December 17, 2013 at 3:35 pm EST | by Kathi Wolfe
India reminds us of need to be vigilant
Supreme Court of India, gay news, Washington Blade

Supreme Court of India. (Photo by Legaleagle86; courtesy Wikimedia Commons)

If you’re like me, you’ve come close to being not only out and proud but complacent about being queer. With same-sex weddings, LGBT families and more gay celebs coming out than you can count, it’s easy to feel that worrying about LGBT rights is passe – that homophobia is only a sad memory from back in the day. Until we read in the Blade that on Dec. 11 India’s Supreme Court issued a ruling that criminalized homosexuality. In that decision, as the Blade and other news outlets reported, the top court reinstated an 1861 law that says you can be imprisoned for life for ”carnal intercourse against the order of nature with man, woman or animal.”

In 2009, human rights advocates rejoiced when India’s Delhi High Court  declared this 1861 law, known as Section 377 and enacted when India was a British colony, unconstitutional. The Supreme Court said that the Delhi Court acted wrongly when it overthrew Section 377 and that only India’s Parliament could strike down the law.

The reinstatement of Section 377 is a sucker punch not only to LGBT people in India but to everyone worldwide who believes in human rights. The ruling is a wake-up call to all of us who’ve become a bit too comfortable in our queer skins. Yes, it’s the 21st century. Yet, our human rights – our freedom to be who we truly are – can be set back anywhere – from India (the world’s largest democracy with a population of 1.2 billion) to the United States to Russia to South Africa (where people worry that LGBT rights will be lost with the passing of Nelson Mandela).

It’s hard to imagine what it would be like if the clock were set back 40 or 50 years. Suddenly, we’d return to a pre-Stonewall world where you could be arrested for gay sex and police could harass you for merely appearing to be queer. Yet, that’s where Section 377 leaves LGBT people in India.

“The India Supreme Court has denied my freedom as a gay man, upholding a 153-year-old colonial law that could result in my own imprisonment,” said Tushar Malik a fellow with the Human Rights Campaign’s Global Engagement program and an LGBT advocate in India on the HRC website. “But I refuse to retreat.”

With the Supreme Court ruling, India became the 77th country worldwide to criminalize being LGBT, Malik said.

The Indian Parliament should reform India’s colonial-era sodomy laws, Graeme Reid, director of the LGBT program at Human Rights Watch, emailed the Blade. “The government will need to draft an amendment that decriminalizes same-sex conduct between adults, while preserving protection for male rape. The other option is that the government seek a review by the Supreme Court.”

It’s good that senior Indian government officials have spoken up against criminalizing homosexuality, Reid said, “If not anything else, it will discourage police from abusing the law.”

T. Kumar, international advocacy director, Amnesty International U.S.A., in a telephone interview with the Blade offered some hope that the Indian government would decriminalize homosexuality.

“There is enough support in India to move forward by treating everyone equal despite their sexual orientation,” Kumar said. “… The real India is moving against violence and discrimination against women. This is the next step.”

India has states like the U.S. has, Kumar said. “India’s state governments can pass resolutions against discriminating against segments of the population – such as LGBT people,” he added, “though not binding, these resolutions send a powerful signal. State resolutions have a major impact on the thinking of legislators in Parliament.”

On Dec. 15, thousands worldwide in a Day of Rage protested India’s Supreme Court ruling, reported the Blade. These protests remind us that we can never take our right to love for granted.  We must work to protect our freedom.

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