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Compulsory Heterosexuality, Gender, and Sexual Minorities

Reflections on Section 377

Jayanta Krishna Sarmah (jayanta1947@gauhati.ac.in) teaches political science at Gauhati University, Guwahati. Parimita Bhuyan (parimitabhuyan89@gmail.com) teaches political science at the University Law College, Gauhati University, Guwahati.

The recent ruling that decriminalised provisions of Section 377 has posed a serious challenge to the existing hierarchies of compulsory heterosexuality and gender.

The suppression of “other sexualities” through legal mechanisms resulted in the incorporation of Section 377 in the Indian Penal Code (IPC). All forms of non-procreative and non-heterosexual activities were criminalised under the original colonial law until provisions of Section 377 that criminalised consensual “unnatural” sex were struck down in September 2018. It was only on 6 November 2018 that the colonial coercive section was modified stating that all forms of consensual sexual activities between adults have been decriminalised.

This article studies the relationship between compulsory heterosexuality and gender in the context of Section 377 with reference to the original section as formulated by the colonial state. First, it studies the contribution of Section 377 in invoking the power relationship between the hetero and non-hetero. Second, in the line of argument that perceives compulsory heterosexuality and gender as interconnected systems, this article tries to study how compulsory heterosexuality under Section 377 has linkages with gender in shaping the lives of the non-heterosexual women. With this analysis of the unmodified original Section 377 of the IPC, this article proceeds to understand the importance of the recent ruling of the Supreme Court. On a final note, the article stresses the need for significant changes in the hierarchical structures of compulsory heterosexuality and gender so as to ensure the social inclusion of the sexual minorities (lesbian, gay, bisexual, transgender, queer and intersex—LGBTQI) in a restructured inclusive society.

Compulsory heterosexuality as a concept is rooted in the structure of heterosexism that establishes the dominance of the hetero over the non-hetero, based on sexual orientation or sexual preference. With the core assumption that “heterosexuality is the sexual choice of all people” (Pilcher and Whelehan 2004), heterosexism tries to make heterosexuality “compulsory,” presenting “itself as the practice governed by some internal necessity” (Fuss 1991). The rise of lesbian, gay, and transgender politics marked a significant challenge to compulsory heterosexuality, and it later culminated into the development of queer theory and queer politics in the mid-1980s, representing a “new militancy in gay and lesbian politics, a determined push for visibility and celebration of the transgressive” (Pilcher and Whelehan 2004). Gender, on the other hand, expresses itself as a “social product,” a hierarchy where one class of people (men) exercise systematic and institutionalised power and privilege over another class of people (women) (Delphy 1984, 1993; Wittig 1981, 1992). Under compulsory heterosexuality, the dominance of the hetero over the non-hetero is based on sexual orientation, while, in the case of gender, the dominance is based on biological factors; sex becomes the basis of domination of the male over the female.

Diane Richardson (2007) gave a comprehensive understanding on the relationship between gender and sexuality (inclusive of heterosexuality, homosexuality, and transsexuality), and stated that there are five epistemological branches concerning the relationship between the two categories: naturalist approaches, gender prioritised over sexuality, gender as an effect of sexuality, sexuality and gender as separate systems, and gender and sexuality elision (Richardson 2007).

Feminist Perspectives

In the understanding of the role played by Section 377 in invoking compulsory heterosexuality, as independent from gender, the authors are inspired by the post-structuralist urge of understanding the “internal dynamics within the production of heterosexuality and homosexuality” (Sedgwick 1990). This article is also inspired by feminist writings that see deep interconnections between these two analytical categories. The authors have also taken into account that the two major contentious lines of argument exist among these feminist scholarship in defining the relationship between compulsory heterosexuality and gender. According to some scholars on sexuality studies, gender is the prime organising principle to construct sexual selves and sexual scripts (Delphy 1984, 1993; Jackson 2005) as norms of femininity and masculinity assign appropriate sexual behaviour to the biological categories of male and female. As against this argument, some other scholars argue that gender is an effect or expression of sexuality (Mackinnon 1982; Ingraham 1994). Their main argument is that the “social requirements of heterosexuality … institutionalises male sexual dominance and female sexual submission” (Mackinnon 1982), and thereby lay the foundation for gender-based inequalities. Both these lines of arguments are then given a new perspective when some scholars argue that gender and sexuality intersect with one another, and that “discourses on gender and sexuality are inextricably interwoven” (Wilton 1996).

Sexual Hierarchies

The incorporation of Section 377 reflects the coercive elimination of non-procreative sexual categories by the state under the label of “unnatural offences” and the text in the IPC follows,

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 of life or with imprisonment of other description for a term which may extend to 10 years and shall be liable to fine.

The colonial state under the British rule formulated the IPC (1860) that criminalised any non-procreative carnal intercourse and, under this pretext, homosexual relations between consenting adults were labelled as “against the order of nature.”

The criminalisation of homosexuality under Section 377 of the IPC faced opposition from non-governmental organisations (NGOs). The petition filed by the Naz Foundation before the Delhi High Court deserves significant mention (Writ Petition [Civil] No 7455/2001). The Naz Foundation prayed for a declaration suggesting that Section 377 of IPC is violative of Articles 14, 15, 19(1)(a), (b), (c), and 21 of the Constitution.

The constitutional validity of Section 377 has been questioned by various NGOs and foundations, and finally, in 2009, the division bench of the Delhi High Court declared that the criminalisation of consensual sex between adults in private stands in violation of the constitutionally granted rights to Indian citizens. The high court, thus, expanded the scope of the Right to Life and Personal Liberty (Article 21) to include the Right to Autonomy, Independence, and Privacy. The Delhi High Court, however, clarified that non-consensual sexual relations, sexual relations with minors, as well as bestiality remained within the purview of criminality.

As against the decision of the Delhi High Court, the Supreme Court on 11 November 2013 concluded that Section 377 was not unconstitutional, and thereby, recriminalised consensual, non-procreative sexual relations. A significant development took place on 6 February 2016 when the Supreme Court declared that all the eight curative petitions submitted will be reviewed by a five-member constitution bench.

The upholding of the Right to Privacy as a fundamental right on 24 August 2017 by the Court gave the country’s sexual minorities the freedom to freely express their sexual orientation. However, homosexual relations between consenting adults was not decriminalised. The recent striking down of provisions of Section 377 by the five-judge constitution bench decriminalises consensual sexual relations (whether heterosexual, homosexual, or transsexual) and thereby legally grants equal sexual rights to sexual minorities.

Section 377 of the IPC (the original law, as inserted by the colonial state) criminalised all forms of non-procreative sexualities and sexual relations, affecting the sexual choice of both heterosexuals and homosexuals.

Non-hetero Relations

However, the entire character of non-procreative sexual activity has assumed the form of non-heterosexual activity, affecting the choices of sexual minorities. In this regard, Alok Gupta (2006) has made a significant observation that a normal tendency exists in the Indian courts to create an association between the sexual acts and certain kinds of persons, who are more likely to commit the act—thereby giving a character and face to sodomy in the form of the homosexual.

In the line of argument forwarded by post-structuralist scholars, it becomes clear that the colonial law erected the structure of heterosexism, independent of gender with the hetero (inclusive of male and female) exerting predominance over the non-hetero (inclusive of male and female).

The continuance of Section 377 of the IPC (till the time it was struck down in September 2018) has denied sexual minorities equality before law and equal protection of law (Article 14), as the law technically makes them a criminal for exercising their sexual rights. The colonial law has also historically discriminated the sexual minorities on the basis of their sexual orientation and thereby indicates the violation of Article 15 of the Constitution. By limiting the self-worth and autonomy of the sexual minorities, the section has historically denied sexual minorities the right to personal liberty, guaranteed under Article 21 of the Constitution.

Besides, the strong urge of the coercive law to eliminate homosexual activities, prevented it from making a distinction between consensual and non-consensual sexual relations (such as rape). Ryan Goodman (2001), in a study of the impact of anti-sodomy laws in relation to the lives of South African gays and lesbians, referred to the “dispersed structure of observation and surveillance” that has the possibility of creating constant fear in the minds of homosexuals. The impact of the coercive law, till the time it was struck down in 2018, has affected the moral worth of sexual minorities and conditioned their lives in the name of social morality.

Heterosexuality and Gender

In the context of Section 377 of the IPC, when it was not struck down, the two analytical categories of gender and compulsory heterosexuality have intersected or got intertwined, reproducing each other. The basic argument that flows is that the greater project of gendering society compelled the colonial state structure to formulate and continue laws such as Section 377; reversely, Section 377 under the norm of compulsory heterosexuality has further reproduced gender.

The project of materialising the gender hierarchy makes it compulsory for society to institutionalise heterosexuality through the heterosexual monogamous family with a patriarchal lineage. Non-heterosexual sexual practices may shake the foundation of these patriarchal institutions and, therefore, the colonial state interfered to criminalise consensual non-heterosexual relations. This control of the state continued even in the postcolonial times. The coercive elimination of all forms of non-procreative sexualities carries within it the larger project of stabilising the patriarchal site of the heterosexual monogamous family and patriarchal lineage. Therefore, it may be stated that gender has preceded and produced compulsory heterosexuality through legal mechanisms, and Section 377 of the IPC (unmodified) is a clear manifestation of the patriarchal foundations of sexualities in this regard.

The coercive suppression of non-heterosexual practices and enforcement of compulsory heterosexuality as the only option forms the core feature of Section 377. Such an effort has reproduced new dimensions of gender, particularly in the lives of non-heterosexual women and lesbian women. The forceful suppression of non-heterosexual sexual practices has restricted the choice of these women over their sexual lives and under the gendered structure of the prevalent society, and these women are forced to enter into heterosexual marriages and families. Under the conjugal codes of marriage and the monogamous family, it has become obligatory for non-heterosexual women to enter into heterosexual relations. Compulsory heterosexuality has, thus, become legitimised and regularised, which in reality is an imposition upon non-heterosexual women.

In the conventional set-up of a heterosexual relationship, the involvement of the male agency in intimacy has served as an instrument of male domination over women. The involvement of the male has not only symbolised a domination of the hetero over the homo, but has also extended to incorporate the domination of the male (patriarch) over the female. Compulsory heterosexuality under Section 377 of the IPC (unmodified, as formulated by the colonial state) not only eliminates the sexual choice of non-heterosexual women, but forces them to enter into heterosexual relations under the prescribed codes of marriage and conjugality. Thus, compulsory heterosexuality enforced by colonial laws such as Section 377 has reproduced gender in the lives of non-heterosexual women, either by denying them basic private rights, or, by imposing male control in the course of establishing relationship under the codes of conjugal married life.

One important aspect that is worth mentioning is the phenomenon of increasing lesbian suicides—revealed by suicide notes—a phenomenon that received the attention of newspapers and among feminist scholars and organisations (ABVA 1999; Fernandez and Gomathy 2003; PRISM 2003). These suicide notes express the fear of lesbian women of losing the women they love due to forced heterosexual marriage and family pressure (Menon 2009).

The above study reveals that the interconnection between compulsory heterosexuality and gender in the context of Section 377 (as formulated by the colonial state) is very complex and a single-liner observation may not suit the analysis. As discussed above, from one point of view, the section, till it was struck down in 6 September 2018, has played the major role in erecting the structure of compulsory heterosexuality, affecting the lives of all sexual minorities irrespective of gender. The hegemonic discourse has been over both gay men and lesbian women along with the vast transgender population. However, without challenging the basic suggestion of this interpretation, the authors would like to argue that a sole reliance on this approach fails to study the interconnection between compulsory heterosexuality and gender in reproducing and sustaining each other. The authors have tried to explain how both the categories are intertwined in a reciprocal relationship, helping in the continuance of each other. As stated above, the norms of a gendered society manifest in the establishment of compulsory heterosexuality and, simultaneously, compulsory heterosexuality reproduces gender in the lives of sexual minorities, particularly non-heterosexual women.

After Section 377

A constitution bench with the responsibility of rereading Section 377 was constituted in May 2018. The apex court had pointed out the arguments centring on the decriminalisation of non-procreative sexualities (non-heterosexual sexualities) and stated that history owes an apology to the LGBTQI community for coercively restricting their sexual choice, impelling them to live a life full of fear of reprisal and persecution. With the acceptance of the fact that homosexuality is natural, the Court has stated that Section 377 fails to make any distinction between consensual and non-consensual sexual acts and, thereby, could not understand the sexual orientation of sexual minorities. The apex court decriminalised all forms of consensual sexual acts and consensual sexual relations among the LGBTQI community (in private) were given legal recognition and a dignified status. It is worth mentioning that the constitution bench partially amended Section 377 to decriminalise all forms of consensual sexual acts between adults in private. Non-consensual sexual acts, sexual acts involving minors, as well as bestiality continue to be legally punishable offences.

A significant point that deserves attention is that in declaring this judgment the Supreme Court has emphasised that constitutional morality should be given a place of priority, rather than of social morality. The Court, while recognising the injustice and inequality faced by the LGBTQI community under the pretext of Section 377, states that the Constitution is an organic document and it has provisions to combat these injustices and exploitations. The apex court has referred to the constitutional vocabulary of fundamental rights as well as Right to Privacy in order to indicate that discrimination on the ground of sexual orientation is an infringement of the fundamental rights of citizens.

On a remarkable note, the constitution bench has also highlighted the relationship between compulsory heterosexuality and gender, arguing that gender stereotypes furnish majoritarian standards in determining the established norms of normal or abnormal sexual behaviour. Thus, decriminalising provisions of Section 377 not only poses a challenge to the practice and institution of compulsory heterosexuality, but also attacks the gendered notions of sexuality and sexual selves in significant ways. Equal legal recognition to all forms of consensual sexual activities between adults in private indicates a challenge to the majoritarian standards of sexuality or standardised heteronormative norms of society that nurture itself within the strict binaries of male and female. Concisely, the legal recognition to all forms of consensual sexual behaviour, with reference to the language of individual choice, attacks the standardised binaries of sexual orientation as well as biological sexual identities.

The legal recognition accorded to the sexual minorities has to be accompanied by the granting of other civil and personal rights to these minorities in order to pave the way for their social recognition and social inclusion. The inclusionary design requires the extension of other civil rights—rights to marry, adopt a child, and adequate healthcare—to sexual minorities. The granting of this basic private right to the sexual minorities or LGBTQI community is the preliminary step in granting them the status of equal citizenship. The inclusionary design for the social recognition of these sexual minorities requires changes at the social and psychological level, the imbibing of the spirit of non-discrimination, as well as respect for diversities.

As discussed earlier, the relationship between gender and heterosexism is reciprocal and, therefore, the dismantling of the structure of heterosexism at the psychological and social level requires the gradual elimination of gender-based stereotypes and prejudices. Reversely, the full participation (inclusion) of sexual minorities in the social sphere will simultaneously pave the way for the dismantling of the gender-based structures and hierarchies. On a final note, it may be stated that the dismantling of these twin hierarchical structures of heterosexism and gender requires the imbibing of the values of non-discrimination and respect for diversities at the psychological level. A continuous and vigorous change at the socio-psychological level will ultimately lead to the realisation of a multicultural and inclusive society.

Conclusions

This article has dealt with the reciprocal relationship between compulsory heterosexuality and gender, and has depicted the role of Section 377 of the IPC (unmodified, formulated by the colonial state) in reproducing these twin structures. With reference to the recent changes made in the section by the Supreme Court, the authors have argued that legal recognition to the sexual minorities has posed a challenge to the standardised norms of sexual orientation as well as to the gender-based binaries of male and female sexual selves. Legal recognition has to be accompanied by social inclusion of the sexual minorities, and emphasise on changes at the social and psychological level. The breaking down of the twin hierarchical structures involves a simultaneous process as the existence of one sustains the other.

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Updated On : 2nd Mar, 2019

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