ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846
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Legalising Sexualities in a Patriarchal State

The 377 judgment is a massive step forward, but society has to unlearn gender roles for it to be meaningful.

The Supreme Court’s judgment on 6 September 2018, which read down Section 377 to declare that sex in private between consenting adults is legal, is an ode to self-determination of identity. The five-judge bench, in four separate but concurring judgments, has now affirmed that LGBTQ (lesbian, gay, bisexual, transgender, and queer) persons are entitled to equal rights under Articles 14, 15, 19, and 21, and other fundamental rights that the Constitution provides its citizens. Section 377 will continue to apply to sex with minors, animals, and to non-consensual sex. This judgment of the apex court overrules its 2013 judgment in Suresh Kumar Koushal and Another v Naz Foundation and Others which had pushed India’s LGBTQ community into more years of indignity by maintaining that non-vaginal penetration between consenting adults falls under the colonial law criminalising “carnal intercourse against the order of nature.” 

The recent judgment has been welcomed by activists and LGBTQ persons, who have admired its insistence on the right to dignity for the identity that one chooses for themselves. The NALSA (National Legal Services Authority v Union of India 2014) judgment has been instrumental in making this possible. The recognition of transgender persons as the “third gender” showed the way out of gender binaries, emphasising that “gender identity” is one of the most fundamental aspects of life. Crucially, the judgment defined gender identity as each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth. 

But, how far will the legal emphasis on “self-determination” go in helping LGBTQ persons navigate their lives in a society full of prejudices? The judgment reiterates that constitutional morality trumps societal morality, but it is the latter that will determine the day-to-day struggles of a community that defies heterosexual normativity, and hence is at increased risk of being subjected to violence and humiliation.

On the day of the judgment, the Indian Express spoke to two trans­gender persons who beg in Mumbai’s local trains to find that they were both unaware of what the Supreme Court had ruled or how it would change their lives: “It’s not about the law, our image in society needs to be upheld.” The amount of protection that the law provides is determined by the level of privilege one wields and other intersectional positions in society, and it can be argued that the decriminalisation of sexual acts in private would do little to limit the harassment LGBTQ persons are subjected to in public spaces and the discrimination they face in employment opportunities.

A lot has been talked about how Justice D Y Chandrachud’s judgment opens the door to “the full range of constitutional rights,” that is, for equal rights to marry, adopt, property, and employment. There is hope that this could lead to affirmative action that can structurally address the economic exclusion of LGBTQ persons, and an anti-discrimination law to protect against discrimination in housing and education. However, today, the state of the Transgender Persons (Protection of Rights) Bill, 2016, four years after the NALSA judgment, raises doubts about our parliament­arians taking this seriously. 

It is important for us to remember that India’s promise of freedom to its LGBTQ citizens cannot be a tokenistic “inclusion;” it cannot be wrapped in the morals of heterosexuality. The fight for equal rights and dignity cannot be fulfilled without disrupting patrilineal kinship and masculine norms of nationhood. France is an example where the legality of homosexuality was paraded by the state as a mark of progressiveness, but, this “concession” to homosexuals was granted so long as ideals of a “normal” family were not challenged. Even as the right to civil union was granted in 1999, the same rights were invoked to limit access to adoption and reproductive technology to same-sex couples. While Justice Rohinton Fali Nariman’s judgment rightly recommends periodic sensitisation and awareness programmes for all government officials, particularly police officials, any sensitisation will be incomplete without the systematic devaluation of heterosexism, the institutionalised valorisation of heterosexual activity. 

As Justice Chandrachud noted, discrimination on the basis of sex can be both direct or indirect, and it includes discrimination on the basis of a “particular understanding of the role of the sex,” about appropriate gender roles, and the binary between “man” and “woman.” He argues that it was stereotypes about gender roles that constituted the basis of criminalising same-sex relations, and which ensure discrimination. 

While the judgment draws from the 2017 Puttaswamy judgment, which declared privacy as a fundamental right, Justice Chandrachud notes that the protection granted for consensual acts in private must also be extended to public spaces where sexual minorities are vulnerable on account of their sexuality and appearance. Relegating same-sex acts into the private sphere would reiterate the “ambient heterosexism of the public space,” and thus sexual privacy should include the expression of one’s identity in public. 

Thus, nothing short of a reimagination of gender can bring about true dignity to the many citizens and genders of India. Nothing short of legitimising desire as a moral and valid want of a citizen, and the freeing of “sexual acts” from the grammar of procreation is needed for true liberty. Nothing short of challenging the idea of the state as a patriarchal, unquestionable entity which protects its citizens and governs their morality will be needed. This historic judgment marks the start of this process. 

Updated On : 17th Sep, 2018

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