Author : Pooja Thayat, Student at Symbiosis Law School, Nagpur
Human sexuality is complex. To understand the multidimensional nature of sexuality, one needs to understand distinctions between desire, behavior and identity. The fact that all these 3 may not always be in harmony causes the whole complexity in understanding sexuality of a human. Medicine and psychiatry assign terms like homosexual, heterosexual, bisexual to refer to this complexity. Whereas our current vocabulary contains the words lesbian, gay, bisexual etc… which basically focus on identity of that person.
Medicine and science continue to argue upon the contributions of nature and psychosocial factors in play while determining sexuality. Despite this argument legitimately speaking the Government of India is yet to take an official stand on incorporation of measures to reduce the prejudice within society. A positive and non-judgmental attitude will go a long way. Professional societies can lend a helping hand here by spreading awareness and normalizing things.
UNDERSTANDING THE DISTINCTION
LGBTQ is an acronym for Lesbian, Gay, Bisexual, Transgender, Queer, these are the terms used to describe a person’s sexual orientation. Until recently society did not recognize any gender other than males and females. Anyone who showed the slightest deviation from these set genders were stigmatized, made fun of and ostracized from society itself. It was deemed abnormal. Today society has grown to be more accepting and open minded, people are recognizing the third gender as a normal biological creation, but not everyone truly understands what exactly is the difference between each of these terms. Thus, let us take a look into what sets apart each term.
- A lesbian is a woman who harbors physical, romantic or emotional attraction towards another woman.
- Gay is a term used to describe a person who harbors feelings or attraction towards another person of the same
- A Bisexual is a person who has the capacity to have feelings for either their own gender or to those of a different gender or both. People experience this attraction in different ways through their life, one need not have to have sexual experience in order to identify themself as a bisexual.
- Transgender is an umbrella term for those people who do not identify with the gender they were born with, i.e, the gender identity of this person differs from the sex with which they were born … for eg: A person may be born as a boy but he does not feel anything like the masculinity of a boy, he has very different feelings or attributes from what is expected of the male sex. Many transgender people are prescribed hormone tablets by their doctors to align their gender identity with their physical self. Some undergo surgeries while some do not take any steps at all and like to live just the way they are.
- The last term is queer, this is again a wide term used by people who are not exclusively heterosexual and who feel that LGB &T are too limiting to describe their sexual orientation. They also call themselves as genderqueer. Even though people use this term, it is not yet universally accepted even within the LGBT community.
INDIA AND HOMOSEXUALITY
The concept of homosexuality was recognized and even immortalized in ancient India. The temples of Khajuraho depicted erotic sculptures of two men. One of the 4 canonical sacred texts of Hinduism says Vikriti Evam Prakriti – which translates to unnatural is also natural.
- Another Indian text Kamasutra dedicates an entire chapter on erotic homosexual behavior. History indicates that homosexuality in ancient India was not necessarily considered inferior and was very much prevalent and recognized throughout the Indian subcontinent.
- The book ‘Tritiya-Prakriti: the people of the third sex’ contains years of information about ancient Sanskrit texts and ancient India, proving that the third gender was not only know, but also widely accepted.
- Citing a chapter from Kamasutra, the book mentions the existence of lesbians (known as ‘swarinis’). The book also talks about the swarinis often married and raising a child together. And them along with the child, was accepted by the ordinary community.
- Male partners are also mentioned in the books, known as ‘Klibas’ which originally mean impotent men because of their homosexual tendencies instead of mating and reproducing with females.
- Coming to more evidences, there is the ‘Krittivasi Ramayan’, which talks about a tale of two women making love to each other in order to conceive a child. The tale goes that King Sagara of Ayodhya was desperate to maintain to maintain his bloodline after losing most of his sons to the wrath of sage Kapila. But before he could impregnate his wives, he died. After his death there needed to be heir, thus a sage made a potion and gave it to the king’s widows. It is said that the potion made the queens make love to each other which resulted in the birth of the heir of the Kingdom.
So now we see that ancient India was way ahead of its time. It was the colonial rule which incorporated homophobia and changed mentalities and practices. The britishers enacted laws shunning the third gender. In 1884 a court in India prosecuted a hijra for their sexual identity. We had section 377 enshrined in our constitution, a parting gift from our colonial rulers, this section criminalized homosexuality in India. Until finally on 6th Sep 2018 a 5-judge constitutional bench struck down this colonial era law.
Homosexuals and others of the LGBT community were shunned, hated and punished for their sexual orientation back in the days. They have been through a lot of hardships to reach this era where they are finally being recognized and treated equally. In 1924 a German immigrant, Henry Gerber founded the 1st Gay rights organization in the United States. He and his small group published a few issues of Newsletters named ‘Friendship and Freedom’, country’s first gay interest newsletter. At that time it was disbanded by the police but 90 years later the US Government designated Gerber’s house as a National Historic Landmark. After Gerber’s attempts and a few others, gay rights movement saw stagnation for the next few decades. The world got drawn into world wars and so much more that LGBT individuals couldn’t/t bring the spotlight onto themselves. This time of stagnancy was not a pretty scene, during world War II, the Nazis held homosexual men in concentration camps, branding them with the infamous Pink triangle badges which were a symbol for sexual predators. Then in the year 1952, President Dwight Eisenhower signed an order banning gay people or anyone guilty of ‘sexual perversion’ rom having federal jobs. This ban went on for 20 years.
Social movements on acceptance and rights of those who identify themselves as LGBT began as a response to years of persecution by church, state and other authorities. In 1961, Illinois became the first state to do away with its anti-sodomy laws, decriminalizing homosexuality. Movements and activism now grew, this increased visibility and helped make progress by the 1970s. For instance, in 1977 the New York Supreme Court ruled granting permission to a transgender woman to play in the Open tennis tournament. Harvey Malik a gay-right activist came to be elected as San Francisco city’s supervisor and in 1978 the Pride Parade was launched with its newly designed rainbow flag as a symbol for the LGBTQ. More than 1,00,000 people took part in the parade. In 2004, Massachusetts became the first state to legalize gay marriage, and this first of a kind marriage took place on May 17,2004. In1992 The district court of Columbia passed a law allowing gay and lesbian couples to register as domestic partners, thereby granting them rights to marriage. In 2003 another state, Texas struck down its anti-sodomy laws. That was the start of decriminalizing homosexual relations throughout the nation. from there on America has seen advancement in its attempts of providing rights to its transgender community. In 2009 Barack Obama passed laws supporting homosexuality and by 2016 the U.S Military lifted its ban on transgender people serving openly.
By 1970s and 80s gay political organizations proliferated through their strength, size and success, starting from the US and Europe they spread to other parts of the globe. Groups such as Human Rights campaign, National Gay and Lesbian Task force etc and a dozen similar organizations started gathering force to have legal and social reforms in their favor. In 1978, the International Lesbian and Gay Association was founded in England. Now headquartered in Brussels it plays an important role in promoting International human rights and fighting discrimination against Gay, lesbian, bisexual and transgender people.
- LGBTQ RIGHTS AT UN LEVEL
The UN has taken some steps to support the LGBTQ people. Let’s have a look:
- In 2011, UNHRC expressed concern over hate crimes happening to the community and commissioned a study focused on LGBTQ issues
- In 2012, the U.N. General Assembly (UNGA)passed a resolution on extrajudicial killings that included crimes motivated by the victim’s sexual orientation and gender identity.
- In July 2013, the U.N. High Commissioner for Human Rights launched the UN’s free and equal campaign to promote understanding of the human rights of LGBTQ people.
- In August 2015, the U.N. Security Council held its first ever meeting to address the human rights of LGBT people under ISIS.
INDIAN COMMUNITY OF HOMOSEXUALS TODAY
Recognition and rights for the LGBTQ community had started to take its steps globally, and from the stepping stone of the victorious ruling in the case of Navtej Singh Johar v UOI in 2016 India opened up to this change as well and gave rights to its LGBT population.
- Section 377 of IPC criminalized consensual sex between persons of the same sex.
- The petitioner Navtej Singh, a person of the LGBT community challenged this section on the grounds that it violates many other constitutional rights of his and the people of his community.
- The case revolved around rights of the third gender and also the constitutional validity of section 377.
- Finally, in the SC unanimously ruled that the section be struck down as it restricts a person from expressing his sexual identity and his intimate choices with respect to partners.
Traditionally recognized as Hijras or third gender community, they were given voting rights by the government. By 2010 LGBT people in India increasingly started gaining acceptance in big cities. After the victorious judgment passed by SC there were pride parade organized in many states of the country. These parades drew a large amount of people who danced and marched as a mark of celebration. In 2018 Kolkata had its pride march, in 2019 Bhubaneshwar hosted another. By the striking down the Colonial era law which criminalized homosexual relations, the Indian trans community finally got a voice. However, striking down of section 377 has only decriminalized consensual homosexual sex, there are still many more rights and legal protections to be given to them. In India there is yet to come laws regarding anti-discrimination, public job reservations for LGBT individuals, same sex marriages and even child adoption by a third gender couple. Also, LGBT people are banned from openly serving in the Indian Armed Forces.
India has definitely come a long way, but it also has a long way to go more. As an aware and compassionate citizen of the country, one should understand if not accept the plight of the third gender population. They should be treated equally as any other peers of ours. Being born into a gender different from the societal standard is not a curse, just biology at work. we may be born into different caste, race or sex but at the end we all are human, thus treatment of someone should not be based on their differences but keeping in mind the basic emotion of humanity. Also, we need to focus on people’s humanity rather than their sexual orientation.
 Sanjana Ray ‘Indian Culture does recognise Homosexuality, Let us count the ways’ https://www.thequint.com/voices/opinion/homosexuality-rss-ancient-indian-culture-section-377 21 September 2020
 Shashi Tharoor ‘On Gay Sex India has assumed an ancient position’ https://www.scmp.com/week-asia/politics/article/2164299/gay-sex-india-has-assumed-ancient-position-read-kama-sutra 20 September 2020
 Michael Levy ‘Gay Rights Movement’ https://www.britannica.com/topic/gay-rights-movement 5 September 2020
 Matt Mullen ‘The Pink triangle: From Nazi Label to Symbol of Gay Pride’ https://www.history.com/topics/gay-rights/history-of-gay-rights 5 September 2020
 ‘First legal same-sex marriage performed in Massachusetts’ (2004 May 17) https://www.history.com/this-day-in-history/first-legal-same-sex-marriage-performed-in-massachusetts 5 September 2020
 Michael Levy ‘The Gay rights movement since the Mid 20th Century’ https://www.britannica.com/topic/gay-rights-movement 5 September 2020
 The Editors of Encyclopaedia Britannica ‘International Lesbian, gay, bisexual, trans and intersex association https://www.britannica.com/topic/International-Lesbian-Gay-Bisexual-Trans-and-Intersex-Association 5 September 2020
 W.P (Crl) No. 76 2016