Social Implications of the Section 377 Verdict: Have We Really Progressed?
“I am what I am, so take me as I am.”
It is no secret that if someone did not have the “privilege” to be born as a cisgender heterosexual male, they are most definitely still struggling to be treated like a person. They are often told that they exist to please, to conform, and to eventually die without living. It is unfathomable how we as humans have not yet learned the elemental art of questioning the norms that had their genesis in primitive minds. We fail to understand that thwarting a community’s growth has a ripple effect and sooner or later the oppressors would have to recompense. The idea is to comprehend what we have not yet understood and to not be afraid of it. The belief that billions of people can be categorized objectively is a repetitive joke that was never funny. There is a multi-hued spectrum that exists, and let me break it to you, it is far from being black and white.
The Buggery Act of 1861
When our ancestors fought for independence, they only got rid of the colonizers and not the mindset they left behind. That is exactly why the inapposite Section 377 was allowed to exist even after the British got out of India. Section 377 was introduced in 1861 by the British, on lines of the Buggery Act passed by the British Parliament in 1533. It criminalized sexual activities “against the order of nature”, including homosexual activities. It invalidated the very foundation of the existence of the LGBTQIA+ community. The social implications of this act were more harrowing than the premise of it and are prevalent even today. People have been conditioned to have heteronormative attitudes which remain unchallenged in many cases. When finally some powerful people woke up and decided to do their bit to let justice prevail, some sweet summer children considered it to be the emancipation of an entire marginalized community.
The historic Section 377 verdict
Two years ago today a five-judge Constitution bench led by then CJI Dipak Misra decriminalized homosexuality by partially striking down the colonial-era provisions of Section 377 of the Indian Penal Code (IPC). In the poetic judgement, it was stated that -
“The emphasis on the unique being of an individual is the salt of his/her life. Denial of self-expression is inviting death. Irreplaceability of individuality and identity is a grant of respect to self. This realization is one‘s signature and self-determined design. One defines oneself. That is the glorious form of individuality.”
Challenges continue to exist even after the verdict
This was a historic step in the right direction unequivocally but it is hard for a judgement to liberate people from the shackles of prejudices that are deeply ingrained in the societal mindsets. Combating a mentality that led to the inception of inhumane conversion therapies and corrective rapes is an exhausting and incessant task. Corrective rape is a hate crime which involves sexual violence towards a person because of their sexual orientation or gender identity. The intention behind the practice is to “cure” a queer person of the illness that their identity is considered to be. Even parents arrange “corrective rape treatments” for their children. It is a staggering manifestation of discrimination and sheer homophobia.
Another prevalent yet undocumented form of cruelty is conversion therapy. It is an umbrella term for multiple traumatizing and invalid pseudo-scientific “treatments" aimed at changing a person’s sexual orientation or gender identity. These can range from counselling, medication, institutionalization and hormone injections to rare but extreme methods like electro-convulsive therapy and hormonal castration. On 12 May this year, 21-year-old Anjana Harish ended her life months after narrating her ordeal in a video. She stated that she was subjected to conversion therapy by her family, was heavily sedated and was injected over 40 times, leaving her mentally and physically damaged. Hence, the torture that she was put through during an attempt to cure her of bisexuality, cannot be ruled out as the reason behind her suicide. Even after the decriminalization of homosexuality, conversion therapy has not been banned in India. It is a practice that rejects the identity of an individual and lands them in mental health facilities. The physical harm that it causes is accompanied by immense psychological damage.
Homophobia is a form of barbarism that impedes growth on multiple fronts. It creates unnecessary stigma and does not leave any opportunity for discourse around alternate sexualities. This flawed ideology leads to lack of representation and wastage of potential of the queer community and ignores its voice and needs. Finding employment in the formal sector is still a far fetched dream for non-heterosexual and trans identities. The concept of a safe working environment is non-existent and queer individuals are frequently misgendered and harassed.
Physical and verbal abuse
Furthermore, the queer community faces violence at home and people end up leaving their families. They are physically and verbally abused in public spaces, which restricts them from living a dignified life. Even in the post Section 377 strikedown era, life for LGBTQIA+ individuals is a battle against exploitation and sometimes a struggle within oneself. Identifying outright homophobia is not as tough as understanding microaggressions. There are problems within problems that need to be seen and tackled. Performative activism is extremely common and can be spotted when the so-called progressive allies fetishize lesbian women. Till the time “gay” is a slur and straight men feel emasculated on being approached by other men, we are not even getting the basics right. There have been numerous cases of violence and disrespect by the powerful.
Transgender Persons’ (Protection of Rights) Bill 2019
This brings us to the transphobic Transgender Persons’ (Protection of Rights) Bill 2019. On 25 November 2019, Rajya Sabha passed this bill without approaching anyone from the transgender community. The bill is a violation of human rights and aims at erasing identities, according to many individuals. The problematic aspects of the bill require transgenders to approach a District Magistrate to obtain a certificate stating that they are transgender. It is only after this that they will be able to change their gender to either Male or Female on government-issued identification cards. The process for obtaining this certificate is to show proof of sex reassignment surgery, which is not an easily affordable procedure and is not desired by all transgender people. There is no clear definition of how the officials would examine a person and their documents. There is no mention of the kind of surgery that is expected because there is more than one type. The bill not only violates one's privacy, but it also takes away their right to self-identify. Hence, it contradicts the 2014 NALSA (National Legal Services Authority of India) judgement by the Supreme Court.
Need to undo the conditioning
Such instances just call attention to the fact that a wave of change in society is more important than the legality of something. People need to be sensitized constantly as well as educated in the literal sense of the word. It is not a Herculean task to let people decide who they desire to be. The more strenuous and diabolical task is to harbour and pass on generational hatred for a set of people who are as human as anyone else. Homosexuality is not synonymous to insanity but homophobia definitely is. The biggest mistake of our race was to assume that we were superior and hence we continue to define what is natural and morally correct. Nature is above us and bigger than we can ever be. Whoever claims to understand its enigma has not understood their limitations.
The way forward
In a welcome move, the Orissa High Court on Wednesday, 26 August, allowed a same-sex couple to continue their live-in relationship, opining that queers are entitled to their rights irrespective of their gender identity or sexual orientation. The High Court further stated that the State will provide all kinds of protection to the couple, including the right to life, right to equality before the law and equal protection of the law. While things seem positive sometimes, there is still a long, dangerous road that has to be traversed. From education to policy, everything needs to be reformed. Inclusivity should be at the core of every step taken and decision made. Homophobic attitudes need to be constantly challenged and gradually destroyed. A judgement without holistic change is just an empty promise.
Existing mentally in the Stone Age is a homophobe’s choice and homophobia is not innate. It is a learned attitude and our future generations need protection from it. Queer friendly policies, adequate representation, bringing queer art into the mainstream and simple acceptance are few things that are required to dismantle narratives formed by decades of conditioning. If we still need to fight to even love who we love, we are light years away from actual progress. Seeing and listening to people is the only way forward. A person should be able to be who they are while growing into whatever they wish to be without answering questions and justifying their existence.
By Urvi Tripathi (Guest Writer)
Urvi Tripathi is a third-year History student in Hindu College, University of Delhi. She enjoys reading Reddit threads but has only recently begun picking up a newspaper. She loves Psychology, Literature and Bojack Horseman. A fact about her that she wants people to know but no one asks her is that she is a trained scuba diver.