September 16, 2020
This article is by FP Global Thinkers.
In September 2018, LGBT people in India celebrated after the country’s Supreme Court unanimously struck down a colonial-era ban on gay sex. It was an important moment for LGBT rights that not only reversed a relic of British oppression but also ordered that LGBT Indians be accorded all the protections of their constitution. This was a welcome victory, but it does not necessarily mean that LGBT people in India are fully free or perceived as equal among their fellow citizens—and it underscores how much work remains to be done in the rest of the world to overturn antiquated and repressive anti-gay laws.
Let’s be clear: Criminalizing same-sex relations makes it illegal to be LGBT.
My country, Uganda, still has laws on the books similar to those that were struck down in India—and LGBT people in Uganda continue to face persecution and discrimination. Criminal laws hang over our community like a dark cloud. Individuals live in fear of harassment and prosecution for being who they are. As the Indian Supreme Court explicitly acknowledged, the criminalization of same-sex intimacy brings with it shame and rejection. LGBT people effectively become unapprehended felons and pariahs.
Indian Court’s Decision
The most remarkable part of the Indian court’s decision is that it didn’t just use a universal standard of human rights to decriminalize homosexuality; it also acknowledged the responsibility of the state to help end the stigma attached to being LGBT. The court could have gone even further and emphasized that the Indian government should put in place mechanisms that would allow the reconciliation of shunned LGBT children and their parents. Doing so would help end the practice of parents forcing arranged marriages on those children—something that can lead to trauma and other mental health problems. It would also help end the shocking practice of “corrective rape,” in which families subject their LGBT children to nonconsensual sex.
Who owes us an apology?
“History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries,” Justice Indu Malhotra wrote in her judgment. But one wonders whether these rights include the freedom of marriage or divorce. For true equality to prevail, those rights must be explicitly and fully extended to LGBT people.
India also needs to help reconcile LGBT Indians with their various religious communities; following the court’s decision, many conservative Christian, Muslim, and Hindu leaders, who are often at loggerheads, blasted the ruling as shameful and promised to contest it. Such a reconciliation would right a historic wrong. It was not local religious leaders but British colonialists who introduced these barbaric laws to India. Hinduism, which is the dominant religion in India, was quite accepting of LGBT people before the British introduced Section 377 of the Indian Penal Code in the 1860s, imposing harsh penalties on whoever has “carnal intercourse against the order of nature.” That provision was then extended from India out across the British Empire. It is the reason why most former British colonies are still, to this day, not only hostile to same-sex love but also actively opposed to it.
The Wraps of Colonialism
Uganda has similar laws dating back to the colonial period—and these laws have long been used to abuse the rights of LGBT people through arbitrary arrests and unfair trials. We cannot hold events and trainings in public or private without authorities seeking to arrest us. For the last two years, we have been unable to hold a pride parade; when we tried in 2016, we were brutally arrested by the Ugandan police. Anti-gay laws also empower mob violence, forced evictions, and social exclusion.
Britain today is far less homophobic than it once was. Indeed, the British government is strongly advocating for the decriminalization of LGBT relations in its former colonies—but words and statements aren’t enough. The Commonwealth and the British government must be more active in ending the scourge of homophobia and acknowledge their historical role in fostering it.
Until then, even as we celebrate India’s success, Uganda’s LGBT community won’t have the chance to enjoy the sweet taste of equality.