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LGBT laws outside of North America

Laws in India: Years 1861 to 2018!

Sponsored link.

The term "LGBT" is an acronym for "Lesbian, Gay,
Bisexual, Transgender and Transsexual,.

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Background:

Section 377 of the Indian penal code dated from the year 1861, during the British colonial era. During 2018-AUG, some 157 years later, it still criminalized "carnal intercourse against the order of nature." The law imposed a fine, a 10 year sentence, or life imprisonment for both males and females who engaged in same-gender sexual activity. 6 Convictions were rare, but the law contributed to the oppression of sexual minorities in the country. Many in the LGBT community kept their sexual orientation secret; some were blackmailed.

The law was placed on the books long before scientists established that same-gender sexual orientation is normal and natural for a minority of humans. All mammals who have been studied for same-sex behavior are known to engage in it, as well as many other species of animals.

During the mid 2010's, the cause of homosexual orientation was traced to an epigenetic layer that covers every person's DNA. It determines which genes are turned on or off. The layer is formed early in gestation, and remains constant throughout life. A saliva test has been developed that tests this layer and determines with 83% accuracy which males have a homosexual orientation. This is convincing evidence that one's sexual orientation is developed before birth, is not chosen later in life, and cannot be changed through counseling, reparative therapy, etc.

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Estimates of the LGBT population in India:

The latest Government estimate of the number of LGBT persons in India was made in 2012, at more than 2.5 million. Unfortunately, this number is impossible to estimate accurately. For example, six separate surveys in the U.S. by Gallup between 2012 and 2017 found percentages of lesbian, gay and bisexual adults increasing from 3.5% to 4.5%, of whom transgender persons are less than 1%. 11

Many, probably most, members of the LGBT community are very hesitant to reveal their sexual orientation to strangers, even during surveys that claim to be confidential, and in those countries where discrimination against the community has faded. Thus, results of such surveys depend greatly upon the confidence level by those participating that their orientation will not be made public. Regardless of how surveys are conducted, the estimates are certain to be much lower than reality.

The total population of India as estimated by Worldometers on 2018-SEP is 1.37 billion. 12 Assuming that the lesbian and gay population among Indian adults is 5%, and that the percentage of non-adults who will eventually identify as lesbian and gay is also 5%, then the total number of present and future gays and lesbians would be on the order of 68 million! The government estimate appears to be miniscule in comparison to the actual number.

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2009-JUL-02: City of New Delhi in India: Same-sex behavior was briefly decriminalized:

The New Delhi High Court issued a 105 page judgment, ruling stating that the 148-year-old law, Section 377, that prohibits consensual same-sex sexual acts by adults was: discriminatory, a "violation of fundamental rights," and thus unconstitutional. The ruling said, in part:

"It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster dignity of every individual."

The ruling only applied to India's capital city. The Government of India appealed the decision to the country's Supreme Court.

A news program on NPR (National Public Radio) in the U.S. commented:

"Homosexuality is slowly gaining acceptance in some parts of India, especially in its big cities. Many bars have gay nights, and some high-profile Bollywood films have dealt with gay issues. The last two years have also seen large gay pride parades in New Delhi and other big cities such as Mumbai and Calcutta. Still, being gay remains deeply taboo in most of the country, and a large number of homosexuals hide their sexual orientation from their friends and families."
Responses to the New Delhi High Court were mixed, as expected:
 

bullet Within hours of the issuance of the court decision, dozens of members of New Delhi's gay community gathered to celebrate. Anjali Gopalan, executive director of the Naz Foundation (India) Trust -- the sexual health organization that launched the lawsuit eight years previously -- said:

"I'm so excited and I haven't been able to process the news yet. ... We've finally entered the 21st century."


bullet

Andrea R. Jain, writing for Rewire News, said that the ruling endengered resistance from:

"... religious activists, especially right-wing Hindus who deployed a homophobic rhetoric of mental disease, family protection, and 'Vedic culture'." 13


bullet

Puroshattam Narain Singh, an official of the Vishwa Hindu Parishad -- the World Hindu Council -- said:

"We are totally against such a practice as it is not our tradition or culture."
 

bullet Sumith Baudh, a member of Voices Against 377, a coalition of gay-positive advocacy groups, said:

"I am so proud of India. The ruling was made in the most exquisite terms of equality, of dignity, of privacy and of respect for all human rights. We know this will translate for the lives of many Indians into creating more tolerance, fighting harassment, isolation and depression they have long suffered."


bullet

Kamal Farooqi of the All India Muslim Personal Law Board called the ruling:

"... a sad day for civilized society." 2
 

bullet Scott Long, director of the Lesbian, Gay, Bisexual, and Transgender (LGBT) Rights Program at Human Rights Watch, a national U.S. group, issued a statement saying:

"This legal remnant of British colonialism has been used to deprive people of their basic rights for too long. This long-awaited decision testifies to the reach of democracy and rights in India." 3


bullet

Maulana Khalid Rashid Farangi Mahali, a prominent Muslim cleric in Lucknow in northern India said:

"This Western culture cannot be permitted in our country." 3
 

bullet

Rev. Babu Joseph, a spokesman of the Roman Catholic church in New Delhi said that while homosexuals should not be treated as criminals,

"... at the same time we cannot afford to endorse homosexual behavior as normal and socially acceptable."
 

bullet Arvind Narrain, a lawyer for the plaintiffs who was involved with the case, said:

"The symbolic value of this judgment is unmatched. It says lesbians, gays, bisexuals and transgender people are citizens with equal rights."

2009-JUL-20: Indian Supreme Court refused an immediate stay of the lower court ruling:

Astrologer Suresh Kumar Kaushal, was involved in the case before the New Delhi High Court. He asked the India Supreme Court to issue a stay of the lower court's ruling.

The Supreme Court denied his petition, noting that:

"... there are no serious consequences of the High Court's order. If there was any apprehension of criminal cases being filed, this court would have interfered."

The Supreme Court asked the Union Government of India to clarify its stance on gay rights.

2012-FEB-23: Hearing before the Indian Supreme Court:

Conservative groups in India formally appealed the New Delhi High Court ruling to the Supreme Court.

On FEB-23, Additional Solicitor General P. P. Malhotra, a government lawyer, told the Supreme Court that same-gender sexual behavior is "...highly immoral and against social order and there is high chance of spreading of diseases through such acts." He concluded that it should be banned.

Some media outlets speculated that the lawyer may have read an earlier government document that has since been reversed.

Within hours, the Home MInistry of the Government of India had repudiated the lawyer's comment. They issued a statement stating that the Cabinet had decided to not challenge the 2009 Delhi High Court ruling, and that the ministry "... has not taken any position on homosexuality." 5

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2013-DEC-11: India's Supreme Court recriminalized same-sex sexual behavior:

Appeals were filed by Christian, Muslim and Hindu groups, asking the Supreme Court to reconsider its decision. During late 2013, the court reversed the 2009 decision of the Delhi High Court. The Supreme Court ruled that the colonial-era law -- section 377 of the Indian Penal Code -- was still valid. Same-gender sexual conduct between consenting adults once more became a criminal offense throughout India. The court ruled that repealing section 377 would be the responsibility of Parliament.

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2018: A LGBT group initiates a "curative petition" asking India's Supreme Court to reconsider the anti-gay law and declare it unconstitutional:

Five petitioners -- dancer Navtej Johar, culture expert Aman Nath, restaurateurs Ritu Dalmia and Ayesha Kapur, and mediaperson Sunil Mehra submitted a curative petition -- a formal request to review a previous court order. They petitioned a three judge bench at the India Supreme Court, asking that they declare the law unconstitutional. 6

Kai Schultz, writing for the New York Times, said that:

"This summer, India’s Supreme Court is expected to consider those petitions as it reviews Section 377’s constitutionality, creating a surge of hope for lawyers and activists who have been campaigning against the law for years.

But hope is tempered by years of disappointment. Even now, it is an act of calculated risk to identify publicly as being gay in India, or to advocate for change.

In interviews conducted over three months, gay and transgender Indians from across the country described the cost of living in a country that has forced them to be outlaws: shunning by parents, social isolation, few protections in the workplace, and a frightening vulnerability to both police abuse and sexual assault with limited legal recourse."

Andrea R. Jain, writing for Rewire News said that, when the High Court agreed to review the law banning same-sex activity:

"... most of the religious voices that had advocated for retaining it fell silent. Although some of India’s Christian organizations appeared in court in defense of the law, arguing that sexual orientation was not innate and that decriminalizing LGBTQ sex would lead to the transmission of HIV, the large, mainstream religious organizations and figureheads, including Adityanath and Ramdev, did not participate in the debate. 13

On 2018-JAN-05, the three-judge bench issued their ruling. They declared the 18601 law unconstitutional, concluded that:

"... societal morality also changes from age to age. ... Law copes with life, and accordingly change takes place."

They also commented that the:

"Concept of consensual sex may have more priority than a group right and may require more protection. A section of people or individual who exercise their choice should never live in a state of fear. ... What is natural to one may not be natural to the other." 7

The bench referred the case to the full court for a ruling. One of the petitioners, Ritu Dalmia, commented:

"It is a small victory but it has brought back some hope, for the first time. I am very happy about the development and have full faith in the court, the judiciary system, and the Constitution. I think it [repealing of Section 377] is just a matter of time now." 7

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2018-SEP-06: The India Supreme Court legalizes same-sex sexual behavior throughout the country:

A five-judge bench of the country's highest court ruled unanimously that gay sex has the same status as heterosexual sex. It is no longer an "unnatural offence."

Chief justice Dipak Misra said:

"Criminalizing carnal intercourse is irrational, arbitrary and manifestly unconstitutional."

A crowd outside the court building cheered. Some broke down in tears as they heard of the ruling. One demonstrator said:

"I hadn't come out to my parents until now. But today, I guess I have." 8

Another judge, Indu Malhotra, said she believed "history owes an apology" to LGBT people for having ostracizing them in the past.

Consenting adult couples throughout India can now legally engage in private sexual activity, regardless of their sex. However the prohibition of human-animal bestiality and adult-child sexual activity will continue to be banned.

LGBT activist Harish Iyer told the BBC:

"I'm absolutely elated. It's like a second freedom struggle where finally we have thrown a British law out of this country... I think the next step would be to get anti-discrimination laws in place, or anti-bullying laws."

Film director Karan Jonar tweeted:

"Historical judgment!!!! So proud today! Decriminalizing homosexuality and abolishing #Section 377 is a huge thumbs up for humanity and equal rights! The country gets its oxygen back!"

Andrea R. Jain, writing for Rewire News said:

"

In the federal government:

  • The ruling BJP party announced it would leave the decision up to the Supreme Court.

  • The main opposition, the Indian National Congress party, tweeted:

    "We join the people of India & the LGBTQIA+ community in their victory over prejudice. We welcome the progressive & decisive verdict from the Supreme Court & hope this is the beginning of a more equal & inclusive society." 9

  • The United Nations welcomed the ruling, saying

    "Sexual orientation and gender expression form an integral part of an individual's identity the world over, and violence, stigma and discrimination based on these attributes constitute an egregious violation of human rights. LGBTI persons across the world continue to be the targets of violent attacks and are affected by multiple and intersecting forms of discrimination based on age, gender, ethnicity, disability and social status.

    The UN in India sincerely hopes that the court’s ruling will be the first step towards guaranteeing the full range of fundamental rights to LGBTI persons. We also hope that the judgment will boost efforts to eliminate stigma and discrimination against LGBTI persons in all areas of social, economic, cultural and political activity, thereby ensuring a truly inclusive society. The focus must now be on ensuring access to justice, including remedy; effective investigations of acts of violence and discrimination; and effective access to economic, social and cultural rights." 10

 

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References used:

The following information source was used to prepare and update the above essay. The hyperlink is not necessarily still active today.

  1. "LGTBI rights in the world." International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), 2008-MAY, at: http://www.ilga.org/
  2. "New Delhi court overturns gay sex ban," The Dallas Morning News, 2009-JUL-03, at: http://www.dallasnews.com/
  3. "New Delhi Court Decriminalizes Homosexuality," NPR, 2009-JUL-02, at: http://www.npr.org/
  4. "Gay Law: SC refuses to stay HC judgement [sic]," NewKerala.com, 2009-JUN-20, at: http://www.newkerala.com/
  5. Muneeza Naqvi, "India's Gay Sex Legality Debate Creates National Confusion," Huffington Post, 2012-FEB-23, at: http://www.huffingtonpost.com/
  6. Kai Schultz, "Gay in India, Where Progress Has Come Only With Risk," New York Times, 2018-JUN-02, at: https://www.nytimes.com/
  7. Bhadra Sinha, "SC to reconsider Section 377 that criminalises homosexuality." Hindustan Times, 2018-JAN-08, at: https://www.hindustantimes.com/
  8. "India court legalises gay sex in landmark ruling," BBC News, 2018-SEP-06, at: https://www.bbc.com/
  9. Sach Bharat: Twitter note, 2018-SEP-06, at: https://twitter.com/
  10. "United Nations in India welcomes Supreme Court judgment on Section 377," UN in India, undated, at: http://in.one.un.org/
  11. Frank Newport, "In U.S. Estimate of LGBT Population Rises to 4.5%, Gallup, 2018-MAY-22
  12. "India Population (Live), Worldometers, as of 2018-SEP-09, at: http://www.worldometers.info/
  13. Andrea R. Jain, "Religious and Political Silence on India’s LGBTQ Decision Speaks Volumes," Rewire News, 2018-SEP-07, at: https://rewire.news/

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Original posting: 2009-JUL-03
Latest update: 2018-SEP-09
Author: B.A. Robinson

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