LGBTQI need legislation

After Section 377 Verdict

So, joining the Parkfield Community School at Birmingham in Britain are four more schools putting an end to lessons on ‘Diversity and LGBT issues’, following complaints by parents. The Leigh Trust suspended the ‘No Outsiders’ project, which teaches tolerance of diverse groups, including those of different races, genders and sexual orientation, until an agreement with parents had been reached.

Students were taught about the positive values of diversity, tolerance and acceptance, in a broad curriculum encompassing LGBT rights, same-sex relationships, gender identity, race, religion and colour, but the sparked off protests, with mothers and fathers objecting to the teaching of the ‘No Outsiders’ project.

This is appalling, to say the least, especially coming from the United Kingdom which has the Equality Act 2010 that brought together over 116 separate pieces of legislation into one single Act to provide a legal framework to protect the rights of individuals and advance equality of opportunity to all.

The pieces of legislation merged into the Equality Act 2010 included: The Sex Discrimination Act 1975, The Employment Equality (Sexual Orientation) Regulations 2003, and The Equality Act (Sexual Orientation) Regulations 2007.

Concurrently, in another part of the world, 3,960 kilometres away, from November 2017, Turkey banned all events by lesbian, gay, bisexual, trans and intersex rights groups to protect “public security” in its capital city, Ankara. The ban imposed, to last for an ‘indefinite’ period, applied to all LGBTI film screenings, theatres, panels and exhibitions.

The governor’s office maintained that such events may cause animosity between different groups and endanger “health and morality”, as well as the rights and freedoms of others. It warned that some groups may be provoked by LGBTQI events and take action against participants due to “certain social sensitivities”. And, homosexuality is ‘not a crime’ in Turkey and numerous LGBTQI associations are even legally registered with the State.

In India, the entire LGBTQI community has been fixated on Section 377 of the Indian Penal Code that has been, in a shocking display of ignorance, reported by the media across the world as having been ‘struck down’ by the Supreme Court in a 2018 verdict preceding vociferous campaigning against a ‘Victorian law’ and, concurrently, tumultuous joy at the verdict.

Sadly, following the 2018 verdict which, factually, ‘read down’ the Section, the LGBT movement has literally fizzled out. The apex court had then, underlining the prerequisite processes of law, laid down that Section 377 cannot, in any way, criminalise homosexuality, gay sex or LGBTs, in any manner. And, the LGBT community were exhilarated at what they perceived as a vindication of their position in law: a position that was anyway not threatened in law, surely not by the letter of the law and arguably not by the spirit.

For a mostly heterosexual community that’s mostly male-dominated in form, the risks of a male-perpetrated molestation, rape and sexual assault of females are the more obvious aberrations. So, the development of jurisprudence in such societies leaning towards identification of crimes against women and preventing them or deterring potential criminals by way of punitive measures is the norm.

So, Section 375 of IPC identifies and tackles the scourge of rape and, with time amended by the more-recent Criminal Amendment Act of 2013 following the Delhi gangrape case, to extend the punishment for gangrape and the commission of more heinous offences to extend to the death sentence. In 2018, a criminal amendment act was introduced to include child rapes, amend relevant acts and sections, including Section 375, and further the punishment to death for child rapists. However, despite all the amendments to Section 375, it remains gender-specific and can be applied only against a man perpetrating an offence against a woman.

Risk of rape, molestation

Now, for a homosexual community that interacts primarily with members of the same sex, the crimes that may occur are those that are perpetrated to the same sex; that is, men being raped by men or women being molested by women. Members of LGBT community are at high risk of rape, molestation and forced sexual encounters, and a gender-specific Section 375 of the Indian Penal Code that tackles the issue of rape offers absolutely no protection to them.

Ironically, it is Section 377 of the Indian Penal Code that documents the term ‘unnatural sex’ and ‘against the order of nature’ — flayed by the LGBT community, finding the terminology politically flawed — that will be applied in case a member of the LGBT community is sexually assaulted.

But the Supreme Court’s recent ruling has laid down that the interpretation of Section 377 to criminalise homosexual behaviour done in private among consenting adults violated fundamental rights, putting to rest the vitriol on the issue, restricting its reach even if warranted. In view of this, the police will — and for obvious reasons — be completely reluctant to apply Section 377 against anyone however realistic may seem the ‘accusation’ of the commission of an offence.

Sadly, the harbingers of LGBT rights are mostly silent on the absence of laws to govern their lives. So much more needs to be done for a member of the LGBT community to ‘live’ in free India as one. So much that is being completely overlooked.

The interpretation of Section 377 done and dusted, it’s time to initiate meaningful legislation like a LGBT Marriage Act, a LGBT Adoption and Guardianship Act, a LGBT Justice Act to provide for the community parched for pertinent laws to tackle issues affecting them. They need to be framed in letter and followed through in the right spirit, lest we go the UK or Turkey way. About time!

(The writer is an independent editor, filmmaker and legal counsel)