A Report on the findings from a closed door public hearing on April 1, 2023
PDF report is available in
English | Hindi | Marathi | Bengali

Organised by PUCL and National Network of LBI women and Transpersons
17th April, 2023 The Supreme Court hearings in front of the five-judge Constitution bench headed by the Chief Justice of India (CJI) DY Chandrachud on Marriage Equality start tomorrow. These proceedings have generated a lot of interest all over the country and the world, but even more so has set many queer and trans hearts racing in multiple ways, and not similarly. It is with this precise moment in mind that PUCL and the National Network of LBI women and Transpersons are releasing this report to the public today.

This report is not about Marriage Equality, though the right to marry is one of the recommendations made by the panelists. But this report is very much about the lives of the queer and trans persons whose rights will be debated not just in the Supreme Court, but all around us, in the media, on the streets, in houses and where you have. The voice of the State has already become clear in the invocation of sanskar, sacrament, and such like in the defence of the cis and heterosexual marriage and family. There is a slew of voices all around defending the existing structures of families and opposing the right of not just queer and trans persons, but also inter-religious and inter-caste heterosexual couples to live as they desire.

This moment therefore, is as much about families, and not just about marriage. While the focus is on the demand for marriage equality for queer and trans folx, the legitimacy given to assigned families is as much under question. Chosen families and intimacies cannot be thought of without also looking at the reality of what assigned families do to their queer and trans children.
This report is about the families that are assigned to us and those that often are the biggest road blocks to being able to live the way we want to. The families that are supposed to be spaces of nurture, care and support, turn against their own children (often at very young ages), treat them with utter disregard and violence, and force them to conform to socially accepted ideas of what is “normal” without any regard to the individual’s dignity or personhood. Stigma and violence run deep within the space of these families that are assigned to us at birth (or adoption).

A closed-door Jan Sunwai or Public Hearing on Familial Violence on Queer Trans People was organised by the People’s Union for Civil Liberties (PUCL), along with the National Network of LBI (Lesbian, Bisexual, Intersex) Women and Trans Persons (The Network) to bring these concerns in to focus was held on April 1, 2023 before an eminent panel of judges, lawyers, academics and activists. 31 queer and trans persons testified in front of the panel. The focus of the testimonies was on the relationship with the assigned (natal) families and the various struggles that the testifiers had undergone to be able to live their lives.

Today we bring to you this report, Apnon Ka Bahut Lagta Hai, with the findings and recommendations of the Panel which comprised of: Retd. Hon Justice Prabha Sridevan, Chennai; Asif Iqbal, Co-Founder, Dhanak, Delhi; Divya Taneja, Special Cell for Women and Children, Mumbai; Kavita Krishnan, Feminist Activist, Delhi; Manjula Pradeep, Anti-Caste Feminist Activist, Ahmedabad; Mihir Desai, Senior Counsel, Mumbai; Paromita Chakravarti, Feminist Academic, Kolkata; and Veena Gowda, Feminist Lawyer, Mumbai.

The community and civil society organisations included in the Network are: Nazariya: Queer Feminist Resource Group (Delhi), Sappho For Equality (Kolkata), Sahayatrika (Thrissur), Orinam (Chennai), Raahi (Bengaluru), QT Centre (Hyderabad), Hasrat-e-Zindagi Mamuli (Mumbai), Vikalp Women’s Group (Vadodara), SAATHII (pan-India), and unaffiliated individuals.

Click here for PDF report

IN THE MEDIA: ARTICLES ASSOCIATED WITH THE JAN SUNWAI REPORT, THE PRESS CONFERENCE, THE BORAH  PETITION AND ADV VRINDA GROVER’S INTERVENTION
(most recent first)

1. Saranya Chakrapani. Indelible mark on psyche: new report reveals violence LGBTQ community faces from families.
   YourStory. May 1, 2023.
   https://yourstory.com/socialstory/2023/05/new-report-reveals-familial-violence-on-queer-youth-community
2. Rituparna Borah. Marriage Equality: Family Means Everything, But So Does Chosen Family.
   The Quint. April 28, 2023
   https://www.thequint.com/gender/chosen-family-queer-and-trans-persons-life-marriage-equality
3. Article 14. Our Own Hurt Us the Most: Familial Violence in India
   Youtube. April 27, 2023.
   https://www.youtube.com/watch?v=tfr7lCbn10k
4. Namrata and Shreyashi. Marriage equality – petitions, pushback and politics.
   Varta. April 26, 2023
   https://vartagensex.org/2023/04/26/marriage-equality-petitions-pushback-and-politics/
5. Rajiv Shah. Queer, trans persons ‘testify’: Marital rape, forced marriage, threat of disinheritance>
   CounterView. April 26, 2023.
   https://www.counterview.net/2023/04/queer-trans-persons-testify-marital.html?m=1
6. Sayan Bhattacharya. Marriage equality: What good is symbolic recognition of one’s relationships sans rights?
   Down To Earth. April 25, 2023.
   https://www.downtoearth.org.in/blog/governance/marriage-equality-what-good-is-symbolic-recognition-of-one-s-relationships-sans-rights–88940
7. Namita Bhandare. Marriage equality: How the case impacts us all.. 
   Hindustan Times.  April 23, 2023.
   https://www.hindustantimes.com/ht-newsletter/htmindthegap23042023.html
8. Vivek Divan. Overlooked in the marriage equality conversation: The marginalised among LGBTQI community. Indian Express : April 20, 2023
   https://indianexpress.com/article/opinion/columns/overlooked-in-the-marriage-equality-conversation-the-marginalised-among-lgbtqi-community-8566506/
   
9. Pragya Singh. ‘Family Must Go Beyond Blood and Marriage’—Petitioner in Marriage Equality Case. NewsClick. April 20, 2023
   https://www.newsclick.in/family-must-go-beyond-blood-and-marriage-petitioner-marriage-equality-case
10. Chayanika Shah. In Marriage Equality Case, Queer and Trans Persons Assert Right to Define Family
    NewsClick. Apr 20, 2023
    https://www.newsclick.in/marriage-equality-case-queer-and-trans-persons-assert-right-define-family
11. Sabrang India. Our own hurt us the most: Familial violence in the lives of queer & Trans persons within marriage equality debates  Sabrang India. April 18, 2023.
    https://www.newsclick.in/marriage-equality-case-queer-and-trans-persons-assert-right-define-family
12. Mihir Rajamane. Petition Explained: Marriage Equality under the Special Marriage Act and Freedom from Violence by Rituparna Borah and others March 31, 2023.
    https://mihirxr.wordpress.com/2023/03/31/petition-explained-marriage-equality-under-the-special-marriage-act-by-rituparna-borah-and-others/
13. Anmol Arora. The petition you need to know about from the same-sex marriage hearings that start today LiveMint. April 18, 2023.
    https://lifestyle.livemint.com/relationships/it-s-complicated/the-petition-you-need-to-know-about-from-the-same-sex-marriage-hearings-that-start-today-111681805877468.html
14. Shreyashi Ray.Beyond Marriage Equality: Chosen families and the right to live our lives as we are.
    Vidhi Centre for Legal Policy. April 18, 2023.
    https://vidhilegalpolicy.in/blog/beyond-marriage-equality/
15. Poushali Basak. The Fight for Saving Queer-Trans Lives Is More Than Just Securing Equal Marriage Rights. The Wire. April 12, 2023.
    https://thewire.in/lgbtqia/queer-trans-deaths-equal-same-sex-marriage
16. TheNewsMinute.Marriage equality alone will not free queer persons from violent families: Civil society orgs. The News Minute. April 3, 2023.
    https://www.thenewsminute.com/article/marriage-equality-alone-will-not-free-queer-persons-violent-families-civil-society-orgs

What do a Sangeet Natak Akademi award winning dancer, a renowned journalist with a career spanning three decades, a TV celebrity chef, a hotelier who has authored an architectural analysis of Rashtrapati Bhavan, and a consultant in the Food and Beverages industry have in common?

They all describe themselves as “upstanding, public-spirited citizens who live and work in India and have the greatest love for this country and faith in the rule of law”. They have received national and international recognition in their respective fields, including  from the Government of India.

They have also chosen to come out as members of the LGBT community in a new petition [full text] challenging Section 377, India’s sodomy law. Their petition to the Union of India through the Ministry of Law & Justice, was filed on April 27, 2016, and has been slated for hearing on June 29, 2016. Kapil Sibal and Arvind Datar will argue the case.

The petitioners draw attention to the pending Naz vs. Koushal curative petition challenging the constitutional validity of Sec 377. However, they submit, their issues “are varied and diverse” from those raised in the curative petition. Specifically, they have all been directly aggrieved because of Sec 377.

Petitioners 1 and 2, Navtej Singh Johar and Sunil Mehra, have been in a relationship for over 20 years. Sunil Mehra cleared the civil services preliminary exam but chose not to pursue the IAS option he was “apprehensive about his career prospects in State employment because of criminalization of his sexual orientation.” Petititioner 5 Ayesha Kapur experienced fears of being persecuted because of her sexual orientation, quit a lucrative corporate career rather than risk being outed, and could not bring herself to come out to her mother until the former was in her mid-30s and her mother had become terminally ill. Even today, she writes, she is “unable to accompany or be accompanied by her committed partner at social and family occasions.”

A report on Legally India states:

“After enumerating the well-known contentions against Section 377, which are already before the Supreme Court in the curative petition case, the petition does raise new issues which were not raised earlier. In particular, the petition seeks a writ of mandamus, declaring the right to sexuality, right to sexual autonomy, and right to choose a sexual partner to be part of the right to life guaranteed under Article 21. Besides, the petition alleges violation of the petitioner’s rights under Articles 14, 15, 16 and 19.”

They cite the Supreme Court NALSA (2014) judgement to emphasise that “Each person’s self- defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom ”

They further submit that the issue in the present case “does not concern only removing an injustice perpetuated by a colonial law, but also affirming the constitutional vision of a society based on tolerance and mutual respect”.

Read the full text of the petition here

References:

Mahapatra, Dhananjay, 2016. Gay celebs cite right to life, move SC against Section 377. Times of India June 28, 2016. URL: http://timesofindia.indiatimes.com/india/Gay-celebs-cite-right-to-life-move-SC-against-Section-377/articleshow/52947920.cms?

DNA India. 2016. Celebrities, part of LGBT community, approach SC to decriminalise Section 377. URL: http://www.dnaindia.com/india/report-celebrities-part-of-lgbt-community-approach-sc-to-decriminalise-section-377-2229033 June 28, 2016

Huffington Post India. 2016. For The First Time, Gay Celebrities Move Supreme Court Against S.377. URL: http://www.huffingtonpost.in/2016/06/28/s-377-india_n_10710008.html

LegallyIndia. 2016. Read the wonderful new 377 challenge by 5 out-and-proud celebrities that’ll hit SC today. June 29, 2016 URL: http://www.legallyindia.com/scoi-reports/read-the-wonderful-new-377-challenge-by-5-out-and-proud-celebrities-that-ll-hit-sc-today

February 26, 2014

To,
President Yoweri Museveni, Members of Parliament of Uganda,
and the People of the Republic of Uganda

Through Ms Elizabeth Napeyok, High Commissioner,
Ugandan High Commission in New Delhi, India
B-3/26,Vasant Vihar
New Delhi 110057
India
Fax: 91-11-26144405
Email: newdelhi@mofa.go.ug

We register here our strong condemnation of President Museveni’s signing of the Anti-Homosexuality Bill, 2009 into law. The Uganda Anti-Homosexuality Act, 2014 violates the basic human rights of the kuchus of Uganda, impeding their right to live and love without harm to others, in enjoyment of the rights of freedom and equality guaranteed by the Ugandan Constitution. In the face of this severe blow to the struggle for universal human rights, we reassert our solidarity with the lesbian, gay, bisexual, transgender, queer, disabled and HIV-affected people of Uganda, and of all 36 of Africa’s 55 countries where same-sex relations are illegal.

We write as citizens of India, also a former British colony grappling with the multiple legacies of colonialism, of which the inheritance of homophobic laws is only one. We too have been told that homosexuality is a ‘Western import’ that is alien to our culture. This claim flies in the face of a wealth of evidence of same-sex love and desire in our histories and cultures. It is a matter of fact that same-sex love in our cultures, and in parts of Africa including Uganda, was accepted, and in some contexts, celebrated until the advent of the colonial experience. It is a claim that, moreover, is contradicted by the fact that Section 377 of the Indian Penal Code, 1860, represents the most aggressive institutionalisation of the criminalisation of homosexuality in the history of the Indian subcontinent. It is this legislative initiative of an unrepresentative colonial state that was then replicated in only slightly modified forms in other colonies of the British state, including Uganda. 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 ongoing 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 post-colonial state that is proud of its hard-won independence, we understand, share and support Uganda’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.

In this context, we are concerned by numerous analyses and critical commentaries that have shown the Anti-Homosexuality Act, 2014 is itself an externally sponsored initiative, drafted with considerable encouragement and advice from US-based evangelicals whose moral, theological and political agendas do not prioritise, or rather undermine the welfare of the entirety of Uganda’s people. In this context it is important to emphasise that the Act disregards and devalues the lives of Uganda’s own people. We urge you to listen to those brave Ugandan voices in every walk of life who have stood up for basic human rights and fundamental freedoms of all people in Uganda 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 Anti-Homosexuality Act, 2014, which is an instance of such attempts at control, is being hailed as evidence of the expression of sovereignty. To recognise the rights of all Ugandans to lives of dignity, equality and freedom of expression and assembly, by immediately repealing the Anti-Homosexuality Act, 2014 would be the true assertion of sovereignty.

Signed:

*All cities are in India, unless specified

Here is the full text of the petition signed by 1157 students, alumni, faculty and staff the Indian Institutes of Technology against the Supreme Court’s decision to re-criminalise same-sex behaviour among consenting adults in private.

While, unfortunately, the Supreme Court chose to ignore these and other submissions, this petition stands testimony to the increasingly progressive attitudes among members of these premier institutions of technology education and research. Check out the website of Saathi, IIT-Bombay’s campus queer group and Samvita Kalyan’s piece ‘A Rainbow-Coloured Movement‘ published in The Fifth Estate, IIT-Madras campus newsletter, for more evidence of the growing visibility of queer and trans people on campus, and of heartening support from allies.

To
The Honourable Chief Justice of India,
The Honourable Prime Minister of India,
The Honourable Minister of Home Affairs, India,
The Honourable Minister of Law and Justice, India,
The Honourable Minister of Human Resource Development, India,
and The Directors of the Indian Institutes of Technology.

Dear Sirs,
We are a group of students, alumni, faculty and staff of the Indian Institutes of Technology, collectively expressing our shock and disappointment at the Supreme Court’s decision to reinstate Section 377 of the Indian Penal Code. Section 377 is a British-era statute that outlaws “carnal intercourse against the order of nature” and includes within its ambit intercourse among consenting adults of the same sex. We hold that this law violates the fundamental rights of privacy and autonomy accorded to all Indian citizens by its Constitution, and the rights to dignity, equality and due process of Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) citizens. While we demand that the law be immediately modified to exclude all forms of sexual intercourse among consenting adults, we wish to reiterate that this is merely one step towards the goal of equal membership in Indian society for everyone, regardless of sexuality and gender identity.

In 2009, a landmark judgment issued, by the Delhi High Court, declared Section 377 unconstitutional insofar as it applies to consenting adults. Embarking on a well-researched and empirically informed analysis of the impact of the law on sexual minorities, the Court found the law to be arbitrary in its scope and intent, as well as in violation of the right to equality under the law, and the right to dignity and personal autonomy. The Delhi High Court elevated sexuality and gender identity to the status of a protected class under the Indian Constitution, thereby laying the foundation for future efforts to end discrimination in workplaces, educational institutions and domestic environments.

Where the Delhi High Court’s ruling was a bold effort to give life to the promise of Indian Constitutionalism, the Supreme Court’s decision to reverse it is a deceptive attempt to use judicial restraint as a cover for its refusal to critically interrogate the social effects of legal provisions. Ignoring the lived experiences of LGBTQ people in India altogether, it argues that Section 377 merely penalizes certain acts and does not stigmatize a class of Indian society based on sexuality and gender identity. By failing to recognize the fact that the law exposes LGBTQ people to illegal extortion, harassment and persecution, and by suggesting that the rights of LGBTQ individuals are less worthy of protection because of their “miniscule proportion”, the Supreme Court has failed to perform its constitutional responsibility and betrayed the trust of the Indian people. Suffering from contradictory arguments, dubious factual claims, and an absolute lack of empathy, the judgment is an affront to the values of fostering a scientific temperament as part of the commitment to the betterment of humanity, upon which our nation was founded, and which motivated the foundation of the Indian Institutes of Technology.

LGBTQ individuals, activists and supporters from all parts of India have risen up in shock, anger and outrage, determined to repeal 377 and to make their claims of citizenship heard in the public sphere. They have received the support of the legal community, a large section of the country’s political leadership, human rights monitors in the United Nations as well as supporters throughout the global diaspora, of which IITians constitute a substantial share. It is to this chorus of dismay and disapproval that we seek to join our voice. We write to express our commitment towards the rights of LGBTQ people, including members of the Hijra, Aravani, Kothi and like communities, to live their lives with dignity, freed from the burdens of fear, loathing, and pervasive discrimination.

We reiterate that our concern goes beyond the rights of adults to participate in private acts of consensual sex. It is focused on the public domain, where alternate sexuality and gender identity is often treated as a form of deviance in schools, colleges, workplaces, religious institutions, and governmental institutions. Patriarchy and hetero-normativity are pervasive facts of social life in all parts of the country, including the campuses of elite institutions like the IITs. Women and LGBT individuals among the undersigned have often experienced prejudice in their routine interactions with their classmates, colleagues, professors as well as members of the institute administration, and these experiences of prejudice at close quarters can sometimes be more debilitating than an archaic and distant law.

The institutionalization of prejudice, both in the legal and the social spheres, is often premised on claims about certain sexual practices being “unnatural”, imports from “western” cultures and symptoms of “mental illness”. These claims have been emphatically shown to be incorrect. Same-sex intercourse is found in about 1,500 species of animals, including the species closest to Homo sapiens in evolutionary terms. There are many instances of alternative sexualities being expressed in Indian mythology, as seen in the work of scholars like Ruth Vanita and Saleem Kidwai. Moreover, there is increasing evidence of a hidden sub-culture of queer people in medieval and early-modern India. The Hijra, Aravani and Kothi communities have oral traditions which prove that queer identities are as native to Indian civilization as any other. The medical community, including the American Psychiatric Association, Indian Psychiatric Society and the World Health Organization, have repeatedly argued that alternative sexualities and gender identities are not symptoms of mental illness. Given the preponderance of scientific, historical and anthropological evidence, it comes as somewhat of a surprise to us that patently incorrect claims are still circulating in society, and we call upon the scientific establishment and various educational institutions – including the IITs – to assist the LGBT community at large in dispelling these misconceptions.

While efforts to read down Section 377 and to dispel societal misconceptions must continue, we also re-commit ourselves to protecting the gains made in recent years within IITs to create a more welcoming atmosphere for women and LGBT individuals. While Section 377 has, in the past, relied heavily on social stigma to penalize sexual minorities, we assert that we will not allow ourselves to be used in this manner to discriminate against our own peers. Several support groups for queer students have been established and received official recognition in various IITs in the past two or three years. Their rights of free association are by no means affected by a law that merely criminalizes certain sexual acts. We therefore hope that they will continue to get the full support of their peers, their professors and the institute administrations. In short, while the latest Supreme Court judgment represents an unfortunate reversal in the development of India’s human rights law, we hope that this will not halt the realization of human rights for women and sexual minorities through concerted social change, with IITs leading the way.

Yours sincerely,

Download the full list of 1157 signatories here.