The past few years in particular have seen increasing polarisation between states when it comes to sexual orientation and gender identity. On the one hand, you have state policing of sexual orientation and gender identity with any perceived deviance punished. On the other, there are countries where the state seems focused on trying to bring everyone within ‘the norm’, with guarantees of the right to marry and have children as an indication of ‘job (more or less) done’ and the sign of superior civilisation (in contrast to all those countries over there) but little being done to challenge and change structural inequality.

Within a space of a month in December 2013/ January 2014, both India and Nigeria saw fundamental retrenchment of rights. I have spent a lot of time thinking and talking about this over the past 6 weeks. Here are some thoughts.

India

The Supreme Court of India in December ruled that section 377 of the Indian Penal Code which criminalises sexual acts ‘against the order of nature‘ was, in fact, not a breach of rights as guaranteed under the Constitution. This was in response to an appeal brought by religious organisations who argued that homosexual sex is against the cultural and religious values of the country. In reality, the Penal Code is an expression of British Victorian morality, as decided by Thomas Macauley in 1861, not a reflection of the long history and acceptance of same sex love in India and the rest of the South Asian subcontinent. Case law has this provision applying to any form of non penis-in-vagina sex (including oral sex) thereby criminalising quite a large part of the population (according to the results of recent nationwide surveys about the sexual habits of Indians) but it has been used in recent times to, in effect, criminalise being gay.

I was in India when the Supreme Court verdict was announced and found so many echoes with the previous year and the outrage around issues of violence against women and girls following the gang rape that occurred in Delhi. Both events sparked intense mainstream and public debate, to an extent that seemed (more or less) unheralded in India. Just like I had never been engaged by what seemed every single person I came across in talking about violence against women and girls in 2012, I had never had discussions with these people (by which I mean people who are not activist friends) about sexuality in 2013. I was really pleasantly surprised and happy to see how things had shifted in terms of attitudes. These were people who would have been devastated to find out there was a gay in the family (they surely know that probability means there is definitely at least one?) but were against criminalising homosexuality. That is incredible progress and a good indication of what the movement has achieved in the past ten years.

There were Bollywood stars, cricketers, authors, politicians and other public figures standing up in support of LGBTI rights. Vikram Seth appeared on the front cover of India Today, saying:

There’s nothing heroic in doing what I have done. There are [gay] people who live lives of quiet desperation in India’s towns and villages. They are bullied by their families and relatives. They need people to voice their dismay and disappointments… Can you imagine the difference it would make if four or five widely admired people from different walks of life were to stand up and say: ‘This is no big deal or I am bisexual’? People who have come out in the freedom of the last four years since the Delhi High Court judgement can’t be simply pushed back into darkness of the closet. But I am talking not of them in this respect, but of those people, full of self doubt or with bullying families who desperately need people to point to and say: ‘They are like me too’.

He was very outspoken and visible in the media in the aftermath of the judgement about his bisexuality – but that did not seem to affect people’s willingness to read and buy his books.

The ruling Congress Party pledged to take appropriate legislative action to recognise and protect rights which, given there is a general election in 2014, is pretty astounding. Let’s see what actually happens but a political party taking action in an election year on this issue is a significant step and any legislation that passes as a result would have legislative rather than judicial authority and so be less likely to be the focus of significant backlash. Of course some members of the BJP and some religious figures supported the Supreme Court decision, with Rajnath Singh, the President of the BJP (the main opposition party) saying ‘we believe that homosexuality is an unnatural act and cannot be supported. This was counterbalanced by over a dozen protests that took place all over India and around the world in a global day of rage. The protest in Bangalore, which I attended, attracted over 900 people with many onlookers engaging in discussion and debate with those present. Over a thousand people from all over the state attended the protest that was planned a fortnight later.

In some ways, the ruling may end up having quite a significant silver lining. It has shocked many into making a stand, galvanised and re-politicised the movement and meant that LGBTI rights continue to be discussed openly – in homes, schools, newspapers and TV screens. Indeed, this shift (and yes, it’s far from complete) may provide a more enduring basis for protection and promotion of rights than any law, especially one that is court mandated and therefore open to the classic anti-democratic challenge.

It felt like a time of real dynamism, energy and re-politicisation. It was also a time to remember that too much energy and resources can go into legal change with little left over for the much more difficult to achieve radical and transformatory societal change. Now, of course we need laws to change to provide a baseline of protection but actually the work that is needed is with police forces across the country, in schools, at all levels of society and in all areas of the country. India has had legislation against domestic violence for years now but to what extent have things actually changed?

Nigeria

I returned to Nigeria last week to find that in my absence, anti-gay legislation had been assented to by the President. Here is the version the Senate passed – I assume this is the same as the final law (which has not yet been gazetted). It does the following:

• prohibits marriage contracts or civil unions entered into by people of the same gender s 1(1)
• renders invalid any marriage contracts or civil union entered between people of same gender and therefore the people are not recognised as entitled to the benefits of a ‘valid’ marriage s 1(2)
• renders void any marriage contract or civil union between people of the same gender issued by a foreign country s 1(3)
• prohibits marriages or civil unions between people of the same gender from being solemnised in any place of worship s 2(1) [but all marriages and civil unions are prohibited under s 1(1) so what’s the point of this?]
• invalidates marriage certificates issued to people of the same sex in Nigeria s 2(2) [Was this happening before the legislation passed? When? Where? Which marriage certificates issued in Nigeria exactly will be invalidated?]
• prohibits registration of gay clubs, societies and organisations, their sustenance, processions and meetings and criminalises registration, operation or participation with a jail term of up to 10 years s 4(1) and s 5(2)
• prohibits and criminalises public show of same sex amorous relationship directly or indirectly with a jail term of up to 10 years s 4(2) and s 5(2) [What exactly does this cover? Can I hold someone’s hand? Hug them? Kiss them on the cheek? There have been various graphics circulated online showing politicians hugging asking whether they now to be prosecuted too.]
• criminalises people of the same gender who enter a civil union or marriage contract, with a jail term of up to 14 years s 5(1)
• criminalises anyone who witnesses or aids a same gender marriage or civil union or the registration of a gay club, society, organisation, procession or meetings with liability of 10 years in prison s 5(3)

The rights that this law violates under the Nigerian constitution, the African Charter on Human and Peoples’ Rights and international human rights law, let me count the ways.

(right to equality, right to dignity, right to non-discrimination, right to privacy, freedom of assembly and association, freedom of expression, right to marry, right to freedom of thought…)

Since presidential assent, there has been a number of people who have been arrested, publicly lashed and/ or currently waiting sentencing where the death penalty is applicable. Legislation, arrests and the punishments meted out have been intensely popular with police having to protect defendants from crowds throwing stones.

This has been met by either conspicious silence by many in the human rights movement or those who claim to work to defend and protect human rights speaking out in favour of the law. Only a handful of Nigerians have spoken out publicly in opposition so far. It is early(ish) days though and one can but hope that this will change.

Some thoughts

This all seems overwhelmingly depressing but I am also reminded at how suddenly things can change even though it all seems so overwhelming now and any prospect of change completely remote and unreachable. I remember reading the text of the Delhi High Court judgment that ruled section 377 to be unconstitutional (in the queue for Wimbledon of all places) completely overjoyed because I never thought that (legal change) could happen. I think about conversations about the recent judgment and yes, there is a lot of homophobia, but I would never have though that people would be supporting the movement for rights to this extent even just 5 years ago.

Also, in contradiction to popular representation, it is not all bad news coming from Africa and Asia. The story that is always overlooked is that of activists organising and people speaking out – against these odds.

Just in the past few days, the internet has been abuzz with the news that Kenyan journalist, author of One Day I Will Write About This Place and How to Write about Africa and winner of the Caine Prize for African Writing, Binyavanga Wainaina published a piece entitled ‘I am homosexual, mum‘. He followed this with a series of short videos on the fear of imagination to explain why. You can watch the first one below then click the link to YouTube and watch the others.

Both Vikram Seth and Binyavanga Wainaina are well known figures and as a result, it is not surprising that they have garnered so much attention for the action that they have taken. They are continuing a conversation that is sorely needed – one where homosexuals/bisexuals are seen as real people and ‘one of us’ rather than the insidious influence of the white man surreptitiously converting people into ‘abnormal’ and ‘wicked ways.’ It is not surprising that this has garnered so much attention.

However, around the same time, LGBTI activists in South Africa organised a protest of the Nigeria vs South Africa football match in solidarity with and to protest the legislation in Nigeria. There are queer rights activists, such as the Coalition of African Lesbians, the Karnataka Sexual Minorities Forum or the Nigerian Initiative for Equal Rights, all over Africa and Asia mobilising for rights. Then there those who live across all levels and sectors of society but whose ‘I don’t see what the problem is, why are they criminalising these people?’ is completely hidden from national dialogue. One of my activist friends says he finds in his travels around India that villages and rural areas can be more accepting of the multiplicities of the forms of existence and relationships than the cities. At the protest in Bangalore, I got talking to two men who had jumped off a passing bus on the way home from their labouring jobs to find out what was going on and wanted to know what all the noise was about. They stayed for a whole hour after I told them to show their support. This effectively rebuts the classist and casteist assumptions that it is only the elite who care about human rights, including the rights of sexual minorities, and all who are from working class or marginalised caste backgrounds are automatically homophobic. Unfortunately, the voices and existence of queer people and their allies, especially those from marginalised classes, castes, religious groups or rural areas, are far from visible in public discourse on these issues – in their own countries and internationally – further reinforcing that complete lie that homosexuality is a ‘Western disease’ that is infecting ‘our people’ and is completely contrary to ‘our traditional values’. Those who say this do not seem to mind having truth get in the way of their assertions.

The reality is that there have always been those who feel same sex love and desire – in every corner of the world and throughout time. We need to break free from imposed Victorian colonial mentalities (truly the real Western disease?). We need to instead start reclaiming, revisioning and reowning our rich histories, traditions and present realities of people living in ways alternative to the perceived norm and fighting for their right in order to do so.

This essay was first published on the author’s blog  and has been republished with consent.