Why the fight for justice must go beyond just Section 377

By Deepan Kannan

“How strongly must we love to withstand the terrible wrongs of Suresh Kumar Koushal?” argued Menaka Guruswamy a few days ago, during the hearings in the Supreme Court against Section 377. Despite appearing for the most privileged class of clients, Guruswamy’s poignant argument resonated with many individuals of the LGBTQ+ community across India.

For me, the “love” in her argument is not so much about the primal desire towards the person of the same sex that most lawyers (or the larger pro-LGBTQ+ society) have come to refer to euphemistically. I interpret it as an apt reference to the long term emotional struggles that the community has been going through with their families, friends and, sometimes, with sexual/romantic partners as well. Many of us in the community have been offering more than we could to our friends and families, just to belong and be loved in return. But, notwithstanding that, many a times, we have only been violently pushed to the margins of the society. And Section 377 is a legal provision that offers scope to do so to the already maligned community. The impact of this law on the community may vary depending on the layers of privileges (gender, class, caste, ability) that we come with. Nevertheless, it is an archaic law that has destroyed the lives of many LGBTQ+ lives. And if left intact in the lawbooks, it will continue to threaten the dignity and livelihood of many in the coming years.

In 2009, the Delhi High Court’s verdict reading down Section 377 provided temporary relief. It was one of the many important milestones in the history of queer India. It would not be an exaggeration to say that the landmark judgement had enabled a meaningful change in the attitude of the society. Even if it had not helped much in curing the rampant transphobia/homophobia, it had helped the queer community to build important allyships. Queer communities in cities like Chennai and Delhi had already built a solid alliance with feminist movements by then. What the verdict brought in was the increasing support of many other progressive movements in these cities. Therefore, it was a little wonder that in Chennai, when the Supreme Court upheld Section 377 in 2013, many progressive movements came together to register their voices against that. So much progress had been made between 2009 and 2013, that it became impossible for many to go back into the closet. The only option left for many was to fight back, even though it meant compromising safety and security. In the last five years, every pride march that held in the country had echoed slogans against Section 377. It is no surprise then that many from the LGBTQ+ community across the country believe that the ongoing hearing is a promising development that could finally offer some hope and relief. What has unfolded in the courtroom in the course of the hearing also seems promising.

Strive for more

The Supreme Court, however, appears to want to restrict the focus of the hearings—and its judgement—only to the “constitutional validity of Section 377”. It has indicated that it may not look at from the perspective of broader rights for the sexual minorities. Although, in a general sense, the court proceedings seem to be heading in the positive direction, it would still be a missed opportunity for the court to not look at the community and their rights in a scope beyond Section 377. As some of the lawyers had already argued in the court, if the Supreme Court focuses on the ambit of broader rights, it would be a befitting justice for the community that has been suffering violence and marginalisation for centuries. Stopping with just scrapping Section 377 would still be largely limiting, as in the long run it will benefit only the normative gay men. The others who do not fit into society’s heteronormative spectrum will still have to struggle for rights, recognition and safety.

It is not just our courts that have to understand this, but the larger queer community as well. While the impact of Section 377 on the lives of LGBTQ+ is significant, it does not make sense for the community to hold on to only that as a deterrent to enjoying their rights. It is not a surprise that many gay men, who are otherwise privileged, see Section 377 as the only injustice that the community faces. This is primarily because they fail to see that many individuals in the community also struggle with other marginalised identities such as gender, class, caste and religion. Therefore, their fight against Section 377 ends up focusing on blending in, and not as something to challenge the heteropatriarchal society. They want to unquestioningly mirror the heteronormative lives that propagate caste and patriarchy. In this process, queers with other marginalised identities would be largely missed out. Their voices would get submerged under the “normalised” lives of gay men.

This is precisely why the movement out of the LGBTQ+ community, however nascent it may be, has begun to push for intersectionality with other movements. And not be restricted to the singular identity of being gay. This is still seen as a significant risk by many cis gay men as they fear it may dilute the fight against Section 377. In reality, this intersectionality is what would strengthen the community’s fight. One proof of that will be the number of times the lawyers have quoted the verdict of the Hadiya case in their arguments against Section 377. Hadiya fought against heteronormativity, and therefore, it is least surprising that a verdict concerning a heterosexual marriage comes to the rescue of the LGBTQ+ community.

In the life after Section 377, a singular focus will be a challenge for many of those queers who do not fit into society’s heteronormative construct. Those who do not fit into the gender binaries will be further marginalised. It will only belittle the struggles of queers from other marginalised backgrounds as they will have to put up an even fiercer battle against endogamy and bigotry.

To go back to Guruswamy’s arguments, no matter how strongly we love, for some of us left behind challenging heteronormativity, it would not be enough to withstand the new wave of hatred and violence. The Supreme Court may give us a relief from the cruel law, but it would be unfortunate if we stop just with that.

Deepan Kannan is a queer feminist from Chennai and volunteers with Orinam, a collective of LBTIQA+ people and allies in the city.