On the Decriminalization of Homosexuality, India Shows Promise and Struggle
From New York State to Geneva, important progress on the rights of lesbian, gay, bisexual, transgender, and intersex (LGBTI) individuals was made in the past month, reflecting the strength of a growing international movement for equality. In New York, same sex couples achieved the right to marry. And in Geneva, the United Nations Human Rights Council adopted an unprecedented resolution condemning violence and discrimination based on sexual orientation and gender identity.
July 2nd also marked the two-year anniversary of the decriminalization of homosexuality in India, where a Penal Code holdover from the colonial era prohibited sexual acts “against the order of nature” – code words in many countries for consensual sexual acts between same-sex adults. This success should serve as an example for countries that continue to abuse the basic rights and freedoms of their citizens through state-sponsored homophobia. Thanks to decriminalization, LGBTI persons in India can no longer be considered criminals for simply being who they are.
In 2009, New Delhi’s highest court condemned Section 377 of the Indian Penal Code, arguing that "moral indignation, howsoever strong, is not a valid basis for overriding individuals' fundamental rights of dignity and privacy.” This declaration received strong support from rights groups in India and abroad, and added momentum to the gay rights movement in the region. Not only did the Justices overseeing the case declare that Section 377 violated India’s Constitution, but they also went a step further to say that such discrimination flies in the face of India’s tradition of openness and inclusivity. This sentiment – that all people deserve to be treated with dignity and respect – remains at the heart of the LGBTI rights movement.
Unfortunately, such bold action didn’t immediately erase the societal stigma against homosexuality that remains in the country. Earlier today, India’s health minister was forced to backtrack on a statement he made at an HIV/AIDS conference yesterday where he called homosexuality “unnatural” and “a disease.” Though he claims he was merely talking about HIV/AIDS, his comments were clearly targeted toward men who have sex with men. Such homophobia
from a government official reveals the challenges that remain in tackling discrimination based on sexual orientation.
Last month’s UN Human Rights Council resolution offers an important opportunity to examine the extent to which homophobia is institutionalized around the world. Seventy-six countries still criminalize homosexuality, and many regions of the world such as Africa and the Middle East still experience high levels of both official
and societal intolerance against LGBTI individuals. In the same year that India struck down Section 377, for example, parliamentarians in Uganda
introduced a piece of legislation that would impose the death penalty for, what the bill terms, “repeat offenders” and “aggravated homosexuality.” Though the bill has yet to be adopted, its mere introduction fueled bigotry against LGBTI individuals in Uganda.
It is therefore clear that much more remains to be done to ensure that those who suffer from hate crime and discrimination are protected under evolving international human rights standards. Human Rights First applauds the steps that countries like India have taken, and is thrilled to see UN states finally affirm gay rights as human rights, but we remain concerned about the level of intolerance contained in many states’ laws and practices and in the rhetoric of their leaders.