The state of homosexuality

The state of homosexuality

Nepal was recently witness to a victory of sorts for the lesbian, gay, bisexual, transsexual and inter-sex (LGBTI) communities. It was an undeniably historic day on 21 December 2007, when the Supreme Court of Nepal, in response to a petition filed by a coalition of local LGBTI-rights groups, ordered the government to fulfil its contractual responsibility to LGBTI individuals by amending existing legislation or formulate new laws that would permit this community to better exercise its civil and human rights.

This was certainly an atypical victory for Nepal's LGBTI movement. In the aftermath, questions are now surfacing about how ideas and identities travel across the transnational landscape, and what social contexts make these transmissions more successful in certain places and times. These questions are especially pertinent when compared to neighbouring India, the imagined custodian of Southasian democracy. Despite having sustained a movement for a longer period, India's gay activists have failed even in their attempts to extricate homosexuality from the general scope of Section 377 of the Indian Penal Code, which criminalises all "carnal intercourses against the order of nature."

Nepal's Civic Code, which dates back to 1854, has undergone major reconstructions. But it nonetheless showed an odd lack of imagination when it came to homosexuality, and the chapter on bestiality that criminalised "unnatural sex" remained unchanged throughout. The use of this statute, much like Sec 377, is in fact very sporadic, absent even in the long history of Nepali jurisprudence. Since its inception in 2001, the Blue Diamond Society, Nepal's leading LGBTI advocacy group, has thus engaged in a series of tussles with the Supreme Court, documenting harrowing cases of abuses, police brutality and arbitrary arrests, and has made 'inclusion' and 'recognition' its rallying calls.

The Supreme Court's ostensibly pro-LGBTI stance is the latest in a spate of progressive rulings that have come about in recent times in Nepal. Following the People's Movement of April 2006, a cacophony of voices has saturated the country's political climate, which has succeeded in making discourses on equality, plurality and identity ubiquitous in the public sphere. In this context, emerging issues have also manifested in non-partisan ways, sometimes circumventing party politics altogether.

Meanwhile, liberal discussions of human rights have been propelled through the international developmental circuit, as a result of which the judicial route has significantly opened up as a real option for the continuation of social struggles. With mounting calls for sweeping changes and the drafting of a new interim constitution underway, the justice system has found itself in the vanguard, ordered to modernise and stabilise the country, and to undo the horrors of the recent and long past. The courts have reciprocated by turning to international experiences of democratic constitution-building. With the spectres of equality and multiculturalism constantly hounding it, the constitutional process has been exceedingly open to pressure from below. It is in this context that Nepal has inaugurated an escapade of LGBTI rights, cozened into an openness unfamiliar in Southasia.

Leap of egalitarianism
The long and relentless march of European Enlightenment seems to have found yet another triumph in the LGBTI movement of Nepal. This is primarily because the notion of emancipation based on gender identities is deeply entrenched in ideas of development, modernisation, rationality and progress, all concepts that were radically defined during the Enlightenment period. Commonly couched in a rigid binary of tradition versus modernity, this narrative sees countries such as Nepal as undergoing a long process of transition, the distant culmination of which are the ideals of the 'modern individual' and the 'perfect state'. The same march of progress and reason may have once convinced Englishmen to colonise, represent and standardise the neighbouring countries of Southasia (leaving behind, among other things, the notorious Sec 377), but that is only a historical irony.

The 'Enlightened' ideas of modernity have a universal allure, and therefore have been an irrefutable source of legitimacy for all sorts of political movements. The rhetoric of human rights, for example, is one such source that miraculously transforms myriads of people into 'modern' subjects, whose political, ethical and cultural differences can be overcome through their common privileges as humans. Appealing to these ideas means that the LGBTI movement of Nepal must directly engage with the state, since the state – in a real sense – embodies the universal ideas of progress and rationality. States, after all, are what make rights accessible, even the 'intrinsic' human rights, but only inasmuch as humans act as citizens, and only so long as freedoms are sought within the state framework. The Supreme Court of Nepal thus clearly declares that if the LGBTI minority enjoys "the right to their own identity", it is only "by the virtue of being Nepali citizens". The LGBTI turn to judicial processes and its emphasis on citizenship and rights thus make the state the ultimate agent of change.

By underscoring this relationship between the state and the LGBTI movement, sexual minorities become the lens through which we can understand crucial debates of identity and hierarchy. In this way, the LGBTI struggle of Nepal may allow issues of sexuality to come out of their circumscribed, relegated sphere, and simultaneously enable us to see reproductions of knowledge and power that are of wider significance. There is no doubt that the Supreme Court's recent ruling should embolden not only the various LGBTI individuals of Nepal; it should also do so for those who have long expected, from a democracy such as Nepal, a proliferation of a wide variety of discussions, debates and discourses. One way or another, the fact that issues of sexuality have found space at all amidst the currently crammed social and economic agendas of Nepal is, for those who care, an extraordinary leap of egalitarianism.

Seeing the LGBTI Nepali's desire for recognition, inclusion and protection operating within the liberal, legal framework requires an irreversible linking of the local with the global. This does not, however, necessitate the reiteration of the view that sees the West as the natural hub of all social innovations, gradually exporting these outwards. Instead, the aim is to formulate connections between sexuality and governance along the longer history of global, cross-cultural relations. Moreover, insofar as the engagement of the LGBTI movement with the state takes the form of an emancipatory politics, we may even ask alternative, and ultimately more important, questions. For instance, in On the Jewish Question, Karl Marx wrote: "It is in no way sufficient to inquire: Who should emancipate? Who should be emancipated? A proper critique would have a third question – what sort of emancipation is under discussion?" It is this last query that is of specific relevance in the Nepal situation.

Local transgressions
It is common to think of emerging movements of gender and sexual politics in Southasia, or anywhere outside of developed countries, in terms of what can be referred to as 'transnational diffusion'. The developing countries seem only able to borrow or adapt debates that have already taken place in the West, and which are quickly traversing the globe. Even so, the complex expressions and meanings that sexuality comes to take in different cultures are generally acknowledged. Arvind Narrain, of the Bangalore-based Alternative Law Forum, a vital ally of the Blue Diamond Society, has pointed out how challenges to the marginalisation of homosexuality in India have not always required 'modern' expressions of sexuality or even a collective identity. Rather, time and again, same-sex couples (mostly women) have surfaced from the Indian backwoods, taking it upon themselves to call into question the established mores. Likewise, Pakistani gay activists sometimes recount, with a tinge of romanticism, the practice of virile Pashtun tribesmen taking young boys as t

heir lovers.


In Nepal, some LGBTI members speak of being a meti – a semi-urban, even modern term appropriated from Darjeeling that does not take its ideas about transgenderism from the globalised models of sexual identities. Metis are usually transvestites, who were born male but who do not identify as men. They seek the company of men, whom they call ta or panthi or 'real men', who desire sex with metis but who elude the homo-hetero binary altogether. The phrase 'dui atma bhayeko', or 'two-spirited', is also in use in Nepal, a concept that not only implies an almost mystical consciousness but also draws on local imageries of androgyny. That these expressions of gender and sexuality, even after being politicised under more prevalent categories of the rights-based movement, have found formal recognition by the Supreme Court as 'tesro lingi', or 'third gender', is an extraordinary instance of how powerful locally emerging identities can be. Now to be reproduced in all official documents, tesro lingi is a category quite singular in its inventiveness, forcing for the first time the Nepali state to defy the rigid binary of male and female.

These examples should be enough to demonstrate that self-knowledge through actual practices of sex and pleasure fiercely resist the reduction of sexuality to static and rigidly defined categories of identity. Champions of gay and human rights often try to temper the wild, insuperable terrain of the actual act of having sex by using such phrases as 'diverse sexualities'. But this can have the opposite effect of standardising the fluid and indeterminate nature of sexual experiences. It is precisely the contrived 'multiculturalist' labelling of sexuality by the rights-based approach that, ironically, has reproduced homogeneous expressions of LGBTI identities the world over. In reality, the standardisation of LGBTI identities has tended to obliterate the real diversity possible in people's lives.

Occasionally, however, homosexuality has given rise to spaces that are quite insulated from the regulatory realms of governance. These spaces, which are typically referred to as 'sub-cultures', appear suddenly here and there, and are able to advance creative, indigenous forms of transgression. These also permit the kinds of freedoms that are not generally tolerated in the public sphere.

When the gay liberation movement first emerged in the US during the late 1960s, it came from just such a place of sexual and cultural dissidence, rejecting longstanding standard 'histories' of human relation, social convention and legal code. During those heady years, however, the gay sub-culture was not the only one that was seeking to mould itself as a force with which to be reckoned. In fact, black militants, radicals, students, feminists, fanatics, freaks, hippies and environmentalists were all experimenting with creative ways of combining cultural ideas with politics. Moral criticisms of the mainstream were launched not in an attempt to enter into the existing orders and sensibilities of culture, society and state, but rather to overcome, undermine and shatter them. State, law, convention, marriage, family, church, academy: no institution was considered too holy under the sudden assault of the 'cultural backwaters'.

During this era in the US, it seemed that possessing the power to define one's own identity could dismantle the entire social order, and such practices of self-invention appeared somehow linked to larger questions of international politics. Gay liberation in America would probably not have achieved a wider spread without a sense that a radically new world was imminent – a sense created cumulatively by the movements of racial equality, revolutionary nationalism and economic freedom that were at that time exploding around the world, for instance in Algeria, Cuba and China. During the 1960s, this truly global impulse had taken root in India as well, in the form of peasant movements, workers' strikes and student protests. But if the discrete worlds of peasants in India and American queers might at first appear oddly interconnected through this claim, it is not due to some gay fantasy hoping to escape the cloister of sexual discourse. Rather, this has to do with the unequal ways that power is distributed, contentions generated and local consciousnesses fashioned.

In any case, the point is that homosexual ideas of the self and community come to light precisely in those places that are somehow dissonant with regards to the legal, moral and everyday mechanisms of the state and civil society. A miniature version of this sub-cultural, communal space has flourished in Kathmandu, as well. Unfortunately, the unregulated nature of this community – inhabited by metis, transsexuals and transvestite prostitutes – has made it a convenient outlet for the violence and prurience that originates, in the first place, from the repressed majority. Various accounts by metis, meticulously documented by the Blue Diamond Society and other human-rights forums, underscore not only the indignity but also the physical abuse unleashed on these groups. The sadism of the perpetrators – coming predominantly from the ranks of security personnel who, until recently, had infested the cityscapes of Kathmandu – is the most perverse display of power.

Yet, despite the recurrent bouts of despotism and fanaticism that Nepal has witnessed, the meti sub-culture has only grown, gradually moving from obscure crannies of Kathmandu to the more visible lanes of Thamel, the city's youthful, recreational hub. This has allowed for a fertile terrain for transgression and the construction of new self-identities. But if this autonomy comes from being outside the ambit of governance and regulation, it is, nonetheless, merely a provisional one. After all, many in the LGBTI community find fostering the position of transgression and self-invented individuality incompatible with the demand for recognition and tolerance by the institutions of state and civil society. Instead, they would prefer what could be referred to as a language of 'primordial determination', one that talks about people being inherently something, or a particular identity.

The undergirding essences
A discussion of the metis, transsexuals and others groups who now come under the general category of the 'third gender' is important because the LGBTI movement of Nepal owes much of its momentum to them. While the majority of Nepali gays and lesbians continue to live ambiguous lives, the blatant – and more importantly, visible – 'difference' of the metis vis-à-vis the broader society has proved itself capable, in its own way, of invigorating the liberal democratic process of Nepal.

The particularity and exceptionality of this group, in a context in which knowledge is largely based on the 'spectacle' of these individuals in public places, is a hotbed for identity politics. But identity politics is anything but a natural progression from the oft-repeated 'difference' of the metis. Both this difference and its form of politics are historical constructions, conditioned by marginality and discrimination. Indeed, the birth of LGBTI identity politics in Nepal comes from an awareness that homosexuality need not entail alternative modes of life, value system and association at all, but rather can be successfully assimilated into the conventions of the dominant order. After all, its vision of emancipation includes institutional recognition, juridical equality and tolerant plurality. With the modern liberal state at the crest of its political struggle, the LGBTI movement hopes – in a paradoxical sort of way – that the irreconcilability of their identities at the level of culture will be mended by their essential sameness as citizens of Nepal and of the world.

To believe in the emancipatory power of the state is to flirt with a key tenet of universalism, that grand liberal creation called the 'individual'. The individual, in his or her bond with the state, is the ultimate metaphor of civility. It is no surprise, then, that the terms of civic engagement – not just for the LGBTI minority, but for all sorts of minority groups in Nepal – is that of respect and tolerance of the individual. To the question of how this notion of the citizen (the individual) is to remain unified while still addressing the demands of society, the catchwords inclusion and representation have emerged as spontaneous outcomes. In this way, society comes to appear not as a tangle of unequal social relations and interconnected structures, but as a distinct categorisation of people.

Nothing demonstrates this more than the current popularisation of words such as diversity, pluralism and multiculturalism. Significantly, these words are also the means by which the LGBTI minority lays claim to cross-cultural, transnational identities. Constructions of identity at the global level are specifically acceptable to the state's liberal/legal ways of looking at citizenship, since the state is itself one such universal construction. For LGBTI groups, there is a special vindication in representing their uniqueness as the cross-cultural essence of humanity, even if this often means letting their own identities be overwritten by globalised notions of sexuality. Ironically, as starkly diverse manifestations of homosexuality come to resemble standardised 'Western' categories of gender, multiculturalism inevitably becomes a homogenising agent.

The rhetoric of human rights is yet another overarching discourse. Irresistibly empowering, the language of rights has become an indispensable tool with which to shape the legal debate of LGBTI inclusion in Nepal. Since the very notion of progress and development has partly come to be measured in terms of human rights, the upsurge of the LGBTI movement in Nepal is difficult to imagine without the context in which development agencies and non-governmental organisations have rapidly reframed their agendas in terms of the so-called rights-based approach. At the international level, movements of social justice, independence and self-determination have all used the language of rights. But it was not until the end of the Cold War era that rights – and the concurrent discussion on 'social issues' – could come to the forefront. Until then, sterile disputes between the power blocs dominated the economic debates of the global forum. The inclusion of sexuality in the overall human-rights paradigm has been even slower, instilled in Nepal just in the last couple of years.

Arguably, rights talk – which has a fairly radical pedigree, mobilised as it was by many Third World countries against racial, colonial or capitalist regimes – has come to be neutralised, domesticated even, under the post-Soviet, post-Marxist championship of various international 'development' organisations. The question for LGBTI activists in Southasia, then, is the extent to which a rights-based discourse can ever be an adequate vehicle for genuine transformation.

In domesticity
For LGBTI movements such as Nepal's in particular, identities are understood as the very condition of existence. The homosexual 'identity' is a terrain of extreme ambiguity, which is why the question of 'visibility' becomes so significant. Unlike one's sex or ethnicity (although these too have their share of ambiguities), sexuality has to be discerned, possessed and then subjected to a unique nuance of personal choice regarding how to practice it and how much to reveal of it. The sexuality movement subsequently attempts to prop up its notion of identity with such ahistorical words as immutable, intrinsic and inborn. And so we hear the Supreme Court of Nepal mandate LGBTIs as "natural persons who, due to the natural and biological factors, may be attracted toward the same sex rather than the opposite even though they may have been born either as a male or a female, and based on their changed gender identity cannot pursue their business, including to establish conjugal life" (emphasis added).

Although ascribing to homosexuality a characteristic that is present at birth inadvertently advances the problematic centuries-old idea of homosexuality as a disease, it nonetheless allows for its representation as being harmless – non-communicable and therefore non-threatening. Hence, by law, for LGBTI persons (for whom, according to the Supreme Court, "everything seems normal, but only in the respect of gender"), fundamental rights are to be extended just as for those who are "born blind, deaf, dwarf or deaf-mute". These rights are, however, able to be limited, according to the Supreme Court ruling, if they amount to "incitement to an offence, or on any act which may be contrary to decent public behaviour or morality". The inclusion of LGBTIs in the liberal, legal paradigm is, then, at once empowering but also disciplining, with all defiant, deviant, anarchic or other radical potentials of homosexual desire being repudiated. As such, homosexuality becomes a "condition" – an understanding that is, in the end, transformative neither for the homosexual nor for the heterosexual mainstream.

Calling for a more historical understanding of the Supreme Court ruling in no way denies the significance of this victory for LGBTI people in Nepal. Needless to say, there are struggles that remain in various other arenas of society. Even so, the current reality in Nepal following the Supreme Court ruling makes it much more difficult to continue with older attitudes towards homosexuality. Political parties, for instance, are therefore rushing to attain a friendly tone in their respective manifestos. Of course, one cannot effectively measure the prospect this holds for Nepal – and, by extension, for all of Southasia – but at least our imaginations can begin to broaden. Court cases, after all, are not accurate representations of the myriad things that actually happen to people. Arguably, the kind of analysis that suspends everything – from state, liberalism and citizenship to identity – is also not reflecting the lived experiences of those on the ground. Yet, perhaps, this analytical distancing can also teach us new ways to think about ourselves, and others. 

~ Diwas Kc has studied history, and is currently based in Kathmandu.

Right ruling 
On 21 December 2007, the Supreme Court of Nepal issued a directive to the government "to formulate appropriate legislation or amend existing legislation" in order to end discrimination against the lesbian, bay, bisexual, transgender and inter-sex (LGBTI) community in the country. According to the ruling, "The fundamental rights set forth in the constitution and the human rights enshrined in the international human-rights treaties to which Nepal is a party, cannot be interpreted in a way that only heterosexual men and women can enjoy it … The State has the obligation to create such environment and formulate laws in that line." 

This historic ruling was in response to a writ petition filed in April 2007 by a coalition of local LGBTI groups, including the Blue Diamond Society, Mitini Nepal, Crusaid and Parichaya Samaj. The petition, which appealed to the state to "give citizenship ID for persons of third nature reflecting their gender identities" and to address the violence on the basis of sexual orientation, was eventually heard by the court a total of three times.

The significance of the Supreme Court ruling can be assessed by the fact that, just two months later, affiliates of the Blue Diamond Society feel that incidents of violence and discrimination have already diminished. LGBTI members in Nepal can now pursue jobs, access public services and travel as the "third gender" if they so choose. Political parties and civil-society organisations have begun openly advocating LGBTI rights and inclusion. There has even cropped up the expectation of LGBTI representation in electoral politics. In the ensuing months, the Supreme Court will also deliberate on the right to same-sex marriage, having directed the government to form a committee to look into the issue.


Against the order of nature? 
Homosexual relations are criminalised in every country in Southasia except Nepal. In the majority of these countries, this criminalisation is based on the colonial-era Indian Penal Code (IPC), drafted by the British in 1860 and subsequently introduced across the Empire. Section 377 of the IPC has remained in place in many former colonies, including Bangladesh, Burma, India and Pakistan. It states: "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 10 years, and shall also be liable to fine." Besides this colonial vestige, homosexuality is also prohibited in some countries in the region under various interpretations of Islamic Sharia laws, or under a combination of the two. Here is a quick glimpse at the legal status of homosexuality in Southasia.

Criminal law in Afghanistan functions under the Penal Code of 1976, which was restored after the American invasion of 2001. Article 427 of the penal code sentences an individual who engages in sodomy with either a man or a woman "to a lengthened imprisonment in accordance with the circumstance". However, Sharia law is also accepted within the Afghan legal framework and, in certain situations and locations – with issues related to blasphemy and in the informal tribal/local courts favoured by many Afghans – Sharia takes precedence over the civil code. Individual judges retain a fair amount of discretion, and punishments prescribed by the penal code and Sharia for homosexual relations are often at variance with each other, resulting in a lack of standardised, across-the-board penalties.

Under Section 377 of the civil penal code, homosexual sex acts are crimes punishable with deportation, fines and/or up to 10 years in jail, though some people have also received life imprisonment. The national law itself is rarely enforced, but there have been incidents of harassment by vigilante groups and the issuance of local fatwas against the LGBT community. In certain situations, Sharia law also influences the sentences imposed for same-sex relations.

Under Article 213 of Bhutan's penal code, an individual who engages in "sexual conduct that is against the order of nature" is guilty of the crime of "unnatural sex". Article 214 deems "unnatural sex" a petty misdemeanour, for which punishment ranges from between a month to a year in prison. Reportedly, there have been no cases of anyone being charged under this law.

Same-sex relations are illegal in Burma under Section 377 of the penal code. Punishment ranges from between 10 years to life in prison, along with a fine. Due to the nature of the military regime, there is no information available on the incidence of prosecution in the country.

"Unnatural sex" is criminalised under Section 377. Punishment ranges from 10 years to life imprisonment, although prosecution is rare and there have been no convictions during the last two decades. Since October 2006, the Delhi High Court has been reconsidering a Public Interest Litigation petition to read down Section 377.

The Maldives 
Homosexuality is illegal in the Maldives under the Sharia. Punishment for adults is 19-39 lashes and one to three years banishment or jail time. The penalty for an adult engaging in same-sex relations with someone younger than 16 is 19-39 lashes and three to six years banishment or jail time. Those considered 'accessories' to homosexual sex relations can get between 16 months and three years in jail.

Nepal is the only country in Southasia that does not criminalise same-sex relations. On 21 December 2007, the Supreme Court issued directive orders to the government to end discrimination against sexual minorities and to ensure equal rights.

Same-sex relations are illegal in Pakistan under Section 377, punishable by two to 10 years in prison. Islamic law, reintroduced in 1990, punishes homosexuality with up to 100 lashes or death by stoning. Similar to the situation in Afghanistan, the principles of Islamic law are incorporated, at least in theory, into the Pakistani civil code. In situations in which there is an overlap between secular and Sharia law, judges make decisions based on personal inclination.

Sri Lanka
Homosexuality is illegal in Sri Lanka under section 365a of the penal code. The section only applied to male same-sex relations until 1995, when it was made 'gender neutral'. For adults (over 18 years of age), punishment is imprisonment for a maximum of two years, a fine or both. However, no one has been prosecuted for 50 years.

Tibet (China)
Sodomy was decriminalised in China during 1997, and homosexuality was officially removed as a mental illness from the Chinese Classification and Diagnostic Criteria of Mental Disorders. There are no explicit laws against homosexuality or same-sex relations, though there are also no laws protecting LGBT people from discrimination, either. While Buddhism frowns upon homosexual sexual relations, the Dalai Lama, during a meeting in 1997 with lesbian and gay Buddhists, advocated the full recognition of human rights for all, regardless of sexual orientation. Though he did not sanction homosexuality outright, he stated that a social endorsement of same-sex relations "has to be judged in the context of the society itself and the laws and social norms".

~ Surabhi Pudasaini

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