This article is written by Tanya D’souza, a student of Ambedkar University.

Abstract: In the past few years the LGBT community has been making the headlines quite often, be it because of the Supreme Court judgement on section 377 of the IPC or because of the most recent NALSA judgement about the legal recognition of the third gender in India.

The LGBT communities all around the world have been in a constant battle against the discrimination they face on a daily basis. In the west the LGBT movement, had emerged “with and out of the women’s movements, foregrounded the idea of pleasure, the LGBT movement here really came into existence piggybacking on the AIDS crisis and articulated itself necessarily in the languages of crisis, violence and remedial action , not pleasure.”(Tellis: 2011) Even though in the academic filed sexuality was shown to be embedded in various discourses it wasn’t accepted or understood by the state. Also no debate about sexual desire has ever come up with sexual agency as the base.

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In this article I will try to trace answers to a few questions that may come to our mind when we are made familiar with these laws. Questions like-Was it a valid decision? Is being homosexuality unnatural? What role does religion play in the perception of homosexuality? While criminalizing the act of homosexuality and calling it unnatural, are we not indirectly going against the very law of human rights and equality?  While we keep talking about India’s continuous growth and development as a county, we must also sit back and think to ourselves, is it just enough to be developed in terms of science, economy and infrastructure? What about bringing about change in the mindset of the society towards issues like that of section 377?

Background

Not many people were familiar with the section 377 of the Indian Penal code till the recent movement that took place on a large scale in order to repeal it. This struggle has been a long one, Section 377 dates all the way back to 1861, during the British rule in India when any sexual activities that went “against the order of nature” was criminalized including homosexual acts. The concept of what is natural and what is unnatural in itself can be looked at as a problem. Just because some people have different preferences, does it make them or their choices unnatural?

Section 377, IPC reads as:

“377. Unnatural offences.— Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

On 2nd July 2009 the High Court of Delhi declared gay sex legal, with respect to sex between consenting adults, but on 11th December, 2013 the Supreme Court went back to the old constitution and reinforced section 377. Despite all the government petitions to review and drop the ban on gay sex the apex court refused to do so and stuck to their verdict. One wrong judgment put to test all the hard work invested by the LGBT activists in order to spread awareness regarding the topic and also to liberate hundreds of individuals who identified themselves as a part of the LGBT society.

 Ever since the Supreme Court came out with such an unfair verdict there has been a lot of discussion and debate regarding this topic across the globe. In many parts of the country the LGBT society protested against this verdict by organizing various peace walks and pride parades in order to create awareness regarding this subject. These pride parades included not just homosexual people but also many heterosexual people who felt that this was a wrong step taken by the Supreme Court.

Effects of section 377

Poulomi Banerjee in her article shows us how this verdict has become a menace for many people who belong to the LGBT society and gives us accounts of many such instances. She tells us about a transgendered individual from Kolkata who was ill-treated and insulted by people from his neighborhood. While he “was returning home… some people on the street threw eggs at him. A day or two earlier, a group of approximately seven men from the neighborhood had blocked his way, demanding to know how much they would have to pay him in return for sexual favors” (Banerjee, 2014). This is something many homosexual people face on a daily basis. And what are they supposed to do about it? Go to the police? Well they can’t, because the police themselves harass them and misuse the law. “There have been cases where two boys were seen holding hands or kissing and been harassed by the police. They either beat them up or threaten them with arrest and demand money to let them off. Demands for sexual favors in return of non-prosecution are also common,” says Kolkata-based activist Pawan Dhall, as accounted by Banerjee in her article.

It’s sad to see that while on one hand we have people coming forward and taking part in the awareness campaigns and resent the Supreme Court’s judgment, on the other hand there are still many people who believe that having any other sexual orientation except that of a heterosexual is unnatural and not just against nature, but against the will of God. There are a number of people who believe that the Supreme Court has made the perfect decision and it that their decision couldn’t get any better. An article published by the Hindustan Times quotes the general secretary of the All Indian Muslim Personal Law Board, Mr. Abdul Raheem Quraishi as saying, “We know that homosexuality is against nature…it goes against all its laws and it is what led to the spread of HIV/AIDS” (HTC & AFP, 2013).

While the justification for this judgment given by many is similar to that of Mr. Quraishi regarding HIV/AIDS one must also remember that HIV/AIDS is not only a problem among homosexuals. Putting an end to oral and anal sex is not going to stop HIV/AIDS from spreading. Anyone who has unprotected sexual intercourse (not just oral and anal but also peno-vaginal) with an infected individual is susceptible to HIV infection. In fact “The United Nations Development Programme on HIV/AIDS had argued in 2008 that decriminalizing homosexuality would help India to combat the spread of HIV/AIDS which affects an estimated 2.5 million people here.”(HTC & AFP, 2013)

More than being a way to keep AIDS away section 377 is more to do with the prevalence of How does one call this judgment fair if a section of people are treated so badly just because of difference in choice? What happens to the right to equality and freedom of choice? The 377 verdict seems to have simply ignored even the basic human rights of Article 14 and 15 of the constitution that guarantees every individual the right to equality and prohibits discrimination of any kind based on caste, sex, religion, race or even place of birth. If two individuals mutually consent to indulge in gay sex, why should anyone have a problem with it? This is another contradiction as Article 21 of the constitution guarantees an individual the right to freedom, privacy and personal liberty, hence guarantying protection of intimate sexual relationships, between consenting adults, from any intrusion of the state legislation. The Supreme Court seems to have kept a blind eye to these rights. Yes, it would be a horse of a different color if one individual was forcing another into the act, and that in all senses could be considered rape as well.

Does Section 377 only effect the LGBT Community?

Section 377 states that anything but heterosexual sex is “against the law of nature” hence against the law. Terming sexual acts like anal sex and oral sex as “gay sex” or “homosexual acts” is another problem. Banerjee in her article quotes Ashok Row Kavi, (activist and chair of the Humsafar trust-a homosexual community based organization) saying “A study conducted by the Family Planning Association of India has found that a good number of heterosexual couples in India engage in anal sex. So, under provisions of section 377, they too can face criminal proceedings” (Banerjee, 2014). So how can we term such sexual practices as being “gay” or “homosexual” when there are large numbers of heterosexual couples who indulge in such sexual practices? In other words it’s not just the LGBT society being targeted by this law it seem like the Supreme Court is out to change the whole idea or practice of sex among the citizens of India no matter what their sexual orientation is. India is known as the country of Kamasutra, in which oral sex and various other styles of sex are described in detail but now according to 377 any sexual act that is not peno-vaginal is a crime.

While some may say, “Section 377 does not criminalize homosexuality. You cannot be arrested for being gay. But you can be arrested for engaging in non-peno-vaginal sex,” (Banerjee, 2014) for some people this may be satisfactory unless they realize that the whole point of this fight against 377 is that, it is not just about sex, “There is a close link between the act and the identity” (Banerjee, 2014). If any two people are in a relationship and wish to have an intimate relationship under mutual consent, shouldn’t they have the free will to have the sort of relationship they want? For those who say that this judgment is valid on the basis on religion and culture, should realize that even God is said to have given humans the free will to choose their own lifestyle.

For many years homosexuality had been considered to occur in an individual due to being a part of wrong environmental influences. There also was a point in time when homosexuality was considered to be a mental illness/disease even by the American Psychiatric Association, but sometime in 1973 they removed homosexuality from the diagnostic and statistical manual of mental illnesses. But many people till date live with the impression that homosexuality is an illness. In the recent past we have witnessed many ministers and government officials who wish to open rehabs for homosexuals, so as to “fix” their “problem” for the “betterment” of society.

It has been scientifically proven that an individual’s sexual orientation does not take shape due to environmental influences. While environmental influences may help reveal the true sexual orientation of a person, the fact remains that an individual’s sexual orientation is determined during gestation and is fixed by the time of birth. Hence environmental factors cant simple change an individual’s sexual orientation unless that individual already had an inkling of having a different sexuality at birth itself. We should educate ourselves and others with such knowledge and facts, so that all these old concepts are abolished and awareness is created among people to be able to step out of this antediluvian mindset. For such old, unrealistic and unscientific perceptions and taboos only cause hate and violence.

In Banerjee’s article it has very rightly pointed out how anyone can take advantage of this law and misuse it. “Section 377 gives anybody, be it family members or neighbors who disapprove of a homosexual relationship, the opportunity to call the cops and claim to have witnessed anal or oral sex and the police will have to file an FIR,” says lawyer Anand Grover, who had represented the Naz Foundation (the NGO whose petition had led to the landmark Delhi HC verdict in 2009) at the Delhi HC and SC” (Banerjee, 2014). Even though there will be a proper proceeding that will follow up later and medical examination is needed as poof, to prove an individual guilty, but isn’t being dragged to the police station humiliating enough? And enough of embarrassment for a person to be made to hang their head down in society, that too just because of difference in choice.

Ashley Tellis very rightly points out that, “The next step is to rebuild the earlier movement against section 377 and every other form of violence, legal and non-legal, against LGBT communities. The Delhi high court order did not call for the repeal of 377 nor did it address any of the issues that actually affect poor and marginalized LGBT communities across the country” (HTC & AFP, 2013).

The NALSA Judgment- a ray of hope?

The National Legal Services Authority (NALSA) filed a petition in 2012 to the Supreme Court, asking for equal rights and legal recognition of transgendered individuals as the third gender. They believed that the non-recognition of gender identity of the transgender community violates the fundamental rights guaranteed to the transgendered individuals, who are citizens of this country.

Due to non-recognition the transgender community lacked access to the most common rights that every other so called “normal” citizen possesses. They were denied the right to vote, the right to own property and the right to claim formal identity through any official documents such as a passport or driving license. Further they also faced discrimination to contest elections, employment and were treated as untouchables. All this merely because most of the legal documents needed to avail any of the above ask to specify the gender of the applicant. And the form only consists of two options in the gender category i.e. male and female.

Now with the NALSA judgment in place, it has been declared that, “transgender persons have to be declared as a socially and educationally backward classes of citizens and must be accorded all benefits available to that class of persons, which are being extended to male and female genders. Learned counsel also submitted that the right to choose one’s gender identity is integral to the right to lead a life with dignity, which is undoubtedly guaranteed by Article 21 of the Constitution of India. Learned counsel, therefore, submitted that, subject to such rules/regulations/protocols, transgender persons may be afforded the right of choice to determine whether to opt for male, female or transgender classification.”[1] The Judgement also broadened the meaning of the term ‘sex’ which always meant male or female biological sex in Articles 15 and 16, and have now included ‘psychological sex’ and/or ‘gender identity’ to it.

This judgement comes across as a ray of hope to many individuals who have been struggling over the years with being able to identify themselves by the gender they relate to, be it female, male or third gender. The selection of gender is now based upon the individual’s choice, irrespective of medical and surgical intervention. Not just this, the Supreme Court under article 19(1) (a) of the constitution declared the protection of an individual’s gender expression allowing no restrictions on an individual’s personal appearance and choice of dressing.

Contradictions

The NALSA judgement enfolded both gender identity and sexual orientation within its transgender definition. Significantly, kothis were included in the transgender category, with the Court also acknowledging that they exhibit “bisexual behavior.” The Supreme Court recognized that gender identity might also be expressed through mannerisms, not merely dress and speech.

Even if Section 377 were interpreted to criminalize an act rather than an identity, the NALSA judgment’s definition of “transgender” raises the question of how transgender persons, particularly kothis, may be accorded a gamut of rights under the NALSA judgment when 377 infringes on their “mannerisms” and other elements of their “bisexual behavior.” Sexual orientation cannot be separated from Section 377; preventing individuals with non-hetero-normative sexual orientations from engaging in sexual activities is no different than preventing transgender persons from engaging in sexual activities of their choice.

Conclusion

The Supreme Court’s verdict on section 377 is not just biased, there is nothing substantial enough to prove section 377 to be correct neither morally nor scientifically. This judgment seems to have been passed on the basis of homophobia, rather than the betterment of the society as a whole. While we talk about adopting modern methods and working towards a united, well-developed country, here we stand fighting for rights of a section of society that has been refused basic human rights just because they are a minority and have different views and lifestyle preferences. We must realize that the NALSA judgement’s legal declaration of a gender identity is not the end of the battle towards equality among the LGBT community, but is just the beginning. Hopefully this judgement will stop the atrocious practices of ill-treating transgender persons and subjecting them to offensive and intrusive procedures, and will also be a reason to rethink and rework section 377.While this may be a step forward towards the betterment of the transgender community, let’s not forget that the lesbian, gay and bisexual communities are yet to granted their share of rights.

Our country has a large number of minorities and just like they have the right to live the way they want, the LGBT society should be granted the same freedom. It’s high time we as a country adopt methods of inclusiveness instead of segregating minorities due to such differences and individual preferences.

References and work cited

  • Banerjee, Poulomi: “Decoding section 377: How the verdict erased basic human rights”, Hindustan Times, New Delhi: Thursday, February 20, 2014.

Link– http://www.hindustantimes.com/StoryPage/Print/1165215.aspx?s=p

[1] As sited in the Judgement http://supremecourtofindia.nic.in/outtoday/wc40012.pdf

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2 COMMENTS

  2. A useful post, but it needs correction in that it wrongly repeats the widespread misunderstanding that the NALSA petition asked, and the SC judgement required trans people to be listed as third gender (“The National Legal Services Authority (NALSA) filed a petition in 2012 to the Supreme Court, asking for equal rights and legal recognition of transgendered individuals as the third gender.”) when, as correctly stated many lines later, in fact third gender was provided as one of the options that had to be available, alongside man and woman, and any other gender of identity, according to the individual’s actual identity (“This judgement comes across as a ray of hope to many individuals who have been struggling over the years with being able to identify themselves by the gender they relate to, be it female, male or third gender. The selection of gender is now based upon the individual’s choice, irrespective of medical and surgical intervention.”)

    According to large gender clinics around 10% of trans people do not identify as the “binary” genders – man or woman, girl, or boy. So about 90% would be denied their true gender if all were forced to be identified as third gender.

    It also follows that the assertion that rights have been denied due to requirements to state gender, and only male or female boxes being provided, os not accurate for most trans people. The problem lay in denial of recognition of the person’s gender of identity, so they were not allowed to use the box appropriate for their identity. The NALSA judgement, providing for gender recognition, and adding a requirement for provision for third, and other genders, solves that.

    Or rather it will when bodies get around to honouring the judgement. Well over a year later the seems to have been no change in that direction in most situations, and no one seems to be watching over the process of implementation.

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