Homophobia compasses a range of negative attitudes and feelings towards homosexuality or people who are identified or perceived as being lesbian, gay, bisexual or transgender. It has been defined as contempt, prejudice, aversion, hatred or antipathy, may be based on irrational fear and ignorance, and is also related to religious beliefs. Homophobia is observable in critical and hostile behaviour such as discrimination and violence on the basis of sexual orientation that are non heterosexual.
Section 377 of the british colonial penal code criminalized all sexual acts “against the order of nature”. The law was used to prosecute people engaging in oral and anal sex along with homosexual activity. The penal code remains in many former colonies and has been used to criminalize third gender people, such as the apwint in myanmar.
Although most colonies have since gained independence through statehood since section 377 was implemented, it still remains in the Penal Codes of Malaysia, Singapore, Pakistan, Bangladesh, Myanmar and Jamaica. Section 377 of the Indian Penal Code is a section of the Indian penal code introduced in 1861 during the British rule of India modelled on the buggery act of 1533, it makes sexual activities “against the order of nature” illegal.
HISTORY OF SECTION 377
In colonial legislations in India, transgender people were referred to as ‘eunuchs,' a highly stigmatising and derogatory name. Historically, the British were the first to implement legislation discriminating based on gender identification, with the 1897 modification to the Criminal Tribes Act of 1873, which applied specifically to ‘Eunuchs.' In 1897, a specific clause for the inclusion of ‘eunuchs' was added to the scope of this act.
“Eunuchs” were defined in this law as “[A]ll persons of the male sex who admit themselves, or on medical inspection clearly appear, to be impotent,” and
“Local governments were required to keep a register of the names and residences of all eunuchs who were “reasonably suspected of kidnapping or castrating children, or of committing offenders under Section 377 of the IPC, or of abetting crimes.
The Criminal Tribes Act compelled ‘eunuchs' to register with local authorities and barred them from being a guardian to any minor, making a gift or bequest, or adopting a son. For breaching these regulations, they may face up to two years in jail. 'Eunuchs' who kept youngsters under the age of 16 in their care may face up to two years in jail.
It was forbidden for ‘eunuchs' to appear in a public street or venue ‘dressed or adorned like a lady.' They were not allowed to dance, perform music, or participate in any public exhibitions.
Despite all of these laws that criminalised transgender people, there was no large transgender rights movement in the country that questioned or campaigned against these laws.
The actual legal struggle for LGBTI rights began in 2001, when Lawyers Collective filed a case in the Delhi High Court challenging the validity of Section 377. This was not the first time Section 377 has been called into question.
The Supreme Court Has Undergone Significant Changes
In 2014, all of this changed. In April 2014, a Bench Of the supreme court led by Justices K.S. Radhakrishnan and A.K. Sikri issued a decision in National Legal Services Authority v. Union of India (“NALSA”) holding that
Transgender people have the constitutional right to self-identify as male, female, or transgender even without medical re-assignment and the right to express their chosen gender identity. The Supreme Court ruled in NALSA that the right to life, dignity, and autonomy included the right to one's gender identity and sexual orientation.
The NALSA decision also provided fresh grounds, and therefore new hope, for reviving the Section 377 lawsuit. Two new petitions were filed under Article 32 of the constitution in 2016.
Thereafter in 2017, came another big judgment by the Supreme Court on the right to privacy in Puttaswamy v. Union of India.
In 2018, at a time when the LGBTQIA+ and transgender movements had gained widespread social recognition and the community was waiting for a Supreme Court decision, the Superior Court held in Navtej Johar that Section 377 was illegitimate to the extent that it criminalises consensual relationships. The Supreme Court of India declared on September 6, 2018, that the enforcement of Section 377 to consentual gay intercourse between adults was unconstitutional.
The conclusion
Today, gay and lesbian groups and researchers are grappling with the legacy of modern and premodern sexual ideologies that continue to compete for supremacy in many locations.
The position of homosexual and lesbian persons today serves as an indicator of democratic countries' readiness to follow through on their self-proclaimed values of ensuring equality and freedom of their inhabitants functioning as individuals, in families, and in communities.
What a surprise that a country we believe to be advanced has pushed us back when it comes to understanding humanity.
They pushed us back, and it took us years to embrace what was always accepted in India. It is not far from the truth to say that transgender battles for equality are leading and have achieved success in converting the feminist cause in India as well, because they have changed our perceptions of sexual identity and simply opened our minds to gender expression that does not conform to mainstream gender stereotypes. In order for India to have a fully equal future, we must acknowledge that all genders are equal.
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