As feminist scholars have long observed, the rise of populist governance has often been fueled by the enforcement of rigid gender and family roles. Populist leaders frequently cast themselves as the guardians of traditional gender norms and family structures and disparage global elites as imposing new or foreign ideas on unwilling publics. Recently, right-wing governments around the globe have reliably campaigned against what they have called “gender ideology,” a flexible and protean term that can include anything from changing gender norms, to same-sex marriage, to legal gender recognition for transgender people.
Yet the rightward shift toward authoritarian governance in many countries has coincided with a relatively recent recognition of LGBTQ rights in constitutional jurisprudence. Rehan Abeyratne’s excellent new book, Courts and LGBTQ+ Rights in an Age of Judicial Retrenchment, examines how LGBTQ rights have fared amid democratic backsliding and a retreat from a coordinated and generally progressive global constitutionalism. Abeyratne focuses on developments in three jurisdictions: the United States, India, and Hong Kong. He argues that decisions affirming LGBTQ rights have thus far survived an illiberal, authoritarian turn in each of these jurisdictions. This is because LGBTQ rights have provided a vehicle for judges in these jurisdictions either to signal a commitment to liberal values by recognizing at least some LGBTQ rights claims even as they acquiesce to a rightward turn in other respects, or to assert some modicum of judicial independence by ruling against the government and affirming LGBTQ rights claims in the face of growing constraints.
Although that argument quite likely has explanatory potential in many settings, its force in the book derives from Abeyratne’s intensive focus on the three case studies. Abeyratne’s attention to context allows him to chart a rich history of the judicial recognition of LGBTQ rights in each jurisdiction, situating victories and setbacks not only in the arc of precedent but in the changing institutional and political pressures in each jurisdiction that shape judicial behavior. This detailed analysis also allows Abeyratne persuasively to explore the nuances of many of the landmark LGBTQ and civil rights opinions, and the ways in which procedural and substantive seeds planted in landmark victories and setbacks often have borne unexpected fruit years or decades later.
Separate from the book’s argument and thoughtful comparative methodology, one lasting contribution that Abeyratne’s monograph makes is its careful dissection of the tensions that are animating what increasingly feels like a real inflection point for constitutional commitments to LGBTQ equality in many parts of the world. While Abeyratne’s book frames a recent history where LGBTQ rights have been ascendant in many places, his careful explication of the current moment is also useful for readers wishing to understand how the forces of democratic backsliding might ultimately overwhelm judicial commitments to LGBTQ rights.
In the short time since the book was published, there are two areas where that potential seems particularly apparent. First, there are pronounced signs that the shift toward more authoritarian governance in Hong Kong, India, and the United States is reshaping the judiciary’s will or ability to safeguard LGBTQ rights. One telling example is the Hong Kong Court of Final Appeal’s ruling in 2023 that the government must recognize same-sex partnerships. In September of 2025, the government’s bill to recognize same-sex partnerships was rejected by the Legislative Council, leaving it unclear whether or how the government will actually comply with the court’s ruling. Similarly, after India’s Supreme Court ordered the government to recognize transgender rights in the NALSA decision in 2014, the government responded by adopting the Transgender Persons (Protection of Rights) Act in 2019, a law that activists argue falls short of what NALSA required in important respects. In particular, the law rejects self-identification of gender in favor of a government certification process that requires proof of gender affirming surgery to change one’s legal gender. The law also prohibits discrimination against transgender people in various domains but does not provide for the affirmative action measures ordered by the court in NALSA. Whether apex courts continue to insist on LGBTQ rights even in the face of government intransigence (and sometimes efforts to transform the judiciary itself) or, instead, water down or retreat from those rights remains an open question. Abeyratne’s book is well positioned to help future scholars approach and answer it.
Second, even as many judges have retreated from a liberal cosmopolitan approach to constitutional adjudication, courts have not invariably become more insular or provincial in their reasoning. Instead, there are some signs that courts in different jurisdictions continue to use a global lens to understand LGBTQ rights claims. They are, however, increasingly doing so with an eye to countries whose jurisprudence is more skeptical or even hostile to LGBTQ rights. Here, the U.S. Supreme Court, which has a fraught relationship with modern global constitutionalism in the context of its own constitutional decision-making, offers one example. As Abeyratne notes, Justice Kennedy discussed comparative jurisprudence in cases like Lawrence v. Texas (on the constitutionality of criminalizing same-sex intimacy) and Roper v. Simmons (on the constitutionality of the juvenile death penalty). These discussions drew sharp criticism from many of Kennedy’s more conservative counterparts, a phenomenon that led to appeals to international law in constitutional decision-making falling out of favor on the Court, resulting in little mention of the global context in later cases like Obergefell. Yet one notable feature of the Court’s recent Skrmetti v. United States opinion upholding state bans on gender-affirming care for minors is that it looked to foreign practice and the regulation of gender-affirming care in England, Finland, Norway, and Sweden to support a ruling that rejected pro-trans equal protection claims. At the policy level, it is already evident that right-wing opposition to LGBTQ rights is globalizing in important ways, with some populist leaders, for example, declaring that there are only two sexes that are fixed at birth and then using that position to limit transgender people’s access to gendered spaces, healthcare, and identification documents, and to withhold government funding from or otherwise punish entities that recognize or affirm transgender people. What global constitutionalism’s relationship to LGBTQ rights will look like in the future remains to be seen.
Courts and LGBTQ+ Rights in an Age of Judicial Retrenchment provides a richly textured account of the rise and fall of transnational judicial dialogue and the development of an influential jurisprudence recognizing and protecting LGBTQ rights. The book not only persuasively details how that jurisprudence has fared in the face of democratic backsliding, but it does so at a moment when both LGBTQ rights and judicial independence remain under sustained threat around the globe. In capturing that trajectory to the current moment, the book promises to be an invaluable text for those interested in how law and politics have historically intertwined to foster the development of LGBTQ rights jurisprudence, as well as for those scholars and advocates navigating the uncertain future into which that jurisprudence is headed.
