Monthly Archives: July 2009

The Delhi High Court verdict and its underlying implications

By Ashok DEB

The landmark Delhi High Court judgment of 2nd June on decriminalization of same sex behavior may trigger implementation of some massive path-breaking LGBTI rights in India. This is quite an achievement in a nation of over 1.2 billion, where Homosexuality is grossly perceived to be non- existent, deviant or highly pervert. Presently Nepal is the only SAARC nation to have recognized the non-normative genders and same sex unions. However, the Indian developments could ripple positive vibes to the neighboring states forcing them to re-think about the discriminatory laws against sexual minorities. The final point of the judgment reads the following:

“132. We declare that Section 377 IPC, insofar it criminalizes consensual acts of adults in article 21 is violative of Articles of 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving the minors. By ADULT we mean who 18 years of age or is above. A person below 18 would be presumed not to be able to consent to a sexual act.

This clarification will hold till, of course the Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which we believe can removes a great deal of confusion. Secondly, we clarify that our judgment will not result in re-opening of criminal cases involving section 377 IPC that have already finality. We allow the writ petition in the above terms.

CHIEF JUSTICE

JULY 2, 2009 S. MURALIDHAR”



The victory at the court has come nearly after a decade of hard fought contest. It all began when a group of Naz Foundation activists in Lucknow were charged with 377 A by the right wing BJP Government for distributing condoms and safe sex literature to MSM workers. In retaliation Naz Foundation filed a petition in the High Court directly challenging the constitutional validity of the law. The Sodomy Law Section 377 A had a much wider ambit beyond homosexuality. This law solely offered protection against the criminal violations of child abuse and male rape. So the petitioners requested the court to Read Down the law to its narrower interpretation, i.e., decriminalizing private consensual sexual relations between adults.

In 2004 the plea was dismissed by the court on the grounds of morality and prevailing societal norms. Subsequently the Supreme Court ruled that a PIL of such an importance could not be rejected solely on the grounds of PREVAILING MORAL NORMS alone. This allowed a re-appeal of the PIL against Section 377 A to be admitted for review once again. Obviously the British Era enactment Section 377 A was proving to be a major hindrance towards preventing HIV and venereal diseases among the MSM and Transsexual workers. Subsequently the movement got stronger with a coalition of 13 major NGOs, including some child protection organizations, voicing their concerns against the law in its present form. A breakthrough was finally achieved in 2008 when Delhi HC declassified homosexuality from the list of mental illness. Thus decriminalizing homosexuality gained momentum with the then Health Minister Ramadoss favoring legalization for same sex behavioral patterns.

Naz Activists celebrating the court victory

A careful look at the 105 page judgment reveals that the Sodomy Law has in fact been READ DOWN to the desired concise interpretation where it still continues to govern the non consensual and under-age sodomy acts while sparing adult consensual same sex behavior. Much confusion arises whether the newly modified law will be able to provide adequate protection to those who do not conform to prevailing definitions of gender identities, Hizras, representing the third sex being one of them. Other way on the positive note, the spirit of the decision goes much beyond solely decriminalizing Homosexuality. The judgment has rightly referred to the Article 15 of the Indian Constitution which prohibits discrimination on grounds of sex, race or religion. On 20th July the Supreme Court refused to put the Delhi High Court decision on hold, which implies that same sex couples would also be entitled to marital unions and even adoption of kids. If all of the High Court suggestions are adhered by the Law Ministry, it may give the Indian homosexuals their much coveted piece of anti-discrimination legalization.

However the Delhi HC jurisdiction is valid only within its territorial limits. Thus the 377A writ loses its relevance across other parts of India. However a similar PIL verdict on 377 A is awaited in Mumbai HC soon. In India the Court orders are not mandatorily legalized, rather it depends on the electoral policy of the ruling coalition to floor a new law in Parliament for approval. Few of the milestone court verdicts on inheritance, divorce, adoption and equal opportunities could not be tabled due to the apprehension that they threatened to sway chunks of vote bank support. Initially the Home Minister P. Chidambaram and the Union Law Minister Mr. Veerappa Moily gestured considerable support towards ending the 1860 British Era sodomy law. Later Mr. Moily started seesawing his stance over this issue after facing stiff criticism from the religious leaders.

Activists protest against the ruling to decriminalize gay sex in New Delhi on Sunday.

The legal battle is not all over yet, as Suresh Kausal, an astrologer has appealed against the decision. The concerned individual states that “if such abnormality is permitted, then tomorrow people might seek permission for having sex with animals”. Kaushal believes that decriminalizing homosexuality would increase the spread of HIV since “HIV virus is a result of unnatural sex”. Presently a delegation of Darul Uloom Deoband, All India Muslim Personal Board, Jama Masjid Imam and Islamic Peace Foundation are in discussion to chart out their future course of action pertaining to this ANTI-SHARIA issue. For the first time in the Nation’s history the Hindu right wingers of VHP, RSS seems to be uniting with the Muslim hardliners over the issue. The Catholic Church has reiterated that the Court order will not have any effect on their stance towards Homosexuality. The city of Delhi has experienced some severe anti-gay protests and subsequent rabid homophobic attacks by some fanatically aggressive organizations thereafter.

The Supreme Court has asked the Central government to take a definite stand on the issue. The Law Ministry plans to set up an advisory committee to carefully scrutinize the Court’s suggestions. The Government plans to table suitable amendments on Section 377 A IPC at the forthcoming Winter Session in the Parliament. Few distinct possibilities exist about the forthcoming legal reform.

Firstly, the Section 377 A could be read down as dictated by the Delhi HC, which will definitely blunt the massive brunt of the prevailing law.

Secondly, Section 377 A may be totally abolished and a set of new laws may be introduced to replace it. Section 377 A alone fails to cover all the aspects of sexual assaults experienced by the minor victims. For long the child protection activists have been demanding separate laws for child abuse. This time new enactments of protection against child abuse may be introduced by the Government. Similar legalizations could be also formulated for male rape.

Thirdly, new anti discriminatory laws could be proposed for sexual minorities, as directed by the Delhi High Court, which entitles them to the same rights and benefits enjoyed by a common Indian citizen.

The undying Indian struggle towards tolerance and equality

Many observers are skeptical whether any enactments on section 377 A would be tabled in the Parliament at all. The Section 377 A judgment has definitely stirred up the highly puritan Indian society. Laws could be perceived as a reflection of societal parameters. Irrespective of individuals’ personal sexual preference, the Indian society en masse prefers puritan laws in public. Very few governments have dared to implement laws that directly oppose popular public sentiments. Worse still, by declaring that Section 377 will be discussed only at the winter session, the Centre may be deliberately trying to push it at the back seat. Many of the sensitive issues have met the same fate, where the tabling were intentionally and repeatedly delayed till it lost the relevance or societal opinions softened.

Lastly, a favorable legalization not necessarily ensures an outright end of discrimination towards the sexual minorities since deep rooted Homophobia imbibes the Indian mindset. But having a legal aegis of recognition and decriminalization will definitely assist in creating conductive ambience for co-existence of the homo and hetero communities in future times to come.


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Bandhu(BSWS) Voices against Section 377 A BPC

Submitted by Tanvir Alim


As a part of policy and advocacy initiatives, Bandhu Social Welfare Society BSWS arranged an open discussion titled “Voices against 377 – Regional Experience Sharing of Advocacy” on 7th July 2009 at the head office of BSWS. Ms. Madhu Mehra from Partners for Law and Development, India made a presentation followed by the open discussion.

BSWS was formed in 1997 to address concerns of human rights abuse and denial of sexual health rights, and provide a rights-based approach to health and social services for one of the most stigmatized and vulnerable populations in Bangladesh, kothis/hijras and their partners. Over the years it has emerged as a national ‘MSM’ non-government organization currently providing social and health services to a broad range of ‘MSM’ in 11 districts.

A core objective of BSWS work with MSM and Hijras is to advocate and provide for an environment where the respect and dignity of all MSM/Hijras, irrespective of their specific gender and/or sexual identity, or the lack thereof, is assured, along with the creation of a supportive social, policy and legal environment to enable MSM to more effectively respond to sexual health rights and basic human rights in our country, along with increasing their    health seeking behaviors.

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U.S. Embassy in Dhaka celebrates LGBT Month

Submitted by Tanvir Alim

The US Embassy, Dhaka

The Diversity Committee of U.S. Embassy Dhaka celebrates and honors America’s diversity with events throughout the year. Under LGBT Month events sponsored by The Diversity Committee, there were Hijra Community Panel Discussion on June 24, 09 and A film show “Out of the Past: The Struggle for Gay and Lesbian Rights in America” on June 29, 09

A panel discussion with Hijras and NGO workers took place in the Sundarbans Conference Room of US Embassy. For more information, please contact at DhakaDiversityCommittee@state.gov

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BoB discusses UPR recommendations with LGBTI legal activist Sara Hossain

By Tanvir Alim

5th May, 2009

ScreenHunter_02 Jul. 28 19.38

Barrister Sarah Hussein, speaking at an Ahmedia conferrence

BoB delegates met with the eminent LGBT lawyer activist Sara Hossain, who is also associated with Bandhu Social Welfare Society (BSWS). The agendas on the discussion were related to UPR recommendation over Bangladeshi LGBT issues, Section 377 A BPC and the legal obstacles encountered towards registering the newly formed coalition of LGBTI groups. Sara has confirmed her active participation towards working with the sexual minorities and assisting the coalition in necessary legal matters. At that meeting the participants were informed about existence of an UPR Forum of prominent Bangladeshi NGOs. However, presently the Forum does not include any plans of advocating the UPR recommendations over LGBTI issues. BoB activists are making concerned efforts to get in touch with the UPR group to raise the issue. The discussion was organised at Shireen Haq’s (Naripokko) place in Dhanmondi, who expressed her commitment to help BoB grow.

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Normal again: The reasons and realities behind the ex-gay movement


Crossposted from pinknews.co.uk :  http://www.pinknews.co.uk/news/articles/2005-13417.html

By Ramsey Dehani • July 24, 2009 – 15:47

Ex-gay therapy can cause great damage (Photo B Hernandez)

Ex-gay therapy can cause great damage (Photo B Hernandez)

// //

The ex-gay movement, which professes to ‘cure’ homosexuality, is in the news yet again following the disappearance of American student Bryce Faulkner, who is thought to have been sent to one of the controversial centres by his parents after they discovered he was gay.

Ex-gay ministries were founded in the mid-1970s in a reactionary move against the advance of the gay rights movement in America. Rather than focusing on any biblical exegenesis or psycho-biological studies, the movement focused on popularised stereotypes of gays and lesbians, concentrating their actions on such things as ‘gender-specific’ role playing and ways of thinking.

The ideals of what the movement preaches, a move from homosexuality through to heterosexuality, are said to be ineffective and “potentially harmful” by American psychologist groups such as the American Psychological Association, which claims that such direct intolerance and lack of acceptance can cause mental health problems.

PinkNews.co.uk spoke to Dr Adrian Coyle, a senior lecturer in the Department of Psychology at the University of Surrey and co-author of ‘The Social Psychology of Sexuality’, about how these negative connotations affect the person involved.

With regards to reparative therapy, Dr Coyle said that there is “no evidence it works” and that the “research evidence just isn’t there”.

“As a psychologist and a scientist, I want to know about the evidence they have,” he said.

“I don’t think its wise to engage with the desire to change, the reinforcement of pre-existing negative ideas of one’s sexuality presents a huge risk.

When asked further about ex-gay treatments he said that the only positive outcome would be that “conceivably, once, say, a religious Christian who is forced to go or chooses to go [to a centre], engages with it and tries their best only to find it doesn’t work . . . it could be a catalyst for some critical thinking and a realisation that maybe they are not ‘wrong'”.

He went on to stress: “The risk is so huge for feelings of complete isolation of social context and the implications for a person’s life and wellbeing.”

He added that this could potentially lead to suicide.

Ex-gay groups tend to say that members who come to them want to change, and lose their “unwanted same-sex attraction”, but when reading accounts from these people, many of whom come from small towns or cities throughout America where there is harsh intolerance towards gays, one can see reasons why they think that this is their only option.

The groups themselves often cite personal trauma as reasons for undertaking the therapy, with the National Association for Research and Therapy of Homosexuality (NARTH) claiming: “Early [during childhood or adolescence] sexual experiences with an older, same-sex person are commonly reported by our homosexual clients.”

Peterson Toscano is the co-founder of beyondexgay.com, an online community for people who have gone through the ex-gay process and found it unsuccessful.

He submitted himself to reparative therapy, and spent 17 years of his life attempting to address his same-sex attraction, before finally coming out as openly gay in 1999. He told PinkNews.co.uk about his experience at ex-gay residential programme ‘Love in Action’ (LIA), as well as the three exorcisms he went through.

Describing a reparative therapy session, he said: “In LIA a typical day meant group sessions where we talked about our issues and get teachings about why we are gay based on the template they provide. Often parents get blamed and participants need to match their personal histories with the template the programme leaders provide thus creating a new mythology about themselves.

“We had to spend a great deal of time writing about our former sexual experiences,” he continued, “and then filtering them through a lens that deemed such activity as sinful, dysfunctional and addictive.

“We also had to stand up in front of family and friends and share one of the most shameful sexual experiences we had, much like people do at AA when they talk about hitting rock bottom. This is a devastating and shaming event for both the participants and the parents”.

Toscano talked about how they were given training in “proper” gender roles and personal presentation, and “how to dress, walk, act like proper men and women”. Examples included men going to football “clinics” and women receiving baking lessons.

However, it seems that LIA itself does not even believe gays can be changed.

Toscano described how John Smid, the director of LIA, announced in a welcoming speech to them that the goal of heterosexuality was “unrealistic” and added that many would struggle with their desires for the rest of their lives.

Even Exodus International, the ex-gay group that is one of the largest of its kind and also the place where Bryce Faulkner is said to be being ‘treated’, now teaches this very message: “Change in orientation is not possible.”

Alan Chambers, the president of Exodus International, spoke at the Love Won Out conference in 2007 and said: “Heterosexuality shouldn’t be your number one goal . . . the opposite of homosexuality isn’t heterosexuality. It’s holiness.”

Mr Chambers continued: “I think we in the church often get that wrong. We think, ‘okay, the best thing for this person who’s involved with homosexuality or involved with lesbianism is that they come out of that lifestyle and go into heterosexuality'”.

He added that this was “setting people up for a terrible fall”.

So the president of the group itself is saying that the heterosexuality that he is attempting to push on gay and lesbian people is unattainable.

Bryce Faulkner has been criticised from a number of quarters for not choosing to leave therapy.

However, Toscano warned of the difficulties of trying to leave ex-gay ministries.

“Cut off from the world – friends, TV, news, etc -the teachings of the programme fills the head. You get trapped in a world within a world,” he continued, “an alternate universe that warns of all sorts of dangers outside, that to leave, one is also leaving God’s will for your life.”

“Looking at it from the outside this may seem silly,” he went on, “but inside that world that is filled with shame and fear, it becomes harder and harder to think clearly for one’s self.”

“Also, to know that once you leave you may be destitute . . . without the support from your parents . . . it makes it all the harder to get out,” he said.

“Some kids do resist their parents and make it, but there are also far too many homeless LGBT people out there.”

With the case of Bryce Faulkner still ongoing, and people such as his boyfriend Travis Swanson saying that he was “allegedly brow beaten, manipulated and economically bullied into ‘agreeing’ to an intervention to ‘cure’ his homosexuality”, one can see that the movement continues.

Despite the assertion from its leaders that it doesn’t work, ex-gay therapy continues and more and more people like Bryce Faulkner are sent there every day.

The movement in the US, and indeed, the UK, is going stronger, something which undeniably calls for more research into such false ‘cures’, which even the centres’ leaders say does not work.

NARTH and Exodus did not return calls for comment.

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The Hindu Business Line Interview with Anjali Gopalan

‘It was the injustice of it’

Anjali Gopalan of The Naz Foundation on the fight for the rights of homosexuals.

‘To me it was so bizarre that citizens of one’s own country should be seen as criminals because they loved someone of the same sex.’


WFS

Inclusive agenda: Anjali Gopalan, executive director of The Naz Foundation, hopes the judgment against Section 377, which criminalised consensual sex between homosexual adults, will reaffirm the values of equality.

Pamela Philipose

For Anjali Gopalan, the Delhi High Court judgment striking down a part of Section 377 of the Indian Penal Code that criminalised consensual sex between homosexual adults came as a personal vindication. It was The Naz Foundation, of which she is the executive director, which had fought against this archaic and regressive law in the courts for eight long years. Anjali now hopes the judgment will bring about a change in attitude and reaffirm the values of equality and inclusi veness.

When did you first take cognisance of this issue?

I had been working on HIV from 1985 in the US, and one could see what the disease had done to the gay community. It had decimated it. So when I came back to India it really made sense to work with the community. I began working with the gay community in 1994 and quickly perceived the constant harassment it faced. The police would use Section 377 as a means to get couples to pay up, even if they were just sitting together or walking down the street. What also became very clear was that if one was looking at working with the community, it was important to build it. But a law like Section 377 didn’t allow that to happen.

From the perspective of HIV, too, it was clear that infections would not be prevented if people didn’t value themselves. When you are trained in the West you have a very clear idea about whether people are gay, straight or bisexual. Here I found that there was no such thing as a gay identity. Many gay men were married but were sleeping with men. I could see how this was impacting their lives and that of their spouses.

Then take the attitudes of parents. We did a lot of counselling of parents of gay people and they were constantly telling us, ‘Okay, you want us to accept the fact that our child is gay, that our child is really normal and natural. But if that were the case, why is it criminalised?’ That was when we decided that we really needed to look at this issue very carefully and do something about it.

So is this what drove you to challenge Section 377?

Yes, we approached the Lawyers Collective with that intention. The law, as you know, is very strangely worded. It said carnal intercourse against the order of nature with man, woman or animal was deemed to be criminal; it didn’t say anything about homosexuals specifically. Obviously this meant that anyone and everyone could be brought under the purview of this law. But definitely, not anyone and everyone was being harassed. Those who were harassed were from the gay community. We then realised that there was no law against child sexual abuse and that this law was also used for that. So we said, okay, let’s look at reading down the law where consenting adults are placed outside its purview. That’s precisely what we asked for, and that’s what we got.

What were the challenges you faced while fighting this case?

First of all there were a lot of people who asked: ‘There are so many important issues, why this?’ There were negative responses from the gay community, too. Some asked: ‘What are you getting out of this? After all, you are a straight woman?’

For me, it was the injustice of it. Many of us who do this kind of work believe in a just and equitable society. To me it was so bizarre that citizens of one’s own country should be seen as criminals because they loved someone of the same sex. It was as simple and straightforward as that.

There were also groups that made wild allegations about us, accusing us of being paid by western agencies. They said that we were actually promoting a western ideology; that we didn’t care about our country or its moral values; that our organisation, The Naz Foundation, was not registered. Complete falsehoods. I didn’t see them as challenges; I saw them as irritants instead. I thought, well these people too have the right to believe in what they believe in, and that I had to do what I had to do.

Also, initially, we had a difficult time in court. The court actually threw the case out, saying we had no right to challenge this law because we were not directly affected by it.

What do you perceive as the single most pertinent aspect of this judgment?

We couldn’t have asked for a better judgment. I can’t think of another judgment that better reflects two of the values I hold most dear: Equality and inclusiveness. I think this judgment really expresses the spirit of our Constitution and the thinking of people like Panditji and Ambedkarji.

So now that the Supreme Court has admitted the petition challenging the judgement, what next?

People like Baba Ramdev want to challenge this judgment in the Supreme Court. I don’t know what that means. Everyone has the right to his/her point of view. If that is how some people respond to the judgment, they must do what’s right for them. So now, I guess we will just have to deal with this after consulting members of the community. But I believe that it will be very difficult to overthrow this judgment because it’s based on very sound legal arguments.

Legislation is the next logical step then?

We need legislation. Without that there cannot be a national consensus on this issue. If the people in the community are to have legal rights, we need to build that consensus. I do hope our leaders will take a stand that makes it very clear that India is a secular, democratic country and that they resist the efforts of the religious right to hijack the issue.

Will the judgment impact on how HIV/AIDS is perceived in India?

For people to access health services, the behaviour of health providers to those from marginalised communities — whether they are gay or merely poor — is the key. The judgment will not impact this. The impact will be when people change their mindset and that is a slow process. We need attitudinal change. For instance, many believe that gay people are paedophiles. People don’t realise that most paedophiles are heterosexual men. All the cases that have come up in courts are of heterosexual men who have violated young children. So what are they talking about? Why are they linking homosexuality with paedophilia? Society has to be made aware of these realities.

So, with this judgment has India finally entered the 21st century?

There is change, certainly. Even if you look at the period from when we first started our work until now, there has been a significant change in attitudes. We’ve seen how the dominant viewpoint in the media has altered radically. For me this is significant because the media reflect the attitudes of wider society. We hear of many families accepting their children’s homosexuality. We know of families who have got their sons married to other men, their daughters married to their partners. It will take time. After all, we are demanding a transformation in some very basic ways of thinking. But it shouldn’t be an inhibiting factor. We also need to continue our dialogue with those who don’t agree with us. Especially because we look at the issue from the perspective of rights, we must not stop this dialogue even for a second.

© Women’s Feature Service

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‘Homophobia is most archaic and regressive': Amol Palekar

http://timesofindia.indiatimes.com/articlelist/articleshow/4786534.cms
‘Homophobia is most archaic and regressive’

http://movies.indiatimes.com/photo.cms?msid=1092658


17 July 2009, 12:04am IST

Amol Palekar’s acclaimed films in Hindi, Marathi and English Daayra, Anaahat and Thaang (Quest) have focused on the stark subject of non-mainstream sexuality in India. His unconventional stance has made some viewers cringe and prompted some to ponder. He speaks to Ratnottama Sengupta :

What inspired you to make three films exploring the different definitions of sexuality?

In our society sexuality is taboo. If ever we talk about it, we avoid serious discussion on sexual orientation, preferences and choices. This closeted approach keeps us from educating ourselves or from knowing the existing reality. Ignorance, prejudices and phobias flourish then, and as film-maker i feel the need to address them. That’s how i did Daayra (1996), Anaahat (2003) and Thaang/Quest (2006). They provoked viewers to think of a transgender existence, a woman’s sexual desires or genuineness of a gay relationship. As they come out of the theatre they feel compelled to adopt the humanitarian angle. This changed perspective is a tiny ripple i triggered through my films.

How do you react to the decriminalisation of homosexuality?

The judgement in the Naz Foundation case is a path-breaking decision that all should welcome wholeheartedly. This proclamation of equality in treatment will help the marginalised sections of our society achieve freedom in various walks of life. Non-discrimination in employment, availability of home loans and healthcare insurance in same sex partnerships, changed definitions of family for adoption laws are a few instances where social and legal sanction to homosexuality will help. We are certainly marching towards more tolerant and sensitive life.

What do you say to those opposing the judgement?

The belief that non-procreative sex is a perversion and isn’t sanctioned by any religion generates bias against homosexuality. It is then considered a social sin and a criminal act. But homophobia is most archaic and regressive. There’s no scientific basis for the majority claim that same-sex relationships are ‘unnatural’. I’m all for a compassionate social mind that offers sanctity and respect to gay and lesbian bonds.

Given a choice, would you want your child to be a eunuch, or homosexual?

This question itself projects a hang-up suffered by most of us. It also equates being a eunuch or hijra with homosexuality. Eunuch by birth is a sad accident that no parent will wish for, just as no one desires a child with physical handicap. However, how we accommodate eunuchs child or adult will reflect our maturity. Many eunuchs are victims of evil social and religious practices that further perpetrate their exploitation and roles. I’ll have no problem whatsoever if my child is gay. I’ll still be a very proud father of a wonderful human being.

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India: Support Delhi Court’s Decision to Decriminalize Sodomy

Crossposted from the ILGHRC website: http://www.iglhrc.org/cgi-bin/iowa/article/takeaction/globalactionalerts/931.html

“Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are.”-Chief Justice S. Muralidhar of the Delhi High Court

The Issue

The High Court of Delhi has ruled in Naz Foundation (India) Trust v. Government of NCT Delhi and Others that Section 377 of the Indian Penal Code is unconstitutional. The judgment, handed down on July 2, 2009, reinterprets the law that criminalized same sex relations. Section 377 carried a penalty of up to 10 years to life in prison and a fine. The Court declared that this law no longer applies to consensual sexual acts of adults because it violates Articles 21 (protection of life and personal liberty), 14 (equality before law) and 15 (prohibition of discrimination) of the Indian Constitution.

Enacted in the 1860s during British colonial rule to criminalize non-procreative sex, specifically sex between men, Section 377 has been used by police and other individuals to entrap, harass and blackmail those with non-conforming sexual orientations and gender identities and human rights defenders. This law has encouraged sexual and physical abuse of gay men and transgender people in police custody. While the text is silent on lesbianism, it has facilitated an environment where family violence against lesbians and bisexual women happens with impunity, leading to women’s injury, death, and suicide. The Court’s decision to change this law helps ease the environment of fear in which countless LGBT people live their lives in Delhi.

Although the judgment is limited to Delhi, it is widely anticipated by LGBT activists in India that similar challenges will be brought in other cities, hoping courts will favorably reference the Delhi decision. The Delhi High Court, along with the Mumbai (Bombay) and Chennai (Madras) High Courts, usually leads other High Courts in India when it comes to legal trends.

Click here to find out more about India’s anti-sodomy law and how the Delhi decision affects LGBT people.

IGLHRC thoroughly congratulates the Lawyers Collective, Naz Foundation, and Voices Against 377 on their historic win for human rights. These human rights defenders worked tirelessly to raise awareness about the dangerous and damaging consequences of Section 377 and get it changed by the Court. The Delhi decision is a crucial step towards preserving human rights. IGLHRC calls on the Indian government to go further and repeal Section 377 nationally.

Action

IGLHRC urges you to send congratulatory statements for this human rights victory in Delhi to officials in the Indian government involved with this case and call on the central government to repeal Section 377 nationally. Your letter will convey to the Indian government the worldwide support for the Delhi decision.

action

Click here to send your customized message to Indian officials and the activists involved in this case using our new automated advocacy system.

Contact

Minister of Home Affairs
Mr. Palaniappan Chidambaram
Room No. 134,
North Block,
New Delhi 110 001
India
Fax: +91 11 23094221 or +91 11 23093750 or +91 11 23092763
websitemhaweb@nic.in
Minister of Health and Family Welfare
Mr. Ghulam Nabi Azad
5 South Avenue Lane,
New Delhi 110011
India
Fax: +91 11 23061658
azadg@sansad.nic.in and Resp-health@hub.nic.in
Minister of Law and Justice
Mr. Veerappa Moily
4th Floor, A-Wing, R. 403
Shastri Bhawan,
New Delhi 110 001
India
Fax: +91 11 23015223 and +91 11 23384241
cpio-la@nic.in

cc:

Lawyer’s Collective
aidslaw1@lawyerscollective.org
IGLHRC
communications+action.alert@iglhrc.org

Sample letter

Mr. Palaniappan Chidambaram, Minister of Home Affairs

Mr. Ghulam Nabi Azad, Minister of Health and Family Welfare

Mr. Veerappa Moily, Minister of Law and Justice

Your Excellencies:

I would like to express my congratulations and support for the New Delhi High Court decision in Naz Foundation (India) Trust v. Government of NCT Delhi and Others, which changed Section 377 of the Indian Penal Code so that it no longer prohibits same-sex activity between consenting adults. Section 377 was dangerous and damaging to all people, encouraging violence and discrimination on the basis of sexual orientation, gender identity, and gender expression. This decision has removed a key tool of bigotry and state-sponsored homophobia, bringing Delhi in line with international human rights standards and strengthening the rights to life, liberty, privacy, health, and expression guaranteed by the Indian Constitution.

This decision will have many important positive effects for gay, lesbian, bisexual and transgender (LGBT) people in India. Opportunities for entrapment and blackmail of LGBT people because of their fear of prosecution under Section 377 will diminish; LGBT and HIV/AIDS groups and activists can now continue and expand their work without fear of being persecuted under 377; more LGBT individuals and groups will be willing to participate in Pride marches and other events; families and members of the community will also be more empowered to support and defend the rights of sexually and gender variant people; and the media will be encouraged to pay more attention to LGBT concerns and to cover LGBT issues in positive and sensitive ways.

The decision to read down Section 377 by the Delhi High Court is truly a crucial step in ensuring that the human rights of all people in India, including LGBT people, are protected. The tremendous efforts by Indian civil society, including the Naz Foundation and Voices Against 377 and their supporters are to be commended. I ask you now to support equality and dignity for all people in India, including lesbian, gay, bisexual, hijra and other gender variant people, by pushing for Section 377’s repeal nationally and instituting additional legal protections so that people are not violated on the basis of their sexual orientation, gender identity or expression.

Sincerely,

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Glimpses of Indian Pride Parades, June ’09

Delhi

 

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Bangalore:

 

 

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Chennai

Chennai Pride Parade | Photo 09 by michelleholshue on flickr.com 

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Bhubaneshwar

same sex same rights by peevee@ds.

 

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Victory in court, home battle ahead : A report by Telegraph

The Telegraph
 
Victory in court, home battle ahead
– First big step, say activists
OUR BUREAU
Members of the gay community celebrate in Delhi. Picture by Ramakant Kushwaha

New Delhi, July 2: For a 24-year-old man in a suburb of Calcutta pursuing a long-distance relationship with another man, the Delhi High Court ruling is unlikely to bring to an end the torment he endures from his own family.

The man has told health workers and gay rights activists he is under intense emotional pressure from his family — father, mother and sister — to abandon his relationship and to go straight.

“There have been mornings when his mother screamed and asked herself what she had done to deserve this,” said a health worker with an NGO who has talked with the family. “They’re asking him to seek psychiatric help.”

India’s community of gay, lesbian, bisexual and transgender people today celebrated the decriminalisation of their sexual activities at the end of an eight-year-old legal battle waged by health and gay rights activists.

But the legal victory today is merely the first step in their battle for acceptance and equal rights in society. “This is the first major step. There are many more battles ahead,” said Anjali Gopalan, the chief of Naz Foundation, the NGO that had filed the petition challenging Section 377 of the Indian Penal Code that made homosexuality a criminal offence.

The campaign against Section 377 emerged in India nearly 17 years ago as health workers realised that it was a major hurdle to efforts to prevent the spread of HIV among men who have sex with men. Health workers could walk into red-light districts and offer condoms to female commercial sex workers as protection against HIV. But any attempts to promote condoms among gay men could be interpreted as abetting homosexual activity.

In 2001, police arrested health workers in Lucknow for promoting safe-sex practices among the gay community. “That was a turning point — the movement began to grow from a public health issue to an issue of personal dignity and equal rights,” said Leena Menghaney, a civil rights lawyer in New Delhi. The community, which had remained largely underground through the 1980s and 1990s, became more vocal.

Activists are hoping the court order today will also influence attitudes in society.

“We see this as a new beginning,” said Anis Raychaudhuri, director of HIV programmes at a non-government agency called Manas-Bangla.

The activists believe the next step would be to seek equal rights in adoption practices, marriage, as well as inheritance. “People now tend to disown children because of their sexual orientation,” Raychaudhuri said.

Adoption agencies rarely allow same-sex couples to take home a child. Same-sex couples are not allowed to legally marry in India. Natural inheritance in the absence of a specified will between unmarried couples is also not allowed in India. “The fight against discrimination, stigma and even violence will continue,” said Pawan Dhall, director of the Calcutta office of Saathii, a non-government agency working on HIV and gender issues.

“A lot of sensitisation needs to be done in homes, in families, in education and workplaces.”

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Delhi High Court decriminalises Homosexuality:Times of India

Crossposted from Times of India website: http://timesofindia.indiatimes.com/Delhi-High-Court-legalizes-homosexuality/articleshow/4726608.cms

Gay rights activists show victory signs

Gay rights activists show victory signs after Delhi High Court legalized homosexuality. (Reuters Photo)

amend a 149-year-old colonial-era law — Section 377 of the IPC — and decriminalise private consensual sex between adults of the same sex. It is the biggest victory yet for gays rights and a major milestone in the country’s social evolution. India becomes the 127th country to take the guilt out of homosexuality. ( Watch )

Full text of Delhi HC judgment (PDF)

In a judgment that has aroused strong reactions from religious and political groups, the court declared that Section 377 IPC, where it “criminalized consensual sexual acts of adults in private”, violated fundamental rights to personal liberty (Article 21 of the Constitution) and equality (Article 14) and prohibition of discrimination (Article 15).

A bench comprising Chief Justice A P Shah and Justice S Muralidhar clarified that the provisions of Section 377, enacted in 1860 to deal with an unspecified range of “unnatural offences”, would hereafter be restricted to non-consensual penile “non-vaginal sex” (rape by a homosexual) and “penile non-vaginal sex involving minors” (pedophilia).

In a courtroom tense with anticipation, the bench invoked Jawaharlal Nehru’s stirring words to the Constituent Assembly, while linking the issue of homosexuality with the politically resonant theme of inclusiveness. “If there is one constitutional tenet that can be said to be (the) underlying theme of the Indian Constitution, it is that of inclusiveness.” As a corollary, it added that “those perceived by the majority as `deviants’ or `different’ are not on that score excluded or ostracized.”

Upholding the petition filed by Naz Foundation, the court ruled: “Indian constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs (lesbians, gays, bisexuals and transgenders) are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.”

“There is almost unanimous medical and psychiatric opinion that homosexuality is not a disease or a disorder and is just another expression of human sexuality,” the court observed.

While stating that its reinterpretation of Section 377 would hold till Parliament amends the law, the court commended the Law Commission’s 172nd report which, it said, “removes a great deal of confusion”. The Law Commission suggested repeal of Section 377 while redefining rape to include sexual offences of non-consensual sex between adults of the same sex and pedophilia.

The verdict triggered protests from religious leaders across the spectrum who invoked the “will of God” to claim that the ruling would lead to the “ruination” of society and family values. Social workers and psychologists, however, welcomed the order, describing it as “scientific and humane.”

Political parties seemed divided. The CPM welcomed the judgement, while Samajwadi Party said it was totally opposed to it. Both Congress and BJP sought to buy time in order to assess the popular opinion — both said they would have to study the order before commenting on it. BJP leaders like Murli Manohar Joshi, though, came out in opposition, indicating an emerging left-right divide on the issue.

The court has clarified that its judgment would not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality.

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AIN-O-SALISH Kendra Report on violation of Human Rights on Sexual Minorities: 2008

 

RIGHTS OF SEXUAL MINORITIES

 

It is difficult to assess the extent of rights violations against

sexual minorities and of state and non-state responses in any

year, given the paucity of reliable information. This chapter

therefore begins to articulate the rights of sexual minorities in

Bangladesh in mainstream human rights discourse by mapping

some of the problems faced by the MSM and Hijra communities.

As will be clear from the text below, the nature of available

data is not only limited but also highly gendered, the focus

has been almost entirely on male to male relations.

 

 

Overview

 

For a number of reasons, including cultural invisibility, a general

reluctance to discuss sexuality in the public sphere, and the

stigma attached to non-normative sexualities, information on

Sexual minorities in Bangladesh are quite limited. For that matter,

most human rights organizations, until very recently, have

not considered the subject of sexual rights to be an obvious part

of their mandate.

Problems of categorization complicate matters further. Non normative

sexual practices and identities tend to be quite fluid,

existing within a diverse continuum of sexualities, rather than

being discrete sources of identity.1 Sexuality may not be the

defining feature of identity; non-normative sexualities tend to

exist without being recognized openly or sanctioned culturally

(that is, they are accommodated but not necessarily named by

the dominant culture), and without being associated with a distinct

community or group. With the exception of self-identified

hijras (trans-gender or trans-sexual persons), social identity

and sexual practice do not necessarily coincide.

Paradoxically, the global HIV/AIDS pandemic in the 1980s,

and related anxieties about “high-risk” groups, opened up

spaces for discussion and activism around matters of sexuality.

Although the discourse tends to be somewhat medicalised, it

has increased both visibility and opportunities for mobilization.


 

Legal/Constitutional Protections


 

There is no express legal or constitutional recognition of non normative

sexualities in Bangladesh nor any specific protection

against discrimination for example on grounds of sexual orientation.

Section 377 of the Penal Code introduced by the British

in 1860, continues to be in force and provides punishment for

“carnal intercourse against the order of nature,” a phrase

widely interpreted as criminalizing sodomy. Ostensibly gender-neutral,

it is usually assumed to refer to men.

Notably, Bangladesh has a fairly progressive National Policy

on HIV/AIDs. Issued in 1997, the document upholds the

protection of the rights of persons affected with HIV/AIDS,

including rights to confidentiality and non-discrimination in

health care access and treatment.


 

Recognition of Identities


 

It can be argued that legal invisibility allows for a degree of

flexibility for sexual minorities. At the same time, for some

groups, legal non-recognition can be highly problematic at an

everyday level. Badhon, a community based organization representing

hijras, has demanded state recognition as a third gender,

and Government issued identity cards to affirm their separate

identity. Not being able to ‘prove’ a clear cut gender meant they

were not able to stand in either the male or female queues during

elections or for any other purpose. They also faced problems

with inheritance, as under personal laws, the shares for men and

women differ: as Hijras are not perceived to be either male or

female, and therefore neither son nor daughter, complications

arise with determining their share of inheritance.


 

Arbitrary Arrest and Detention


 

Although there has been only one reported case involving section

377 in the four decades since the independence of Bangladesh,

the existence of this offence is reportedly used by law enforcing

agencies and others to threaten and harass individuals,

and thus inhibit their free exercise of expression and behaviour.2

In fact, none of the cases reported by or to Bandhu (see below)

involved Section 377 directly, although the threat of arrest under

this law may have been invoked. More significant is the abuse of

Section 54 of Criminal Procedure Code and Section 86 of the

Dhaka Metropolitan Police Ordinance (and related provisions in

the police ordinances applicable to other Metropolitan cities)

which are commonly used to harass persons using public spaces.

Indeed, this situation is not very different from that of sex workers

and other socially marginalized groups detained under Section

54 without being shown any cause. And yet, while lawyers

and human rights groups are vocal about the perils of Sections

54 and 86, they have tended to be silent about the specific effects

of these provisions on this community.


 

Incidents of Violence and Harassment of MSM and Hijras


 

Table XXII, drawn from data collected by Bandhu, a support

service organization, indicates the nature of violence and harassment

faced by the MSM (and hijra) population. Underreporting

of such matters is widespread and, presumably, actual

figures are much higher.

 

Table XXII:1 Harassment and Violence on MSM of 2008 (till 16 July)

  

Perpetrator/

Type of Violence

  

 

Police

 

RAB

 

Gangstar

 

 Others

 

Family Members

 

 Total

 

Beating

 

 

   5

 

  

                  9          7              21

Beating and Snatching

 

 

 

  

 

      4

 

   

           4
Forced eviction 

 

  3

 

     1

 

      1

 

   

           5
 Forced sex     1

 

  

 

      1

 

  

 

    

     2
 Suicide        

 

    

 

  

 

      1

 

    1

  Total       9     1

  

         15

  

     1

  

     7

 

    33

 

 

 

 

Bandhu’s records show that physical assault or beating was the

primary form of violence experienced by MSM. Second to

physical violence was rape/forced sex, followed by forced eviction

from public spaces. The main perpetrators of violence are

local thugs or mastans, followed closely by members of law enforcement

agencies, primarily the police. Harassment by the local

population is relatively less common though not entirely absent.

In one reported incident, the taunts and reprimands of family

members resulted in the suicide of an individual.

The justifications for violence directed at the MSM population

signal the dangers MSM, hijras and others face on a daily

basis. An overwhelming majority were attacked for their “feminized”

behavior, that is, simply for challenging socially acceptable

norms of masculinity. Simultaneously, this also apparently

invited and legitimized forced sex or rape – refusing sexual offers

was the second most common reason given for assaults on MSM.

MSM and hijras are in a bind; for once they acknowledge

their sexuality, they appear to lose their right to refuse sexual

offers by overtly “heterosexual” men who feel entitled to the

formers’ sexual services. Extortion and intra-community violence

over the receipts of sex-work is also commonly reported.

Hijras, who are the most openly feminized, face considerable

discrimination in employment opportunities and for many, sexwork

is the most viable source of income since the barriers to

entry are minimal. Social, institutional and legal support for

MSM and hijras are inadequate at best. 3

 

BOX XXII.1: Harassment and Extortion (Names have been changed

to protect the identity of the persons involved

 

 

Anjan had inherited two decimals of land. His older brother, Amjad, put

pressure on Anjan to sell this land to him. Anjan refused at first but was

eventually coerced into signing away the land. After about a month, Amjad

came to Anjan’s house with a group of thugs and evicted his younger

brother and their mother from the premises. When they started to throw

out the furniture as well, local people gathered and protested the action.

Anjan came to Bandhu hoping it would be able to take legal steps to void

the agreement which he signed under duress. Bandhu offered to help Anjan

file a General Diary at the local police station. However, upon hearing

of Anjan’s contact with Bandhu, his older brother retracted from his

original position. He arranged for a mediation session facilitated by local

elites. In a written agreement handed over to his younger brother, Amjad

promised he would no longer pressure Anjan for the land.

While this is not a case of overt legal or social discrimination, it appears

that Amjad felt entitled to his brother’s land because the latter was

“feminized” and therefore not entitled to his legal rights as a male offspring


 

Conclusion


 

There is no research on the incidence of discrimination among

people with non-normative gender/sexual identities. Other than

hijras, the discrimination remains invisible and unstated.

 

1 See Adnan Hossain, Bangladesh Sexual Minorities Encyclopaedia entry and Sharful

Islam Khan et al, “MSM’s Sexual Relations with Women in Bangladesh” in

Culture, Health and Sexuality, March 2005 7(2) 159-169.

 

2 Najrana Imaan and ATM Morshed Alam, Review Paper Analyzing the Existing

Legal and Policy Provisions and Practices with respect to Human Rights in relation

to People Living with HIV/AIDs in Bangladesh, Unpublished paper, ASK

2008.

 

3 See reports on file at ASK received from Bandhu indicating that such requests

for legal assistance involved issues such as violence by a sexual partner, inheritance

claims and pressures for forced marriage.

____________________________________________________________________________________________

Comments by Ashok DEB:

For the first time Ain O Salish Kendra have included a separate chapter on the rights of sexual minorities in their annual Human Rights Report. This report is available on Chapter 22, Page 241-244 of Human Rights in Bangladesh, 2008, ASK publication. The editor accepts the severe constraints of high under-reporting of hate crimes and lack of reliable documentations have obstructed in depicting the actual scenario of antipathy towards the different homosexual communities of Bangladesh. This report is based on the data of human rights violation (till 16th June, 2008), provided by Bandhu Welfare Society, the only NGO which runs nationwide welfare programs for MSM and Hijra sex workers. Thus the report primarily focuses on the atrocities and unlawful persecutions committed on these two particular communities only, who are ironically the most visible of all the sexual minorities. A quicker glance on the table XXII yields that a massive third of these atrocities have been inflicted by the law enforcing agencies, while family rejection has driven one soul towards self destruction. It may be appropriate to justify that the actual figures could be presumably much higher as a larger percentage of such crimes goes un-reported.

The concluding words of the report are:

There is no research on the incidence of discrimination among

people with non-normative gender/sexual identities. Other than

hijras, the discrimination remains invisible and unstated.

 

Sadly this report fails to throw any light on the persecutions endured by the Gay and Lesbian community members in Bangladesh due to their cultural invisibility and reluctance to expose their bitter societal approbations towards public scrutiny. Still the gays are being forced into marriages, subjected to psychiatric remedies, electric shock treatments, social boycotts and even evictions from their neighborhoods. The LGBTI defenders who coordinate their activities even at the International level have confessed to conceal their sexuality within family circles. This invisibility has become an obvious setback to stage any resistance towards ending the Anti-sodomy law, hate crimes and discrimination on the sexual minorities. Recently BRAC has pioneered efforts towards meaningful discussions on ending Section 377 (Sodomy Law). Legalizing a harmless practice like Homosexuality and recognizing same sex unions continue to remain a distant dream , due to lack of consensus among the prominent LGBTI organizations over challenging the draconian Sodomy law in courts. The policy of the Government towards recognition of non-normative gender patterns coincides with this very statement of the UPR Report ,FEBRUARY ,2009 which quotes There is a culture of collective denial of the existence of same sex sexualities in Bangladesh a fact perhaps attributable to the dominance of Islamic religious sentiments.” In the recently concluded UNHRC, June 2009, the Government of Bangladesh has declared that ‘SEXUAL ORIENTATION IS INDEED NOT AN ISSUE IN OUR COUNTRY’ which can rightly be equated with by the parable of Ahmedinijad “THERE IS NO GAYS IN IRAN” Truly the ghosts of invisible persecution and blatant societal marginalization will continue to haunt us for times to come.

 

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