Sexual Minority Politics in India

The Very Basics Sex vs. Gender vs. Orientation  Sex: physical and biological characteristics associated with the male/female distinction.  Gender: social norms and patterns of behavior associated with being a “man” or “woman.”  Orientation: a tendency to be sexually attracted to men or women. Distinction between identity and practice.  “Gay” vs. “MSM”

Sexual Minorities Lesbian, Gay, Bisexual, Transgender, Intersex (LGBTI) Sex workers Fetishists Swingers Polyamorous Asexuals Cross-generational love

Global Intersections Colonialism  Institutions, cultural attitudes, laws, etc. implanted by colonial powers.  Neo-colonial imposition of Western values on the developing world. Class Gender Health Identity politics

Specific Concerns in the Indian Context Existing queer communities with their own history and traditions.  Hijras  Kothis Role of the family. Socioeconomic inequality. Religious pluralism. History of colonialism.

Sexuality in Indian History

The Queer Community in India Until recently, queer society was highly localized and disorganized. The internet provided access to a safe and anonymous space for community building. A few organizations based in major cities provided support services.

The Social Movement Rallies and protests  Police harassment and brutality.  Violent reactions to the movie Fire.  Lucknow incident. Increasing empowerment of hijra and kothi communities. Pride marches in major cities.  Kolkata was first in  Delhi, Mumbai, Bangalore, Chennai.

The Legal Movement Organizations arose mainly out of the efforts to combat the HIV/AIDS epidemic. Supported by the NGO community. Primarily led by the educated English speaking class. Coalesced around the challenge to Section 377 of the Indian Penal Code.

Introduction to Section 377 IPC Drafted in 1860 by Lord Macaulay 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 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 offense described in this section.

Abuses under Section 377 Very few prosecutions and convictions. Used to blackmail sexual minorities. Used as a tool of abuse by police. Gives implicit approval to crimes of violence and discrimination against sexual minorities. Causes social and psychological harm to sexual minorities.

The Legal Challenge to Section 377 Public Interest Litigation filed in 2002 by the Naz Foundation. Ministry of Home Affairs response in National AIDS Control Organization response in Final arguments in summer Decision released July 2,

Inclusiveness “If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of 'inclusiveness'. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as “deviants' or 'different' are not on that score excluded or ostracised. Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination. This was the 'spirit behind the Resolution' of which Nehru spoke so passionately. In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.”

The Naz Judgment Right to Health Right to Privacy Right to Equality Constitutional Morality

Reactions to the Naz Judgment Welcomed by international human rights groups and AIDS advocacy organizations. Positive reactions from the Nationalist Congress Party and Communist Party. Silence from most politicians. Negative reactions from religious hardliners and conservative political figures.

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The Appeal Within weeks of the judgment, several parties filed petitions with the Supreme Court. After delaying for two months, the UPA Government indicated it did not intend to appeal the judgment. The appeal is currently pending before the Supreme Court with eight parties.

Final Thoughts What is the role of courts in a democracy? What do you make of Constitutional Morality? What is the symbolic significance of the Naz Foundation decision? What is the relationship between politics, law, and social change?