Life After Section 377

LIFE AFTER SECTION 377

On 6 September, a five-member Bench of the Supreme Court ruled that Section 377 of the Indian Penal Code (IPC), insofar as it applied to consenting adults, violated India’s constitutional morality. The landmark judgement not only affected the lives of millions of LGBTQ+ people, but also reversed an earlier ruling that had criminalized the community only five winters ago. It was on 11 December 2013 when two judges of the apex court had decided that India’s LGBTQ+ community was a “minuscule minority" and reinstated the IPC section (which had been repealed by an earlier Delhi high court ruling in 2009), effectively turning LGBTQ+ people into “criminals".

As Justice Indu Malhotra, one of the five judges who read out four concurrent verdicts on 6 September, said, society owes the LGBTQ+ community an apology for the historical wrongs perpetrated against it.

Over the last three months, Lounge reached out to individuals across the community to understand the ways in which the change in legal status has affected their physical, mental and professional well-being. The stories we heard ranged from individuals finally finding the conviction to come out to their families to euphoric jubilation at the prospect of living freely. Some felt better equipped to battle the daily micro-aggressions they faced at schools, colleges or work. For others, the novelty of a post-377 world quickly wore off, as social structures, inflected by class, caste, and religion, cut into their hopes of a life of dignity and equality.

Opening the door
Coming out as LGBTQ+ is never easy, even in societies that are supportive and protective of the community’s rights. The process begins with accepting oneself, followed by asserting that identity to the world. Judicial reform may create an enabling platform to come out, but social realities don’t necessarily change in sync. So the battle must be fought as much inside courtrooms, as inside drawing rooms, classrooms and meeting rooms, every day of our lives.

“Will someone who hasn’t been able to express their sexuality for, say, 10 years, be able to overcome this ‘taboo’ overnight?" asks Atri Kar, a 28-year-old school teacher in Kolkata. Kar, who came out as a transwoman in 2014, fought a legal battle against the state of West Bengal in 2017 to include third gender in application forms for all public offices and won the case. “When I began sex reassignment surgery a few years ago, I already knew that if you want to have a revolution, you have to start it at your home," Kar adds. “If I am unable to sensitize people I have grown up around, how will I be able to convince the rest of the world?"

Young and sorted

Shortly after the ruling on Section 377, Arpita Das, publisher of the independent imprint Yoda Press, spoke on social media about celebrating the victory with her 13-year-old “queer" daughter Amalia (who shares her views with us). Das’ post created ripples of praise but also ugly denunciation and accusations of bad parenting. On 8 September, Das wrote an article in The Quint, in which she addressed these responses with a clarity that makes it required reading for all parents. “Feeling queer has nothing to do with being in a sexual relationship," she wrote. “It is about understanding where you stand in terms of your preference, identity and desire."

“The last few years of activism around LGBTQ+ issues has given 13-14-year-olds a narrative that they can join," says Nupur Dhingra Paiva, a Delhi-based clinical psychologist who works mostly with young people. Until recently, the binary of being identified as a boy or a girl was the only one available to children. But no more.

One of Dhingra Paiva’s youngest clients, a four-year-old, refused to be called by a girl’s name and came to sessions wearing different (male) superhero outfits. Another 14-year-old girl felt piqued because “today was not a girl day"—but she did not want to become a boy either. “The real struggle for the parents is to stay with this feeling of in-between-ness," says Dhingra Paiva.

Another clinical psychologist, Mumbai-based Sonali Gupta, adds, “Any judgement has value if you build resilience into the system. You build this with children and larger institutions like schools." While most schools in India (even in the urban centres) have a long way to go before sex education becomes part of their curricula, parents and families can start the conversation early. “I told my daughter about LGBTQ+ identities when she was 4 (she is 9 now)," says Gupta. “I introduced her to the concept using a book called And Tango Makes Three."

Ground realities
The struggle to sustain the momentum of the reading down of Section 377 must begin at the grass-roots. While Syed and his associates are trying to convince local schools and colleges to let them organize workshops on gender and sexuality for young adults and millennials, other organizations are working to push through policy changes.

Chennai-based L. Ramakrishnan is the vice-president of the NGO Saathii, which works on barrier-free access to health, legal, social and educational services for communities that are marginalized on account of their HIV status and/or gender or sexual identities. He particularly relates the Section 377 ruling back to the 2014 Supreme Court verdict on third gender, also known as the Nalsa judgement. “The disconnects between the Nalsa verdict and what the state governments understand of it, and need in order to implement it, are resoundingly large," he says. “The state officials, for instance, look for government orders to be able to implement policies on the ground, and those orders don’t often exist. Further, their understanding is often limited to transgender = third gender = kinnar or hijra. The notions of binary trans identities and transmasculine persons are largely foreign to them, despite their inclusion in the scope of the verdict."