Pride Matters | The fight for meaningful queer emancipation - Hindustan Times
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Pride Matters | The fight for meaningful queer emancipation

Jun 22, 2022 10:25 PM IST

Has India moved forward in the inclusion of the queer community since the scrapping of Section 377? With Covid-19 as an example of a trying time for the community, their fight for fundamental rights continues, while the State is often found wanting

When the Supreme Court decriminalised homosexual sex between consenting adults in 2018, it signalled some important things. Through this decision, it unequivocally established that queer people were not to be treated detrimentally because of their queerness. Indeed, not only were their sexual actions outside the scope of criminal law, queer people (belonging to the lesbian, gay, bisexual, transgender, queer, intersex, asexual community or LGBTQIA+) had all the rights that others took for granted. Fairness, the court reasoned, was the beacon that all just, free societies aspired toward. It was as much for queer people to expect as it was for others. The court based its reasoning on fundamental rights that are at the heart of the Constitution — the rights to life and liberty, privacy, health, dignity, free speech and expression, and equality.

While legal change is critical, it goes hand-in-hand with social change. For that, the State and society have an obligation to fulfil. (Samir Jana/HT Photo) PREMIUM
While legal change is critical, it goes hand-in-hand with social change. For that, the State and society have an obligation to fulfil. (Samir Jana/HT Photo)

While doing so, it made two articulations: One which received little coverage, the other which was an easy headline that made the front page. Both are interconnected. When hearing the latter in court that day, I was mystified: Why does “history owe an apology” to the queer community, I asked myself. If anything, society owes us an apology — for the unacceptance, often revealed in outright contempt. Yet, the court implicitly recognised this derision through its direction to the State — to “ensure that this judgment is given wide publicity through the public media… at regular intervals, and initiate programmes to reduce and finally eliminate the stigma” against queer people. Further, and “above all, all government officials, including and in particular police officials… be given periodic sensitization and awareness training of the plight” of queer persons.

So, where are we today, almost four years since that ruling? It is highly questionable whether the State has obeyed the directive of the Supreme Court. Yes, two years have passed in grappling with an unprecedented health challenge. But have wheels been set in motion to ensure that the court’s judgment is conveyed in full to State actors — agencies, police, bureaucrats including ministry and municipal officials, health workers, and all those who run this nation and its innumerable parts? Is it any easier for a queer man to go to a police station in a small town or big city in India to lodge a complaint of violence or harassment by local goons? Are sensitised personnel available on helplines to cater to the needs of trans and other gender non-conforming people when they are subject to unrelenting hate by members of their family? To be sure, this was the reality for many queer people during the Covid-19 lockdown. For them, it was a lockup.

Indeed, with no way out at such times, queer people went through tyrannies that have been little reported. In Delhi, one helpline received 60 distress calls during the lockdown from queer women and men about “house arrests”, and physical and emotional violence meted out by family members. Their ordeals included constant surveillance and restrictions from accessing their own mobile phones. This is data from one helpline in Delhi over three months, about people who were aware of its existence. Multiply it manifold, and you can get an idea of the scale of repression.

Other queer persons were forced to undergo "conversion therapy" by their families to comply with heterosexist expectations. This "therapy" should be called out for what it is — torture. To be sure, in 2021 when a lesbian couple approached the Madras High Court seeking protection against interference and violence by their families, the court didn't just step in to aid the women, but also directed the National Medical Commission (NMC) to take steps towards the prohibition of conversion therapy. Earlier this year, the NMC informed the court that an expert committee constituted by it has decided to classify such a practice as "professional misconduct" by the medical fraternity and directed its ethics board to act against those who practice them. The NMC was directed to circulate this decision throughout its national network so that it was conveyed to the farthest reaches.

This is undoubtedly progress. How was it precipitated, you may ask. It occurred due to the initiative of the judge in an unprecedented move. He underwent a sensitisation session with a therapist trained in providing queer-affirmative care, and held a consultation with the queer community, which helped him gain a holistic understanding of sex, gender, and sexuality. It was then that he applied his mind to the legal issues presented in the case, in a refreshingly informed and sensitive manner.

But why should it take a single judge’s enterprise, or a single litigation to trigger such momentum? Especially when the Supreme Court has been explicit in its directive. It could be argued that nothing is a given, everything must be fought for, particularly for the marginalised. The fact is, queer people and communities have been demanding change for decades now. That is precisely how decriminalisation occurred — through the relentless efforts of several people over many years. Still, there is inertia from the government. No attempt has been made by the State to unequivocally condemn conversion therapy.

In another instance, where systemic change can be easily instituted, little has been done: On a representation by trans and intersex persons, medical practitioners and organisations, while the Delhi Commission on Protection of Child Rights issued an advisory to the NCT government to ban medically unnecessary, sex-selective surgeries on intersex infants and children, adoption at a national level has not occurred.

These are a few but very real and immediate rights concerns for queer people in the country. There are many others. Violence is all too familiar for queer people who are non-conformists. Legal recognition of queer people’s rights in everything from rental accommodation to pension schemes, and non-discrimination to self-determination of binary gender identities is denied. While legal change is critical, it goes hand-in-hand with social change. For that, the State and society have an obligation to fulfil.

Vivek Divan is qualified in queerness and the law, heads the Centre for Health, Equity Law & Policy, ILS Pune, and works at the intersection of rights, health and sexuality

This is part of a special HT Premium series, spanning personal essays, reportage and analyses, to mark Pride Month

The views expressed are personal

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