiny as an oversight tool. They learned how civil society groups can use post-legislative scrutiny to collaborate with parliaments in the monitoring of legislative actions and processes initiated by their respective governments, on issues as critical for LGBTI people as immigration, healthcare, or domestic violence.

Using the knowledge they gained, they can better inform the scrutiny process and help to promote inclusive change and improve people’s lives. This knowledge builds on the “Guide on Post-Legislative Scrutiny for Civil Society” that Kaleidoscope Trust and the Westminster Foundation for Democracy developed in 2021 to guide organisations through the concept and dynamics of post-legislative scrutiny.

Having completed the course, our Head of Programmes Juan said:

“Laws that protect rather than persecute LGBTI+ people are vital, and post-legislative scrutiny can help us and our partners monitor that they are being properly implemented and achieving their desired impact. It’s been an absolute pleasure to join this training and learn these skills alongside some of our partners from across the Commonwealth, who are now more knowledgeable and better able to engage with their parliaments on matters related to legislative scrutiny. In the longer term, we want to see a group of civil society experts who can share their expertise on these issues and upskill partners in other countries on how to conduct this work.”

Jade McClune, who works for TuliNam and attended the course to support the work of the Diversity Alliance of Namibia, said:

“It was a fascinating course, partly because we were able to get an overview of how the legislative review process works in many other countries, and we were able to hear from and interact with people from around the world who are working on similar issues. It was also intellectually stimulating to attend the lectures by legal experts from a range of backgrounds, that helped us to better understand the challenges and benefits associated with post-legislative scrutiny.

“The course further encouraged us to make better use of new media technology for cross-border cooperation and collaborative work, which is something that will practically benefit our work in many respects. The course was well organised and has been an excellent learning experience that will help strengthen and sharpen our own work on post-legislative scrutiny.”