Sexual Identity in India - Session 2, Part 1

Session 1, Part 1
Session 1, Part 2
Session 2, Part 1
Session 2, Part 2

Session 2

Schneider: Thank you and welcome back to our roundtable on sexual identity health in India. I am going to, there have been number of comments and questions posted on Facebook and tweeted to us. So I’ll go over few of them that we’re hoping to address in this next session, as well as couple of themes from those comments that we would like to also focus on. Let me first start with the themes. One of the topics that hasn’t been discussed much yet is than on hijra and transgender so we are trying to do this a little bit in this next session. We’re also going to talk more about penal code 377 and the decriminalization of homosexuality in India both its origins and contemporary debates. We will talk a little bit about regional city variation; India has quite diverse gay identities, so we’ll talk about that a bit. There was lot of comments on the biomedical peice and interventions and how that will play out in India, we’ll maybe finish up with that. Now to some specific questions, one of them was that is the politics of consumerism in India and the portrayal of homosexuality in as consumerist way an empowering one, there was a comment about the portrayal of homosexuality in Dostana, and one of the audience member thought they didn’t feel it was very positive because the lead characters were heterosexual males pretending to be homosexual. Perhaps we can talk a little more about Philip’s friend who thought it was great and is this an incrementalism, what does that mean? Do we take small steps, you know, and celebrate them? One of the other comments was the role of internet, and are activist using the internet as a venue to reach gay men and MSM in India and I think this also goes into the idea of the hierarchy that’s been created between kind of a gay, internet savy cosmopolitan Indian MSM versus some of the MSMs Philip was mentioning that are in the drop in centers more middle, lower class in sex venues. So I think we can focus on some of those issues as well. So with that I think we will start with, so group hold me to the task, of you, of know going over these points but we will start with penal code 377.

Arondekar: Ok what I will do is just give a little bit of historical prospective to where we are now and then Sanjay will sort of walk us through the current tussles over the repeal. I mean as everyone knows section 377 refers to a statute in the Indian penal code which criminalizes unnatural behavior, unnatural behavior that refers to sexual conduct. The Indian Penal Code was conceived in 1861 by the Law Commission headed by Lord McCauly, one of the major figures. But what’s interesting and often forgotten about section 377 is that it was conceived under a larger category which was called “Offences Against The Body” which included other crimes such as rape, forceful kidnapping, etc. Now this, the only reason I am mentioning this is because it’s important to understand where it emerged out of because that’s where the current debates are circling around. That’s the first thing, and the second thing which I think is also very interesting for us in our contemporary rights, activism etc. is that the Indian Penal code’s offenses against the bodies section was the most heavenly contested and debated within the English sort of reform commissions who were trying to figure out these laws because the problem was that the colonial difference, i.e. the difference between them versus us, the colonizes and the colonized, was organized around the idea that all natives are sexually perverse, right, so the idea is how do you legislate something that’s everywhere. So the idea of having a section that would penalize same-sex they wouldn’t use the word same-sex they use “unnatural conduct” became interesting for judicial courts because they had to legislate against for something that they were also arguing that was everywhere. So the way they decided to argue it was in the first few cases, and I spent good amount of time thinking about this and working on this, the first 25- 30 cases that are filed against Section 377 in 1870s are around bestiality which is men usually having sex with other men, sorry with animals, the men with men comes much later and the other figuration which is more familiar to us is the men that are arrested are wearing women’s clothes. That’s the 2nd piece, and the 3rd piece is that it appears in lots of medical jurisprudence journals and they are usually cases of situational homosexuality i.e in prisons. Which is something that I have not heard anything about here, which is of course very familiar to those of us who work in the US is a discourse of homosexuality in the prisons but it was part of the early legislation around... Now the reason why I am mentioning these things is because of the difficulty of legislating something that is everywhere but cannot be organized and 2nd is the question around rape and protection of minors because the kidnapping of young girls was also attached to this offences against the body. So some of the reasons why feminist in the earlier versions of this debate were anxious about the repeal was falsely read as them being homophobic, etc. but was more around what other legislation could they find which would provide protection for minors, etc. So I think that question continues to circulate in some ways and has not taken up as much room in the current debates but is a residue of the earlier question. And of course fast forward to the current moment, but one more thing is that Section 377, the penal code was in circulation all across British Colony, so not just in India of course but in former British colonies in Africa and of course in Trinidad, in the Caribbean and here. So I think it’s also worth thinking about whats going on in those places in relationships to this question. And the current repeal is organized around revisiting this history and speaking about why it’s important to get rid of law that was conceived within the model of colonial immoral state. So I think that piece is very important here. So the activist are not just saying well we need to get rid of 377 because we have gay people

in India and its natural to be gay within the Indian culture etc. however you parse the idea of gay, but it’s also because they are saying this is a law that was conceived within the model of Colonial disenfranchisement so why should we embrace something when we’ve gotten rid of all other laws that were problematic right, like the laws around the uniform civil code etc., the debates around that have also been about writing against the colonial state. So perhaps Sanjay can fill us in now on the more recent events in Delhi and…

Srivastava: Yeah I think that’s important context, in terms of, for example, the Criminal Tribes Law (CTA) has been done away with, right, and when this 377 was being developed, the criminal tribes thought was also being discussed, certain categories of people who were designated as naturally criminal.

Arondekar: Like ______________ would be one of the usual, yeah.

Srivastava: That’s right. I think briefly as everyone knows you know the immediate provocation for this was an NGO saying if we have this law it hampers our public work in terms of preventing, or anti-AIDS/HIV work. That was the most immediate provocation, the immediate provocation wasn’t itself about broader issues of identities and stuff, that got built into the larger argument quite rightly. The other thing is of course it’s been read down rather than being gotten rid of and the reason for that is there were many groups such as people who work with children who said that children may be sodomized for example. So we need to retain aspects of 377 because young boys, for example, as they put it, may be sodomized by men. So many groups working with children in particular said it cannot be gotten rid of because there are certain aspects to it that we need to consider. So it’s been read down rather than decriminalized. The 3rd thing is that the decriminalization is not the same thing as deregulation because in everyday life it is still regulated through informal means. So it’s been decriminalized but there’s still huge amounts of deregulation. Well in everyday for example, gay people in public spaces are still regulated either by the police, so even though it’s been decriminalized in everyday, that still continues to happen. The other thing is that it’s something that the Delhi High Court has said, so it’s not a pan-India thing. So although it existed, 377 existed across India, and Delhi High Court is not the apex court, it’s the Supreme Court, so its applicable to Delhi, I don’t know whether, what happens in future whether it gets passed on to other states. And finally you know as we discussed earlier because you know, in fact the judges broadened the category, the activist who filled the case, the petition, the judges actually reflected on it and they were actually quite good and they broadened the category, they had lots of discussions about private and public. But nevertheless because they often borrowed from case studies, I can’t remember this case study from the US where the judge said, you know, the intimacy between men is as natural as the intimacy between men and women because after all no one is forcing them, so there is no money involved for example. So the Indian judges borrowed some of these arguments said well, you know, homosexuality is natural after all, because these two people are doing it voluntarily. And because of that line of reasoning that homosexual intimacy is as natural as heterosexual intimacy because no one’s forcing anyone, the idea of money got into it, because automatically there was an argument about what is unnatural kind of sex. One is well if someone pays you well that’s bad right. But no one is paying anyone here so homosexual intimacy is as natural. So then of course as people have argued that that brings in a problem, that it sets up a hierarchy of good sexuality and bad sexuality. So middle class homosexual behavior becomes the equivalent of heterosexual middleclass behavior in India. And then of course the privacy argument that… although the judges did say that in fact you can be a private person in a public place, which is an argument which wasn’t in the earlier petition. And actually the judges were almost, I thought they were fabulous in many ways given the constraints of legality and law. And there was a long discussion about the fact that even in public space, how you might, activities could well be seen as private. So the distinction between private and public is incorrect they said. But that was the basis of the judgment, the basis of the discussion, and of course the notion of who does it leave out, of course, the larger problem of actually visualizing lesbianism as an activity itself within Indian sexual discourse is something that has also gotten…

Arondekar: There is at least one case in 1975 which was filed and dropped by the father of a woman who accused the women she was having sex with under Section 377 and the reason was he found a phallic object, like a dildo, in the bedroom of his daughter, and the court actually reviewed the case and then dropped it because the presence of a phallic object constituted some form that could be recognized by the state. The other caveat, which I’ll add and then I’ll end, is the, what’s interesting about what Sanjay’s saying which is very important is that within the United States, and Lawrence V. Texas which was the big case that everyone talks about, which supposedly restored privacy rights to gay people, was very much organized not around aducating about the moral question of homosexuality, whether its natural or unnatural in fact lot of judges demurred on the natural, and they were more interested on the individual right to privacy. So there are two different things here that, within the NAZ foundation initiated repeal which was then taken on by many other organizations. The individual, language of individuality drops away, so there is more language of collectivity which I think is also worth thinking about within Indian

context versus the US context. The US context is very much driven by the language of individual rights, whereas the 377 debates in India have hinged away from that, a little bit.

Mazzarella: I was thinking it might be really useful to continue on from that to hear a little bit from Stuart on comparative contextualization because here we have these issues around the natural the unnatural, the public the private, and also the questions of the relationship between say something like, considering something unnatural and considering it obscene, so forth as legal categories. I am not expecting you to respond to all of this, but it seems like there would be some interesting comparative issues to be put on the table.

Michaels: Well and I think that there was already beginning and that was, and I am assuming that you were saying and I think the correction that Anjali was making is correct that the discussion at the US case its got to be Lawrence versus Texas wasn’t to say that it was natural. The one thing I would add that really strikes me when you look at the evolution in the US from Bowers vs. Hardwick that actually left the criminalization of sodomy, homosexual sodomy in place when it had been criminalized independent of sex, to Lawrence vs. Texas which got rid of homosexual sodomy across the board, was also the emphasis on the family context and privacy of the home, which was something that you were raising before and I think is a huge subject in terms of understanding homosexuality and sexuality, the extent to which our discussions about that are organized by these notions about marriage, family and so on. But it is interesting and I think that in the US, which I think is part of the what William was raising is, the echoes are kind of amazing, I mean, you know, the discussion that this is a law from 1860s and then your description of how it is discussed has tremendous parallels in terms of I mean homosexuality as a medical forensic legal category its very similar, and obviously not unrelated. But the question also around the question of naturalness also refers back to a kind of, the transformation of religious categories to the medical and biological categories – moving from sin to crime to health or a medical diagnosis or a mental disorder. And I think, the way this took place in US very much was, somehow when Bowers versus Texas was debated it was all about sodomy as an act and a focus and a phobia about that act as being unnatural, un-Christian and so on and not part of our culture, to over a period of time I think a part of the larger political struggle around gay rights and the recognition of gays as a political as opposed to, really, a sexual group. You then could have a discussion that focused on that they’re the same... but similarly in terms of an emphasis on a very normative version. So I am not sure how exactly the exclusions work , I mean its very interesting to hear you talk about who really is clearly covered by this and who isn’t really being covered and protected by it and we have the same problems in the US and this is a huge debate within the movement is as we emphasize here, you know the emphasis on gay marriage as being the issue and solution to all our problems does a simple cognitive of thing, yeah we’re saving this group and is this the group of basically white middle class and who isn’t really being protected in this right.

Karnik: Can I add something to that because it seems to me one way of considering that is that, you know it was interesting when you were talking about the family and that being one unit of analysis right, is this a distinguish between providing rights to people who have a home, right, who have a privacy, who can use that space, and there was who we might consider as homeless because you know a lot of the youth that I work with on the streets, you know, they engage in sex work for survival at times, and clearly you know Sanjay the way you were talking about it I think refers to that nexus. So you know I am very sensitive to that, you know, who is visible who is invisible, right, and so I think the idea of home, or the homeless or those without a home, or for those whom home is a much more difficult issue, may be a line to think about.

Srivastava: The judges actually discussed this, much more than I think the original petition has been able to, and how the act of doing something in public that is intimate creates a space that can make the public into a private. So that they blurred those boundaries, and they were great.

Cohen: I am just wondering as a question because you have mentioned a question of presence and absence in these debates, I mean where, if there was an earlier regime of publicity, hijras were always in film, were central to how certain kinds of sexual difference were made public and so forth. There’s been series of very diverse regionally and in many other ways, relation between variety of kinar, kothi, hijra, variously transgender communities and the NGOs and the community organizations over the last 15 years. But I am just wondering where have hijras been at all, in the 377 debate, this is one question. The other question for 377 is, I don’t want just the two of you but anyone, is where have been the voices of efforts to not to read up the law again so I am thinking of Baba Ram Dev the yoga.. (Anjali: The infinite faster) who most recently tried to hold a major event in New Delhi on the Ram Lila grounds, and the congress government cracked down, so he got away in women’s clothes so raised an interesting and unexpected question. But how to make sense of something like Ram Dev, and that’s one question, and where is hijra in this?

Srivastava: When the law was being formulated as Anjali was pointing out, one of things also formulating is how to ban, they were formulating laws around adoption, for example. The Hijras were not to adopt, the whole succession acts were being planned in 1870s. So hijras even in this particular case have always been always a problematic issue, problematic category, not because these are bad people who have filled this petition but because the history of class in India, and that’s precisely the problem. And I think the judges recognized that to their credit, and these are two judges who have been very, in Indian terms progressive because their partners work in the NGO sectors they had lot feedback and that kind of stuff. But it’s ironic because Naz’s petition, and Naz does work with all kinds of people including the hijras, so its ironic that hijras kind of left out, in some ways, they weren’t addressed as directly but there are other kinds of middle class politics to that as well.

Arondekar : I think one way to answer that question and I’d like to hear what Philip has to say about this in terms of your grass roots works, is that, I mean too bad Gayatri’s not here, Gayatri Reddy who’s wonderful book with respect to sex is about preceisely this question, is perhaps one way to think about the absence as being explained to the fact that hijras despite their disenfranchisement in a certain way have never been invisible from the production of Indian history or historiography broadly speaking, they’ve always been present, and they have sort of representatives elected etc. one could do that version but that’s less interesting. So I think what’s complicated about 377, it’s speaking to an invisibility that is not admissible, even if you admit it to be wrong, right, I mean the argument around 377, like the health minister this simply isn’t here , its not part of who we are. Whereas nobody even the right or left would argue that hijras are not part and parcel of our “culture”, right, what value we assign to them can be heavily debated but no one is going to question their presence. As you see in any mega city or in any area of India there is always a very vibrant constituency of hijras walking around in public spaces, and they are regulated against, for sure, but their presence can be felt. So thats one way I think that, and you see that in earlier Colonial model too, one of the reasons why hijras are not legislated against in the sodomy statutes is because there are too many of them, right and they’re visibly present and they are endorsed by the colonial rulers as well as by their collaborators i.e. the kings, the zamindar, etc. who give them money etc. So that would be one, you know, interesting way. But what would be interesting to hear from you Philip perhaps, would be, you know, in these drop in centers that you run etc. what is the distinction made between communities who identity as hijras versus communities which identify as trans or, which are often read as same, but lot of hijra communities, say for example in Maharashtra, do not identify as trans, for them the identification with hijra carries a particular religious, historical, political weight that trans does not. And of course the project is the same so I was wondering what your experiences were.

Kumar: In the seven districts that I was working, Anjali, the hijra population was kind of confined to, you know, certain pockets. Like in Guntur we had considerable number of hijra population, again in Vyzack we had considerable number of hijra population. Whereas kind of missing in West Godavari in other places, they were ther,e but not in considerable numbers. So at the DICs, the politics between the MSMs and hijras or the transsexual and transvestite or other things, it was not much, I should say, honestly, because as HIV intervention, you know, goal or the person that we were doing, our goal was to get all these members that are at high risk, you know, and make them aware of what the services that the program was offering and how they can take these services. So therefore, there was not much of tension though, but the identity, like I started of earlier, you know, they were aware of certain terminologies, but transvestite for example, would be completely a foreign thing you know. Especially in the areas that I was working in it was completely, like, rural, East Godavari, four distracts in, you know, Eastern Ghats, they know, they travel population there. So the awareness on these kind of nuances was little less.

Mazzarella: I’d like to pick up on something that Sanjay raised earlier which is that in a sense we can talk about 377 and sort of what gets recognized what doesn’t get recognized, the sort of categorical, if you like, structure of the law itself. But Sanjay also pointed out that in a way, irrespective of what happens with 377 in the Indian Penal Code, there are all kinds of other forms of regulations that continue to operate whether we are talking about just the informal practical everyday forms of interaction or policing or whether we are talking about say municipal enactments that could be in the name of public order, or indecency or something else. So I mean in a sense the question also is, you know, what kind of significance does the status of something like 377 have, vis a vis the larger public field of regulation.

Srivastava: That’s a nice point because there are many other laws which actually can be applied to homosexuals, could be an obscenity or whatever, so its quite interesting that this is of course a really significant judgment but its interesting to think about other contexts that, the number of laws you actually apply, as you could imagine in other countries as well.

Schneider: And they could be more aggressive, you know, because, as a backlash in fact. When we were in the field right after 377 we saw more arrests we saw more harassment by the police, hopefully there’s couple of my students watching from Hyderabad, and they’re seeing that now as well.

Arondekar: Really the one place where this is really taking up is in bar girls controversy in places like Mumbai because of the line it skirts between obscenity, solicitation and I think a lot of feminist have been asking, you know, with the focus on 377 what is being lost in these other arenas which are in fact impacting a large labor force and, you know, so the focus on MSM also is one which we need to push against if it is not aligned with these other questions because bar girls are the tenuous, purgatory category of neither here nor there. Sorry I interrupted, Philip.

Kumar: I am just curious to know from John, that these are risks under section 377?

Schneider: No no under the other, usual kinds…

Srivastava: And I think John is right in fact that it may be done with great aggression now, and that’s really an important point.

Kumar: Because in our intervention also for the four years that I was working with the MSM community, we have seen many arrests, okay, but never on 377.

Srivastava: Vagrancy, for example, is always used [laughter].

Kumar: Yeah you know holding ganja, or creating public nuisance, you know, those kinds of things. Though the police knew that this person was, kind of selling sex to a man, you know, it could be an arrest for 377, but I think probably their knowledge was less and they did not know how to deal with that.

Karnik: So I think, I was going to play along with that, I think that brings up the challenge for the researchers and also people who do clinical or public health interventions in this space, that by virtue of doing that work we are making these behaviors more visible right. And I think there is a certain amount of risk involved in that and I think that’s where we have to give consideration to, you know, the lived experience of the people who are facing those everyday realities. And not that that would necessarily stop the research, but I think it would add an element of caution and at least be cognoscente that we are things more visible in that process.

Srivastava: The point that Lawrence said is interesting, about, you know, the people who were protesting against this, what that has done is as Lawrence says, actually brought about kind of religious harmony because you have Christian groups, Hindu groups, and Muslim groups, and various other groups who have all gotten together and filled a petition together. Groups who are otherwise completely opposed to each other have formed this anti-377 platform. Saying “This is what all of our religions say to us.”

Mazzarella: In a certain sense this also raises the question of networking, right, and here we have an unexpected form of solidarity that arises in the face of something that appears to be oppressive from a number of different standpoints. And perhaps that would also be a way of linking back to one of the things that Niranjan was saying is that, you know, if you are dealing with populations that in one way or another are marginal or displaced or don’t have a lot of recourse to the, should we say middle class forms of civic self-protection, is there any scope in new form of networking, for instance, for the kind of populations that you deal with? I mean access to making connections through say the internet or other means of…

Karnik: I think it a great question, I often hesitate to say that something new is happening because anytime somebody says that somebody finds something old that mirrors it, so, but I would say it’s an interesting moment to think about it because I think young people are using social media and social networks in ways that are different perhaps, in previous generations, or that present new opportunities to do that, and I think its connecting them, it’s a way to access their world, it obviously has certain risk elements to it all, in terms of them, but it also potentially has benefits in terms of creating these solidarities and new understandings that people pointing to. I think it’s an interesting opportunity.

Cohen: This is novel, and I apologize to the author because I don’t remember the author’s name, it’s in English its by young man who wrote it from Punjab, and he is writing about spending time in chat rooms, I believe in Chandigarh, and its encountering a kind of gay world, and coming in as young man with a passion to be liberal and a passioned focus on questions

of rights, and whole set of things that become very important to his sense of what it is to grow up as an ethical person and enter the world, and as he encounter variety of other young men primarily, and the later some women, who identify in very different ways sexually, he finds his passion tested. The question is can he really have these friendships, and the fact as the novel emerges, you know, and gets some circulation in English language readerships across India is interesting. So there are series of novels at least that stage social networks as providing the site where a whole new set of ethical challenges organized around rights are being created.

Arondekar: Well there is also a kind of emergent network of pornographic videos that are uploaded, so for example when you’re taking about media representations and you know whether its Nikhil and I, My Brother Nikhil sorry, or Dunno Y or whatever, those are more publically recognizable, that have to go through censorship ,that’s one of the reason the film hasn’t been released. But if you just, I mean you can do this, you go home and Google Dunno Y on Youtube you’ll find a terrible trailer, but on the side, the block, you’ll find a bunch of videos that are homemade porn videos by South Asian men. So there’s that, you know, form, but it’s a network, it’s a network through this film which you cannot see, which is being censored because it has one little coitus scene, but then you have on this right hand side links to all sorts of places where you can, and I mean it doesn’t matter, you know, so then the relevance of whether those men are gay or not, is you know, it’s like cruising the web here for gay pornography where you get a teaser for two minutes so that you can buy the nine minute video, whatever, right so there is those forms as well. But of course again the absence of gender, differently gendered bodies is noticeable, right, these are gay men in very conventional sense of the word, they aren’t MTFs or FTMs, or trans-ley dressed or however you code that, and definitely no women. So that’s another way in which I think the access and availability of social networking websites makes media consumption less modulated and less regulated around the kinds of lines that we are used to seeing. And I think that’s something that’s going to be worth while watching.

Mazzarella: Well, I mean, you know, I know this is something Sanjay has thoughts about so I want to put it on the table, in some ways we’re talking about things like the internet and its capacity to mobilize new networks, new communities and so forth, one other things that’s is typically missing from a more, shall we say policy oriented discourse is any serious consideration of pleasure. So when you, Anjali, bring up the question of pornography, and we can have all kinds of conversations about that, but it’s clear that people use the internet in order to access pornography and the component of pleasure of how people come to inhabit a space like the internet through things like sexually explicit representations of various kinds, is absolutely crucial to thinking about how people form networks.

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