Queer Rights: Sec 377 Is Down, but Urgent Reforms Are Required for Equality and Dignity

Only government intervention can ensure that members of the queer communities can access basic services like housing, insurance and health care without obscuring their identities.

An Indian citizen is presumed to be entitled to a life of rights, pride, and dignity. Yet the grassroots realities of India’s queer community (LGBTQ+) reveal otherwise. The constitutional curb on a queer person’s right of expression, personal choice to identify and to be identified as, or to choose their romantic partners stays under (socio) legal translucence.

The Indian constitution recognises both the right to privacy and the right to a life of dignity as aspects of Article 21. The phrase “human dignity” was included in the preamble of the Indian Constitution because its drafters understood the value of ‘pride’, ‘morale’ and respectability in people’s personal choices and ‘privacy’. Still, the understanding of these constitutional values, envisioned by the drafters, fail to apply practically even now, in the nation’s multi-fragmented, ethnically diverse plurality, which reflects a kaleidoscope of social structures and marginalised identities.

Over the last month, a team of researchers from the Centre for New Economics Studies’ Visual Storyboards and Swabhimaan  interviewed numerous queer individuals, romantic couples, intimate partners, and social organisations working closely on LGBTQ+ community issues across the cities of Pune, Delhi, Bangalore and Mumbai to understand the nuances of the queer community’s daily life challenges, legal curbs and feelings surrounding the queer ether in India.

In our short ethnographic study, we also explored the different sides of legislative debates as well as the sharp convergence of dialogues surrounding the uncertainties that confront the Indian queer. A series of video essays were produced here that encapsulate the crux of perspectives offered by respondents while explaining their living experience as queers in India.

Legislative (historical) context

In India, the increasing outward expression of homophobia dates to the pre-Independence era modelled on the Buggery Act of 1533.

The British Raj were successful in imposing and institutionalising a system of rules that forbade homosexual practice in their territories through colonial administration. While many laws were re-cast and structured with community consensus post-Independence, the rights of same-sex couples were controversially declared “legally unsustainable”, further exacerbating the stereotypes and discrimination against the community.

Section 377 of the Indian constitution did not initially respond in any way to Indian society’s values or customs. Only British Judeo-Christian beliefs from that era were represented in it. After tremendous grassroots-level community action and legal battles over decades, Section 377 was decriminalised in September 2018 and specific sexual acts between consenting adults were constitutionally accepted. While this was an essential stride in queer liberation, it did little for social acceptance and did not allow for the community to de-closet their lives with dignity and pride. Indeed, while the month of June is celebrated as ‘Pride Month’ all over the globe including India, most members of the LGBTQIA+ community expressed chronic dissatisfaction towards the socio-legal domain that currently envelopes their life-surroundings in urban India.

The pride puzzle

For most queer individuals in India, ‘pride’ comes and goes with the celebration in June, which is recognised as “pride month”. In this month every year, individuals from the various LGBTQIA+ communities and their allies come together to shed light on the long and tumultuous history of resistance while celebrating queer existence. With massive parades, community festivals, awareness events, rainbow dipping streets and logos of corporations, the queer community is visibly spoken about and commemorated.

As Riya succinctly notes, “Pride is all about accepting a bit of the other, so everything else can be considered normal. Pride is becoming more about visibility as well. A lot of it is about love is love.”

Sayantika, a queer individual advocating for rights, recalls, “The first pride parade was ‘euphoric’, momentous in terms of coming-out to myself and to feel a sense of belonging.”

Similarly, for many others, these events hosted by queer-led organisations have been resource friendly and have aided them to create a network of like-minded individuals and find life-long friends and even romantic partners.

For a community in which people have to hide their identities and lead dual lives to enjoy the luxury of basic services, these parades and events serve as a safe space to be ‘out and proud’. Queer people feel empowered to break free of the norms, traditions, expectations, and desires that are imposed upon them by the upper-class cisgendered heterosexual male narrative in society.

Rainbow washed celebrations

As the month of June comes to an end, the community witnesses the rollback of rainbow washed commercials and marketing gimmicks.

‘Rainbow Washing’ is a term for a company that publicly affirms its support for the queer community even as it secretly engages in actions that could be harmful to those who identify as LGBTQIA+. Brands use this marketing tactic to increase sales by projecting an image of inclusivity.

“All these companies are doing is literally following a trend of rainbow capitalism and I don’t see a reason for them to particularly be celebrated for that. I’ve yet to see a company that does this to help the cause at the end of the day. Most just want your money and extra for the same products just because they slapped a rainbow on top of it,” comments Isha.

Tia has a different take on it. “Rainbow washing used to be a transactional and mutual thing. Some companies did this during the 1990s. I read a study on it which looked at gay men and how these communities tended to only consume brands like Levis. These brands advertised for these demographics. This was socially rewarding because these brands were genuinely putting money toward supporting the queer community. At that point of time, they were putting money towards AIDS campaigns and protective sex campaigns. So rainbow washing, in this sense, was important,” she says.

While many people from the urban LGBTQIA+ communities prefer to hide their sexual identities in the workplace, some others clarify that being ‘out’ at work depends on where they work.

“From what I’ve heard from my friends and people who work in these places, a lot of creative corporate workplaces are overwhelmingly supportive,” observes Jai. “Also, a lot of company rules follow the regulations of Western companies, which have certain antidiscrimination policies and there is a lot of protection provided. Of course there is potential for more stability, but I feel the real problem of rainbow washing lies with the government sector, which is a huge employment sector in India.”

Queer politics in corporate spaces is fuelled by a profit-oriented mindset. While there are diversity and inclusion rules, their efficiency cannot be maximised until there is holistic implementation of grievance redressal mechanisms. Organisations must reassess their positions in relation to the larger queer movement and structurally analyse their ongoing struggles.

“As you get more comfortable in your identity and as you’re growing up, you realise how integral rainbow washing is becoming to a marketing campaigns,” says Pooja. ” They try to be blatantly visible about it and the queer community can see it and they get to get annoyed by it. Some companies that are putting money towards harming queer communities use rainbow washing tactics on their platforms, which gets toxic.”

Queering hurdles

As June ends, queer folks find themselves in ruthlessly underappreciated battles for their rights once again. They constantly experience prejudice and marginalisation in all aspects of life. For instance, same-sex couples are discriminated against when accessing social protection programmes like health care, insurance, housing spaces, etc. due to a lack of inclusive state-sanctioned mechanisms.

“A lot of the problems come with renting places together,” shares Muskaan, a respondent for this study. “Those in same-sex relationships have to hide it again, even though the stigma is removed, because landlords are very cruel. The institution isn’t really gonna allow it. Everything is kind of in this bubble of a patriarchal and social divide which makes it even more difficult.”

Most organisational spaces and communities are centred on creating supportive networks, while issues like housing rights or job discrimination against private parties seldom receive attention.

While some queer organisations are trying, governmental reform of the legal system is required. There is a need for legislation that fights prejudice against the queer community without harming it.

Reet, the founder of Queerspot, an organisation working for the community, explains, “Every day is a struggle. If you want to move into another place, you’ll be constantly scared that your landlord or your roommate is homophobic.”

Lack of housing and resources that cater to the particular needs of LGBT persons is only one of the many issues that homeless LGBT people face.

Even when a couple or person is financially equipped, inherent homophobia in society at large makes housing a very challenging undertaking.  As Nick, one of the study’s respondents, says, “While renting apartments, I don’t reveal my identity because I don’t feel safe. The idea of lesbians excites people, so we conceal our relationship under the name of cousins or sisters.”

The sexuality of queer women is not recognised; instead, they are viewed as mere objects, putting on a performance for the amusement of those watching, particularly straight men. Fetishisation converts these women to objects desired solely for consumption by a privileged class.

Queer intersectionality

While urban LGBT voices heard on several online and offline forums play a crucial role in LGBT advocacy, they only touch on a portion of the many obstacles the communities face. Contention arises within the community itself when members are compelled to consider how different forms of diversity may impact their own experiences within a group. This results from a lack of awareness of the impact of intersectionality in identity. For example, lesbian couples will still be vulnerable to patriarchy since differences and intersectionalities aren’t completely acknowledged in queer politics.

In general, society tends to prefer wealthy, ‘upper-caste’ males who could pass as heterosexual. This became visible in the early decades of the struggle for LGBT rights, when individuals were able to advance and develop the LGBT rights agenda as a result of their privileged background.

Owing to this privilege, this elite group continues to dominate much of the discourse around the LGBT rights movement. Generally speaking, the main events and those with the most appeal and level of participation take place in settings designed for gay, rich, and ‘upper-caste’ or white men.

“If you think of the American queer movement, when it came to accessibility, white gay men were much more ‘acceptable’ than black trans women,” says Shreeya, a student at O.P Jindal Global University. “What is considered acceptable has always been a part of class, race and caste. And I feel pride month at times continue to propagate this. Intersectionality is very important in this sense. A lot of this comes also from straight people trying to capitalise on the rainbow month.”

There is a severe power disparity within the LGBTQIA+ communities and oppressors frequently take the lead in the narrative of different movements, which must be addressed. When discussion surrounds civil rights like same-sex marriage, this representation forms the narrative. For the advancement of the entire community, inclusion of all queer groups is required, as is the taking of more direct action.

“The deployment of article 377 always depended on someone’s class and privilege. So, I feel that the way we celebrate the queer community now and through an intersectional lens, yes, it was a step in the right direction, but still a minute step with thousand more ahead of this,” explains Shreeya.

Marital rights: ‘for’ or ‘against’?

A substantial number of community members are seeking to increase legal representation for same-sex marriages. On the other side, some are also asking why legalising them is necessary when two people may currently cohabit without any issues. It all boils down to a personal decision. But the door should always be open. As Jai notes, “A marriage between any two people who want to get married is a very important thing to be allowed because it is a union of their love. I don’t understand the segregation of individuals within the queer community who aren’t allowed to marry someone that they choose to. There are a lot of individuals who are also very religious and see marriage as something that should happen and if they want to, why shouldn’t they be allowed to? Marriage is affirming for their personal identity, for their relationship and also it generally makes them feel safer in being a queer couple outside their home.”

Some people want to be married for their own personal happiness, some want to demonstrate their love to family and society. Meanwhile, others don’t want to get married at all as they do not want to associate with an arguably heteronormative construct of state-sanctioned marriage. Moreover, legal barriers don’t surround just the marital possibility but many other aspects of family planning.

“The idea of queer marriage rights and reducing it to partners is very heteronormative,” says Shruti. “A lot of people who want the ability to marry each other should be given that right. But when we focus on this issue so much, we are falling into heteronormative dualism. I do see the worth in fighting for queer marriage, but I personally disagree with it.”

Marriage and family law, alongside property law, inheritance laws, adoption rights, and others are all influenced by the institution of marriage and family since it is so deeply ingrained in society. Denying the LGBTQ communities access to a wide range of opportunities without any valid justification other than alleged cultural significance is clearly unjust.

“It is very important to provide a policy for the community so that they can adopt kids and change the surrogacy bill as well. While it is difficult for a single man to adopt, it is impossible for a gay man to adopt,” says Jayant.

A way forward…

As the voices of roughly 10% of India’s queer population continue to echo in uncertainty, it becomes pertinent to challenge the beliefs that prevail in the basis of laws and the socio-political atmosphere in the country. After four years of the decriminalisation of homosexuality and more than two decades of litigation for the community’s basic rights, they still continue to be treated as second class citizens. There is strong desire to preserve tradition by our law makers, but this will only rob these marginalised voices a stage to present their demands.

Multiple respondents have suggestions. For one, they suggest the rigorous screening of corporations to include round the year inclusivity, not just capitalising on the idea of pride month. Further, legislative scrutiny to roll back the paternalistic approaches of employers, landlords and government employees in the accessibility of basic amenities would bring down discrimination significantly.

Legislative changes in marital rights are much-debated and controversial, and would require an abundance of community action and legislative pushback. However, immediate action is needed to ensure that members of the queer communities can access social safety services like housing, insurance, and health care.

To categorise and marginalise a certain community on the basis of their sexual orientation and gender identity strips these individual of their basic right to equality. Even after tremendous efforts, a life of dignity and equality cannot be implemented by activists and organisations alone unless there is scope for legal reform.

Names of all respondents have been changed to protect their identity. All photo credits belong to Jignesh Mistry.  

Deepanshu Mohan is Associate Professor of Economics and Director, Centre for New Economics Studies (CNES), Jindal School of Liberal Arts and Humanities, OP Jindal Global University. Tavleen Kaur is Senior Research Assistant with Centre for New Economics Studies (CNES), Jindal School of Liberal Arts and Humanities, OP Jindal Global University. Sakshi Chindaliya is Assistant Lecturer with Jindal School of Liberal Arts and Humanities, a Senior Research Assistant (Research Projects Team Lead) & Visual Storyboards Co-Team Lead with Centre for New Economics Studies (CNES), OP Jindal Global University. Jignesh Mistry is a Senior Research Analyst and Visual Storyboard Team Lead with Centre for New Economics Studies (CNES), Jindal School of Liberal Arts and Humanities, OP Jindal Global University. Ruhi Nadkarni and Ashika Thomas are both Research Analysts with CNES. 

This story is produced by Centre for New Economics Studies (CNES) Visual Storyboard Team. Video Essays are accessible from here. Swabhimaan’s special magazine edition on this story is accessible from its website here. The authors would like to especially thank all the respondents, social organisations, and the entire Swabhimaan Team (Shreeya, Isha, Ruhi and Tavleen) for their kind assistance in making this study possible. The authors also thank Rajan Mishra for his kind assistance with all the video essays edited and produced from this story.