A progressive law on inclusivity, identifying different sexualities, the relevant difference between gender and sex, sexual orientation, gender identity, gender expression and what these terms signify in the practical and social sense, is needed.
The government, after much struggle by people over the past, introduced the third category of ‘other’ in addition to ‘male’ and ‘female’ in certain administrative forms. It is certainly encouraging to see change in the official State position in the country, but a merely apparent moving away from cis-sexism is not enough in terms of policy, especially considering the nuances of legal recognition. It has taken the better part of a century for the Indian legislature and executive to take the step for limited formal recognition of a third gender, and while we are still, sadly, ahead of certain other countries, this pace is grossly unsatisfactory. The matter impacts not only members of the queer community in India, but all of society, as it is increasingly being accepted as an issue of the broader question of how we perceive identity and sexuality.
Legal recognition of queer identities: why it is non-negotiable
Words stand for a sense of acceptance, of belonging, and of protection. For any person or community, legal recognition does precisely that. It secures their identity, creates a sense of security and assures at least a minimum amount of stability. For refugees, it is citizenship; for queer groups, it is formal recognition of their rights.
But recognition is not as simple as one may believe. I invite readers to once again review the list of words that this piece begins with. A socio-politically aware and active person might have a niche understanding of most or even all of these terms, but a disappointingly bleak minority of lawmakers in the country would be expected to know even broad definitions and distinctions from the list.
Recognition cannot flow from ignorance. It must arise out of knowledge, awareness and responsiveness. Far more than a parliamentary committee is needed to work on laws that aim to protect people. The general conscience of the society needs to be educated and sensitised, and this long-term transformation must be spearheaded by the people in power.
The nuances of legal recognition referred to previously pertain to the vivid diversity of the queer community and the corresponding wide range of their needs. Only one who knows what the identity of a trans-man means to them will be able to understand why issues of name change, of gender marker change and of official certification are so significant, and will strive to provide for simplified processes. Only one who knows the larger purpose pronouns serve in social acceptance and one’s expression will think to ensure inclusivity in official paperwork. Legal recognition, before being a symbol of security, is one of empowerment. In an increasingly dangerous environment, formal recognition of identities of members of the community enables them to continue to, or perhaps begin to, feel like a part of society.
Indian history has adopted three broad attitudes to homosexuality and its introduction in the broader public discourse: silence, dismissal as irrelevant, and an attempt to heterosexualise it. The first is what could be deemed a political strategy to maintain a heterosexual history, by carefully neglecting parts that are not amenable to the general, and uninformed, conscience. A more actively condescending form of response is evident in authors acknowledging the existence of homosexuality but declaring it not prominent enough so as to maintain that India was, in this respect, “far healthier than most other civilisations”. Bowdlerisation of texts in editions, commentaries and translations have, for the longest time, tried to replace expressions of homosexual traditions with analogies drawn from heterosexuality.
Legal discourse in India
The legal discourse on homosexuality in India can be traced back to the ancient Hindu legal text Manusmriti, which provided for harsh punishment for homosexual activity between men, even stricter punishment for that between female virgins or kanyas, and an altogether harsher and draconian punishment for when a married woman indulges in homosexual activity with a kanya. Perhaps, the only benefit to be drawn from this codification is this: in punishment lies recognition. It is a formal, albeit limited, acknowledgement of the presence of the queer community that the society now cannot go back on.
But when a community has been removed to even beyond the side-lines for ever so long, and been subjected to the worst condemnation and scorn possible, it is not enough to simply grant legal recognition and expect to start afresh. Indeed, it is not even possible to do that. What must come first is the recognition – formal acceptance – of the long history of vanquishing and suppression that has put these people, who are no less in value and civic importance than others, in a position out of which they find it virtually impossible to lift themselves.
One instance when this took recognisable form was the landmark Naz Foundation judgement of 2009, in which the Delhi High Court discussed the draconian Criminal Tribes Act, 1871 along with Section 377 of the Indian Penal Code, acknowledging the damaging ripples that a law of the sort could leave behind. “While this Act has been repealed, the attachment of criminality to the hijra community still continues.” These tendencies affect how we deal with serious issues faced by the queer community today, as will be discussed in subsequent sections, and embed a bias against members even in situations where it is the duty of society to protect them.
A much more comprehensive understanding of the historical and social context of homosexuality and the Indian response to it was recently presented by the Madras Hight Court in a decision last year, for which Justice N. Anand Venkatesh underwent psycho-education to be better able to decide the matter relating to a lesbian couple seeking protection from their respective parents, and recorded the full report of his session for understanding and awareness of all stakeholders.
Judicial trends show a growing awareness and the development of a more responsive conscience, but this process needs to be supported and strengthened with simultaneous legislative initiative and social movements. One of the many benefits of the age we currently find ourselves in is the platform being provided for free speech, radical developments and progressive transformations.
Movements like #MeToo have allowed for the fostering of a safe space, where victims of sexual assault have found comfort and support – and some even justice. This safe space has also allowed members of the queer community who had been living in the shadows for the longest time to step up and own their identities.
While there has been no formal survey of the exact queer population in India, there have been several attempts in the past to put up at least a rough estimate of the worldwide queer population, with the most credible one being presented by American biologist, sexologist and professor Dr. Alfred Kinsey in 1948 in his book ‘Sexual Behavior in the Human Male’, placing the number for the United States at around 10 per cent of the total population. The figure has been generally accepted as an approximate working number in India as well, with some suggesting an even higher percentage.
While India may have succeeded in creating a more conducive environment for ‘uncloseting’ in the last few decades with major breakthroughs in the form of judicial decisions on privacy, the third gender and the decriminalisation of homosexuality, repressive puritanism still takes various forms and poses a threat to the lives of queer people even as they take the admittedly courageous step to claim their own selves.
One of the very few insights available into the condition of members of the queer community in India from the past two decades is a report prepared by human right body People’s Union of Civil Liberties in Karnataka on Human Rights Violations Against the Transgender Community. It is indeed lamentable that the focus within the legal transformation arena continues to be limited to transgender persons within the diversified queer community.
Nevertheless, these reports provide us with considerable information regarding the true conditions of the supposedly ‘accepted’ section of our population. Testimonies of victims of violence and sexual abuse, who were targeted solely on the basis of their gender identity, leave a chilling impact on our general understanding of the challenges faced by members of the community on a daily basis. Rejection from every social institution often pushes them into sex work to sustain themselves, exposing them to further risk of harassment – though that is an issue to be addressed altogether separately. Other reports by organisations such as the Swasti Health Resource Centre show that 40 per cent transgender people face sexual abuse before attaining the age of 18.
Judicial trends show a growing awareness and the development of a more responsive conscience, but this process needs to be supported and strengthened with simultaneous legislative initiative and social movements.
A 2019 survey by The Guardian revealed that approximately 70 per cent of LGBT people in the United Kingdom had been sexually harassed at the workplace. Due to the lack of awareness and the taboo that surrounds the issue in India, such a survey is next to unimaginable in the country. The closest we have come is The Indian LGBT Workplace Climate Survey of 2016 conducted by Mission for Indian Gay & Lesbian Empowerment, a nationwide advocacy group and think-tank, which revealed that approximately 40 per cent of its limited sample set of the queer population had undergone harassment on the basis of their gender identity, or perhaps the National Human Rights Commission report on human rights violations of transgender persons, which revealed that at least 13 per cent respondents from Delhi and Uttar Pradesh had been the victim of sexual assault in educational institutions.
There is a dearth of systematic information and records of experiences of members of the queer community in India, at workplaces and beyond. This stems largely from the discomfort that envelopes any discussion of queer identities in India. Perhaps, the first step to a healthier environment would be to educate and sensitise ourselves to have open conversations about the lives of queer people, their challenges and how we, as a society, must work to address them. To be able to prevent future instances of such harassment, we must first be able to enable previous victims to speak up without fear.
Judgements of the Supreme Court, such as in the case of Union of India versus Mudrika Singh (2021), have reiterated that the right against sexual harassment is an intrinsic and inseparable part of the right to life and personal liberty, which covers within its ambit the right to live with dignity. Thus, it is not only a moral but also a legal obligation for the State and the society to ensure that sexual harassment of queer people is checked. It is rather unfortunate that the current legal framework fails to fulfil this duty.
The Indian government, in 2019, passed the Transgender Persons (Protection of Rights) Act, which was the first legislative instance of formal recognition and protection of the transgender population in India. Still granting recognition only in-part to the queer community, the law was widely appreciated at the time of introduction, but even a cursory study of the provisions reveals problems with the statute.
The first step to a healthier environment would be to educate and sensitise ourselves to have open conversations about the lives of queer people, their challenges and how we, as a society, must work to address them. To be able to prevent future instances of such harassment, we must first be able to enable previous victims to speak up without fear.
The law provides for a bureaucratic procedure for transgender persons to ‘certify’ their identity. This essentially leaves them at the mercy of the District Magistrate. In a welcome move, the Rules formulated under the Act do not necessitate a medical examination before the grant of the certificate. However, while the Act provides for grievance redressal officers to be appointed in every establishment, it fails to outline an independent mechanism for raising grievances by transgender persons in their personal capacity, neither specifically pertaining to sexual harassment or assault which, sadly, is a very real threat to the community.
The framing of the law implies that the protection granted is only within the scope and ambit of the establishment where the person is engaged, and not beyond. Further, even within that scope, the setting up of a redressal mechanism is left to the establishment, and no means to by-pass it have been provided in the much likely event of failure of the system to cater to the purpose.
Within the Indian legislative framework, the primary law on prevention of sexual harassment is what is commonly called the PoSH Act, that is, the Prevention of Sexual Harassment Act. The problem with this statute becomes glaringly evident with a reading of the full title: The Sexual Harassment of Women at Workplace (Prevention, Prohibition And Redressal) Act, 2013. It is presumed that the victim is a woman – and keeping regard to the legal status of transgenders at the time of passing of this Act, it may well be expected that the definition of “woman” was not exactly inclusive:
(a) “aggrieved woman” means—
(i) in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent;
(ii) in relation to dwelling place or house, a woman of any age who is employed in such dwelling place or house;
The fact that the Act does not allow cis-men to file a complaint is a different, albeit more primary, issue altogether. But the limbo that it leaves certain members of the queer community in deprives protection to the ones who need it most in the current socio-political environment.
No better off is the Supreme Court’s Vishaka judgement of 1997, which set out landmark guidelines for the prevention of sexual harassment at workplaces. While the guidelines use “victim” in place of “woman,” the usage of the pronoun “she” and the emphatic contextual reference to sexual harassment of women limits the extent of its applicability to (cis-)women.
Where do trans-women who have not undergone corrective surgery fall? What about trans-men who have not undergone corrective surgery? What about the genderqueer – the non-binary, the agender, the genderfluid? Why must people be forced to put themselves in boxes where they don’t belong merely because the law does not provide them spaces where they do?
Questions are left unanswered regarding several groups within the community. Where do trans-women who have not undergone corrective surgery fall? What about trans-men who have not undergone corrective surgery? What about the genderqueer – the non-binary, the agender, the genderfluid? Why must people be forced to put themselves in boxes where they don’t belong merely because the law does not provide them spaces where they do?
The discussion in the previous sections makes evident the inadequacy and incomprehensiveness of the present laws, and brings us back to the now-strengthened idea that recognition cannot flow from ignorance. It must necessarily arise out of knowledge, awareness and responsiveness. The nuances of recognition with regard to the queer community first require a sound understanding of the vibrancy of the various groups that constitute it. This cannot be achieved solely by legislative action. The socio-political environment of the country is defined by its leaders, academics and other people exercising influence. Inclusivity cannot be achieved without these people at the helm of society leading people to it. What we need is leaders showing the people how – and perhaps even why – we must improve as a society.
Legal recognition of not just these groups, but also the elements of their identities, is required. A progressive law on inclusivity, identifying different sexualities, the relevant difference between gender and sex, sexual orientation, gender identity, gender expression and what these terms signify in the practical and social sense, is needed. Official recognition and normalisation of the various gender identities, coupled with changing political forces towards inclusivity and a spirit of openness will help us, as a society, put humanity above all else.
Full and complete acceptance – not tolerance and sympathy – of the queer community, as was demanded by mathematician and writer Shakuntala Devi back in 1977 in her book ‘The World of Homosexuals’, is what we need now.
Next, we need an overhaul of the anti-sexual harassment legal framework in India. A law that does not limit its definition of the “victim” and thereby grossly invalidate the experiences of members of the community must be brought. Recognition to ‘sexual minorities’ cannot be conditional. It cannot rest on medical examination or pronouns or gender assigned at birth. No person must be forced to align with a gender that they do not choose for themselves. No person must be prevented from free expression of their gender identity, sexuality, or any related attribute.
If legal protection against atrocities can be granted to other social groups such as scheduled castes and scheduled tribes, why must the protection of rights of the queer community be limited to the workplace? Indeed, they find themselves at risk in several social settings – sometimes even their homes.
Alongside the setting of idealistic targets must be the acknowledgement of the reality that we find ourselves in. The law needs to recognise that there are recurring instances of sexual harassment of members of the queer community that occur purely due to the social stigma around the community, and that until this is corrected by way of social evolution, it is the duty of the law to effectively empower people, prevent these occurrences, and provide a strong mechanism to address grievances.
Another significant factor to consider is that these instances do not occur only at the workplace. If legal protection against atrocities can be granted to other social groups such as scheduled castes and scheduled tribes, why must the protection of rights of the queer community be limited to the workplace? Indeed, they find themselves at risk in several social settings – sometimes even their homes. The protection that the law grants must punish the assault and the harassing behaviour, regardless of the gender identity or sex of the victim, and regardless of the setting of the outrageous act.
Finally, to ensure a truly progressive statute, it must be ensured that the extremely vibrant, ever-expanding, (joyful) and inclusive character of the community is recognised, accepted and made space for. Our understanding of homosexuality, the queer community and gender identities has evolved exponentially over the last century, and it would only be fair to expect further development, further improvement, and further holistic growth.
We must embrace the queer community for all that it is and all that it has the potential to be. Before anything else, the community is a group of people – people who deserve to be safe.