Section 377: The fight for LGBT rights has just begun
In a historic verdict, the Supreme Court on Thursday decriminalised homosexuality between consenting adults by declaring Section 377, the penal provision which criminalised gay sex, as ‘manifestly arbitrary’.
In 1884, an unusual case came up in the then colonial Allahabad high court. For months, the police had been tailing a person named Khairati on the suspicion that he was a “eunuch” after being tipped off that on a visit to his ancestral village, he was found dancing and singing dressed as a woman.
The police arrested him on the suspicion that he was a “habitual sodomite” and subjected him to a medical examination, which recorded that the examinee showed the “characteristic mark of a catamite (a Victorian term for a man kept for homosexual desires) and noted that the anal orifice was “shaped like a trumpet”.
He was prosecuted under Section 377 of the Indian Penal Code, becoming the first recorded case under the law and set the ground for numerous similar convictions in colonial India stemming from suspicion, rumours and anonymous tip-offs.
One hundred and thirty four years later, India finally repealed the colonial law that criminalised same-sex relationships. The four concurring judgments touches upon the fundamental rights of LGBT people to live with dignity, get access to healthcare, and how constitutionalism trumped majoritarian morality.
But what is unlikely to change is the social life of sexuality, which ensured Khairati’s walk, voice and gait marked him as a criminal to the police, and which continues to inscribe deviance on to the bodies of people who look, or talk, or walk differently. It doesn’t take a law to do that; the mere presence of prejudice is enough, which is why transgender people are booked under a variety of laws, including those against assembly in public and beggary, and not just Section 377.
This public-ness of how we inhabit our sexuality, and gender, is key to understanding how the law affects LGBT people, and who among us are marked as subjects that the law recognises — simply put, it is not just the letter of the law, but its social life that hinges on who looks like a criminal and who the police thinks, like Khairati, is likely to be one.
As long as the focus remains narrowly on the letter of the law, and not on broader civil rights, its benefits are likely to accrue to a few — those who can then claim respectability and not be affected by the social life of the law. But for queer people who do not draw power from multiple social locations, who don’t look and feel respectable, or those who cannot enter the regimen of privacy and private spaces, the mere repeal is likely to mean little.
This is not a new scenario. Anti-sodomy laws have been repealed across the world in the past 40 years, and the trajectory is pretty uniform: a move towards the right to marriage, and inheritance. But this period has also seen increasingly white LGBT folk dissociate from the rest of the community, and cash in on the race and class capital their social locations provided. Indeed, the black and indigenous queer activists have complained how LGBT activism in the West has come to be increasingly defined by white suburban morality, whose respectability criterion has no place for deviants who look like Khairati.
This focus on the personal (marriage, love) and not the structural (education, employment, health) has proved devastating for the more marginalised within the LGBT spectrum. 2017 was the deadliest year for transgender people in the United States, and almost two-thirds of the victims killed were non-white. In the United Kingdom, a June 2017 study found more than half of all transgender students in schools had tried to commit suicide, clearly underlining that progressive legislation had done little to erase prejudice against the most vulnerable.
The experience with transgender rights advocacy in India holds out a few lessons. When the Supreme Court recognised “third gender” in 2014, it was widely lauded but a subsequent battle for rights and protections has been uphill. The moment trans rights activists moved from the private sphere to the public, and demanded reservation, protection and anti-discrimination statutes in jobs, education and public places, their efforts were scuttled. But the community recognised that their fount of oppression doesn’t lie inside the house, or in themselves, but in the streets, classrooms and offices — and, for that, they are still fighting.
In the twilight of Section 377, this struggle is an important reminder of what the law can do, and what it has no power over. Now that the law has finally recognised queerness, it is crucial we look at fights not just in the courtrooms for marriage, but in the classrooms, and streets, for dignity. Only then can we hope to prevent a repeat of 1884.
