Sexual Minority Politics in India

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Sexual Minority Politics in India
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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

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Sexual Minorities

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

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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

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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.

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Sexuality in Indian History
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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.

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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 1999.
• Delhi, Mumbai, Bangalore, Chennai.

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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.

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Introduction to Section 377 IPC

• Drafted in 1860 by Lord Macaulay.
• 377. 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.

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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.

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The Legal Challenge to Section 377

• Public Interest Litigation filed in 2002 by the
  Naz Foundation.
• Ministry of Home Affairs response in 2003.
• National AIDS Control Organization response in
  2006.
• Final arguments in summer 2008.
• Decision released July 2, 2009.
• http//www.youtube.com/watch?vQvfS9FHGJiE

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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.

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The Naz Judgment

• Right to Health
• Right to Privacy
• Right to Equality
• Constitutional Morality

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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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News Coverage

• http//www.youtube.com/watch?vA6-yIB7t42Mfeature
  channel
• http//www.youtube.com/watch?v9rmffucVlN4feature
  channel
• http//www.youtube.com/watch?vk38NUhbPeVcfeature
  channel
• http//www.youtube.com/watch?v_nKPNJDxV4Qfeature
  channel

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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.

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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?

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