From the margins to the mainstream
The human rights of lesbian, gay, bisexual, transgender and intersex people (LGBTI) are coming into sharper focus around the world, with important advances in many countries in recent years, including new legal protections. But tackling discrimination against LGBTI people is not the sole preserve of governments and lawmakers.
I was a young college student in 2001 and had a wild rebellious streak in me — something that wanted to see meaningful work for the LGBTI community. It was around this time that we heard that police had raided the offices of the Bharosa Trust and the Naz Foundation International in Lucknow as they carried out their duties of educating the community on AIDS awareness and HIV prevention. Accused of running a ‘gay sex racket’, four staff members were arrested, allegedly for obscenity, conspiracy, and for aiding and abetting an offence under Section 377 of the Indian Penal Code, a colonial-era law under which gay sex is categorized as an ‘unnatural offence’. The workers were detained for 47 days, sometimes without drinkable water, clean food, or sanitation facilities.
This act of police brutality was in a way India’s ‘Stonewall’ moment — referring to the riots at the Stonewall Inn, New York City in 1969 which paved the way for the gay liberation movement. In India, the resulting community mobilization and strategic litigation led to reading down of Section 377 in July 2009 by the Delhi High Court. But that was by no means the end of the story. The judgement was overturned in 2013 by the Supreme Court which then also dismissed a review plea. In 2017, the Supreme Court said privacy is a fundamental right, which opened the door for fresh pleas to decriminalize gay sex. In a historic decision on 6th September 2018, the court ruled that gay sex was no longer a criminal offence and that discrimination on sexual orientation is a fundamental violation of rights.
It was a historic day. The media was full of vivid images from outside the courtroom and in the lawns of the Supreme Court, LGBTI people cheered and some broke down in tears as the ruling was handed down. The United Nations welcomed the verdict, saying; “the UN in India sincerely hopes that the court’s ruling will be the first step towards guaranteeing the full range of fundamental rights to LGBTI persons.”
This verdict has been a much needed and welcome victory, but it does not necessarily mean that LGBTI people like me in India are fully free or perceived as equal among their fellow citizens — and it underscores how much work remains to be done in the rest of the world to overturn antiquated and repressive anti-LGBTI laws.
What does this mean for me and the millions of others like in me in South Asia and other parts of the world when criminalization was or is still a reality? LGBTI communities in India have become highly effective in the pursuit of human rights. Communities have the potential to serve as gatekeepers for the advancement of human rights, such as was seen in the reading down of Section 377, a direct result of grass roots efforts. There are invaluable tactical and strategic lessons to be learned from this process that could inform communities at large, the government, policy makers, and all those invested in curbing HIV and promoting human rights.
As in most parts of the world, it is primarily the silence and the resulting ignorance around sexuality that has fueled vicious attacks, discrimination and prejudice against sexual minorities in India. HIV has broken the silence, pushed sexuality ‘out of the closet’ and into the realm of dialogue and discussion. It has necessitated interventions that have challenged arbitrary laws like Section 377 and bigoted social mindsets. Every effort must be made to maintain candid discussions on sexuality: courts of law, the media, parliament, state legislatures, and schools must advocate that sexual orientation, gender identity and gender expression are human rights.
Since world leaders adopted the Sustainable Development Goals in 2015, member states of the United Nations have committed to leaving no one behind in their efforts to end poverty and inequality. The issue of discrimination on the ground of sexual orientation has been neglected for too long. It is an issue with a large legal dimension. Educated leaders of all countries, including lawyers, should take a lead. Almost 60 years of reform experience is available. What is at stake, ultimately, is respect for the human rights and human dignity of citizens everywhere — without exceptions and without discrimination.
I will continue to play my role.
Zainab J Patel is National Manager Health and Human Rights, UNDP India. She is a transgender woman who has been involved in several key human rights interventions in India.