In India, when it comes to discussions on the rights of sexual minorities amongst politicians and political parties, there is a glaring double standard that comes into play. It’s one that may baffle western observers but fits perfectly with the binary construction underpinning how many Indians view gender and sexuality. What’s happened over the past couple of years is that while gay rights have taken a few giant leaps backwards, transgender rights have taken a few giant leaps forwards. There are two parallel phenomena at work here: increasing support across the political spectrum for special laws to protect the rights of transgender people, and continuing reluctance to decriminalise homosexuality by repealing the infamous Section 377 of the Indian Penal Code.
Sec 377 is a colonial-era statute that prohibits “sex against the order of nature”. As I explain later in this article, India has vacillated on Sec 377 in ways that have deeply disappointed those who had hoped for a more enlightened vision from modern India’s judiciary and parliament. Instead, what we’ve seen is a contradictory and inconsistent approach to the rights of sexual minorities.
It could be argued that this contradictory approach fits perfectly with the conservative ethos of the country’s political class. Gay rights are considered a western import, whereas transgender rights tally with tradition – because the transgender community has existed since time immemorial and has a defined social role that’s rooted in antiquity.
However, other than the fact that Indian politicians’ double standards don’t stand on principle, there’s apparently little awareness of how Sec 377 affects transgender people as well.
Or, more accurately, there is some awareness of how doing better on transgender rights could actually put the government in an uncomfortable position in relation to gay rights.
This year the Indian parliament is grappling with legislation that seeks to end discrimination against transgender persons and enhance their access to jobs and education.
The lower house of the Indian parliament, the Lok Sabha, is about to debate a private member’s bill on transgender rights that seeks to codify a special set of mechanisms for the welfare of the country’s marginalised transgender community. This is a much-needed step in the right direction. What is interesting, however, is that the government fears that legislating on transgender rights may (inadvertently) lead to legislative support for gay rights, which, as I’ve said, it unambiguously opposes.
When the bill was being voted on in the upper house of the federal legislature, the Rajya Sabha, the ruling Bharatiya Janata Party (BJP) argued that it did not agree with the modalities of the private member’s bill. Highlighting the need for political unanimity, it argued that the parliament “should not be divided” over the issue of transgender rights. The bill was ultimately passed by the Rajya Sabha and now awaits being tabled in the Lok Sabha. In the meantime, the BJP is attempting to draft its own legislation on transgender rights to replace the private member’s bill.
Sources within the BJP have recently revealed that this is because the government is uncomfortable with what it sees as the current bill’s troubling implications for gay rights and Sec 377. Officials fear that passing the bill could bolster support for scrapping Sec 377, which the party has both explicitly and implicitly indicated at various points in time that it is unwilling to do.
The party opposes the ‘loose language’ of the bill as encapsulated in its ‘guiding principles’, which highlight issues of discrimination, focus on health risks faced by the community and prioritise securing “respect for inherent dignity [and] individual autonomy, including freedom to make one’s own choices”.
There is disquiet amongst party officials and the broader political class that such principles could set a ‘disturbing’ legislative precedent. As “respect for inherent dignity”, “individual autonomy” and “freedom to make one’s own choices” could easily be used to bolster support for gay rights as well (and thus undermine Sec 377), there is pressure on the party to “swiftly finalise the official legislation that could replace the private member’s bill”. The said official legislation would, presumably, do away with the other bill’s ‘troubling’ aspects. Interestingly, when the member who sponsored the bill was called on to defend it in parliament he cited the growing acceptance internationally of the need for protecting transgender rights. The same could, of course, be said for gay rights as well.
These developments follow a series of judicial decisions delivered in the past two years that pretty much replicate the same logic. In December 2013, the Supreme Court of India (the country’s apex court) ‘re-criminalised’ homosexuality by overturning a 2009 Delhi High Court order that had ‘read down’ or nullified relevant clauses in Sec 377. In April 2014, the Supreme Court delivered another judgment in which it recognised that the country’s marginalised transgender community faces discrimination at various levels in society and ordered the federal government and state governments to come up with special mechanisms to end discrimination and enhance the community’s welfare.
Even as rights activists in India celebrated the much-needed recognition for the transgender community afforded by the court’s April 2014 judgment, there was widespread regret that the previous case on Sec 377 went the way it did. (Each case was decided by a panel of two judges.)
As things stand, India is poised to continue on the same path: there is little political will to mend the judiciary’s and parliament’s contradictory and inconsistent approach to sexual rights. What this effectively means is that, on the one hand, while the transgender community may benefit from ongoing legislative efforts, on the other, it will continue to suffer under the yoke of Sec 377. Of course it also means that the broader LGBTQI community will also continue to have their rights violated and their self-respect and dignity vitiated by Sec 377. There are so many examples of how Sec 377 has been used to blackmail, harass, intimidate and even imprison people.
Opponents of gay rights in India, like in other parts of the world, love to disparage efforts to safeguard the rights of sexual minorities by damning homosexuality as a ‘western import’. They constantly overlook history and ignore the efforts of local activists to highlight how their nonsensical condemnations are making life a constant battle for millions of their fellow citizens.
On the positive side, those who are fighting for justice and equity in India are still optimistic that change will ultimately come. Perhaps the ruling BJP should heed what leading media outlets have been saying for a while now:
"On the political plane, legislating equality for the LGBT community would earn enormous goodwill for BJP. It makes up 5-10% of the country’s population and would become a captive vote bank for at least a generation, helping BJP win elections. Such a move would also position BJP on the side of modernity and youth. India now aspires to lead the world in many respects, we should not lead from behind. Repeal Section 377, decriminalise homosexuality and permit gays to marry. Digital India, which seeks to make India competitive in information technology, is well and good. But if we are to succeed in the 21st century our mental software requires a big upgrade as well."
(Another version of this article was published in Overland magazine.)