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Current Issues and Ideas
LGBTQ Place in the Indian Space
Submitted by
Sashank Kini (FSC2) Teja Kilaru (LE4)
Submitted to Prof. Mochish
An Introduction
LGBTQ stands for Lesbian, Gay, Bisexual, Transgender and Queer, which together comprise a
community that represents alternate sexual and gender identities converse to heterosexual
(attraction to opposite sex) and cis-gender (i.e. when self-identity conforms with the gender that
corresponds to their biological sex) identities.
The term gained widespread prominence in United States (and eventually in the rest of the
world) only in the 90s. Until the 60s there wasn’t a single non-derogatory term for non-
heterosexuality, with the closest word alluding to the community being third gender back in
1860s. In the 60s and 70s, the terms homosexual, homophile and gay were successively used,
mostly with negative connotations, to describe the sexual minority. The term lesbians was
popularized in the 70s after they forged more public identities, and bisexual and transgender
were soon recognized as legitimate categories within the larger minority community. Currently,
the term LGBTQ also includes queer identities i.e. identities of people questioning their
sexualities.
The fundamental difference between LGB and T is that the first three terms refer to sexual
orientation while the last refers to gender identity. Sexual orientation refers to how one is
oriented in love or romantic relationships while gender identity refers to how one experience and
expresses gender and biological sex.
Gay Rights Around The World
Gay Rights have been especially curtailed in a lot of countries that follow Sharia Law such as
Afghanistan, Brunei, Iran, Iraq, Mauritania, Nigeria, Pakistan, Qatar, Somalia, Sudan and Yemen
all have laws against homosexual acts which can lead to the death penalty. Not only is the death
penalty not cruel enough to some of these countries on its own but a majority of these countries
insist on stoning the offenders to death, thereby making it slow and painful.
Saudi Arabia has laws against any sexual acts performed outside of marriage which means that
there can be no homosexual acts as the citizens cannot marry people of the same sex. People
engaging in sodomy can be sentenced to death irrespective of sexual orientation.
Homosexual acts are illegal but not punishable by death in 66 countries. Most of these countries
are from Africa with a few Asian countries that include India, Malaysia, The United Arab
Emirates, Oman, Syria, Turkmenistan, Bangladesh, Myanmar and Bhutan. Guyana is the only
country in both Americas where homosexual acts are illegal while Papua New Guinea is the only
country in the Australian continent to deem homosexual acts illegal.
The 24 countries that specifically allow gay marriage are Argentina, Belgium, Brazil, Canada,
Denmark, England, Estonia, Finland, France, Iceland, Ireland, Luxembourg, Netherlands, New
Zealand, Norway, Portugal, Scotland, Slovenia, South Africa, Spain, Sweden, Uruguay, Wales
and The United States of America (The United States of America had 37 states that already
deemed it legal before the Supreme Court ruled on June 26th
2015 that the constitution deemed it
a right thereby taking it out of states’ hands.).
There are some countries where homosexuality is legal but they also have noteworthy laws
against homosexuality. Australia failed to pass a same-sex marriage bill in 2012, Russia
decriminalized homosexuality in 1993 but under Vladimir Putin in 2013, the Parliament passed a
series of measures limiting gay rights. These included a ban on adoption of Russian children by
all couples in countries where same-sex marriage is legal and a ban on homosexual propaganda.
Indonesia still has pockets such as South Sumatra and the Aceh province where homosexual acts
are illegal despite the rest of the country deeming it legal.
LGBTQ in India – A Historical Perspective
Some ancient Indian texts and literature have dwelled on the subject of non-normative sexual
orientation in various disciplines. It can be concluded based on the data below that despite a
deprecatory attitude towards non-normative sexual orientation and a neutral to positive outlook
towards unconventional gender orientation, neither Hinduism or Islam institutionalized the
persecution of people with non-normative sexual or gender orientations, which only took place
after the imposition of the Victorian moral code of conduct on Indian soil.
In Medicine –
There are a handful of terms used in the Indian medical literature that partially overlap with the
semantic fields of modern terminology such as ‘homosexual’, ‘transvestite’ and ‘impotent’. The
Sanskrit terms denotative of gender-variant individuals of both biological genders include ‘kliba’,
sandha(ka) and ‘napumsaka’; depending on the context, they referred to a. gay men, lesbians,
bisexuals and transvestites b. the impotent and those with sexual dysfunctions other than
impotency c. those with sexual paraphernalia or unconventional sexual behaviour or d. the
sexually anomalous, anatomically or physiologically. Both the Caraka and Susruta included 8 such
conditions under gender or sexual anomalies or vikrti.
. For the Indians, the atypical gender behaviour and coital role rather than sexual behaviour and
preference was crucial in perceiving a person as queerly different. For example, in the medical
literature, fellatio is mentioned as the cause of both venereal disease and impotence, attributing
the fellator’s sexual activity to his need to compensate for deficiency of semen. The ‘effeminate’
condition in which a man with feminine behaviour plays the bottom (passive role) in sexual
intercourse is also ascribed as a congenital condition thought to be due to the father’s having
played the female role in the coitus that conceived the future effeminate male. The susruta
considered anal intercourse as an acquired behaviour by ‘unchaste and others who treat their
own anus as a man does woman’. Lesbians (narisandha) are considered by both Caraka and
Susruta as those suffering from a disease of the female generative organ (yoniroga) in which the
mother played the male role in coitus that bore the masculine lesbian; the texts have described
them unflatteringly as ‘man-hating’, ‘breastless’ and ‘unable to menstruate’ . Regarding the third
gender, early medical traditions state that many are capable of potency in certain circumstances.
In a nutshell, although both Indian and Western medical systems viewed gender atypicality as a
congenital pathology, Indians did not take the step of attempting to cure or confine queer
people, as did Europeans and Americans, with medical sanction, from the late nineteenth to the
middle of the twentieth centuries.
In Legislature –
The legal penalties for homosexual behaviour in the Indian traditional books are generally mild,
and there is no evidence of their enforcement. Neither do Indian texts mention curing of the
third gender who at times have been given special privileges by Indian rulers and credited with
possession of special religious or magical potency. The Mughal rule was especially generous and
renowned for their patronage of hijras. In addition, Muslim eunuchs, who dressed up as men and
associated with women and were responsible for guarding the ladies of the harem, were very
prevalent under the Mughal rule.
The Arthasastra, an ancient Indian treatise on statecraft, mentions a wide variety of non-vaginal
sexual practices which, whether performed with a man or a woman, were sought to be punished
with the lowest grade of fine. While homosexual intercourse was not sanctioned, it was treated as
a very minor offence, and several kinds of heterosexual intercourse were punished more severely.
Sex between non-virgin women incurred a very small fine, while homosexual intercourse
between men was sought to be censured by a prescription of a bath with one's clothes on, and a
penance of "eating the five products of the cow and keeping a one-night fast"- the penance
being a replacement of the traditional concept of homosexual intercourse resulting in a loss of
caste (as prescribed in The Laws of Manu, the first formulation of the Hindu moral code).
In Literature and Mythology –
Kamasutra and other texts on erotics used the term trtiya prakrti or ‘the third nature’ for ‘a
neuter or napumsaka bereft of either a masculine or feminine nature’. The text does assimilate
them to the masculine or feminine poles of gender binarism, distinguishing those members of
the third gender who look, dress and behave like women from those who look, dress and behave
like men. Similarly, eighth century literary texts such as Satapathabrahmana did evince an
awareness of the third/neuter gender The napumsaka is described as defective men possessing
characteristics of both the sex who unable to procreate or menstruate. There is a misconception
in many Indian (as well as Western) texts that the third sex always refers to actual eunuchs i.e.
castrated men; as castration was regarded with disapproval and at times legally forbidden in
Indian tradition prior to the Muslim rule, eunuchs were rarely found in classical India. A rare
(although highly dismissive) portrayal of the third gender occurred in the play Ubhayabhisarika
by Vararuci, in which the character Sukumarika was depicted as a high-class prostitute, vain,
capricious, lustful and histrionic who possessed wide buttocks and could not menstruate or
become pregnant, pegging her as a disorderly female.
While many Hindu texts condemned homosexuality, Vatsyayana, author of Kamasutra, believed
that ‘in all things connected with love, everybody should act according to the customs of his
country, and his own inclination’ asking a man to consider (oral and anal sex) only whether the
act ‘is agreeable to his nature and himself’.
Female-female sexuality is viewed as a situational behaviour found among otherwise normative
women in sexually segregated environment such as women’s quarters. The lack of attention
given to lesbianism can be attributed to male author’s greater anxiety about those transgressing
customary male gender roles.
The History of Section 377
The Indian Penal Code was an important experiment in the larger colonial project to apply the
collective principles of common law in British India.
Section 377 of the Indian Penal Code was authored by Lord Macauley, the President of the
Indian Law Commission, in 1860, as part of Britain’s efforts to impose Victorian values on its
biggest colony. Similar laws were introduced in most other colonies, including the United States.
The law reads as follows –
‘Section 377 – Unnatural Offenses – Whoever voluntarily has carnal intercourse against the
order of nature with any man, woman or animal shall be punished with imprisonment for life, or
with imprisonment of either description for a term which may extend to 10 years, and shall be
liable to fine. Explanation – Penetration is sufficient to constitute the carnal intercourse
necessary to the offence described in this section’.
The objective of sodomy has remained unclear and unsubstantiated. The offence was introduced
into British India with a presumption of a shared Biblical morality. Historians have speculated
that ‘there were concerns that not having wives would encourage the Imperial Army to become
replicas of Sodom or Gomorrah’ or to pick up ‘special Oriental vices’. Whether this vice was a
sexual activity, or also a person associated with the sexual activity, was witnessed in the case of
Queen-Empress vs Khairati. Here, a eunuch was kept under constant supervision by the police
and arrested upon ‘being found singing dressed as a woman’. The only incriminating evidence
was the distortion of the orifice of the anus into the shape of a trumpet, a mark of a habitual
sodomite. Here, what’s noteworthy is that the law was equally about the person most likely to
commit the office apart from the offense itself (i.e. those who gave an appearance of a
homosexuals and transsexuals).
Although not explicitly defined, ‘carnal intercourse againstthe order of nature’ has been taken by
various Indian courts in the intervening years to include anal sex, oral sex, and in some cases
non-procreative sexual acts, such as mutual masturbation. Although heterosexual couples also
partake in these activities, the weight of the law over the centuries has fallen on homosexual sex.
Even if sex is consensual, the voluntary provision makes it illegal. Homosexuality soon became
associated with perversity and often linked with bestiality and paedophilia.
In India, the difficulty of proving that ‘carnal intercourse against the order of nature’ has taken
place in private has meant that the law has only infrequently been applied in court judgements.
Achieving a prosecution requires catching two men carrying out the sex act, which usually takes
place in private. Since 1930, there has been only one prosecution of adults having same-sex
consensual sex. Of the 50 reported judgements under Section 377, 30% were cases of sexual
assault or abuse of minors, with the remainder involving non-consensual sex between adults.
However, although few cases against consenting adults have gone to trial, the existence of
Section 377 and the threat of possible arrest, have allowed the authorities to discriminate against
homosexuals and organizations working with them.
In one of the defining moments of gay rights law in 2009, the High Court of Delhi struck the
Act and declared it unconstitutional. In its ruling, the High Court emphasized that ‘moral
indignation, howsoever strong, is not a valid basis for overriding individuals’ fundamental right
of dignity and privacy’. In our scheme of things Constitutional morality must outweigh the
argument of public morality, even if be the majoritarian view’. In striking down the
discriminatory provisions of the Penal Code, the High Court acknowledged that ‘The
criminalization of homosexuality condemns in perpetuity a sizable section of society and forces
them to live their lives in the shadow of harassment, exploitation, humiliation, cruel and
degrading treatment at the hands of the law enforcement machinery… A provision of law
branding one section of people as criminal based wholly on the State’s moral disapproval of that
class goes counter to the equality guaranteed (under the Indian Constitution).’
However, on 11 December 2013, the Supreme Court of India upheld the constitutionality of
Section 377 of the IPC, and stated that the Court was instead deferring to Indian legislators to
provide the sought-after clarity. In its judgment the Supreme Court stated
"We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in
private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377
IPC will continue to govern non-consensual penile non-vaginal sex and penile nonvaginal sex
involving minors... Secondly, we clarify that our judgment will not result in the re-opening of
criminal cases involving Section 377 IPC that have already attained finality."
On 28 January 2014, Supreme Court dismissed the review petition filed by Central Government,
Naz Foundation and several others, against its December 11 verdict on Section 377 of IPC. In
January 2015, National Crime Records Bureau (NCRB) said that according to data collected, 778
cases were filed under Section 377 of IPC and 587 arrests were made in 2014 until October after
the Supreme Court verdict.
Situation of Transgenders during and Post Colonial Rule
During the British rule, legislation was enacted to supervise the deeds of Hijras/TG community,
called the Criminal Tribes Act, 1871, which deemed the entire community of Hijras persons as
innately ‘criminal’ and ‘addicted to the systematic commission of non-bailable offences’.
The Act provided for the registration, surveillance and control of certain criminal tribes and
eunuchs and had penalized eunuchs, who were registered, and appeared to be dressed or
ornamented like a woman, in a public street or place, as well as those who danced or played
music in a public place. Such persons also could be arrested without warrant and sentenced to
imprisonment up to two years or fine or both.
Under the Act, the local government had to register the names and residence of all eunuchs
residing in that area as well as of their properties, who were reasonably suspected of kidnapping
or castrating children, or of committing offences under Section 377 of the IPC, or of abetting
the commission of any of the said offences. Under the Act, the act of keeping a boy under 16
years in the charge of a registered eunuch was made an offence punishable with imprisonment
up to two years or fine and the Act also denuded the registered eunuchs of their civil rights by
prohibiting them from acting as guardians to minors, from making a gift deed or a will, or from
adopting a son. Act has, however, been repealed in August 1949.
Other acts most commonly used against are Section 268, which deals with public nuisance,
Section 320, which deals with grievous hurt (used falsely against hijras for voluntarily undergoing
sex change) and the Immoral Trafficking Prevention Act.
On April 15, 2014, Justice KS Radhakrishnan Panicker and Justice A. K. Sikri delivered the
Supreme Court judgement giving third gender status to hijras in India. This was the outcome of
social interest litigation filed by the National Legal Services Authority, a state-constituted body
that fights on behalf of marginalized groups. They were granted status of socially and
economically backward class entitled to reservations in Education and Job, and also directed
union and state governments to frame welfare schemes for them. On 24 April 2015, the Rajya
Sabha passed The Rights of Transgender Persons Bill, 2014 guaranteeing rights and entitlements,
reservations in education and jobs (2% reservation in government jobs), legal aid, pensions,
unemployment allowances and skill development for transgender people. It also contains
provisions to prohibit discrimination in employment, prevent abuse, violence and exploitation of
transgender people. The Bill also provides for the establishment of welfare boards at the Centre
and State level, and for Transgender Rights Courts.
The Tamil Nadu state in India was the first state to introduce a transgender (hijra/ aravani)
welfare policy. According to the transgender welfare policy transgender people can access free
Sex Reassignment Surgery (SRS) in the Government Hospital (only for MTF); free housing
program; various citizenship documents; admission in government colleges with full scholarship
for higher studies; alternative sources of livelihood through formation of self-help groups (for
savings) and initiating income-generation programmes (IGP). Tamil Nadu was also the first state
to form a Transgender Welfare Board with representatives from the transgender community.
Despite these measures, transgenders in most cases face severe discrimination in society, from
being disowned by parents to being forced to begging, prostitution and dancing. Many a times
they are denied medical treatment.
Representation on Indian Television
In the 1990s, when Zee TV (a private channel owned by Essel Group) was launched, one of the
shows to include a homosexual male character was Tara. Petha, the character in question, was
essayed by actor Deven Bhojani as a sensitive guy who plays a pivotal role in the protagonist’s
life. It is interesting to note that the show was set in urban Mumbai and featured contemporary
women who indulged in ‘scandalous smoking, drinking, swearing and adultery’. Placing a
homosexual male within this setting seemed more suitable to the show’s producers than perhaps
placing in less urbane surroundings. This could perhaps be one of the reasons why many
conservatives today foolishly denounce homosexuality (or even ‘liberal working women’) as a
Western import, despite the fact that it was the British Raj which criminalized it in the first place.
Even modern films such as Dostana, Kal Ho Na Ho, Page 3 or Fashion either base homoerotic
content in foreign locations or in metropolis. Nevertheless, the character in Tara wasn’t depicted
as a male paramour (as in Page 3 or Fashion) or an individual with a voracious sexual appetite.
On the other hand, one can also say that the representation was limited to playing the heroine’s
sidekick, one that doesn’t have an independent life with own drives and ambitions. Another
show featuring homosexuality in the 90s was Zee’s Tanav.
In 2000s, the show Lipstick, again on Zee, depicted gay men as closeted husbands, adulterers
and paramours. This was set in a similar urban setting of the corporate world of 2 publishing
houses. This wasn’t a flattering portrayal but nevertheless a noteworthy one as a. it showed
married men with repressed homosexual longings, which happens quite often (most famously in
the case of Bruce Jenner, Olympian winner and husband to socialite Kris Jenner, who came out
as transgender after his divorce), many a times leading to bouts of depression and a failed,
sometimes abusive marriage b. it was the first television show in India to show two men in bed,
which may come as a culture shock (and understandably) for people who aren’t even
comfortable watching heterosexual couples in such situations on television.
Another show to show a homosexual character was Jassi Jaisi Koi Nahi, the Indian adaptation of
hit US telenovela series Ugly Betty. Again, a US import set in the glitzy world of fashion. What is
distinctive here is that the character is a part of the ensemble, having his own ambitions, desires
and weaknesses. Apart from being a supportive character who at first recoils at the sight of the
protagonist and then becomes a close companion as the series progresses, the show gives the
character (Mandy) a lot more role to play in the professional sphere of fashion.
In the early 2010s, many youth began including LGBT characters, especially gay characters, in
their narrative. Pyaar Ki Ek Kahaani, a show that ran between 2010 and 2011 on Star One, had
one ‘straight-seeming’ character turn out to be gay. But unfortunately, this subplot was
discontinued after 5 episodes and the actor quit due to falling ratings post the revelation. While
youth oriented shows flesh out larger roles for gay characters, another one being MTV’s Kaisi
Yeh Yaariyan (again featuring a flirtatious young man come out as gay to his friends and later to
his parents), the shows themselves are bland, lacking the depth in probing the inner lives of both
its heterosexual or non-heterosexual characters, focusing on the more superficial aspects of
romance, friendships and college drama with underwritten parts and underwhelming scripts.
A show that broke the tradition of placing LGBT characters in the most ‘comfortable’ media
space on television (i.e. fashion world, urban city, youth-centered) is Maryaada Akhir Kab Tak, a
primetime show that ran on Star Plus between 2010 and 2012. The character in question, a
closeted homosexual, has been described as ‘loving, endearing and not a laughing stock’ by the
producers. The setting here is a Haryanvi household, and the character’s mother is unaccepting
of her son’s homosexuality. The son’s marriage is inevitably a failure, and the series follows his
passionate encounters with his male lover. In one episode, the character kisses his male lover on
the forehead affectionately (in the case of Kaisi Yeh Yaariyan, the two characters kiss each other
on the cheeks). The show’s ratings did not fall after the reveal, thus showing that when depicted
in a more sensitive light, such portrayals get accepted by audiences. Sadly, the show could not let
go of Indian television’s habit of introducing twists, with the lover taking a villainous turn
towards the end. Another problem is the inherent homophobia in the producer’s statements that
the character is ‘not a laughing stock because he is a hero material’. To me, it implies that only
when a homosexual character displays affectations of a heterosexual male can he avoid becoming
a laughing stock. The toughest part for content creators is to etch out a believable LGBT
portrayal that avoids stereotyping its characters while also including elements embedded in their
culture. A well-rounded LGBT character is something fictional television in India hasn’t been
able to create, perhaps because it is mostly non-LGBT individuals (though LGBTQ allies) who
write the stories of LGBT individuals; this doesn’t come as a surprise considering that non-
LGBTQ people have since time immemorial been the ones whose writings about gender and
sexual orientation have been read and quoted, whose policies pertaining to LGBT rights and
anti-LGBT measures have been drafted (just as in the case of the Oscars recently, where many
many accused the white-majority committee of favouring white characters over people of other
color).
And what’s worse is that it is only gay characters who are given a space on fictional television,
with lesbians, transgenders, bisexuals and other people with non-normative gender and sexual
orientations hardly finding any role models they can identify with on television.
LGBT Prides
The first LGBT pride in India was held in Kolkata in July 1999. Since then, the community has
been struggling to gain equal rights but to no avail save for the temporary win in 2009. What
began in Kolkata in 1999 has become a national movement for equal rights and LGBT prides
have been happening all over the country rather than being limited to the metro cities. There
have been prides in Baroda, Bubaneshwar, Pune and Thiruvananthapuram amongst others over
the years.
Some popular slogans include ‘Out with 377’ (in reference to section 377), ‘Gay Rights are
Human Rights’, ‘Azaadi’ (freedom), ‘I’m gay that’s okay’.
LGBT in the Workspace
They face a lot of harassment in the workspace from their peers and co-workers once or if they
come out of the closet. According to a census conducted by the government in 2014, there are
4,90,000 transgenders in India and India has finally recognised transgenders as a third gender and
the states are slowly but definitely starting to treat them better. While it is difficult for
transgenders to find jobs, they were previously reduced to begging, dancing and prostitution.
The states are slowly but definitely starting to provide them with work, Tamil Nadu is at the
forefront of this revolution as it setup a welfare board for transgenders as far back as 2008, it has
employed Prithika Yashini as the first trans-woman sub-inspector in the country while some
private players are also showing a willingness to employ them as Padmini Prakash was employed
for the primetime show on Lotus News. Other states have followed suit as Maharashtra, Kerala
and West Bengal have also come up with policies for transgender welfare.
Companies such as Goldman Sachs, Godrej and IBM are also taking the lead in the private
sector as their policies aim to treat all employees equally, irrespective of sexual orientation, and
their benefits apply wherever possible to same sex partners, as they would to opposite sex
partners. They host training events to further educate their employees on how to be inclusive of
LGBT people in the workplace and they have an active LGBT Network which runs several
events throughout the year that are open to all of their people, helping to build greater visibility
around their LGBT population and any potential challenges they may face in the workplace.
Goldman Sachs have over 4000 employees in their Bangalore and Mumbai offices and over 300
employees have voluntarily signed up to be straight allies of the GS India LGBT. Lisa Donnelly,
Co-Head of the Operations Division in Bangalore, and MD Sponsor of the GS India LGBT
Network, Goldman Sachs says “We firmly believe that creating an inclusive environment for
people in all aspects of society is critical to the success of corporate India.”
Despite positive moves in some private companies, according to a survey conducted by
Community Business, LGBT communities still fear coming out at the workplace as they fear
name calling, the productivity of their work being affected and a fear of being the only one from
the community at the workplace holds them back from coming out. They tend to stay closeted at
work even if they are out of it with their family and friends.
Sources
1. The First Medicalization: The Taxonomy and Etiology of Queerness in Classical
Indian Medicine; Michael J. Sweet and Leonard Zwilling; Journal of the History of Sexuality
Vol. 3, No. 4 (Apr., 1993), pp. 590-607; Published by: University of Texas Press
2. The Lesbian and Gay Studies Reader; Henry Abelove, Michèle Aina Barale,
David M.
3. Section 377 and the Dignity of Indian Homosexuals; Alok Gupta; Economic and
Political Weekly; Vol. 41, No. 46 (Nov. 18-24, 2006), pp. 4815-4823
4. Decriminalising homosexuality in India; Geetanjali Misra; Reproductive Health Matters ;
Vol. 17, No. 34, Criminalisation (November 2009), pp. 20-28
5. Sexual Orientation and Gender Identity; David W. Austin, Paul E. Johnson and Mark
E. Wojcik; The International Lawyer Vol. 44, No. 1, International Legal Developments Year
in Review: 2009 (SPRING 2010), pp. 547-561
6. Unpacking Solidarities of the Oppressed: Notes on Trans Struggles in India; Gee
Imaan Semmalar; Women's Studies Quarterly; Vol. 42, No. 3/4, SOLIDARITY
(FALL/WINTER 2014), pp. 286-291
7. Writ Petition (Civil) NO. 400 of 2012 National Legal Services Authority vs Union and
Others Writ Petition (Civil) NO. 604 of 2013
8. Creating Inclusive Workplaces for LGBT Employees in India. (2012,
October). Community Business.
9. Cameron, D., & Berkowitz, B. (n.d.). The state of gay rights around the world. Retrieved
January 20, 2016, from https://www.washingtonpost.com/graphics/world/gay-rights/

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LGBTQ Place in the Indian Space (1)

  • 1. Current Issues and Ideas LGBTQ Place in the Indian Space Submitted by Sashank Kini (FSC2) Teja Kilaru (LE4) Submitted to Prof. Mochish An Introduction LGBTQ stands for Lesbian, Gay, Bisexual, Transgender and Queer, which together comprise a community that represents alternate sexual and gender identities converse to heterosexual (attraction to opposite sex) and cis-gender (i.e. when self-identity conforms with the gender that corresponds to their biological sex) identities. The term gained widespread prominence in United States (and eventually in the rest of the world) only in the 90s. Until the 60s there wasn’t a single non-derogatory term for non- heterosexuality, with the closest word alluding to the community being third gender back in 1860s. In the 60s and 70s, the terms homosexual, homophile and gay were successively used, mostly with negative connotations, to describe the sexual minority. The term lesbians was popularized in the 70s after they forged more public identities, and bisexual and transgender were soon recognized as legitimate categories within the larger minority community. Currently, the term LGBTQ also includes queer identities i.e. identities of people questioning their sexualities. The fundamental difference between LGB and T is that the first three terms refer to sexual orientation while the last refers to gender identity. Sexual orientation refers to how one is oriented in love or romantic relationships while gender identity refers to how one experience and expresses gender and biological sex. Gay Rights Around The World Gay Rights have been especially curtailed in a lot of countries that follow Sharia Law such as Afghanistan, Brunei, Iran, Iraq, Mauritania, Nigeria, Pakistan, Qatar, Somalia, Sudan and Yemen all have laws against homosexual acts which can lead to the death penalty. Not only is the death
  • 2. penalty not cruel enough to some of these countries on its own but a majority of these countries insist on stoning the offenders to death, thereby making it slow and painful. Saudi Arabia has laws against any sexual acts performed outside of marriage which means that there can be no homosexual acts as the citizens cannot marry people of the same sex. People engaging in sodomy can be sentenced to death irrespective of sexual orientation. Homosexual acts are illegal but not punishable by death in 66 countries. Most of these countries are from Africa with a few Asian countries that include India, Malaysia, The United Arab Emirates, Oman, Syria, Turkmenistan, Bangladesh, Myanmar and Bhutan. Guyana is the only country in both Americas where homosexual acts are illegal while Papua New Guinea is the only country in the Australian continent to deem homosexual acts illegal. The 24 countries that specifically allow gay marriage are Argentina, Belgium, Brazil, Canada, Denmark, England, Estonia, Finland, France, Iceland, Ireland, Luxembourg, Netherlands, New Zealand, Norway, Portugal, Scotland, Slovenia, South Africa, Spain, Sweden, Uruguay, Wales and The United States of America (The United States of America had 37 states that already deemed it legal before the Supreme Court ruled on June 26th 2015 that the constitution deemed it a right thereby taking it out of states’ hands.). There are some countries where homosexuality is legal but they also have noteworthy laws against homosexuality. Australia failed to pass a same-sex marriage bill in 2012, Russia decriminalized homosexuality in 1993 but under Vladimir Putin in 2013, the Parliament passed a series of measures limiting gay rights. These included a ban on adoption of Russian children by all couples in countries where same-sex marriage is legal and a ban on homosexual propaganda. Indonesia still has pockets such as South Sumatra and the Aceh province where homosexual acts are illegal despite the rest of the country deeming it legal. LGBTQ in India – A Historical Perspective Some ancient Indian texts and literature have dwelled on the subject of non-normative sexual orientation in various disciplines. It can be concluded based on the data below that despite a deprecatory attitude towards non-normative sexual orientation and a neutral to positive outlook towards unconventional gender orientation, neither Hinduism or Islam institutionalized the persecution of people with non-normative sexual or gender orientations, which only took place after the imposition of the Victorian moral code of conduct on Indian soil. In Medicine –
  • 3. There are a handful of terms used in the Indian medical literature that partially overlap with the semantic fields of modern terminology such as ‘homosexual’, ‘transvestite’ and ‘impotent’. The Sanskrit terms denotative of gender-variant individuals of both biological genders include ‘kliba’, sandha(ka) and ‘napumsaka’; depending on the context, they referred to a. gay men, lesbians, bisexuals and transvestites b. the impotent and those with sexual dysfunctions other than impotency c. those with sexual paraphernalia or unconventional sexual behaviour or d. the sexually anomalous, anatomically or physiologically. Both the Caraka and Susruta included 8 such conditions under gender or sexual anomalies or vikrti. . For the Indians, the atypical gender behaviour and coital role rather than sexual behaviour and preference was crucial in perceiving a person as queerly different. For example, in the medical literature, fellatio is mentioned as the cause of both venereal disease and impotence, attributing the fellator’s sexual activity to his need to compensate for deficiency of semen. The ‘effeminate’ condition in which a man with feminine behaviour plays the bottom (passive role) in sexual intercourse is also ascribed as a congenital condition thought to be due to the father’s having played the female role in the coitus that conceived the future effeminate male. The susruta considered anal intercourse as an acquired behaviour by ‘unchaste and others who treat their own anus as a man does woman’. Lesbians (narisandha) are considered by both Caraka and Susruta as those suffering from a disease of the female generative organ (yoniroga) in which the mother played the male role in coitus that bore the masculine lesbian; the texts have described them unflatteringly as ‘man-hating’, ‘breastless’ and ‘unable to menstruate’ . Regarding the third gender, early medical traditions state that many are capable of potency in certain circumstances. In a nutshell, although both Indian and Western medical systems viewed gender atypicality as a congenital pathology, Indians did not take the step of attempting to cure or confine queer people, as did Europeans and Americans, with medical sanction, from the late nineteenth to the middle of the twentieth centuries. In Legislature – The legal penalties for homosexual behaviour in the Indian traditional books are generally mild, and there is no evidence of their enforcement. Neither do Indian texts mention curing of the third gender who at times have been given special privileges by Indian rulers and credited with possession of special religious or magical potency. The Mughal rule was especially generous and renowned for their patronage of hijras. In addition, Muslim eunuchs, who dressed up as men and
  • 4. associated with women and were responsible for guarding the ladies of the harem, were very prevalent under the Mughal rule. The Arthasastra, an ancient Indian treatise on statecraft, mentions a wide variety of non-vaginal sexual practices which, whether performed with a man or a woman, were sought to be punished with the lowest grade of fine. While homosexual intercourse was not sanctioned, it was treated as a very minor offence, and several kinds of heterosexual intercourse were punished more severely. Sex between non-virgin women incurred a very small fine, while homosexual intercourse between men was sought to be censured by a prescription of a bath with one's clothes on, and a penance of "eating the five products of the cow and keeping a one-night fast"- the penance being a replacement of the traditional concept of homosexual intercourse resulting in a loss of caste (as prescribed in The Laws of Manu, the first formulation of the Hindu moral code). In Literature and Mythology – Kamasutra and other texts on erotics used the term trtiya prakrti or ‘the third nature’ for ‘a neuter or napumsaka bereft of either a masculine or feminine nature’. The text does assimilate them to the masculine or feminine poles of gender binarism, distinguishing those members of the third gender who look, dress and behave like women from those who look, dress and behave like men. Similarly, eighth century literary texts such as Satapathabrahmana did evince an awareness of the third/neuter gender The napumsaka is described as defective men possessing characteristics of both the sex who unable to procreate or menstruate. There is a misconception in many Indian (as well as Western) texts that the third sex always refers to actual eunuchs i.e. castrated men; as castration was regarded with disapproval and at times legally forbidden in Indian tradition prior to the Muslim rule, eunuchs were rarely found in classical India. A rare (although highly dismissive) portrayal of the third gender occurred in the play Ubhayabhisarika by Vararuci, in which the character Sukumarika was depicted as a high-class prostitute, vain, capricious, lustful and histrionic who possessed wide buttocks and could not menstruate or become pregnant, pegging her as a disorderly female. While many Hindu texts condemned homosexuality, Vatsyayana, author of Kamasutra, believed that ‘in all things connected with love, everybody should act according to the customs of his country, and his own inclination’ asking a man to consider (oral and anal sex) only whether the act ‘is agreeable to his nature and himself’.
  • 5. Female-female sexuality is viewed as a situational behaviour found among otherwise normative women in sexually segregated environment such as women’s quarters. The lack of attention given to lesbianism can be attributed to male author’s greater anxiety about those transgressing customary male gender roles. The History of Section 377 The Indian Penal Code was an important experiment in the larger colonial project to apply the collective principles of common law in British India. Section 377 of the Indian Penal Code was authored by Lord Macauley, the President of the Indian Law Commission, in 1860, as part of Britain’s efforts to impose Victorian values on its biggest colony. Similar laws were introduced in most other colonies, including the United States. The law reads as follows – ‘Section 377 – Unnatural Offenses – Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall be liable to fine. Explanation – Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section’. The objective of sodomy has remained unclear and unsubstantiated. The offence was introduced into British India with a presumption of a shared Biblical morality. Historians have speculated that ‘there were concerns that not having wives would encourage the Imperial Army to become replicas of Sodom or Gomorrah’ or to pick up ‘special Oriental vices’. Whether this vice was a sexual activity, or also a person associated with the sexual activity, was witnessed in the case of Queen-Empress vs Khairati. Here, a eunuch was kept under constant supervision by the police and arrested upon ‘being found singing dressed as a woman’. The only incriminating evidence was the distortion of the orifice of the anus into the shape of a trumpet, a mark of a habitual sodomite. Here, what’s noteworthy is that the law was equally about the person most likely to commit the office apart from the offense itself (i.e. those who gave an appearance of a homosexuals and transsexuals). Although not explicitly defined, ‘carnal intercourse againstthe order of nature’ has been taken by various Indian courts in the intervening years to include anal sex, oral sex, and in some cases non-procreative sexual acts, such as mutual masturbation. Although heterosexual couples also
  • 6. partake in these activities, the weight of the law over the centuries has fallen on homosexual sex. Even if sex is consensual, the voluntary provision makes it illegal. Homosexuality soon became associated with perversity and often linked with bestiality and paedophilia. In India, the difficulty of proving that ‘carnal intercourse against the order of nature’ has taken place in private has meant that the law has only infrequently been applied in court judgements. Achieving a prosecution requires catching two men carrying out the sex act, which usually takes place in private. Since 1930, there has been only one prosecution of adults having same-sex consensual sex. Of the 50 reported judgements under Section 377, 30% were cases of sexual assault or abuse of minors, with the remainder involving non-consensual sex between adults. However, although few cases against consenting adults have gone to trial, the existence of Section 377 and the threat of possible arrest, have allowed the authorities to discriminate against homosexuals and organizations working with them. In one of the defining moments of gay rights law in 2009, the High Court of Delhi struck the Act and declared it unconstitutional. In its ruling, the High Court emphasized that ‘moral indignation, howsoever strong, is not a valid basis for overriding individuals’ fundamental right of dignity and privacy’. In our scheme of things Constitutional morality must outweigh the argument of public morality, even if be the majoritarian view’. In striking down the discriminatory provisions of the Penal Code, the High Court acknowledged that ‘The criminalization of homosexuality condemns in perpetuity a sizable section of society and forces them to live their lives in the shadow of harassment, exploitation, humiliation, cruel and degrading treatment at the hands of the law enforcement machinery… A provision of law branding one section of people as criminal based wholly on the State’s moral disapproval of that class goes counter to the equality guaranteed (under the Indian Constitution).’ However, on 11 December 2013, the Supreme Court of India upheld the constitutionality of Section 377 of the IPC, and stated that the Court was instead deferring to Indian legislators to provide the sought-after clarity. In its judgment the Supreme Court stated "We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile nonvaginal sex involving minors... Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality."
  • 7. On 28 January 2014, Supreme Court dismissed the review petition filed by Central Government, Naz Foundation and several others, against its December 11 verdict on Section 377 of IPC. In January 2015, National Crime Records Bureau (NCRB) said that according to data collected, 778 cases were filed under Section 377 of IPC and 587 arrests were made in 2014 until October after the Supreme Court verdict. Situation of Transgenders during and Post Colonial Rule During the British rule, legislation was enacted to supervise the deeds of Hijras/TG community, called the Criminal Tribes Act, 1871, which deemed the entire community of Hijras persons as innately ‘criminal’ and ‘addicted to the systematic commission of non-bailable offences’. The Act provided for the registration, surveillance and control of certain criminal tribes and eunuchs and had penalized eunuchs, who were registered, and appeared to be dressed or ornamented like a woman, in a public street or place, as well as those who danced or played music in a public place. Such persons also could be arrested without warrant and sentenced to imprisonment up to two years or fine or both. Under the Act, the local government had to register the names and residence of all eunuchs residing in that area as well as of their properties, who were reasonably suspected of kidnapping or castrating children, or of committing offences under Section 377 of the IPC, or of abetting the commission of any of the said offences. Under the Act, the act of keeping a boy under 16 years in the charge of a registered eunuch was made an offence punishable with imprisonment up to two years or fine and the Act also denuded the registered eunuchs of their civil rights by prohibiting them from acting as guardians to minors, from making a gift deed or a will, or from adopting a son. Act has, however, been repealed in August 1949. Other acts most commonly used against are Section 268, which deals with public nuisance, Section 320, which deals with grievous hurt (used falsely against hijras for voluntarily undergoing sex change) and the Immoral Trafficking Prevention Act. On April 15, 2014, Justice KS Radhakrishnan Panicker and Justice A. K. Sikri delivered the Supreme Court judgement giving third gender status to hijras in India. This was the outcome of social interest litigation filed by the National Legal Services Authority, a state-constituted body that fights on behalf of marginalized groups. They were granted status of socially and economically backward class entitled to reservations in Education and Job, and also directed union and state governments to frame welfare schemes for them. On 24 April 2015, the Rajya
  • 8. Sabha passed The Rights of Transgender Persons Bill, 2014 guaranteeing rights and entitlements, reservations in education and jobs (2% reservation in government jobs), legal aid, pensions, unemployment allowances and skill development for transgender people. It also contains provisions to prohibit discrimination in employment, prevent abuse, violence and exploitation of transgender people. The Bill also provides for the establishment of welfare boards at the Centre and State level, and for Transgender Rights Courts. The Tamil Nadu state in India was the first state to introduce a transgender (hijra/ aravani) welfare policy. According to the transgender welfare policy transgender people can access free Sex Reassignment Surgery (SRS) in the Government Hospital (only for MTF); free housing program; various citizenship documents; admission in government colleges with full scholarship for higher studies; alternative sources of livelihood through formation of self-help groups (for savings) and initiating income-generation programmes (IGP). Tamil Nadu was also the first state to form a Transgender Welfare Board with representatives from the transgender community. Despite these measures, transgenders in most cases face severe discrimination in society, from being disowned by parents to being forced to begging, prostitution and dancing. Many a times they are denied medical treatment. Representation on Indian Television In the 1990s, when Zee TV (a private channel owned by Essel Group) was launched, one of the shows to include a homosexual male character was Tara. Petha, the character in question, was essayed by actor Deven Bhojani as a sensitive guy who plays a pivotal role in the protagonist’s life. It is interesting to note that the show was set in urban Mumbai and featured contemporary women who indulged in ‘scandalous smoking, drinking, swearing and adultery’. Placing a homosexual male within this setting seemed more suitable to the show’s producers than perhaps placing in less urbane surroundings. This could perhaps be one of the reasons why many conservatives today foolishly denounce homosexuality (or even ‘liberal working women’) as a Western import, despite the fact that it was the British Raj which criminalized it in the first place. Even modern films such as Dostana, Kal Ho Na Ho, Page 3 or Fashion either base homoerotic content in foreign locations or in metropolis. Nevertheless, the character in Tara wasn’t depicted as a male paramour (as in Page 3 or Fashion) or an individual with a voracious sexual appetite. On the other hand, one can also say that the representation was limited to playing the heroine’s sidekick, one that doesn’t have an independent life with own drives and ambitions. Another show featuring homosexuality in the 90s was Zee’s Tanav.
  • 9. In 2000s, the show Lipstick, again on Zee, depicted gay men as closeted husbands, adulterers and paramours. This was set in a similar urban setting of the corporate world of 2 publishing houses. This wasn’t a flattering portrayal but nevertheless a noteworthy one as a. it showed married men with repressed homosexual longings, which happens quite often (most famously in the case of Bruce Jenner, Olympian winner and husband to socialite Kris Jenner, who came out as transgender after his divorce), many a times leading to bouts of depression and a failed, sometimes abusive marriage b. it was the first television show in India to show two men in bed, which may come as a culture shock (and understandably) for people who aren’t even comfortable watching heterosexual couples in such situations on television. Another show to show a homosexual character was Jassi Jaisi Koi Nahi, the Indian adaptation of hit US telenovela series Ugly Betty. Again, a US import set in the glitzy world of fashion. What is distinctive here is that the character is a part of the ensemble, having his own ambitions, desires and weaknesses. Apart from being a supportive character who at first recoils at the sight of the protagonist and then becomes a close companion as the series progresses, the show gives the character (Mandy) a lot more role to play in the professional sphere of fashion. In the early 2010s, many youth began including LGBT characters, especially gay characters, in their narrative. Pyaar Ki Ek Kahaani, a show that ran between 2010 and 2011 on Star One, had one ‘straight-seeming’ character turn out to be gay. But unfortunately, this subplot was discontinued after 5 episodes and the actor quit due to falling ratings post the revelation. While youth oriented shows flesh out larger roles for gay characters, another one being MTV’s Kaisi Yeh Yaariyan (again featuring a flirtatious young man come out as gay to his friends and later to his parents), the shows themselves are bland, lacking the depth in probing the inner lives of both its heterosexual or non-heterosexual characters, focusing on the more superficial aspects of romance, friendships and college drama with underwritten parts and underwhelming scripts. A show that broke the tradition of placing LGBT characters in the most ‘comfortable’ media space on television (i.e. fashion world, urban city, youth-centered) is Maryaada Akhir Kab Tak, a primetime show that ran on Star Plus between 2010 and 2012. The character in question, a closeted homosexual, has been described as ‘loving, endearing and not a laughing stock’ by the producers. The setting here is a Haryanvi household, and the character’s mother is unaccepting of her son’s homosexuality. The son’s marriage is inevitably a failure, and the series follows his passionate encounters with his male lover. In one episode, the character kisses his male lover on the forehead affectionately (in the case of Kaisi Yeh Yaariyan, the two characters kiss each other on the cheeks). The show’s ratings did not fall after the reveal, thus showing that when depicted
  • 10. in a more sensitive light, such portrayals get accepted by audiences. Sadly, the show could not let go of Indian television’s habit of introducing twists, with the lover taking a villainous turn towards the end. Another problem is the inherent homophobia in the producer’s statements that the character is ‘not a laughing stock because he is a hero material’. To me, it implies that only when a homosexual character displays affectations of a heterosexual male can he avoid becoming a laughing stock. The toughest part for content creators is to etch out a believable LGBT portrayal that avoids stereotyping its characters while also including elements embedded in their culture. A well-rounded LGBT character is something fictional television in India hasn’t been able to create, perhaps because it is mostly non-LGBT individuals (though LGBTQ allies) who write the stories of LGBT individuals; this doesn’t come as a surprise considering that non- LGBTQ people have since time immemorial been the ones whose writings about gender and sexual orientation have been read and quoted, whose policies pertaining to LGBT rights and anti-LGBT measures have been drafted (just as in the case of the Oscars recently, where many many accused the white-majority committee of favouring white characters over people of other color). And what’s worse is that it is only gay characters who are given a space on fictional television, with lesbians, transgenders, bisexuals and other people with non-normative gender and sexual orientations hardly finding any role models they can identify with on television. LGBT Prides The first LGBT pride in India was held in Kolkata in July 1999. Since then, the community has been struggling to gain equal rights but to no avail save for the temporary win in 2009. What began in Kolkata in 1999 has become a national movement for equal rights and LGBT prides have been happening all over the country rather than being limited to the metro cities. There have been prides in Baroda, Bubaneshwar, Pune and Thiruvananthapuram amongst others over the years. Some popular slogans include ‘Out with 377’ (in reference to section 377), ‘Gay Rights are Human Rights’, ‘Azaadi’ (freedom), ‘I’m gay that’s okay’. LGBT in the Workspace They face a lot of harassment in the workspace from their peers and co-workers once or if they come out of the closet. According to a census conducted by the government in 2014, there are 4,90,000 transgenders in India and India has finally recognised transgenders as a third gender and
  • 11. the states are slowly but definitely starting to treat them better. While it is difficult for transgenders to find jobs, they were previously reduced to begging, dancing and prostitution. The states are slowly but definitely starting to provide them with work, Tamil Nadu is at the forefront of this revolution as it setup a welfare board for transgenders as far back as 2008, it has employed Prithika Yashini as the first trans-woman sub-inspector in the country while some private players are also showing a willingness to employ them as Padmini Prakash was employed for the primetime show on Lotus News. Other states have followed suit as Maharashtra, Kerala and West Bengal have also come up with policies for transgender welfare. Companies such as Goldman Sachs, Godrej and IBM are also taking the lead in the private sector as their policies aim to treat all employees equally, irrespective of sexual orientation, and their benefits apply wherever possible to same sex partners, as they would to opposite sex partners. They host training events to further educate their employees on how to be inclusive of LGBT people in the workplace and they have an active LGBT Network which runs several events throughout the year that are open to all of their people, helping to build greater visibility around their LGBT population and any potential challenges they may face in the workplace. Goldman Sachs have over 4000 employees in their Bangalore and Mumbai offices and over 300 employees have voluntarily signed up to be straight allies of the GS India LGBT. Lisa Donnelly, Co-Head of the Operations Division in Bangalore, and MD Sponsor of the GS India LGBT Network, Goldman Sachs says “We firmly believe that creating an inclusive environment for people in all aspects of society is critical to the success of corporate India.” Despite positive moves in some private companies, according to a survey conducted by Community Business, LGBT communities still fear coming out at the workplace as they fear name calling, the productivity of their work being affected and a fear of being the only one from the community at the workplace holds them back from coming out. They tend to stay closeted at work even if they are out of it with their family and friends. Sources 1. The First Medicalization: The Taxonomy and Etiology of Queerness in Classical Indian Medicine; Michael J. Sweet and Leonard Zwilling; Journal of the History of Sexuality Vol. 3, No. 4 (Apr., 1993), pp. 590-607; Published by: University of Texas Press 2. The Lesbian and Gay Studies Reader; Henry Abelove, Michèle Aina Barale, David M.
  • 12. 3. Section 377 and the Dignity of Indian Homosexuals; Alok Gupta; Economic and Political Weekly; Vol. 41, No. 46 (Nov. 18-24, 2006), pp. 4815-4823 4. Decriminalising homosexuality in India; Geetanjali Misra; Reproductive Health Matters ; Vol. 17, No. 34, Criminalisation (November 2009), pp. 20-28 5. Sexual Orientation and Gender Identity; David W. Austin, Paul E. Johnson and Mark E. Wojcik; The International Lawyer Vol. 44, No. 1, International Legal Developments Year in Review: 2009 (SPRING 2010), pp. 547-561 6. Unpacking Solidarities of the Oppressed: Notes on Trans Struggles in India; Gee Imaan Semmalar; Women's Studies Quarterly; Vol. 42, No. 3/4, SOLIDARITY (FALL/WINTER 2014), pp. 286-291 7. Writ Petition (Civil) NO. 400 of 2012 National Legal Services Authority vs Union and Others Writ Petition (Civil) NO. 604 of 2013 8. Creating Inclusive Workplaces for LGBT Employees in India. (2012, October). Community Business. 9. Cameron, D., & Berkowitz, B. (n.d.). The state of gay rights around the world. Retrieved January 20, 2016, from https://www.washingtonpost.com/graphics/world/gay-rights/