The Supreme Court decriminalised homosexual activity between consenting adults in a landmark 5-0 judgement on Thursday. And we now move to the next stage. What about gay rights? Gay sex is decriminalized, but gay rights and discrimination towards LGBT+ people still are in a grey zone.
This outcome in itself does not expand to wider issues of acceptance and genuine equality encompassed in the concepts of companionship, either via civil unions or marriage, including inheritance, family health insurance, hospital visitation rights and so many other less romantic yet important aspects of life that contribute to a holistic picture of domesticity with regards to gay rights.
Possible Backlash:
Backlash to progressive steps against discrimination has been seen in the developed world as well. Anti-sodomy laws impacted gay people in so many southern states of the USA, including Georgia, until the Supreme Court struck down the Texas law thereby negating all of the others.
Then, it wasn’t until years later that gay marriage became the law of the land, once again thanks to an enlightened US Supreme Court ruling and supported by a government that sought to expand civil liberties. But these and other socio-cultural gains ended up triggering a violent counter-reaction, the fruits of which are being manifested under the current Trump administration, with a new ultra-conservative jurist about to be approved by the Senate for a lifetime appointment at the Supreme Court – in all probability endangering civil rights gains, including those that apply to women, ethnic minorities and LGBTIQ people.
A possible backlash is possible from religious and ultra right congregations of all varieties in India too.
Unsolved Socio-legal Challenges:
"In protecting consensual intimacies, the Constitution adopts a simple principle: the state has no business to intrude into these personal matters. Nor can societal notions of heteronormativity regulate constitutional liberties based on sexual orientation," the Supreme Court verdict notes.
But this judgment, though very welcome, stops from criminalizing any act of discrimination by the State, its agencies like the Police, or any citizen towards homosexual partners. SC recognizes the freedom to make sexual choices, but stops short form declaring this as rightful love that which cannot be legally questioned by any institution, social or legal. There is no legal clarity on demands of marriage among homosexual couples, which still remains unsocial and illegal.
Ramdev, the yoga teacher and entrepreneur has voiced his views against homosexuality repeatedly. The Hindutva ideologue and BJP leader BP Singhal, among others, openly opposed gay rights. In 2009, soon after the earlier Delhi high court ruling against Section 377, Suresh Kumar Kaushal, along with the All-India Muslim Personal Law Board, Trust God Missionaries and Krantikari Manuwadi Morcha, filed a petition in favour of re-criminalising gay sex. So, the religious persecution of gay rights remains. It will be interesting to note now how religious institutes react to demands of homosexual couples to marry through the religious process, which they resisted after the earlier Delhi High Court ruling.
Justice had earlier many times fallen victim to social prejudices and intolerance towards sexual minorities. Today, SC ruling alters it to an extent, but social stigma remains. The landmark verdict received political kudos from some centrist and leftist parties, but not from the BJP, or the Muslim right wing. The RSS accepted the judgment cautiously and noted homosexuality was unnatural, and strongly opposed same sex marriage.
Subramanyam Swami even found US conspiracy behind LGBT rights movement in India! Herein lie the biggest unfinished challenge of mainstreaming sexual choice diversity.
LGBTQ+ community in India has had to battle prejudice, indifference and cowardice of politicians cutting across many political parties who saw no reason to remove from the statute books a law that was a clear violation of the right to equality enshrined in the constitution.
Interestingly, as the SC decriminalised homosexuality, Joyita Mondal, a transgender judge in Lok Adalat in West Bengal, was joyous, but also cautious. She is today looking beyond Section 377 towards the broader issues of adoption, employment and elections concerning the LGBTQ community. It was about time sexual minorities were granted rights legally and with social sanction over time on par with other citizens. The next steps need to be openness in employment for the transgender community and contesting assembly and general elections.
Justice Chandrachud of this Bench says human sexuality cannot be reduced to a "binary formulation". He asks the medical community to sensitise itself about rights of the LGBTQ community, instead of trying to change what is not a disease, extending the battle against discriminating mindset, as the medical community has a huge impact on public perceptions on this.
The SC in this ruling noted that the choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation of citizens. The extended interpretation of this is that any sexual relationship between two consenting adults is not the subject of State or social inquiry.
This by interpretation also means that no discrimination towards LGBT+ persons can be done in regards to employment or any socio-economic benefits provided other requisites for the same are in place.
The Global Lessons on Gay Rights:
Homosexuality is still subject to the death penalty in many countries, particularly in the Middle East and Africa, while others allow gay marriage and adoption.
South Africa is a bright example, being the sole nation in the African continent to allow gay marriage, which it legalised in 2006. It also allows adoption, medically assisted procreation and surrogacy for homosexuals.
In Middle East, Israel leads the way in terms of gay rights, recognising same-sex marriages that are performed elsewhere although not allowing such unions in the country itself. Gay couples can adopt children. Lebanon is also more tolerant than other Arab countries.
Much of Asia is tolerant of homosexuality. Taiwan is set to become the first place in the region to allow gay marriage after its highest court ruled in May 2017 that preventing same-sex unions was unconstitutional and gave authorities two years to legalise them.
In 2001, the Netherlands became the first country in the world to allow gay and lesbian couples to marry in a civil ceremony.
Fifteen European countries have followed, including Britain -- although not Northern Ireland, France and Germany, with Austria due to join in next year. Several western Europe countries also allow same-sex couples to adopt children and 10 permit medically assisted procreation for lesbian couples.
The incomplete tasks of gay rights and non-discrimination in India need to be taken up in right earnestness, next, taking cues from the progressive nations of the world and their approach to this issue.
