Sec 377 and same-sex desire
For many years, the struggle in India of lesbian, gay, bisexual, transsexual (LGBT), hijra, kothi and other non-heterosexualities – what this writer terms as 'queer' sexualities – has been fought along the silent margins of both mainstream society and 'progressive' politics. Things have begun to change in recent years, but there is still a long way to go. While certain sections of Indian society have opened up due to the activism of the queer-rights movement, the spaces that queer lives must negotiate in India today remain difficult – in their everyday lives, as well as in their struggle to articulate sexuality as not just as an aspect of identity, but as a deeply held political language in its own right.
Society repeatedly tells us that there is only one kind of acceptable desire – male, heterosexual, within marriage. Social structures further define and defend what can be referred to as the 'hetero-normative ideal': rigid notions of what it means to be a man or a woman, how the two should relate, and the family unit that should result from such a relationship. This dynamic creates a unique kind of universe. A certain type of family is privileged – heterosexual men and women of the same caste, class and religious backgrounds – while any other realities outside this ideal (think single women, widows, sex workers, inter-caste and inter-class couples, along with LGBT-identified people) are punished, subtly and not-so-subtly, through law, medicine, social norms and religion. There is a fundamental principle at work here: those in power create rules and structures that enforce their vision of what is acceptable, and penalise all those that fall outside of these structures. This play of power will sound familiar to those in other political movements, but unlike in the case of gender, caste, religion or statehood, for example, the acknowledgement of such marginalisation on the basis of sexuality is relatively recent.
For people desirous of same-sex relationships, the boundaries of this regulation are unashamedly clear – Sec 377 of the Indian Penal Code, written in 1863, criminalises "voluntary carnal intercourse against the order of nature", effectively criminalising homosexual activity even when it occurs between consenting adults in private. In an unfortunate shared-neighbourhood legacy, most Southasian countries carry similar laws.
Few cases tend to be brought to the court under Sec 377. Yet both documented evidence and the lived realities of thousands of queer people in India testify to the fact that the law creates an environment that justifies violence, stigma and discrimination against same-sex desire. In the name of the law, there is widespread police abuse, violence and sexual assault, especially against transgender hijras and non-middle-class LGBT people. Activist groups in Delhi have documented tales of leading hospitals and mental-health professionals ordering 'conversion' therapies that include years of electric shocks and psychotropic drug prescriptions to 'cure' people of their sexuality. In 2001, the offices of an NGO working on sexual health and HIV/AIDS prevention were raided, and the members were charged under Sec 377. More recently, in Lucknow, several gay men were set up in a fake encounter and then arrested, publicly humiliated and charged under Sec 377 – simply for the crime of trying to meet a partner of the same-sex.
Hijras – indigenous transgender communities that have some recognition, however fleeting and negative it may be, in Southasian history, mythology and culture – are allowed neither passports, ration cards, nor the right to vote. On the margins of gender, they are literally bereft of citizenship, for the nation demands that citizens be classified according to binary gender systems. Over the past few years, there have been more than a dozen cases of lesbian couples committing suicide together when either faced with or subjected to forced separation and marriage to others. Same-sex couples do not even have the dignity of having their relationships acknowledged for what they are, let alone receiving any of the legal entitlements and rights that married heterosexual couples take for granted.
The stories are endless. LGBT people are unable to live their lives openly or with dignity out of fear of discrimination, arbitrary loss of employment, or violence. Activists must work with hands tied behind their backs, since any action can be construed as aiding a criminal offence. Human rights organisations refuse to recognise the discrimination, citing the law. Nearly every institution, from hospitals to workplaces to places of worship to schools, cites the existence of Sec 377, as a fig leaf behind which to hide and remain silent on an issue that affects hundreds of thousands of Indian citizens.
Fear of the alleyway
How do we understand the true impact of Sec 377? Law does not simply live within the walls of the courts – it actively shapes the social, moral and ethical fabric of our society. It can challenge as well as enforce the boundaries of what is imaginable, and what is acceptable. The existence of Sec 377 shapes much of the public discourse around sexuality, in a context that is already marked by a deafening silence.
Given this, what has been the queer movement's response in recent years? The advent of HIV/AIDS made it easier for activists to talk, albeit indirectly, about (male) same-sex desire. For LGBT activists in the late 1990s, the only means to garner attention or support was to speak of queer persons as the victims of human rights violations and/or HIV/AIDS. Though the disease has undeniably opened up spaces to talk about sexuality, many activists question the longer-term effect of using HIV/AIDS as the entry point for what are some of the first conversations on same-sex desire in the Subcontinent. They argue that the 'bodies' of LGBT people and their desires have thus been pushed to the periphery of the discourse, and in their place has emerged an acceptable dialogue of rights, violence and disease prevention. This new rhetoric, however, leaves unchallenged the hetero-normative structures that legitimised social conceptions of queer people as (at best) the concern of a small minority, or (at worst) that of the deviant, abnormal, perverted and/or mentally ill. Put simply, one did not fight for LGBT people to live lives of respect and dignity – one simply fought for their right not to be subject to public and extreme violence, and not to die of HIV/AIDS.
Just a few years ago, when sexuality was first articulated as a matter of politics – largely by using human rights language to speak of 'gay rights' – it was given little legitimacy. Sexuality, as gender used to be, has long been placed at the bottom of a hierarchy of oppressions – it is seen as a 'lesser politics', one less important than those of poverty, caste, religion and labour. In India, alliances with progressive movements were all the more precious for the few activists that could afford to lead open queer lives and organise around sexuality. This fact was made abundantly clear to this writer while attending a planning meeting for the World Social Forum in Bombay this past year. While trying to get gender and sexuality included as a thematic focus of the forum, one of India's most respected trade-union leaders said that the WSF was a space to "discuss serious issues of development and society, not to traverse through its dark alleyways and shadowy corners".
Intersectional interests
Fortunately, the face of the queer movement has changed in recent years, as has the perception of the movement in both larger society and within other political groups. A legal challenge against Sec 377 is currently traversing the corridors of the Delhi High Court. This is riding on supportive recommendations against the law by the Planning Commission of India, the National Commission for Women, and the Law Commission of India. Each of these shows cracks in the state's monolithic and homophobic response to the legal challenge to the law.
Outside the courts, several queer groups have begun to articulate a notion of 'intersectionality' – that discrimination based on race, class, caste, religion and gender all intersect with homophobia, and therefore could not be fully understood without taking sexuality into account. An example of this approach was the 2004 formation of Voices Against Sec 377, a broad coalition that consists of human rights groups, women's groups, child-rights and LGBT organisations. The coalition was created to show the courts that Indian citizens beyond the LGBT-identified community cared about gay rights and were against the law. The success of the coalition in bringing together a broad alliance to fight for sexual rights, however, was the result of a longer process.
Many queer activists are, after all, parts of other political movements. Using the language of intersectionality, they demanded inclusion in these other groups, arguing that these interests were incomplete without an understanding of sexuality. It was not about homosexual or heterosexual, therefore, but about how patriarchal understandings of gender, race, class and religion impact all sexualities. With this new articulation, a broadening of the queer spaces occurred, to bring in non-LGBT-identified people who were still able to see and speak of queer rights as their issue, rather than as the issue of a small minority community.
Certainly, an increasing presence in media, films, books and other forms of popular culture have also increased the visibility of queer communities and helped such alliances, as has the rising numbers of vocal queer activists. These have inevitably led to the emergence of a more confident, self-conscious and positive articulation of queer lives by queer people themselves, as a new generation of activists increasingly finds more spaces in which to be themselves, as well as a more expansive set of voices that feel comfortable and confident in speaking about queer issues.
This new sense of freedom, however, is still hesitant, for few of us can afford to forget how fragile are the accepting spaces we inhabit, or how few of us truly have access to them. Yet this new freedom is a heady feeling, and it cradles within it a hope that seemed distant just a few years ago. As long as this hope persists, the movement will continue to fight for the rights of all Indians to live lives of dignity, and be free of the oppressed labels of despised sexuality.