LGBTQIA+ people in India are experiencing “the start of a new era” (Suresh, 2018). After almost a decade of backwards and forwards, the wall has finally been breached in the struggle for the delegitimization of the use of capital punishment for homosexuality and transsexuality. Previously Section 377 of the Indian Penal Code criminalized homosexuality. This law was first established during British rule in 1860. However, on September 6th 2018 the India judicial system struck it down as unconstitutional.
The new era has begun, but the dynamics of discrimination, marginalization and rejection of LGBTQIA+ people still continue today. These changes regarding LGBTQIA+ rights in India are not sufficient to guarantee a satisfactory quality of life for the members of this community. The legacy of the colonial past, that has perpetuated heteronormativity, patriarchal principles, and authoritarianism over the last 200 years, is the main obstacle in the way of implementing LGBTQIA+ rights and increasing visibility for the community. In this setting, many LGTBQIA+ suffer a lack of education and exclusion from public institutions, due to the presence of religious fundamentalism and prohibitionism.
Hence, the aim of this article is to analyze India’s historical, socio-political, and cultural background, to understand current LGBTQIA+ people’s issues.
On top of all this, there is a bias in any society when it comes to gender: societal roles are established in relation to a person’s gender assigned at birth, which in turn is defined according to an individual’s biological sex. Worldwide, gender and sex are wrongly conflated: this leads to the establishment of gender roles, which are thought as of fixed models to be followed, and rely on the socially constructed, and misleading, “gender-sex” correspondence. In reality, gender identity does not always match the “gender-sex” parallelism; gender identity relates to a person’s self-determination, which does not necessarily follow the male-female dichotomy. People’s freedom to express their gender identity (what we call gender expression) strictly depends on the socio-political and legal context of each individual’s country. Gender expression is one key factor in the self-determination of one’s own gender identity. The right to express and determine one’s own gender is not possible to the same extent everywhere.
Surely, it is globally recognizable that “since the late eighties the theoretical and even the political validity of the sex-gender distinction have been put into question from different angles” (Agrawal, 1997). However, there is an urgent need to increase the visibility of LGBTQIA+ communities, primarily in the world’s regions where they not only endure marginalization and discrimination, but also daily violence because of social prejudices towards those who deviate from the gender-roles and binarism deemed socially acceptable by their culture. In India, many LGBTQIA+ people are subject to rejection early in their childhoods. Some of them are abandoned by their families, or are the victims of bullying in the schools, and thus miss educational opportunities.
Consequently, they face difficulties in accessing any human and democratic citizen’s rights, including health care services, housing and employment. Eventually many end up performing sex work or begging in order to support themselves. Only 25% of LGBTQIA+ people in India have obtained a national identification number, besides the fact that demographic data is lacking. For instance, “the exact transgender population is not clearly known since census data collecting agencies have ignored them in the past” (Agoramoorthy, 2014). By disregarding their very existence, LGBQTIA+ individuals easily become the subjects of harassment, oppression and violence. Many even report abuses perpetrated by police officials.
For an ample understanding of the present, one should consider facts from throughout history. In India homosexuality has been a crime for 149 years, but there are various contradictions in literary records relating to gender-sex binarism and to third genders’ and homosexuals’ legal status in India. I would focus on two main aspects: firstly, the heteronormative and patriarchal segregation policies applied from the British colonization, in contrast to the previous acceptance of transgender people and their role in the context of religion. Secondly, the presence of a governmental ethno-religious nationalism and its reinterpretation of the Hindu scriptures, ignoring or changing the meaning of the presence of transgender divine entities in the Hindu tradition, from which many cultural gender identities are originating. In the two centuries between 1860 and 2018, the Indian Penal Code declared that homosexuality is a crime and that transgender people are criminal. The article stated:
“Section 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.” (Indian penal code, Section 377, 1860)
Due to the heteronormativity codified in 1860, the 3500-year-old Hindu scriptures and traditions have been subjugated by white European supremacy. In fact, to maintain control over the population during colonial times, the British governors, recognizing a general intolerance to the rules, imposed harsh repressions through the Penal Code. Reflecting the contemporary reality in Great Britain, where oral and anal intercourse had been criminalized until 1967, gay and transgender people faced the most deplorable humiliations and have long been treated miserably. Homophobia has been legitimized through religion: to make it more understandable, I cite here what Thomas K. Gugler, in turn, quoted:
“In 1533, Henry VIII renegotiated the boundaries between the Catholic Church and the British state by secularizing sodomy transforming it from a sin against God into a crime against the state. The statute was first and foremost deployed against Catholic monks. ‘Once the law was passed, Henry’s commissioners began to inspect the monasteries: within a year Henry declared them dissolved and their goods forfeit to the state’ (Fone 2000, 216). Europe’s homophobia is hence less rooted in Christianity than in concepts of the secular state.”
Therefore, even if the secularization of homophobia was not originating from religion, the latter has been used to validate it. I believe it also important to note that the language used in Section 377 that labels homosexuality as a “crime against nature” was a legal concept also codified in 1533 during Henry VIII’s rule and the English Reformation. In this way the secular concept of a universal “nature” was thus defined thru the lenses of contemporary English moralism and Judeo-Christian cultural values, that were then later mirrored in the legal systems established in their foreign colonies. This is recognizable in present day Hinduism as well. Religion has been used as a means to identify the non-observant and those who do not conform to heteronormativity, labelling them as indecorous. To achieve a real change, LGBTQIA+ communities had to struggle for a long time. During the last decade major results have been obtained: in 2009, Section 377 was partially deconstructed in the Delhi High Court. Though, this deconstruction was then overturned in 2011, re-establishing Section 377. In 2016 the High Court revised the petitions presented from Naz Foundation, one of the first Indian NGOs engaging in work around LGBTQIA+ rights, which led to the first declaration of the unconstitutionality of the Section 377 in 2017. Only last year, on September 2018, homosexuality was finally decriminalized and LGBTQIA+ people in India started to see tangible changes.
Nonetheless, today the legacy of a law that was valid for 150 years, makes living conditions of many LGBTQIA+ people unbearable in India. More recently enacted legal judgements and bills, having been formulated with an insufficient underlying knowledge of sexual minorities and their needs, still bar them from full access to human and democratic rights.
For a better understanding of the present legislation a separate analysis is needed, as well as how LGBTQIA+ people today address these questions and advocate for their rights.
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