The contradictions in LGBTQI rights in India

The lower house of the Indian parliament is about to debate a private member’s bill on transgender rights that seeks to codify special mechanisms for protecting the rights and welfare of the country’s marginalised transgender community. The government fears, however, that such a debate may inadvertently lead to legislative support for gay rights, which it unambiguously opposes.

Contemporary discussions among politicians and political parties in India around the rights of sexual minorities are shaped by two parallel phenomena: increasing support across the political spectrum for special laws to protect the rights of transgender people, and continuing reluctance to decriminalise homosexuality by repealing the infamous Section 377 of the Indian Penal Code.

As such, and in keeping with broader social trends in the country, ‘gay’ and ‘trans’ rights are viewed through entirely separate lenses. To use a broad simplification (and as analysed by various scholars such as Nivedita Menon and activists like Anjali Gopalan): LGBQ rights are associated largely with contemporary ‘western-influenced’ activism, whereas transgender rights are seen as being sanctified, or in some form supported, by longstanding indigenous traditions. Further, as Gopalan and others point out, even the term ‘gay’ is problematic. MSM (‘men who have sex with men’) serves as a convenient catch-all substitute in social policy documents and spaces.

This differential approach to sexual rights was most notably reinforced by the two Supreme Court judgments that made national and international headlines in 2013–2014: the December 2013 judgment of the Supreme Court that ‘re-criminalised’ homosexual acts (by overturning a 2009 Delhi High Court order that had ‘read down’ or nullified relevant clauses in Sec 377), and the April 2014 judgement of the same court that recognised transgender people as constituting a socially and economically disadvantaged class entitled to reservations in education and jobs, and that ordered the federal and state governments to enact welfare schemes for them.

In April 2014, even as many rights activists in India celebrated the much-needed recognition for the transgender community afforded by the court’s judgment, there was widespread regret that the previous case on Sec 377 had not appeared before as sympathetic a panel of judges. (Each case was decided by a panel of two judges.)

After the two Supreme Court decisions, and amid ongoing political and judicial support for the status quo, political tensions and anxieties around homosexuality were once again inflamed earlier this year when MP Tiruchi Siva’s private member’s bill on transgender rights was introduced, and ultimately passed, in the Rajya Sabha, the upper house of the federal parliament. The bill will now appear before and be voted on by the lower house, the Lok Sabha.

Sources within the ruling Bharatiya Janata Party (BJP) have recently revealed the government’s apprehensions regarding the bill: when it was being voted on in the Rajya Sabha, officials feared that passing the bill could bolster support for scrapping Sec 377, which the party has explicitly and implicitly indicated at various points in time it is unwilling to do.

While currently in the process of preparing its own ‘comprehensive’ bill on transgender rights, and resolving outstanding issues between different ministries arising thence, the BJP considers the bill’s language its most ‘troubling’ aspect. They object to the bill’s ‘guiding principles’, which highlight issues of discrimination, focus on health risks faced by the community, and prioritise securing ‘respect for inherent dignity, individual autonomy including freedom to make one’s own choices’. While the language of the bill refers to transgender people exclusively, many within the BJP fear that the same principles could be extrapolated to gay men and gay rights, thus setting an uncomfortable legislative precedent.

Federal finance minister Arun Jaitley and social justice and empowerment minister Thawar Chand Gehlot had specifically asked for the private member’s bill to be withdrawn in the interests of political unanimity on transgender rights. Arguing that the ‘House should not be divided over such an issue’, Jaitley and Gehlot claimed that the government agreed in principle with the contents of the bill but wanted to defer legislative action and resolve ‘technicalities’ before bringing forward its own bill (presumably without the ‘troubling’ aspects).

In effect, by ultimately supporting passage of the bill, the government conceded that the bill addressed and codified the substantive rights and protections encompassed by its own draft legislation, and that its primary concern was the bill’s putative implications for Sec 377. According to BJP sources, pressure is building for the government to ‘swiftly finalise the official legislation that could replace the private member’s bill’.

Interestingly, when MP Siva was called upon to defend his bill, he cited the growing acceptance internationally of the need to protect transgender rights. Of course, one could argue the same about gay rights.

Thus, as Siva’s bill appears before the Lok Sabha, tensions between politicians’ approach to gay rights and their approach to transgender rights have once again come to the forefront of political discourse. But as was the case previously, these tensions remain subliminal and there is very little recognition of the inconsistencies and contradictions involved.

The BJP has expressed reservations about the modalities of the bill (which envisages the setting up of national and state-level ‘commissions’), but these appear to be tangential. What is really at the heart of the discomfort, as party sources have acknowledged, is the bill’s possible implications for gay rights – the big and complicated ‘other’ in political debate on the rights of sexual minorities in the country. By making the necessary progress on transgender rights, the party fears it may be inadvertently supporting gay rights. Yet, as leading media outlets in the country have argued, that may not be such a bad thing for the party:

On the political plane, legislating equality for the LGBT community would earn enormous goodwill for BJP. It makes up 5-10% of the country’s population and would become a captive vote bank for at least a generation, helping BJP win elections. Such a move would also position BJP on the side of modernity and youth. India now aspires to lead the world in many respects, we should not lead from behind. Repeal Section 377, decriminalise homosexuality and permit gays to marry. Digital India, which seeks to make India competitive in information technology, is well and good. But if we are to succeed in the 21st century our mental software requires a big upgrade as well.


Photograph: Bangalore Gay Pride Parade, by Nick Johnson (via Flickr).

Arjun Rajkhowa

Arjun Rajkhowa works in tertiary education in Melbourne. His research interests include public health; media, culture and society; human rights; and policy. He has volunteered in the community sector in Melbourne for several years. He can be contacted on Twitter at @ArjunRajkhowa.

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  1. Interesting article. Thank you for the insight. The same contradictions can be seen in Iran as well, of course on a different scale. There too, there is some government support for transgender people, and the same antipathy to other people of diverse sexualities. Perhaps there are historical parallels.

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