Sex in India (or, how I worried a little less about Section 377)

A young hijra from Goa.  Photo by Michael Garten, garten.mike@gmail.com

A young hijra from Goa. Photo by Mike Garten (MikeGarten.com)

OK, I admit that this post is not really about sex, but about gender identity and sexuality.  But, while you’re here, have a look at some of the positives developments for the rights of sexual minorities in India in 2009.  One major caveat: India has a very long way to go before the rights of sexual minorities are fully acknowledged and protected. The victories of 2009 will only make the smallest of dents in India’s large and growing population of people infected with HIV/AIDS and the mainstreaming of “alternative” sexual identities.  Organizations such as the Naz Foundation will theoretically be able to work in vulnerable communities with less fear of police harassment, but it still does not come anywhere close to eliminating the stigma that these communities face on a daily basis.  Thousands of gay men, lesbians and transgendered have to hide their identities from their family and community and these legal victories will do nothing to make their lives any less hidden.

Section 377 of the Indian Penal Code specified sodomy is illegal and is punishable by up to life in prison.  It was adopted in 1860 by the British Indian government at the behest Lord Macaulay.  Although some flavors of heterosexual contact was also forbidden, it was specifically written into the law to outlaw homosexuality.  Although Article 377 has been rarely used, the fact that it has been on the books and has been used to harass HIV/AIDS educators as recently as 2006 is a violation of the human rights of those engaged in private, consensual conduct and of those engaged in educating communities about HIV/AIDS prevention.

On July 2, 2009, history was made when the Delhi High Court declared Section 377 in violation of Article 14 of the Indian Constitution. One of the paragraphs of the Delhi High Court ruling is worth quoting: SEE THE REST OF THIS POST