24, Dec 2017 | Deborah Grey
Whether you are a person discovering your gender and sexuality or the parent of such a person, it is important to empower yourself with correct information. Here are a few resources that can help you learn about the vibrant LGBTQIA community.
Understand the Law
The first step is to understand the section of the law pertaining to the community, i.e Section 377. There are a lot of misconceptions about this section of the Indian Penal Code. Here’s what it actually states:
Unnatural offences.—Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
This clearly means that all sexual activity that can be categorised as ‘unnatural’ comes under the purview of this section of the law. This provision of the law, therefore not only affects the LGBTQIA community, but also cis gender heterosexual people who engage in any sexual activity that involves an artificial orifice, sexual aids or toys, penetration of non-vaginal orifices in the human body. Therefore, homosexuality is not illegal, engaging in ‘unnatural’ sex is. Nobody can detain or imprison you just because you are homosexual. However, if caught having sex ‘against the order of nature’, the person can be booked under Sec 377. This is precisely why the LGBTQIA community and human rights activists have been demanding that this section be struck down.
Section 377 in the Courts
In May 2009, The Delhi High Court had read down section 377 and decriminalised consensual sex between adults irrespective of their gender or sexual orientation. A summary of that judgment may be read here:
In December 2013 however, the Supreme Court set aside this landmark judgment effectively recriminalising so called “unnatural sex”. It was left to the Parliament to pass appropriate legislation to tackle the subject. The judgment may be read here:
However, while delivering the verdict in the Right to Privacy Case in August 2017, Justice DY Chandrachud who authored the judgment of the four judge bench that also comprised then Chief Justice J.S Khehar, Justice RK Agrawal and and Justice S Abdul Nazeer, made remarks that once again left a backdoor open to legally challenge section 377. You can read the entire judgment here:
Here is an excerpt from the judgment that talks about privacy and how it applies to LGBTQIA:
The decision in Koushal presents a de minimis rationale when it asserts that there have been only two hundred prosecutions for violating Section 377. The de minimis hypothesis is misplaced because the invasion of a fundamental right is not rendered tolerable when a few, as opposed to a large number of persons, are subjected to hostile treatment. The reason why such acts of hostile discrimination are constitutionally impermissible is because of the chilling effect which they have on the exercise of the fundamental right in the first place. For instance, pre-publication restraints such as censorship are vulnerable because they discourage people from exercising their right to free speech because of the fear of a restraint coming into operation. The chilling effect on the exercise of the right poses a grave danger to the unhindered fulfilment of one’s sexual orientation, as an element of privacy and dignity. The chilling effect is due to the danger of a human being subjected to social opprobrium or disapproval, as reflected in the punishment of crime. Hence the Koushal rationale that prosecution of a few is not an index of violation is flawed and cannot be accepted. Consequently, we disagree with the manner in which Koushal has dealt with the privacy – dignity based claims of LGBT persons on this aspect.
So what exactly is Unnatural Sex?
Here’s Equal Rights Activist Harish Iyer explaining what all can be considered unnatural sex:
Understand the difference between sex, gender and sexuality
While people often use the words sex and gender interchangeably, these are actually two very different things. Watch this video, where Equal Rights Activist Harish Iyer explains the difference and also tells us about sexuality, which is a third concept.
Read all about different genders and sexualities
Many books by trusted NGOs like Humsafar Trust as well as Rainbow friendly publication houses like Queer Ink can help you take small steps to gradually understand and discover more about yourself or your child. Sweekar, The Rainbow Parents, is an NGO that helps provide a confidential and safe space for parents of LGBTQIA children to discuss their challenges. Here are a few reading resources hand picked by these groups to help you along in your journey:
Strengthening Bridges – A Manual for Counsellors to Support Parents of LGBTQ
This book gives a lot of basic information about gender and sexuality. It is therefore a good staring point. It is available for purchase at:
मनाचिये गुंती – समलिंगी मूल मुलींचा पालकांचे अनुभव
This book is the original Marathi version of Beautiful People by activist Bindu Madhav Khire.
इन्द्रधनु – अलग अलग लैंगिकता की पहचान / सम्लैंगिकतेचे विविध रंग
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