A few days back, in 2018, the world’s biggest democracy decriminalized sex between gay men. In a historic verdict, Chief Justice Dipak Misra and Justices AM Khanwilkar, Indu Malhotra, DY Chandrachud, and Rohinton Fali Nariman proclaimed that India’s gays now have the same sexual rights as everyone else. With the scrapping of the 19th-century law, it was recognized that sexual orientation is determined by biology and science; hence, any discrimination on this basis is absolutely unconstitutional.

Section 377 explained – All you need to know about

Section 377 article, which came into effect in 1861, deemed sexual intercourse between people of the same gender as punishable. It imposed a life sentence or imprisonment of 10 years, along with a fine. The section was against the basic civil right of privacy, freedom, and equality.

In 2001, the Naz Foundation challenged the archaic law in the Delhi high court which ruled in favor. However, the Supreme Court in 2013 declared homosexuality a criminal offense again, calling it ‘against the order of nature’. Widespread protests were staged against the verdict and several petitions were filed challenging the order. Many high-profile names, including Ritu Dalmia and Keshav Suri were among thousands of petitioners. This time, more mental health professionals, child rights groups, parents, women’s rights groups, and human rights organizations came together to demand a better future for the community. All different petitions argued for one collective consciousness – any Indian has the right to choose how he/she wishes to live his/her life without being discriminated against.

Finally, in 2018, a Supreme Court verdict capped years of struggle by the LGBTQ community and constitutionally speaking we moved towards a more ‘equal’ India. A five-judge bench, in a landmark decision, finally scrapped Section 377 from the Indian Penal Code after hearing various stakeholders for days. Under the new regime, people from the LGBTQ community are entitled to the protection of equal laws. They are entitled to be treated fairly in society without being stigmatized.

Ground realities after getting section 377 decriminalized in India

Getting Section 377 abolished is perhaps the first step towards righting wrongs; this is just a milestone, not the ultimate goal. Post section 377, some of us may have felt better equipped to battle the daily micro-aggressions we faced at schools, colleges or work. But, it is still way too difficult to find comfort in a social structure that is already inflected by class, caste, and religion. In India even menstruation is taboo, then how do we expect the society to be okay with gay sex. If we are unable to sensitize people we have grown up around, how will we be able to convince the rest of the world?

What India as a country is failing to realize is the talent and creativity that the LGBTQ community has to offer in taking the country to the next level. In fact, the GDP loss from the exclusion of LGBTQ people at work is reported to be about 1.7 percent as per a World Bank study on the economic cost of homophobia on the Indian economy (2016).  Interestingly, this impact analysis does not include the brain-drain of highly-qualified professionals who move to other countries to feel more inclusive.

The culture of homophobia in the workplace is perpetuated through attitudes, environment, and policies. We have very little representation from the LGBTQ community at work, and even less in leadership roles. We, as a rising economy, definitely need to address that. However, making people around us homophobia-free is long-drawn, uphill task. But we can’t give up and it must start as early as possible.

What does India need to do post Section 377?

Many social organizations are already trying to convince schools and colleges at grass root levels, to let them organize workshops on gender and sexuality for young adults while other nonprofits are working to push through policy changes. The way forward breaks the silence on same-sex marriage, recruitment of LGBT people, insurance coverage for HIV positive population, right to inheritance, adoption and surrogacy and government wavers on sex reassignment surgeries.

Since our existing course curriculum does not explore any lesson(s) on alternative sexualities, for many, chat rooms and porn sites are the only avenues where they can discover their sexuality. With the law on our side, we hope that the Ministry of Education includes poetry and stories with nuanced approaches to gender and sexuality. Also, schools and colleges should create safe spaces within their institutions for gay teenagers to deal with their coming out process with ease. Strict rules need to be implemented on abuse and discrimination based on gender identity and sexual orientation.

Coming out is never easy, even in countries that are supportive of LGBTQ rights. Judicial reform like abrogation of section 377 may create an enabling platform for people to come out, but social realities don’t necessarily change in sync. Multiple cases of domestic abuse, abduction, and homelessness have been identified with the Indian LGBT population. We need to collectively establish such shelter spaces that offer a pro bono legal adviser, therapy and more to house LGBTQ teens leaving home to live on their own.  We hope that the Corporate Social Responsibility (CSR) wings of giant conglomerates will fund advocacy and activism for the LGBTQ community.

Apart from changes in the pattern of policymaking, there’s a need for a campaign too, to not only to raise awareness but to educate people on homosexuality. Individuals employed with the government should receive workshops to sensitize them on the subject of homosexuality.

Final Thoughts

It is not hidden how India’s LGBTQ community has been facing societal ostracism, marginalization, exclusion, and inequities throughout states.  In post-377 India, it’s important to realize the fundamental human rights more than addressing discrimination. Currently, there’s no law in place to battle discrimination against members of the LGBTQ community at that level.

The good news is gays, lesbians and bisexuals are no longer criminals, we are who we are. The horizon is ahead of us and we should only strive to continue this journey on our rights to liberty, dignity, and equality. Meanwhile, there is no reason why we should not celebrate this freedom instilled by the scrapping of Section 377.


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