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Waiting in line: Queer women and the case against 377

How will a victory in the reading down of Section 377 affect queer women? And how can the goals of the queer movement be made to reflect the multiplicity of identities and issues experienced by its more marginal members, asks Padma Govindan in this new series on the intersections in gender, sexuality and politics

On May 17, 2008, in Washermanpet (a northern locality of Chennai), R Rukmani and Christy Jayanthi Malar committed suicide together by setting themselves on fire. Rukmani and Christy Jayanthi were both married and had children, and they had also been lovers for over 10 years. While the tipping point that led to their joint suicide remains unknown, during the course of their relationship they survived forced marriages, poverty, domestic violence, divorce, and discrimination from their families and communities because of their determination to continue seeing each other. When the fire was finally doused, their bodies were founded clasped in an embrace.

Two days later, the Delhi High Court heard the opening arguments of the public interest litigation case to read down Section 377 of the Indian Penal Code, the section of Indian law that criminalises homosexuality. The connection between these two events illuminates an ongoing question for queer activists involved with the case; namely, how would a victory in the reading down of Section 377 in the Delhi High Court affect queer women -- particularly those who are not members of the English-speaking, urban, upper middle class? And perhaps more broadly, how can the goals of the queer movement be made to reflect the multiplicity of identities and issues experienced by its more marginal members?

Background on the law and the case

By way of background, the law itself is a holdover from the British Raj, and was introduced in India in 1860 in accordance with Britain’s own anti-sodomy laws. The section states: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine.” Although Section 377 technically outlaws non-procreative sex between all people (irrespective of gender identity or sexual orientation), it has generally been interpreted to criminalise anal and oral sex between two men (or a man and a transgender woman), and makes no distinction between consensual and non-consensual sex. It is important to note here that Section 377 also contains the sole statute in the penal code that punishes child sexual abuse, and so the case to read down the law, rather than strike it from the books entirely, is to ensure that child sexual abuse is not decriminalised along with consensual sex between adults.

The petition to read down Section 377 arose from the use of the law to threaten and blackmail an HIV-AIDS prevention organisation called Naz Foundation, in Delhi, and its associated organisation in Lucknow, the Bharosa Trust. In 2001, an outreach worker with the Bharosa Trust was arrested by the Lucknow police for handing out condoms in a public park that was a well-known cruising site, as part of the organisation’s HIV prevention and outreach programme. The police arrested three other outreach workers and the director of the trust, seized material from their office, and charged them under Section 377 as abetting “acts against the order of nature”. The police also accused Naz Foundation of running a string of “gay brothels”.

Although the charges were eventually dropped, Naz Foundation decided to file a public interest litigation case in 2001 to read down Section 377, to decriminalise consensual sex between adults on the grounds that the law, by making it impossible for HIV prevention work to take place in India, constitutes a public health risk. In 2007, a coalition of organisations and individuals called Voices Against 377 added itself as an impleadant on the case to ensure that arguments were also presented in court attesting to the law as a human rights violation against gay men and transgender women. The case was stymied in the courts for eight years before the Supreme Court decreed that the Delhi High Court was obligated to hear the case in a timely fashion. The Delhi High Court opened proceedings on the case on May 19, 2008, and heard final arguments on November 7, 2008. The judges are currently deliberating and are expected to deliver their judgment soon.

Although men have rarely been booked or prosecuted under the law (two notable exceptions being Desmond Hope in Goa, in 2007, and Miles Patrick in Tamil Nadu, in 2008), the law is frequently used to harass, threaten, and blackmail gay men and transgender women. For example, in January 2006, police officers in Lucknow infiltrated a gay dating website posing as legitimate members, entrapped one man and used him as a decoy to entrap other members of the website by threatening to book him under 377 if he refused to cooperate. This is a clear example of the law being used in an extrajudicial capacity to victimise members of a marginalised community and create an atmosphere of fear and exploitation.

Section 377 and its effect on queer women

Despite the fact that Section 377 criminalises a sexual act as opposed to a sexual identity, the history of the law indicates that its focus is on sexual acts between men. (In fact, there’s an apocryphal story that when asked whether to include a section on lesbian sex in the law, Queen Victoria insisted that “such things” do not happen between women and thus there was no need to include it.) Technically, anyone who engages in oral or anal sex, regardless of gender, is breaking the law. But the idea of penile penetration as the definition of sexual intercourse is so deeply entrenched in both the law and social structures that Section 377 has become commonly understood as a law that can be used against gay men and transgender women to enforce heterosexual and hetero-gender relationships as the norm. Chayanika Shah, a long-time women’s rights and queer activist in Mumbai, describes the law this way: “I think that the understanding of penile penetration as the definitive act of sex is the reason why anal sex is attributed solely to gay men and trans women. We have even had trans women and gay men asking us, ‘but how can women do it?’.” As a result, the law (and its enforcement) further delegitimises sexual desire between women by placing their existence in the realm of impossibility and absurdity.

This is not to say that lesbian women are not also oppressed under Section 377. No woman has been charged under the law, but irate families frequently use the police to threaten lesbian daughters with arrest in order to break up relationships or force the woman into marriage. In the case of Rukmani and Christy Jayanthi, they had both been forced into marriage despite the fact of having been a relationship for a few years previously -- Rukmani was even divorced by her first husband when he came to know of her relationship with Christy Jayanthi and forced to remarry by her family.

However, beyond the discrimination of Rukmani and Christy Jayanthi on the basis of their sexual orientation, the violence that lesbian women and transgender men face is embedded in complex structures of class, patriarchal repression, and heteronormative social expectations. It’s entirely possible that Rukmani and Christy Jayanthi would have found it impossible to live together independently of their families. However, is this solely because of discrimination caused by Section 377, or because as working-class Tamil women, their choices for mobility would have been severely restricted by region and their skills? Is it because, as women, the pressure they faced to get married would have been infinitely more intense and likely to be backed by violence than had they been men? Is it because no marital rape laws exist in India and so neither woman would have been able to truly negotiate when and where they had children? Or perhaps because the consequences for women who have sex outside of the conventional bounds of marriage -- whether with men or other women -- are more likely to be punitive and violent than for men?

These are hypothetical questions, but they underscore the impossibility of straightforwardly equating a possible court victory for reading down Section 377 with an overall increase in visibility and empowerment for queer women. The forms of oppression that queer women face are complicated by coercive methods of sexual control, structuralised social violence, and the systematic reproduction of inequality in both the public and private spheres -- forms of oppression that are experienced by all women, irrespective of sexual orientation or gender expression. This is not to make the claim that gay men and transgender women are somehow exempt from similarly complicated experiences of marginality, but rather that with queer women, their position as women adds a dimension of difficulty that makes access to the mechanisms of justice -- even the social justice offered by the possible reading down of Section 377 -- conditional and incomplete at best.

Section 377 and representation within the queer movement

By virtue of strategic necessity, the case that Naz Foundation and Voices Against 377 has brought to the high court has been focused entirely on the repercussions of the law on gay and transgender women’s communities, both with regard to preventing access to information on preventing HIV as well as the ongoing legal sanction it gives to human rights violations against marginalised sexualities. After all, the law itself has been consistently interpreted to mean a criminalisation of penile penetration between men or transgender women, and, in the worst case scenario, opening the legal arguments to include the stigmatisation of queer women would only increase the risk of a judgment that, rather than reading down the law, expands the definition of criminal sexual behaviour to explicitly include sexual behaviour between women.

However, because both the law itself as well as the case now pending have rendered sexual desire between women incidental to the concerns of the queer movement as a whole, the question is how to make the movement reflective of the diversity of its members as well as responsive to their needs. Chayanika Shah asserts that in addition to fighting the violence engendered by Section 377’s criminalisation of homosexuality, the movement must also expand its scope to examine the law as a vehicle for addressing the stigma and discrimination that queer women face in other spheres: “I do think that we need to start looking at anti-discrimination laws and some laws to look at familial violence of the subtle kind -- the kind which does not allow these women to get adequate training and education. A reading down of 377 is not going to help me stand up and ask for my rights to dress and behave differently from my socially ascribed gender. In that sense this has been a struggle, so far, for the right to express ourselves sexually in multiple ways, but it has in fact delayed the conversation on the right to live our genders differently.”

The intensive focus of queer activism on fighting criminalisation, while a necessary step in creating a national movement that is equipped to effectively lobby for the rights of its communities, has also led to a general quieting of what should be a vibrant debate on the intersections between sexuality and other forms of marginalisation: gender, class, region, and caste. With regards to the desires and identities of queer women (especially economically marginalised queer women), members of the activist movement need to take stock in the wake of the legal struggles around 377 and strive to make the queer community one that includes the voices of its most marginalised members, both in terms of immediate grassroots and legal action as well as through the forging of a critical politics that accounts for and addresses experiences of oppression not limited to sexual orientation.

(Padma Govindan is the founder and co-director of the Shakti Centre, a sexuality advocacy and research non-profit organisation in Chennai. She is also a sex advice columnist for Marie Claire India)

InfoChange News & Features, March 2009