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Sexual rights as human rights

By Arvind Narrain

Why is a hijra being tortured by the police less of a human rights concern than the torture of a Naxalite? Why is the desire of two women to live with each other and not get married to men any less of a human rights issue than a woman wanting a divorce from her cruel husband? If development is to be seen as the process of expanding the real freedoms that people enjoy, then the freedom to express one's sexual orientation or gender identity is a development issue as important as any other

 Groups working with development issues understand the rights claims of marginalised groups, and would inevitably be sensitive to such claims by those who identify as gay, lesbian, bisexual, kothi, hijra or the numerous other identities in the Indian context that do not conform to the heterosexual model. But even within the development sector, the response to those who dare to bring ‘queer’ sexualities into the rights discourse is mixed. (By ‘queer’ we’re referring to the range of positions from which the norm of heterosexuality as the only way of being is being questioned, be it through people who identify as gay, lesbian, hijra, kothi or bisexual, or by people who refuse to espouse any identity but still question the heterosexual norm.)

At one level, there is an open embrace of ‘queer rights’ as a legitimate part of the human rights discourse. The way in which human rights groups have, in fact, been able to represent queer suffering is an interesting comment on the potential that rights language has to represent the suffering of diverse communities not contemplated at the point when the rights discourse began.

On the other hand, one faces certain resistance to the quaint notion that queer people do have rights. This, of course, being the development sector, the resistance is embodied in more sophisticated forms and speaks the language of rights. In the rest of the essay I will try and address at least three forms of this resistance to taking on board the suffering of queer people as a development concern.

1. In India, there are more important issues than sexuality

The prioritisation of human suffering has been an integral part of our social history. At various points of time there were and continue to be excluded people. The women’s movement and the dalit movement are both examples of social groups that have had to struggle and still have to struggle to find a voice at the ‘mainstream’ human rights table. Due to the sustained struggle of these social groups, today it is difficult, if not impossible, to openly say that in India there are more important issues than caste or gender. This is not to say that dalits and women have been successful in ensuring that their voices are always heard, but only to note that in public discourse you will not hear any human rights activist saying that there are more important issues than these.

Today, the same logic of prioritisation of suffering is now applied to delegitimise the suffering of the queer community. In one sense, the human rights community has not learnt anything from its past history, whenever the above-mentioned logic is applied.

The logic of prioritisation itself breaks down under any sustained interrogation. If one concedes the basic humanity of all people then it is difficult to say within the terms of the human rights discourse why a hijra getting tortured by the police is any less of a human rights concern than the torture of a Naxalite. Similarly, it is very difficult to exactly justify why two women wanting to live with each other and not get married to men is any less of a human rights issue than a woman wanting a divorce from her cruel husband.

While clearly noting that issues such as hunger and poverty continue to be of vital importance in the Indian human rights discourse, the work of economists like Amartya Sen points to the idea that it’s only when we see rights as indivisible and interconnected that we can address human deprivation in all its facets (Sen, Amartya, 1999, Development as Freedom, Oxford, New Delhi). If development is to be seen as the process of expanding the real freedoms that people enjoy, then the freedom to express one’s sexual orientation or gender identity is a development issue as important as any other developmental concern.

2. The groups we work with such as tribals, children, women in extreme distress, people from rural areas, will not be comfortable with this issue

Sometimes, the rights of queer people are conceded as perhaps an inevitable right. But what is strongly asserted is that it is difficult for us as human rights or development activists to take this issue on board, as we work with communities that are terribly vulnerable. 

Perhaps the example most cited is that we work with children who are eminently impressionable, and it would not be right for us to take on board issues such as these. This is based on the assumption that sexual orientation and gender identity are concerns which are relevant only once we cross the threshold of childhood. However, if you ask the warden of any children’s shelter you will find that there are always children who are more attracted to others of the same sex, or boys who like dressing up as girls. Often the response is to panic at this incipient challenge to the hetero-patriarchal order and ruthlessly stamp out such gender insubordination.

The effect of this gendered violence can have extreme consequences on one’s sense of self. Perhaps being open to sexual orientation or gender identity as issues of marginalisation will help those working with children to build a more inclusive and tolerant space for children who are indeed different.

Similarly in every issue of extreme vulnerability, be it women in distress, or tribals, or any other group, one cannot proceed on the assumption that sexual orientation/gender identity are issues outside of these groups. What one needs to factor in is that in every group there is likely to be a marginal voice that struggles to find space for the expression of his/her gender/sexual non-conformity. It is often the blindness and prejudice of the mainstream development sector that refuses to acknowledge the existence of even more marginal voices within vulnerable communities.

It is also to be noted that there is the assumption of ‘discomfort’ by these vulnerable groups. But it is not inevitable that the only response from these vulnerable communities will be discomfort and intolerance. There are remarkable stories of tolerance and a deeper acceptance of differences in cultures that are different from ours. The question to be asked is whether it is these vulnerable groups that are uncomfortable with ‘queer’ expressions, or whether development and human rights groups are just trying to hide their own discomfort behind the veil of protecting vulnerable groups from harm.

3. The very notion of rights of queer people is the result of a funding agenda with no indigenous roots

 Funding has always been viewed with deep suspicion within human rights circles. Social movements in particular have been rightly critical of a lot of funded initiatives. While taking on board the problems regarding funding, which one always needs to interrogate critically, one should not use the critique of funding to delegitimise an issue.

Simply put, if we realise that the right to live with dignity is being compromised by the existence of an archaic anti-sodomy law (Section 377 of the Indian Penal Code which criminalises what it calls carnal intercourse against the order of nature and is used to target queer people), regardless of our position vis-à-vis funding, it is a just struggle to try and press for the law’s repeal.

Thus, once again, while the critique of funding is always a necessary corrective, the critique itself cannot be used to delegitimise an entire issue. As is the case with both women’s rights and dalit rights, there are funded groups and non-funded groups that have a rich history of disagreement on the direction of the movement. At no point in time is it ever suggested that the struggle for women’s rights is illegitimate because of the presence of funded groups. In the case of queer rights, the political language of concern with the effects of funding is used to hide a deeper discomfort with the rights of homosexuals and other such ‘perverts’.

What is required is an analysis of how homophobia (an irrational fear of homosexuals) might be woven into both the development discourse and the human rights discourse. We need to be aware of the human rights language in which the plain child of prejudice is clothed. If need be, we must be prepared to expose the emperor as indeed having no clothes.

If we want to build a more inclusive vision of human rights, one that truly enhances what we mean by the right to live with dignity, then there is no alternative to taking on board queer rights as an integral human rights concern. If we take development in the Amartya Sen sense, as “the removal of various types of unfreedoms that leave people with little choice and little opportunity of exercising their reasoned agency”, then we have an ethical obligation to take on board queer concerns as development concerns.

(Arvind Narrain is a human rights activist and lawyer with the Alternative Law Forum (ALF), Bangalore. He is the author of Queer: Despised Sexuality, Law and Social Change (2004) and co-editor of Because I have a Voice: Queer Politics in India (2005). Email: This email address is being protected from spambots. You need JavaScript enabled to view it.)

InfoChange News & Features February 2006