The Law is the Least but not the Lowest

by Vinay Chandran

A few days ago, an article on BuzzFeed made the rounds. Spoken from the perspective of a queer woman who argued that the Indian queer communities, specifically privileged men, are obsessed with the Indian Penal Code’s Section 377 and its repeal. This, the author claimed, was not a priority for queer women or even indeed trans women or men in India. She posits that the discourse around the law has silenced these other voices and their expectations from the community.

To begin with, I stand with the author on many of the points she makes about how queer women, trans women and trans men in India have been marginalised and oppressed and how that oppression is largely invisible even within the queer movement. But a nuanced reading of her article brings out many challenges that need description and resolution.

The author introduces her article describing a group meeting she attended and how the people in the group met her narration of a queer woman’s suicide––after discussing at length the mental health concerns of and social prejudices against a queer man who had committed suicide¬¬––with silence and a change of topic. While I cannot comment on why the support group reacted like that, does the author believe that silence or change in topic is indicative of queer men being uninterested in queer women’s lives or deaths? She even uses the term “purportedly inclusive” when defining the group meeting that she attended because most of the participants were “men”. She says she was the only woman in the group, but whether the participants self-identified as men or not, she does not elaborate.

The author then speaks about how the privacy judgment from the Supreme Court of India got people in the queer community excited due to the prospect of Section 377 being removed. But does she also know that the scope of the privacy judgment with respect to Section 377 was raised by the judges themselves? If she reads the judgment that has since been made available for the public, and also the reportage that covered the arguments and discussions in court (made available through minutes documented by various legal news websites) she’ll notice the judges themselves raising the question about how the privacy law will affect Section 377. The media reportage focused on this as well.

Many activists within the queer community may have hoped (I don’t speak on their behalf) that the judges would consider removing Section 377. But what really mattered more to many of us in the community was that the privacy judgment would be a boost in the fight against discrimination. The situation, however, is a lot more complex. We know that we live in a country where women’s agency both in private and public is challenged on a daily basis (like the case of Hadiya, whom the author refers to). In such a context, while the privacy judgment could prove a good precedent it is hardly the sole argument to depend on. The same applies to Section 377 where the privacy judgment may help build a case, but the attitudes of the judges who oversee the case (see for example, the bafflingly prejudiced personal opinions and questions of the two-judge bench in the Supreme Court that oversaw the repeal of the Delhi High Court Judgment), alongside social prejudices are going to be more important factors.

The author proceeds to dismiss Section 377 as being unimportant to her. We are in agreement there. For most individuals, whether trans men, lesbian or bisexual women, and even most gay or bisexual men from class- and caste-privileged backgrounds, Section 377 has minuscule impact. But that is not the full picture.
Is the author aware that in the Delhi High Court judgment reading down Section 377, the judges refer to instances such as the one where a magistrate––who was overseeing a case of kidnapping filed against an adult lesbian woman––believed that the “hidden offence” of Section 377 applied to the two women involved thereby “stretching” the reach of the law? Also, many counsellors in the Indian queer community, including me, have dealt with or referred cases where queer women and trans people have sought asylum abroad due to (a) their experience of severe family violence and (b) Section 377, which proves a detriment to their seeking legal redressal from any government authority, all of whom will quote the existence of the law for their inability to help (remember that the whole reason that Section 377 came into the forefront of the queer movement’s agenda in the late 1990s and early 2000s was because the then Tihar Jail’s Prison Officer Kiran Bedi stated she would not allow condom distribution in the Jail because it abetted homosexual acts and was a crime against the law).

The author is also misinformed when she states that the law does not apply to all queer people. She is technically correct on the explanation in the law that refers to “penetration” being sufficient proof of the offense, but she must know that cases under the law (over 50 cases till early 2000s and many more since) have viewed thigh sex, oral sex, mutual masturbation, fingering and other forms of non-vaginal or non-anal penetration as punishable. The fact is that it wasn’t the act alone that was condemned; it was the person who committed the act. This is the reason queer activists have been speaking about how the law’s impact is not in prosecution but persecution. All queer people can be and have been subject to this persecution. Also, perhaps the author is unaware that many of the early cases in Section 377 were applied to and involved trans women, especially hijras? And, of course, they still are.

But the argument against Section 377 gaining precedence in the queer community is double-edged. On the one hand, many countries that have this colonial law retain the phrasing and punishment. But anyone familiar with South Asian queer movements will also know how the attempt by the queer movement in repealing the law in Sri Lanka led to its extended definition and enforced application on lesbian women as well. In the recent past, we have also learned of how other countries have amended the law to include female homosexuality. We have to learn from this and ensure that it is not repeated here, which also implies that we have to recognise that the law can affect all queer people in some way.

I am in agreement with the author that there are more pressing issues for the queer community. From my own reading of the chronology of the queer movement in India, I know that one of the earliest groups set up to speak about queer issues was a lesbian collective. Some of the issues they discussed included the invisibility of queer women and lack of spaces for women to come together. Queer men, on the other hand always had public cruising spaces and organised cultural events sometimes with trans women. The official queer men’s groups started later and almost immediately got involved with addressing the growing HIV pandemic. This directly influenced the conversations in the larger movement and led to the litigation against Section 377. But even then Section 377 was not the only agenda even if it was an important one. Most of us understand that even if the law changed tonight, there would be very little change in most queer people’s lives (the harassment of queer people between the years 2009 and 2013 during the period of the Delhi High Court Judgment bears witness to this). The real struggle for us, is getting anti-discrimination laws in place that will address multiple minorities’ issues including, but not limited to, gender, sexuality, sex differences, dalit rights, religious minority rights, and disability rights. But that struggle is barely begun.

The author and I are also in agreement on the nature of family violence and how it affects queer women in ways that queer men are not generally affected. The examples illustrated by the author of abduction/kidnap laws and habeas corpus writs that are used by families to control queer women’s sexualities are routine and disrupt many lives. But the queer community has, over several years, learnt to recognize these crises and work towards challenging families, police personnel and courts through mediating and resolution. Even as recently as July, the queer community came together to challenge negative media representation and ignorance about the life of a queer woman. These conflicts and resolutions are ongoing.

The author is also right to point out that the root of queer women’s oppression lies in gender injustice itself. However, most of us also know that the queer movement borrows heavily from feminist movements around the globe and from feminist frameworks. But the author’s belief that queer women’s resistance is connected only to feminism and not to the queer movement appears to be the creation of a deliberate separation. This separation or disassociation of the two is usually brought about by so-called ‘men’s rights activists’ who dispute all feminist advance and not by those concerned with the protection of queer rights. Many would agree that if you are queer, you have to be a feminist. Of course being a feminist and acting on feminist principles are worlds apart.

Further, the author’s point about failures to prosecute men who commit violence against trans people is an important and necessary one. All failures of the legal system to prosecute men who rape transgender women extend from the same failures to prosecute sexual assault cases in general. Consider the number of people prosecuted and also the different punitive responses to rape (5-7 years), marital rape (not recognised) and for Section 377 (10 years to life) and we can see the impact of gender on legal perceptions of agency and consent.

The most overarching theme of the author’s article about how Section 377 is a suffocating and oppressive discourse in the queer community is well placed. Into this, the pre-occupation of ‘penetrative males’ in the legal battle is laid bare (many proponents of the litigation against Section 377 said that the law would even affect oral sex or anal sex between heterosexual partners). But in the young history of queer organising in India, no one has suggested that changing Section 377 was the end goal or that gay marriage was an agenda, let alone a priority. Most of the marriage related media coverage, historically, has been around lesbian couples getting married (for e.g., see the 1987 news articles on the marriage of police constables Lila and Urmila). More recently, the Delhi High Court Judgment in 2009 reading down Section 377 was followed by outrage in the media due to queer men getting married in temples. But neither of these instances encouraged collective promotion of gay marriage.

The second overarching theme in the author’s article is the need for queer communities, particularly queer men, to participate in intersectional activism. This is particularly important in a country where the compartmentalisation of social issues is being engineered by many anti-intellectual voices. Some of these voices emerge from within the queer community and do not see a place for dalit rights or religious minority struggles in pride marches. But these are symptomatic of Indian society as a whole. Even in the early years of queer organising, activists were often asked by jeering media professionals “Why is LGBT pride important when farmers are committing suicide?” in the same tone that queer people today ask “Why should you carry a ‘Queer and Dalit’ banner at Pride?” To each of these we have to speak about the importance of intersectionality. As Audre Lorde says: “There is no thing as a single-issue struggle because we do not live single-issue lives.”

The argument for intersectional activism comes from years of multiple grassroots struggles, years of feminist resistance and is informed by ever-changing local contexts and cultures. And one of the first lessons of such struggles is that who speaks is as important as what is being said and how it is being said. The author does not address her own position vis-à-vis these communities, except to give her status as a queer woman. How would the author then respond to criticisms of cultural appropriation? How would the author respond to criticism that she is “whitesplaining” intersectionality as if these were completely alien to queer communities in India? Especially since several members of the same group the author refers to in the dismissive introduction of her article, were crucial to the formation and functioning of Bangalore’s first intersectional activist space (established in 1997) that fought for gender and sexuality rights and was comprised of representatives of women’s rights groups, child rights groups, health rights groups and many more. The same group is also part of a larger coalition of organisations and individuals from different movements that organise the annual Bangalore Pride that for two years has also achieved the singular status of being India’s first disability-friendly event.

The author feels she can dismiss Section 377 since it doesn’t affect her, an argument on the same lines as the privileged gay men who say that dalit issues don’t affect them. We cannot ignore the law or its impact because we cannot ignore history. The point is to recognise the deep flaws within every movement, every self-forming community, every self-identified minority, and every non-normative group and work on correcting the flaws––not to create further gaps and chasms where fractures already exist, and admittedly the fractures do exist.

What we need to do and have tried doing in the past, is to learn from the mistakes made by queer communities in the west. The fractures within those movements were encouraged and these divided and sub-divided the larger movement into highly concentrated minority groups-within-groups. That may be precisely where we are headed, if we continue articulating the differences and only critiquing them rather than finding ways to resolve them. Those of us who believe in these things recognise how inextricably linked all our fights against systemic oppression are proving to be. We cannot fight for queer rights without at the same time fighting for women’s rights, rights for all religious minorities, rights of all those oppressed by their caste, rights of all disabled people and many, many more. The effort should be on inviting to understand shared struggles––not merely critique and destroy bridges, which, judging by reactions to the author’s piece has already become worrying.

In conclusion, despite how this piece sounds, it is not a defence of any one group or community. It is meant as a caution to those practicing divisive politics. You will succeed if you wish to divide, but the consequences will be felt for generations to come. We have to be wary of those who present truth only as what they see, how they see and when they see it. We all struggle together, whether it is presented in that way or not.

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