In a landmark decision, India’s Supreme Court ruled in 2017 that citizens have a constitutional right to privacy, which includes sexual orientation. The court also ruled in 2014 that citizens can choose to identify as a “third gender” with legal recognition. What is the significance of these rulings for LGBT rights in India?

They’re each in their own ways monumental rulings. To begin with, the 2017 ruling doesn’t directly have anything to do with LGBT rights, but at the same time, actually engages questions of sexual orientation. It is focused on the question of what constitutes privacy. The judges take that question up in a substantive way, and they basically say that everybody is entitled to the right of privacy. Because of previous rulings, the very question of the right to privacy requires interpretation; it is not a settled question. The 2017 ruling settles that question. The connection to LGBT rights is that the ruling says everyone, regardless of sexual orientation, has the right to privacy and that it’s not just a spatially defined privacy – the right travels. In that sense, it’s really about autonomy and personhood. [The ruling] becomes monumental because it paves the way for the overturning of a previous judgment, namely the Kaushal decision of 2013, which recriminalized homosexuality. In 2013, the Supreme Court overturned a previous decision issued by the Delhi High Court in 2009 that had decriminalized homosexuality. Since then, a curative petition is being reviewed by the Supreme Court. Typically, Supreme Court decisions are binding, but they can be reconsidered under exceptional circumstances, such as the gross miscarriage of justice. It was under those terms, that the Supreme Court agreed to review the Kaushal decision. Even as that was under way, a separate decision came out in 2017, which had to do with biometric identity questions. As I noted, it took up the question of privacy in that context. By saying that every person has that right to privacy and specifically taking up the question of sexual orientation, the 2017 decision has paved the way for reconsidering the Kaushal judgment through the curative process. We don’t know if the justices overseeing the curative decision will step in line with their colleagues, who have upheld the right to privacy, but it is really important because it has set a precedent. It’s going to be much harder to ignore the precedent around privacy now and to reinstate the Kaushal decision.

What are the main challenges the LGBT community faces in India?

They run the gamut, from people being vulnerable to losing their jobs once it becomes known how they identify, or being thrown out of their apartment, to not being given accommodation, or being asked to leave certain premises. There is absolutely no layer of protection from any kind of discrimination. When you combine this with social discrimination, legal discrimination, and the lack of any kind of protection, those situations become pretty dire. Moreover, the vulnerability to law enforcement has been tremendous for LGBT groups, particularly for those who are working-class, Dalit or Muslim. When the police come into contact with vulnerable Muslims or working-class people who are sexual minorities, they can be especially harsh and violent with these groups. Caste, religion, class and gender play a role in the challenges people face. More feminine presenting people or people who are perceived as women, even as they don’t necessarily identify as such, oftentimes become vulnerable to policing, as well as to local communities.

Demands for the repeal of Section 377 of the Indian Penal Code, a law which criminalizes homosexuality, have garnered national and international attention in recent years. How has the debate surrounding Section 377 affected public opinion toward the LGBT community in India?

The recent attempt to decriminalize homosexuality dates back to 2001. The stretched out legal campaign has made the police more aware of that law, which can be both good and bad. It can potentially lead to [the law] being used more than it was before. At the same time, there have been LGBT groups, especially in urban settings, that have been doing police sensitivity training programs to make police more aware, and to try to offset some of the homophobia. In some case, [the programs] have been effective. These realities exist simultaneously. The extra-legal policing, extortion and violence coexist alongside greater sensitivity. This started even before the writ petition was filed in the Delhi High Court in 2001 to decriminalize homosexuality. However, once the petition became widely known, it started to get more press, and it became instrumental to changing existing social and cultural perspectives. Media coverage surrounding LGBT issues shifted after the mid-1990s. The coverage was not always positive, and it could be quite inflammatory. However, alongside the more puerile coverage, there were also more thoughtful reports. In the last 15 plus years, there’s been a sea change in the cultural landscape at a national level. The English-language media have played an important role in all of this. While homophobia and transphobia exist, there has also been a softening of public opinion against homosexuality, especially among the urban youth, not just referring to the big cities, but also the second-tier cities. For younger people, it’s less of an issue; they don’t feel as strongly as older people. So much of this is about awareness, informing people and normalizing that landscape.

In your book Sexual States: Governance and the Struggle over the Antisodomy Law in India, you argue that Section 377 is one of many laws and policies that regulate homosexuality in India. Could you briefly describe some of the other ways homosexuality is regulated in India and why Section 377 in particular has garnered so much attention?

Section 377 was created in 1860 and was a part of an attempt to create a Victorian sexual, gender normative order. As a result of this law, a problem was created where it had not existed. There was no previous law within the Indian legal systems that had anything to do with homosexuality or criminalizing homosexuality. It was very much a colonial intervention. We lived with this law through the rest of the colonial period and it became part of the postcolonial India legal code. Even though the law has not really been used in any systematic way as far as case law is concerned, it has been wielded in other ways. It has been used as a threat and, most importantly, it has criminalized same-sex sexual activity symbolically, even when the two people consent. Section 377 was also used as a barrier to getting legal rights and protections for LGBT communities. The thinking was that if someone wanted to introduce a law saying that lesbian or gay people should be protected from discrimination at their place of employment, the legislatures or the courts would immediately say “homosexuality is criminalized in Indian law.” In other words, in order to get to any rights or protections, first Section 377 has to be undone. Therefore, the emphasis is on 377. At the same time, the reality on the ground is that people who identify as or who are perceived as LGBT are often harassed in terms of law enforcement and policing on the basis of other laws. Section 377 has a higher threshold, so the police have to catch you in the act and they have to take you for a medical examination. Most frequently, LGBT people are being harassed under various other kinds of laws with lower thresholds. For example, you can be much more easily booked under the public nuisance law. It is very typical for the police to use of the Immoral Traffic Prevention Act, which now includes people who identify as kothi or hijra in its purview. It is much easier for the police to say that a person is soliciting sex in a public park and book that person [under the Traffic Prevention Act], than under 377.

How do you explain the Supreme Court’s recognition of gender fluidity while the state criminalizes same-sex activities?

The rulings are not only contradictory, but paradoxical, and they came soon after each other. The 2013 decision recriminalizing homosexuality was delivered in December and it was only a few months later that the Supreme Court upheld the right of people who self-identify as transgender. If you look at the contradiction on its surface, one could say that it really exemplifies the arbitrariness of law and the judicial system. But that is not very satisfactory. If you think about it more carefully, one of the tensions playing out between those two positions is a widely shared sense that gender fluidity – or to exist outside of the binary gender system – is something that has a history within the Indian social and cultural landscape. There’s a history of hijras, or people who identify outside of the binary gender system. The thinking is that even though people who identify as hijra have experienced discrimination and violence, there’s something Indian about them. At the same time, homosexuality or same-sex sexual activity is seen as an import and it’s associated with modernity and the West. It’s also associated with the influence of Islam which was coming in, according to a Hindu-centric way of thinking, from the outside. In these ways, homosexuality is somehow seen as foreign, which is really problematic. Certainly there’s plenty of evidence to the contrary. This is how the Kaushal ruling can be understood; it asserts that homosexuality is not part of India’s cultural landscape, history, or traditions. In contrast, the Supreme Court ruling on transgender persons is essentially saying, “we have transgender people and there is such a long history of discrimination that we really need to deal with in order to ensure their rights and include them in the modern Indian landscape.”

Beyond demanding the repeal of Section 377, what other ways are activists working to secure LGBT rights and increase public support for LGBT issues?

Activists have long been doing far more than this. The legal battle was just one aspect of [the activism] and then it became a rallying point and got attention in the media. So much is going on, from literature and poetry and artistic interventions, to sensitivity programs and funding for NGOs who do outreach to vulnerable communities. There are people who identify as hijra who have started their own NGOs. There’s much activism going on in just about every aspect of society. Cities like Mumbai, Delhi and Bangalore have vital, vibrant gay and lesbian communities. Activism in rural areas is hard to generalize because there is so much variance in the country. Every so often you hear about two women who are getting married and, depending on which part of the country they are in and which particular communities they are a part of, they sometimes are being accepted. In other cases, they are being hounded by their families and subject to great violence. Different areas are calling for different strategies, so there isn’t one single rural response.