2013: The Best of Times . . . Section 377 and its Worldwide Impact

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A few years ago I wrote a piece about Section 377, part of a code of law drafted by the newly-formed British government of India. Written by the historian Lord Thomas Babington Macaulay, Section 377 decreed that “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 term which may extend to ten years, and shall also be liable to fine . . . Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section.”

 

India’s Section 377 became the model for similar laws in other British colonies in Africa, Asia and Oceania. Though the United Kingdom has long since abolished its own sodomy laws, 35 of its former colonies still have sodomy laws modeled after Section 377: “Half the world’s countries that criminalize homosexual conduct do so because they cling to Victorian morality and colonial laws,” noted Scott Long, director of the Human Rights Watch’s LGBT Rights Division.

In 2009 the Delhi High Court ruled that Section 377 of India’s penal code was unconstitutional. Religious groups appealed that decision to India’s Supreme Court. On December 11 that Supreme Court overturned the 2009 decision, ruling that only the Indian Parliament had the right to change the penal code. All of a sudden, tens of millions of Indian men — Section 377 only applies to male sexual activity — became, once again, potential criminals.

“This verdict is remarkable and bizarre,” social scientist Sanjay Srivastava told the BCC. “How can a court take away a fundamental right which has been already given to people? It is a huge setback for the gay community. And it makes India look thoroughly stupid internationally.” Though obviously disappointed, India’s Naz Foundation, which filed the original lawsuit, vow to fight the decision.

“We feel very let down,” said Naz’s Anand Grover. “But our fight is not over and we will continue to fight for the constitutional right.” “We cannot be forced back into the closet,” Gautam Bhan said. “We are not backing off from our fight against discrimination.”

The ruling by India’s Supreme Court capped a roller coaster year, which brought the worldwide LGBT community many victories and many defeats. This was the year of United States v. Windsor, in which the United States Supreme Court ruled that Section 3 of the Defense Of Marriage Act (DOMA) was unconstitutional. Edith Windsor, the lesbian widow who filed that lawsuit, was second runner up for Time magazine’s Person of the Year, after Pope Francis and whistle blower Edward Snowden. Several U.S. states and foreign countries legalized same-sex marriage, bringing the total up to 16 states (and the District of Columbia) and 16 countries. On the other hand, the Russian Federation continued its homophobic tradition, passing a law that bans the “promotion of homosexuality to minors.” On December 1 voters in Croatia passed a referendum banning gay marriage in the European Union’s newest member. And on the same day India’s Supreme Court made its decision, the High Court of Australia ruled that same-sex marriages in the Australian Capital Territory are invalid. Though it was not as drastic as the decision in India — this ruling only affected 27 same-sex couples — the Australian High Court ruling was nevertheless a setback.

So, was 2013 a good year or a bad year, for LGBT people around the world? To paraphrase Charles Dickens, 2013 was “the best of times and the worst of times.” It all depends on what country you live in. Though LGBT rights advanced in North America, South America, Western Europe, Israel, Japan, New Zealand and (in spite of the High Court decision) Australia, they suffered a big setback in India while stagnating in the Caribbean, Eastern Europe, Africa, the non-Israel Middle East and much of Asia. Even in “liberal” western nations LGBT people continue to suffer from homophobic and transphobic violence and discrimination. And all over the world, in spite of Pope Francis, organized religion continues to be our number one enemy.

What will 2014 be like? It will probably be much like 2013, with its share of victories and defeats. This means that we must continue to fight for our rights, here and everywhere else. We must not let our victories deceive us or our defeats disillusion us. And whatever our personal condition is, we must not forget that whatever happens to our sisters and brothers in other countries affect us as well. We are one human family and we must act accordingly.


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