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Sexual Minorities in India

Overview and Purpose

1. To understand the Common Perceptions, Myths as well as reality about Alternate


Sexuality.
2. To appreciate certain basic concepts on sexuality and its correlation with
nature,culture, religion, law, medicine, health and several other concepts.
3. To empathise with the experiences and discriminations faced by the sexual
minorities.
4. To know about the legal status of sexual minorities in India particularly in the light of
the latest judicial developments.
5. To think and develop some concrete steps to be undertaken for creation of a more
tolerant and inclusive society.
I. BACKGROUND

This paper at first discusses the meaning and nature of the term ‘sexual orientation’.
Different people have different understanding of this concept. Many myths and ill
perceptions have been prevailing in people at large. Talking about India in particular, a vast
majority of the people either does not know or do not want to knowmuch about Sexual
Minorities. Many suffer from Homophobia (fear of homosexuals). Consequently, they arrive
at conclusions like: 1) People of Alternate Sexuality does not existin India, dismissing it as a
phenomenon of the industrialised world ; 2) They exist but condemn it as a capitalist
aberration, a concern too individualistic to warrant attention in a poor country like ours; 3)
Many others label it a disease to be cured; 4) An abnormality to be set right, and 5) Most
certainly, it is a crime that must be punished. Considering these ill conceived notions, it
becomes extremely important to understand the reality of Sexual Orientation from a
rational, logical and scientific perspective.
II. CERTAIN KEY QUESTIONS

In such confusing and misunderstood scenario, certain questions arise:

1. What is sexuality? Is it always natural or can it also be acquired?

2. Is "gay" a Western concept, an upper class obsession?

3. Why does Homosexuality become a cause for ridicule? What are the human rights
violations experienced by gay men and lesbians?

4. What do Indian culture, heritage, religion and literature say about it?

5. How does the modern Indian state attempt to regulate homosexuality ?

6. What is its status in law and legal system?

7. What is its status in medical science?

8. Can a right to privacy be read into the Indian Constitution and deployed to protect
homosexual sexual acts?

This paper attempts to answer these basic yet crucial questions in simple and lucid manner
so that every layman understands this concept and is also able to analyse and introspect
what should be the correct approach that the society must adopt in order to be more
inclusive, tolerant and peaceful society.

III. CORE CONCEPTS OF SEXUAL ORIENTATION AND GENDER

The American Psychological Association elaborates the concept of the Sexual Orientation in a
paper “Answers to Your Questions for a Better Understanding of Sexual Orientation &
Homosexuality”1in the following words:

American Psychological Association, Answers to Your Questions: About Sexual Orientation and Homosexuality
1

(2008) available at: http://www.theldsfamilyfellowship.org/wp-


content/uploads/2013/01/Answerstoyourquestions_apabrochure.pdf
Sexual orientation refers to an enduring pattern of emotional,
romantic, and/or sexual attractions to men, women, or both
sexes. Sexual orientation also refers to a person’s sense of
identity based on those attractions, related behaviors, and
membership in a community of others who share those
attractions. Research over several decades has demonstrated
that sexual orientation ranges along a continuum, from
exclusive attraction to the other sex to exclusive attraction to
the same sex. However, sexual orientation is usually discussed
in terms of three categories: heterosexual (having emotional,
romantic, or sexual attractions to members of the other sex),
gay/lesbian (having emotional, romantic, or sexual attractions
to members of one’s own sex), and bisexual (having emotional,
romantic, or sexual attractions to both men and women). This
range of behaviors and attractions has been described in
various cultures and nations throughout the world. Many
cultures use identity labels to describe people who express
these attractions. In the United States the most frequent labels
are lesbians (women attracted to women), gay men (men
attracted to men), and bisexual people (men or women
attracted to both sexes). However, some people may use
different labels or none at all.

This definition explains that the Sexual Orientation of an individual is a broad concept
covering various aspects such as emotional, romantic as well as sexual behavior towards men
or women or both sexes. It also highlights that sexual orientation ranges along a continuum,
from exclusive attraction to the other sex to exclusive attraction to the same sex.

Another important aspect that is highlighted in this paper is that sexual orientation is
different from gender. Gender as such includes the biological sex (i.e. physical and
anatomical aspects of a human body) as well as the social gender (i.e. the cultural norms that
define the behavior). In this context, the paper compares and contrasts the sexual
orientation and gender as follows2:

Sexual orientation is distinct from other components of sex and


gender, including biological sex (the anatomical, physiological,
and genetic characteristics associated with being male or female),
gender identity (the psychological sense of being male or
female),* and social gender role (the cultural norms that define
feminine and masculine behavior). Sexual orientation is
commonly discussed as if it were solely a characteristic of an
individual, like biological sex, gender identity, or age. This
perspective is incomplete because sexual orientation is defined in
terms of relationships with others. People express their sexual
orientation through behaviors with others, including such simple
actions as holding hands or kissing. Thus, sexual orientation is
closely tied to the intimate personal relationships that meet
deeply felt needs for love, attachment, and intimacy. In addition
to sexual behaviors, these bonds include nonsexual physical
affection between partners, shared goals and values, mutual
support, and ongoing commitment. Therefore, sexual orientation
is not merely a personal characteristic within an individual.
Rather, one’s sexual orientation defines the group of people in
which one is likely to find the satisfying and fulfilling romantic
relationships that are an essential component of personal identity
for many people.

Supra
2
IV. KINDS OF SEXUAL ORIENTATION

Generally speaking, Sexual Orientation is usually discussed in terms of three categories:

1. Heterosexual : having emotional, romantic, or sexual attractions to members of the other


sex),

2. Homosexual: having sexual relations with or sexual attraction to people of the same sex.

a. Gay – Men to Men

b. Lesbian – Women to Women

3. Bisexual (having emotional, romantic, or sexual attractions to both men and women).

Apart from these categories, according to Bulletin of the World Health Organization
(2018)there can be other categories like:

4. Transgender: People whose gender identity and expression does not conform to the
norms and expectations traditionally associated with their sex at birth. It includes
individuals:

a. who have received gender reassignment surgery,

b. who have received gender-related medical interventions other than surgery (e.g.
hormone therapy) and

c. who identify as having no gender, multiple genders or alternative genders.

5. Intersex: An individual with both male and female biological attributes (primary and
secondary sexual characteristics).

6. Gender non-conforming or gender variant or queer: A person who challenges (or is not
conforming to) prevailing gender norms and expectations or to heterosexual norms.
V. VARIOUS PERSPECTIVES ON SEXUALITY

Social Perspective

Societal attitudes toward homosexuality vary greatly in different cultures and different historical
periods. Some sanction same-sex love and sexuality, while others may disapprove of such
activities in part. The heterosexual attitude may also vary with respect to their gender, age,
social status or social class.3In many societies, Heterosexual people suffer from Homophobia. It
encompasses a range of negative attitudes and feelings toward homosexuality or people who
are identified or perceived as being lesbian, gay, bisexual or transgender (LGBT). It has been
defined as contempt, prejudice, aversion, hatred or antipathy, may be based on irrational fear,
and is often related to religious beliefs.Recognized types of homophobia include institutionalized
homophobia, e.g. religious homophobia and state-sponsored homophobia, and internalized
homophobia, experienced by people who have same-sex attractions, regardless of how they
identify.

The United Nations for LGBT Equality4 enlists some of the gross human rights violations as
follows: i) Violent attacks, ranging from aggressive verbal abuse and psychological bullying to
physical assault, beatings, torture, kidnapping and targeted killings;

ii) Discriminatory criminal laws, often used to harass and punish LGBT people, including laws
criminalizing consensual same-sex relationships, which violate rights to privacy and to freedom
from discrimination;

iii) Discriminatory curbs on free speech and related restrictions on the exercise of rights to
freedom of association and assembly, including laws banning dissemination of information on
same-sex sexuality under the guise of restricting the spread of so-called LGBT “propaganda.”

iv) Discriminatory treatment, which can take place in a range of everyday settings, including
workplaces, schools, family, homes and hospitals

Stephen O. Murray, Homosexualities, University of Chicago Press (2000)


3

United Nations for LGBT Equality, “Factsheet International Human Rights Law and Sexual Orientation &
4

Gender Identity” available at: https://www.unfe.org


Without national laws prohibiting discrimination by third parties on grounds of sexual
orientation and gender identity, such discriminatory treatment continues unchecked, leaving
little recourse to those affected.

Religious Perspectives on Homosexuality

The Abrahamic religions of Judaism, Christianity and Islam, have traditionally forbidden sodomy,
believing and teaching that such behavior is sinful.

According to Orthodox Judaism, homosexual acts aresinful. 5


However, many
denominationswithin Judaismspecially in North America and UK have started accepting
homosexuality on the same basis as heterosexuality or either that traditional laws against
homosexuality are no longer binding or that they are subject to changes that reflect a new
understanding of human sexuality.6

Within Christianity, there are a variety of views on sexual orientation and homosexuality.
Historically, from the earliest days, Christians have taught that same-sex acts are contrary to
Biblical teachings.7 However, the trend from 20th Century onwards till now shows that many
Christian denominations vary in their position, from condemning homosexual acts as sinful,
through being divided on the issue, to seeing it as morally acceptable.8

Further,all major Islamic schools disapprove of homosexuality. Islam views same-sex desires as
an unnatural temptation; and sexual relations are seen as a transgression of the natural role and
aim of sexual activity. Islamic teachings (in the hadith tradition) condemn same-sex
consummation.

Coming to the Bahaifaith, it limits permissible sexual relations to those between a man and a
woman in marriage. Believers are expected to abstain from sex outside matrimony. However,
Bahai teachings also take account of human frailty and call for tolerance and understanding in

Bishop Soto tells NACDLGM, 'Homosexuality is Sinful' (2008)


5

Liberals recognise committed same-sex partnerships available at:


6

http://www.somethingjewish.co.uk/articles/219_liberals_recognise_c.htm
"Human Sexuality" The United Methodist Church available at: http://www.umc.org/what-we-believe/the-
7

nurturing-community.
"United Church of Christ Backs Same-Sex Marriage" available at: NYTimes.com
8
regard to human failings. In this context, to regard homosexuals with prejudice would be
contrary to the spirit of the Bahai teachings.

The Hinduism has taken various positions, ranging from positive to neutral or antagonistic.
Referring to the nature of Samsara, the Rigveda, one of the four canonical sacred texts of
Hinduism says 'VikrutiEvamPrakriti' (what seems unnatural is also natural). A "third gender" has
been acknowledged within Hinduism since Vedic times say in Manu Smriti and Sushruta Samhita.
Several Hindu religious laws contain injunctions against homosexual activity, while some Hindu
theories do not condemn lesbian relations and some third-gendered individuals were highly
regarded. The Kama Sutra, written around 150 BC contains passages describing eunuchs or
"third-sex" males performing oral sex on men. Similarly, some medieval Hindu temples and
artifacts openly depict both male homosexuality and lesbianism within their carvings, such as
the temple walls at Khajuraho. One may infer from these points that at least a part of the Hindu
society and religion were previously more open to variations in human sexuality than they are at
present.

Sikhism has no specific teachings about homosexuality and the Sikh holy scripture, the Guru
Granth Sahib, does not explicitly mention heterosexuality, homosexuality or bisexuality.
However, the universal goal of a Sikh is to have no hate or animosity to any person, regardless of
factors like race, caste, color, creed, gender, or sexuality.

Early Buddhism appears to have been silent concerning homosexual relations. Among Buddhists
there is a wide diversity of opinion about homosexuality.

Health Perspectives on Homosexuality

Suzanne M. Marks, in her paper Global Recognition of Human Rights for Lesbian, Gay, Bisexual,
and Transgender People”9 states the LGBT individuals, are in many places and circumstances
denied their claim to the full set of human rights. This puts LGBT people in many countries at risk
for discrimination, abuse, poor health, and death. For LGBT people, it may result in:

Suzanne M. Marks, “Global Recognition of Human Rights for Lesbian, Gay, Bisexual, and Transgender People”
9

available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5451102/


1. Discrimination in housing and jobs (affecting the ability to purchase food, shelter, and
health care);
2. Lack of benefits (affecting the ability to pay for health care and financial security);
3. Harassment and stress (affecting mental health and/or prompting substance abuse,
smoking, overeating, or suicide);
4. Isolation (leading to depression);
5. Sexual risk-taking (exposing oneself and loved ones to sexual health risks, including HIV);
6. Physical abuse and injuries; and/or
7. Torture and Death.

Medical Perspectives on Homosexuality

According to Gregory M. Herek 10 , till 20th Century, American psychiatry and psychology
regarded homosexuality as a form of mental illness. It was included in the first Diagnostic and
Statistical Manual of Mental Disorders (DSM) of the American Psychiatric Association in 1952.
Psychiatrist treated Homosexuality as a form of mental illness due to a mixed opinion out of
religious and legal traditions as well as their clinical impressions of homosexuals who were
seeking psychiatric treatment or were incarcerated.Thereafter, in 1956, the Journal of Projective
Techniques published an empirical study by one Evelyn Hooker on comparison between
homosexuals and heterosexual behaviour in non-clinical manner. She concluded that
Homosexuality is not an illness and hence it cannot be associated with pathology.These findings
were replicated in numerous empirical studies.

Finally, in 1973, due to a combined effect of empirical studies and the gay movement in US, the
American Psychiatric Association removed the homosexuality from the DSM (the manual
containing list of illnesses) which meant that Homosexuality is not considered to be a mental
illness anymore.

Gregory M. Herek, Homosexuality In A.E. Kazdin (Ed.), Encyclopedia of psychology (pp. 149-153). Washington,
10

DC: American Psychological Association & Oxford University Press.


Consequently, it has passed several resolutions supporting equal rights for Homosexuals. This
movement of declassifying homosexuality as a disease has been strongly supported by American
Psychological Association (APA). This has been slowly and gradually followed by the medical
fraternity in rest of the world.

Legislative Perspectives on Homosexuality

Section 377 of the Indian Penal Code (1860) relates to Unnatural Offences and includes
homosexuality within its domain. In India this Law relating to homosexuality was adopted from
the British penal code dating to 19th century.

Section 377 states: “Whoever voluntarily has carnal intercourse against the order of nature with
any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment
of either description for a term which may extend to ten years and shall also be liable to fine.”

Similarly section 292 of IPC refers to obscenity and there is ample scope to include
homosexuality under this section.

Also section 294 of Indian Penal Code, which penalizes any kind of "obscene behaviour in
public", is also used against gay men.It is important to note here that in England the offence of
homosexuality between consenting partners has been abolished by the Sexual Offenders Act
1967. However, India continues to have it on its Statute Book.11

Judicial Perspectives on Homosexuality

There are two landmark cases in regard to Homosexuality in India. Landmark cases in Indian
Courts

1. Naz Foundation Case - In July 2009, the Delhi High Court had decriminalized
homosexuality among consenting adults, holding it infringing upon Article 14, 15 and
21 of the Constitution of India. A Bench comprising then Chief Justice A P Shah and

AnuradhaParasar, “Homosexuality In India – The Invisible Conflict” available at Delhi High Court Library
11

Collection Website.
Justice S Murlidhar had said. "We pronounce section 377 of Indian Penal Code in so
far as it criminalizes consensual sexual demonstrations of adults in private is violative
of Articles 21,14,and 15 of the Constitution,"
2. Suresh Kumar Kaushal Case - In December 2012, the Supreme Court overturned the
HC’s decision, after finding it “legally unsustainable.” A two-judge bench, comprising
Justice G S Singhvi and Justice S J Mukhopadhaya observed that the HC had
overlooked the fact that a “miniscule fraction of the country’s population constitute
LGBT,” and that in over 150 years less than 200 people were prosecuted for
committing offence under the section. The Supreme Court additionally left it to
Parliament to consider scrapping the provision.

Apart from these cases, one must read and understand the latest judgement of Supreme
Court titled Navtej Singh Johar& ors. v. Union of India (2018). In this case, the Supreme Court
Decriminalised Section 377 IPC as far as consensual sexual relations between adults is
concerned. Some of the excerpts of the landmark judgment are as follows:

Chief Justice of India Dipak Misra and Justice A M Khanwilkar underlined that “sexual
autonomy” is an “important pillar” and an “insegregable facet of individual liberty”. They
observed that “organisation of intimate relations” is a matter of “complete personal choice”
between consenting adults, that “it is a vital personal right falling within the private
protective sphere and realm of individual choice and autonomy”.

Justice Rohinton F Nariman opined that the Sexual Minorities have a fundamental right to
live with dignity’. observing that Section 377 of the IPC is “capricious and irrational”. It was
further observed that persons who are homosexual “have a fundamental right to live with
dignity”, that will “assure the cardinal constitutional value of fraternity”.

Justice D Y Chandrachud held that ‘Decriminalisation is the first step towards the broader
range of entitlements’. He observed that sexual orientation of the LGBT community is
“intrinsic” to their “dignity, inseparable from their autonomy, and at the heart of their
privacy”, and Section 377 was “founded on moral notions which are anathema to a
constitutional order”.
Justice Indu Malhotra underlined that ‘Sexual orientation is connected with identity’. She
observed that “History owes an apology to the members of this community and their
families, for the delay in providing redressal for the ignominy and ostracism they have
suffered… The members of this community were compelled to live a life full of fear of
reprisal and persecution. This was on account of the ignorance of the majority to recognise
that homosexuality is a completely natural condition, part of a range of human sexuality”

VI. CONCLUSIONS AND THE ROAD AHEAD

The decriminalization of consensual sex between adults as held by the Honourable Supreme
Court in the recent case of Navtej Singh Johar& ors. v. Union of India (2018) is just the
beginning.The State and Society continues to have biased, discriminatory approach towards
the Sexual Minorities.Much more needs to be done both at the state and the societal
level.The State needs to take appropriate steps at the Legislative and Executive level to give
the People from Sexual Minorities the full status and provide all of human rights as provided
by the Constitution of India. The Heterosexual Society should also become more open and
understanding about this community and help them in leading a better quality of life.

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