Beyond Section 377: What About Inequalities Within LGBTQ+ Groups?
The Supreme Court, on 6 September, read down Section 377 of the Indian Penal Code, which criminalised “sexual intercourse against the order of nature.”
Since for various reasons Section 377 was used to target people who identify with the LGBTQI community, this is a great thing.
Looking Beyond Section 377
But even as we celebrate this victory, we have to remember that the reading down of Section 377 has certainly not been the only or the most pressing issue to do with queer and trans rights in India. Several commentators who have been deeply immersed in working on issues of gender and sexuality have repeatedly pointed out, that we need to look beyond Section 377 – at the violence and discrimination that the most marginalised queer and trans people across India have to face.
Caste-based discrimination impacts queer and trans Indians adversely, and there is no affirmative action in place for Dalit, Bahujan and Adivasi trans people. Many gender identities (for example people on the trans-masculine spectrum) and sexual orientations (for example asexuality) are severely invisible.
The Aftermath of Historic Judgments
Even as more elite queer Indians celebrate the reading down of Section 377 as the end of a long struggle, far more know that this is a symbolic victory that will not protect them from violence in the course of their daily lives. Trans sex workers, homeless queer and trans people, and trans people who beg, will have to contend with the police targeting them. They’ll have to contend with the derision and contempt that those who consider themselves ‘respectable’ are capable of showing towards them, with a lack of access to basic facilities.
In 2014, the Supreme Court affirmed the fundamental rights of transgender people under the Indian Constitution. The NALSA judgment, as it is known, affirmed a variety of rights, including the right to the self-determination of gender identity. The judgement was rightfully celebrated, but its aftermath has been sorry.
The text of Transgender Persons (Protection of Rights) 2016 Bill was an unmitigated disaster, and many of its provisions stood in direct opposition to the spirit and letter of the historic 2014 judgment.
Hierarchies Within LGBTQ+ Community
It was only after widespread protests and sustained work by trans rights collectives all over the country, that the Centre agreed to make suggested changes to the Bill. But even these have not included affirmative action in the form of reservations, which the 2014 judgment clearly specified should have been included.
But because the judgment exists, there is a framework, using which the community can advocate for its rights, and point out the gaps between what the community is experiencing, and the rights the judgment says it should have unfettered access to.
The judgment was not the end, it was just the starting point.
Other laws and proposed laws, including ones that address trafficking and begging, disproportionately and adversely impact trans communities.
This is the bitter truth, and clarion call we must keep in mind even as we celebrate the reading down of Section 377. If Section 377 was the beginning and end of your engagement with queer and trans rights in India, this is an opportunity for you to familiarise yourself with the tireless work that collectives have been doing all over the country to address the huge inequalities that pervade the LGBTQ community.
Section 377 has been read down, but this work of securing freedom and rights is far from over.
Follow all live updates on the SC judgment here.
(Shreya Ila Anasuya is a writer of fiction and non-fiction. She is the managing editor of Skin Stories at Point of View, and is working on her first book. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)