by Mohan Sundararaj, MPact Director of Public Health Programs
The world woke up this morning to incredibly good news for LGBT rights in India, as the world’s largest democracy overturned a law criminalizing same-sex sexual behavior. The ruling has huge global implications as the sub-continent, which has a total population of over 1 billion people, is estimated to be home to 18% (just less than 1 in 5) of the world’s LGBT population.
The nation’s highest Supreme Court unanimously ruled in favor of LGBT rights, forever dismantling “Section 377,” a 158-year-old British colonial era law that threatened to punish anal intercourse with imprisonment. The ruling states that “Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected” and that this is substantiated by an individual’s right to privacy as stated in the country’s constitution. Thus, the overturning of this anti-sodomy law has much larger implications for the lesbian, gay, bisexual, transgender, and intersex population in India.
The historic judgment among the court’s five members overturns their own 2013 ruling, where a one-member judge re-criminalized homosexuality. The Times of India laid out the complicated history of LGBT criminalization in the country in the adjacent infographic. The law itself was rarely enforced in recent years, however it served politicians, law enforcement officials, religious leaders and the general public a legal opportunity to stigmatize, pathologize and harass India’s LGBT community over the years, further ostracizing and marginalizing this vulnerable group.
MPact’s Steering Committee Member and one of India’s prominent HIV activists, Gautam Yadav of Humsafar Trust, testified on the monumental ruling saying, “I am happy that once again I will be living without Section 377 as I was living previously from July 2009 to Dec 2013. The verdict against section 377 will be a huge support to deal with the crisis cases and the fight for the human rights of the LGBTQ community. All the people under the LGBTQ+ umbrella can live and ask legal assistance without the fear of being prosecuted under Section 377.”
Conservatism has been in an upward trend around the world, with the space for civil society shrinking and incidences in violence against LGBT people rising unchecked. Against this backdrop, India’s landmark ruling is a victory not only for gay rights but for human rights worldwide. The abolishment of Section 377 in India is proof that community-led advocacy and coalition-based approaches work. It goes without saying that today’s victory would not have been possible without the blood, sweat and tears from tireless local activists and lawyers, their allies and their families.
The ruling in India is but a first step in the right direction as much work lies ahead of us. This includes realizing universal health coverage by facilitating access to safe, affordable and high-quality sexual health services; ensuring access to the full range of fundamental rights available to all of India’s citizens and promoting acceptance and integration of LGBT Indians and the LGBT Indian Diaspora fully with their families and communities.
Criminalization of same-sex behavior, as noted by India’s top court, is “irrational” and “indefensible.” It is not only a gross violation of human rights, a recent expert consensus statement stated that the use of criminal law is unscientific, and merely exacerbates gay men’s vulnerability and HIV risk by driving them underground. Not just in India, but globally, gay and bisexual men, especially ethnic minorities and men of color, continue to shoulder high rates of HIV and STI prevalence and incidence. As MPact continues its fight for gay rights and health around the world, this ruling brings us that much closer. Join us today in celebrating this important moment in history.
MPact Global Action for Gay Men’s Health and Rights (formerly known as MSMGF or The Global Forum on MSM & HIV) was founded in 2006 by a group of activists concerned about the disproportionate HIV disease burden shouldered by men who have sex with men. MPact works at the intersection of sexual health and human rights, and is linked to more than 120 community-based organizations in 62 countries who are leading innovative solutions to the challenges faced by gay and bisexual men around the world.
Featured photo credit: Nick Johnson, Bangalor Gay Pride Parade via Flickr