Indian law invisibilises, discriminates against queer people; one project reimagines legislation to make it more inclusive

The last few years have been a series of ups and downs when it comes to rights for the Indian queer community. The Suresh Kumar Koushal vs NAZ Foundation judgment in 2013, which overturned a previous Delhi High Court judgment and reinstated Section 377 of the Constitution, was a setback; it made same sex relationships illegal. It was stated that judicial intervention was not necessary, and that the percentage of the population which constituted the queer community was minuscule.

Thereon, things have looked brighter: The NALSA judgment of 2014 delivered by the Supreme Court recognised the fundamental rights of the transgender community, and most recently, in the Navtej Singh Johar judgment, the SC read down parts of Section 377, making relationships between consenting adults of the same gender no longer criminal. Queer love was now legal, and the scope of LGBTQ+ rights was widened.

But not all legislation has been progressive in totality ever since: the Transgender Persons (Protection of Rights) Act, passed in 2019, was roundly criticised for a variety of factors, from its definition of who is trans to the potential anguish and prejudice it could subject community members to, due to the need to obtain certification from a District Magistrate. Issues lie with older legislation too, some of which patently discriminates against the queer community, such as the anti-begging law in the case of trans people. Tellingly, many laws operate on the male-female binary, thereby invisibilising gender identities that do not fall into this binary. The law often also often conflates sex, gender and gender orientation.

Queering The Law, a project by the Vidhi Centre for Legal Policy, looks at the ways in which queer people can have better legal representation, in order to be able to better access the law and other civic institutions. By focusing on four areas, namely identity, violence, family, and employment, it looks at the need to reform in the context of LGBTQ+ inclusion by identifying discriminatory and exclusionary laws. It also meditates on the ongoing debates about these issues. It focuses on 21 cases between 2014 and 2019 involving trans and non-hetero people "in order to determine areas of contestation where the courts have been asked to implement their rights as recognised in NALSA and Navtej Johar". These cases spanned many issues, such as trans people trying to establish their identity, being terminated from jobs, succession, and violence and the resulting persecution by law enforcement agencies.

The authors, Akshat Agarwal, Diksha Sanyal and Namrata Mukherjee, intend Queering The Law to be a resource to inform conversations on LGBTQ+ inclusion in Indian laws going forward; they don't however, suggest amendments to laws, because they feel these changes must come from the community itself. About the process of research they undertook and the methodology they adopted, Akshat Agarwal says that apart from going through existing literature and debates on queer inclusion in India and other jurisdictions, they also consulted with members from the community to seek feedback on their research.

The project describes the relationship between laws and the politics of gender as being “tense”. This, they say, is because while identities are fluid and change over life, the law tends to solidify them in order to make sense of them. “For instance, the legal framework under the Registration of Births and Deaths Act required infants to be categorised as either male or female. This often happens for the purpose of identity-based welfare entitlements as well. This creates implications for people who identify differently from the identity they were assigned at birth or those who do not identify with any gender identity at all. There is thus need to re-think the significance of gender identities for the law,” co-author Akshat Agarwal explains.

At the Godrej India Culture Lab, where the authors presented the project, they made a poignant point about how sometimes changing the wording of the law doesn’t suffice, that a re-imagining of the law is necessary, for it to be inclusive. Agarwal elaborates on this notion using the example of provisions relating to sexual assault, such as rape. “Making such provisions inclusive cannot merely happen by using neutral pronouns in the place of gendered pronouns, but would also involve re-thinking what kinds of acts these provisions criminalise. For instance, penetration remains central to the existing definition of rape. However, sexual-assault in the LGBT+ context may not just be limited to penetration,” he says.

The case against introducing neutrality in this provision is steeped in a social context and captures a well-defined power dynamic (between cis-hetero men and women); it argues that merely making the provision neutral may not reflect social realities, Agarwal explains. “However, there has been greater consensus on victim neutrality with even the Justice Verma Committee making recommendations along those lines. While these arguments are significant it is also important to acknowledge and address the violence that LGBTQ+ persons face. The way forward would perhaps then be to undertake greater research to understand the nature of violence outside the male-female binary to making a strong case for criminal law reforms. This could be either through making existing provisions neutral or through introducing specific new provisions,” Agarwal added.

Larger conversations about laws that discriminate against queer people are needed, to begin with, says Agarwal. “Often the government and other policy-makers are unaware of the impact of such laws. These conversations can feed into advocacy initiatives to bring about changes at the policy level. The other strategy is to challenge the constitutionality of such discriminatory laws in courts. Challenges to anti-begging laws have proven successful in both the Delhi and Jammu and Kashmir High Courts. Similar challenges have also recently been filed in the Chhattisgarh High Court,” he adds.

"Decriminalisation is an entry point into a host of other civil rights which are ordinarily enjoyed by heterosexual persons and cisgender persons," the authors write. This includes rights that remain out of reach for the queer community, such as marriage, adoption, etc. However, they also note that such a strategy assumes that "mimicking heterosexual lives is the only legitimate means to ensure LGBT+ equality. Such assimilation has been viewed as problematic not only because heterosexual norms of family continue to be deeply patriarchal, but also come at the cost of delegitimising all other forms of intimacy besides the monogamous romantic couple."

The authors also speak about how creative interpretation on the part of lawyers can potentially contribute to the queering process, and to ensuring that queer people have a better chance at winning in court. Drawing from their research, they say that there are a number of instances where queer people have filed cases in High Courts on matters of recruitment, succession and even sexual violence, among others. “In all these cases the courts have interpreted the law in a manner which is consistent with fundamental rights of LGBT+ persons. Legal strategies that focus on creatively interpreting legal provisions to ensure that the rights of LGBT+ people are not violated can thus be extremely useful in the short term. For instance, certain courts have held that provisions in laws which refer to women would also include transgender persons who identify as women,” Agarwal adds.

Do they see queering as an ongoing process, in that until the very framing of laws becomes truly inclusive, legislation will need to be re-examined and changed? Yes, Agarwal says, making some succinct points: “Laws are informed by deep-seated heterosexual assumptions that do not account for non-normative relationships. Law making also often ends up being an insular process that does not account for the realities of the people it affects. Often those who enforce laws are also not adequately sensitised and therefore often create barriers to realising rights.”

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Neerja Deodhar