Will the Section 377 verdict live up to its full potential?

This artwork image is borrowed from the cover page of a summary of the Supreme Court’s Section 377 verdict – the summary titled ‘Right to Love – Navtej Singh Johar V. Union of India: A Transformative Constitution and the Rights of LGBT Persons’ was published by Alternative Law Forum, Bangalore with inputs from queer activists across India in September 2018. The image shows a graphic of two hands held together in a friendly handshake grip. It could also be seen as any two lovers holding hands. One of the hands is coloured in the queer pride rainbow flag shades, while the other is white in colour. The outline of the two hands together is shaped like a love sign. In a sense, the graphic colours could also be interpreted as a friendly handshake between a queer person (symbolized by the rainbow coloured hand) and the State (symbolized by the white hand). The graphic is placed on a yellowish background. Artwork credit: Alternative Law Forum

Insight, Nov '18
Brindaalakshmi K. on what the Section 377 verdict means to people assigned gender female at birth

I was originally going to write about what a wonderful verdict that the Supreme Court of India has come out with by reading down Section 377 of the Indian Penal Code. I wanted to highlight its implications, especially for individuals assigned gender female at birth, including those who may be non-binary, gender fluid, cis queer, trans-masculine, genderqueer or agender. After all, the verdict has dealt with so much to do with gender, gender roles and gender expressions.

A sample of what Justice D. Y. Chandrachud said in Navtej Singh Johar & Others Vs. Union of India Ministry of Law and Justice: “If individuals as well as society hold strong beliefs about gender roles – that men (to be characteristically reductive) are unemotional, socially dominant, breadwinners that are attracted to women and women are emotional, socially submissive, caretakers that are attracted to men – it is unlikely that such persons or society at large will accept [the] idea that two men or two women could maintain a relationship. If such a denial is further grounded in a law, such as Article 377, the effect is to entrench the belief that homosexuality is an aberration that falls outside the ‘normal way of life’”.

Quote: Is the Section 377 verdict also going to go the same way as the NALSA verdict? Have we landed ourselves just another verdict that only activists and lawyers manage to leverage for advocacy around different issues faced by the queer communities, while the state and central governments take almost no real interest in implementing the Supreme Court’s orders?The verdict also quoted Suzanne Pharr in Homophobia: A Weapon of Sexism (Chardon Press 1988): “To be a lesbian is to be perceived (labelled) as someone who has stepped out of line, who has moved out of sexual / economic dependence on a male, who is woman- identified. A lesbian is perceived as someone who can live without a man, and who is therefore (however illogically) against men. A lesbian is perceived as being outside the acceptable, routinized order of things. She is seen as someone who has no societal institutions to protect her and who is not privileged to the protection of individual males. A lesbian is perceived as a threat to the nuclear family, to male dominance and control, to the very heart of sexism.”

But it was quite a dampener when I read how the Government of India has delayed implementing the Supreme Court’s order to publicize the Section 377 verdict. Well, am I surprised considering that many state governments are yet to implement the directives of the apex court’s NALSA judgement of 2014? This judgement had recognized the rights of transgender people in India to self-identify as male, female or third gender and ruled that it was illegal and immoral to insist on surgery or other gender-affirming medical procedures as ‘proof’ of transgender status.

It is interesting how much the Section 377 verdict (in all its component judgements) has quoted the NALSA judgement. Let us not forget that transgender people’s struggles for their basic rights continue. And it seems our government still needs to understand the difference between ‘sex’ and ‘gender’, even four years after the 2014 verdict. The Government of India’s Department of Publication website with forms for name and other changes in the Gazette of India continues to mix up the two – the form for change of gender uses the word ‘gender’, but the hyperlink to access this form uses the word ‘sex’. The Passport Seva website uses the expression ‘change of sex’, and continues to require a sex change certificate to reissue a passport previously issued in a different gender in complete violation of the NALSA verdict.

Given these circumstances, is the Section 377 verdict also going to go the same way as the NALSA verdict? Have we landed ourselves just another verdict that only activists and lawyers manage to leverage for advocacy around different issues faced by the queer communities, while the state and central governments take almost no real interest in implementing the Supreme Court’s orders?

On the brighter side, even if the answers to my questions are a loud yes, I feel that this verdict is one that is necessary to reiterate that the rights of all queer Indian citizens are no different from the rest because it has at least laid the foundation for addressing these matters in the future.

On the verdict’s implications for individuals assigned gender female at birth

By quoting Suzanne Pharr, Justice Chandrachud in his judgement questions the inherent social need to fear anything that goes against the hetero-normative and patriarchal mindset. His judgement makes us question what happens when an individual assigned gender female at birth is no longer dependent on a man. Patriarchy has never been particularly nice to female-assigned individuals, and if any of them are to take it a step further and also say that they identify as a man, it obviously does not agree too well with the patriarchal ego. The person is saying no to a system that has given them no choice in choosing their life partner and in some cases even gender identity. Now with the Section 377 verdict, they have the room to allow themselves that choice and reinterpret their relationships with others and themselves. And they will no longer be deemed a ‘criminal’ for doing so.

Quote: The reading down of Section 377 tells patriarchy to redefine its understanding of gender and sexual orientation . . . This reiteration is so important to trans-masculine and female-assigned non-binary / genderqueer individuals, many of whom find it difficult to come out due to the inherent discrimination that exists against any female-assigned individual.The reading down of Section 377 tells patriarchy to redefine its understanding of gender and sexual orientation. If not all, at least one of the component judgements acknowledges the reading down of Section 377 to be a necessary step to end the inequality of the genders. This reiteration is so important to trans-masculine and female-assigned non-binary / genderqueer individuals, many of whom find it difficult to come out due to the inherent discrimination that exists against any female-assigned individual.

Patriarchy is such that even the imagination of homosexuality has been limited to only a cisgender man having sex with another cisgender man. What about trans men who may be attracted to other men? At least same-sex relationships among assigned-male individuals were acknowledged by the government, even if primarily in the context of HIV. But this has not been the case for the rest. There is a similar lack of awareness about the possibility of same-sex relationships among assigned-female individuals. This has often led to suicides due to lack of social acceptance. And this often gets worse for trans men.

Because of the threats and dangers involved in coming out as transgender even within one’s family, some trans-masculine individuals choose not to change their name and gender in their official documents. Thanks to inadequate implementation of the NALSA judgement, there are other challenges as well they face if they choose to officially change their name and gender. What happens to property ownership and existing insurance in their assigned name and gender?

Addressing these issues of transgender individuals is a separate battle. It is often a real struggle for many to legally tackle these issues considering that their safety, livelihood and even their lives can be at stake if their gender identity is revealed. But for now, the reading down of Section 377 does not criminalize the relationship between two female-assigned individuals, one of whom could be a trans-masculine person. Till such time as there is full and unequivocal socio-legal recognition for such relationships, the couple will have to brave out complicated paperwork and personal risks if the trans-masculine partner chooses to align their identity documents to their gender identity.

Besides, the real impact of this verdict, similar to the NALSA judgement of 2014, is likely to be seen through the work of organizations and activists working on queer rights. Even if this verdict is to be used only as a tool for advocacy, it is still good news. After all, the NALSA judgement has been cited in several legal cases (here, here and here, among others) to support individuals in claiming their rights. This, in fact, has led to some level of implementation and inclusion of transgender people. Let us hope that the Section 377 verdict will make way for similar breakthroughs.

Some may say that this has already begun: Sreeja, a queer woman, filed for a court order to get her partner, Aruna, out of a mental health institution where she had been admitted by her parents. In the light of the Section 377 verdict, the Kerala High Court recently allowed the lesbian couple to live together upholding the Supreme Court verdict.

Author’s disclaimer: This article discusses only certain aspects based on the challenges faced by queer individuals. Such challenges may be compounded by a number of additional and intersecting factors such as real or perceived class, caste, religion, language proficiency and attire to name a few. These intersectional factors deserve a detailed discussion, which is beyond the scope of this article.

About the artwork: Image borrowed and adapted from the cover page of a summary of the Supreme Court’s Section 377 verdict – the summary titled Right to Love – Navtej Singh Johar V. Union of India: A Transformative Constitution and the Rights of LGBT Persons was published by Alternative Law Forum, Bangalore with inputs from queer activists across India in September 2018.

Author Photo

Brindaalakshmi K.

Brindaalakshmi K. is a researcher working at the intersections of gender, sexuality and technology. She is currently working on a study titled 'Gendering of Development Data: Beyond the Binary' with the Centre for Internet & Society, Bangalore.

Comments So Far

  • Image Shuvo   shuva.s.das@gmail.com 01-12-2018 | Reply

    Very well written and insightful article.

    • no replies
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