Anti-gay ruling in India sparks fears of historical rewind

As Medha, a 28-year-old bixsexual fashion stylist living in Mumbai, heard the news that the Indian Supreme Court had recriminalized homosexuality, all she could do was think back.

Medha – who did not want her full name used because of the still-potent stigma that being gay carries in India – said that after all the progress her country had made over the past few years, the court’s decision Wednesday felt like a step back in time.

“It was a surprise. Mass media had become more friendly. There are now movies that have gay-friendly characters, and the general public was gaining acceptance,” she said. “Now, all of a sudden, a guy decides it’s de-legalized. Why are we stepping back now?”

It is a question that has troubled activists, scholars, and other supporters of gay rights in India over the last few days: Why, after years of increased openness about sexuality, did the country seem to be reversing course?

LGBT Indians say the population has made tremendous strides in the past decade toward more outward acceptance of gay and gender-non-conforming cultures. But India’s history of homophobia – partially rooted in British colonial times – combined with what many Indians see as undue influence from Western gay culture, has left the country with an often-conflicted sense of identity in facing the issue. That, academics and LGBT Indians say, makes the path toward gay rights a particularly complicated one in India.

Still, many Indians felt that – until Wednesday – the country was moving forward.

A landmark 2009 Supreme Court ruling, the result of a seven-year battle waged by LGBT nonprofit Naz India, overturned an 1861 British-imposed law that criminalized “intercourse against the order of nature.”   

India also has a long history of alternative sexualities, most notably the sometimes-revered, sometimes-feared, but always-public class of Hijra, transgender Indians who often work on the margins of society, many as sex workers. Hijras seemed to be gaining wider acceptance in the country as well.

The recent gains in LGBT rights are why many described Wednesday’s ruling as a complete shock.

They said it has reminded them that, for all the progress that has been made, life as an LGBT Indian is still a daily struggle between feelings of pride and fear. And that for all of the country’s unique history of alternative sexual identity, there’s also a strong history of legalized homophobia and discomfort over the taboo.

“It’s only when things are legal that you can talk to your family and your friends openly,” Medha said, adding that the 2009 decision “was the first step forward, and now it’s gone back.”

Sexual orientation is a tough topic in India. Before the 2009 ruling, being gay was virtually undiscussed amongst most Indian families, according to LGBT Indians.

“When it comes to dealing with a family it’s definitely very difficult,” said Shalaka, a 31-year-old software programmer from Bangalore, who also did not want her full name used for fear of being outed as gay. “People from the family do not understand what sexual orientation is, or how important it is. The majority of people don’t even talk openly about sex, let alone sexual orientation.”

But Shalaka and others said things were slowly getting better in India before Wednesday’s ruling.  

Joe Zachariah, a 33-year-old gay business consultant in Mumbai, said the court’s 2009 decision allowed people to discuss gay rights more openly.  The businesses Zachariah worked with started recognizing the need for diversity seminars and anti-discrimination policies.

But Wednesday’s ruling proved that for all India’s progress, the country still has a long way to go in acceptance of LGBT people.

Experts say overcoming the stigma of being gay poses a unique set of challenges in India, where both modern homophobia and modern gay rights are largely Western imports.

The Supreme Court’s 98-page decision last week was interspersed with language that conflated LGBT acceptance with an intrusion of non-Indian culture.

“We have grave doubts about the expediency of transplanting Western experience in our country,” said one legal text cited in the decision.

Scholars say as gay marriage gains popularity in countries like the United States, France, and India’s former colonizer, the United Kingdom, there’s a growing association in India with gay rights and foreign influence.

“Gay pride parades, the rainbow flag – all of those things are influenced and borrowed from the gay rights movement outside of India,” said Gayatri Gopinath, the director of the Asian/Pacific/American Studies program at New York University. “I think there’s certainly an anxiety around that, especially among religious conservatives in India.”

But Gopinath and others say there’s an irony in viewing gay rights as a Western import.

“It’s homophobia that’s the import, not homosexuality,” Gopinath said.

Indeed, the law that India decided to reinstate on Wednesday is an 1861 law passed when India was under British rule.  

Instituting laws that criminalized homosexuality was a mainstay of colonizing nations – especially the British. And homophobia stemming from that era is still rampant not only in India, but in many parts of the world. More than half of the countries that currently have anti-gay laws on their books are former British colonies, according to the International Lesbian and Gay Association.

“It’s not only gay rights,” said Jyoti Puri, a professor of sociology at Simmons College. “Our law is itself a Western import.  The way the Supreme Court justices are working is a Western import … (The court) is embracing that history as Indian, and then paradoxically saying making a change to that history would be un-Indian.”

The complex entanglement of the British empire’s values, pre- and post-British Indian history, and gay rights in India makes any discussion of LGBT sex a hard one to have in the country, some Indians say.  

But they also say there’s no turning back.

The landmark 2009 court decision prompted a sea change of public opinion in India. Pride parades, cafes and bars where gay people could meet safely, and media representations of gay people became more commonplace in the country.

After the Supreme Court’s decision last week, famous actors and musicians in India tweeted their dismay.  And India’s law minister said the government might challenge the court’s ruling.

That has left many LGBT Indians and activists hopeful that despite the decision, and India’s complex past, the country is on the path toward a more gay-friendly future.

“All the things that opened up, they have to be preserved,” said Amritananda Chakravorty, a lawyer for Naz India who worked on the case that was before the Supreme Court. “The decision has galvanized the community.  We really think things can’t go back.”