Public spaces are often designed and regulated based on heteronormative ideals, which can create exclusionary environments for queer individuals, especially those who come from socio-economically disadvantaged backgrounds. These individuals may face hostility and discrimination in public spaces, which can lead them to avoid these areas altogether. Furthermore, specific laws in India may contribute to a climate of oppression, which can limit the ability of queer individuals to access safe spaces and exercise their citizenship rights. In this context, questions of gender and sexual identity intersect with citizenship in significant ways. Queer individuals may be marginalized and reduced to being considered only “partial citizens,” with limited access to the rights and privileges afforded to the “good,” law-abiding, heterosexual subjects. This can lead to a situation where queer identities are made invisible and the sexual “others” are denied full citizenship status.
This paper explores the intersection of specific laws in India with informal social norms and practices that produce a regime of disenfranchisement for queer individuals, particularly regarding their access to public spaces and their citizenship status. By highlighting these issues, the paper seeks to contribute to a broader conversation about the need for more inclusive and equitable public spaces that support the full citizenship and human rights of all individuals, regardless of their gender or sexual identity.
Introduction
The issue of Indian queer citizenship and access to the public sphere is complex and multifaceted. On one hand, India has made significant progress in recognizing the rights of queer citizens in recent years. In 2018, the Indian Supreme Court struck down Section 377 of the Indian Penal Code, which criminalized consensual same-sex relationships. This was a landmark decision that affirmed the rights of queer citizens and recognized their equality under the law. However, despite this progress, queer citizens in India still face significant barriers to accessing the public sphere. Discrimination and harassment against queer individuals are still prevalent, and many queer people face social ostracization, violence, and discrimination in their daily lives. This can make it difficult for them to participate fully in public life and access public spaces without fear of persecution.
Furthermore, queer citizens in India still face legal obstacles to their full participation in public life. For example, while same-sex marriage is legal in many countries around the world, it is still not recognized in India. This means that queer couples do not have the same legal rights and protections as heterosexual couples, including access to benefits such as healthcare, inheritance, and property rights.
To further elaborate, the challenges faced by queer citizens in India go beyond legal and social barriers. There are also issues related to access to healthcare, education, employment, and other basic rights and services. Discrimination and stigma against queer individuals can lead to unequal treatment and denial of services, which can have a significant impact on their quality of life.
For example, queer individuals may face barriers to accessing healthcare services due to discrimination and lack of understanding among healthcare providers. This can result in delays in the diagnosis and treatment of illnesses and can have serious consequences for their health and well-being. Similarly, queer individuals may face challenges in accessing education and employment opportunities due to discrimination and lack of inclusion in these fields.
The challenges faced by LGBTQ+ community in India are compounded by intersectional issues related to caste, class, religion, and other forms of social identity. For instance, queer individuals who also belong to marginalized communities may face multiple layers of discrimination and exclusion.
To address these challenges, there is a need for ongoing efforts to raise awareness and promote inclusivity and acceptance of queer citizens in India. This includes education and advocacy campaigns to challenge stereotypes and reduce stigma and discrimination, as well as policy interventions to ensure that queer citizens have equal access to basic services and opportunities.
What factors need to be considered for the Queer?
Another important aspect to consider when discussing the issue of Indian queer citizenship and access to the public sphere is the role of cultural attitudes and norms. India is a diverse country with a rich cultural heritage, and traditional attitudes toward gender and sexuality vary widely across different communities and regions.
While some communities in India have historically had more fluid and accepting attitudes toward gender and sexuality, others have been more rigid and conservative. This can create challenges for queer individuals who may face social ostracization and discrimination based on their sexual orientation or gender identity.
At the same time, it is important to note that there is a growing movement of queer activists and allies in India who are working to challenge these attitudes and promote the acceptance and inclusion of queer individuals in society. This includes grassroots organizations, community groups, and advocacy campaigns that are raising awareness and promoting understanding of the issues faced by queer individuals.
There are also cultural expressions of queer identity and sexuality in India that have a long history, such as the Hijra community, which is a traditional transgender community that has existed in India for centuries. While hijras still face discrimination and marginalization in many parts of India, there are efforts to recognize and protect their rights and cultural heritage.
In conclusion, the issue of Indian queer citizenship and access to the public sphere is complex and multifaceted and requires a comprehensive and nuanced approach that considers legal, social, cultural, and intersectional factors. While progress has been made in recognizing the rights of queer citizens in India, there is still much work to be done to ensure their full inclusion and participation in society. This will require ongoing efforts to raise awareness, challenge stereotypes, and promote acceptance and inclusivity for all citizens, regardless of their sexual orientation or gender identity.
Another important aspect to consider is the impact of globalization and the role of international organizations and movements in shaping attitudes towards queer citizenship and access to the public sphere in India. India, like many other countries, is increasingly connected to global networks of information, culture, and politics, which can have both positive and negative effects on the rights and freedoms of its citizens.
On the one hand, globalization has helped to create a more open and diverse cultural landscape in India, with greater exposure to different ideas and perspectives. This has helped to create new spaces for queer individuals to express themselves and build communities, particularly through online platforms and social media.
At the same time, globalization has also brought with it new forms of oppression and exclusion, particularly in the form of transnational religious fundamentalism and conservative movements that seek to impose strict moral codes and norms on society. This has led to increased discrimination and violence against queer individuals in some parts of India, particularly in areas where conservative religious groups hold significant power and influence.
International organizations and movements have played a significant role in shaping attitudes towards queer citizenship and access to the public sphere in India. For example, the United Nations has adopted a number of resolutions and declarations that recognize the rights of queer individuals and call for an end to discrimination and violence based on sexual orientation and gender identity.
Similarly, global queer movements have provided important support and solidarity to queer activists and communities in India, particularly through social media and online platforms. This has helped to create a sense of global community and shared struggle and has provided an important source of strength and resilience for queer individuals in India.
Another important factor to consider when discussing Indian queer citizenship and access to the public sphere is the role of media and representation. The media plays a powerful role in shaping public perceptions and attitudes toward queer individuals and communities and can either reinforce or challenge existing stereotypes and prejudices.
In recent years, there has been a growing visibility of queer individuals in Indian media, with a number of films, TV shows, and other forms of media featuring queer characters and storylines. This has helped to create greater awareness and understanding of the issues faced by queer individuals in India and has provided an important platform for queer voices to be heard.
At the same time, there are still significant challenges and limitations when it comes to the media representation of queer individuals in India. Many representations of queer individuals in Indian media still rely on harmful and offensive stereotypes, and there is a lack of diversity and intersectionality in these representations.
Furthermore, the Indian media landscape is still largely dominated by conservative and patriarchal forces, which can limit the visibility and representation of queer voices and perspectives. This can create a sense of isolation and marginalization for queer individuals and can also limit public understanding and support for their rights and freedoms.
Another important aspect to consider is the impact of religion and religious institutions on Indian queer citizenship and access to the public sphere. Religion plays a central role in the lives of many Indians, and religious institutions often hold significant power and influence in Indian society.
In India, there are many different religious traditions and communities, each with its own attitudes toward gender and sexuality. While some religious communities in India have historically had more fluid and accepting attitudes toward gender and sexuality, others have been more rigid and conservative.
For example, many conservative Hindu and Muslim groups in India view queer identities and sexualities as immoral and against religious teachings. This has led to significant discrimination and violence against queer individuals in some parts of India, particularly in areas where these conservative religious groups hold significant power and influence.
However, there are also many religious leaders and organizations in India who have been supportive of queer rights and freedoms, and who have spoken out against discrimination and violence towards queer individuals. For example, some progressive Hindu and Muslim leaders have supported the decriminalization of homosexuality in India and have called for greater acceptance and inclusivity of queer individuals in society.
Another important factor to consider when discussing Indian queer citizenship and access to the public sphere is the role of family and community support. Family and community support can play a crucial role in providing social and emotional support to queer individuals and can help to create a sense of belonging and inclusion.
However, many queer individuals in India face significant challenges when it comes to gaining family and community support. In some cases, family members may reject or disown their queer children, while in other cases, queer individuals may face ostracism or violence from their communities.
These challenges can be particularly acute for queer individuals from marginalized communities, such as Dalits, Adivasis, and religious minorities, who may face multiple forms of discrimination and exclusion. In these cases, queer individuals may need to rely on alternative sources of support, such as peer groups, non-governmental organizations, or online communities.
At the same time, there are also many examples of families and communities in India who have been supportive of their queer members, and who have worked to create more inclusive and accepting environments. For example, there are a number of organizations in India that work to support families of such individuals, providing them with resources, education, and support to help them better understand and accept their queer children.
Another important aspect to consider is the impact of laws and policies on Indian queer citizenship and access to the public sphere. Historically, Indian laws and policies have been hostile towards queer individuals, with homosexuality being criminalized under Section 377 of the Indian Penal Code.
However, there have been significant legal and policy developments in recent years that have helped to improve the situation in India. In 2018, the Indian Supreme Court struck down Section 377, effectively decriminalizing homosexuality in the country.
This landmark decision was a major victory for rights activists and has helped to create greater awareness and acceptance of such individuals in Indian society. However, there is still significant work to be done to ensure that queer individuals in India have equal access to rights and freedoms.
For example, there are still no legal protections against discrimination on the basis of sexual orientation or gender identity in India, and many queer individuals still face significant challenges in accessing healthcare, education, and employment. There is also a lack of legal recognition for same-sex partnerships and families, which can limit access to important benefits and protections.
The impact of law on Indian queer citizenship has been significant and complex. Historically, Indian laws have been hostile towards queer individuals, with homosexuality being criminalized under Section 377 of the Indian Penal Code. This law was used to prosecute and harass queer individuals and created a culture of fear and stigma around queer identities and sexualities.
The criminalization of homosexuality under Section 377 had a number of negative impacts on Indian queer citizenship. It created significant barriers to accessing healthcare, education, and employment, as queer individuals were often discriminated against and marginalized. It also limited the ability of queer individuals to express themselves and form relationships, leading to isolation and loneliness.
However, there have been significant legal developments in recent years that have helped to improve the situation for queer individuals in India. In 2018, the Indian Supreme Court struck down Section 377, effectively decriminalizing homosexuality in the country.
This landmark decision has had a number of positive impacts on Indian queer citizenship. It has helped to create greater awareness and acceptance of queer individuals in Indian society and has opened up new opportunities for queer individuals to express themselves and form relationships. It has also helped to reduce the stigma and discrimination that many queer individuals faced under Section 377.
However, there are still significant challenges facing Indian queer citizenship, even after the decriminalization of homosexuality. For example, there are still no legal protections against discrimination on the basis of sexual orientation or gender identity in India, and many queer individuals still face significant challenges in accessing healthcare, education, and employment. There is also a lack of legal recognition for same-sex partnerships and families, which can limit access to important benefits and protections.
Overcoming Bias in Public Sphere – Strategies for navigating ambient exclusion and discrimination for Queers
To overcome exclusion, discrimination, harassment, and abuse that marginalized groups such as women, queer persons, Dalits, homeless persons, and persons living with disabilities face in public spaces, it is important to recognize that public spaces are not just passive backgrounds to social action, but actively participate in creating a particular social and political order. Urban spaces, for instance, provide sites for political action and are themselves politicized in contests over access, control, and representation. Therefore, it is necessary to acknowledge the social and legal codes of conduct that discipline and punish those who challenge, disrupt, or transgress the sexual and spatial order.
In India, most public spaces assume binary gendered and heterosexual norms, which particularly oppress gender non-conforming individuals. Queer persons are subjected to disproportionate and excessive scrutiny during security checks at airports or metro stations, causing misgendering, humiliation, and harassment. The gendered division of space creates painful consequences for non-conforming individuals whose presence thwarts the social and moral codes of society’s norms. The ICJ report features a narrative about a transman’s struggles to access public transport.
The discrimination faced by non-binary and queer individuals in public spaces goes beyond just restrooms and transportation. Access to public spaces like restaurants, shops, malls, and public events can also be limited due to the gender binary and heteronormative assumptions that are prevalent in society. These assumptions create a social and spatial order that restricts the ability of individuals who do not conform to gender and sexuality norms to occupy public spaces without facing discrimination and harassment.
The lack of inclusive and accessible public spaces has a profound impact on the mental and physical well-being of non-binary and queer individuals. For instance, the fear of violence or discrimination can result in anxiety and stress that can negatively affect one’s quality of life. Additionally, the inability to access public spaces can also impact the economic and social opportunities available to individuals who are already marginalized.
Therefore, it is essential for policymakers and stakeholders to recognize the importance of inclusive and accessible public spaces that cater to the needs of all individuals, regardless of their gender and sexuality. This includes initiatives such as gender-neutral restrooms, accessible transportation, and inclusive policies that ensure equal protection and non-discrimination for all. By creating such spaces, we can help to ensure that marginalized individuals can participate fully in society and have access to the opportunities and resources they need to thrive.
Conclusion
In conclusion, the impact of law on Indian queer citizenship has been significant and complex. While the decriminalization of homosexuality under Section 377 was a major victory for Indian queer rights activists, there is still much work to be done to ensure that queer individuals in India have equal access to rights and freedoms. This will require ongoing efforts to promote education, awareness, and advocacy, as well as changes to laws and policies that limit the rights and freedoms of queer individuals in India.
The Navtej judgment is a significant milestone in the recognition and protection of individual rights in India. At the heart of this landmark decision lies the recognition of the right to privacy, and the role it plays in creating an environment that allows individuals to safely express themselves.
The judges in Navtej drew from Puttaswamy v. Union of India, which had established an expansive interpretation of privacy as not being limited to the confines of one’s home but also encompassing the right to express one’s identity in public. In Navtej, the judges built upon this concept, expanding the ambit of privacy to include spatial privacy and decisional privacy, which involves the right to make personal choices.
According to the judgment, spatial privacy refers to the right to physical spaces that allow individuals to express themselves freely without fear of harassment or persecution. Decisional privacy, on the other hand, refers to the right to make personal choices without interference from the state or society. These include choices related to one’s intimate relationships, sexual orientation, gender identity, and other aspects of one’s personal life.
The Navtej judgment also underscored the importance of recognizing the dignity and autonomy of queer individuals. It stated that any display of affection among queer individuals towards their partners in public, as long as it does not violate indecency laws or disturb public order, cannot be bogged down by majority perception. The judges recognized that societal attitudes towards queer individuals have historically been discriminatory and oppressive and that it is the duty of the state to protect their rights and ensure that they can live with dignity and respect.
However, there have been significant legal and social developments in recent years that have helped to improve the situation for queer individuals in India. The landmark decision of the Indian Supreme Court in 2018 to strike down Section 377 was a major victory for Indian queer rights activists and has helped to create greater awareness and acceptance of queer individuals in Indian society.
Despite these positive developments, there are still significant challenges facing Indian queer citizenship. There are no legal protections against discrimination on the basis of sexual orientation or gender identity in India, and many queer individuals still face significant challenges in accessing healthcare, education, and employment. There is also a lack of legal recognition for same-sex partnerships and families, which can limit access to important benefits and protections.
To promote greater equality and justice for queer individuals in India, ongoing efforts are needed to promote education, awareness, and advocacy, as well as changes to laws and policies that limit the rights and freedoms of queer individuals. It is important for Indian society to recognize and value the diversity of sexual orientations and gender identities, and to work towards creating a more inclusive and supportive environment for all individuals, regardless of their sexual orientation or gender identity.
References
- INTERNATIONAL COMMISSION OF JURISTS (‘ICJ’), Unnatural Offences: Obstacles to Justice in India based on Sexual Orientation and Gender Identity (February 2017)
- INTERNATIONAL COMMISSION OF JURISTS (‘ICJ’) Living with Dignity: Sexual Orientation and Gender-based human rights violations in Housing, work, and public spaces in India (June 2019)
- Danish Sheikh, Queer Rights and the Puttaswamy Judgement, Economic & Political Weekly (December 23, 2017) https://www.epw.in/journal/2017/51/privacy-after-puttaswamy-judgment/queer-rights-and-puttaswamy-
- The Diplomat, “India’s LGBTQ Community Faces Discrimination and Violence Despite Legal Victory,” August 21, 2019, available at https://thediplomat.com/2019/08/indias-lgbtq-community-faces-discrimination-and-violence-despite-legal-victory/
- Human Rights Watch, “India: LGBT People Face Discrimination, Violence,” July 15, 2019, available at https://www.hrw.org/news/2019/07/15/india-lgbt-people-face-discrimination-violence
- The Wire, “Same-Sex Marriage is Legal in 28 Countries. But Not in India,” June 26, 2020, available at https://thewire.in/rights/same-sex-marriage-legal-countries-india
- United Nations Development Programme, “Being LGBTI in India: A National Survey on Homophobia and Discrimination,” 2014, available at https://www.in.undp.org/content/india/en/home/library/democratic_governance/being-lgbti-in-india.html