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Rehan Abeyratne, "Courts and LGBTQ+ Rights in an Age of Judicial Retrenchment" (Oxford UP, 2025)
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B
Hello and welcome back to New Books in Law, a channel on the New Books Network. I'm Jane Richards, and today I have the pleasure of interviewing Rehan Abo Radnor. He is a professor in law at the Western Sydney University. Rehan, welcome to the show.
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A
Thanks very much, Jane.
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B
We're going to be talking about his book today, Courts and LGBTQ Rights in an Age of Judicial Retrenchment. It was published by Oxford University Press and it is hot off the press. Am I right? It's only just this year, right, that it's come out?
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A
Yes, you might. Months ago. That's right.
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B
Brilliant. So I'm really excited to talk about it. So, just to get us started, Rehan, can you tell me a little bit about yourself and how you came to write Courts and LGBTQ Rights in an Age of Judicial Retrenchment?
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A
Sure. So I'm a US trained lawyer, but my academic career has been largely outside the us So I taught in India for five years, then at the Chinese University of Hong Kong for six years, and then for the past two years, I've been at Western Sydney Law School in Australia. So the book is in some sense autobiographical, as we'll get to. I'm sure the three case studies are the us, India and Hong Kong, all places that I've lived and either studied or taught law. But the specific idea to look at LGBTQ rights in this context of liberal constitutional decline came to me while I was teaching in Hong Kong. So I taught in Hong Kong from 2017 to 2023. So I was there before, during, and after the mass protests in 2019 and then the authoritarian overhaul that followed in 2020 and 2021. So Hong Kong went from being a relatively liberal and somewhat democratic sub region of China to being one that was illiberal and undemocratic. And yet at the same time, even after these changes took place, there continued to be incremental progressive developments in LGBTQ rights in Hong Kong. And this was interesting to me because it seemed counterintuitive. After all, if liberal constitutionalism is in decline, groups that have been historically marginalized or discriminated against, like the groups within the umbrella of lgbtq, are the sorts of groups that shouldn't be doing well, and yet they were doing okay. And in some cases their rights were even expanding. And so this observation that LGBTQ rights remained the only area of progressive constitutional rights development after the authoritarian crackdown in Hong Kong sparked a broader interest in me to look at the ways in which LGBTQ rights might be used by courts in societies where liberal constitutionalism is in decline. And that led to a five year long research project culminated in this book.
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B
And that was really fascinating. This sort of, I don't know if you call it attention or dichotomy between this, as you say, this liberal democratic decline on the one hand, and then there's this sort of little pocket of rights development and evolution. And it was. What comes through in the book is it's incremental games, a few steps forward and a few steps back in each jurisdiction. And that was really fascinating. Just going back a little bit. Can you talk, elaborate perhaps more on the sort of overarching trends in terms of constitutional rights review across these jurisdictions during this period of time that you studied?
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Sure. So I'll maybe do this through the lens of teaching, because I think that illustrates it quite well. So over the past decade and Certainly in the period that I was in Hong Kong, I taught both domestic constitutional law and comparative constitutional law. And I think the way that both these courses changed over time tells us something about the fields that they're related to. So if we begin with comparative constitutional law, when I first started teaching this course now a kind of decade plus ago, it was an optimistic course. It was about the spread of liberal democracy and human rights. It was about learning how different constitutional models served the same liberal ends. So some countries do it through one form of judicial review. Another set of countries might do it through a different type of judicial review. Right? Look at parliamentary systems, look at presidential systems, and so on. But over the last few years, it's become quite an anxious course, and I think the field has become quite an anxious one. It's now not so much about the spread of liberal democracy and human rights, but about protecting what's been gained since World War II or so, so over the last 70 years from regressive political forces. So now the course is much more about trying to learn about authoritarianism and how it threatens that liberal constitutional order both within particular countries and internationally. And so if we go into the specific jurisdictions, you see kind of a version of that, right? So the U.S. hong Kong and India, which are my three case studies for this book, all had somewhat similar stories. That is, there's kind of growth in what we might say is liberal constitutionalism. So an expansion of rights, greater freedoms, recognition of groups that had previously been neglected by society and by the law. But then over the last 10 or so years, we've seen conservative backlash. We've seen more aggressive or reactionary political forces take political power. And what's interesting about this, and I'll just speak specifically to Hong Kong now, is that in a lot of the jurisdiction in all three of these jurisdictions, especially in Hong Kong, it happened almost overnight, Right? So in the US it happened almost overnight when Donald Trump became president in 2016, of course, there were various developments that led to that, but that was a kind of watershed moment. In India, it was the election of Narendra Modi in 2014. And in Hong Kong, it was the protests leading to the authoritarian overhaul that I mentioned, where opposition political voices were shut out of politics entirely in 2020 and 2021, and a draconian National Security Law was passed that really limited the scope of civil and political rights. And so trying to teach this also became quite challenging because fundamental values, things like the separation of powers and the rule of law became so detached from their original meaning that I ended up sort of teaching something closer to authoritarian legality rather than liberal constitutional rights. So it's that context in which the sort of relative success of LGBTQ rights becomes interesting because all the forces seem to be pointing in another direction, and yet these rights have done reasonably well.
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B
I want to follow up on that, what you've just said, actually. Why. Why specifically do you feel LGBTQ rights have become this sort of little pocket of rights that can be protected in this sort of otherwise overarching trend towards authoritarian legality?
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Great. So this just takes me to the main argument in my book, and I argue that courts in these three societies, so again, that's the U.S. india and Hong Kong have used LGBTQ rights adjudication strategically to pursue one or both of the following objectives. So the first is to sustain a progressive rights agenda with minimal political backlash. And the second is to preserve what's left of their own reputations, that is the court's reputations and sometimes individual judges reputations for independence and commitment to fundamental rights in this era of liberal constitutional decline. So let me just say a little bit more about each of those. So going back to the first one, so why do LGBTQ rights allow courts to sustain a progressive rights agenda with not much political backlash? I think there are a couple of things going on here. One is you have to point to the tremendous success of what was originally called the gay rights movement and then became a broader LGBTQ rights movement in each of these societies in building up popular awareness and support for things like same sex marriage, for decriminalizing gay sex, and a host of other rights and anti discrimination provisions for these communities. As a result, even though these societies have turned in a conservative direction, there remains relatively strong public support for these rights. And so even authoritarian leaning figures are hesitant to roll back these rights or go against these rights to any great degree. I also argue that the reactionary or conservative forces in these societies have their main sites set elsewhere. So in the just to take one example, the conservatives and the Republican party have long opposed abortion and have been fighting for decades to overturn the Supreme Court President Roe v. Wade, which was decided in the early 1970s, and that was the focus of a lot of their energy. So it's not that they supported necessarily advances in LGBTQ rights, but they had, they seem to have come to terms with something like same sex marriage, much more so than they had with abortion. For instance, in India, Narendra Modi, I mentioned earlier, came to power in 2014. He leads a Hindu nationalist party called the BJP, which is still in power in India. And their main objective is to turn India from a kind of secular, liberal democracy into a kind of illiberal Hindu nationalist country. And so the main site. The main sites of that movement are minorities, particularly religious minorities, like the Muslim minority in India and in Hong Kong, as discussed, the main prerogative now of the government is national security, which they read very broadly to mean kind of suppressing any kind of dissent or disagreement with the government. So, you know, progressive advances in LGBTQ rights don't threaten their power in the way that, say, the freedom of speech or the freedom of assembly. But so those are some of the reasons why there's not so much political backlash to advances on these rights. And then the second objective, which is preserving the judicial reputation for independence and commitment to fundamental rights here, I think the story is a little bit different in each place. So in Hong Kong, it's very much a story of trying to. The court, the Court of Final Appeal especially, which is the highest court in Hong Kong, trying to appeal to an international audience. Right. So other common law courts around the world, judicial and legal elites who it has often written for. Right. And so having at least one area where it can sort of pursue some progressive rights decisions, I think is good for the court. For those audiences in India, there's both a kind of elite domestic audience and a foreign audience who the judges. Rights judges. Right. For Indian Supreme Court is famous for being a very progressive court and a court that cares about minority groups. And I think some of the judges remain quite fixated on that reputation and care about maintaining that reputation. And LGBTQ rights, again, are one of the avenues that they have to maintain some of that reputation. And in the U.S. you know, the U.S. supreme Court in recent years has come under a lot of scrutiny and a lot of criticism, much of it fair, in my view, for becoming quite a partisan court and one that seems to favor things that the Republican Party favors. And so the occasional ruling on LGBTQ rights that's either somewhat progressive or at least not too regressive helps maintain whatever reputation they may still have for being an impartial and independent court.
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Notwithstanding the sort of progress in terms of rights protections, though, it is a bit of a case where rights are protected incrementally. There'll be sort of an expansion, but it's not certain. That was one of my takeaways from reading the book. There's been these cases where they've moved the rights protection forward and the expansion of the scope of rights. But then there's also cases that sort of set them back. I'm wondering, can you talk a little bit more about this sort of evolution across the jurisdictions? Yeah. How certain or how much can sort of litigants rely on the idea that LGBTQ rights will be protected by the courts?
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It's a great question, and it's a difficult one to answer because I think sort of globally, we're going through a period of transition and it's not clear what's going to come out on the other end. So one possibility is that we're in just kind of a recession for liberal constitutional democracy. And, you know, as with most recessions, at some point the, you know, comes back up, right. The, the recession ends and you're back to an equilibrium. So it's possible that this is just a phase and we'll kind of go back to a more liberal period. A second possibility is that we're just kind of in this, this long fight between two quite polarized camps. And you see this most clearly in the US where you have a kind of very strongly, I'm going to call them, culturally Nationalist party, which is the Republican Party, and some of the justices in the Supreme Court, I would say, fit into that, into that camp. And then you have the rest of society, which includes some sort of, which includes the Democratic Party, some former elements of the Republican Party, and some others who are committed to liberal constitutionalism. And you see that, you see a similar story playing out elsewhere. And so it could just be that we're in this kind of forever fight between these two camps and it'll just go back and forth. A third possibility is that the cultural nationalism is going to become the dominant paradigm going forward. And so if we're in that world, then I think we can't rely on judicial decisions because at some point the political pressure will be overwhelming for some of these judgments to be overturned. At some point, these authoritarian leaning political forces will just have sufficient support on the courts. They'll be able to put judges who are favorable to their agendas, who will, in fact, go and reverse some of these rights. And so it could be that the story that I'm telling here, where LGBTQ rights are kind of this exception so to the general kind of retrenchment on fundamental rights, it could be that it's just a kind of transitional story, one that might not last very long. I'm trying to be more optimistic. I'm hoping that I'm in sort of category one or two that I mentioned earlier. Either we're just in a kind of difficult fight or more optimistically we're just in a recession, and hopefully we'll come back up.
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Yeah, certainly. I hope so too. So sort of going back a little bit, because your book, it was great to read. I've read lots of academic books now, but actually, one thing that stood out for me, yours was really thorough, and the research was really sort of deep and very specific, but it was really still a page turner, you'd say, even though it's an academic monograph. So can you tell me a little bit more about your methodologies in writing this book?
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That's very kind, Jane. Thank you. So I chose to write it in a specific way, which you've highlighted a little bit in your question. So there's a way to write a book like this where you kind of take a much broader look at the issue. So in this case, it would be LGBTQ rights. And you could write kind of a global sort of study on how LGBTQ rights are doing around the world and kind of catalog different approaches, different traditional approaches, sort of different developments on rights, and write kind of a, you know, a much broader study. I chose to go a different way, which is to choose a few case studies, so three case studies, and cover them in detail. And that's largely because my interests in my other work, which of course then get come into this work, are on the political and institutional dynamics around constitutional courts and constitutional court decisions. And so I'm interested in the political and institutional dynamics at play around LGBTQ rights. So the context really matters for the analysis. And I thought that an in depth approach to a few jurisdictions, rather than a broader study, which would look at more countries but in less depth, would be less ideal. So I went for the in depth approach. And the book uses LGBTQ rights as a window into judicial politics and decision making in societies, as we've discussed, that are experiencing liberal constitutional decline. So to choose the case studies, I wanted to pick jurisdictions that have baseline similarities to enable a meaningful comparison. So we're not comparing apples and oranges while maintaining sufficient diversity to add richness to the study. And so the us, India and Hong Kong, I felt, met those criteria. So what do they have in common? The three jurisdictions have common law legal systems. So they were all once part of the British Empire and have legal systems that reflect that. They all have strong form judicial review, which means that courts are empowered to invalidate legislation that violates the Constitution, and they all have a threshold level of commitment to liberal constitutionalism, or at least they did when I started the book. We can argue now whether they still do they also have all experienced backlash in various forms against liberal constitutionalism. And the courts have had to adapt, so that's what they have in common. But they're distinct and important ways too. So most obviously, they are geographically distinct. So one is in North America, one is in South Asia, one is in East Asia. The courts are different in terms of their decision making. So I don't want to get into too much detail here, but the US Supreme Court is usually characterized as an attitudinal court, which means that the individual ideologies of the justices matter a great deal for judicial outcomes. The Indian Supreme Court has been called an instrumental court, so much less concerned about procedure or precedent, much more concerned about what the law is doing and how the law can serve particular ends. And the Hong Kong Court of Final Appeal is a collegial court. That is, the justices tend not to dissent very often. They tend to write in a small C, conservative way that is very kind of, you know, accords with precedent and moves incrementally. The three jurisdictions, I should say, also are responding to different kinds of pressure on their jurisdiction and on liberal constitutionalism. So liberal constitutionalism is under threat. Or in Hong Kong, you can say it's been almost eradicated, but it's for different reasons. So in the US I argue that it's political polarization which is the main culprit. So as the two parties, the Democratic Party and the Republican Party, move further apart, so too have the American public, and so too has the judiciary. And so the justices in the US Supreme Court are not just in an environment that is polarized. They're actively now contributing to that polarization. The current 6:3 conservative majority on the Supreme Court is ruling in ways that really do not sort of respect well established precedents or even kind of what many of us thought were kind of pretty fundamental principles about how the system of government worked. So political polarization coming into the judiciary is really crucial in the US In India, Hindu nationalism, right. And so this has led to restrictions on minority rights, especially for Muslims. And in Hong Kong, the main pressure on liberal constitutionalism is national security, again, broadly conceived, to really reduce the amount of dissent and any kind of political contestation. I'll say just a couple more things. So I wanted also to pick certain countries or jurisdictions where the courts do a lot of the heavy lifting on LGBTQ rights. So I excluded places where advancements on rights in general and LGBTQ rights in particular came by way of legislation, which is the case in much of Europe or by referendum in places like Australia. Where same sex marriage was put to a referendum, it wasn't declared by a court. And then finally, I selected places. And this goes back to your initial question that I felt that I understood both at a legal and a political level. So, as I said, I've lived, studied, or worked for many years in each of these three case studies, which enabled me to have not only a good handle on the academic literature, but I think also on some of the more subtle aspects of how these systems work and on the legal culture surrounding them.
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B
Yeah. And I do think that came through your sort of your lived experience, like the knowledge that you have from actually being there and understanding the nuances that certainly came through in the monograph. It did make it sort of more prescient and real. Yeah. And I think that's probably what contributed as well to it being such a good read. So I want to specifically sort of drill down into each of the case studies a bit more. Now, firstly, let's talk about the U.S. a significant number of our listeners are from the U.S. but I'm not a U.S. lawyer, and I've not lived in the U.S. and I found this chapter incredibly helpful in terms of actually understanding really in depth how the courts work and also how they've been politicized over recent years and how this has also shaped judicial decision making. Can you give a little bit more detail? You've sort of hinted a bit at it just now, but can you talk more about the Court's recent history and the implication for LGBTQ rights?
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A
Sure. And I think that's very nice of you to say. I think for me, having lived outside the US for so long, this chapter, in some ways, was my own way of making sense of a lot of the developments, because it is a fascinating case study, but it's an extremely complex one. So in the US the story of LGBTQ rights has to be situated, and I do situate it within the culture wars of the past few decades and then the political and judicial polarization that I mentioned earlier, which has really become supercharged in recent years. So Donald Trump's election as president in 2016 really fundamentally changed American politics and really fundamentally changed the Supreme Court. So prior to that, for the past several decades, the Supreme Court, which comprises nine justices, was closely divided. So for a long time, there were about four liberal justices, four conservative justices, and depending on how you count, one or two justices in the middle. And for a long time, Justice Anthony Kennedy was considered the swing justice. So he voted with the conservative justices on some issues, and he voted with the liberal Justices on other issues, including on a lot of the lgbt, LGBTQ rights issues. And so some of the major LGBTQ decisions were decided by a 5, 4 court, with Justice Kennedy with the deciding vote. So in 2003, he was, he wrote the majority opinion in a case called Lawrence vs Texas, which decriminalized gay sex across the US in 2015, he wrote the majority opinion in Obergefell, which was the case that recognized same sex marriage. And, and so I think a lot of people thought sort of following Obergefell, you know, LGBTQ rights would just be sort of continually expanded. But then Donald Trump won the election the next year, and from a closely divided Supreme Court, we went to a very clear 6, 3 conservative majority. So Trump was able to appoint three justices in his first term, which is more than a single term president usually does. And that changed the Supreme Court, and that changed. And that changed things for LGBTQ rights, as I'll get to in a second. So in some ways, the Court has remained relatively, and this is the argument I make in the book, has remained relatively stable on LGBTQ rights compared to other rights. So the two precedents I mentioned, Lawrence and Obergefell, those are still standing when many other liberal precedents on abortion and affirmative action, on limits on school prayer, on gun rights, and so on, have been overruled. So if we take the abortion case, I think this is a good example of the strategic use of LGBTQ rights. So in 2023, I believe it was, the Supreme Court issued its decision in DoB, which was the case that overruled the abortion precedents, the precedents that established the right to abortion. That's Roe v. Wade and Planned Parenthood versus Casey. It's an awful and troubling decision in many ways. But one part that was interesting and I think hasn't been commented on enough was how conservative justices, including Justice Alito, who wrote the majority opinion, and Justice Kavanaugh, who wrote a. A concurring opinion, went out of their way to say that this ruling would not touch Lawrence or Bergefell. Now, as a sort of doctrinal matter, this doesn't make a lot of sense because the test that they used to overturn the abortion precedents was that if a right isn't specifically enumerated in the 14th Amendment of the U.S. constitution, which is where a right was implied for abortion, that right needs to be deeply entrenched in the country's history and tradition to be upheld by the Court. And they did an analysis and said abortion was not sufficiently rooted in the nation's history and tradition. Well, if abortion wasn't sufficiently rooted in history and tradition, there's no way that same sex marriage was sufficiently rooted. Right. Abortion had a much longer history than same sex marriage. And so for me, this suggests that their comments about cases like Lawrence and Obergefell being safe are strategic. They wanted to make themselves look less radical, and I think that's something. Now, of course, they may not sort of stick to this. It's a pretty radical court, but it's interesting that they said it. It's also worth noting that there have been a couple of cases, and one in particular where the conservative justices have actually been quite progressive on LGBTQ issues. The one that I focus on a lot in the book is Bostock, which is a decision from 2020 where a 6, 3 majority of the Supreme Court, led by Justice Gorsuch, quite a conservative judge, used conservative methods. So textualism, right? Just focusing on the words of a statute. Read a civil rights statute that prohibited sex discrimination to apply to sexual orientation and gender minorities as well. So they read the word sex to include discrimination on the basis of sexual orientation and discrimination on the basis of gender identity. This was quite an unexpected decision. I think it was sort of a nice surprise in some ways, but. But if you think about it, it suits their needs. So it was a way of the court kind of burnishing its own reputation when it had come under quite a lot of pressure, especially from the Democratic Party, for some of its other decisions. And there were moves to potentially reform the court or add justices to the court. And so this helped sort of burnish their own reputation. It also helped legitimize their methods. So by using textualism to come to a progressive result, these conservative justices were able to show that textualism doesn't always lead to things that the Republican Party likes. So to be sure, what I'm describing here is a kind of narrow type of elite preservation and not a broad based victory for LGBTQ rights. But the fact remains that they did issue this decision and that cases like Obergefell and Lawrence have remained intact, which is not nothing. Right. And I'll just end by saying I don't want to give the impression that I think that everything is is hunky dory with LGBTQ rights in the US because it's certainly not. Especially with respect to trans rights. There's been tremendous regression in the last few years. The U.S. supreme Court's case, Scarmetti, from earlier this year where they upheld a state ban on gender affirming healthcare is a good example. The education space. There's this don't say gay law in Florida, which is still in force. So I don't want to give the impression that everything is great for LGBTQ rights. It's just relative to some of the long standing precedents that this conservative court has overruled. It's worth noting that cases like Obergefell and Lawrence and institutions like same sex marriage have remained intact.
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B
Yeah, thank you. I guess. And you may not be able to add to this, but just going on what you've said, where do you see LGBTQ rights going from here in the us if you can predict?
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A
I mean, I think sadly, with trans rights, we can see where it's going. I mean, I think that's just that I don't, I don't see, at least in the sort of short to medium term, I don't see those rights progressing at all, at least at a national level. And if anything, I see sort of more and more discrimination being allowed against trans people with same sex, with, with same sex marriage and decriminalizations. It's interesting because there still is majority support for both of those and a reasonable number of self identified conservatives also support those rights, largely because they're about individual liberty. And so the US Supreme Court was asked to overturn Obergefell this year, and I think it hasn't taken the case up. I think they're safe for now. But you can imagine a few years from now, once, once this court, and if this political regime stays in power for long, or once they've done everything else they want to do, it wouldn't surprise me if they came after something like same sex marriage as well.
- [33:43]
B
Let's talk now about the second case study in India, and it's about rights amid institutional crisis and rising ethno nationalism. Again, you provide a really rich historical sort of context, both of the sort of political sphere and also of the way that judicial decision making happens within that context. Can you provide a little bit of context for the listeners and especially thinking about how politics has impacted judicial decision making under Modi?
- [34:20]
A
Absolutely. So I think with India, it's a similar big picture story to the US but the timeline and strategic objectives are a little different. Another difference, and you've hinted at this already, is that there's more of a kind of institutional element here, which I'll expand upon in a second. So some of the early cases on LGBTQ rights in the high courts, which are kind of one level down from the Supreme Court and the Supreme Court. So this was in the late 2000s, early 2010s a little bit later than when some of these cases started in the U.S. they happened in an era of transition. But the Indian judiciary, and there's an era of transition in two ways. One is there was a turn to neoliberalism in the 1990s and 2000s, where the courts, especially the Supreme Court, appeared to turn away from its social justice broke or agenda of the 1980s, for which it's still famous. The famous public interest litigation revolution that happened in the 1980s towards a more managerial, middle class oriented docket. And so it became a little bit less about kind of going out on a limb to protect minority groups or vulnerable groups, and more about kind of managing existing schemes that have been passed through legislation. The second change that was happening at this time was a real explosion in the Court's docket. So to give you a sense of this, when the Court was founded, this is the Indian Supreme Court. When the Court was founded in 1950, it heard about 1,000 cases a year. If we fast forward 50 years to the 2000s, it was then hearing 30,000 cases a year, and a decade or two after that, it was hearing somewhere between 50 to 70,000 cases a year. So what does this mean? So one is that the Court itself has expanded, so it now comprises more than 30 justices. And because of this enormous caseload, they hear cases in small benches, what they call benches or panels, usually consisting of two to three justices. And so this gives the Supreme Court of India what's been called a polyvocal quality. So it's many benches speaking at once. There's so many cases and so many rulings, and often the rulings are contradictory or at least in tension with each other. And so it's difficult to actually track doctrinal developments in India or the Indian Supreme Court, since the outcome of cases often depend on who's on the bench, which bench it's assigned to. And in addition to this, justices usually only serve for a couple of years. So there's a mandatory retirement age at the Supreme Court of 65. And a lot of Justices are appointed to the Court when they're about 62, 63 years old. So there's just a lot of turnover and just a lot of cases. So having said all of that, I do advance an argument about LGBTQ rights and how they served strategic ends for the Indian Supreme Court. So in the mid 2010s, there was a. So let me go back again. So I mentioned that there were many banks, that the Indian Supreme Court is divided into many benches. The Constitution of India requires that for cases of constitutional importance, a bench of at least five judges must hear that case. And so there's a designated constitutional bench comprising five justices that hears major constitutional cases. And in the mid 2010s there was a single constitutional bench that happened to decide a series of important cases on gender and sexuality. And this happened around the same time as Narendra Modi and the BJP swept into power in a landslide election in 2014, and then an even bigger landslide election in 2019. Right. So as India was turning into a less liberal, secular, democratic state, these landmark gender and sexuality cases came before the Supreme Court. So a few important judgments from this period. So 2016, the court, in a case called Puttuswamy, recognized a broad right to privacy. One of the justices in that case, Justice DY Chandrashuth, wrote a concurring opinion where he basically said that the right to privacy should be read as applying to people's rights to do what they like in private. And he suggested that the Court should think about striking down section 377 of the Indian Penal Code, which was a Victorian era provision that had kind of sort of stuck around into independent India, which criminalized sex between men. And so a year later or a couple of years later, in a case called Navtage Johar, the case, the Supreme Court, in a really sort of rhetorically soaring and extremely progressive decision, struck down section377 insofar as it criminalized sex between men. There were also some important judgments on women's rights in this era from the same bench, one called Sabarimala, which allowed menstruating women to enter a Hindu temple, another called Joseph Shine, which decriminalized adultery, and so on and so forth. And so what's important to realize here is on many other issues, because Modi was in power, the Supreme Court had to either remain silent or just didn't protect rights in the way that it used to. It was also going through various scandals related to corruption, a credible sexual harassment delegation against the Chief Justice. And so cases like Navtej Johar, with the kind of soaring rhetoric, which were clearly written also for an international academic and media audience, really helped the Court's reputation. And then if you go a few years later, once the Modi regime had become more entrenched, then it seems like the space for the Court to issue these really broad rulings narrowed. So I spent a lot of time talking about the same sex marriage case, which is a case called Suprio, that was decided in 2023. What's interesting about this case is that Justice Chandrachut, who I mentioned earlier, who was, I think, a genuine supporter of LGBTQ rights and has written very favorably or written in their favor in many cases, had become Chief Justice. And the Chief justice in India is able to select the judges that sit on the bench with him. And so for the same sex marriage case, he actually fast tracked the case so that it would be heard before his retirement, and he hand selected the bench. And I think he thought that this was going to be a kind of landmark, progressive decision recognizing same sex marriage. And if you read his opinion in the Scipio case, the same sex marriage case, it actually reads like a majority opinion, but then as you read on, you realize that it's a minority opinion and that only one of his colleagues signed on to his opinion and three justices ruled against him. So in that case, all five justices found that there was no right to same sex marriage. Justice Chandrashut and one of his colleagues would have recognized same sex unions. Three of his colleagues wouldn't even recognize that. All they recognized in the end was that the government would create a high powered committee to look into this issue. But nothing has come of that. So it's, I think, an interesting case study in how the space for progressive judicial decision making has really narrowed as the politics in India have changed. So the early Modi era, there was a little bit more room for the court to advance these rights, and then they've had to become quite cautious in the last few years.
- [42:00]
B
Yeah, and that comes through. It was fascinating to read that and just also fascinating to read about the way the courts in India work, both in terms of, as you just mentioned, you can have these sort of contradictory decisions or the inconsistencies. It was wild reading about this. I can't imagine being a litigant there, turning now to Hong Kong, because there have been significant constitutional changes there in the past five or so years. Can you tell me about how Hong Kong's constitutional structure has shaped LGBTQ rights protection in Hong Kong?
- [42:44]
A
Yes. So again, a different context, as you've said. Not least because it's a sub national entity, what they call a special administrative region within the People's Republic of China. So because of that, the adjudication of fundamental rights has been a relatively cautious, an incremental exercise. So Hong Kong's sovereignty was handed over from Britain to China in 1997. That's when the Court of Final Appeal was created. And unlike the Indian Supreme Court and the US Supreme Court, it's not like the Court of Final Appeal was once a super progressive or innovative court, as those other two courts at least arguably were in decades past. It's always been relatively cautious and incremental in its exercise of constitutional jurisdiction. At the same time, the Court of Final Appeal is also more cosmopolitan than either the US Supreme Court or Indian Supreme Court. Partly this is because of Hong Kong's status as a major international business center and the number of different nationalities that live in Hong Kong. It's also because of the presence of what are called overseas non permanent judges. And these are judges who usually are retired or are very senior at the highest courts of other common law jurisdictions who are invited to sit part time at the Court of Final Appeal and actually sit on most major cases. So the way the Court of Final Appeal is structured, the Chief justice sits on every case. There are permanent judges and then there's one spot. The five judges sit on each case. The fifth spot is left open for a non permanent judge that could either be a retired judge within Hong Kong or one of these so called overseas non permanent judges. And you know, eminent justices from the uk, Australia, New Zealand and Canada have served as non permanent judges, including lady hale from the UK, Beverly McLaughlin from, from Canada, Patrick Keane from Australia, and so on and so forth. The Court of Final Appeal is also more cosmopolitan than either the US Supreme Court and Indian Supreme Court in the way it decides cases. So it has a desire, as I mentioned earlier, to be seen as kind of a global court or a common law court. And so it regularly cites case law from the UK and Canada, it regularly cites the European Court of Human Rights, and it has kind of consistently done this throughout its short history. But as I mentioned, there was a major change in Hong Kong which happened more suddenly and more forcefully than either in India or in the us. So I divide the chapter basically into pre national security laws. That's pre2021 and post national Security Law eras. Of course, there are continuities between them, including these overseas judges who remain on the court. And there are basically two major differences between these eras that I explore in the book. Number one is that prior to the National Security Law, LGBTQ rights was one of many areas of incremental progressive jurisprudence in constitutional rights. After the National Security Law, LGBTQ rights seems to be the only remaining site for such progressive developments. And the second change is that the Court of Final Appeal must now be a little bit more cautious. And maybe I can say something about the the same sex marriage case to illustrate this. So there in. So there had been incremental move towards what appeared to be an incremental move by the incremental moves by the Court of Final Appeal towards recognizing same sex marriage. So a few years ago in a decision called Q, it recognized the right of a same sex or to recognize the right of a, of a same sex spouse who was, who had been married abroad to their same sex spouse and who had applied for a spousal visa when their spouse got a job in Hong Kong and was denied. And the court said no, if the marriage was recognized abroad, you have to provide them a visa. A similar case a few years later recognized that married couple, same sex couples married abroad are also entitled to marital benefits, including medical and tax benefits in Hong Kong. And so it appeared that, you know, there was kind of progress towards same sex marriage. And so same sex marriage finally came before the Court of Final Appeal in a case called shamsa kit in 2023. And I think this case shows how Hong Kong courts need to try to carefully in this kind of post national Security Law, post constitutional overhaul period. So there are five justices, right, who sit on these cases. The judgment was a 3:2 split with the overseas judge, former Australian High Court Judge Patrick Keane, issuing the decisive vote. And so all five justices rejected that. So rejected the claim that there was a right to same sex marriage under Hong Kong's Basic Law, which is Hong Kong's constitution. But three justices ruled that the government had to provide a legal framework to protect same sex marriage. So they had to provide something like same sex unions. But in doing so, they adopted a very conservative and originalist interpretation of marriage under the Basic Law that was at odds with their precedent. And they didn't provide any detail as to what this legal framework would look like. They gave the government two years to devise a framework. But if you look at the judgment on relief or the remedy judgment, it doesn't actually even seem to enforce the two year deadline. It just says it should be done within two years. But effectively, if the government wants more time, it can get more time. And the government seems to have taken this to heart because it's now been two years and only a few months ago did they finally introduce legislation to bring this into, into effect. And all the legislation said was that same sex couples married abroad would allow, would be allowed to register in Hong Kong, which, you know, was not much of a concession because that was already basically the existing law because same sex couples in Hong Kong already enjoyed all the benefits of marriage. This would just allow them to register. And that law was put before the Legislative Council and Even that minimal law was struck down, did not pass, I should say. And so we're getting to the two year deadline soon, and nothing has come of it because the Legislative Council would not pass that law. Incidentally, it's the only law that has not passed in the Legislative Council since the constitutional overhaul in 2021.
- [49:41]
B
There was one really interesting point that came out about Hong Kong, one of your key arguments in the way that protection of LGBTQ rights could actually be for Hong Kong's advantage in a way, as a global financial center. I'm wondering if you can tell me about that. That surprised me. It surprised me in the sense it wasn't sort of something that I would have necessarily anticipated, but it was really fascinating. So can you tell me a little bit about that?
- [50:15]
A
Sure. So one of the things that I try to do in the Hong Kong chapter is try to disaggregate what the Hong Kong regional government wants and what the People's Republic of China government wants, because in some ways, they're of course, aligned. Both governments, both the regional and the national government, do not want any kind of political organizing. They certainly don't want any kind of political opposition. But my argument is that the local government, that is the regional government, has long been beholden to and continues to be beholden to wealthy individuals, big businesses, and that much of its revenue comes from being a global financial center in particular. But really it's just a global city that is a major economic player in the region and in the world. And the city's reputation took a major hit, both because of how they dealt with the protests and the authoritarian overhaul afterwards, and in the way that they handled Covid, which was very, very regressive. And so one of the things I try to trace in the book is how the Hong Kong government has tried to signal in the last few years that everything is back to normal. People should come back. Big businesses, especially international business, will come back to Hong Kong. It's open for business again. And I link that to LGBTQ rights because I think that some of the progressive developments in LGBTQ rights, including the requirement that the government recognizes some form of same sex union, actually benefit Hong Kong as a. As a region and as a government in this post national security and post Covid world as it tries to bring back business and elite professional service workers. So Hong Kong can now say, right, you know, if you to say, you know, Western businesses or major international corporations, you know, not only are we open for business, but you can encourage your LGBTQ employees to come here if they're married, we recognize their benefits, and we're much more. More liberal in this regard than, say, Singapore or our other economic competitors in the region. And so one of the interesting through lines in Hong Kong is that economic freedom has always been and remains paramount despite everything else that's happened both traditionally and politically. And so I think LGBTQ rights actually helps advance economic freedom as well, and therefore is good for the Hong Kong government.
- [52:54]
B
And then sort of stepping back and looking at the sort of three jurisdictions again, is this incremental progress across the three jurisdictions? Is it all just pink washing, would you say? And is that necessarily a bad thing?
- [53:08]
A
It's a great question. I think at some level it is. So if we understand pink washing as an institution, in this case, courts using LGBTQ rights decisions to prop up their reputations as they do some pretty dishonorable or bad things elsewhere, then I think this is happening in all three of the case studies. I think the more interesting question is whether this might nonetheless be justified. And I think this really depends on context. So in the US I don't think this kind of pink washing is desirable at all. As I've said, the current U.S. supreme Court, in my view, is a partisan court that is hastening the country's liberal democratic decline. And so I don't think his reputation needs to be propped up or should be propped up in Hong Kong. I'm more sympathetic. I think the Court has actually remained quite stable. It's just that the legal and political environment has changed dramatically. And so if LGBTQ rights is really the only area for progressive growth, then I think pink washing might be an acceptable side effect to take on there. And in India, I'm somewhere in between. So if LGBTQ rights could serve as a bridge past the Modi era. Right. So the Supreme Court maintains its reputation with a view to regaining its role as a true constitutional guardian, then some pink washing in the short to medium term might be all right. But if it's more like the US where this is just intended to cover up some of the Court's more problematic or illiberal decisions and some of the less desirable conduct of its Justices, then of course it's problematic. So I think it really depends on context, but I think just because it's pink washing, we shouldn't sort of dismiss it altogether.
- [54:50]
B
And then I just want to ask what surprised you most in this research?
- [54:54]
A
I think we'll give you a specific example for this, because this surprised me. I had some sense of it, but only in doing the research did I really understand how it worked. So I've mentioned trans rights, and the usual story told, especially, I think, in Western Europe and the United States, is that. But the story that I'm telling, to the extent that it is true, is really about LGB rights. Right. And you have to take kind of trans rights out of there. And I think I would largely agree with that. A big reason that trans rights are in this book is because of how they have played out in Hong Kong, where there's been relatively progressive developments, but especially in India. And I think the story of trans rights in India really surprised me. So just to give a bit of background, so the Supreme Court in India issued a judgment called NALSA in 2014, which is a reasonably progressive judgment. It recognized a constitutional right to self identify as male, female, or third gender, and it directed the government to remedy even the socioeconomic deprivation that many of these groups faced. What was interesting was that the Modi government, when it came into power, co opted this issue and sort of put it out, put itself out to be the champion of the trans communities. And so this didn't make sense to me at first. And then reading more about it, I realized that the reason that this made sense was that many of the gender norm conforming communities in India have been there for a long time. They're quite specific to the subcontinent. And this fits with the Hindu nationalist narrative of India being a Hindu country based on Hindu civilization. And so these groups fit into the BJP and Modi's image of India before various Muslim invaders, as they call them, came to India and before the British Empire came to India. And so it fits nicely within this Hindu nationalist narrative. And so the Modi government actually pushed Parliament to enact what was called the Transgender Rights act in 2019. Now, it's not a perfect law. There are many things wrong with it. But the fact that kind of conservative group like Modi's BJT sort of put itself out to be this kind of champion of transgender rights was really interesting. And I think it shows how LGBTQ rights, again, may not only serve the interests of the courts, but may also serve the interests of the regime in some instances.
- [57:26]
B
Yeah. And I think that was, for me, that was a key takeaway of the book, this idea that sort of progress in rights serves the interests of the courts as well. And that was a really interesting way of sort of thinking about it and understanding the judicial decision making. I just want to ask, before we go, do you have any key takeaways or final thoughts for our audience?
- [57:49]
A
Yeah, I think some of it we've touched on already. But I think one big takeaway is that that judge led advances on rights are not as safe as many might think. And one of the things my book shows is that courts are not necessarily going to protect these rights in the face of unrelenting reactionary political forces. And so if we want rights to be protected, there really needs to be broad popular support for them to survive and to become truly entrenched.
- [58:16]
B
I think that's a very important takeaway, especially in this very politicized, partisan time that we seem to be going through. So, Rehan, just before you go, we've got one last question. What are you working on now?
- [58:30]
A
So something quite different. So I loved working on LGBTQ rights, but I'm going to put that aside at least for a little while. I've taken on a new project that I'm just starting on the history of judicial power, especially on the history of judicial power in the British Empire and its effects today. I'm especially interested in the origin and development of the basic structure doctrine, which allows courts to strike down constitutional amendments that violate core features of the constitutional order. So just very quickly, the usual story is that this doctrine emerged in India in the 1970s and has then spread around the world as a tool to protect democracy. And this project is seeking to rethink both those elements. So I think the history is deeper and more interesting and comes out of some Privy Council cases in the mid 20th century. And the present day uses of the doctrine also have. I guess this is an overlap with the LGBTQ rights project, but I argue that the present day uses of the doctrine have a self preservationist element for judges in the judiciary.
- [59:31]
B
That sounds really fascinating. I'll be sure to have a look when you're done. So, Rehan, thank you for your time. I'm Jane Richards. I've been speaking to Rehan Abre Radna. You've been listening to New Books in Law, a channel in the New Books Network, and Rehan's book is courts and LGBTQ Q + rights in an Age of Judicial Retrenchment. Rehan, thank you for your time.
- [59:51]
A
Thanks very much, James.