New Delhi: On 6 September 2018, the Supreme Court read down Section 377, which criminalised consensual sex among homosexual adults. The historic verdict led to euphoric celebrations across the country as the colonial-era law was finally consigned to the rubbish bin of history, and the LGBTQ+ community were finally legal.
But the landmark judgment was just the beginning of a longer battle for truly equal citizenship. One year later, lawyers and members of the LGBTQ+ community tell ThePrint that there are still many aspects of Indian law that are inaccessible to, or actively exclude, India’s queer.
“All our laws are drafted in a manner that only recognise ‘male’ and ‘female’. So where do trans people fit into this?” asks Akshat Agarwal, lawyer and research fellow at Vidhi Centre for Legal Policy.
Agarwal co-authored a report titled Queering the Law: Making Indian Laws LGBT+ Inclusive, aimed at critiquing Indian laws as they stand today and their “heteronormative” understanding of society.
“It is important to map all the central laws, which act as barriers for LGBTQ+ people as only then can we make the constitutional guarantee of equal citizenship a reality,” he says.
On the first anniversary of the landmark verdict, ThePrint examines laws pertaining to sexual harassment, civil rights and employment — laws whose benefits continue to exclude the LGBTQ+ community.
Sexual crimes recognise only male-female binary
Many criminal law provisions such as Section 375 (rape) of the Indian Penal Code do not account for LGBTQ+ relationships at all. “Sexual harassment and rape laws currently only operate in the ‘male-female’ binary. Only male can be the perpetrator and female can be the victim,” Agarwal explains.
Activists argue that the only way for law to be inclusive of all identities is to make sure the language in which laws are written is gender-neutral.
But when it comes to laws related to violence, the question becomes much more complex. The existing power dynamics in society, and how women are often at the receiving end of much of the sexual violence means activists are wary of batting for gender-neutralisation of laws.
“Laws have special provisions that account for historical disadvantages that some identities have faced more than others. The history of violence that women have faced cannot be ignored either,” says Agarwal.
Besides rape, laws pertaining to sexual harassment (Section 354 A), assault or use of criminal force to woman with intent to disrobe (Section 354-B), voyeurism (354 C), stalking (354 D) all operate in the male-female binary.
The 172nd Law Commission Report, which came out in 2000, recommended complete neutrality in describing both the perpetrator and the victim in sexual offence cases. But the recommendation faced criticism from some activists on the grounds that it would be ignoring the reality of sexual violence in society, where women are at a much more disadvantaged position.
No longer criminals, but what about other basic rights?
Last month, the Supreme Court dismissed a review plea, seeking civil rights for same-sex couples, including marriage, adoption and surrogacy.
The Lok Sabha also passed the Surrogacy (Regulation) Bill last month, which seeks to ban commercial surrogacy. The bill mandates that only a man and a woman who are married and haven’t been able to conceive for five years can opt for surrogacy. This will make surrogacy illegal not only for live-in partners and single parents, but also for the LGBTQ+ community.
Heterosexual marriage is seen as the foundation of many other rights such as maintenance, inheritance, guardianship, adoption and custody. So denial of marriage rights will also mean denial of all of these other rights.
Rachana Mudraboyina, founding member of Telangana Hijra Intersex Transgender Samiti and founder of Transvision, tells ThePrint, “(Reading down) 377 was a progressive judgment, but it only decriminalised consensual sex. But what about those rights that make us citizens? What about equality in family, in public spaces, at our offices? What about the violence that happens with the community?”
Transgenders still persecuted
Even within the LGBTQ+ community, the transgenders have faced a significantly higher degree of persecution and discrimination.
Besides facing social persecution, they are often, according to legal experts, unfairly targeted by law enforcement agencies.
“Anti-beggary and human trafficking legislations disproportionately target trans people as they are assumed to be involved in criminal activity,” says Agarwal.
“The very fact that when you are born, you are forced to identify either as a man or a woman is regressive and shouldn’t be a phenomenon in a post-NALSA India,” he argues.
In the landmark NALSA (National Legal Services Authority) judgment in 2014, the Supreme Court had declared transgenders to be a “third gender”. However, activists say that many states still continue to have birth certificate forms that only allow for male or female.
“The non-implementation of rights that should have followed post the NALSA verdict has certainly hurt the community,” rues Mudraboyina.
In August, the Transgender Persons (Protection of Rights) Bill was cleared by the Lok Sabha, but it faces stringent criticism from members of the trans community for being regressive, superficial and ignorant of their needs.
“Bills are meant for the people. But this is a Brahminical patriarchal bill, that doesn’t care to address our demands,” says Grace Banu, a Dalit activist and the first transgender person to be admitted to an engineering college in Tamil Nadu.
“We are the beggars, we are the sex workers, we don’t have any rights in this country, then why isn’t the bill giving us reservations?” asks Banu.
Incidentally, the penalty for rape in the bill has a maximum punishment of two years, whereas Section 375, which criminalises a woman’s rape by a man, sets out maximum punishment of life imprisonment.
“The spaces occupied by trans people in unorganised professions like sex work have increasingly been invisibilised, criminalised and are on the verge of being abolished,” says Mudraboyina, who also works extensively for trans-rights with the Human Rights Law Network.
Mudraboyina is also critical of the classism prevalent within the LGBTQ+ community and how that has reflected in the struggle as well.
“Mostly, it is the rich and privileged within the LGBTQ+ community whose rights have been secured. If you are poor, Muslim and trans then you will face much more discrimination than those who are rich, Hindu and queer,” she says.
Workplaces need to be sensitised
Corporate lawyer Aparna Mittal, who founded Samāna Centre for Gender, Policy and Law to help create diversity, inclusion and empowerment for women and members of the LGBTQ+ community, says workplace discrimination is still a big issue in post-377 India.
“We interact a lot with transgender persons and we have often heard stories of how they were either not called for a job interview despite having due qualifications or called for a job interview, but because the guard at the gate wasn’t sensitised, he tried to chase away the transgender person. We need sensitisation throughout — at every point of interaction in office,” she explains.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act or POSH Act only recognises women as victims of sexual harassment at the workplace. This automatically precludes the possibility of LGBTQ+ people being victims of sexual harassment at workplace.
Mittal says that while things have changed slightly, most organisations in corporate India are still not willing to make LGBTQ-inclusive policies, though many progressive companies have made their POSH and other policies gender-neutral.
On the issue of reservation for transgenders, Mittal says merely affirmative action is not enough, “it also needs to be supplemented by creating more sensitisation and awareness to also bring about much needed social inclusion”.
While laws do need to be accompanied by social change, the lack of societal readiness cannot be used as an excuse to not change a law. In fact, sometimes the law needs to lead the way, and society will just have to follow.
“This government is trying to show they treat trans people as God,” says Banu. “But we only want to be treated as humans.”
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