Step Up the Pace Against Section 377 in India

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In December 2013, the Indian Supreme Court upheld Section 377 of the Indian Penal Code recriminalizing homosexuality in the country. The months since the judgement have been a time of uncertainty for the LGBT community about what lies ahead. The recent general elections saw political parties taking various positions on LGBT rights which resulted in heated debates in the media. Just last week in a surprise move, the new Health Minister spoke in support of gay rights. Through all this, the curative petition challenging the Supreme Court judgement is waiting to be heard.

The reaction from the LGBT community has ranged from anger and anguish to action inspiring the formation of new queer collectives and new projects responding to the needs of the community. The environment is a mixture of mistrust and determination, from watching one’s back to stepping up the tempo. This week, the International AIDS Conference is meeting in Melbourne, Australia to understand and discuss, among other issues, the HIV response for the communities of men who have sex with men and transgenders. Alliance India will be highlighting our “207 against 377” campaign that brings together the 207 organisations implementing Pehchan to fight Section 377.

As activists, community groups, and AIDS organizations come together to discuss important health and social issues facing sexual and gender minorities, it’s time to pause and take a hard look at what Section 377 means. It’s a law which oppresses LGBT communities for sure, but it is also an impediment to the realisation of basic human rights in the world’s largest democracy. Doing away with this law will influence other struggles against social injustice in a vastly complex country where people are oppressed not only because of their sexual orientation, but also their caste, class, religion and gender. Reading down 377 will be a victory for every citizen of India and for every human being across the world.

Please join Alliance India in the ‘207 against 377’ campaign. Visit our booth (#616) at AIDS 2014 to learn more.

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Shaleen Rakesh is a gay rights activist and was instrumental in filing the Section 377 petition on behalf of Naz Foundation (India) Trust in 2001. Shaleen manages the ‘207 against 377’ campaign at India HIV/AIDS Alliance, where he also serves as Director: Technical Support. The campaign brings together the 207 organizations implementing the Pehchan programme on a common platform to undertake advocacy at national, state and district levels to protest against the 11th December 2013 Supreme Court judgment upholding constitutional validity of Section 377 of the Indian Penal Code thereby recriminalizing same-sex sexual behaviour. 

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“Do we count?” A question for AIDS 2014 and beyond

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Every two years, researchers, implementers, policy makers, and community activists come together at the International AIDS Conference to take stock of the pandemic: Where are we now? Where have we been? Where are we heading? Discoveries are heralded and strategies dissected. There are always more questions than answers, but there is one question that needs to be answered at AIDS 2014 and beyond: Do we count?

Do the lives of men who have sex with men, people who inject drugs, sex workers, transgenders and even people living with HIV — especially those from these key affected populations — really count? On a basic level, the answer must be a resounding and unequivocal “YES!” Every human life counts. Every life has equal value. Yet, while an affirmative chorus may echo in the halls of the conference, easy rhetoric will not be enough.

Data analysis by UNAIDS indicates that as many as half of all new HIV infections globally occur in key populations. This should come as no surprise. The disproportional concentration of the virus in these groups is hardly news, shaping the trajectory of the epidemic and driving the complex stigma that still defines HIV/AIDS.

Though we are frequently reminded that we are in the era of evidence-based public health, data-driven decision-making, and performance-based metrics, the evidence on HIV vulnerability in key populations is routinely ignored. We aren’t even counted in many places. Surveillance fails to find us. Not surprisingly, funding for HIV services responsive to our needs remains slight.

Slowly but surely the message is getting through. The large players in the global HIV response are lining up to affirm their commitment to these (new?) priorities. On July 11, 2014, the World Health Organisation released a long-awaited and rapidly developed publication, Consolidated Guidelines on HIV Prevention, Diagnosis, Treatment and Care for Key Populations. It is an impressive document written and reviewed by a Who’s Who of experts working with and representing these groups.

There can be no doubt about the sincerity or good intentions of the guidelines’ authors, and this document has the potential to influence policy and practice globally. Yet questions persist in the willingness of institutions — governments, donors, development agencies and civil society — to embrace their fundamental responsibility to the health of key populations and invest accordingly in a sustained and broad-based effort to end the unremitting toll of HIV and AIDS on our lives.

New technical guidelines and progressive policies can be applauded, but to make the difference intended, they must be applied. In order for them to be applied, investments must be targeted to fill these gaps and expanded to match the scale of our need. The proof of commitment will be in the expansion of funding invested in programming for key populations. Now is the time to prove we count.

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The author of this blog, James Robertson, is Executive Director of India HIV/AIDS Alliance  in New Delhi.

Alliance India brings together committed organisations and communities to support sustained responses to HIV in India. Complementing the Indian national programme, we work through capacity building, knowledge sharing, technical support and advocacy. In collaboration with partners across India, Alliance India supports the delivery of effective, innovative, community-based HIV programmes to key populations affected by the epidemic.

LGBT Intolerance: A Common Bond between Nigeria and India

The fight against 377 will continue in India even as many countries adopt regressive laws.

The fight against 377 will continue in India even as many countries adopt regressive laws.

Five years ago today – July 2, 2009 – was a historic day for India’s gay movement. On that day, the Delhi High Court decriminalised homosexuality. This ruling marked a sea change, a transformative moment when a history of intolerance was at last ended.

Though correct, the judgment was sadly impermanent, being overturned by the Indian Supreme Court last December, reinstating an archaic law from the British colonial era that criminalized homosexuality as “against the order of nature.” A month later, Nigerian President Goodluck Jonathan signed the controversial Same-Sex Marriage Prohibition Bill, which bans not only same-sex marriage, but also homosexual behavior, organisations that advocate for gay rights, and even gatherings of members of the LGBT community.

Current laws in both India and Nigeria disregard the basic rights of each country’s citizens. Bisi Alimi, the first Nigerian to come out on national television there, said, “The difference between India and Nigeria is that while in India, it’s the penal code regarding homosexual behaviour that has been reinstated, Nigeria has actually gone through a process of constitutional criminalisation of homosexuality and homosexual relationships.”

While the criminalisation of homosexuality in Nigeria is certainly more sweeping than India, these laws are not confined to simply policing private spaces. The law in India has been often used to justify harassment of sexual and gender minorities in public. India is also experiencing an uptick in cases of violence against the LGBT community, although most go unreported, and for the ones that make news, there is little justice. Nigerian rights activists are already documenting similar injustices and violence.

“The advent of this new law has brought about a system legitimising brutalities. We have seen an increase in witch hunting of LGBT people, accusing them based on assumption. Five people have been charged so far, and many awaiting trials,” Bisi adds.

Some have compared the hatred of homosexuality of Nigerians to their love for football, the only two issues on which the country stands united. A recent public poll in the country shows that 98% of Nigerians think homosexuality is wrong. This contrasts with India where, at least, the educated middle class shows some support for gay rights. A recent poll conducted among Hindustan Times readers showed 80% opposed criminalization of homosexuality.

LGBT activists in Nigeria, like most of their colleagues in Africa, operate in extremely hostile and challenging environments. They remain under-resourced and severely isolated. India’s LGBT movement has greater access to resources and more support, although even some queer rights activists still struggle to be “out.”

“Now with the law, provision of services to LGBT people – including HIV services – is illegal. That means charities doing this work will have to close, and many have started folding up already. This will not only affect HIV prevention services but also treatment. Many men who need antiretroviral therapy will not be able to access it easily, and if they do at all, it will have to be done underground,” says Bisi.

Despite differences in the nature and magnitude of the homophobia, the impact of these laws reaches beyond LGBT communities in both Nigeria and India, impeding the work of civil society, public health workers and human rights defenders. Above all, what is happening in Nigeria, India and unfortunately too many other countries is a severe blow to the momentum of the global LGBT movement and is a huge cause of concern for human rights around the world.

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The author of this post is Shaleen Rakesh, a gay rights activist and was instrumental in filing the Section 377 petition on behalf of Naz Foundation (India) Trust in 2001. Shaleen manages the ‘207 against 377’ campaign at India HIV/AIDS Alliance, where he also serves as Director: Technical Support. The campaign brings together the 207 organizations implementing the Pehchan programme on a common platform to undertake advocacy at national, state and district levels to protest against the 11th December 2013 Supreme Court judgment upholding constitutional validity of Section 377 of the Indian Penal Code thereby recriminalizing same-sex sexual behaviour. 

India HIV/AIDS Alliance (Alliance India) is a diverse partnership that brings together committed organisations and communities to support sustained responses to HIV in India. Complementing the Indian national programme, Alliance India works through capacity building, knowledge sharing, technical support and advocacy. Through our network of partners, Alliance India supports the delivery of effective, innovative, community-based HIV programmes to key populations affected by the epidemic.

Trans-formation to End Discrimination (#IDAHOT 2014)

Alliance India’s Simran Shaikh, a hijra and AIDS activist, speaks out against discrimination and for LGBT equality.

Alliance India’s Simran Shaikh, a hijra and AIDS activist, speaks out against discrimination and for LGBT equality.

May 17th marks International Day Against Homophobia and Transphobia (IDAHOT) around the world. I am sitting in my office at Alliance India in New Delhi as I gather my thoughts on the stigma and discrimination I have faced my whole life because I subvert gender conventions. My journey from a Parsi boy to a transgender activist has been filled with discrimination, stigma, violence, silent screams, and also triumphs. (Read more about Simran’s life.)

To honour this global day that celebrates sexual and gender diversity, I want to share my thoughts on the recent Indian Supreme Court judgement protecting the rights of transgenders.

On April 15th this year, the Supreme Court judgment recognised the third gender in India and granting legal recognition to Indians who identify as neither male nor female – to those of us those who identify as transgender women and men or as hijras. “Discrimination is no longer my favourite word,” I yelled with pride as my friends joined in the celebrations after this landmark judgment. The ruling guarantees the nation’s transgender population essential rights, including equal access to education and employment In India.

But will this stop people from staring at me on Delhi Metro trains, autorickshaw wallahs refusing me rides, and fellow passengers moving away from me on buses? Why do they do this you wonder? Because my existence bothers them. I don’t seem to fit the boxes they have neatly packed themselves into. I refuse to look and behave the way they expect. I offend their sensibilities by being me. Can a judgment validating my existence change all this? I don’t know, but it feels like we’re on the right track.

Homophobia is an aversion towards those whose sexual behavior differs from the heteronormative, and transphobia is an aversion to those whose gender identities transcend the male-female gender binary. Negative attitudes manifest in many ways, from contempt, fear and hatred to verbal abuse, harassment, and violence. Are these attitudes rational? In most cases,they are rooted in a belief that our differences are against the order of nature.

Over India’s history, hijras have been a revered community, but when this region was colonised by the British, regressive laws were put in place outlawing homosexuality and criminalising these communities. Sixty-seven years after independence from British rule, the third gender has been given legal protection in India. I don’t know how many more years will pass before the repeal of Section 377 of the Indian Penal Code that criminalises consensual same-sex sexual behavior.

While the struggle to end discriminatory laws continues, I am deeply troubled by the everyday injustices faced by my LGBT brothers and sisters. We need to fight the internalised homophobia and transphobia in our communities and transform our fear of our own gender and sexual identities. We must celebrate who we are. Violence and discrimination must not be tolerated anymore. It cannot be a crime to exist. To deny our right to exist is the crime!

I am a proud member of the hijra community. In my teens, rejected by my family, I was given shelter by a hijra when all other doors were closed to me. Even today there are few professional options for someone like me. As a member of the Alliance India team, I’m fortunate to be doing professional work in HIV/AIDS that can have such a great impact on the transgender community in India. I dream of a day when all who are like me are given equal opportunities to thrive. Equal opportunity on paper must be put into practice. Changing attitudes will open minds, and with open minds, we can trans-form the world.

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The author of this post, Simran Shaikh, is a Programme Officer for the Pehchan programme at India HIV/AIDS Alliance in New Delhi.

With support from the Global Fund, Pehchan builds the capacity of 200 community-based organisations (CBOs) for men who have sex with men (MSM), transgenders and hijras in 17 states in India to be more effective partners in the government’s HIV prevention programme. By supporting the development of strong CBOs, Pehchan addresses some of the capacity gaps that have often prevented CBOs from receiving government funding for much-needed HIV programming. Named Pehchan which in Hindi means ‘identity’, ‘recognition’ or ‘acknowledgement,’ this programme is implemented by India HIV/AIDS Alliance in consortium with Humsafar Trust, PNRO, SAATHII, Sangama, Alliance India Andhra Pradesh, and SIAAP and will reach more than 450,000 MSM, transgenders and hijras by 2015. It is the Global Fund’s largest single-country grant to date focused on the HIV response for vulnerable sexual minorities.

‘207 against 377’: A Step Towards Reclaiming Our Rights

The national Pehchan consultation on Section 377 was attended by more than 100 community stakeholders and activists, including prominent transgender leader Lakshmi Narayan Tripathi. (Photo by India HIV/AIDS Alliance)

The national Pehchan consultation on Section 377 was attended by more than 100 community stakeholders and activists, including prominent transgender leader Lakshmi Narayan Tripathi. (Photo by India HIV/AIDS Alliance)

December 11th, 2013 was a black day in the history of India’s human rights movement. On this day, the Supreme Court of India set aside the historic judgment of Delhi High Court in 2009 and, by affirming the constitutionality of Section 377 of the Indian Penal Code, recriminalized same-sex sexual behavior. The judgment, best described as ‘regressive’ and ‘derogatory’, noted that lesbian, gay, bisexual and transgender (LGBT) people are a ‘miniscule minority’ and our rights are ‘so-called’.

The Constitution of India guarantees a life of equality and dignity to every citizen, irrespective of caste, creed, religion and sex, but the Supreme Court lost the opportunity to protect the rights of sexual and gender minorities. The denial has made India’s LGBT community yet more vulnerable to stigma, harassment and violence. The court dealt another blow to the community in early 2014 when it also rejected all petitions to review the judgment.

The judgment was a huge setback to a marginalized and often hidden community that was beginning to come out of the closet after the 2009 decision, but the spirit to fight back and reclaim our rights is now even stronger. There has been a concerted effort by a range of civil society organisations, such as Voices Against 377, Lawyers Collective and Naz Foundation (India) among others, to make sure that this community momentum leads toward a coherent movement that will in time overturn the Supreme Court’s backward judgment.

The Global Fund-supported Pehchan programme is joining the challenge. Pehchan works with MSM, transgender and hijra (MTH) communities on issues of HIV and health in 17 states of India through consortium partners including India HIV/AIDS Alliance, Humsafar Trust, SAATHII, Sangama, SIAAP, Pehchan North Region Office (PNRO) and Alliance India Andhra Pradesh. In collaboration with the 200 community-based organisation supported under Pehchan, these 207 partners leveraged their collective passion and determination and launched the 207 against 377’ campaign.

Through the campaign, partner organisations will reach out to various stakeholders including political parties, religious leaders, media and educational institutions to sensitise them on the challenges facing LGBT communities. The campaign will contribute to the public discourse on Section 377 and will highlight how the law undermines the fundamental rights of LGBT people in India. The campaign will influence general attitudes and government policies so as to protect the wellbeing and dignity of LGBT Indians.

To initiate this national effort, Pehchan organized a daylong national consultation on February 6th that was attended by LGBT community members and leaders from across India including Ashok Row Kavi, Lakshmi Narayan Tripathi and Manohar Elavarthi. Speakers emphasized the importance of political engagement and the involvement of religious leaders. It was agreed that there is a need for a clear strategic plan of action against the Supreme Court judgment.

During the consultation, community members voiced their concerns about Section 377. Arvind Narain from the Alternative Law Forum provided a legal overview of the judgment and Anand Grover from Lawyers Collective discussed the next legal steps. The consultation generated an active dialogue and generated multiple ideas to build advocacy momentum. As next steps, the consultation identified priority actions to move advocacy forward:

  • Documentation of cases of stigma, discrimination and violence faced by the LGBT community;
  • Sensitization of judges at district, state and national level;
  • Dialogue with religious leaders and political parties;
  • Engagement of the media to highlight the challenges caused by the judgment;
  • Regular rallies; and
  • Linking activities to other rights movements in India.

The ‘207 against 377’ campaign will also organize 17 state-level consultations – one in each Pehchan state – on Section 377 and 200 district-level consultations through Pehchan CBOs.

This is just the beginning. The national campaign will reach out to the LGBT community and stakeholders at all levels. We will keep you updated on progress.

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The author of this post, Yadavendra Singh, is Advocacy Manager at India HIV/AIDS Alliance in New Delhi.

With support from the Global FundPehchan builds the capacity of 200 community-based organisations (CBOs) for men who have sex with men (MSM), transgenders and hijras in 17 states in India to be more effective partners in the government’s HIV prevention programme. By supporting the development of strong CBOs, Pehchan will address some of the capacity gaps that have often prevented CBOs from receiving government funding for much-needed HIV programming. Named Pehchan which in Hindi means ‘identity’, ‘recognition’ or ‘acknowledgement,’ this programme is implemented by India HIV/AIDS Alliance in consortium with Humsafar Trust, PNRO,  SAATHIISangama, and SIAAP and will reach 453,750 MSM, transgenders and hijras by 2015. It is the Global Fund’s largest single-country grant to date focused on the HIV response for vulnerable sexual minorities.

The Long Road Ahead

_MG_5246On 11 December 2013, the streets outside the Supreme Court of India thronged with a dazed crowd, hugging, sobbing and not quite sure what had happened. Inside the hushed courtroom, the judges had just passed a devastating ruling. Lesbians, gays, bisexual and transgender (LGBT) people in India had once again been labelled criminals. Section 377, the 152-year-old colonial law that banned gay sex, had been upheld by the Highest Court of Law of India saying that amending or repealing Section 377 should be a matter left to Parliament, not the judiciary.

For gay and lesbian Indians, the Supreme Court verdict means that they become vulnerable to harassment all over again. In India, domestic partnership and adoption—things that straight people take for granted—cannot even be discussed by activists because Section 377 makes it illegal to engage in gay sex. Under the colonial law, men could be jailed for 10 years for having sex with men, an act which was classed as an ‘unnatural offence’ along with paedophilia and bestiality. How can one talk about rights when the legal framework makes you a criminal?

In 2001, on behalf of the Naz Foundation (India) Trust and with the help of the NGO Lawyers Collective, I began to put together the public interest litigation against Section 377. Apart from just coming out and shouting from the rooftops about our human rights, trying to change the law was the only thing we could do. The everyday harassment of gay men by police and thugs also strengthened my resolve to fight for this cause. Although gay men are rarely prosecuted under Section 377, they are often intimidated or exploited because of it.

Once, while I was coordinating the Naz Foundation’s programme for men who have sex with men’ (MSM), a whole group of our clients were badly beaten up. They were walking home from a support meeting when they were attacked by some street boys with iron bars and hockey sticks. Many of them got their heads smashed that night and had to be taken to the hospital. We knew who did it. I wanted to make a police complaint but we could not because of the law. The police had a history of raiding groups who worked with gay men and of rounding up and arresting outreach workers. We were afraid. The men who were beaten up were also afraid to speak out. They were not ready to own up to being gay publicly; they thought they would be criminalised. In the end we made no complaint.

I had begun my journey to becoming a gay rights activist when, as an 11-year-old schoolboy in Delhi, I realised I was attracted to men. I grew up surrounded by a ‘conspiracy of silence’, in which nobody even spoke of the possibility of homosexuality. I would have been happy to hear something I could latch onto or fight with, but there was just silence—a mind-numbing and suffocating silence. There was this hypocrisy—it’s okay to do what you want to do in the bedroom but you do not talk about it in the living room. I found this appalling.

I got into gay activism in my early twenties. I realized that voicing my feelings openly began to heal the years of silence and oppression that I had faced as a gay boy growing up. But before I could go public, I had to tell my mother. After having kept my sexuality secret from family and friends for a decade I came out to my mum, whose matter of fact reply was such a delightful relief for me. She said simply, “So what?”

Most gay Indians do not have the privilege of being born to such liberal parents. After confiding in my family, I began working with gay organisations, starting with the Humsafar Trust in Mumbai and then Naz in Delhi. I became an open gay rights activist. I wrote a magazine column. I did training workshops and seminars. I was vociferous in the media. I organised protests and did work with the National Human Rights Commission on the psychiatric mistreatment of homosexual patients by the medical fraternity.

Gay men are more than fifteen times more likely to contract HIV than the average Indian, and many groups lobbied for Section 377 to be overturned on the grounds that it pushes gay men underground, increasing vulnerability to HIV. The National AIDS Control Organisation (NACO), the governmental leading the response to the epidemic in India, came out against Section 377 in 2006, arguing that the law made HIV prevention more difficult. The then Health Minister of India Shri Anbumani Ramadoss and many AIDS organisations, including the India HIV/AIDS Alliance where I now work as a Director, also called for the law to be abolished in order to protect public health. Our consistent efforts did lead to a sweet victory (now turned sour) when Section 377’s criminalisation of consensual sex between adults was declared unconstitutional by the Delhi High Court in July 2009. Constitutional morality had prevailed upon public morality, but this victory was short-lived.

The 2009 ruling had a huge impact, opening the floodgates of demand for social acceptance by LGBT people. Cities including Delhi and Mumbai have held gay pride marches; young gay people and their families are being interviewed by journalists on primetime television; Bollywood films now have gay characters. Bombay Dost, a gay magazine, has been re-launched and is no longer sold furtively wrapped in brown paper. This cultural shift gave us some degree of comfort to believe that the general population was ready for real social change. But there was plenty of opposition too. Religious groups, leaders of the BJP (the Hindu nationalist party), and hundreds of millions of ordinary Indians, especially those in rural areas, still find homosexuality unacceptable.

This social discrimination will be much harder to change now that the law again upholds it instead of denigrating it. In small towns of India, it is still not easy for people to reveal their sexual orientation to their family. Even in Delhi, young gay men need guidance and support to come out. Gay men succumb to the social pressure around them and keep their sexuality secret. When I was in my late teens I asked a man I met at a cruising spot whether he would ever get married (to a woman). “I already am,” he replied, “Isn’t everyone?”

But despite these challenges, things can improve if we choose to believe in ourselves. When I chose to come out and start working as a gay rights activist, I used the very stigma which tried to oppress gay men as a weapon to create my own life of freedom and help others along the way. Today I am not only a political activist working on sexuality issues but also a writer on the subject. My sexuality, a source of anxiety in my early years, has defined, quite successfully, who I am and what I have chosen to do with my life.

And even as I write this, the Government of India has appealed to the apex court seeking a review of its judgment on Section 377, saying that ruling falls foul of the principles of equality and liberty. Let us hope that all our rights will once again be preserved.

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The author of this post, Shaleen Rakesh, serves as Director of Technical Support at India HIV/AIDS Alliance. He initiated the fight against Section 377 of Indian Penal Code while on staff at the Naz Foundation (India) Trust in 2001. A collection of his poems,The Lion and The Antler, was recently published.

A version of this blog was published on Citizen News Service and Asian Tribune in December 2013.