Students React: Lift on Consensual Gay Sex Ban in India

Updated: Oct 26, 2018


Photo courtesy of Wix library

By Priyanka Sarkhel (‘20)


On September 6, India’s Supreme Court in Delhi lifted the ban on consensual gay sex. The ban was part of a colonial law named Section 377, which banned all forms of sex considered “unnatural”. The Supreme Court also ruled that gay Indians will now have full protection and rights under the Indian constitution.


In a New York Times article, Chief Justice Dipak Misra said Section 377 was “irrational, indefensible, and manifestly arbitrary.”

India had previously lifted the ban on gay sex in 2009 which was quickly protested by Hindu, Muslim, and Christian groups that filed for appeals to the court. That landmark ruling was quickly reversed by the Delhi Supreme Court in 2013, sparking outrage in the LGBT community.


After five years of fighting for basic human rights, gay Indians may have finally gained a victory.


In the aforementioned article, Justice Indu Malhotra said, “History owes an apology to members of the community for the delay in ensuring their rights.”


Section 377 - put in place in India’s Penal Code during the times of British colonization, namely in the 1860s - was used not just as a method of convicting gay Indians, but also for sexual assault and harassment, blackmailing, and exploitation. It is a law that has been stuck in the Indian constitution ever since British colonization and even after 71 years of independence.


Hinduism is one of the oldest religions in the world, and it is the most common religion in India. Homosexuality and gender fluidity are both themes that are part of Hindu scriptures and a part of certain Hindu deities. The Mahabharata is a religious text that is significant in Hinduism, and it features a transgender character named Sikhandin. Also, Arjuna, the archer, cross-dressed to adopt the identity of Brihannala, a dance teacher in King Virata's Matsya Kingdom.


According to the Gay and Lesbian Vaishnava Association (GALVA), “Vedic culture allowed transgender people of the third sex, known as hijras, to live openly according to their gender identity.”


Views on homosexuality and transgender themes vary depending on different Hindu organizations and societies. The Vedic culture is simply one point of view, however, it depicts an inclusive and flexible perspective, one that was slowly erased throughout India’s history, specifically after colonization.


71 years of independence later, the social standpoint in India on the LGBT community stays mostly homophobic.


Mr. Peter Honig, a HiTops advisor and the AP Language and Composition teacher, said, “The past is always with us. The tension between politics and religion is always there. Religious beliefs are also evolving over time, it’s just the past stays with us. It takes generations to weed out these things because people who were born into it, that’s all they know.”


According to Jeffrey Gettleman, Kai Schultz, and Suhasini Raj, the authors of the aforementioned NYT article, gay Indians are victims of rape and beatings, most often by the police themselves. Due to Section 377, the victims of such assaults could not report the crimes nor file a case as they were threatened with arrest.


Such crimes would occur when a closeted gay Indian would be catfished by other people online pretending to be gay as well. They would organize a rendezvous with this online person, only to find the police or a gang of people waiting to exploit and hurt them.

The September 6 ruling was met with resistance from conservative political groups and religious groups in India.


In SBHS, however, some members of the Indian community see this as a sign of India moving towards a more progressive society.


Vedha Subramanian, a junior who is of Indian descent, said, “I’m proud of India’s progress and perhaps it’s one more step to a better future.”


Those who identify as LGBT consider India’s ruling as another milestone accomplished.

Dylan Stenger, a junior who identifies as a gay, transgender man said that the ruling in India gave him “hope that being gay is starting to be seen as less taboo in parts of the world where it was never thought to be possible.”


Despite this progressive stance on LGBT rights, India still maintains a majorly conservative social environment. Even the politics have conservative streaks.


“Now, of course this isn’t going to undo all of everyone’s thinking towards it [the LGBT lifestyle], but it still does show progression is possible,” continued Stenger, “I would love to believe that it is possible for the world to follow in India’s footsteps, especially with how it’s still illegal to be gay in 72 countries, and being trans could end up meaning you get the death penalty in some countries.”


SBHS is an LGBT-inclusive community, however, that does not stop people from making jokes regarding sexuality and gender expression.


Stenger explained that people who make jokes about gender identity make him feel “uncomfortable and unsafe. To them, I’m a joke and my pronouns don’t deserve to be taken seriously… we are people too with thoughts, feelings, and emotions…” To sum it all up, Stenger stated, “my being trans has nothing to do with the fact that I am also attracted to boys. My gender does not determine my sexuality.”


Advocates say the best way to combat the issue of homophobic and transphobic jokes and slurs is to call out people who use them, even if they are friends. It is small pushes towards acceptance that they say can create a better social attitude towards the LGBT community.

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