A few weeks after the Supreme Court of India struck down the Delhi High Court judgment on Section 377 in December 2013, a friend, who is in his forties now, told me how the next generation of the LGBTQ community also has to deal with Section 377, and how all other issues would be put on the back burner citing this archaic law that criminalises sexual activity against the ‘order of nature’.
He couldn’t have been more wrong.
On July 10, 2018, a five judge bench comprising Chief Justice Dipak Misra, Justice Ajay Manikrao Khanwilkar, Justice DY Chandrachud, Justice Indu Malhotra and Justice Rohinton Nariman started hearing the challenge to the constitutionality of Section 377 of the Indian Penal Code.
The ongoing hearing has revived the hope for certain sections of the LGBTQ community in India. The points that seem important to me, in the arguments so far, are – the reference to Hadiya’s case; not limiting the argument to just sexual orientation, but including gender in the argument; questioning the ‘order of nature’; and, stressing that Section 377 applies even to sexual activities by heterosexual couples.
The affidavit filed by the Union of India on Wednesday leaves the decision to the Supreme Court on the validity of Section 377 on “consensual acts of adults in private.” It is also important to note that the government does not want the discussion to talk about rights, but rather limit it to sexual activity.
That, if nothing else, should tell us this: decriminalising consensual, non vagino-penile sexual activity among adults in private, does not extend to protection in the public sphere.
It may remove the anxiety and fear of being blackmailed or persecuted, for some of us who are cisgender and straight-passing. But it does not ensure safety and protection in public spaces, places of education, workplaces, or access to healthcare.
Perhaps this is the time to give attention to other fights by the queer community that were ignored, or haven’t gained as much momentum as the fight against Section 377 – the movements and protests within the community which were sidelined, as they did not align with the centralised, NGO-based queer revolution.
Access to education, in line with the anti-caste movement
Schools are not safe for queer children and this directly affects their education. There are many queer children who might be the first in their family to have access to education. And when the educational spaces are unsafe because of their queerness, it does not just affect the children, it also affects the family which places their hope on the children – or hope that, at least their children would be liberated through education.
And when a child is the first generation in the family to go to school, it isn’t difficult to locate their caste and class position in our society.
It is unfair of us as a country to ignore this aspect which makes access to education difficult for a lot of young queer children. As LGBTQ individuals, we must introspect why only certain sections in the LGBTQ umbrella fight for basic rights as housing, education and employment; and why the issues of certain groups get precedence, attention, and funding over others.
This is where the stress on access to education and representation, for which social rights activist Grace Banu fights for transgender individuals, is in line with the anti-caste movements which place importance on education as a tool of empowerment.
Making workplaces safer
Next, we must look at the existing labour law or policy – there isn’t any clear law or policy that protects LGBTQ individuals in our workplaces.
However, in 2011, the Ministry of Corporate Affairs released the National Voluntary Guidelines on Social, Environmental and Economic Responsibilities of Business. These guidelines were introduced to help the corporate sector (large and small) to work towards inclusive development – for both their employees and the business. And one of the core elements under employee wellbeing, is to provide and maintain equal opportunities at all the times.
Sexual orientation is explicitly mentioned in the guidelines as one of the categories, along with caste, creed, gender, race, religion and disability.
But none of the organisations that discuss LGBTQ inclusion in their workplace seem to be aware of the guidelines. The efforts to have LGBTQ inclusive policies are always an extension from the parent company in the US or Europe.
Meanwhile, the new draft of these guidelines excludes all the aforementioned categories of people who must be protected.
The draft of the guidelines is now open for public comments till July 20.
And while this is just a voluntary guideline, having a document by the Ministry of Corporate Affairs could help in pushing for new policies.
As individuals and groups who are lobbying for workplace inclusion and equality, we must take the existing guidelines and policies, along with Section 377 to see if we can make use of them to improve our workplaces. Organisations like FITE must ensure that their fight is inclusive of LGBTQ employees.
Let’s work with progressive movements
As mentioned in my earlier article, the fight against Section 377 was never intended to champion gay rights, leave alone the rights of the entire queer community. At the same time, the fight is important for us as a community – including allies – on the limited discussion we have had so far in the public discourse.
But the recent development in the court reiterates the necessity to discuss beyond Section 377 and why Section 377 has never been the only issue for a large section of the LGBTQ community.
Before we jump to marriage equality, let us take this as an opportunity to work with progressive movements who demand cohabitation rights among consenting adults and the ensuing legal and social protection. This doesn’t have to be just the fight of the LGBTQ community.
The information that Section 377 is not limited to the LGBTQ community is not new; we must take this time to ponder what discouraged straight allies to not join the fight against the law, apart from the fear of diluting the harassment queer individuals face.
As queer rights activist and lawyer Danish Sheikh says, “Nothing is going to make up for the fact that the Supreme Court should have finished off the decriminalisation story with the 2013 judgement, but if it’s taken this long, let’s at least hope we get some fantastic jurisprudence for the struggles ahead.”
And with the new arguments emerging, whether the petitioners win the case against Section 377 or not, I hope we de-centralise the queer movement.
Views expressed are the author's own.