Podcast Summary:

Podcast: New Books Network – New Books in Law
Episode: Rehan Abeyratne, "Courts and LGBTQ+ Rights in an Age of Judicial Retrenchment" (Oxford UP, 2025)
Date: October 16, 2025
Host: Jane Richards
Guest: Rehan Abeyratne (Professor of Law, Western Sydney University)

Episode Overview

This episode features a conversation with Professor Rehan Abeyratne about his new book, "Courts and LGBTQ+ Rights in an Age of Judicial Retrenchment." The book explores how courts in three jurisdictions—the United States, India, and Hong Kong—have strategically advanced and protected LGBTQ+ rights even as liberal constitutional principles face backlash and retrenchment. Drawing on detailed case studies and his own academic and lived experience within these societies, Abeyratne unveils how incremental progress on LGBTQ+ rights both reflects and shapes judicial institutional interests amid political crisis and illiberal shifts.

Key Discussion Points & Insights

1. Origins of the Book and Personal Connection ([02:24])

• Rehan’s background: U.S.-trained lawyer; academic career in India, Hong Kong, and Australia.
• Autobiographical roots: The three case studies (US, India, Hong Kong) are places he's lived/studied/taught.
• Initial questions arose in Hong Kong: Despite significant authoritarian crackdowns (post-2019 protests, National Security Law), Hong Kong courts continued making incremental gains in LGBTQ+ rights—a “counterintuitive” development.

  "LGBTQ rights remained the only area of progressive constitutional rights development after the authoritarian crackdown in Hong Kong..." ([03:50], A)

2. Overarching Trends in Constitutional Rights Review ([05:13])

• Comparative constitutional law has shifted from optimism (spread of human rights) to anxiety (preserving existing rights).
• Three jurisdictions all saw expansion of rights followed by conservative/authoritarian backlash:
  • US: Trump’s 2016 election as watershed.
  • India: Election/sustained rule of Modi/BJP from 2014.
  • Hong Kong: Overnight change with 2019 protests, 2020–21 crackdown.
• Fundamental legal concepts (separation of powers, rule of law) now “detached from their original meaning” in teaching and practice.

3. Why Are LGBTQ+ Rights an Exception? Main Argument of the Book ([08:59])

• Courts use LGBTQ+ rights adjudication to:
  1. Sustain a progressive rights agenda with minimal political backlash:
     • Popular support for LGBTQ+ rights is higher than for other contentious rights (e.g., abortion) in all three locations.
     • Conservative/authoritarian regimes focus suppressive energies elsewhere.
  2. Preserve judicial reputation for independence and rights protection:
     • US: Occasional LGBTQ+ rulings act as counterweight to perceptions of partisanship.
     • India: Judges write for elite/domestic/international audiences; LGBTQ+ rights allow image maintenance.
     • Hong Kong: Appeal to international audience and common law legitimacy.

  "Courts...have used LGBTQ rights adjudication strategically to pursue one or both of the following objectives..." ([08:59], A)

4. The Limits of Progress: Incrementalism and Uncertainty ([14:50])

• Rights gains are real but incremental and subject to reversal—“a few steps forward and a few steps back.”
• Multiple possible futures:
  1. Temporary “recession” in liberal constitutional democracy.
  2. Ongoing polarized struggle—permanent “back and forth.”
  3. Consolidation of cultural nationalism, resulting in more permanent loss of judicial protection for rights.

  "Courts are not necessarily going to protect these rights in the face of unrelenting reactionary political forces." ([57:49], A)

5. Methodology and Case Study Selection ([17:48])

• Chose depth over breadth: Detailed analysis of 3 similar, yet diverse, common law jurisdictions with strong judicial review and court-driven LGBTQ+ rights gains.
• Selected cases where the context and legal culture are deeply familiar to him.
• Set aside jurisdictions where rights advances were legislative or by referendum.

Jurisdiction Case Studies

United States ([24:46])

• Judicial polarization: US Supreme Court transformed by Trump’s appointments (now a 6–3 conservative majority).
• LGBTQ+ rights as strategic “safe ground”:
  • Key precedents (Lawrence v. Texas, Obergefell) remain, even as abortion rights and affirmative action have been overturned.
  • Dobbs decision (overturning abortion rights): Conservative justices emphasized that this would not endanger same-sex marriage, despite doctrinal overlap—seen as a strategic bid to avoid appearing radical ([26:32]).
  • Bostock (2020): Conservative majority gave a surprising pro-LGBTQ+ outcome via textualism, legitimizing the Court's methods and image ([29:57]).
• Ongoing uncertainty:
  • Trans rights are an area of regression (e.g., Supreme Court upholds state bans on gender-affirming care; “Don’t Say Gay” laws).
  • Same-sex marriage remains relatively secure due to broad public support but is potentially at risk long-term.

  "If abortion wasn’t sufficiently rooted in history and tradition, there’s no way that same sex marriage was sufficiently rooted." ([27:10], A)

India ([34:20])

• Supreme Court’s shifting institutional role: From social justice champion to more managerial, overloaded, fragmented benches.
• Strategic rights rulings during Hindu nationalist rise:
  • Landmark privacy and decriminalization decisions (Puttuswamy 2017, Navtej Johar 2018).
  • Courts strategically used progressive cases to bolster reputation while remaining cautious in other areas.
  • With time ("entrenchment" of Modi regime), court has become much more cautious: Recent Supriyo (2023) same-sex marriage decision declined to recognize such marriages/unions despite a progressive Chief Justice’s efforts.
  • High caseload, rapid judicial turnover, contradictory bench opinions fuel uncertainty.

  "[Justice Chandrachud’s] opinion in the Scipio case...reads like a majority opinion...then...it’s a minority opinion...All five justices found that there was no right to same sex marriage." ([39:00], A)

Hong Kong ([42:44])

• Cosmopolitan but cautious court: Court of Final Appeal features overseas judges, strong common law ties, incrementalist approach.
• Dramatic decline post-2020 National Security Law:
  • Pre-NSL era: LGBTQ+ rights among several areas of modest progressive growth.
  • Post-NSL era: LGBTQ+ rights are the last bastion for progressive rights; court is even more cautious.
• Recent cases (Sham Tsz Kit, 2023):
  • Court rejected a constitutional right to same-sex marriage, but instructed government to devise some legal framework for same-sex unions—albeit in vague terms and with weak enforcement ([46:27]).
  • Hong Kong’s government is motivated to protect LGBTQ+ rights to maintain its competitiveness as an international financial center:

    "Hong Kong can now say...to major international corporations, you can encourage your LGBTQ employees to come here." ([50:48], A)

  • Illustrates local (business-driven) incentives versus national Chinese government’s priorities.

Overarching Analysis

Pinkwashing: Courts, Reputation, and Strategic Rights ([53:08])

• Pinkwashing (using LGBTQ+ rights to signal progressiveness and shore up institutional legitimacy) is present across all three sites, in varying degrees.
• Normative judgment depends on context:
  • US: Unjustified, used to obscure deeply partisan retrenchment.
  • Hong Kong: More defensible, as LGBTQ+ rights are one of few remaining progressive spaces.
  • India: Case-by-case; may serve as a bridge back to more genuine judicial independence, or simply as cover.

  "If LGBTQ rights could serve as a bridge past the Modi era...some pinkwashing in the short to medium term might be all right." ([53:49], A)

Trans Rights Complexity ([54:54])

• Trans rights’ development differs from LGB rights—India as example, where the Modi government championed trans rights for strategic, culturally specific reasons aligned with Hindu nationalist narratives.

Takeaway Message ([57:49])

• Court-led advances are precarious; real, popular, and entrenched rights protection depends on broad social support.

  "If we want rights to be protected, there really needs to be broad popular support for them to survive..." ([57:49], A)

Notable Quotes & Timestamps

• On Counterintuitive Progress:

  "LGBTQ rights remained the only area of progressive constitutional rights development after the authoritarian crackdown in Hong Kong..." ([03:50], A)

• On Teaching Context & Anxiety in the Field:

  "It was an optimistic course...but over the last few years, it’s become quite an anxious course." ([05:50], A)

• On Courts’ Strategic Use of LGBTQ+ Rights:

  "Courts...have used LGBTQ rights adjudication strategically to pursue one or both of the following objectives..." ([08:59], A)

• On the Precarious Nature of Court-Driven Rights:

  "Judge led advances on rights are not as safe as many might think..." ([57:49], A)

• On Indian Supreme Court’s Internal Contradictions:

  "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..." ([35:22], A)

• On Pinkwashing:

  "...if LGBTQ rights could serve as a bridge past the Modi era...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...then of course it’s problematic." ([53:49], A)

Memorable Moments

• The detailed, accessible walk-through of how the US Supreme Court’s internal politics and appointments have affected the fate of LGBTQ+ rights—helpfully contextualized for both US and non-US listeners ([24:46]).
• The nuanced discussion of how the BJP government in India embraced transgender rights for nationalist reasons, contradicting Western expectations ([54:54]).
• The idea that, in Hong Kong, economic imperatives and maintaining “global city” status are actively incentivizing the government to support some LGBTQ+ rights, even amid severe political repression ([50:15]).

Final Thoughts & Current Projects

• Key takeaway: Rights are safest not because of courts alone, but when underpinned by broad, popular constituencies ([57:49]).
• Next project: Abeyratne is beginning new research on the history of judicial power within the British Empire, especially concerning the ‘basic structure doctrine’—with echoes of the current book’s interest in judicial self-preservation ([58:29]).

Structure for Quick Reference

• 00:00–01:36: Ads, network intro (skip)
• 01:37–04:32: Introduction to guest/book, origins of research
• 05:13–08:59: Large-scale trends, teaching context, liberal constitutional anxiety
• 08:59–14:04: Core arguments—why strategic use of LGBTQ+ rights is possible and advantageous for courts
• 14:50–17:48: Uncertainty over the future of court-protected rights
• 17:48–23:31: Methodology—detailed, comparative, context-sensitive approach
• 23:31–52:53: Rich, deep dives into the US, India, and Hong Kong case studies
• 52:53–54:50: On ‘pinkwashing’—the ambivalent reality behind institutional advances
• 54:54–57:49: Surprising research discoveries (esp. Indian trans rights), final thoughts
• 58:29–59:30: Future research