1 Introduction
The ongoing effects of the British Empire’s criminalisation of sodomy in its colonies have received considerable legal, political and public attention.1 Less well attended however, is the related issue of the queer legacy of colonialism in UK law. It is this legacy that this chapter addresses. The chapter argues that the approach of British political and legal actors to the UK’s colonial history is inherently paradoxical. Most notably, while there is some acknowledgement of the colonial past, there is a refusal to fully account for the ongoing effects of this past in the present, or for how geopolitical relations that maintain dynamics of “here” and “there” or “inside” and “outside” reduce the possibility of meaningful action. In contrast, a queer approach to this colonial legacy is one that confronts these paradoxes and in so doing, prepares for the possibility of radical and overarching structural change.
To trace the queer legacy of colonialism in UK law, it is important to distinguish between the colonial era, as an historical period marked by European territorial acquisition2; imperialism, as the operation of power beyond state borders that may or may not involve territorial conquest3; and coloniality as the ongoing effects of colonial history, or the “continuity of colonial forms of domination after the end of colonial administrations”.4 Equally important is the positioning of queerness in relation to colonialism, coloniality and imperialism. “Queer” here is not a catch all term for the LGBTQIAA+5 community, nor is it simply a designation of non-normative identities or behaviours. Instead, following Colebrook, conditions of the queer are those which expose how “the normal is achieved, produced, effected and also, therefore exposed as contingent, constituted and open to change”.6 Queerness is not simply about disrupting norms or categories of identity. It requires the repetition of previously unquestioned categories, norms, “doxa” and assumptions, in new forms that challenge the “laziness of common sense”7 and explore the unacknowledged potentialities contained within. Thus, the queer, postcolonial and spatio-temporal analysis in this chapter seeks to expose how colonially produced hierarchies and inequalities exist in the present and limit possibilities for future action. This approach views “inside” and “outside” in space, time and law as unfixed, but structurally interdependent, and seeks to think how these structurally interdependent relations could configure new possibilities for action.
The chapter first considers how the queer legacy of colonialism must necessarily contend with coloniality—or its denial—and the legal implications of this. It then traces one instance of how this manifests through a close analysis of a 2017 House of Commons backbench debate on “Global LGBT Rights”.8 Spatio-temporal irregularities within the debate are used to identify the presence of paradox at the heart of UK approaches to LGBT rights. The final section of the chapter uses Deleuzian scholarship of paradox to analyse how dichotomies of space, time, identity and law, that developed from the colonial encounter continue to structure and limit UK approaches to LGBT rights. For Deleuze, paradoxes are simultaneously moments of impasse and moments when our assumptions and axioms are revealed as limited and lacking. This revelation demands a re-working of those assumptions, opening up creative and radical moments of change. As such, Deleuzian paradox aligns closely with Colebrook’s approach to queerness. The key impasse with which this chapter engages is the refusal, or inability, to fully acknowledge the ongoing effects of coloniality within British law and politics. This refusal results in the repetition of well-meaning expressions of support for SOGI (sexual orientation and gender identity) communities but limits the field of possibilities for meaningful or radical action. Indeed, a full engagement with the paradox of the queer legacy of colonialism in UK law would demand radical, structural changes that would go far beyond the current parameters of “Global LGBT Rights”.
2 Temporalities of Coloniality and Law
Attentiveness to coloniality reveals how “habits of imperial engagement surround us”9 far beyond the end of the colonial era as an historical period. This is the case both for former colonies and for former colonial powers whose material, political and legal realities are shaped by the ongoing presence of coloniality.
A full accounting of the effects of all aspects of British colonialism is beyond the scope of this chapter, but it is important to note the extent to which the colonial “civilizing mission”, based on dichotomies of cultural difference, underpinned and justified imperial violence,10 the transfer of resources and wealth from colonies to colonisers,11 and the destruction of the philosophies and ontologies of those who were colonised.12 Law played a central role in British colonial expansion and the ongoing legacy of British legal re-ordering can be found in contemporary domestic and international legal orders.13 With regards SOGI, in 2018, Prime Minister Theresa May expressed “deep regret” for the British imperial role in perpetuating homophobic legislation.14 Criminalisation of “offences against the order of nature” was developed in legal instruments such as Macaulay’s Penal Code in India and the Griffiths Penal Code in Queensland.15 These became templates for legal frameworks elsewhere in the empire.16
A number of different elements of the ongoing effects of empire are significant to the analysis undertaken in this chapter. First is the underlying logics of coloniality: the ontological divide between the European self and the racialized, colonial other.17 Second are the forms of knowledge, knowledge production, action and law that grew from this foundational split—the structural violence of coloniality grounded in identities of civilised/uncivilised, self/other, centre/periphery that persist in the present.18 Related to this is the extent to which modern, racialized, middle-class identity and domestic practices were produced through colonial logics.19 Finally, as TWAIL (Third World Approaches to International Law) scholars have demonstrated, key legal structures—including modern statehood and sovereignty—emerged from the colonial encounter.20
Even with the persistence of imperial legal forms and the ongoing debates about the effect of colonialism and de-colonialism on British society and culture,21 there remains a relative “lightness” to the “weight of empire”22 for the UK. British history is shaped by empire but it has a relative degree of control over how it acknowledges, represents and addresses its imperial past.23 Empire is carefully positioned in British legal imaginaries, which means that the racialized hierarchies that persist in the postcolonial era, the peripheralization of (racialized) groups and nations,24 the axiomisation of certain forms of political and legal organisation are not a factor in sanitised “regret” for imperial laws.
Ironically, the persistence of imperial legal structures does not mean that they are particularly stable. Both TWAIL and transnational legal literatures have emphasised the precarity of current international legal orderings.25 Whether it be through “legal fragmentation” and the coexistence of a multiplicity of legal orders,26 the fa...