Dynamic Duo: How a Lawyer Couple is Paving the Road for LGBTQ+ Rights in India

Section 377 under the India Penal Code hungover LGBTQ+ lives for years, criminalizing their very existence to exist. Lawyers Menaka Guruswamy and Arundhati Katju fought to change that—and won. 

Pride flag in New Delhi, India. Nishta Sharma. Unsplash.

Pride flag in New Delhi, India. Nishta Sharma. Unsplash.

Since 1861, when India was under British colonial rule, there was a section of the India Penal Code that crimilized homosexualtiy as it was “against the order of nature”. In 2013, protestors fought for the code to be recognized as unconstitutional in the eyes of the law, but in a historic case titled Suresh Kumar Koushal vs. Naz Foundation, the Bench stated “We hold that Section 377 does not suffer from… unconstitutionality and the declaration made by the Division Bench of the High Court is legally unsustainable.” Although they would not mark it unconstitutional, the Bench also stated, “Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 from the statute book or amend it as per the suggestion made by Attorney-General G.E. Vahanvati.” To put in more simple terms, the Bench wanted to redirect who made the decision, and stated the matter should be decided by Parliament, itself, not just the judiciary. 

In 2016, the case was revisited by three Court members and they decided to pass it on to a five-member court decision. It was not until a year later when the LGTBQ+ community of India saw results. In 2017, in the Puttuswamy case, the Court ruled that “The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21” - a historic decision which overruled a previous case that said there is no right to privacy in India. The Court also found that “sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.” Essentially, they condemned discrimintion and give validity to the rights of the LGTBQ+ community. 

It wasn’t until September 2018, though, when the Court ruled “in so far as it criminalises consensual sexual conduct between adults of the same sex” in the Navtej Singh Johar v. Union of India  case. According to an article in the Guardian, chief justice Dipak Misra stated that “Criminalising carnal intercourse under section 377 Indian penal code is irrational, indefensible and manifestly arbitrary”. Misra goes on to say “Social exclusion, identity seclusion and isolation from the social mainstream are still the stark realities faced by individuals today, and it is only when each and every individual is liberated from the shackles of such bondage … that we can call ourselves a truly free society.” 

 Now, a year later, two lawyers who worked on dismantling Section 377 came out as a couple. In an interview with CNN’s Fareed Zakaria, Menaka Guruswamy and Arundhati Katju announced that they were a couple. Ms. Guruswamy stated that they fought so hard because "That was when [they] decided that [they] would never let the LGBT Indians be invisible in any courtroom". 

The couple’s decision to come out was met with raved support, one user on Twitter congratulated them and added, “Personal is indeed political”. Which is true - queer people anywhere are responsible for queer people everywhere because to fight for the rights the community deserves, the community must do it as a unit, rather than individually.

Menaka Guruswamy and Arundhati Katju’s accomplishments are not limited by the strides they have made with Section 377, but also with the visibility they have given to the LGBTQ+ community - in India and across the world. They represent the strength and power the LBGTQ+ community has when they preserve despite the setbacks.






OLIVIA HAMMOND is an undergraduate at Emerson College in Boston, Massachusetts. She studies Creative Writing, with minors in Sociology/Anthropology and Marketing. She has travelled to seven different countries, most recently studying abroad this past summer in the Netherlands. She has a passion for words, traveling, and learning in any form.

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Inside the Network of Mormon Moms Fighting for Their LGBTQ Children

Growing up in the Church of Jesus Christ of Latter-day Saints can be an isolating experience for LGBTQ+ youth. Current Mormon doctrine doesn’t have a place for those who identify as LGBTQ+, or any guidance or support for young adults navigating their sexuality. Many face unforgiving ideologies that teach them to be celibate, or to “pray the gay away.” Furthermore, the state of Utah has the highest suicide rate among children ages 10-17, a statistic that is especially alarming to parents. Within this culture are the Mama Dragons, a fiercely loving support group of mothers that provides open ears and open arms to LGBTQ+ youth and families in the Mormon community. Comprised of Mormon, post-Mormon and never-Mormon women, the support group offers mothers of LGBTQ+ children an outlet and a community. Together, this grassroots group of mothers is breathing fire to protect their kids, writing a new chapter in a community of faith.

What We Can Learn From an Indonesian Ethnicity that Recognizes Five Genders

Bissu, or transgender priests, are one of five genders recognized by the Bugis.  Reuters

Bissu, or transgender priests, are one of five genders recognized by the Bugis. Reuters

On June 13, when a judge in Oregon allowed a person to legally choose neither sex and be classified as “nonbinary,” transgender activists rejoiced. It’s thought to be the first ruling of its kind in a country that, until now, has required that people mark “male” or “female” on official identity documents.

The small victory comes in the wake of a controversial new law in North Carolina that prevents transgender people from using public restrooms that do not match the sex on their birth certificates.

The conflict rooted in these recent policies is nothing new; for years, people have been asking questions about whether the “sex” we are born with should dictate things like which public facilities we can use, what to tick on our passport application and who’s eligible to play on particular sports teams.

But what if gender were viewed the same way sex researcher Alfred Kinsey famously depicted sexuality – as something along a sliding scale?

In fact, there’s an ethnic group in South Sulawesi, Indonesia – the Bugis – that views gender this way. For my Ph.D. research, I lived in South Sulawesi in the late 1990s to learn more about the Bugis’ various ways of understanding sex and gender. I eventually detailed these conceptualizations in my book “Gender Diversity in Indonesia.”

Does society dictate our gender?

For many thinkers, such as gender theorist Judith Butler, requiring everyone to choose between the “female” and “male” toilet is absurd because there is no such thing as sex to begin with.

According to this strain of thinking, sex doesn’t mean anything until we become engendered and start performing “sex” through our dress, our walk, our talk. In other words, having a penis means nothing before society starts telling you that if you have one you shouldn’t wear a skirt (well, unless it’s a kilt).

Nonetheless, most talk about sex as if everyone on the planet was born either female or male. Gender theorists like Butler would argue that humans are far too complex and diverse to enable all seven billion of us to be evenly split into one of two camps.

This comes across most clearly in how doctors treat children born with “indeterminate” sex (such as those born with androgen insensitivity syndromehypospadias or Klinefelter syndrome). In cases where a child’s sex is indeterminate, doctors used to simply measure the appendage to see if the clitoris was too long – and therefore, must be labeled a penis – or vice versa. Such moves arbitrarily forced a child under the umbrella of one sex or the other, rather than letting the child grow naturally with their body.

Gender on a spectrum

Perhaps a more useful way to think about sex is to see sex as a spectrum.

While all societies are highly and diversely gendered, with specific roles for women and men, there are also certain societies – or, at least, individuals within societies – who have nuanced understandings of the relationship between sex (our physical bodies), gender (what culture makes of those bodies) and sexuality (which kinds of bodies we desire).

Indonesia may be in the press for terror attacks and executions, but it’s actually a very tolerant country. In fact, Indonesia is the world’s fourth-largest democracy, and furthermore, unlike North Carolina, it currently has no anti-LGBT policy. Moreover, Indonesians can select “transgender” (waria) on their identity card (although given the recent, unprecedented wave of violence against LGBT people, this may change).

The Bugis are the largest ethnic group in South Sulawesi, numbering around three million people. Most Bugis are Muslim, but there are many pre-Islamic rituals that continue to be honored in Bugis culture, which include distinct views of gender and sexuality.

Their language offers five terms referencing various combinations of sex, gender and sexuality: makkunrai (“female women”), oroani (“male men”), calalai (“female men”), calabai (“male women”) and bissu (“transgender priests”). These definitions are not exact, but suffice.

During the early part of my Ph.D. research, I was talking with a man who, despite having no formal education, was a critical social thinker.

As I was puzzling about how Bugis might conceptualize sex, gender and sexuality, he pointed out to me that I was mistaken in thinking that there were just two discrete sexes, female and male. Rather, he told me that we are all on a spectrum:

Imagine someone is here at this end of a line and that they are, what would you call it, XX, and then you travel along this line until you get to the other end, and that’s XY. But along this line are all sorts of people with all sorts of different makeups and characters.

This spectrum of sex is a good way of thinking about the complexity and diversity of humans. When sex is viewed through this lens, North Carolina’s law prohibiting people from choosing which toilet they can use sounds arbitrary, forcing people to fit into spaces that might conflict with their identities.

SHARYN GRAHAM DAVIES is an Associate Professor of Social Sciences at Auckland University of Technology.

THIS ARTICLE WAS ORIGINALLY PUBLISHED ON THE CONVERSATION

Invisible Children's "KONY 2012"

This short film created by the nonprofit Invisible Children was released on March 5, 2012 and became the most viral video of all time. It reached 1.2 million views in 2012 making it the #1 top nonprofit video of the year. The film's purpose was to promote a "STOP KONY" movement, making Ugandan cult and militia leader, indicted war criminal and International Criminal Court fugitive Joseph Kony, globally known so that he would be arrested. The campaign resulted in a resolution by the US Senate and contributed to the decision to send troops by the African Union. The film was highly controversial. What do you think?

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THAILAND: Our Daughters For Sale

High in the hills of Thailand are villages where selling children for profit—not for survival—is commonplace. While the government would prefer to say that no such problem exists—one organization stands in their way. The Children's Organization of Southeast Asia (COSA) is working on a new method to stem the tide of child sex trafficking in northern Thailand. While most other organizations 'rescue' children who have already been sold and been victimized. In villages where satellite dishes and other amenities have taken the place of sold children, COSA is working to educate villagers on the benefits of not selling children—they are working on an individual basis to solve the problem for each child before it happens.

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