The Respectable Indian Queer Unmasked
When the Supreme Court decriminalised consensual same-sex sex between two adults in Navtej Singh Johar v. Union of India the judgement was deemed pathbreaking and celebrated as a historic milestone for queer liberation in India.
Section 377 had a varying effect on varying queer communities. In many cases it provided legal sanction to existing social stigma.
The existence of such a legal provision was a threat in a society marked by widespread heterosexual, cisgender violence that gave leeway to extortion, exploitation, and violence. It allowed for the legal victimisation of consenting adults. Its wording criminalised all carnal intercourse “against the order of nature” allowing it to be used against lesbians, cross-dressing individuals and transgender to lower their legal standing.
Provisions such as Section 363 of the Indian Penal Code 1860, which criminalises the kidnapping of any person from lawful guardianship and has been used to control the sexualities of women who love women in the past, continue to be misused for such ends.
Four years earlier, while NALSA v. Union of India had upheld the right to self-determination and dignity, the judgement’s recognition of the “third gender” was deemed extremely reductive by trans people such as Kanmani Ray, an activist who wrote:
“While anyone is free to self-identify as third gender & I shall stand by it, the very idea of self-identification is against such a notion to impose one word which is not acceptable to all. Also, it reinstates a sexist exclusionary hierarchy (violating Article 14 & 19). If every transgender person is supposed to be referred to as a third gender person, then who is the first gender? Cisgender Men? Then will cisgender women accept the status of ‘second gender’ under the Constitution?”
Moreover, the judgement merely dealt with the rights of gender, not sexual, minorities. And despite these judgements, cisgender Indians continue to perpetrate violence, discrimination and hatred upon transgender Indians.
Only financial and social standing can protect LGBTQIA+ individuals from dangerous quack “cures” such as “conversion therapy”, which has still not been declared an offence.
Although it has been denounced by several members of the medical community as unethical and a pseudoscience, it still poses a severe threat to many. Many have died by suicide as a result of this practice rooted in fear of queers. Such heterosexual violence does not target everyone equally. Caste, class, sex, gender, religion play a considerable role.
And so we must remember that the Navtej Johar judgement disproportionately benefited wealthy gay cis men more than other queers.
How is the respectable Indian queer expected to behave?
Society and the state have always been wary of the politically thoughtful queer.
This was particularly evident at the Mumbai Pride March last February, when the police denied “permission” for a Queer Azadi Pride March to be conducted apparently fearing that people would use it to demonstrate against the Citizenship Amendment Act.
Nevertheless, people chose to exercise their fundamental right to assemble peacefully, protesting and chanting slogans for queer liberation and against the CAA.
In response the Mumbai Police arrested around 50 people and charged them with “sedition” alleging that they had expressed support for Sharjeel Imam, a scholar and activist unfairly arrested on the same charge for his statements against the CAA and the proposed National Register of Citizens.
The regressive NRC shows clearly how the state can deliberately deny groups of people the status of being considered “normal”. In Assam the NRC reportedly excluded some 2,000 transgender people, threatening to leave them stateless.
Although the NRC was widely considered to have been intended to exclude Muslims, it is impossible to separate the two exclusions, and the ability to do so remains available only to wealthy people from dominator castes.
The respectable Indian Queer is non-threatening. They are expected not to challenge the state or society, and never use their own experience to expose the failures of both in guaranteeing their safety and rights.
After Section 377 was read down, India witnessed the emergence of homonationalists in public spaces. One of the most prominent is Ashok Row Kavi, founder of Humsafar Trust, a Mumbai-based NGO for LGBT rights, who credits the central government with the Navtej Johar verdict (directly or otherwise) although that judgement was the work of activist groups and the judicial branch, not the government.
Then there is the Queer Hindu Alliance, which supported doing away with Article 370 of the Constitution by calling it a “gay liberation for Kashmir”…
The respectable Indian Queer is non-questioning: of institutions that give or take away rights without accountability, and of structures which advantage certain queers over others.
Public performances of respectability are often aligned with cisheteronormative standards. They are a prerequisite for social recognition and dignity. The harsh consequences of disobedience either force you to hide yourself or risk degrading comments, slurs and violence.
Freedom to express oneself is so important to queers, that respectability politics becomes a tool to police them.
Adhering to these demands, gays’ and lesbians’ right to legally marry is given priority over remedying these other harms. Historically, marriage has been a deeply unequal institution promoted by the state, a tool to control women’s sexuality, reproduce caste hierarchy, and fix people and entire communities into rigid roles. Why the pursuit to fit into a broken system, rather than questioning marriage or monogamy?
The respectable Indian queer is non-sexual. They don’t do sex work for a living, but choose to engage in more “respectable” professions. (You might wonder why, if sex workers are so depraved, just who their depraved clients are? But that’s a question for another day.)
They neatly align with the patriarchy’s ideals of acceptable sexuality and behaviour, and agree that to disobey is to become a non-person in the eyes of law.
The big media discourse surrounding queer rights and activism centres on individuals who are palatable to this public taste. Consequently, certain issues receive priority over others. This is reflective of existing caste, class hierarchies as well.
This public’s memory of the Navtej Johar verdict will always be intrinsically linked to Menaka Guruswamy and Arundhati Katju, immortalised as two lesbian lawyers who fought all odds and finally won their right to love. Their contribution to the case is certainly relevant, but contrary to such mythmaking, they weren’t the only ones.
The case was also argued by other lawyers such as Jayna Kothari, Arvind Datar, and Pritha Srikumar, among others. The depiction of the case as Menaka Guruswamy and Arundhati Katju as the sole saviours of queer rights in India is reductive, and disregards the extensive groundwork done by various queer groups, activists and lawyers to get to that position in the first place.
Immediately after Suresh Kumar Koushal v. Union of India, several curative petitions were filed by mental health professionals, parents of queer kids, and groups such as Voices against Section 377 and the Naz Foundation Trust. There was a mass mobilisation of LGBTQIA+ individuals on the ground.
In 2016, two fresh petitions were filed by Navtej Johar, and Dr. Akkai Padmashali, Umi and Sana, three prolific transgender activists from Karnataka. They were followed by several other petitions by queer activists such as Anwesh Pokkuluri, Keshav Suri, Prof. Nivedita Menon etc. urging the Supreme Court to reassess the constitutionality of Section 377.
But the big media selected Navtej Johar and his partner Sunil Mehra, a high profile dancer and journalist respectively. Petitions followed by restaurateur Ritu Dalmia, hotelier Aman Nath, and businesswomen Ayesha Kapur, all considerably wealthy individuals, insulated from potential backlash, virtually immune to the kind of blackmail and violence others face.
Glorifying Navtej Johar – the person or the judgement – comes at the cost of sidelining other issues that queer communities continue to face. Akkai Padmashali, in an interview with the Leaflet, said that while NALSA spoke about the right to gender identity, it was silent about the oppression of sexual minorities. Section 377 was frequently misused by the police and several transgender people were victimized, tortured and sexually abused in police stations. And it was this that motivated her to file a petition against Section 377.
The judgement itself speaks extensively of the historical injustices perpetrated on queers but does not provide any positive rights. Further, the introduction of the regressive Transgender Persons (Protection of Rights) Act, 2019 barely a year later, considerably pushed back transgender rights and activism.
The Act is a product of apathy, ignorance and sheer absence of inclusivity. For instance, Section 4(2) guarantees the person right to self-perceived identity. But Sections 5 & 6 mention how the District Magistrate can provide transpeople with a certification of identity of “transgender” (and not their identified gender) until they undergo a sex reassignment surgery.
This strips a trans individual’s right to identify and be recognized as a particular gender, and instead lumps them in the category “transgender”. The Act also lacks clarity about intersex persons, diluting their rights.
It provides no positive rights, such as for reservation and employment, to trans Indians.
The government was deaf to criticism throughout the consultative process. In the midst of the coronavirus lockdown it published the rules it had framed to implement the Act, seeking responses by an unrealistic deadline.
This is a group especially vulnerable during the pandemic. There have been reports of increased violence against trans people and their financial hardships have been especially exacerbated.
While transgender people and LGB individuals without significant class or caste privilege continue to face adversity, the big media discourse revolves around the Marriage Project as the next “goal for queer liberation in India”.
To push for this in a jurisdiction that has not demarcated gender and sexual identities comprehensively, or guaranteed fundamental rights through legislation, will always be trans-exclusionary.
It was on September 13 that a PIL was filed before the Delhi High Court asking for same-sex marriages to be included within the Hindu Marriage Act of 1955. The Solicitor-General claimed that same-sex marriage was not recognised under “Indian culture” and the hearing was adjourned.
Once again, the beneficiaries of a favourable order in this case would inevitably be wealthy, highered caste Hindus. It promotes religious endogamy in a country deeply divided along communal lines.
The Hindu Marriage Act is rife with problems, for instance its undue emphasis on the rituals and ceremonies of Brahminism. In 1967 C.Annadurai passed an amendment to the Act to allow for the recognition of self-respect marriages, or marriages that don’t require priests or any religious ceremony in Tamil Nadu. This was a radical move to promote intercaste marriages, and the first of its kind in a country that promotes caste endogamy.
The Act also tries to control and actively discriminate against women, and dilutes individual autonomy in marriage. Its Section 9 provides for the restitution of conjugal rights. This has been used by courts to curtail a woman’s freedom to pursue employment of her choice, by holding that it is the ‘sacred duty of a wife to follow her husband and to reside with him’.
It controls an individual’s autonomy in a marriage, disallowing them to leave and reside where they wish.
Further, in a state where marital rape is not a legal offence, it forecloses any opportunity for an individual to escape their abusive spouse. To work homosexual marriages into this deeply oppressive code is as far from progress as one can get.
Queer activism operates within the existing structures. Caste, class and gender privilege allow the respectable Indian queer to control big media narratives and the public memory, often at the cost of other identities.
Courtesy : The Citizen