CW: homophobia, mentions of abuse
The mosaic of rainbow flags glittering in the sunlight with renewed enthusiasm is how the 2019 Mumbai Pride March will be remembered. The first after consensual same-sex intercourse was decriminalized by the Indian Supreme Court. People wandered, danced and celebrated, many without masks that were once worn to preserve their anonymity.
The repeal of Section 377, the archaic law that criminalised “unnatural sex”, was hoped at the time to be the first of many advances for the LGBT+ community in India. However, cut to 2020, and the suicide of bisexual 21-year-old college student, Anjana Harish, is the subject of national heartbreak and outrage. In a video uploaded to Facebook before her suicide, Anjana explained how she was forced into conversion therapy by her parents, where she underwent multiple cases of physical and mental abuse in a ‘de-addiction and mental health centre’.
But Anjana is not the only one. Regardless of any recent legislative progress, India’s LGBT+ community is still vulnerable. In news from the last month alone, a gay couple from Assam, an openly gay artist, Ram Indranil Kamath, and a lesbian couple from Tamil Nadu, amongst many others, committed suicide. With this in mind, how is the Indian legal system both accommodating and failing its LGBT+ citizens?
It is no secret that laws concerning the LGBT+ community are nowhere near as progressive as they should be. While the repeal of Section 377 decriminalized same-sex intercourse, same-sex couples still cannot get married, and while the adoption of children is available to single LGBT parents, same-sex couples are not allowed to adopt. Additionally, in November 2019, the controversial Transgender Persons Bill was passed in the Indian Parliament, to the opposition of many LGBT+ activists. While the bill allowed self-perception of gender identity, it required transgender citizens to attain a ‘transgender certificate’ from a District Screening Committee, awarded only after they had undergone sex reassignment surgery. This alone reveals the discriminatory attitude of the Indian legislative system — necessitating costly surgery to ‘qualify’ as a transgender person for an arbitrary certificate is an infringement of the basic right to bodily autonomy for the entire LGBT+ community.
The overall trend in LGBT+ laws in India is that they allow very specific, restrictive freedoms. Recent milestones of progress, such as allowing homosexual intercourse and loosely allowing gender self-perception, are more symbolic than substantive in granting the LGBT+ community equal rights. The right to marry, the right to adopt as a couple, and the right to surrogacy, which are societal accommodations of LGBT+ members, are still withheld; whereas personal decisions, such as intercourse and gender identity to an extent, have been conceded. The result of this is a further marginalization of the LGBT+ community, where they have been granted only a small fraction of what they are entitled to, an effort by the judicial system to quieten protests whilst still preserving heteronormative Indian society and culture.
In an extension of this, there is a systemic social neglect of India’s LGBT+ citizens, e.g. discrimination on the basis of sexual orientation is not explicitly outlawed in the Indian constitution. In the case Navtej Singh Johar vs. Union of India, former Justice K.S. Panicker Radhakrishnan said that discrimination based on sexual orientation is unconstitutional, because “gender identity is an integral part of sex”. And while this may seem at first a concession, the truth is that gender identity has nothing to do with sexual orientation and vice versa.
By not banning discrimination on the basis of sexual orientation independently, there is a gaping void in the judicial system that completely disregards homophobia and its very real impact on the lives of anyone who is not heterosexual. From housing discrimination to employment discrimination to the bullying of LGBT+ youth in schools and more, India needs a legal structure that plainly and totally bans discrimination on the basis of sexual orientation.
Another grey area in the legal stance of LGBT+ rights is India’s feeble attitude towards conversion therapy. Conversion therapy is a dangerous and harmful practice of attempting to change someone’s sexual orientation, implemented on the grounds that homosexuality is a ‘mental illness’ that can be cured. There is no scientific basis in conversion therapy, and it only has detrimental consequences. Physical, mental, and sexual abuse is the norm in conversion therapy, leaving up to 98% of ‘patients’ with psychological and/or physical damage.
Although conversion therapy is ‘strongly condemned’ by the Indian Psychiatric Society, there is virtually no law that criminalizes its practice. The criminality of conversion therapy depends on vaguely related laws such as the Mental Healthcare Act 2017 and Juvenile Justice Act 2015. The lack of legal definition and condemnation of conversion therapy, especially on minors, understates its wickedness, and it gives rise to spurious gurus and pseudo-doctors who find ways to work through a loophole, often disguising their conversion therapy as other programs, such as ‘de-addiction’ or ‘religious counselling’.
The truth is that conversion therapy kills. Rampant homophobia kills. Legal neglect kills. It is because of this that Anjana’s death is not blameless, it falls on the shoulders of a system that repeatedly disregards the unique experiences of and injustices against the LGBT+ community. It is not enough to vaguely point to pre-existing laws – the LGBT+ community deserves an inclusive and divisive legal structure that protects them from homophobia in all its forms. Without this, the community will always be vulnerable.
But all hope is not lost. Progress is being made socially within India. Between 1990 and 2014, the number of Indians who believed the statement “homosexuality is never justifiable” fell from 89% to 24%. While we still have a long way to go, it is promising that in under three decades, Indian society is opening its arms to the LGBT+ community.
It is perhaps this trajectory of gradual social acceptance that culminated to result in the repeal of Section 377 in 2018. And amid celebrations, Justice Indu Malhotra famously said that “history owes an apology to the members of this community…”. While this is true, the LGBT+ community deserves more than just an apology, and much sooner. Because while the LGBT+ community waits for the Indian bureaucracy to act on their apology, stories just like Anjana’s will keep happening and lives like Anjana’s will keep being ruined. It’s time that Indian legislation accommodates the LGBT+ community by listening to their experiences and working to help them. And equally, Indian society needs to do the same.
Author disclaimer: The views expressed in this article are purely the personal views of the writer and not intended to offend anybody.