Section 377 persecutes sexual minorities in India: Humsafar Trust

The matter will be heard again on October 21.

The Supreme Court is scheduled to continue hearing on the matter of the constitutionality of Section 377 today. During the course of proceedings on July 17, the court had announced that the moment the bench is convinced that the section violates fundamental rights, it will strike it down, and that it won’t wait for majoritarian governments to take a decision on the same.

While the Supreme Court seems to have taken a progressive stance, a report by The Humsafar Trust, a petitioner in the ongoing case, shows that sexual minorities continue to face egregious human rights violations.

The report, which aims to study human rights violations and allied discrimination on sexual minorities, have collated data from media reports as well as 17 Community Based Organisations or CBOs from across India and includes the states of Uttar Pradesh, Maharashtra, West Bengal, Gujarat, etc.

The report, which was presented in the Supreme Court by the counsel of petitioners, has pointed out at the disparity in healthcare for sexual minorities, how sexual non-conformists develop emotional disorders because of the stigma associated with them, and end up leading a poor quality of life.

Members belonging to the LGBTQ community, particularly gay men, are persecuted under sections relating to ‘obscenity’ [Section 292, 293 and 294 of the IPC] by the police, the report has pointed out. The report cites an incident where the police blackmailed a gay man to reveal his sexual orientation to his parents and extorted money out of him in return.

Various media reports collated by the NGO show discrimination against the LGBTQ community and lists various instances to buttress their argument. For instance, a transgender person was not allowed to donate blood in Kolkata because of her sexual deviance, another was thrown out of her own house in Varanasi, another a victim of brutal sexual assault and gang rape, another committed suicide bowing down to mental torture — the list goes on. The only thing that binds all these together is the reluctance to seek medical help and file a formal complaint because of stigmatization. In another case, a kinnar was burnt alive in Rajkot.

The report also points out that although lesbians cannot technically be charged under Section 377 because it restricts to penile penetrative sex, they still bear the brunt of societal dogmas. Recently, female students of a Kolkata-based school were forced to come out as lesbians for merely holding hands. In a similar incident, a lesbian couple was arrested after their parents repeatedly appealed to the police and were asked to take counselling to correct their sexual orientation.

Bisexuals face persecution, more so from their families, in the form of forceful marriages and even ‘corrective rape’. The study noted that as many as 83% of transgenders, who are now identified as the third gender after the NALSA judgment of 2013, are reported to be engaging in sex work or begging as their primary job because discrimination leaves little space for them to work in the formal sector. And, when sex workers belonging to the LGBTQ community file formal complaints, they are hardly ever paid heed to, the report suggests. In fact, those who fight all odds to get educated and make a mark in life — for instance, Vidya Kamble was appointed to the panel of Lok Adalat in the Nagpur bench of Bombay High Court — was ousted by her own clan of the Hijra community.

In fact, medical practitioners in hospitals are reportedly reluctant to ‘touch’ members of the LGBTQ community who are HIV positive – and the patients can’t tell if it’s because of the stigma associated with the disease or their sexual non-conformism.

To conclude, the study suggests that sexual minorities are vulnerable to multiple forms of interpersonal violence committed against them by family members, neighbours and even intimate partners. Further, negative familial responses to sexual identity led to depression in a significant number of cases. It also states that apathy of government authorities towards the LGBTQ community vis-a-vis health care, education, housing, employment and legal redress perpetuates a cycle by which sexual minorities stay vulnerable to further violence. All this is deeply offensive to the dignity and self-worth of the individual.