“The domain of sexuality is policed not so much by the state in India but by the samaj”, write Arvind Narrain and Alok Gupta in Law Like Love: Queer Perspectives on Law (Yoda Press, 2011).
On September 6, 2018, the Supreme Court read down Section 377 which criminalised same-sex intercourse. In the three years since, LGBTQIA+ people and allies have been fighting a different kind of fight, in the world outside courts.
Saurabh Kirpal, editor of the anthology Sex and the Supreme Court: How the Law Is Upholding the Dignity of the Indian Citizen (Hachette, 2020), writes that “the Constitution has become a document embodying all that is aspirational in the Indian imagination”.
But this assertion begs a question: Can all queer aspirations be fulfilled by the Constitution?
To understand this and what the reading down of Section 377 means to LGBTQIA+ people, out or not, Moneycontrol connected with a diverse set of queer people.
Was the scrapping of Section 377 truly ground-breaking?
Tejaswi, journalist and editor at Gaysi Family, doesn’t find it “reassuring”. Though agreeing that scrapping it was “long overdue”, they express disappointment that it “wasn’t done with more affirmative action like inclusive sex-ed and sensitisation campaigns”. Further, they argue that “things can go back to being restrictive, should the executive arm of the government so feel like it.”
Prashansa, 20, a law student from Jabalpur, feels it was “the first step towards acceptance” for her. She was in the tenth grade when the judgment came out and felt validated because earlier, she felt “unsafe and guilty”.
Shivangi, a disabled queer activist, notes that living in a post-377 world means “becoming hyper-visible”. They opine: “Hypervisibility only means an increase in street harassment and unwanted questions. Recognition can often lead to violence. Reading down of 377 also means that my queerness can only be a private matter.”
Amitoj, a liberal arts student at Ashoka University, says the four-part judgment decriminalising homosexuality has indeed helped bring a change in perception.
Priyanka, a Bangalore-based neuro-queer person, though credit it for making “public conversation around queerness” an everyday thing.
Rahul (pseudonym), a literature student, echoes the same thoughts. For him, too, it “symbolised a changing attitude towards queer people.” However, he felt that though “the Supreme Court made strong comments in support of the community, it was and is no secret that the move will benefit only a privileged few.” He stretches the argument further: “to only decriminalise the act of private homosexual sex is leaving much unsaid—is everyone from all castes, classes, religions, and households provided (with) a ‘private’ room? … Have they all historically been tried equally under the law? The Court’s acknowledgment, while ground-breaking, is nowhere near the end of homophobia.”
What is it like living in a post-377 India?
“I definitely am glad,” says Tejaswi. “To be able to talk about my sexuality openly on social media and on public fora … it slowly percolated into the fabric of my social life and interactions,” they submit.
For Shivangi, it wasn’t necessarily anything, as their “biological family prefers” them to keep their queerness “private or avoid it entirely”. Though they don’t believe in ‘coming out’, they find the root of their family’s reluctance in acknowledging their (Shivangi’s) queerness in their (family’s) “casteist and capitalist” mindset.
Because discussions around sex and sexuality began to happen frequently, Prashansa “got to learn more” about her “identity; the community and the politics around it. It has helped me become more self-aware and I learnt how to unlearn things.”
Unlike Prashansa, Rahul and Priyanka find that nothing changed for them “personally”. Priyanka notes that “transphobia and queerphobia are unfortunately deep-rooted”.
Amitoj seems to agree with their peers. They find the judgment “somewhat empowering, but honestly, it’s way less than what’s needed”.
(File photo) Supporters of the lesbian, gay, bisexual and transgender (LGBT) community celebrate after the Supreme Court's verdict of decriminalizing gay sex and revocation of the Section 377 law, during a march in Mumbai, India. (Image: Reuters)
How far was the judgment successful in changing the perception of cis-het people?
An aspiring designer from Mumbai, Aisha (pseudonym), finds their cis-het friends supportive. They appreciate that their friends are making “efforts to know more about the community, be progressive, and stand up when necessary”.
However, Tejaswi observes that their friends “have done little to educate themselves about queerness and the experiences of those openly living their truth.” In their assessment, the “burden of advocacy for systemic change and emotional labour of explaining the various ways of queerness that extend beyond the ‘#LoveIsLove’ trope still falls heavily on the community and any contribution of the so-called cis-het people is trivial”, while firmly believing that there are no cis-het people, as there are people “who have been able to explore and express their queerness and others who don’t choose to do so (for whatever reasons, including convenience and benefits)”.
“I don’t think cis-het people actively follow the Supreme Court judgments,” says Amitoj. “In my experience, they are mostly indifferent to them,” they continue. “However, many of them do seem to be more apprehensive about being explicit in expressing their conservative views post the judgment. It is also to be noted that this apprehension only comes partly from the Section 377 verdict; I would argue that it is primarily driven from their need to be politically correct, or ‘woke’”.
Can the government do anything for queer people?
LeoMan (pseudonym) is convinced that “it will take another 10-15 years to normalise ‘gay thing’”. “I am already 30+”, he says, “and I want to live this life with my partner without any restrictions. This makes me think of leaving my mother country to (go to) a place where we both can live our lives as we like.” He further adds that it would be better if there were “no hiding and no coming out stories”.
Echoing what LeoMan feels, Amitoj, after experiencing “tumultuous experiences”, is also “considering moving out of India for a better life”. However, they are mindful of their privilege. They ask, “What about those who don’t have the means?” While Amitoj want societies “to be free of compulsory heterosexuality, and to not just be tolerant but accepting”, Aisha believes this change can be accelerated by having LGBTQ+ people and people from other marginalised communities in leadership positions. It would help realise their queer utopia, a society, which they say, “embraces everyone for who they are”.
Shivangi feels this can happen when LGBTQIA+ people have “employment and economic rights, housing, socio-political rights.”
The first ask of Tejaswi and Priyanka is that the Trans Act be repealed. Both believe it to be “absolutely ghastly”. Tejaswi adds that “it is actively alienating and marginalising genderqueer folx, while reinforcing all the harmful bits of the binary gender system—like gendered roles, stereotypes, forms of labour, etc.” They would rather like the government to invest in making “space for inclusive, queer-affirmative, trauma-informed sex education in schools and colleges that prioritises consent over practicing celibacy” because “safe sex” for them “isn’t just about avoiding pregnancies, but about physical, emotional, sexual well-being”.
While Tejaswi would “love” if the “hegemony of the marital institution be completely abandoned (and not sanctioned or even mentioned by law)” and “intimacy be defined beyond the sexual, romantic realms in the mainstream” because these “institutions actively preserve traditions of intergenerational wealth transfer (and therefore caste), while exploiting the bodies of uterus-owners,” Priyanka wants “queer partnerships getting legal recognition”. She also desires “polyamory and non-monogamous relationships to be considered valid” and for the “state to consider chosen families as valid families. I want the structure of the family to include the element of choice”.
Prashansa wants the government to organise “sensitisation initiatives for both police and judiciary and other government offices” and that “stringent actions” be taken against people found guilty of queerphobia.
Aisha agrees. They submit: “Given how queer people often become the victims of hate crimes, our government needs to first and foremost ensure the safety of LGBTQ+ community. Ban conversion therapy. Establish concrete anti-discrimination laws.”
Amitoj recommends that the government “design and implement” developmental plans for LGBTQIA+ people and “penalise mental health professionals” who are still using conversion therapy.
Rahul says “there is no dearth of possible plans of action”. What he finds lacking is the will to implement them.Note: Pseudonyms have been used in this article as provided by the respondents who did not want to be identified publicly.