Visibility versus privacy

There are two specific strategies at work in India's queer-rights movement. On the one hand is an attempt to create and increase the social and cultural visibility of queer people; on the other is the legal challenge to the Indian Penal Code's archaic Section 377, which criminalises all forms of non-procreative sex. This latter campaign is being promoted on the grounds of the right to privacy. While these two strategies have closely interconnected objectives, each has also been fraught with tension.

The need for creating visibility for queer people arises from an 'invisibility' that has been imposed on these communities by the larger society, which contributes to their exclusion from a whole range of human-rights guarantees. The demand for privacy, in turn, is meant to emphasise that what people do in private spaces – for instance, with whom they have sex – is not the business of the state, and cannot be the basis of discrimination. As such, it cannot be grounds for criminalising either the private acts or the persons engaging in them. It was on the basis of the right to privacy that the United Nations Human Rights Committee, in the historic 1994 case of Toonen v Australia, declared that anti-sodomy laws infringe upon human rights. Privacy was also the basis for challenging the controversial 1993 'Don't ask, don't tell' policy utilised by the armed forces in the United States, as well as for demanding the repeal of Sec 377 in the Indian courts.

At the heart of the visibility-privacy strategies is the understanding of how the law and conservative sexual morality create a distinction between 'good' and 'bad' sex. Good sex – heterosexual, monogamous and marital – is located in private realms (of family and marriage), and thus is seen to deserve state protection. Bad sex – all forms of non-heterosexual sex – is perforce made public through the operation of criminal law. Sec 377 criminalises all forms of sex that are not specifically for the purpose of making a baby; although this theoretically includes certain forms of heterosexual sex, the law only ever gets used in the case of homosexuals.

It is the rigid boundary between the public and the private that the visibility-privacy strategy attempts to challenge. While on the one hand visibility can be looked at as having the potential to bust the legally enforced public-private divide, it is not necessarily the all-encompassing solution that it is often purported to be. The first task is to weigh the potential political ability of visibility to confront the accepted norm of heterosexuality. The second is to measure the costs of this visibility, and in so doing, ask a series of questions: Who is benefiting from this process of increased visibility, and who is losing out? What price does visibility incur? Perhaps most importantly, does visibility really enhance the potential of gaining equality? Furthermore, we need to question whether the claims for visibility and privacy could ultimately work to counter each other, in effect derailing the very objective of rights and recognition for queer people.

The perils of visibility
The emergence of the HIV/AIDS pandemic in India, during the late 1980s, was initially seen as something of a blessing in disguise for the country's sexually marginalised. Thus far, these communities had been seen by the general public as 'deviants' and 'perverts', and had been criminalised by the law. Suddenly, however, they had to be viewed through the lens of public health, as well. While on the one hand this was an opportunity to talk publicly about alternative sexualities, it also created a situation of double jeopardy for the sexually marginalised: they were now being looked at as 'vectors' of the disease, and being further stigmatised. Previously, they had existed within a culture of secrecy and silence about their identities; now they were being specifically marked as 'targets' of HIV/AIDS interventions.

But Indian laws have not guaranteed access to knowledge about safe and responsible sexual practices, nor have they led to discrimination-free HIV/AIDS testing. Instead, criminal law has been used to specifically target gay-rights groups involved in disseminating HIV/AIDS-related information, under the pretext that they are involved in running 'underground sex rackets' or 'gay clubs', and even contaminating 'Indian' culture (see accompanying article, "The revolution will not be funded"). Only recently, in February 2008, the police in Bombay raided a private party and arrested six men. The police crackdown was possible because details of the party are said to have been publicly advertised on a gay website. As such, all of those who were arrested (in this and similar incidents) were paying a price for making themselves visible, in order to make a political statement.

What do such incidents tell us? Clearly, one of the major perils of visibility is the resulting infringement of the right to free speech and action. Interestingly, it is not information about HIV/AIDS or safe sex that has necessarily come under the scanner, but rather information that 'promotes' (read: makes public) homosexuality – where, suddenly, their 'high risk' health status is transformed into 'high risk' criminality. Also, the issue of queer visibility is not merely one that follows the public-private trope; the fact that private gay parties in people's homes get busted, after all, suggests that, in the eyes of the law, these are public incidents on which the authorities have to clamp down. Thus, both visibility and privacy can be used as justification to criminalise queer association and expression.

The privilege of privacy
There are two ways to read this type of incident. First, we can consider the repercussions of this newfound visibility as a price worth paying. Or, second, we can ask whether the political attempt to gain recognition through visibility has in fact gone awry, perhaps because it has become inextricably linked to issues of health, hygiene, morality and respectability – links that have also been reinforced by the queer movement. One could say that an almost singular engagement with the repeal of Sec 377 by the movement, and accompanying claims around the right to privacy, has led to privacy and visibility working against one another. This has led to an overshadowing of the in-built processes of exclusion within the queer movement.

In 2001, a Delhi-based NGO, the Naz Foundation, filed a petition, still pending in the Delhi High Court, asking for Sec 377 to be 'read down', a process that would de-criminalise consensual, adult, private sex. But though ostensibly representative of the entire community of sexually marginalised, the petition in effect restricts legitimacy to sexual acts done in private. The issue here is not whether the petition should have included demands regarding 'sex in public', but simply that it is not adequately attentive to the slippery slope of the privacy claim. The fact is that access to private spaces is a matter of privilege, and the result is that the needs of certain groups, such as hijras, are not being included in campaigns by the queer community itself. The claim for decriminalising private sex would respond to the needs of those queer people who can afford a private space. The idea, then, is not to do away with demands for the right to privacy, but to be cautious of whether such claims are based in part on the queer movement's own in-built hierarchies.

In this way it becomes clear that neither 'visibility' nor 'privacy' can be thought of as having an unqualified emancipatory potential for all queer people. Instead, there is a need to attend more closely to the differences of caste and class along the queer spectrum. While the law already operates on the basis of a public-private divide, the response of the activist community should be to challenge that imagined divide, rather than reinforce it. That does not mean, however, that there should be no distinction between the public and the private, but rather that the queer movement's divide should not hinge on class, caste and respectability.

~ Oishik Sircar is a human-rights lawyer and researcher, presently with the Faculty of Law, University of Toronto.