On September 6, 2018, the Indian Supreme Court struck down India’s sodomy law as unconstitutional. This Op-Ed ran in The Times of India on 9.9.18.
Supporters of equality and justice around the world celebrated the decision of the Supreme Court of India affirming the fundamental rights, dignity and equality of LGBTQ people in India. Thursday’s verdict strikes a blow against every colonial-era sodomy law and strengthens the ongoing efforts of reformers working to overturn anti-LGBTQ criminal laws in more than 70 countries.
For LGBTQ activists in the US, the court’s eloquent articulation of transformational constitutionalism, and its forward-looking reasoning, stand in stark contrast to the regressive politics on issues of gender and sexuality prevalent in America. It is hard to imagine a US Supreme Court majority affirming so clearly that “The Constitution protects the fluidities of sexual experience. It leaves it to consenting adults to find fulfilment in their relationships, in a diversity of cultures, among plural ways of life and in infinite shades of love and longing.” (p. 344).
This victory is the achievement of a diverse, brilliant Indian LGBTQ movement. It is a testament to so many people’s courage and decades of effort to build intellectual, cultural, legal and political space, to forge positive identities despite stigmatisation, to support each other, to create and engage families, to build alliances, and to sacrifice a great deal to bring change. The long struggle suggests that the promise of justice expressed in this decision will require persistent, broad-based, inclusive action to be realised.
Court decisions declare what is lawful, but extra-judicial organising, education and political engagement will be needed to extend rights and realise equality for all LGBTQ people, not just a privileged few. Greater resources will be needed for groups working to ensure that LGBTQ people (especially the working class, the caste marginalised, sex workers and trans people) have access to justice. The International Commission of Jurists outlined in its 2017 report titled ‘Unnatural Offences: Obstacles to Justice in India Based on Sexual Orientation and Gender Identity,’ that reforms in police procedures, courtrooms, and the entire legal profession are urgently needed to combat bias, misinformation, violence and police abuse.
This decision underscores the truth that changing law and policy is tied to changing culture, behaviour and attitudes. Ground-breaking work by Indian legal scholars, writers and think tanks to analyse homosexuality from an Indian cultural and constitutional context set a strong foundation for the SC verdict. Changing cultural understanding and norms requires greater support for scholarship and research, as well as for media, film, educational, protest, artistic, community outreach, and other creative projects.
Alliances across civil society are essential to the project of cultural, policy and attitudinal change. Indeed, every advance for LGBTQ rights around the world has been built on a foundation of activist leaderships forging hard-fought, and at times uneasy, alliances across social movements and civil society: Transgender, caste, HIV/AIDS, women, progressive legal reform, business sector groups, civil rights, racial justice, progressive faith, workers, and minority rights groups, to name just some.
The Supreme Court’s powerful articulation of the difference between social morality and constitutional morality may well be tested in the months to come. Reactionary forces manipulate fear and misinformation about sexuality and gender identity to build a political base, as movements in Russia and the US can attest. Gains in LGBTQ rights are followed by backlash, often fomented by a specific, globally connected network of anti-LGBTQ organisations and donors. Some of these groups claim the mantle of religious expression, but are not representative of religious traditions; pro-LGBTQ voices exist in every faith tradition. In this context, the SC’s statement that “identity is equivalent to divinity” (p. 4) is a profound affirmation of sexual and gender identity.
Finally, the Court’s ruling suggests what experience reveals — equal rights and access to justice will require government action. And ensuring that this action is unbiased requires mobilisation of a political infrastructure. The US movement still lacks political power, but through education, advocacy, and engagement with all parties especially at the local (municipal) and state level, it has increased political support significantly. Non-LGBTQ allies have been especially important in the process of educating public officials, as have parents and family members. Still, the political challenges to LGBTQ equality remain significant.
The Supreme Court offered a clear vision of full citizenship for LGBTQ Indians. In the hands of India’s LGBTQ activists, lawyers and movements, it is clear that this promise of justice will ultimately be fulfilled.
- The writer is an Indian-American LGBTQ rights activist