In the journey from Zakir to Aqsa, I have lost many things-

1. I have lost my immediate family. Other than my mother, I do not have any meaningful relationship with any of my family members. My brother and his family have boycotted me. I need not elaborate on the importance of having a family. I don’t have one.

2. I have lost my relatives. I have no communication with any relative and have not met anyone for many years now. They are not aware of my transition. All my family members and relatives are blocked on social media. Do you enjoy the company of your uncles, aunts, and cousins? I am not even allowed to meet them. I have stopped going to my hometown of Mumbai and my relatives are not allowed to visit me here by my family.

3. I have lost my friends. I have lost some of my closest and best friends simply because I decided to be myself.

4. I have lost money. Transition is not a cheap affair, especially since the facilities are not available in govt hospitals. I have invested lacs of rupees in my transitioning.

5. I have been afraid of losing my job. Yes, you read this right. However progressive may we call ourselves, I was afraid I may lose my job because the name on my degrees doesn’t match my new legal identity.

6. I have lost social connections and respect. It is difficult, exhausting and uncomfortable to be brave everyday, to explain to every person and to face their reactions. How do you avoid this? You retreat into a shell. I may appear confident but I am a timid tortoise who wants to go back to my shell in a jiffy at the smallest of sign of danger.

7. I have lost security. Being a non-passing trans woman puts me at risk of verbal, physical and sexual harassment every living day of my life. Not all fears come true but not all fears are invalid.

8. I have lost respect and popularity. Many many people who used to appreciate me previously now don’t even look at me and their eyes speak to me what they think about me.
An abomination.

9. I have lost my ability to be a biological parent. In the current circumstances, that is not feasible. I have lost the right to contact my nephew who was also my foster child and whom I raised for 5 years

10. I have almost lost the chance of finding a loving life partner. It is very rare for persons like me to find a suitable match – a loving life partner who would accept me and love me the way I am. All I get are creeps.

Now, though I have lost so many things, I am happy and satisfied with my decision.

And if, hypothetically, I were in a similar situation again, I would choose what I chose, again.

 

 

 

Saying this today took me years to grow, learn, stumble, cry; the journey hasn’t stopped. I was a shy person in school and half of my life was spent hoping things will be fine. That I will be somebody who fits in with society just like others do. But it never happened.

Note: This post first appeared in Queernama on Sept. 29, 2017, and has been republished with the consent of the author.

The findings of her study are available here. The abstract of her study is presented below, from genderdiversityandschools.in/research-design/

“I present the results of a first of its kind qualitative study to understand the experiences of queer students during their K-12 education in India. “Queer” signifies various counter-heteronormative identities apart only from lesbian, bisexual, gay and transgender (Narrain and Bhan, 2005; Menon, 2008). Using semi-structured interviews with self- identified queer persons of <=25 years of age, focus group discussions and expert interviews, I develop a coding scheme based in grounded theory and guided by Olweus’ (1993) definition of bullying.

I find that: 1. Gender non-conforming students are labelled as gay, lesbian or transgender and are bullied verbally, physically, sexually and relationally by students, teachers and administrators, regardless of their actual sexual orientation. 2. Perhaps, due to the androcentricism and invisibility of female sexuality, gender non-conforming PAGFB are subjected to less bullying than gender non-conforming PAGMB, up to a certain point. 3. Schools are sex negative with little or no sexuality education, and no policies prohibiting bullying. Complaints are either trivialized or bullied students are blamed for bringing this upon themselves by being gender non-conforming. Bullied participants report isolation, depression, fall in grades and educational aspiration, suicidal ideation and increased absenteeism but many also excel academically and in co-curriculars. Some love school as it is the only place that they can be themselves. Participants and experts suggest that comprehensive sexuality education and inculcating equal respect through effective school and state based policies may create more inclusive school climates.”

I attempt a model “Anti-Discrimination and Sexual Rights” policy based on my findings, legal decisions and suggestions from participants and experts.

Click here, or on the image below to go to the website:

Editors’ note: This post has been added to Orinam’s compilation of resources for educational institutions in India, at https://new2.orinam.net/resources-for/educational-institutions/

Smt. Ghazala Meenai,
Joint Secretary (SD),
Room No. 616, ‘A’ Wing,
Shastri Bhawan,
New Delhi – 110 001

Dear Madam,

INSAAF is a student driven legal aid project initiated by National Law University, Delhi, as part of its commitment to social justice and furthering the rule of law. INSAAF is supervised by Dr. Anup Surendranath (Assistant Professor of Law) and is staffed by seven students of the B.A., LL.B (Hons.) course.

We have been closely following the Rights of Transgender Persons Bill since it was tabled in the Rajya Sabha and we believe that the Bill in its present form suffers from several shortcomings. We have explained our concerns in detail in the attached PDF file. We have sent our comments to Ministry and hope to assist the Ministry with the Bill.

We stand in solidarity with members of the transgender community who are seeking a 45 day extension for proper consultation on the Bill. The Bill was uploaded on the Ministry’s website on 26th December, and we feel that it is an incredibly short span of time to come up with constructive comments/suggestions. We humbly request you to extend the deadline for submission of comments so that proper community consultation can take place before the Bill is presented in the Lok Sabha.

Regards,

INSAAF

I.      TRANSGENDER PERSONS AND INTERSEX IDENTITIES

Section 2(f) of the Rights of Transgender Person’s Bill defines a transgender person as a person, whose gender does not match with the gender assigned to that person at birth, secondly, includes trans-men and trans-women (whether or not they have undergone sex reassignment surgery or hormone therapy or laser therapy etc.), thirdly, gender-queer persons and lastly a number of socio-cultural identities such as —kinnars, hijras, aravanis, jogtas etc.

a)      WHAT ABOUT TRANSMEN/FEMALE TO MALE PERSONS?

Most transgender persons in India are transwomen and therefore most discussions and advocacy revolve around hijras and transwomen. India has a small population of transgender men who face oppression due to the lack of awareness and ignorance about this group of persons.  Additionally, sex reassignment surgery for this group of people is more complicated and doctors lack the medical expertise. Transmen are in fact, a minority within the gender minority.  This makes transition from female to male tougher than male to female. Transgender men have very little/no support system and struggle for recognition or visibility in discussions about transgender persons.  Recently, more organisations have started advocating and raising awareness about transmen.

Exerpts from Open Letter written by Transmen to Ministry of Social Justice and Empowerment requesting for an opprotunity to be included in consultation regarding progressive policies for transgender persons;

“If transpeople are a minority with almost no rights in this country, transmen are a minority within that minority.”

“It is hence, we feel, important to give special considrations and additional support to a minority group.”

 “A lot of these problems our brave Hijra sisters have also faced, But because they were mistakenly seen as boys, they were free to roam around and find other trans people. Because their Hijra mothers made space for them, they were able to leave their homes and live with their trans sisters and mothers. We don’t have that.”

“We are learning to organise ourselves from them (transwomen) and are in the process of doing that.”

“For an umbrella term, to refer to us in all our diveristy, we would like the use of the term trans masculine. We do not identify with PAGFB [Persons Assigned Gender Female at Birth] which is what is being used in reports and meetings here to descibe our identities.”

“We strongly urge you to refer to us by identities that we assume, not ones that are imposed on us without due democratic discussions and consent.”

“We would like to be included in the consultations to formulate profressive policies for transpeople and for trans me, gender non conformists and people who identify as intersex to be given an opportunity to put forward out demand.”

b)      SHOULD INTERSEX PEOPLE BE INCLUDED IN THE BILL?

Intersex conditions include a variety of conditions (sexual anatomy, reproductive organs or chromosome pattern) that lead to atypical development of physical sex characteristics that don’t meet the binary sex sterotypes.  The term Intersex refers to the physical anatomy of an individual while the umbrella term transgender refers to gender identity.  Intersex conditions are also known as differences of sex development (DSD).  Intersex persons can be transgender as there could be a possibility that an intersex child assigned a sex at birth may later identify with different or no sex, that child is then considered to be transgender, however the two cannot be used synonymously.

One in every 2,000 children is born intersex and  India is home to a large population of intersexual persons, most of who are subject to sexual abuse or non-consensual sex assignment surgery and forced into sex work or begging while others earn a living through performing.  Intersex persons are subject to similar disadvantages and face the same challenges as the transgender persons. Like some transgender persons, an intersex person struggles to fit into the existing gender binary model. It is for this reason that they are subject to ostracism and interphobia.

Objects and reasons of the Bill include ensuring protection of transgender persons/ person who have difficulty with fitting into existing gender roles/ stereotypes from abuse, social, economic and political injustice.  The Bill covers transgender persons; transsexual persons and gender queer people under Section 2(f). It only covers persons who, by choice, have changed their gender (Sex Reassignment Surgery), but does not include those who have been assigned a sex at birth. The definition of a transgender makes no mention of people who are born with atypical genitals. It recognizes persons who could be any transgender, transsexual, gender queer or identify themselves as male or female all of which an intersex person can feel about their gender as well.

The only category of persons, which could explicitly include intersex persons, is hijras. Ordinarily, hijras, are female identified males, some of whom are transgendered, transsexual or intersexual.  National Legal Services Authority v. UOI  recognises transgenders/hijras (which includes intersex) as the third gender. The decription of a hijra given in this judgment is; a hijra is a biological male who rejects his masculine identity to identify as any other or no gender. They are usually MTFs. Therefore, even though the judgment recognises their rights, the Bill makes no clear mention of an intersex person denying them multiple rights specifically the right to life and dignity. Following the NALSA judgment, the State Policy for Transgenders in Kerala, 2015, adopts an inclusive approach to explicitly include intersex persons within the definition of transgender.

In addition to the various challenges the intersex community faces (which are similar to those of the transgender community), Intersex children face the problem of undergoing Sex Assignment Surgery (SAS) without their consent. The procedure assigns a sex to the person by altering and removing one set of reproductive organs in order to “normalize” ambiguous genitalia. Termed as “intersex genital mutilation”, children are not given the choice or opportunity to give their consent to the surgery..

The problem with this procedure is that, it is a cosmetic procedure, aimed at altering the external features of an intersex person, in order to give them the appearance of a single sex. Children who undergo this surgery are forced to sit for at least three of five subsequent procedures over their lifetime.  However, the surgery leaves patients with a number of physical and psychological problems such as the inability to experience any form of sexual sensation, gender dysphoria, sense of betrayal, assault etc.    SAS without consent is also human rights issue as it violates the rights of a child under the Convention on the Rights of the Child  and the Principle 18 of the Yogyakarta Principles.  Studies also show that parents tend to assign the male gender to their intersex child while some even force their female child to undergo a sex change.  The Supreme Court in the NALSA Judgment categorically mentioned that insistence on SRS is immoral and illegal.

Malta recently adopted the Gender Identity, Gender Expression and Sex Characteristics Act, 2015. This is an anti-discrimination law intended to protect and ease the process of gender identity for transgender, gender queer and intersex persons.  The most significant feature of this Act is that it bans any non-vital gender assignment surgery on children before they are capable of giving consent.  This law guarantees intersex children their right to bodily integrity and self-determination.

Physical, psychological and legal consequences of Intersex Surgery, suggests that it should included under the Bill and the rights of intersex persons should be protected in addition to those of transgender persons.

Rights that can be protected: in addition to the ones given under the Bill – prohibit unnecessary/ non-vital surgery and provide adequate counseling to families with intersex children.

c)      WHAT SHOULD BE PRACTICAL PROCEDURE FOR STATE RECOGNITION OF GENDER IDENTITY THAT IS INCONSISTENT WITH AN INDIVIDUAL’S ASSIGNED SEX?

In India, a person can be legally recognized as a transgender person, as a man, a woman or a separate gender/third gender.  The UNDP report by Arvind Narrain and Venkatesan Chakrapani suggests three basic models of implementation, which are:

Certification Model: In this model, an individual wishing to alter his/her gender submits the necessary documents and a gender certification panel set up by the government will issue a certificate after a screening process. This is operational in the states such as Tamil Nadu in the form of Aravanis Welfare Board. The Ministry of Social Justice and Empowerment in its report in 2014 also recommended that other States adopt this model and make changes according to their requirements.

A transgender identity card is issued to a person after clearance from the Screening Committee headed by the District Magistrate, Deputy Durector, Social Welfare Officer, psychologist/psychiatrist, representative of the transgender community and any other person of official that the Governemtn deems necessary/appropriate.  After screening, this persons birth certificate etc. will be changed.

In this model, the criterion or test for qualifying a person as a transgender will depend on a fact to fact basis and the fact that the person is a part of a particular transgender group will act only as a corroborative evidence.  It adopts a more bureaucratic procedure.

However, the problem with this system is that it may not be in full conformity with the self- identification model mandated by the Supreme Court in the NALSA Judgment. Instead of an affidavit declaring ones gender a person must pass the test of providing relevant evidence to prove. The State may interpret such procedures differently and no two states may follow the same procedure.

Furthermore, this system may lead to gender policing and might end up complicating the entire process making it cumbersome, possibly corrupt and even arbitrary. Even though, it is understandable to require some kind of authorization to change one’s gender identity, it should be ensured that the process is as hassle free and un-bureaucratic as possible. Further, it is important mechanisms for proper checks and balances to ensure that the process remains as free and fair as possible. A more representative/ empathetic screening committee might help.

Medical Model: Which requires a transgender person to be issued a  certificate by doctors diasgnosing him/her with gender dysphoria/ clearing him/her for SRS before he/she can be legally identified as a transgender. The WPATH (World Professional Association for Transgender Health), has a standardised procedure often requiring the consent of the person undergoing the SRS. It has the tendency of pathologising bodies and treating gender fluidity as a medical concern rather than a social one. Although this model is suitable for MtF or FtM transitions and is not suited for other transgenders who do not identify themselves within this gender binary.

Self-Identification Model: This model doesn’t require any medical intervention, procedure or certification. It is followed in Argentina, under the Gender Identity Law, 2012 where there is no need for medical diasgnosis of Gender Dysphoria.

The Supreme Court in the NALSA judgment, hints at the self- identification model when it writes “Gender identity as already indicated forms the core of one’s personal self, based on self identification, not on surgical or medical procedure.” However, the mechanisms advocated in the report of the Ministry seem to be based on the certificaiton model. The certifying authority model although not inherently flawed, unfortunately depends a lot on  on how it is carried forward and what processes are adopted for identification.  Therefore, a procedure which meets the certifiction model and the self identifiation medal somewhere in the middle can be adopted in ordeto reconcile these two diverging opinions.

In this context, is there a need for medical diagnosis of gender dysphoria or should it be left to self-identification? The Supreme Court in the NALSA said gender identity as already indicated forms the core of one’s personal self, based on self-identification, not on surgical or medical procedure. Gender identity, in our view, is an integral part of sex and no citizen can be discriminated on the ground of gender identity, including those who identify as third gender. Prior to the NALSA judgment, Sex Reassignment Surgery was required to be done, post the surgery a  certificate of sex change was required to be issued by the concerned hospital. Now, SRS is no longer necessary, medical certificates based on SRS are also unecesssary, but a psychological assessment report may be required.

d)      CAN/SHOULD CHILDREN BE CATEGORIZED AS TRANSGENDER CHILDREN OR SHOULD THEY BE REFERRED TO AS GENDER NONCONFORMING?

The term “gender nonconforming” is used synonymously with “gender variant”. It refers to a person who does not fit into existing gender stereotypes (masculine or feminine), which based on sex, are assigned at birth.  Referring to external expression and behavior, the term is broader than transgender. The difference between a gender variant and a transgender person is knowledge/being conscious of identifying with a gender different from the one assigned at birth. All gender variant children may not necessarily grow up to identify as transgender. It is only after a certain age, that students/children begin to understand their behaviour/consciously identify with a different gender. It is for this reason that the term gender variant is used for children and transgender is used for adults or youth.  A more apt term in Section 5 could be “gender non conforming children”/ “gender variant children” and “transgendered youth” as opposed “transgender children”.

II.     PROTECTION AGAINST DISCRIMINATION

BY PRIVATE INDIVIDUALS
Horizontal Application of fundamental rights determines the relationship between private individuals and implies that one can claim redressal for wrongs done to them by private individuals.  In India, most fundamental right violations can only be claimed against the ‘State’ as defined in Article 12 of the Constitution of India. However, the most pervasive forms of discrimination in Indian society have been horizontal, and involve excluding a section of society from the economic and social mainstream through boycotts and denial of access to public spaces.

If we read the Rights of Transgender Persons Act, 2014, we can observe that it creates the scope for horizontal application of fundamental rights guaranteed under Article 15 of the Constitution of India.

Section 2(d) defines ‘establishment’ and it is clear that it includes non statutory bodies and institutions such as a company, firm, cooperative, association, trust, agency, organization, industry, supplier of goods or services, factory etc. Section 2(n) which defines a ‘public building’ must be read in consonance with this. It explicitly mentions that it includes any building used and accessed by the public at large, irrespective of ownership. This Act defines ‘discrimination’ through section 2(c) and now transgender persons can bring a case against private entities for discrimination under the Act as well as violation of fundamental rights mentioned in part III of the Constitution. This is necessary in this day and age when transmen and transwomen are being denied entry into malls and are being deprived of educational opportunities.

III.    THE WASHROOM DEBATE:  SEPARATE BUT EQUAL?

It is common knowledge that trans people face harassment when they make use of public facilities assigned for men and women. Their access to such public spaces is limited by their legitimate and understandable fear of persecution and harassment. A single experience of denied access, verbal harassment, or physical assault is certainly a problem in its own right. These experiences, however, can have far-reaching effects that impact people’s lives. Trans persons are constantly faced with harmful consequences in their daily lives when it comes to their access to washrooms. Their school life may be bridled with discomfort and anxiety and there may be marginalization be peers and further, segregation at places of employment. Their participation in public life is hindered as they may refrain from attending events where they will be confronted with the dilemma of choosing a washroom or rather, have a washroom chosen for them. It has been well documented that constant curbing going to the washroom may cause Urinary tract infections; weaken the bladder, kidney infections and dehydration.

When the Court mandates creation of washroom facilities for the third gender, we must ask whether trans people have access to all washrooms, or if they are only ‘allowed’ to make use of ‘their’ washroom.

If a trans person identifies as a woman, and is thus, a transwoman, restricting her access to facilities available to ‘women’ strikes down her right to self-determination and autonomy. Despite her choosing and expressing desire to belong to a certain gender, she is asked to perform the role of the third gender. It encourages the notion that she is not a ‘real’ woman and is and will always be a trans person, simply trying to mimic a woman’s lived experiences. If access of trans people is limited to their assigned washrooms it rings a bell to the “separate but equal” argument of Brown v. Board of Education.

Limiting their access to washrooms of the gender with which they identify, is stripping them of their identity and reinforcing notions of how trans people are violent and segregation is beneficial for them. This is a paternalistic viewpoint, which is almost condescending when we explore reasons behind the rigid entry into the washrooms.

One reason for denying transwoman access to female washrooms is that women feel unsafe or uncomfortable due to the visible masculine presence and need to be protected from the same. We have situations where their mere presence is construed to be an act of harassment. The discomfort of ‘real’ women is given weight when in reality, statistics indicate that trans people are actually at a much greater risk of harassment at the hands of the other genders. Trans women are perceived to be harassers by virtue of their appearance and this just feeds into the larger narrative of how they are aggressive, loud and invasive with no regard to privacy or security of others.

However, many fears against trans women inclusion are based on misinformation and unfounded fears due to pervasive stereotypes that depict them unfavorably. This will just become another means to further trans oppression, by confining them to a separate space and preventing socialization and inclusion.  It singles out trans people, even when they want to be perceived as a gender from the current binary and not the third gender assigned to them by the Court.

For them using a washroom, something so integral to daily life, in accordance with the gender they identify with, could be a way of reclaiming their identity and asserting it. We don’t want situations wherein a transwoman is denied entry to a female washroom and is told to go where she ‘belongs’.  Allotting them a third gender washroom is simply opening the doors for marginalization and taking away their agency to determine the washroom they would like to use. The argument that trans people themselves may feel uncomfortable using washrooms of the gender binary is extremely patronizing and resonates the arguments made in favour of racial segregation in terms of access to public fountains, schools and buses.

Just as a trans person while filling up an application form, has the right of choice to be any of the three genders (male / female/ the third gender), they should also have the right to use facilities for the gender they identify with.

I would like to end with a quote by the author Amin Maalouf, “For it is often the way we look at people that imprisons them… And it is also the way we look at them that can set them free.”

IV.     RESERVATIONS FOR THE TRANSGENDER COMMUNITY:

POSSIBILITIES AND PITFALLS

In NALSA v. Union of India, the Supreme Court directed the Central and the State Governments to take steps to treat transgender persons as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments. About a month after the NALSA decision, the National Commission for Backward Classes (NCBC) recommended the inclusion of transgender persons in the central list of the OBCs.  The Rights of Transgender Persons Bill also provides for two percent reservation in educational institutions  and public employment .

In India, affirmative action as a tool of group representation has mainly been associated with caste in both judicial discourse and public imagination. By recognising that transgender persons constitute a distinct class of individuals who are discriminated against based on their gender identity, the Court has expanded the scope of equality jurisprudence in India.

Over the years, Supreme Court jurisprudence on reservations has moved away from an individualistic colour-blind model to a more group oriented conception of equality. In Indira Sawhney, the Court held that caste could be used as a criteria for identifying backward groups because caste is nothing but a socially and occupationally homogenous class. However, the Court cautioned that caste cannot be the sole criteria for granting reservation under the OBC category and carved out the creamy layer exception. It is important to note that the Court in Indira Sawhney prohibited caste from being the sole criteria but it did not provide that caste must be a factor in all cases. Therefore, what is relevant isn’t caste but the existence of a distinct class of individuals who suffer from backwardness.

For the purpose of providing reservation in public employment under Article 16(4), the state must prove lack of adequate representation in addition to backwardness. According to the 2011 census, there are 4.9 lakh transgender persons in India.  However, there exists virtually no data about the representation of transgender persons in government employment. It can be argued that the lack of data is in itself indicative of the kind of callous treatment meted out to the community. However, it is desirable for the state to carry out an empirical assessment of the number of transgender persons in public employment. While most of us intuitively know that transgender persons are not adequately represented in government jobs, having empirical evidence of the same would prevent legal challenges in future.

a)      WHO IS A TRANSGENDER PERSON IN THE EYES OF THE LAW?

There exists significant confusion about who is a transgender person as per the law.  Both the NALSA judgment and the Bill emphatically provide that Sex Reassignment Surgery (SRS) or Hormone Replacement Therapy (HRT) cannot be prerequisites for laying claim to the transgender identity. However, it is unclear whether mere self-identification is enough to qualify as a member of the transgender community, or whether there should be a screening process. The UNDP report by Arvind Narrain and Venkatesan Chakrapani suggests three basic models of implementation: the certification model, the medical model and the self-identification model.  The certification model is currently operational in Tamil Nadu in the form of Aravanis Welfare Board. There exist serious problems with all three approaches that must be carefully considered. Unlike caste identity which can be objectively verified because it depends on a person’s birth, gender identity is internal, fluid and highly subjective. If benefits of affirmative action were to be conferred exclusively based on self-identification, it could become impractical and susceptible to misuse. On the other hand, any kind of bureaucratic gatekeeping would run the risk of policing of marginalized identities. Therefore, the procedure by which an individual is to be legally recognized as a member of the transgender community is of utmost importance, and requires further deliberation and consultation.

b)      WHAT ABOUT TRANSGENDER PERSONS WHO BELONG TO SC/ST CATEGORIES?

One of the reasons provided by the government for resisting the implementation of the NALSA decision is that it would be inappropriate to include transgender persons in the OBC category because some of them belong to Scheduled Castes and Scheduled Tribes.  For these individuals, there seems to exist an ostensible clash between their gender identity and caste identity. Even within the transgender community, the opinion is divided on how to resolve this dilemma. Some suggest that members who grew up SC/ST should continue seeking reservations under that category, while others can be classified as OBC. However, there are Dalit transgender activists who oppose such a move because they fear that if transgender Dalits remain categorized as SCs, they will have to compete against those Dalits who didn’t struggle with their gender or their families.  A novel solution has been offered in the form of horizontal reservation across categories. In November 2014, a group of transwomen petitioned the Madras High Court demanding a 3 percent reservation for transgender people under a new category, similar to reservations for people with disabilities. However, based on our past experience with disability reservations, there exists a legitimate concern that if transgender reservations were not anchored by an OBC listing, they could become vulnerable to legal challenges and narrow interpretation.

c)      WHETHER TRANSWOMEN ARE ELIGIBLE FOR POSTS RESERVED FOR WOMEN?

Another highly contentious issue is whether reservations for women should be restricted to persons assigned female at birth or should they be extended to individuals who were assigned male at birth but now identify as women. There are persuasive arguments from both sides. On one hand, it is contended that privilege is a matter of societal perception rather than internal identity. Therefore, transwomen who have had access to better education and nutrition during their formative years should not be allowed to contest for seats reserved for women. On the other hand, it is argued that the discrimination and violence that transwomen suffer on account of transphobia offsets any preferential treatment that may have received early in their life and makes them far more disadvantaged than cis women. However, the debate here isn’t whether transwomen should be granted reservations. The real question is whether the reservations for transwomen should come out of cis women’s share or if they should be over and above reservations meant for persons assigned female at birth. It is also unclear whether transmen would qualify for women’s reservations.

V.      EQUALITY AND NON-DISCRIMINATION

The Rights of Transgender Persons Bill, 2014 employs the phrase ‘on an equal basis with others’ multiple times. It is important to discern the meaning of this phrase and to understand what it entails.

Article 14 of the Constitution of India provides:

“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.

Traditionally, in the Indian judiciary, equality challenges have been decided using the Classification Test where what is to be seen is whether the law in question creates an intelligible classification and whether there exists a rational nexus between such classification and the object of the legislation. Both these parts of the test must be satisfied in order for a legislation to survive this scrutiny.

As opposed to this, another conception was introduced in India in the case of E P Royappa v State of Tamil Nadu . All that this new test of Non Arbitrariness requires to be seen is whether there is any element of arbitrariness in the action in question. Arbitrariness can be brought about through bias, non-application of mind, non-consideration of relevant factors or consideration of irrelevant factors. This test recognized the problem inherent in the Nexus test including the fact that it does not mandate an inquiry into the quality of the nexus or the strength of it.

The Arbitrariness Test is materially different from the Classification (or Nexus) Test because it is does not require a comparator for the object of scrutiny and merely requires that the object of scrutiny in and of itself must not have been subject to state action in an arbitrary manner through consideration of irrelevant factors or non-consideration of relevant factors. The advantage in this is that the Arbitrariness Test has greater scope for Affirmative Action and pays regard to the treatment of a particular group regardless of whether a comparator group can be found and how the comparator group is treated.

The phrase ‘on an equal basis with others’ in the Rights of Transgender Persons Bill, 2014,  carries with itself the idea that the ‘other’ will always be required as a comparator to measure equality and the special needs of the group, in and of the group itself, shall not be a factor for measuring equality.

It may be argued that the is a fairly commonly used phrase in international conventions as well as domestic legislation, but it is important to note that wherever the phrase has been employed, it has been done so with care to not exclude situations of affirmative action. For example, in s. 3 (equality and nondiscrimination) of the Rights of Persons with Disabilities Bill, 2014, while subsection 1 employs the phrase ‘on an equal basis as others’, subsection 2 discusses special measures to be taken by appropriate governments. No such caution seems to have been taken with respect to the Transgender Persons Bill.

As a matter of fact, the Convention on Rights of Persons with Disabilities also includes “equal basis as others” However, even the convention takes the precaution of including references to positive discrimination.

Given that transgender persons are a group of people for whom finding a comparator would be difficult and they are also a marginalized community that will require affirmative action, it makes little sense to exclude that from the legislation.

VI.     EDUCATIONAL ENTITLEMENTS

a)      NARROW DEFINITION OF INCLUSIVE EDUCATION

The Rights of Transgender Persons Bill defines ‘inclusive education’ as “means a system of education wherein all students learn together, most or all of the time” .  S.13 puts a duty on the appropriate Government and local authorities to “ensure that that all educational institutions funded or recognized by them, provide inclusive education, and inter alia, —(i) admit transgender students without discrimination and provide them education
as also opportunities for sports, recreation and leisure activities on an equal basis with 10 other;

(ii) provide reasonable accommodation of the individual’s requirements;

(iii) provide necessary support in environments that maximize academic and social development, consistent with the goal of full inclusion;

(iv) monitor participation, progress in terms of attainment levels, and completion of education, in respect of every transgender student.”

The definition of “inclusive education” is very narrow and simply focuses on learning together. A more encompassing definition would be something like “Inclusive education means that all students attend and are welcomed by schools in age-appropriate, regular classes and are supported to learn, contribute and participate in all aspects of the life of the school”. UNESCO has also given a more expansive and better-suited definition which provides that “(inclusive education) involves changes and modifications in content, approaches, structures and strategies, with a common vision which covers all children of the appropriate age range and a conviction that it is the responsibility of the regular system to educate all children”.  If the Act is to help meaningfully provide for inclusive education, it must encourage schools to not only to make do with a system where students learn together, but to create a curriculum that creates an atmosphere of inclusivity by changing content and modifying approaches and structures which are more gender-neutral. For example, content on gender sensitization and information about potential procedures such as sexual reassignment surgery and hormone therapy, as well as the possible implications/effects of both.

The definition provides that “students learn together most or all of the time”. The definition gives institutions a lot of leeway in adopting inclusive education methods only when it is convenient for the institution to do so. This can be counter-productive to achieving the objectives of the Act.

b)      LACK OF GUIDELINES ON HOW TO ACHIEVE REASONABLE ACCOMMODATION

The Act defines reasonable accommodation as “an accommodation needed to ensure transgender persons the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”.  Section 13(ii) provides that the educational institutions have to “provide reasonable accommodation of the individual’s requirements”.

The Act provides no guidelines on how reasonable accommodation of the individual requirements are to be achieved and which aspects this must cover. There is a requirement for the Government, through rules or otherwise, to have guidelines for educational institutions with respect to sex-segregated bathrooms, how gender neutrality is to be achieved in dress codes, and sports. The Government can refer to several Guidelines prevalent in other countries like the NYC Education Department Transgender Student Guidelines, or District of Colombia Public Schools- Transgender and Gender Non-Conforming Policy Guidelines. Detailed guidelines can be implemented by a body like CBSE or by the Ministry of Education in India for all schools to incorporate in order to achieve reasonable accommodation and the Act/Rules should provide for a provision under which such guidelines have to be implemented. Guidelines incorporate topics like Privacy, Gender Pronouns, Sports and Physical Education, Restroom and Locker Room Accessibility, Gender Segregation in other Areas, Dress Codes, Resource Material etc.

VII.    CUSTODIAL VIOLENCE, POLICE TORTURE AND NEED FOR ACCOUNTABILITY

Section 377 of the Indian Penal Code which criminalizes same-sex relations among consenting adults is used as an instrument and justification for discrimination, police harassment, extortion and abuse against transgender communities, thus cementing their vulnerable and marginalized status.

As per Human Rights Watch, Delhi, the population census of 2011 counted transgender persons as a separate category for the first time in India and recorded an official count of nearly half a million. Some activists from the community are of the opinion that the actual numbers could be higher.  In April 2014, the Supreme Court ruled that transgender persons should be recognized as a third gender and highlighted the stigma faced by the community. This landmark judgement, however, sees close to no practical implementation on the ground as attacks against transgender people continue at an alarming rate.

The nongovernmental organization Telangana Hijra Transgender Samiti, based in the southern city of Hyderabad, reported 40 attacks on transgender people in the last six months of 2014.  According to the rights group, in several cases, the police refused to even register complaints.  The transgender community remains vulnerable to harassment and violence especially by the police encouraged only by the ridicule and apathy of the Indian society.

In an incident on January 20, 2015, the police detained a young hijra – a distinct transgender and intersex community – for questioning about the murder of another hijra. She was detained at the police station for four hours without there being a female police official present and was allegedly stripped naked and suffered verbal as well as physical abuse.  In another incident, on January 22, 2015, police picked up a transgender woman in Chennai for interrogation purposes and at the station, allegedly suspended her by her legs with a rope and penetrative her post-operative genitals with a baton. She was left bleeding overnight and was released only in the morning.  Incidents involving police brutality against transgender persons are innumerable and many accounts have been listed in the PUCL, Karnataka report (2003) titled ‘Human Rights Violations against the Transgender Community’.

Section 10(2)(a) of the Rights of Transgender Persons Bill, 2014 states that the police can be authorized to provide safe custody to the transgenders who are victims of abuse, violence or exploitation. This is problematic because historically, police conduct towards the community has veered towards stigmatization and brutalization.  An example of this is an incident which took place in June 2014 where eight hijras were arrested in Ajmer for assaulting a policeman. Seven alleged that there were beaten by the police while in custody and one said that she had been taken into a separate room and raped by three policemen. A bribe was demanded of her by the policeman for not filing charges against her.

As the transgender community is not a recipient of systematic and structural legal assistance, they are often forced to negotiate terms with the police in an effort to lodge complaints or assert their rights. This process leaves them at the mercy of a police structure which exploits their vulnerability for unprotected sex, money, and other forms of violence specific to transgender persons, especially transgender women, such as stripping, mutilation of genitals, forced redressing in clothes to fit assigned gender, rape, insertion of objects, etc.  Furthermore, transgender persons are unable to report sexual assault without the looming shadow of fear as sodomitic acts – as per Sec. 377 – leaves them open to criminal liability.  When transgender people are denied their basic rights and the opportunity to secure education, employment and health benefits, they are left with no option but to beg or engage in sex work, thus perpetuating the vicious cycle which exposes them to further brutality at the hands of law enforcement authorities.

It is recommended that such gender-specific instances of sexual and physical violence intended to degrade or humiliate transgender persons  ought to be treated as specific circumstances of aggravated assault and should be assigned specific punishments not left to the discretion of the judiciary as power dynamics could – and would most probably – work against the already oppressed community.

Section 10(4) discusses the duty of a police officer who receives a complaint regarding the abuse or exploitation of a transgender.  However, this clause fails to include substantial methods to ensure that the filing of an FIR is not refused due to the gender identity of the victim. Such discriminatory behaviour should be made legally punishable by allowing the victim to approach a superior police officer or officers at other police stations who are then bound to conduct an enquiry.  Any information that ought to be disseminated by the police under this clause should be verified or confirmed by a higher authority/superior officer to check situations where the police officer is principally involved in the discrimination. Alternatively, NGOs and parallel organizations can be employed to aid the police in disseminating such information. Furthermore, the rules which apply to the arrest and detention of women at night should apply to transgender women as well.

Police violence cannot be observed in isolation. It is the offspring of widespread social prejudice against transgender persons in India, finding its place in the behaviour of family members, medical authorities, government employers, etc. It must be made mandatory for police personnel to undergo sensitization and awareness programmes about handling cases involving transgenders under Section 10(6) to ensure that the survivor does not undergo further trauma and judgement as a result of which they will be deterred from pursuing their case further.  Avoiding a superficial discourse on the subject, police personnel should receive substantial theoretical and practical training including basic tenets like respect for the chosen gender of a transgender or intersex person, not referring to them by their assigned gender, etc.

Through a structured system for tackling police harassment and brutality against the transgender community, India can prevent police action that constitutes ‘state-sponsored discrimination’.

VIII.   DATABASE CREATION AND PRIVACY CONCERN

With the privacy debate gaining momentum, database creation is engulfed in controversy mainly with respect to issues of actual security of the database and the legal and ethical implications of what can/should be stored on the databases in the first place. There are no consistent and uniform privacy regulations in place in India.

United States has a comprehensive privacy law which was based on the Fair Information Practice developed in the 1970s. The basic principles of data protection were to redefine the concept of personal privacy:

•       There must be no personal-data record-keeping systems whose very existence is secret.

•       There must be a way for an individual, to find out what information is in a record and how it is used.

•       There must be a way for an individual to prevent information obtained for one purpose from being used or made available for other purposes without his consent.

•       There must be a way for an individual to correct or amend a record of identifiable information.

•       Any organization creating, maintaining, using, or disseminating records of identifiable personal data must assure the reliability of the data for their intended use and must take reasonable precautions to prevent misuse of the data.

•       Data should be deleted when it is no longer needed for the stated purpose

PROS AND CONS OF CREATING A DATABASE

The transgender Bill comes with its own set of problems– it nowhere talks about identification and survey of Transgender Persons. This becomes of paramount importance as such identification must begin at the preliminary stages and will involve  creating a reaffirming environment for gender expression and use of inclusive, non-gender-specific language. The State must adopt a model that allows for minimal violation of privacy and gives an individual the autonomy to exercise their freedom of expression. The self identification model while may be best suited, it can also be used to exploit and deny them rights. The government must actively participate and ensure that confidential information is not released unless it is authorized under any law.

The right to privacy must include the right to keep one’s gender private. As this bill seeks to accord rights to transgender persons, we must find a middle path between protection of this right and creation of a database.

There is no national database to track violence against transgender people. And while this is an urgent need to give law enforcement the resources to track and prevent such incidents, there is also paramount concerns about the privacy and safety concerns of these individuals. Transgender persons have faced discrimination and harassment at the hands of these very law enforcement agencies and an open database may only perpetuate increase in violence.

We require government agencies, social workers, counselors, medical professionals, and non-profit organizations who provide direct services to transgender people to reexamine the ways they are engaging with the transgender community.

Orinam note: While we greatly appreciate the intent and comprehensive nature of this letter, we would like to point out some ambiguities in the wording “It only covers persons who, by choice, have changed their gender (Sex Reassignment Surgery), but does not include those who have been assigned a sex at birth.” This wording is misleading because:
(i) Most people are assigned a sex at birth.
(ii) The Bill does cover people who have not had SRS.
(iii) SRS is not synonymous with changing gender. We need to distinguish between social gender change and medical procedures. NALSA and the MSJE bill are clear that surgery and endocrine therapy are not (and should not be) criteria for legally determining transgender identity.

The Diagnostic and Statistical Manual of Mental Disorders (DSM)** published by the American Psychiatric Association and considered the standard classification manual by medical and mental health practitioners all over the world does not classify homosexuality as any form of mental or psychosexual deviation.

Nor does it question forms of orientation or states it as something that needs “curing”. But I’m sure Delhi doctors are far too talented to follow any norm or even a standard classification system that would question their redundant cultural and social belief system – which of course, as it seems, is way above their medical knowledge and scientific grounding.

In a recent sting operation report by Mail Today, when a number of certified medical doctors claiming to cure homosexuality through electroconvulsive therapy, hormone replacement therapy, psychological counseling and many more deceptively formulated modalities, were exposed, it brought to light the hideously substandard quality of medical practitioners in India. And their scary lack of understanding not just of medicine and psychiatry but also of the human race as a whole.

Being a certified medical doctor and a psychotherapist myself, I wonder how in spite of years of training (and mind you, not two or three years, but more than six years – the average amount of time to become a doctor in India), can one still harbour and formulate such unscientific and preposterous theories about homosexuality. This only shows, how unexposed most doctors are, and validates the unscrupulous attitude and extorting tendencies of medical practitioners all over the country.

One Dr Vinod Raina who claims to have cured over 1,000 homosexuals through hormone replacement therapy, demanding Rs. 1.1 lakh per package, perhaps has no idea of the set guidelines under which HRT can be prescribed. The list of indications include post-menopausal women, osteoporotic patients, patients suffering from ovarian failure, or people – be it a heterosexual/homosexual/transsexual – having a physiological deficiency of androgen, testosterone, estrogen or progesterone. Homosexuality is, of course, not one among them, as it is nowhere classified under any hormonal or endocrine disorder. Not to mention the side effects of HRT, which includes cardiovascular disturbances, thromboembolism, and even breast cancer. Yes, males can have breast cancer too.

Then, going one step ahead, when sexologist Dr PK Gupta talks about the existence of “recessive gay gene” in parents that later become active in homosexual children, he doesn’t realise the faux pas he has already made of his great knowledge of genetics. It is to be noted that medical graduates are taught about advanced genetics (including recessive and dominant gene functioning) right in the first year of MBBS. And nowhere in the course of medical history is there genetic or biological evidence to homosexuality, let alone recessive or dominant. Though twin studies on tracing the “gay gene” were conducted for a long period, no substantial proof were ever found. Everything about the gay gene and its propagation is only a hypothesis.

Also, people visiting such quacks and fraudulent practitioners should know that the concept of a sexologist in India is very ambiguous. There are no fixed medical degrees that certify a doctor as a sexologist or a sex therapist in India. Also, the Medical Council of India does not recognise sexologists who do not have a postgraduate degree in Psychosexual Medicine, which in turn is a part of MD Psychiatry coursework.

But that isn’t where the quackery stops. It is without evaluation and inspection people are prescribed anti-psychotic drugs like Oleanz and given electro-convulsive therapies to cure them of their homosexuality. Oleanz (Olanzapine) in psychiatric practice is an anti-psychotic drug prescribed for severe forms of schizophrenia and bipolar affective disorders. Schizophrenia and bipolar, both are classified as organic mental health disorders according to ICD-10 (International Classification of Disease) – a standard system of coding diseases formulated by the World Health Organisation – and homosexuality doesn’t even fall under any organic criteria, which needs a proper, clearly defined physiological change in the brain or any other organ system.

Similarly, the practice of electroconvulsive therapy in India is highly controversial, as its mechanism of action is still not fully known and under set guidelines is used for severe depression, schizophrenia, mania, epilepsy or co-morbid psychiatric ailments only. It is deeply condemned among the medical community in various parts of the world as a violation of human rights.

It is a pity that people in Delhi, in spite of being generally aware than most other parts of the country, still lack basic scientific temperament. It is for this lack of knowledge that they still fall for the false claims made by such dubious doctors. Desperate parents, relatives and sometimes repressed gay men who who’d want to live a so called “normal” life still think that “conversion therapy” is real, whereas in truth there exists no such modality.

Have your say. You can comment here. It is high time people should realise that it is only and only pure quackery.

* This note was originally published as “Doctors who claim they can cure gays need shock therapy” [link] in the Daily O, and has been republished with consent of the editor.

** Nor does International Classification of Diseases (ICD) of the World Health Organization,

“I’m trying to build a culture of compassion, understanding, and of service. I’m trying to build a culture of questioning the status quo.”

Inspiring words by Shivanee Sen, a young teacher I recently met at the Tagore International School in Delhi, where Sen is mentoring the first student-led campaign in India to address LGBTQI (lesbian, gay, bisexual, transgender, queer, intersex) issues. In the U.S., Sen’s student group would be called a GSA (Gay Straight Alliance), but in India, it’s more like a revolution.

In just a little under six months, Sen has mobilized an energetic group of over 50 students to address issues of gender and sexuality in education and politics. What they have done in a short amount of time is more than what most established GSA’s in the U.S. do in years.

Called Breaking Barriers, Sen started her groundbreaking group during a conversation with her high school students about gender. Her initial goal was to inspire students to care about intersex individuals as well as the hijras, a community of transgender women, who are marginalized both socially and economically. Her initial goal was to inspire students to care about the hijras, a community of transgender women in India who are marginalized both socially and economically. What started as a discussion topic has turned into a national campaign that has gained the attention of the Indian media across the country.

What’s utterly remarkable is that Sen’s students have taken on work that is usually done by experienced activists. For example, last summer, all of her students trained with one of the leading feminist human rights groups in India, CREA, dedicating six weeks worth of weekends to learn about queer issues and activism. Each of these intense workshops lasted about three to four hours each and taught students the various nuances of Kinsey sexology, current LGBT terminology, and misconceptions about the queer community.

“Over the course of six weeks, not a single student missed a workshop,” Sen said.

After completing their training, students then led LGBTQI inclusion and awareness workshops for their entire high school faculty of teachers and fellow students at Tagore. The trainings have gone successfully, especially in terms of breaking down misconceptions. As part of their education and awareness work, the students hope to deliver these workshops in other schools across India.

Prior to the trainings, there were some teachers and students at Tagore who associated homosexuality with bestiality, disease, and immorality. Further, there were some who believed that homosexuality was a “Western” import.

A solidly middle class community, Tagore parents are mostly in the business sector. When students met with me to discuss their activist work, they shared a mix of reactions when I asked them how their own parents would feel if one of them were to come out.

“My parents would accept me,” one student said.

“My parents would wonder if [LGBTQI people] would have a bad influence,” another said.

The trainings that the students have created for their teachers and peers include an extensive PowerPoint with definitions, graphs, and resources. Students have also participated in a powerful video made by CREA; participated in the Delhi Pride March last November; and protested against the recent restoring of the Indian Penal Code Sec. 377, which criminalizes homosexuality.

The group also has an active Facebook page that is regularly updated by the students with encouraging postings about queer activism both in India and abroad. They even have their own student media team that is creating a feature documentary about their work, a sneak peak of which can be seen here. A possible student radio show is also in the works.

As a result of their work, the Global Educational and Leadership Foundation crowned the Breaking Barriers team with their National Youth Leaders title after an intensive search for high school students doing the best grassroots social work in India.

Doing grassroots work is not usual for middle class Indian students who, like many American middle class students, are sometimes very much removed from not just radical organizing but activist work in general.

Indeed, part of what motivated Sen to start this group was to move middle class Indian students away from “resume-building” and instead towards being committed to social justice from a genuine place of compassion and care.

Over a cup of chai in Delhi, Sen confessed, “Americans do more service than Indians do, and India needs its citizens to do a lot more service.” A Berkeley graduate with a psychology degree, Sen has her sights on a masters program at Teachers College, Columbia in New York.

“Along every metric, LGBTQI people suffer more in terms of harassment, assault, and suicide. Of course, I wanted my students to learn about these issues, especially since in India, no one talks about it,” she added.

During my own two-hour conversation with the students, it was my goal to learn directly from them what they were getting out of the experience of being a part of Breaking Barriers. Why did they join? What keeps them committed? I wanted to know.

Students shared that they felt most proud of changing the school climate in relation to talking about queer issues, albeit slowly.

“Our friends all know that if they are about to say something homophobic, that we will pounce on them,” one student said.

Even with a changing climate at this particular school, coming out in India is still a challenge for young people.

“There are no out students at the school, at least not publicly,” Sen said. “Our campaign has brought about a change in terms of people not wanting to say ‘that’s gay’ anymore. The campaign has made everyone more PC [politically correct].”

Being more PC is a start, but it’s not enough, and Tagore students know that. Understanding the root causes of homophobia and transphobia is the next step. Creating safe and inclusive schools with education and awareness workshops consistently and over the course of time is part of that work as well.

Creating a leadership path for the next group of Tagore students to lead workshops for upcoming classes is also essential. Indeed, in my time with them, I shared with students that their work needs to be passed on to those who are younger than they are.

“One day, you will graduate, and the next group of students will need to learn what you have all learned to continue the work you have started. In schools, this work is never-ending,” I said.

Even the principal, Madhulika Sen, is committed to continuing this project. Completely fearless in her approach to LGBTQI inclusion in schools, Sen told me that she never even thought about the repercussions from the parent body.

“We didn’t even think about the parents’ reactions. We just thought this was the right thing to do,” she said.

While it helps that Madhulika is Shivanee’s mother and that the school was founded in 1972 by Shivanee’s grandmother, Dr. Hari Sen, taking on queer issues in a school steeped in family history hardly seems like the usual route for a traditional school, especially in India.

I think that’s why I’m particularly rooting for Tagore. The family piece makes me cheer them on all the more. It’s not just that a passionate group of students are leading workshops and marching in the streets. It’s also that it’s a family affair that’s committed to social justice of all kinds, regardless of what some parents might think. It’s the right thing to do, as Madhulika, the principal, says.

If a school like Tagore—which is K-12 and in the heart of Delhi—can address these issues, then schools around the world can do this work too. As the younger Sen, Shivanee, says, it’s all about building a culture that questions the status quo.

This piece originally appeared on Feb 28, 2014, on the FeministTeacher blog with the title  Exclusive: First GSA in India Speaks to Feminist Teacher, Ileana Jiménez.

Verma Committee [Image Source: The Hindu]

Jan 24, 2013: The committee of Justice JS Verma, Justice Leila Seth and Gopal Subramaniam has released its report on amendment of criminal law surrounding rape in India. The report, released Jan 23, 2012, is may be download by clicking here.

The committee, constituted in the wake of the brutal Delhi gang rape of Dec 2012, received input from diverse communities, including legal experts, women’s groups, LGBT groups and others around the world.

The Committee proposes the following reframing of Section 375 (rape) definition as follows:

” 375. A man is said to commit rape if he—

(a) penetrates the vagina or anus or urethra of a person with—

(i) any part of his body including his penis or,
(ii) any object manipulated by him, except where such penetration is carried out for proper hygienic or medical purposes; or,

(b) manipulates any part of the body of a person so as to cause penetration of the vagina or anus or urethra of another person; or,

(c) engages in “cunnilingus” or “fellatio”, under the circumstances falling under any of the following six descriptions:

Firstly.—Against the person’s will; or,

Secondly.— Without the person’s consent; or,

Thirdly, With the person’s consent, where such consent has been obtained by putting the person, or any other person in whom the person is interested, in fear of death or of hurt; or,

Fourthly.— With the person’s consent, when the man induces the person to consent to the relevant act by impersonating another man to whom the victim would have otherwise knowingly consented to; or,

Fifthly, With the person’s consent, when at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by the man personally or through another of any stupefying or unwholesome substance, the person is unable to understand the nature and consequences of the action to which he/she gives consent; or,

Sixthly, When the person is unable to communicate consent either express or impliedly.

Among the comments of the Justice Verma committee are the following observations on sexuality:

Page 51:

“65. We must also recognize that our society has the need to recognize different sexual orientations a human reality. In addition to homosexuality, bisexuality, and lesbianism, there also exists the transgender community. In view of the lack of scientific understanding of the different variations of orientation, even advanced societies have had to first declassify ‘homosexuality’ from being a mental disorder and now it is understood as a triangular development occasioned by evolution, partial conditioning and neurological underpinnings owing to genetic reasons. Further, we are clear that Article 15(c) of the constitution of India uses the word “sex” as including sexual orientation.”

The Commission affirms Naz on Page 54:
“Thus, if human rights of freedom mean anything, India cannot deny the citizens the right to be different. The state must not use oppressive and repressive labeling of despised sexuality. Thus the right to sexual orientation is a human right guaranteed by the fundamental principles of equality. We must also add that transgender communities are also entitled to an affirmation of gender autonomy. Our cultural prejudices must yield to constitutional principles of equality, empathy and respect.”

The Committee further notes [Page 406] that:

“a. Sexuality is a fundamental aspect of human life;

b. It covers physical, psychological, spiritual, social, economic, political and cultural dimensions;

c. Sexuality can be diverse; and

d. The rules which govern sexual behaviour differ widely across, and within, cultures and individuals.

f. Children need to be able to access informed, non-prejudiced sources on sexuality.

Challenging the perception of sexuality as being purely heterosexual is an ongoing agenda for lesbian, gay, bisexual and transgender (LGBT) activism and for counter-socialisation efforts. Collaborating or networking with LGBT activists is a beginning to understanding different sexuality experiences.

5. We are of the opinion that –

a. There must be a reduction of misinformation, be it through internet of misleading advertising;

b. Correct knowledge must be disseminated in respect of sexuality and sexual choices, without enforcing gender stereotypes;

c. The skills of children and young adults to make informed decisions need to be nurtured;

d. Perceptions and social norms need to be relooked at and revamped;

e. Children and young adults must be encouraged to increase communication with and within peer groups.

f. The use of theatrical resources and films in school workshops has proved to be extremely effective in gauging students’ responses towards understanding of gender relations and we recommend use of audiovisual material to encourage respect and understand for all genders/sexes.”

Finally, on the subject of gender-neutral laws, the Committee notes on Page 416 that

“Since the possibility of sexual assault on men, as well as homosexual, transgender and transsexual rape, is a reality, the provisions have to be cognizant of the same.”

Orinam notes: We are in overwhelming  agreement with the points raised by the Justice Verma committee, as they propose to make the law fully inclusive of the various forms of sexual assault  faced by women and LGBT people, moving beyond narrow definitions of rape that existed before, bringing marital rape within its ambit, and pointing out the violence inherent in such archaic methods as the two-finger test.

However, we wish to caution against use of the terms “homosexual, transgender and transsexual rape” as these are subject to misinterpretation concerning  the presumed sexuality and/or gender identity of the perpetrators and/or survivors.

While ‘homosexual rape’ in the sense of rape by homosexual men does exist (and such perpetrators must be brought to justice), we point out that the majority of male-on-male rapes are not perpetrated by homosexual men. Calling male-on-male rape ‘homosexual rape’ risks further stigmatizing those of an already stigmatized sexual orientation.

Further, pervasive homophobia in society causes many victims of male rape to remain silent on it, because of fear and shame associated with being labeled homosexual. We refer interested readers to Sandesh Sivakumaran’s article on the issue.

We also draw attention to many studies reporting that children who are effeminate boys, masculine girls and gay/lesbian/bisexual or transgender adults face disproportionate risk of sexual assault and rape, mostly from adult men who are not homosexual/bisexual themselves.

Given the above considerations, we suggest that a suitable rephrasing would be “male-on-male rape and rape of gay/lesbian/bisexual/transgender persons.”

Recommended reading:

Rothman, Ellen and others. 2011. The prevalence of sexual assault against people who identify as gay, lesbian, or bisexual in the United States: a systematic review.Trauma, Violence and Abuse. 2011 Apr;12(2):55-66.

Sivakumaran, Sandesh. 2005. Male/male rape and the “taint” of homosexuality. Human Rights Quarterly, Volume 27, Number 4, November 2005, pp. 1274-1306

Orinam thanks all those who have worked to bring our readers a compilation of 15 days of Supreme Court hearings in the Naz Foundation case held in Delhi earlier this year, 2012.

The file may be downloaded here.

And I can tell you taking notes is not easy! The courtrooms the case is being heard in (numbers 5 and 6) are not large, so although there is provision for microphones they are not used. The lawyers and judges who are quite close to each other can hear each other easily, but from where the non-legal people in court have to sit, right at the back, it is not that easy to hear and make notes. (There is no other provision for recording the proceedings).

So when some of the lawyers speak rapidly, especially when they are reading out from cases, its almost impossible keeping track of them. A lot of the dialogue is about legal points, with references to judgments, digests of cases in the SCI and other courts abroad, and this is really hard to keep track of, and it makes me appreciate the efforts of the people who have been taking notes all the more.

The other problem is that there has been so much. These last three days have been almost entirely devoted, from 10.30 in the mornings till around 3.30-4 in the afternoons to the case, which means reams and reams of notes. I brought new notebooks to court, would run out of them and have to turn them around and continue scribbling behind! Its going to take some time to sort out all these notes, compare with the other person taking notes, and be able to give what would still be only a partial and broadly indicative idea of what was being said.

The other problem is that these have been really up and down days, so one has to deal with one’s own emotions and reactions! From the reports I’ve sent out earlier, you can see that the judges were quite hard on some of the petitioners, asking for clarifications and probing for inconsistencies. But now that our side is being heard, they have been equally probing on us.

Sometimes their questions seem to show an understanding of our arguments, but then the very next question can be really startlingly basic. It is hard not to wonder where their minds are going on this case, but at the end of these three days I can really only say I have no idea. Sometimes they seem positive, sometimes negative and most times you just have no idea. The way to look at it, I guess, is that the judges are doing their job and giving the Delhi High Court verdict a thorough scrutiny from all sides.

As I said, all these three days were devoted to our lawyers. First up was Fali Nariman, the counsel for the petition from the parents of LGBT children. Normally the first speaker would be the lawyer for the lead petition, which in this case is Anand Grover for Naz India, but Mr. Nariman is the most senior and respected counsel in the Supreme Court and when he took on this petition, pro bono, because he realised its importance, it was always clear he would be first to speak.

Mr. Nariman is the great constitutional lawyer of our times, and his arguments focused firmly on the constitutional aspects of the case. He looked at the way the law, which far predates the Indian Constitution, is an inconsistency to the progressive spirit of the Constitution. He also took head on an argument that has been made, that this Court should not be dealing with matters like this, but should leave it to Parliament. He argued that an overtly activist Court might pose problems, but at the same time there were legitimate reasons – and here, as with everything else he said, it was all grounded in many references to precedents and past judicial thinking – to take up cases where the injustive causes such shock to the Constitution that it was the Court’s duty to intervene.

After Mr. Nariman it was Mr.Grover’s turn and he spoke about the problems that the law causes for HIV/AIDS outreach work, which was why an organisation like Naz that was engaged in this field filed the petition. He looked at the development of the law from its first declaration in the Indian Penal Code, at which time its scope was perhaps quite narrow, but then how its scope was expanded via subsequent judgments to encompass nearly all kinds of mutually consensual sex for non-procreative purposes, and the problems this poses for all people of alternative sexuality.

Mr. Grover did come in for quite a bit of questioning here. The judges kept probing the link between gay men, the law and HIV and this was also the context in which, as has been reported in the papers, they kept asking for numbers of gay men, numbers of HIV postive people, number of HIV positive gay men, and so on. On one level this is a routine request, and yet as Mr. Grover tried to explain its a really hard figure to give precisely because the effect of the law is to drive the people who fall in these categories underground and beyond the reach of surveys.

Mr.Grover spoke till Wednesday afternoon and then handed on to Mr.Shyam Divan, the counsel for Voices Against 377, a coalition of human rights groups and individuals concerned with 377 who had come together to fight it. Mr.Divan started by reading through the list of the groups concerned, emphasising that they included groups concerned with child rights, to counter the claims of the Delhi Commission on Child Welfare, and also on womens rights, which emphasised that this was a broad based coalition, beyond just lgbt groups.

Mr.Divan continued through Thursday and will speak again when the case is taken up once more next Tuesday. I’ll just conclude this by giving an idea of one of the several dramatic and really moving moments in the hearings. It may sound excessively dramatic when you read it, but in the confined of the Court, towards the end of a long post lunch session, and framed, as all the counsel do, with much reading and citation from past cases, it really has impact.

In this case Mr.Divan was referring to the question one of the judges asked Mr.Malhotra, the Additional Solicitor General who made a misguided and entirely independent intervention against us at the start of the case. He also refers to a discussion during Mr.Grover’s arguments when the judges asked how one of their very basic questions, which was if the law forced gay people to be invisible they could claim to suffer discrimination, because didn’t you have to be visible to be discriminated against?

Mr.Divan: “Your Lordship asked Mr.Malhotra if he knew any gay people, and I would like to answer that question for myself. Yes, I do know gay people. I have known them since college. They are people in my immediate circle. They are part of my family and my extended family. And they have all feared at times if they have the freedom to express their sexuality. They have gone through trauma because of this.

“Are they invisible? Yes and no – and why no? Because our Constitution allows the flourishing of our personalities in relationships and it is at that point when gay people meet and cohabit and have a relationship that invisibility disappears. If a man lives openly with another man that is when the invisibility disappears and they can be discriminated against, despite the fact that our Constitution allows us all to develop relationships.

“It is all a question of identity and your Lordships have asked questions about identity. Who am I? It is a basic question that we ask ourselves, that we are asked by others and that the government asks on the passport form and the Aadhar application when it provides options of Male, Female and Other.”

The Bench: “Who am I is a very big question. We all ask ourselves all the time ‘Who am I?'”

Mr. Divan: “And that is the point my Lord. When I look at myself in the mirror each day and ask ‘Who am I?’ do I see a criminal?”

SC hearing Day 6 – 29.02.

The hearing continued with the Mr.Jain, the counsel for the Krantikari Manuvadi Morcha speaking. The previous day he had only had a few minutes to speak, in which he made the point that this case should not be in this court at all, because it was up to Parliament, not the judiciary to decide these matters.

Mr.Jain: “Civil society cannot function if there is absolute freedom … The IPC contains restrictions that are acceptable to society. Chapter 14 is on offences affecting public health. … Parliament has agreed on this. Parliament has to see what is correct or not for society.” He said that the fact that a law could be abused was not grounds for abolishing it.

The Bench asked what about harassment by the police – what if the law was abused by those in charge of upholding it. Mr.Jain sidestepped the question and also suggested this was only an urban concern: “Ultimately it is the government or parliament that decides. This could antagonize the villages.”

The Bench reminded him that someone has spoken for the government, and reminded him again about reports of police harassment. MrJain: “It is a failure of the machinery, the police, not the law.” He also threw in a federal objection by noting that it was the state governments that implemented the law, so how could someone from the central government speak on the matter.”

The Bench: “Who? Which department?”

Mr.Jain: “Everybody. On which basis are they making a statement?”

The Bench: Each case of constitutional validity relates to states vs. parliament. Is about the legal aspect or …?”

Mr.Jain: Only about the legal aspect. The law can only be amended by the parliament.

The Bench: What is the difference between the central government and the Union of India?

Mr.Jain: “It is a strange stance that the government of India is taking.”

The Bench: “Nothing is strange. They have taken a particular stance. That is all.”

Mr.Jain goes back to talking about the rights to privacy and to life not being absolute: “The right of privacy cannot be used as a justification for committing an offence.”

The Bench asked Mr.Jain to finish and file supplementary submissions if he had more to say. They seem to have decided to speed up this part of the trial, and get all the many other opponents to finish, so they could get on to hearing our side. Nobody will be given the time that the first few petitioners got.

Next up is Mr.Radhakrishnan, counsel for Trust God Ministries, a Kerala based evangelical group. He starts by dismissing any idea of the HIV/AIDS being involved with 377, which he argued was created by the legislature to preserve peace in India and protect morals and values over here. (If I am correct, the legislature; that created the IPC, after it was drafted Macauley, was the four British gentlemen of the Governor-General’s Council in 1860).

Mr.Radhakrishnan then went on to attack Naz India specifically for setting up a NGO to support gay men who were suffering from discrimination: and speaks on behalf of Trust God Ministries): “Instead they should have worked to integrate them into the mainstream society and rehabilitate them. They are an NGO. This is expected of them.”

He then went on to remind the National Aids Control Organisation of its mission by reading from its website: “NACO envisions an India where every person living HIV/AIDS has access to quality care and dignity … which is only possible in an environment where the human rights of people are respected … without stigma or discrimination .. by fostering close collaboration with NGOs …” What this meant, said Mr.Radhakrishnan, was that NACO was supposed to motivate people for responsible behaviour, not for homosexual behaviour. This is NACO’s whole goal. Their aim is to “save their life”, not “safe sex”.”

Having disposed of the judiciary and NACO’s role in the case, Mr.Radhakrishnan briskly moves on to the concerns of even more defenceless entities: “377 is limited to consenting adults. So are persons under 18 not covered by Article 21? What is an offence or not when a child under 7 is concerned? Children between 7 and 18 are still under the purview of 377. But 377 does not have any age regulation or concept of consent.”

The Bench reminds him that there’s the Juvenile Justice Act to take care of children. Not good enough says Mr.Radhakrishnan given the urges of gay people: “The petitioners are aware of the concerns regarding minors but they cannot resist temptation.” But having made this statement, Mr.Radhakrishnan tempers it with some compassion: “It is very difficult to identify gay people, homosexuals, sex workers. Like for Malaria, Cholera, … we need a rehabilitation program. This will spread the disease otherwise. For the prevention of smoking and addictions there already are clinics. NACO as well as NAZ are misdirecting themselves.”

Its not clear from the notes if Mr.Radhakrishnan is advocating treatment and rehabilitation for HIV or homosexuality here; given his arguments so far, it could be both. He then cracks the whip again by reading out parts of Section 269 of the IPC: “Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six month, or with fine, or with both.” If LGBT people are negligent doing this they fall under the purview of Section 269. He also reminds us that Section 270 says whoever “malignantly” does this is also punished, and Sections 292, 293, 294 deal with obscene books, materials, objects, acts, songs and so on.

Mr.Radhakrishnan now moves on to rape, which is section 375 of the IPC, and he brings in some biology here, though like most of our opponents he only seems to equate homosexuality with sodomy (and women, of course, are not even considered) : “375 deals with sexual offences. 377 deals with unnatural offences.. Every organ in the human body has a designated function assigned by nature. The organs work in tandem and are not expected to be abused. Exactly that happens here: there is abuse, orally and anally. Those organs are not expected for sexual use. If it is abused, it goes against nature: “carnal intercourse against the order of nature”. In 375, only sexual organs are involved. In 377, people can be of same or opposite sex, and penetration is necessary, but the other’s sexual organ is not. Consent is not defined. “Voluntarily” is defined… Consent is distinctively absent from 377. Passive agent can also be booked as offender [unlike under
375]…”

Mr.Radhakrishnan now winds up by asking what will be the result of decriminalisation: “We are getting more exposure in the media to this judgment, and minors do also. Say there is a gay boy or girl going to school. What will be the situation of the family? They have to take care of them until they are 18. This is dangerous of these NGOs, because they are advancing this case.” He also notes that since these NGOs are funded by NACO, the state is also party to this irresponsibility: “The state is involved, but there can only be one stand, the law of the parliament!”

We stay with the evangelicals, as Mr.Giri, the counsel for both the Apostolic Churches Alliance and Utkal Christian Council comes up next. It must be interesting for the Utkal Christian Council, which defends the rights of Christians in Orissa, to be sharing a platform with the Krantikari Manuvadi Morcha, which attacks the rights of Christians in Orissa).

[The notes I have at this point are a bit unclear. I think the person taking them couldn’t hear Mr.Giri, and also the next counsel].

Mr.Giri starts by reading from the part of the High Court judgment where it says you cannot criminalize something that is a natural urge of an individual and also on how there are different conceptions of morality.

Mr.Giri: “I am asking you that whenever there is a challenge to a law on constitutionality, you do not look at this law as apart from the rest of the constitution.”

The Bench: “Can there be several stands from the government?”

Mr.Giri: “Yes. The Health Ministry said that 377 actually stands in the way of HIV/AIDS prevention as an unintended consequence, in addition to violating Article 21.” He reads out Section 377 and continues, trying to argue that it does not describe a sexuality, just a sex act: “It does not classify people into groups, it only describes an offence. But it has found favour in the High Court. According to the High Court, sexual orientation is held to be part of Article 21. Where does 377 speak of sexual orientation?”

The Bench: “Is it a normal or natural sexual orientation?”

Mr.Giri: “It says “order of nature”, not natural.”

The Bench: “Normal and natural will come in all human beings.”

There’s a lunch break, and Mr.Giri continues after as well, still on the point that it is wrong to assume that sexuality is something fixed and unchangeable kind as described in the High Court verdict.

Mr.Giri: “What is criminalized is an act. The rest is a matter of interpretation of what is against the order of nature. … The error committed by the HC is that the sexual orientation of a person seems to be immutable. There is no place for such a conclusion. … The HC made two assumptions: one, that sexual orientation is immutable and two, that sexual orientation can be naturally demonstrated only in a way as contemplated in 377. It is not considered that such a sexual orientation is a disease or needs therapy. What is criminalized is just the act, independent of the sex of people or sexual orientation.”

Mr.Giri goes on to note that the High Court verdict was limited to adults, and the Bench is interested and wants to hear more, but Mr.Giri doesn’t oblige – not surprisingly, since this is an argument in our favour! He tries to broad base the argument by bringing in single parents, abortions and other things the religious groups who are his clients don’t approve of. This leads to an interesting exchange, where the Bench tries to pin him down with some precise questions that, I think, show that the judges are getting the ramifications of the case. Mr.Giri however is probably not, and he seems quite confused.
The Bench: “There are different religions. Where is your role in this case? Do we only have one concept of morality? A large number of people do not believe in religion in this world. How is it related to laws in countries with a different context?”

Mr.Giri: “The role is wherever there is a manifestation of a sexual urge that is considered illegal.”

The Bench: “Can there be a different sexual orientation in a child? Parents may be worried: why has the sexual urge not come? Sexual urge is an inherent phenomenon in human beings. How does it have to do with sexual orientation? … Can sexual orientation change because of any factor? What is natural?”

Mr.Giri: “This is a bizarre question. It is difficult to answer.”

The Bench: “A fundamental right should have a corresponding fundamental duty so it does not interfere with the fundamental right of others.”

Mr.Giri: “I cannot give a response to this immediately.”

The Bench: “Does sexual orientation change at different ages? Can it be there at age 6?”

Mr.Giri: “Freud would say so.”

The Bench: “Therefore we are talking about the order of nature. That is why we are talking about this. Can it change?”

This might actually be an opening for Mr.Giri to deploy the “its just a phase” that so many gay men have got from their parents, but he doesn’t take it, focusing instead on the issue of whether anything consensual should be allowed: “Minors have been excluded not because of immutability but because of consent. It cannot be accepted that anything with consent has to be legalized. An act of adultery has the consent of two parties but is still illegal. So is attempted suicide. Whether proper reasoning has led to these provisions is irrelevant. Consent is not sufficient.” (Both the examples he’s given, of adultery and suicide are sections of the IPC like 377 that many would argue should no longer be there, and both have been contested in the courts, which might be why he adds that line about proper reasoning being irrelevant which, it would seem to me, rather undermines his case since he’s more or less admitting they are irrational).

Mr.Giri then goes after the High Court’s arguments that 377 helps with HIV/AIDS prevention: “There is not sufficient evidence for this. Only two papers are referred to. One is a scientific study by the National Institute of Health on behavioural patterns and AIDS. It also makes reference to the fact that HIV/AIDS is higher among MSM. It refers to the fact that it is not about sexual orientation: many of them are married, so they are not incapable of having sex with their wives. They also cause infections to them.” He then refers to the High Court’s reference to Lawrence vs Texas and a study from the US Center for Disease Control).

More biology now from Mr.Giri: “Anal sex is one reason for a higher infection risk… The anus is vulnerable to tears due to anal sex which influences the likelihood of getting AIDS.” He refers to an article from the Journal of Homosexuality, listing a number of health problems resulting from anal sex, like diarrhea and gay bowel syndrome. This last is an outdated term that was coined in the early 1970s to refer to a range of gastrointestinal problems that showed up with his many gay patients. As this link explains, it is no longer used – in fact, an article in the same Journal of Homosexuality mentioned by Mr.Giri specifically states that it has been withdrawn. One might get more annoyed at this selective use of information, if it wasn’t for the image of Mr.Giri and his clients reading the Journal of Homosexuality for research: http://en.wikipedia.org/wiki/Gay_bowel_syndrome)

Mr.Giri: “Same-sex sex is more harmful to public health than opposite-sex sex. What is pointed out are sexual acts, not sexual orientation in any of these materials. Therefore the HC judgment that 377 is in the way HIV/AIDS prevention contradicts these materials, including materials by NACO.”

Mr.Giri now turns to attacking the influence of such meddlesome bodies like the International Commission of Jurists, which in 2006 formulated the Yogyakarta Principles that form a basis for the international application of human rights to lgbt issues, and the United National Human Rights Commission, that in 2007 took on these principles as a global charter for gay rights. (More information here: http://en.wikipedia.org/wiki/Yogyakarta_Principles). Mr.Giri does not mention either of these bodies, of course, but just goes after the High Court’s use of the Yogyakarta Principles: “These principles were formulated by people who call themselves experts on this matter. … Sexual orientation and gender identity are defined by the HC in references to the YP. It was an international panel of experts on international human rights law.”

The Bench: “Have the Yogyakarta Principles been adopted by the UN or another body?”

Mr.Giri: “No, they are not part of any covenant or resolution…. According to me, these are subjective perceptions.”

The Bench: “Are they sanctioned by law in any country?”

Mr.Giri says no: “I would not refer to it but because it was referred to by the High Court. … The intention is that sexual orientation is upheld as part of privacy and that it is part of human rights. It also supports the idea that the family could be other than a man and a woman. The Yogyakarta Principles have this in mind. The High Court should have looked into the content. If the Yogyakarta Principles are relevant, please look into the document in its entirety.”

The Bench: “Reading this also requires some privacy.”

Mr.Giri: “I have one more submission: that morality is not kept separate from legislative provisions.”

The Bench: “Usually people will omit this: in 1921, under the British government, people who consumed liquor were seen as immoral. So if you go by that, then you know how many people would fall into this category today? (laughter) I am just pointing out how much things have changed. …”

Time is running out, and and there is just time to hear from Mr.Ahmadi, the counsel for the All India Muslim Personnel Board. The AIMPB is probably the most formidable party among our opponents, an institution of recognised importance and its fair to say that their entry into the case was not a good moment. Yet I’m told that Mr.Ahmadi’s presentation was rather muted and one of the sources said he spoke to faintly it was hard to hear him. But the notes I’ve got from another source do spell out his arguments in more detail and they are rather more cogent than those made by most of the other counsel. For example, he is the only one to look at the dissents to the Lawrence decision made in the US Supreme Court, and he suggests that their spirit is closer to the ideology of our Constitution .

Mr.Ahmadi: The right to sexual orientation can always be restricted by principles of morality and health . The principle of strict scrutiny is exported from foreign decisions and is not a principle which can be used in our constitutional law. (The Delhi High Court used the strict scrutiny principle to hold 377 violative of Art 15) . Therefore the expression sex in Art 15 is only gender specific and does not include sexual orientation. To support this proposition I refer to constitutional assembly debates on Art 15 to show that this was not contemplated by the Founding Fathers. If you interpret privacy broadly then the adultery provision could also be challenged, a lot of activities that are perceived as sexually immoral will also come under attack. e.g. incest is condemned by most religions.  If a legislature enacts related to group sex (for same sex or different sexes) can this be challenged , going by the analogy of the High Court decision, you cannot
pass such a law.

Mr.Ahmadi then read from Justice Scalia’s dissent in the Lawrence case saying that the passages in the dissent are more in tune with our Constitution than the majority decision. He stressed on Scalia’s ruling that the promotion of majoritarian sexual interest was legitimate state interest. The law against public nudity , for example needs a rational basis, and why it is targeted against nudity is clear. The moral disapproval of same sex couples was no different form this law. The courts in the U.S. have taken sides in the ‘homosexual agenda’, where courts have decriminalized homosexuality without persuading a majority of their fellow citizens and without  a democratic majority. What the state of Texas had chosen to do (enact anti sodomy laws) was well within traditional democratic action. Later generations could always repeal these laws.

Mr.Ahmadi also read from Justice Thomas’ dissent in the Lawrence case, and he then brought up the religious arguments. He said that homosexuality was condemned by the Bible, Arthashastra, Manusmriti and Quran. He quoted the following cases- (1996) 2 SCC 648 (the right to suicide case where sanctity of life held to be a moral that could be protected through legislation), (2004)  11 SCC 26 (a case where the state could use disincentives promote family planning), the case of X v Y (this is really the name of a case which pitched the right to privacy of persons living with HIV/AIDS with public health concerns) and the case where the adultery provision was upheld. He cited the 42nd Law Commission report that says that homosexuality should not be repealed.

(Note: this is rather disingenuous on the part of Mr.Ahmadi. Law Commission reports are suggestions about what needs to be done to keep our legal system up to date, but the 42nd Law Commission report was issued in 1971 – over 40 years ago! Much more recently, the 172nd Law Commission report, issued in 2000, which deals primarily with the need to reform the rape laws, also clearly calls for the deletion of 377. Here’s a link: http://lawcommissionofindia.nic.in/rapelaws.htm)

Mr.Ahmadi stressed that courts by their very nature should not undertake the task of legislating. He said the Delhi High Court was not clear if it was severing the law, or reading it down. He said if the language of the section was plain, there was no possibility of severing or reading it down. He said that irrespective of the Union Government’s stand, so long as the law stands on the statute book, there was a constitutional presumption in its favour . He said there was not even a single Indian judgment to support the contention that Art 15 includes non discrimination based on sexual orientation

That’s it for arguments for the day, but before it ends, the Bench reminds Mr.Jain, the ASG, that they had asked for statistics on people with HIV/AIDS.

To help flesh out the notes for today, here’s a report from The Telegraph (thanks to Bruno for bringing it to my attention) which caught some comments that I don’t have and add a bit more detail to the proceedings:

Gay sex ruling runs into “morality” hurdle,
Our Legal Correspondent

New Delhi: Organisations representing Hindus, Muslims and Christians today objected to the Delhi High Court order legalising consensual homosexual behaviour in private on the grounds that it was “immoral” and against “religion” and “majoritarian sexual morality”.

Opening arguments in the Supreme Court in a batch of appeals against the order that kept all adult consensual sex in private out of the ambit of Section 377 of the Indian Penal Code, the Krantikari Manuvadi Morcha Party argued that laws were a reflection of a society’s moral standards. Societal morality and discipline was maintained by Parliament by framing laws, said Morcha lawyer Sushil Jain, who concluded his arguments today.

Adultery, sati and dowry were crimes because Parliament has enacted laws to prohibit them, Jain said, pointing out that sati was outlawed despite sati temples flourishing all around. “Ultimately Parliament has to see what is wrong and what is good for the society,” the Morcha said, also citing the anti-dowry and anti-narcotics laws as an expression of societal morality through Parliament.

The Morcha, which has been arguing for the past few days, cited the example of an earlier challenge to Section 498A of the IPC (the anti-dowry law) that fell through because the courts rejected the theory that misuse of a law could be a reason to strike it down.

Justice G.S. Singhvi, sitting alongside Justice S.J. Mukhopadhyaya, however, pointed out that in this instance the state had admitted to harassment of the gay community by police. Jain said harassment could be said to be a failure of the machinery and not a failure of the law. “By that logic, the whole of the IPC is being misused by police every day, it should be struck down,” he contended.

Justice Singhvi countered this saying: “If the state admits that the IPC is being misused, we can consider that.” The Morcha lawyer then argued that the harassment claim was not backed by any data. He also said Section 377 had once been amended by Parliament and every issue involved examined by the House.

After Jain had concluded, the Utkal Christian Council and the Apostolic Churches’ Alliance argued that Section 377 only targeted sexual activities and not people. They pointed out that sodomy was still a ground for divorce in many personal laws. Legalising gay sex, they feared, would lead to same-sex marriages and same-sex families.

Justice Singhvi intervened to say that things were changing at a very fast pace. He cited the example of the Sikh Gurudwara Act enacted by the British which described anybody drinking alcohol as “patit” or “fallen”. “By those standards, how many of us will now be patits?” the judge asked.

The All India Muslim Personal Law, through lawyer Huzfaa Ahmadi, objected to the government’s attempts to be neutral. Huzffa said: “It is the government’s constitutional obligation to defend the law. It cannot say that it will not take a stand.”

At this point, Justice Singhvi took a dig at the government: “This is a new phenomena. I will be neutral; I will not defend the law.” The government has sought the court’s permission to take a neutral position on Section 377, but has not yet been allowed to do so.

Huzfaa also pointed out that homosexuality was a crime in at least 76 countries. “Promotion of majoritarian sexual morality is legitimate state interest,” he said, citing a US judgment. The logic to justify homosexual behaviour — that it was adult, consensual behaviour in private — could be used to also validate incest and group sex, the lawyer said.

At the close of arguments today, Justice Singhvi sought information from the health ministry on the NGOs it enlists for controlling AIDS/HIV. The bench also directed a senior health ministry official to be present in the court tomorrow to present comprehensive statistics on the number of HIV-affected people in the country. -The Telegraph, Calcutta