The LGBTQ+ community has fought and continues to fight a war of acceptance, a war of tolerance and the most relentless bravery. They are the definition of courage, do you know that?
The word sex is more or less still a taboo in countries like India. While more often than not associated with the biological act of reproduction, the word has a deeper sense of meaning. We often forget that the word is used as an identifier in our lives. To this date, the majority of the world, no matter how progressed or far behind in the race of achieving modernity, has dealt with human beings being heterosexuals.
In comparison to the 1930s and 1940s when people, specifically men were force-fed medications/hormonal medications to allegedly cure what was described as an illness to them. Which goes on to show that there was a fear associated with aligning oneself with something other than being heterosexual. For women, it was unimaginable with most women being chained to the societal norm of being a good wife for a good husband, secured their place in the society as partners for a man and vice versa.
The situation has changed, no doubt with various LGBTQ+ movements all around the world, people are now free to be who they are, but this freedom still has repercussions that many face, and it is these repercussions that the law must prevent from stemming in modern society. The article shall further analyze the importance of liberty in the matter of deciding one’s sexual orientation and the kind of role law and society play in the lives of such individuals who choose to defy the norms and break free from shackles of regressed thought.
Equality means more than passing laws. The struggle is really won in the hearts and minds of the community, where it really counts.
Barbara Gittings
Liberty
The word liberty as we know it, seems to have a vague meaning and significance, depending on where, when, and how it is used. Talking about India, do we have the liberty of speech? To an extent that does not anger the general public sentiments, however, if one goes overboard they can expect restrictions on such speech. A good example would be Donald Trump’s account being banned indefinitely by Twitter. But when we associate liberty with sexual orientation, there is an innate fear and insecurity that is associated with it.
From our childhood we are molded into the gender we are born with. But what we forgot was that having a choice or preference at the very least is considered wrong or unnatural. The rigorous routine of reassuring a child that what is right and wrong has left voids in our minds that get filled with useless information. This useless information propagated through the media and society, in general, has led us to believe that all these are inferior choices. For men to be homosexual, is considered abuse and demonstrates a lack of masculinity, to the extent where even heterosexual men tease, bully and develop unsympathetic feelings towards homosexuals. These experiences are not limited to men but apply to all other genders.
Right to Choice
It is indisputable fact that people of all races, castes, creed nationalities shall have a choice when it comes to deciding on what kind of sexual orientation, they align themselves with. But what is this freedom and liberty? Is it contextualized in some documents which make it binding?
Yes! But the context is different, internationally non-discrimination and equality before the law are fundamental rights protected by international law. These international doctrines and laws secure the right to not be discriminated against and to be treated as equals regardless inter alia of our sexual orientation.
In our own private sphere, we can be whatever we want to be and courts all over the world have ruled against the idea of the state, stateless, or state-sponsored intrusion into our private lives. The European Court of Human Rights has stated that “Sexual orientation is an essentially private manifestation of human personality” and hence what goes behind closed curtains of a private individual should not be our concern, and the individual shall by law be free to choose their sexual partner and their own orientation in that regard.
Protecting Liberty
Numerous international conventions have adopted the progressive outlook on the matter by stating that it is a concern for the individual and not the state to interfere with such matters. Law which more often than not is shaped after the kind of society we live in, criminalized interactions between such groups. From same-sex marriage being illegal to acts of sodomy and just the choice of identifying as someone from LGTBQ+ been criminalized, the LGTBQ+ community has faced one of the toughest battles for liberation from social stigma.
Whereby laws were made for and by heterosexuals, anything else was deemed unnatural. A prime example is the case of Navtej Singh Johar v. Union of India, 2018. The apex court of India ruled in favor of the LGBTQ+ community and decriminalized Section 377 of the Indian Penal Code which like the code itself was ancient in its origins and criminalized homosexuality.
As early as 1994, in a petition filed by an NGO, in the matter AIDS Bhedbhav Virodhi Andolan vs Union of India 1994 homosexuality was challenged but the petition was dismissed as it was not contested thoroughly. Numerous cases notably the Naz Foundation case (2009) have been filed in courts across India in an effort to support the rights of a community of people no one acknowledges. But since the Navtej Singh Johar case, courts and people have begun to interpret Article 15 of the Indian Constitution as a fundamental right protecting the choice and individuality of a person, thereby protecting them from any discrimination based on their sexual orientation.
Transgender Persons Act 2019 and Same-Sex Marriages
The Transgender Persons Act of 2019 protects the individual’s decision to change their legal gender while also recognizing the third gender in the process. But the legislation has failed to allow same-sex marriages. While the courts have allowed same-sex couples to co-habilitate, there is no option to be legally married in India as a same-sex couple. While the law of the land protects rights and does give some relief rather than none, it is far from perfect. Courts have refrained from being an active participant and have resorted to being a passive supporter of same-sex marriages, while cohabitation is legal, same-sex marriage is illegal for lack of legislation supporting it.
Many countries have implemented laws allowing same-sex marriage and the fact that couples from India and all over the world are flying out to these countries to get married legally shows that people are ready to legally abide by the rules but if there are none, they cannot be treated as criminals or delinquents in their own country for being different. The LGBTQ+ community in particular has faced this problem for centuries.
The discrimination the LGBTQ+ community has faced for centuries, being treated as outcasts and abandoned to die was supposedly undone by the introduction of the TPA 2019 but sadly, the act also brought its own problem of loose implementation and not taking into consideration the suggestions that were made by the concerned community to actually make the law better. The final result was what can be described as a law implemented as means to gather support from these communities in the form of their votes. The actual impact was far from what was expected. Subsequently, a committee has been formed to improve the legislation.
Shackles of Society
The topic of human sexuality in itself is a fragile one. People have contested it from various facets. The winners of such debate for centuries have been the ones who disregarded homosexuality or the existence of the LGBTQ+ community in itself. Inter alia laws and education imparted from early childhood have always pushed mankind to do what is natural. The discourse of unnatural forms of sex being discouraged and illicit relations between same-sex couples was taboo.
Stigmatization
Constant practice of marginalization, violence, and discrimination has led to a stigma that the LGBTQ+ community is in fact so different that they are against the natural order. This social stigma meant many lead false lives pretending to be heterosexuals dodging the bullet while living inside a closet. The perception and the view that these people are different prompted many to fear something they didn’t understand and quickly led such a choice to be labeled as a defect or illness.
These social stigmas, however, were not raised from scratch all on their own, various private and state actors are responsible for this. Scientific discourse led many to believe in what is known as the natural order of the world. We need to survive and an essential part of it is to procreate. This meant that homosexuals would not be able to do so. In face of such theories, people have grown to believe that since it is not part of the natural order, this choice is just a fascination that can be altered. More often than not, society has worked with science against the LGBTQ+ community. Famous professor Alan Turing was force-fed medications for hormonal imbalance as he was gay. Many people have in those times suffered silently as even science would not back them up.
Religious Discourse
Religion plays a big part in shaping any society. People’s notions are shaped around their religious values. This is evident by the fact that religion molds society and law according to it without actually trying. Devotee and genuine believers staunchly defend their views and the values imparted by their religion. Hindu religion unlike other religions actually incorporates LGTBTQ+ in its scriptures and thus better was to be expected from the laws, but then India is a culmination of different races and religions blended together. This mixture was given closure by the British who consciously left their laws and beliefs in India, which we still consider modern. Society then grew into such notions and discouraged a choice of choosing sexual orientation. Subsequently, any person out there has to face discrimination in making such choices and sometimes even from their own family.
Many other religions have gone onto the extent of making sex in itself a taboo. Strict followers abstain from indulging in activities of pleasure while resorting to the activity as means of procreation. This again stopped many from even thinking about sexual orientation. This is still evident from traditional families in India making it difficult for their family members to come out and admit their choices for the fear of backlash from society and degrading their family name.
Conclusion
Everyone should be treated equally. As long as we maintain a belief that we are humans first and not a savage race of animals, it is possible for us to look beyond our imperfections and acknowledge something for what it truly is. Conflicts stem from the fact that we don’t acknowledge such causes and end up trying to mold and change them to our liking.
The LGBTQ+ community has struggled for decades and centuries and finally has a voice. People matter and so do their choices. The international community has acknowledged the existence of the LGBTQ+ community while municipal laws are slowly accepting the change. While laws can be changed in an instant, society in comparison takes quite a while. We need to start small, start from our homes, our parents, our siblings, our children, etc., we need to support, inform and encourage these choices.
While it is very much possible to roll out revolutionary laws and legal framework, domestic abuse will not stop unless people are informed about it. Society will judge and will revolt against such laws, the process has to be thorough but that doesn’t mean it should be slow. So, do people have the liberty to decide their sexual orientation in modern times? In most parts of the world yes! But this liberty should not stay confined to national/state boundaries and should be spread across seven continents echoing for a change in societies everywhere.
Openness may not completely disarm prejudice, but it’s a good place to start.
Jason Collins, from the essay ‘The Gay Athlete‘.
Editor’s Note
The author in this article talks about the state of sexual orientation and choices in India and provides a critical critique of the present prevailing mentality of the society. The author further provides different case laws relating to the same and mentions the different difficulties facing the LGBTQ+ community in our country, the author concludes with the hope of an equal society where sexual orientation is not used as a weapon for discrimination.