The Fight for Queer Rights in India Just Became Tougher

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The election results are out now. 2019 was going to be a defining election. And the worst fears of some of us have come true. Some of us were hoping that even if the BJP and Modi come back, it would be with reduced strength. But all of us have been proved wrong. This election was being touted as the fight for the soul of India, that soul just died today. How will things play out now will only be determined in the coming few months or years.  However, one thing is for certain – it does not bode well for queer rights (or minority rights in general).

The last five years have seen a degradation of minority rights in India. These years have been marked by lynching of muslim men and Dalits, onslaught on students across various educational bodies, arrests of various human rights defenders, and murder of rationalists and critics. The only silver lining in that dark period of human rights has been the decriminalisation of homosexuality in India by the Supreme Court, which happened not because of the Modi Govt, rather despite the Govt. However, if the last 5 years are any indication, the fight for queer rights in India has just become so much tougher, not that it was easy in the first place.

Modi Government has been uncomfortable (if not outright anti) about queer rights in India. This became clear during the Section 377 case, when at first it refused to take any stand before the court, and when forced by the SC, it left things to the “wisdom of the court”, but not before petitioning the court to restrict itself to just 377 and not expand its judgement to include other civil rights. Why would it be so hard for the government to spell out that there was nothing wrong with consensual adult same-sex relations? And if it indeed didn’t want to take a stand on the issue, what prompted it to ask the court from refraining on granting/commenting on civil rights for LGBTQs?

Then of course we have the horribly thought and worded Transgender Persons (Protection of Rights) Bill that this Govt brought. If there is one issue related to LGBTQ rights that all political parties agree on, it is transgender rights. But even there, the BJP managed to royally screw things up for Trans people. The NALSA judgement in 2014 had given the right of self-identification of gender, as well as asked the government to provide reservations to the community. A Private Members Bill in this regard was introduced in the Rajya Sabha in 2015 by Tiruchi Siva and was passed too. The government tried convincing the MP to withdraw the Bill and then introduced its own Transgender Persons (Protection of Rights) Bill in the Parliament. Many consultations too were held with the trans community. The BJP too was in favour of providing the trans community its rights. Despite it all, the party finally introduced a Bill that left everyone horrified. The entire Trans community was up against it. Among other things, the Bill defined a trans person as “neither wholly male, nor wholly female”. It further required a certifying authority to give out certificates regarding the transness of an individual. There was no mention of any kind of reservations either. This, despite there being both NALSA and the Private Members Bill for the BJP to refer to (in case it had no idea on what a Trans Bill should have been like). Nothing but its own arrogance and a total disregard towards the Trans community can explain the attitude of the government. Imposing its own will seems to have been more important for the government than listening to the voices of the community.

But nowhere has the anti-gay attitude of this government been more pronounced than the Surrogacy Bill that was passed in the Lok Sabha. Among other things, the government specifically barred homosexual couples and single persons from availing the services of surrogacy. Not just that, it also made it extremely difficult for heterosexual couples to opt for surrogacy, completely banning commercial surrogacy and allowing only “altruistic surrogacy”. But even there, it ensured the doors were closed forever for LGBT people (both as a single parent and as a couple). But what was the need for the government to restrict surrogacy to heterosexuals, if not for its anti-gay attitude? This anti-LGBT stance can be further gauged from how this particular government had petitioned the Supreme Court to restrict itself to deciding on the legality of Section 377.

But these are not the only three instances of the anti-LGBT move by the Indian government under Modi. At international forums, namely the UN, India under Modi has repeatedly voted for Bills/Provisions which were anti-LGBT. Add to it that BJP remained silent on queer rights in its manifesto, mentioning only that it will work for the empowerment of the transgender community (not mentioning how it plans to do so).

When the 16th Lok Sabha dissolved, both the Surrogacy Bill and the Transgender Persons (Protection of Rights) Bill dissolved too, as they could not be passed in the Rajya Sabha. Had the Modi government not returned back to power, there was hope that a new government, while bringing back these Bills would make changes after listening to the community voices. But that possibility has now faded, and there’s a good chance that whenever these bills are re-introduced in the Parliament, the same problematic provisions will be retained.

So what does all this mean for queer rights in India now? It means that the path for us all has become so much more harder in the coming years when it comes to pushing legal changes for queer rights. While there was no guarantee that a non-BJP government would have led to a flood of legal changes for queer people and their rights, it would definitely have been easier to push for some amendments to existing laws, prodding the government to listen to the community. If the Trans Bill is any indication, getting the voice and demands of the community heard (even in cases where the government agrees) will remain an uphill task.

However, even if the political battle has become tougher, we must not stop from pushing for social changes. That the 2019 elections had some of the major political parties include queer rights in their manifesto is a reason to cheer. We must build up on the momentum generated after the decriminalisation and work towards changing social attitudes towards queer rights. Some of it has already begun, as more and more companies are coming forward with queer friendly HR policies, brands are cosying upto the LGBT segment, and we are seeing LGBT centric advertisements and even movies and TV shows. One of the leading newspapers infact recently opened its classified section to the LGBT community. We must keep pushing for more such changes that would help affect a shift in societal attitudes. Another strategy should be to push the respective state governments to bring about changes in the state laws to make them more inclusive.

We must ensure in these next five years the social response to queer rights becomes more open and inclusive, even if we have a government at the centre that remains indifferent at best, and hostile at worst, to queer rights. At the same time, it is extremely important to build bridges with other minorities and groups. If we agree that queer rights are human rights, we must also recognise that these human rights extend beyond just queer rights and include dalit rights, disability rights, women’s rights, rights of muslims and other minorities. One of these rights is not divorced from the other. As Martin Luther King, Jr said, “Injustice anywhere is a threat to justice everywhere.”

In the coming years, we need to work at building a groundswell of support for LGBTQ rights, so that no party, whatever their inclination, can afford to ignore queer rights again.