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A year of Decriminalisation of Section 377

2019.09.06 06:13 jksjay A year of Decriminalisation of Section 377

A year ago, on September 6th, 2018, the supreme court of India struck down portions of a law dating to 1861, which penalised any form of unnatural sex. The scrapping essentially meant that it was no longer a crime to be gay in India.
This June, for Pride month, I wrote an article outlining LGBTQ+ history, with a focus on India. It is by no means complete, but I feel I have glossed over a few of the important bits and pieces. I thought I would share it here on the anniversary of the scrapping of Section 377.
September 6, 2018, was a monumental day for a significant portion of the Indian populace. Portions of the archaic Section 377 of the Indian Penal Code that criminalises any form of carnal intercourse against the order of nature (the order of nature being peno-vaginal intercourse), was scrapped. This, in conjunction with a 2017 ruling that upheld individual privacy, meant that being gay was no more a crime. A time of jubilation for the LGBTQ+ and allied, as well as the supportive families and friends, these people form a considerable portion of the Indian population. June 2019 is the first LGBTQ+ pride month the nation gets to celebrate, so it is worth remembering the history of this unconstitutional law, and the struggles that activists had to go through, both in India, as well as other parts of the world, to effectively repeal its effects and ensure equality for all.
Ancient Indian literature and Vedic texts describe gods and demigods transcending the gender norms, and manifesting combinations of sex and gender. Transgenders were accepted from prehistoric dates, and alternate sexuality was sometimes considered even sacred, with Ardhanareeswara and Shikhandi being cited as examples.
Other parts of the ancient to early medieval world had an accepting or neutral view about homosexuality, with the “Two Spirits” from the Americas, Pharaohs of Egypt taking male lovers, the men of Siwa Oasis in Egypt openly engaging in homosexual acts, euphemisms such as passions of the cut peach in ancient China. Ancient Greek texts have the earliest recorded history of homosexuality being accepted, and the term lesbianism and sapphism has been coined after Sappho, the lyrical poet born on the island of Lesbos. Roman emperor Nero married two men, Pythagorus and Sporus, the former taking the place and manners of a man and acting as Nero’s husband, whileSporus had been castrated, and was the bride at Nero’s wedding.
The mid first millennium AD saw the rise of justification of famines and earthquakes as caused by increased activity of homosexuals, as accused by Christian emperors such as Justinian I. The Caliphate of the Middle East, and the Mughal emperors in medieval era India condemned homosexuality, but this was the time when Arabic, Persian and Urdu poetry describing homoerotic acts flourished. It is known that the sultans of the Delhi Sultanates themselves established relationships with men, even though it was prohibited by the Sharia law.
The earliest condemnation of men lying with men was in Assyria, where sexual acts between brothers in arms resulted in castration. Homosexual acts were seen as an abomination in the Torah, and the Bible, as can be seen from Leviticus. Persecutions against homosexuality rose in the Middle Ages in Europe, with the theologian Thomas Aquinas instrumental in the linking of condemning homosexuality, linking it with the violation of the law of nature. The Renaissance period saw immense oppression to homosexuality from the Catholic Church, with the act being penalised with death in most parts of Europe. Victorian era Britain condemned homosexuality, and enacted a stronger version of the Buggery Act, which penalised any act of penetration against the law of nature with death - this was the precursor to the Section 377, and most of the similar sections, at least in British colonies around the world. The United States had two periods when homosexuality was condemned, for a few decades before the end of the Great War, and from late 1930s to the early 1970s. In the 1920s, the urban regions of the USA was coming to terms with alternate sexuality, with innuendos about the same becoming common in literature and movies of that era.
France, in 1791, was the first country in the western world to have decriminalised sodomy, and the laws of consent and homosexual acts in public were repeatedly amended in later years. Many countries in Europe followed suit, but Britain was one of the few nations that removed the death penalty to imprisonment for life. Molly houses in 18th century London, where crossdressing men could find potential sexual partners, is probably a precursor to the idea of a gay bar. It is to be noted that non-European nations/ non-colonial nations, had varying views on homosexuality, and in many cases, they were part of the cultural norms of the society, such as in the oriental countries. It is reported that some tribes of Papua New Guinea (Etoro, for example) even condemned heterosexuality - and a man and a woman had intercourse only for the purpose of procreation.
The 19th century saw a rise in the number of countries decriminalising homosexuality, and sodomy. James Pratt and John Smith, who were executed in London in 1835 were the last people to face death penalty in Britain, for sodomy, but death penalty as a punishment for sodomy was repealed only in 1861. Gay men were prosecuted and were imprisoned for a period from 2 to 10 years, with heavy fines also implemented. One of the prime examples of this is the arrest of Irish playwright and poet Oscar Wilde, after he accused the Marquess of Queensberry for libel. Wilde was convicted of sodomy as he dropped his prosecution and served term for two years, after which he was released, and fled to France, where he lived till his death.
20th century saw waves of changes, both good and bad. The usage of the term ‘faggot’ to mean a gay man, became prevalent in the 1910s, while in Russia, the October revolution repealed criminalisation of sodomy. Pre WW II, Nazi Germany made the pink triangle mandatory - similar to the Yellow Star that Jews were forced to wear - on those who they identified as homosexual, in the concentration camps; an identification of crime, but currently used as a symbol of protest against homophobia. The Holocaust killed around an estimated 3000 - 9000 homosexual men, but post WW II Berlin saw the first gay bar in Berlin. Though, at the end of the war, when the prisoners of the concentration camps were liberated, many who had a pink triangle on their pocket were imprisoned again, and their nightmares just continued.
1954 saw one of the greatest mathematical and computational minds of the 20th century, Alan Turing, suicide, due to depression caused by forced administration of libido reducing hormones. When he was prosecuted for homosexual acts in 1952, he was offered a “choice” between being imprisoned for two years or chemical castration. Inquiry determined it as a case of suicide, though the autopsy is also consistent with cyanide poisoning.
The latter half of the 20th century saw major changes around the world, with more countries legalising same sex activities. Illinois in 1962, was the first US state to decriminalise homosexuality - it would take 50 years for the US in its entirety to follow suit.
The worldwide movement and philosophy of LGBT pride, advocating for LGBTQ+ individuals around the world to be proud of their sexuality, and that it can’t be altered, but rather is a gift, is a sense of affirmation about one’s self and the community as a whole. Following the Stonewall riots of 1969, the first anniversary of the same saw the first LGBT Pride Parade, in June 1970. It was in the late 1970s that the rainbow flag became associated with LGBT+ pride. One must reminisce the activists who paved way for the pride parade - Marsha P Johnson, Storme DeLarverie, Thomas Lanigan Schmidt, and Sylvia Rivera, amongst many others. The 1970s also saw Harvey Milk, the first openly gay candidate elected to political office, out before the elections were held.
Shakuntala Devi, a mental calculator, popularly known as the "human computer", in 1977, published “The World of Homosexuals”, a study of homosexuality, the first book of its kind, in India. The book contains data from interviews with gay individuals from India, and abroad.
The 1980s saw the spread of AIDS, which was then known as GRID (Gay Related Immune Deficiency), and efforts to make people aware about the transfer of STDs began in full swing over the next two decades. The red ribbon began to be used as a symbol for HIV/AIDS in the 1990s.
In 1992, Lesbian Avengers, a direct action group for the survival and visibility of lesbians and their allies was formed by Anna Maria Simo, Sarah Schulman, and others. As it may have been observed, even amongst homosexual acts, the world has focused mostly on men, and accepted/condemned wherever necessary, the acts of sodomy alone - literature and other sources about female sexuality was rarely discussed, let alone lesbianism. Lesbian sexuality wasn’t explored until the advent of third wave feminist activities, may be with the exception of the analysis of Sapphic literature. References to love between women are sparse, and the Bible explicitly mentions the same only once. Christianity in medieval Europe did take some stand on lesbianism, but records of only about a dozen women exist. The Renaissance period accounts of female intimacy, and accepted it as a cultural norm that women may require pleasure from other women. The medieval Arab World also had a similar view, disposing lesbianism as caused due to heat generated in women’s labia.
In early modern Europe, laws against lesbianism, if ever made, were very sparsely enacted, which historians allude to male fears about acknowledging the same. Lesbianism was rationalised in literature and it was alluded that only amongst the lower tier of the society did a lesbian subculture exist. Lesbian visibility in France increased in the late 19th century, both in the public sphere as well as in art and literature. The Nazi concentration camps marked transmales and lesbians with black triangles, to denote that they were being detained for asocial activities. Political lesbianism originated amongst the second wave radical feminists in the 1960s, and Sheila Jeffreys, helped develop this concept. A movement of lesbian feminism, which advocated lesbianism as a logical result of feminism, was influential in the 1970s and ‘80s. Lesbian Avengers may have been formed as a result of lesbians being tired of their issues not being resolved in a world of invisibility and misogyny, both within and outside the LGBT community, according to Eloise Salholz, reporter for the 1993 pride march in the US.
The 21st century saw same sex marriage and adoption laws coming up in various parts of the world, and same sex relationships and marriage is becoming more discussed in world media. The last 10 years have seen events such as the establishment of the International Trans Day of Visibility (March 31, since 2009), and more widespread discussion of homosexuality among the nations of the world. In 2018, British Prime Minister Theresa May issued an apology expressing deep regrets for Britain’s role in imposing colonial laws that criminalise LGBT people across the Commonwealth nations - 36 of the 53 still have not repealed the laws, and violence and persecution persists to this day.
Early Indian literature and architecture portrayed homosexuality as natural and joyful, and the Kama Sutra describes many different forms of non peno-vaginal sex and sensual pleasures. Modern societal homophobia was introduced by the colonisers, through the enactment of Section 377. The Sultanate era had homophobia in many forms, but some circles, including the Mughals, tolerated fluid sexuality. Even in 2003, it was believed by the Indian government, that homosexual acts would lead to delinquency. The first pride parade in India was held in 2008 in Bangalore, and since then, masks have become an integral part of pride celebrations in the country so as to reduce the chances of being recognised.
Only in 2009, did the Delhi High Court decide that Section 377 was unconstitutional, in the landmark Naz foundation vs.Govt of NCT of Delhi judgement. The Supreme court set aside the same in 2013, due to the opposition from the Ministry of Home Affairs. For five years, until 2018, there have been various instances of violence against those who had outed themselves, or were outed, from 2009 - ‘13. With a decision to review the repeal in 2016, and the Supreme court’s rule that the right to individual privacy is an intrinsic and fundamental right under the constitution, which gave hope to the LGBT activists of the country. January 2018 saw the supreme court willing to listen to petitions, and finally deciding that the case would be left to the wisdom of the court. The court unanimously ruled on Spetember 6, 2018 that IPC Section 377 is unconstitutional as it infringed on one’s autonomy, intimacy and identity - and decriminalised homosexuality in India.
Transgenders have been traditionally recognised, and were granted voting rights since 1994. In 2014, the Supreme Court, by classifying transgenders as SEBC (Socially and Economically Backward Classes), provided them with more equal footing to the general populace. The Rights of Transgender Persons Bill, 2014, was unanimously passed in 2015. The states of Kerala and Tamil Nadu were the first to provide male-to-female SRS (Sex Reassignment Surgery) free of cost, and also a transgender welfare policy. 2015 saw Madhu Kinnar become India’s first and only openly transgender mayor, and Manabi Bandyopadhyay appointed as the first transgender principal of a college (Krishnagar Women’s College). In 2019, Narthaki Nataraj became the first transgender person to be felicitated with the Padma Shri award for her contributions to Bharatanatyam. The US embassy in Delhi and Chennai have set up rainbow lights that shine on their buildings, since the US State refused all embassy requests to hoist rainbow flags.
The world has come a long way from when homosexuality was seen illegal in many parts to the present, where it is recognised and accepted in over 80 percent of the world. 14 countries still impose death penalty on homosexuality, and only about 27 countries have a same sex marriage law in place.Some nations still don’t provide the rights to the LGBTQ+ community as prescribed by the Yogyakarta Principles, formulated in 2007 - a documentation of basic human rights pertaining to sexual orientation and gender identity. Transgender rights are vastly ignored, and bisexuals are misunderstood as promiscuous, even in countries which have legalised and recognised LGBTQ+ rights, and they still seek visibility and acceptance - modes of sensitisation are necessary for the same. LGBTQ+ people of colour, just as a major chunk of people of colour, are treated with suspicion and are discriminated against on more than one count.
Even though the repeal of Section 377 has been a landmark decision, there are many other issues that still remain unanswered. Persecution and violence against LGBTQ+ people is still rampant, and anti-discrimination laws are not in place, except for in state or government bodies. Same-sex marriage and adoption (and surrogacy for gay male couples) still remains illegal. Service in the Armed Forces is prohibited for those belonging to the community. Another issue that has partly been dealt with, is how the public view homosexuality. Mainstream media, some even to date, show crossdressing and effeminate behaviour in a derogatory manner, but more and more people are becoming aware and changing media portrayal. A major issue that remains to be tackled is the misogyny within the community, that is rampant to date, all over the world. Equality begets equality, and only if misogyny is addressed can we aim to have a world that is equal on more levels than ever.
Find the same article at:
Wikipedia articles: LGBT history in India, Section 377 of the Indian Penal Code, LGBT History, Rainbow Flag, Timeline of LGBT history, LGBT rights in India, Homosexuality in India, LGBT culture in India, human rights in India, History of Lesbianism, Yogyakarta Principles, Harvey Milk, Marsha P Johnson, Shakuntala Devi
Instagram: @lgbt_history
submitted by jksjay to lgbt [link] [comments]

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