The fight for lesbian, gay, bisexual and transgender rights in India has had a rocky year.
In December of last year the Supreme Court upheld a law, Section 377, banning so-called ‘unnatural’ sex, despite the High Court in Delhi deeming it unconstitutional. For many, the issue of LGBT rights became political for the first time.
I spoke to Pallav Patankar, the director of HIV programs at leading LGBT health and advocacy charity the Humsafar Trust. He thinks that despite the election earlier this year of a conservative government led by Narendra Modi of the BJP party, there are still opportunities to promote LGBT equality in India.
How much is the LGBT community accepted in wider Indian society? Does it face discrimination? Do people face violence?
Yes, a lot. But the thing is so far we’ve not really been having people who come forward and stand up for the violence because the law does not accommodate the aspect of the different sexual orientations. Even if I was to go to the police and say, ‘I was beaten up because I was gay’, there was no way my ‘basher’ would be punished. They would probably be punished for being violent to me but not because it’s a gay bashing incident. The concept of being discriminated against on the basis of sexuality does not find voice in our law and our legal system, neither in our constitution.
I would say there is not as much gay bashing as gay bullying, and that doesn’t get addressed. What we are noting is after the Section 377 verdict we are seeing a lot of extortion and blackmail going up through the roof.
A lot of the guys who end up getting into extortion are not out, either to their parents or to their families – which could mean they are married men, gay men. As a result they become easy sitting targets. Recently, one gay man was robbed who agreed to go to the police and make a complaint and the media splashed it. The moment those guys’ pictures were on, we had a string of people calling into Humsafar saying, ‘I’ve been robbed as well.’
As we started corroborating the data we noticed Bombay had six to seven reported gangs of extortionists and they usually operate in gangs of four or five who were targeting gay men after the Section 377 verdict. Typically one of the gang would seduce the gay man into having sex with him and the three or four guys of the gang would just land up at that spot and they would immediately start invoking Section 377, saying, ‘You guys are homos’ and ‘let’s get this guy to the police and let’s slap Section 377 on him’. The guy will say, ‘No, don’t do this to me, you’ll spoil my career,’ and they’ll say, ‘Ok, then get me 25,000 rupees, and I want your laptop and I want your cellphone’.
As a director of HIV programs, it’s scary for me. Because you have such kind of gangs existing, how many gay men would admit to having anal sex or going to a doctor and speaking about the fact that they have an STD or an STI?
Can you explain a bit more about Section 377?
This is an old colonial law from the 1860s, which bans sex ‘against the order of nature’, which means anything other than penile-vaginal sex. It technically means that oral sex would make you go into prison for ten years or more, and anything other than penile-vaginal is against the order of nature because it is not reproductive. So it was an unfair law, because it was mostly gay men who felt threatened because of the way this law was being used.
So this law was challenged in the Delhi High Court in 2009 in a very long legal battle that said this goes against the constitution and right to equality, right to freedom, right to happiness, and dignity, basically. Later, the Supreme Court said, ‘We don’t find it unconstitutional. If this law has to change it’s the parliament that changes the law and not the judiciary, so go to your politicians and talk about it.’
The LGBT community sees that Section 377 needs to go just to bring us to ground zero. We are right now at ground negative. The fight for rights has yet to begin. That will only grow when the criminality gets removed, and those arguments have yet to begin. We had hoped that after this judgement we could begin these discussions. In the meanwhile, transgenders got their rights, saying you cannot discriminate against transgenders and they are not second class citizens. So now it is more legal to be a transgender in India than it is to be a gay man.
It’s good, but it means that from the same court you have two judgements argued more or less on the same principles but you have a different judgement. And the act does not speak about them as sexual beings, they could go to prison under Section 377 as well. They need to bring parity between the two judgements.
The new BJP government was apparently hostile to LGBT rights during this year’s election. What is its position now it’s in power?
We are seeing a little bit of softening of stance by the current government. So during the election we saw this whole thing about how opposed they are to ending Section 377 and they took a very hard line position which was exactly the opposite to Congress [its centre-left opponents]. Maybe that was to distinguish themselves from the Congress stance on issues like secularism and issues around sexuality. But since they have come to power they have made these softening statements, saying, ‘We are not really pro-homosexuality, but we don’t believe homosexuality should be criminalized.’
Why do you think there has been this softening now?
Within bodies like the RSS [a right wing paramilitary group linked to the BJP] are people who are gay and they don’t want to be in the zone where their own people are being criminalized. On several occasions BJP politicians have been put into a corner and asked this question about how can they have this sort of position, and I think BJP as a government is extremely sensitive to foreign investment and being looked on correctly by the international community.
So while they have their nationalist agenda they also don’t want to come out looking very regressive in their stances and I think they are trying to do the balancing act. Younger members of the BJP party are far more open to discussing issues of gender and sexuality whereas the older ones are not, so I guess that’s an issue even within the party that they’ve really not figured.
The BJP president of the Mumbai wing came to one of our Humsafar meetings, and he announced that he was going to suggest to prime minister Modi that we need to address Section 377, so that was quite interesting. He Tweeted to that effect. So they don’t seem to be averse to having a conversation around it and we will keep the issue alive.
They don’t seem to be coming across as hard line as they were coming across during the elections. I can’t exactly put a finger on what has changed, but I think they are also aware of the business environment and things like that, where you cannot have hard line positions or people will not want to come and invest in India.
I think the politicians are also trying to assess how much of a vote bank it is. The BJP’s Mumbai president said if 5 to 7 per cent of the population is LGBT, then this is something people should know. But the thing is that because the queer community is not politicized yet in the way it voices itself, I don’t think they have opened themselves to the idea of the queer community as a vote bank. I think the axes of religion, caste, community, geography are far more active than queer as a principle identity, which will change over a period of time.
We only just started the process of politicization, and I think the politicians are waking up to that as well. I don’t think they want to rock that boat, they want to assess how many queer citizens are really voting in the elections. What we usually have noticed is if elections come close and we want to go and talk to these guys, they avoid meeting us because they don’t want to say anything against us, they don’t want to say anything for us, because they are not yet clear about what this vote bank is all about.
A report you published before the elections into LGBT involvement in the political process ends with the words, ‘We are here, we are queer and we are now political’ – what did you mean by that?
This movement has been totally apolitical so far. We never identified as political individuals. I barely looked at my queer identity as a political identity. I have seldom thought of whom to vote for because of my queer identity. I have voted because probably I thought this is a good candidate, this one will have good governance, good policies, less corrupt. I never thought ‘does he or she support gay rights?’
But after the Supreme Court verdict, it suddenly is a new variable in my head which says, ‘I have to think about this as well.’ We have been pushed into the political because of the Supreme Court judgement, we have no choice but to get this movement political.
I have been managing Mumbai Pride for the past six years, but I don’t want to do Mumbai Pride any more. I would rather be more concentrated on these aspects of lobbying the politicians, getting my nose into things. I want to put politicians on the spot and ask them what they really think.
Has there been an increase in grassroots activism as well?
It’s too early to tell. I think people are yet too scared to really come out and really talk about it. We have in Mumbai Pride about 2,500 to 3,000 people walking on the streets, which is quite a number, one of the biggest Prides in the country. But how many of those will come and take these political decisions? I don’t know.