I'm Queer And I Couldn't Care Less About Section 377
There are much more pressing issues facing the queer community besides an archaic law that criminalises anal sex, and this is particularly true for women and trans people.
One November evening several years ago, I found myself sitting in an LGBT support group that I sometimes visited when I still lived in Bangalore. While this was purportedly an inclusive space, it typically consisted of about a dozen or so men and I was the only woman in the room.
On this particular day, the topic of discussion was a local queer man who had recently committed suicide, owing to issues with his family.
There was an animated conversation amongst the men in the room about this guy, and topics such as mental health and family issues were brought up. There was talk of how his death was the result of society’s prejudices against sexual minorities.
I then brought up another instance where a 20-year-old girl from Madurai had run away with her girlfriend, only to be forcibly separated and brought back home. The girl, named "Radha" by the press, ended up hanging herself, leaving behind a note that said that she was in love with her friend and society couldn’t accept that.
My narration of the incident was met with silence, followed by a swift change of topic.
The Supreme Court's recent landmark judgment on privacy specifically mentioned freedom of sexual orientation as a fundamental right, triggering renewed hope within the queer community that Section 377 might finally become a historical footnote.
But as a member of the queer community, while I agree that a colonial law based in Victorian morality has no place in modern India, I simply couldn’t care less about Section 377.
As a member of the queer community, I simply couldn’t care less about Section 377.
This might be confusing at first if you have the idea that Section 377 affects all queer folk. The exact text of the law doesn’t specify gender, but it does specify penetration. If one is talking about penetrative intercourse, said intercourse necessarily involves a penis. This excludes a large swath of the queer population – either by anatomy or by desire.
The fact is that there are much more pressing issues facing the queer community besides an archaic law that criminalises anal sex, and this is particularly true for women and trans people.
While there is no law specifically targeting lesbians, there are plenty of ways to regulate a woman’s sexuality. Take the Hadiya case for example, where a 25-year-old woman’s freedom was denied, first by her father and then by the state. In her case, the issue was her conversion to Islam and subsequent marriage to a Muslim man, but the exact same legal and moral conventions are frequently used to harass and separate lesbian women from their partners. The charges are almost always related to abduction or habeas corpus writs filed by relatives, rather than any specific law related to a particular sexual act.
Essentially, the problems that queer women face – like the repression of their sexuality and of their autonomy – have their roots in the gender injustices that all women face. What this means is that for queer women, Hadiya is a much bigger issue than 377. Our rights are more connected to feminism than to the queer movement as it stands.
The problems that queer women face have their roots in the gender injustices that all women face.
Gay men, who have never really organised around women’s rights, remain largely uninterested in this. It’s fascinating how one can break out of heteronormative ideas of sexuality and even embrace femininity as some gay men do, and yet show no real concern for the rights or the autonomy of women.
And if the importance accorded to women's issues within queer forums is poor, transgender issues are even more marginalised. This is clearly evidenced by the lack of protest from the wider queer community about the deeply problematic Transgenders Bill, 2016, which seeks to ban begging and sex work and establish screening committees to certify trans people. In short, it threatens to provide legal sanction for the harassment of trans people in India for generations to come if it becomes law.
Historically, Section 377 could have been applied to trans people as well – though it existed alongside other forms of criminalisation such as the draconian Criminal Tribes Act, and was never the main means of oppression. Since the Supreme Court's NALSA judgment officially recognised a third gender while Section 377 specifically mentions two human genders (“carnal intercourse against the order of nature with any man, woman, or animal”), it was a matter of speculation whether that law could ever be used to criminalise the sex lives of trans folk or whether this legal distinction made it inapplicable.
Sadly, we have an answer to that question now, thanks to the recent case of a 19-year-old trans woman who was gangraped in Pune. Since rape laws specifically mention women, the survivor had filed a case under Section 377, but it was thrown out on the grounds that since she was of the “third gender”, the law didn’t apply to her and the four rapists walked free.
So in effect, trans people can be raped with impunity, but activists can take heart from the fact that hijras won’t be arrested for having sex. The proposed Transgenders Bill fails to address this, given that the maximum punishment for raping a trans person is a measly two years' imprisonment.
The current discourse on 377 and how it affects the queer community as a whole seems to do nothing aside from silence the voices of women and trans people without doing a damn thing for us.
Intersectionality is a very important thing, and to reiterate, I do not support the retention of an archaic law that regulates what anyone does in the bedroom. But the current discourse on Section 377 and how it affects the queer community as a whole seems to do nothing aside from silence the voices of women and trans people without doing a damn thing for us.
At the end of the day, it seems like the focus on getting rid of Section 377 is more about shoving male sexuality in the face of queer women while silencing our needs and our demands than it is about any concept of equality. Legalising consensual nonvaginal penetration might be a step forward for the country, but neither that nor gay marriage can possibly be the end-all cure for all of the ills faced by the queer community in India.