14th April 2018 marks the 4-year anniversary of the decision of the Indian Supreme Court in National Legal Services Authority vs. Union of India which recognized for the first time the right to self-identify one’s gender as an integral part of the right to life under the constitution.
The theme of the conference this year is trans-formation of the law, which we have already begun to witness in India.  The recent right to privacy decision of the Supreme Court in 2017 reaffirmed that gender identity is part of the right to privacy and autonomy.  These victories sit side by side with ongoing challenges the trans community faces, as it has begun to use the law for empowerment and in the process trans-forming it. 2017 witnessed active voices raised against the Transgender Rights Bill for having failed to articulate the rights and concerns of transgender and intersex persons. The trans community in India and the world over has been accessing the courts for recognition of their legal identity, rights to marriage and family and challenging criminalization. Transgender rights have also been gaining recognition globally, with more jurisdictions passing gender identity recognition legislations and recognizing rights of the trans community. This conference seeks to learn lessons from such legal trans-formations for a better understanding of transgender equality in India.

There is no registration fees and attendees can register at the venue before the start of the conference.

Agenda and List of Speakers
Day – 1
9.30 am: Registration

10.00 am: Introduction and Welcome:Jayna Kothari,Executive Director, Centre for Law and Policy Research
Akkai Padmashali, Swatantra and Ondede

Panel 1: 10.30 am to 12:30 pm
Constitutional Trans*Formation

“The Right to Privacy judgement and its impact on Transgender Rights”: Anand Grover, Senior Advocate Supreme Court of India & Director, Lawyers Collective
“The Section 377 Challenge and the future” : Arvind Narrain, Arc International
“NALSA and after”: Akkai Padmashali, Swatantra and Ondede Trust

12:30 – 1:30 Lunch
Panel 2: 1:30 to 3.30 pm

Transforming the Courts

Trans*legalities: A Case Study of Court Records on the recognition of Trans* identities in Peru (2003-2016) : Prof. Carlos J. Zelada, Chair of the Law Department of the Universidad del Pacífico (Peru).
“Survey of Trans* Rights Case Law in India” : Jayna Kothari, Advocate, Karnataka High Court and Supreme Court of India, Executive Director, CLPR

“The Telangana Eunuchs Act Challenge: Experience as a Petitioner”: Vyjayanti Vasanta Mogli
Tea: 3:30 – 3:45 PM

Panel 3:45 to 5:30 pm

Trans* Families

Intimate Relations, Sexual Orientation and Gender Identity: Survey Evidence : Prof. Siddharth Swaminathan , Azim Premji University
Family Law and Transgender Persons: Transforming Family, Malavika Rakjotia, Advocate, Supreme Court of India
Trans experiences of Family. Uma, Jeeva

Day 2

Panel 4: 10.00 am to 12.00 Noon
Current Debates on Transgender Equality

The Future of Transgender Equality : Prof. Stephen Whittle, Professor of Equalities Law in the School of Law at Manchester Metropolitan University
Affirmative Action and Transgender Rights: The Experience with Caste: Prof. Sudhir Krishnaswamy, Azim Premji University

Lunch 12:00 pm to 1:00 pm

Panel 5: 1:00 pm to 3:00 pm

Right to Legal identity

Removal of Gender Markers: The Experience in Kenya: Audrey Mbugua, Transgender Education and Advocacy, Kenya
Legal Identity and Gender, Vikramaditya Sahai
Moderator: Anindya Hajra

3:00pm – 3:15pm Tea

Panel 6: 3:15 to 5.30 pm

Trans Lawfare: Global trends in Translaw movements
Third Gender or no Gender: Busiswe Deyi, South Africa
Trans Bill – Is this the Future? Or do we need a different Legislation: Aparna Banerjee, Amitie Trust
Gender Identity / Gender Expression – expansion of framework  YP plus 10 – Utopian framework for trans equality ?: Siddharth Narrain, Ambedkar University
Moderator: Jayna Kothari

DISCLAIMER 1: This article presents general musings on the law. This is not meant to be a legal white paper or reference guide, but more as a resource for awareness of the options available to the community. For specific legal guidance, please consult a lawyer.

DISCLAIMER 2: Legality, morality and social acceptance are different aspects. Just because something is not illegal, it does not mean that the society around you will accept or tolerate certain acts or situations. Please exercise caution and use your own discretion and judgement to gauge your safety within the socio-cultural environment of your locality/community.

There have been a few recent incidents that have highlighted the confusion among the general public, and among members of the queer community about the legality and illegality of certain situations. In April 2017 there were reports of a police sub-inspector in Punjab getting married to her partner. In July 2017 there was an incorrect report of a marriage between two women in Bangalore. Are such marriages illegal? Can you be arrested for using gay dating apps? What rights does one have if they are being harassed by cops, family members or exploiters because of their gender identity or sexual orientation? Does the queer community even have any protections in the law?

The laws pertaining to queer India, like Section 377, are filled with ambiguities. While the laws themselves may not be used to convict or persecute, the mere presence of them causes fear and anxiety in the queer community, which fuels power to real criminals like extortioners, harassers, rapists, abusers etc. The law has been used to oppress the community, sometimes even by the police themselves or by the own families of queer individuals. In this murky climate, the knowledge of the law is a more powerful safeguard than the very laws which are meant to protect us (in some cases indict us).

Before we get into specifics of our situations, let us understand a principle; “Not being legal does not equate to being illegal”. When something is illegal, it means that there is a provision in the law that specifically prohibits it and makes it a crime. For something to be legally validated, there should be a provision in the law which allows it or regulates it (for example selling a property is regulated by Transfer of Property Act). Now, there is an in-between scenario where there something is not illegal, while – at the same time – there is no law that governs it or regulates it, and it is not a crime. One example is the use (buying/selling/trading) of the bitcoin currency. It would not be illegal unless there is a law that specifically prohibits it, at the same time there is no legal law/authority to regulate the trading of it – which makes it legal but unregulated.

Let’s look at the legal situation for queer Indians in four brackets – Allowable Activities (not illegal – ideally cannot be convicted for), Activities not allowed (because of not having legal provisions), Illegal/Criminal activities (activities you can be convicted for under the current laws), and Legal protections available to individuals.

I. Allowable Activities in the current legal context

Ideally, you cannot be arrested/convicted for any of the following:

I.A. Gender Identity, Gender Expression and Sexual Orientation

– Being open about your gender identity and/or sexual orientation: There is no law today that criminalizes one’s identity of being Gay, Lesbian, Bisexual, Transgender, Queer, Intersex etc. Revealing that someone is a gay man only means that he is (mostly/exclusively) interested in other men: it does not necessarily equate to an admission of the sexual act with a man (which will anyway require evidence to incriminate – Read Section III for more). There are hundreds in India who have come out loudly and openly in print, visual, social media. Bottom-line, one cannot be arrested for coming out and being open about their identity.

– Expressing oneself in any gender or attire (gender-affirmative dressing, cross-dressing etc): “All persons, not just adults, have the right to dress in the attire they choose. This is a fundamental right as per Art. 19(1)(a) and affirmed by the Supreme Court Judgement in NALSA Vs. Union of India, (2014) 5 SCC 438.” (Shukla, pers. comm.)

Para 62 hereunder states: “Article 19(1) (a) of the Constitution states that all citizens shall have the right to freedom of speech and expression, which includes one’s right to expression of his self-identified gender. Self-identified gender can be expressed through dress, words, action or behavior or any other form. No restriction can be placed on one’s personal appearance or choice of dressing, subject to the restrictions contained in Article 19(2) of the Constitution.”

Caution: Though this is not illegal, expressing oneself by dressing or other mannerisms in a way that may not be perceived as acceptable by mainstream society, may provoke violence, especially against visibly gender non-conforming or non-binary individuals.

– Undergoing gender affirmation surgery or procedures at hospitals/clinics: Gathering Information or accessing gender affirming surgeries (formerly sex reassignment surgeries) and related procedures such as endocrine therapy  is a matter of right under the Supreme Court Judgement in NALSA Vs. Union of India, (2014) 5 SCC 438.

– Legally affirming gender in official identity and documentation: Applying for Gender/Name Change (better put as affirmation) in Government Documents (e.g., Passport, Election Card, Educational Certificates is a matter of fundamental right under the Supreme Court Judgement in NALSA Vs. Union of India, (2014) 5 SCC 438.

I.B.  Right to Personal Freedom

– Watching/reading gay porn in private, storing gay porn on your laptop is not illegal (except child porn), publishing porn is illegal. Watching/reading anything pornographic in private, possessing pornographic literature are not offenses under the law, as long as it doesn’t involve pedophilic porn (child porn). However, acts of publishing and transmitting any sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.   [Section 67A, Information Tech, Act, 2000]. Section 67B criminalizes browsing, downloading, creation, and publishing child pornography. Child anime porn is also explicitly criminalized.

 – Using dating apps: There is simply no law to regulate dating/hookup apps allowing their users to find matches for same-sex sexual intercourse/socialization. Hence, their usage is not illegal per se. However, with malicious intent, these acts might inadvertently make gullible users susceptible under section 377, IPC (See Section III).

– Meeting people and going for casual dates: Meeting people/going on a casual date/blind date is completely legal as there is no law that bars such an act. Also, meeting people is an act guaranteed as Right to Freedom of Assembly under Article 19(1)(b), which is a fundamental right under the constitution.

– Holding hands or hugging in public is not illegal though it might provoke violence or harassment from cops or others. Holding hands and hugging could be considered a guaranteed fundamental right as Right to Freedom of Expression under Article 19(1)(a) of the Constitution. However, kissing in public could be considered an offense under Section 294, IPC as an obscene act. However, it is often found that prosecution of such offenses fail as it is very difficult to establish “annoyance to public” which is the most important ingredient for this offense to have been committed. [references could be made to the judgment of the Delhi HC in A and B vs. State of NCT of Delhi, (25.05.2009 – DELHC) MANU/DE/0768/2009].

I.C. Partners, Relationships and Romantic Freedom

– Living together with your partner(s) of any gender as long as they are adults: Adults (persons more than 18 years of age) living consensually together in private premises is not an offense. See Arasu and Thangarajah (2012) for a discussion of how kidnapping charges are often levied by parents against the same-gender partners of their queer daughters: in cases like these, demonstrating that the individuals are adults and living together consensually is critical.

– Renting an apartment together and having a rental agreementFor rent agreements, there is no prescribed legal format which mandates the tenant(s) to disclose their relationship.

– Conducting a same-gender marriage ceremony/reception –Exchanging rings or solemnizing marriage through vows/rituals, with or without the presence of a priest, between persons of the same-sex is not a criminal offence. It is just that the law may not recognize such marriages as legal marriages, but that doesn’t make them illegal either.

In fact, Ruth Vanita has also argued a point that same-gender marriages could be legal (Vanita, 2005, in Shukla pers. comm.)  “The Hindu Marriage Act allows for a marriage to be solemnized as per customary rites (S.7)”, says Shukla. This means that if as per the customs of one of the parties, same sex couples were wedded, it could be argued that such marriages are legal. In reality, there is no judgment wherein, any court has ever validated any such custom on such a matter or otherwise. See Narrain and Ohdedar (2011) for a legal perspective on same-sex marriage in India.

Whatever be the deal, conducting a ceremony is not illegal – just as throwing a birthday party or house-warming party isn’t.

– Sharing pictures of you and your partner/your marriage ceremony:Sharing pictures of you and your loved ones (friends or partners) online/offline is not an offense. Do be cautious that sharing pictures publicly might prompt haters to gather evidence to indict you under Section 377 (Refer Section III).

– Buying a property as co-owners – subject to rules of apartment / society: Buying a property as co-owners is legally possible. Accessing joint home loans is also possible, but in most cases the Banks discourage such practices. However, there are no explicit law that disables any person(s) to apply or avail home loan jointly. There are ways to get around this law.

– inheritance as part of a will (preferably a registered will): “There is no bar on willing away one’s self acquired property to anyone. The person need not be related to the maker of the will. After all, people do will their property to charities/causes etc.”  (Shukla, pers. comm).  However, do note that if, the legal-heirs of the deceased (testator) may always go to court claiming the invalidity of such a will – and then the issue gets complicated.

I.D. Freedom to participate in and organize queer events

– Participating in pride parades, queer film festivals or gay/queer parties: Participating in Pride Parades, Queer film Festivals, cultural events or parties is a matter of a fundamental right guaranteed by the constitution as a Right to Freedom of Expression and peaceful assembly under Article 19(1). The onus is on organizers to take the requisite permissions for conducting the event,

– Organizing a queer pride parade – Organizing a pride parade is legal (similar to holding a rally/march). Permissions need to be sought from local municipal body, civil and traffic police, on the specified route approved by them. This has religiously been followed by pride organizers across India. The police though has very vague/broad powers to not allow or stop an ongoing programme under Section 144 of Criminal Procedure Code, 1973 and under the respective State Police Acts.

– Organizing a queer film festival – It is just as legal as organizing any other national or international film festival. There are specific rules that apply for public screenings and private screenings of films. Please reach out to organizers of popular queer film festivals for more details.

– Organizing gay/queer parties – Queer parties are as legal as any other parties. Like organizing a party at any other party venue, permissions should be taken, and the local municipal laws must be abided by. Local municipal laws may restrict localities, timings, alcohol service, noise decibel levels, number of persons etc. Needless to say, it is illegal to possess or distribute illegal drugs during any such parties.

I.E. Other acts

– Money in exchange of sexual services: The law is vague on sex work itself, and tends to conflate sex work with trafficking. In India, sex work (the exchange of sexual services for money) is legal, but a number of related activities, including running a brothel, living on earnings of sex work, procuring, inducing an individual or detaining them for prostitution, with or without consent, sex work in areas notified by police and near public places and soliciting are crimes, as per the Immoral Traffic Prevention Act [1986 amendment of the original 1956 Act]. The 1986 Amendment also made the Act gender-neutral, replacing “girls” and “women” by “persons”, thereby bringing cis-men and trans persons within the ambit of the Act.

It is not clear if online solicitation though dating apps or websites is illegal or not.The clients can be punished for sexual activity at or close to a public place (or notified area).

II. What is not possible in the current legal context

– Same-gender partners legally being recognized as married spouses: Same-gender partners are not recognized as legal spouses in the absence of a law allowing same-gender marriage or union. The rights available to married different gender (“heterosexual”) couples are not available. Since there is no marriage or legal civil union, there is no question of divorce.

– Being recognized as spouses for life insurance (possible but tricky): There appears to be no restriction on nominating anyone one desires as a nominee under an insurance policy as per the Insurance Amendment Act (Shukla pers. comm). However, nominating unrelated parties (since the partner is legally unrelated), that is, those who do not have an insurable interest in the life of the insured increases the risk for the insurer. Therefore, insurance companies usually avoid registration of unrelated parties as nominees, and it is almost impossible to negotiate such a deal with them.

– Being recognized as spouses/family for medical insurance: Same-gender partners are typically not covered under a family medical plan. However, some progressive companies in India have managed to provide this under their corporate group insurance policy. See this video from the Diversity Dialogues series for some options.

– Being able to sign as next-of-kin in a medical emergency: Same-gender partners cannot take legal decisions with respect to the medical condition of their partners, or sign the dependent forms in hospitals.

– Being considered as a legal-heir (in the absence of a will): if a person dies before making a will, then as per the laws on succession, the property of the deceased by default is succeeded by the legal-heirs of such deceased, i.e., persons who are related by birth or marriage (heteronormative-kinship ties). Same-gender partners are not considered as legal surviving heirs.

– Opening a joint account as spouses: Since there is no legally recognized relationship between same-gender partners banks will not create joint accounts. However, there are other juggaads to do this (If you can’t create a family entity you can always create a business entity!)

– Acquiring a joint home loan: In most cases the Banks discourage such practices. However, there are no explicit law that prevents any person(s) from applying or availing of home loans jointly. There may be (difficult) ways to get this done.

– Adopting children as a same-gender couple. Joint custody of a child is not possible. Though adoption is possible as a single individual, there are many rules.

– Surrogacy as a couple or as a single individual – It is still not clear whether it is legal/illegal, as there is no law in effect to address this at the moment. So, technically, it is still possible, but it appears  very difficult under the current governmental regime as surrogacy – both as a single individual or a same-gender couple – may not possible as per amendments proposed in the law in 2016, where homosexuals were specifically called out and excluded from access to surrogacy. However, the Surrogacy (Regulation) Bill, 2016, is yet to be passed by the Parliament.

III. What IS illegal / crime (you can be arrested for)

Section 377 of the Indian Penal Code criminalizes sex “against the order of nature”, even if it is consensual and private. This covers anal sex, oral sex, etc. The Criminal Law (Amendment) Act of 2013 included non-consensual oral and anal sex of the “heterosexual” variety in its definition of rape (Ramakrishnan, pers. comm.) Thus, same-gender acts alone, whether consensual or not, continue to be considered a crime under 377/

There needs to be evidence of such an act happening between two individuals for getting convicted under Section 377. Now, if someone with an intention of malice tried to indict someone under section 377, they would have to collect evidence of the sexual act. Unless the victim is caught having sex in public, the perpetrator would have to themselves violate one or more laws to gather such evidence – such as trespassing into the victim’s private space etc.

While convictions haven’t happened (unless in the case of non-consensual acts and child sexual abuse) – intimidation, blackmail, harassment, unlawful detention and arrests by the police do happen. Queer support organizations can help individuals in such situations. Refer to the next section on legal protections available.

IV. Legal protections available to queer individuals

– Protections under the NALSA judgement:

A two-judge bench of the Supreme Court of India, after hearing the petition filed by the National Legal Services Authority, passed a historic judgement on Transgender Rights on April 15, 2014. Detailed coverage of this ruling is available on Orinam here.

Quoting from Lawyer’s Collective, “The Supreme Court also firmly secured the right to equality and equal protection for transgender persons under Articles 14, 15 and 16 by prohibiting discrimination on the ground of gender identity. It has broadened the scope of the term ‘sex’ in Articles 15 and 16, which till recently   meant   biological   sex   of   male   and   female,   to   include ‘psychological sex’ or ‘gender identity’. Significantly, the Court also declared that no one can be discriminated against on the ground of sexual orientation.”

– Section 388 and 389 of the IPC

Sec. 388. Extortion by threat of accusation of an offence punishable with death or imprisonment for life, etc.—Whoever commits extor­tion by putting any person in fear of an accusation against that person or any other, of having committed or attempted to commit any offence punishable with death, or with 1[imprisonment for life], or with imprisonment for a term which may extend to ten years or of having attempted to induce any other person to commit such offence, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if the offence be one punishable under section 377 of this Code, may be punished with 1[imprison­ment for life].

Sec. 389. Putting person in fear of accusation of offence, in order to commit extortion.—Whoever, in order to the committing of extor­tion, puts or attempts to put any person in fear of an accusa­tion, against that person or any other, of having committed, or attempted to commit an offence punishable with death or with 1[imprisonment for life], or with imprisonment for a term which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if the offence be punishable under section 377 of this Code, may be punished with 1[imprison­ment for life].

Sec. 388 thus covers  instances in which in which extortion is actually committed after putting a person in fear of being accused of an offence such as Sec 377 that carries with it a large punishment. Sec. 389 covers situations in which actual extortion does not occur,  but the extortioner puts a person in fear of being accused of an offence such as Sec 377 (Shukla pers. comm.)

Essentially Section 388 and 389 can be used against persons found guilty of extortion/harassment or attempts to do so, in relation to accusations that relate to Section 377. Punishment for extortion under Section 377 is explicitly called out in both sections. See Suraj Sanap’s detailed discussion on Sec 389 in Gaylaxy magazine here.

 – Blackmail/Extortion/Defamation for outing a person

The regular laws for blackmail and extortion could typically be used against perpetrators claiming to ‘out’ queer individuals to their families, workplaces or in public media, if it could be argued that the intention was to create a fear of injury to the person’s reputation. One could also explore filing a defamation (Sec. 499) case for the same.

In case money or valuables are demanded – robbery or other forms of extortion under Sections 385-387, IPC can be helpful.

In case images are being used – Section 292-A – printing etc. of grossly indecent or scurrilous matter or matter intended for blackmail.

Read a detailed resource on dealing with extortion on Orinam here.

 – Protection of Women from Domestic Violence Act (PWDVA), 2005

The Protection of Women from Domestic Violence Act, 2005, includes with in its ambit physical, mental, emotional and sexual violence perpetrated by family members. It can be potentially be invoked against parents of queer cis women (and, arguably, of trans masculine persons whose assigned gender at birth was female) if the parents are forcing their female-assigned adult offspring to marry a man. In cases where the individual is not out about being queer/trans, the fact of being forced to marry suffices for relevance, and the sexuality/gender identity of the individual need not be offered as a reason (Ramakrishnan, pers. comm.)

– Can workplaces fire individuals for their gender identity or sexual orientation?

While, we have labor laws that can generally protect against unfair dismissal of employees from service without valid reasoning, there is no specific protection in labor laws for individuals fired specifically for being queer.

However, the NALSA judgement does mandate equal opportunity and protection to transgender individuals in matters of employment. As Surabhi Shukla says, “Paras 58 and 59 of the NALSA judgment say that dismissal from employment on grounds of non-conformity to stereotypical generalization of binary genders are protected under Art. 15 and 16.”

In his summary of the NALSA judgement Danish Sheikh writes “The Court maintains at several points that discrimination on the basis of sexual orientation and gender identity is violative of fundamental rights. While it maintains at   different   points   that   its   analysis   is   limited   to   the   transgender   community, statements like these have the potential to be used for pushing for non-discrimination and relationship recognition provisions for the LGBT community as a whole. Even within the category of gender identity as a ground for discrimination, the Court notes that the right against sex discrimination stands “to prevent the direct or indirect attitude to treat people differently, for the reason of not being in conformity with stereotypical generalizations of binary genders.” This   reasoning   can   be   used   to contend against discriminatory workplace behaviour against men and women who don’t conform to gender stereotypes of being attracted to persons of the opposite sex, amongst other applications”

There are many progressive employers who are starting to create anti-discrimination policies and equal opportunity policies that specifically include sexual-orientation, gender identity and gender expression. Queer individuals must start reviewing such policies before joining organizations and understand if their workplace would truly protect them from discrimination on the grounds of being queer.

While there is still a long way to go before which queer individuals can claim to be equal citizens of this country, we should not take for granted the freedom we already have. We must not overlook our own privileges, compared to some of our brethren in many parts of the world.

It is said that Knowledge is Power. This knowledge of the law will help us stand up against our oppressors, or find our way out of tricky situations. Here is a wonderful short film that shows how an empowered and enlightened mother can stand up for her [possibly] queer child.

More queer power to all!

Credits: The authors would like to thank Surabhi Shukla and L. Ramakrishnan for their review and points referenced in this article. This article originated in a post by Ritesh Rajani in the Facebook^TM group of the Bangalore-based queer collective Good As You.

Request: Lawyers, legal researchers and individuals experienced in crisis support are invited to add (caveats) to this compilation by leaving replies in the Comments section below.

References and Further Reading:

Arasu, Ponni and Priya Thangarajah. 2012. Queer Women and Habeas Corpus in India: The Love that Blinds the Law. Indian Journal of Gender Studies. Vol. 19(3), page(s): 413-435
DOI: https://doi.org/10.1177/097152151201900304

Narrain, Arvind and Alok Gupta. 2011. Law Like Love: Queer Perspectives on Law. Yoda Press 650 pages.

Narrain, Siddharth and  Birsha Ohdedar. 2011. Same-sex marriage and other queer relationships in India: a queer perspective. ALF and Orinam. https://new2.orinam.net/resources-for/law-and-enforcement/same-sex-marriage-in-india/

Vanita, Ruth. 2005.  Love’s Rite: Same-Sex Marriage in India and the West. Palgrave Macmillan US. Hardcover ISBN 978-1-4039-7038-1 Softcover ISBN 978-1-349-53208-7

Senior Advocate Anil Divan, described by the Indian Express as “the conscience of the bar”[1] – passed away on 20 March, 2017.

Tributes have been pouring in for Mr. Divan’s contribution to many matters of public importance – his role as amicus curaie in cases concerning corruption at the higher levels of the bureaucracy and political leadership: the Jain Hawala case, the Chandraswami case, the Indian bank scam case – and his advocacy on behalf of Ram Jethmalani in the Black Money case. [2]

What has not been noted so far is Mr. Divan’s unstinting support to the LGBT community. While the LGBT community is more familiar with the name of Vivek Divan who has been a long standing queer activist, and Shyam Divan who has represented Voices Against 377, their father Anil Divan has been among the earliest supporters of the rights of the LGBT community.

Our struggle in court has seen some success, and has had its share of setbacks. One early setback was the Delhi High Court’s 2004 dismissal of Naz foundation’s challenge to Section 377 on the grounds that the challenge was merely ‘academic’, because Naz Foundation was not a person directly affected by the provision. Mr. Divan, acting pro bono publico – i.e., in public interest and without a fee – argued on behalf of Lawyers’ Collective and Naz Foundation, and asked the High Court to reconsider its decision. Lawyers present at that hearing recollect a hostile bench, unwilling to admit it had erred. But those lawyers also recollect Mr Divan’s resolute, dignified and impassioned advocacy – a refusal to yield until every error in the court’s reasoning had been laid bare, and every opportunity given to the Bench to remedy those errors. Although Mr. Divan was unsuccessful and that bench could not be persuaded to reconsider its decision, the Supreme Court was to subsequently overturn that decision and direct the High Court to rehear the petition. And it was at this rehearing that the High Court bench of Justices A.P. Shah and Justice Dr. S. Muralidhar were persuaded to deliver the celebrated Naz foundation versus Union of India judgment of 02 June 2009.

But Mr. Anil Divan’s support to the LGBT cause was not limited to in-court-advocacy. In 2005, he added his name to Vikram Seth’s open letter calling for repeal of section 377, and to an end to discrimination on the grounds of sexual orientation. He was one of only three Senior Advocates to do so.

And in October 2006, Mr. Divan detailed in the pages of The Hindu, in simple and clear language accessible to lay readers, developments in judicial understanding of sexuality rights as human rights, in Ireland, the United Kingdom, South Africa, Hong Kong, the United States, and the European Court of Human Rights. He referenced an opinion of a US Supreme Court judge that “only the most wilful blindness could obscure the fact that sexual intimacy is a sensitive, key relationship of human existence, central in family life, community welfare and the development of human personality”[3] and then said:

‘India must march in step with other democracies on this human rights issue. It must emulate the sentiment of the European Court that such restrictions on the most intimate aspect of private life are not necessary in a democratic society that values tolerance and broadmindedness.’

As a much-respected public intellectual, and an acknowledged scholar of constitutional law and public law, Mr. Divan’s newspaper opinion was of particular significance.

The High Court decision of Justices Shah and Muralidhar had upset approximately 150 years of judicial reasoning and precedent. Predictably, it was met with a flurry of appeals challenging it, and asking for it to be immediately and summarily stayed. Mr. Divan stepped-up again for the LGBT community to argue that to stay the judgment would cause irreparable harm to the lives and the dignity of the many whom the High Court judgement had decriminalised. This time, however, he was joined by several other Senior Advocates. Stay was refused and the High Court judgment remained in operation for four years until it was overturned by the Supreme Court on 11 December 2013, in Suresh Koushal vs Naz Foundation.

Mr. Divan’s commitment to the rights of the LGBT community was a part of his broader commitment to constitutional principles and the rule of law. That commitment was on display when he resisted before the Supreme Court, the central government’s claim that it could pay less than minimum wage for work performed under the Mahatma Gandhi National Rural Employment Guarantee Act (‘MGNREGA’). That claim had been rejected by the Karnataka High Court and the central government was challenging the Karnataka High Court’s decision before the Supreme Court. The union government threw its weight behind that challenge and had its highest ranking law officer – the Solicitor General (SG), represent it. After the SG had made a forceful, persuasive, and compelling argument for staying the High Court judgement, referencing the limits of the state’s financial capacity, the intentionality behind the Employment Guarantee Act, the likelihood of a mismatch between budgetary allocation and minimum wage, et cetera, the bench seemed convinced of the need to stay the High Court’s judgement. More worryingly, the first hearing of the case was happening on a ‘miscellaneous day’, on which days most cases are dealt with in a matter of minutes, and the SG appeared to have used-up all the time and patience that the bench had for one case. By the time the SG was winding down his arguments, stay of the High Court judgement seemed a foregone conclusion: until, that is, Mr Divan rose to his feet and boomed – “You will not pass any orders until you have heard me”. Mr Divan then proceeded to conduct a masterly exposition of 45 years of the Supreme Court’s minimum wage jurisprudence, with barely an interruption, from bench or from adversary. When he was finished, there was no doubt that the SG’s request for stay of operation of the High Court judgement was not to be granted.

Mr. Divan’s respect for constitutional principle made him a watchful critic of the High Courts and the Supreme Court. He is quoted as having said ‘India is like a mini-Europe. There is great diversity. And what keeps this diversity together is our judiciary. Is it then not important that it be kept independent and separate from the executive?”[4]. And so, when Parliament’s attempted fix of the broken system for the appointments of Judges to the High Court and the Supreme Court, seemed to tamper with the core tenet of impendence of the judiciary Mr. Divan represented the Bar Association of India, challenging the constitutionality of the parliamentary solution. It is reported that Mr. Divan’s arguments weighed substantially with the Supreme Court when it struck down the amendments to the Constitution that provided for the National Judicial Appointments Commission.

For the better part of the life of the Indian republic, the Supreme Court had held that parties who had finally lost their cases before it, could ask for the decision against them to be reconsidered/ reviewed by that court only once, and that too, only on very limited grounds. By that standard, after the Supreme Court had, by an order passed on 28 January 2014, refused to review its 11 December 2013 judgement reversing the Delhi High Court judgement of Justices Shah and Muralidhar, the challenge to the constitutionality of section 377 would have ended. In a landmark decision in April 2002 however (Rupa Ashok Hurra vs Ashok Hurra), the Supreme Court had declared that when it had been established that a judgement rendered by it had resulted in a “gross miscarriage of justice”, “it would not only be proper but also obligatory both legally and morally to rectify the error”. This judgement was based on a careful and studied review of the jurisprudence of several other countries as well as the Supreme Court’s practice over the years. The Supreme Court was assisted in reaching its conclusion by the erudition of a handful of its most respected senior advocates, among who was Anil B. Divan. And it is this decision, arguably creating an entirely new source of power in the Supreme Court, which has allowed the Supreme Court to reconsider its unfortunate decision in Suresh Kumar Koushal v. Naz Foundation, because that decision resulted in a “gross miscarriage of justice”.

In his preface to a collection of his essays “On the Front Foot”, Anil Divan stated that the book aimed at illuminating the spirit of courage displayed when, in moments of crisis, people have chosen to “stand up and be counted”. After a quick listing of some such moments and persons, the preface narrates an incident reported from Robben Island prison, during South Africa’s apartheid years. The story goes that the complete works of Shakespeare were smuggled into Robben Island prison, and the book was surreptitiously circulated amongst prisoners, and each was asked to mark their favourite passage. Nelson Mandela – reports Mr. Divan – marked out Caesar’s words “Cowards die many times before their deaths. The valiant never taste of death, but once”. Having narrated Mandela’s preferred quotation, Mr. Divan closed his preface with these words:

“Each generation reaches its finest hour by inspiring the next, by sharing its priceless experiences and courageous battles, in the never-ending struggle in support of the independence of the judiciary to uphold the Rule of Law, founded on Human Rights.”

In his courageous battles, in his struggles to support the independence of the judiciary, and in his striving to uphold the rule of law and human rights, Mr. Divan’s life is the finest hour of his generation, an inspiration to the next.

Lawyers representing Voices Against 377 in the Delhi High Court and Supreme Court

References

[1] (http://indianexpress.com/article/india/conscience-of-the-bar-anil-divan-dies-at-86-4578244/).

[2] http://www.livelaw.in/india-lost-great-lawyer-tribute-anil-divan-ram-jethmalani/, http://barandbench.com/senior-advocate-anil-divan-no/, http://www.legallyindia.com/home/anil-divan-legendary-senior-counsel-pil-pioneer-died-today-20170320-8355, and http://www.outlookindia.com/newsscroll/senior-advocate-anil-divan-passes-away/1010753.

[3]http://www.thehindu.com/todays-paper/tp-opinion/human-rights-versus-section-377/article3059822.ece

[4]http://barandbench.com/senior-advocate-anil-divan-no/

This talk was part of ‘TransForm: Transgender Rights and Law‘ conference, organized by the Centre for Law and Policy Research (CLPR),  on December 14-15, 2016, and held at the Indian Institute for Human Settlements, Bengaluru.

Orinam thanks Gee for consent to share this on Orinam, and CLPR for making this available in the public domain (see TransForm site for links to other talks).

To respond to claims by some African governments that science supports criminalisation of homosexuality, the Academy of Science of South Africa (ASSAF), in collaboration with the Uganda National Academy of Sciences (UNAS), assembled a thirteen-member panel of scholars across multiple disciplines such as paediatrics, epidemiology, HIV medicine, behavioural science, psychology, anthropology, ethics and gender studies to review the current literature in their respective fields of expertise.

The resulting report “Diversity in Sexuality: Implications for Policy in Africa”, published in May 2015, answers most of the arguments used to stall decriminalisation of homosexuality and to pathologise LGBT people as mentally ill or deviant.

It needs to be read by all law-makers and parliamentarians responsible for keeping Section 377 on the books in India. The report is also essential reading for policy makers associated with the Ministry of Health and Family Welfare, Indian Council of Medical Research and Medical Council of India. It consolidates all the evidence needed for these bodies to work together and stop ‘conversion therapy’ by medical professionals, still a rampant practice in the country.

We reproduce below the Executive Summary of the report. The full report may be downloaded from the Academy of Science of South Africa (ASSAF)  website.

EXECUTIVE SUMMARY

Although two-thirds of countries in the world no longer outlaw lesbian, gay, bisexual, transgender and intersex (LGBTI) relationships, same-sex relationships are still illegal in 76 countries. In the recent past, new laws have been passed in Russia, India, Nigeria, Bu-rundi, Cameroon and Uganda and are being contemplated in other countries to further prohibit same-sex relationships or the so-called ‘promotion of homosexuality’. There is evidence that such new laws precipitate negative consequences not just for LGBTI persons and communities, but also for societies as a whole, including the rapid reversal of key public health gains, particularly in terms of HIV and AIDS and other sexual health programmes, increases in levels of social violence, some evidence of reduced economic growth, and the diversion of attention from sexual and other violence against women and children.

Partly because those arguing in favour of criminalising sexual and gender diversity have made explicit appeals to science, this report examines the extent to which science sup- ports any of the arguments that proponents of these new laws make. Drawing on recent scientific evidence and, where possible, on systematic reviews, the report seeks to pro- vide an up-to-date overview of the state of the current biological, socio-psychological, and public health evidence and assess how this supports, or contests, the key arguments made in favour of new laws. This report considers the following questions:

1. What is the evidence that biological factors contribute to sexual and gender diversity? To what degree is the wide diversity of human sexualities explained by biological factors?
2. Do environmental factors such as upbringing and socialisation explain the diversity of human sexuality?
3. Is there any evidence for same-sex orientation being ‘acquired’ through contact with others, i.e. through ‘social contagion’?
4. What evidence is there that any form of therapy or ‘treatment’ can change sexual orientation?
5. What evidence is there that same-sex orientations pose a threat of harm to individuals, communities, or vulnerable populations such as children?
6. What are the public health consequences of criminalising same-sex sexual orientations and attempting to regulate the behaviour/relationships related to some sexualities?
7. What are the most critical unanswered scientific research questions regarding the diversity of human sexualities and sexual orientations in Africa?

Global bodies, such as the World Health Organisation (WHO) declassified homosexuality as an illness or disorder in 1990 and there is now a wide global consensus among scientists that homosexuality is a normal and natural variation of human sexuality without any inherently detrimental health consequences. In this context governments have a duty to consider scientific perspectives and draw on the most current scientific knowledge when creating policy and enacting laws. In terms of sexual orientation, significant and even path-breaking research in a variety of fields has taken place in the recent past. Much of this research is not widely known to policymakers yet, nor is it in the public domain. This report aims to bring the most recent replicated and respected global research to the attention of policymakers.

Examining the biological factors, including genetic, neurohormonal and other factors, the report concludes that contemporary science does not support thinking about sexu- ality in a simple binary opposition of hetero/homosexual and normal/abnormal. Rather, it favours thinking in terms of a range of human variation, very little of which can justifi- ably be termed abnormal. As variation in sexual identities and orientations has always been part of a normal society, there can be no justification for attempts to ‘eliminate’ LGBTI from society. Efforts should rather be focused on countering the belief systems that create hostile and even violent environments for those who are made to feel alienated within societies that privilege male power across political, social and family domains.

The panel concludes that there is substantial biological evidence for the diversity of hu- man sexualities and for sexual orientations in particular. Studies have found significant linkage between male sexual orientation and regions of the X chromosome, though the exact manner in which gene expression impacts on sexual orientation remain to be determined. Familial patterns with regard to same-sex orientation, particularly in men suggest a strong likelihood of biological elements. In addition, although limited in number, some pedigree studies, tracing thousands of female relatives of heterosexual and homo- sexual men, found convincing evidence that female relatives of homosexual men have increased fecundity, i.e., on average, they bear more children compared to female rela- tives of heterosexual men. This may provide a key to the major evolutionary paradox of presumed reduced fecundity because of the relatively high prevalence of same-sex- attracted men in every society.

Although less well studied, there is also considerable evidence for a biological component for same-sex orientation in women and for bisexuality.

Socio-behavioural research demonstrates unequivocally that both heterosexual and ho- mosexual men feel that they have/had no choice in terms of their sexual attraction. The majority of women who experience same-sex attraction also express a lack of a sense of choice in their sexual orientation, although there is evidence for much greater fluidity in sexual orientation among women of all sexual orientations.

The study explores – and finds lacking – evidence to support the contention that the way parents bring up their children, or the relationships formed between children and parents, impact on sexual orientation. While family environment may shape other elements of sexuality and the way sexuality is expressed, and while construction of gender and sexual identities have strong social and cultural components, there is little evidence that orientation is directly correlated to family upbringing.

This report explores but could find no evidence that sexual orientation can be acquired through contact with LGBTI persons. Instead, the panel found substantial evidence that tolerance of same-sex orientation not only benefited LGBTI persons but impacted positively on public health, civil society and long-term economic growth in societies across the spectrum of economic development. ‘Peer pressure’, although a powerful influencer of young people’s behaviour, has not been shown to influence same-sex activity or the development of same-sex sexual or bisexual orientations.

The panel explores a wide variety of sources and studies and could find no evidence link- ing LGB sexual orientation or transgender people with the ‘recruitment’ of young people through childhood sexual abuse. Given the high prevalence of childhood sexual abuse in Africa, the protection of all children should be paramount. As there is no evidence that adult sexual orientation is correlated with abuse in childhood, this false connection should no longer be used to justify the marginalisation of LGBTI persons.

This study finds abundant and robust evidence that more repressive environments in- crease minority stress and impact negatively on LGBTI health. There is overwhelming evidence that this has a direct impact on the general population’s health, particularly in terms of HIV and AIDS, tuberculosis (TB) and other sexually transmitted infections (STI) reduction efforts. There are no known positive impacts on public health because criminalisation cannot stop people from feeling same-sex attractions and expressing same-sex orientations. Such legislation also cannot stop same-sex or bisexually-orientated people from having relationships, sexual and otherwise, with the wider population in any society.

The study explores and could find no evidence that same-sex orientation can be changed through ‘conversion’ or ‘reparative’ therapy. It highlights that 50 years of research have not found same-sex attraction to be inherently pathological or a malady of any kind. Studies have also not been able to show any particular social harm of consensual relationships between adults, nor any negative impact on broader communities. Given the documented dangers of such therapy and its direct conflict with medical ethics, these interventions are contra-indicated. Further, recognising the ineffectiveness of conversion therapy, we recommend the wide dissemination of this information especially to health professionals across Africa and beyond.

The study suggests that African health professionals and their associations should adopt affirmative stances towards LGBTI individuals. Psychosocial interventions and support particularly for adolescents are recommended to facilitate the adjustment of same-sex- orientated persons to the stress, stigma, shame and discrimination they may face and to affirm their choices and orientations.

This report concludes that almost all of the recent scientific research regarding human sexualities needs to be much more widely disseminated and discussed in public, and should indeed be drawn upon by policymakers when contemplating new legislation.

March 10, 2014

To:
President, Members of Parliament and the People of Nigeria

Through:
H.E. Ndubuisi Vitus Amaku
High Commissioner of the Federal Republic of Nigeria
EP.4 Chandragupta Marg,
Chanakyapuri New Delhi-110021
India
Tel: (+91) 24122142/143/144
Fax: (+91) 24122138

We register here our strong condemnation of the Same Sex Marriage (Prohibition) Act, 2013. The act, signed by President Goodluck Ebele Jonathan on January 7, 2014, violates the basic human rights of same-sex desiring individuals, their families, friends, loved ones and their supporters, by impeding their right to live and love without harm to others, in enjoyment of the rights of freedom and equality guaranteed by the Nigerian Constitution and the African Charter on Human and People’s Rights. In the face of this severe blow to the struggle for universal human rights, we reassert our solidarity with the lesbian, gay, bisexual, trans*, and queer people of Nigeria, and of all 36 of Africa’s 55 countries where same-sex relations are illegal.

The Act not only prohibits and criminalises the institutionalisation of same sex relationships, but also prevents the registration of organisations, clubs or societies that pertain to multiple queer genders and sexualities. Public display of amorous relations between persons of the same gender invites a jail term of up to 10 years, and anyone – irrespective of their sexuality – who witnesses and/or aids a same sex civil union, meeting, registration of organisation is also liable to be punished under this draconian law. It is clear that the law is meant to clamp down on any form of love and affection that is non-heteronormative. We are astonished by the Nigerian government’s blind and misguided belief that a law can serve as an effective deterrent to love.

We write as citizens and groups of India, also a former British colony grappling with the multiple legacies of colonialism, of which the inheritance of homophobic laws is only one. Section 377 of the Indian Penal Code, 1861, recently reinstated by the Supreme Court represents the most aggressive institutionalisation of the criminalisation of homosexuality in the Indian subcontinent. In both cases, the State has acted against its people, failing not only to recognise their fundamental human rights, including the right to dignity, equality, non-discrimination and personal liberty, but also effectively condemning millions of its citizens to compromised health. This is particularly egregious in countries like India and Nigeria with some of the world’s largest populations of persons affected by HIV/AIDS. The threat of violence, harassment, and abuse against queer persons in both countries will continue unabated, having now received a particularly insidious form of State sanction.

We believe that it is homophobia, rather than homosexuality that is a colonial legacy. Today, we are engaged, along with our counterparts in other ex-British colonies, in an on-going struggle against this legacy of colonialism, a struggle in which we have relied primarily on the activist labours of our people and on the moral and legal commitments of laws and Constitutions that we have given unto ourselves. As a postcolonial state that is proud of its hard-won independence, we understand, share and support Nigeria’s commitment to realising and maintaining democratic decision making processes, in line with your Constitution and in the exercise of your sovereignty, unimpeded by the external world.

It is important to emphasise that the Act disregards and devalues the lives of Nigeria’s own people. We urge you to listen to those brave Nigerian voices in every walk of life, who have stood up for basic human rights and fundamental freedoms of all people in Nigeria without regard to considerations of tribe, region, religion, sex, nationality, disability, or sexuality.

We reach out in solidarity against attempts at imperialist control over our political, moral, ethical and cultural lives. The irony of history is that the Same Sex Marriage (Prohibition) Act, 2013, which is an instance of such attempts at control, is being hailed as evidence of the expression of sovereignty but is in fact criminalizing long, established and documented cultural practices of same sex desire and relationships in Nigeria. To recognise the rights of all Nigerians to lives of dignity, equality and freedom of expression and assembly, by immediately repealing the Same Sex Marriage (Prohibition) Act, 2013, would be the true assertion of sovereignty.

Signed:

[For full list of signatures, click here]