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LUCKNOW, India — On April 15, India’s Supreme Court issued a landmark ruling allowing transgender people to identify as a third gender. The judgment directs the central and state governments to give them full legal recognition, including allotting them similar educational and job quotas as other minorities categorized as socially or economically disadvantaged. To date, transgender Indians — also known as hijras — were forced to select either “male” or “female” on all government forms and routinely faced ostracization due to their gender identity.
While gay rights activists and the LGBT community welcomed the decision, it flies in the face of a December 2013 Supreme Court ruling that recriminalized homosexuality. That ruling — which was criticized by two out of the three national parties contesting India’s general elections, currently underway — overturned a 2009 high court judgment that declared Section 377 of the Indian penal code unconstitutional. The British colonial law, dating back more than 150 years, criminalized sexual activities “against the order of nature” and had long been used to harass gay people.
The 2009 ruling was a watershed moment for gay rights in India. Openly gay-friendly bars and cafés opened across the country, Bollywood movies began featuring gay characters, and homosexuality began to be more accepted in the big cities. The following year, Delhi’s Queer Pride Parade attracted roughly 2,000 people — four times the number it did in 2008. The Supreme Court’s 2013 reversal drew criticism from HIV/AIDS groups, human rights campaigners, media icons and Indian politicians. Around the world, gay rights supporters organized a Global Day of Rage in more than 30 cities in protest.
Now there’s a strange tension between the two Supreme Court rulings: On one hand, transgender people have legal recognition; on the other, they may still be arrested for engaging in gay sex.
On a cool evening in February, in a nondescript building in Lucknow, a group of gay, bisexual and transgender men gathered for a party. They were there to celebrate Vishal’s* 28th birthday, and this was a safe place where they could openly be themselves.
As the men walked up the narrow staircase and into a small room, their hushed voices grew into excited conversation. Some wore saris and makeup, others wore long-haired wigs. Vishal, however, was dressed in his everyday clothes — dark jeans and a faded black sweatshirt. The only other color he wore was the pink lipstick stain on his left cheek. As small plates of savory snacks and cake slices were passed around, the soundtrack to the Bollywood movie “Dedh Ishqiya” began to play, and one of the men stood up to perform a choreographed dance.
“We gather here to fulfill our hidden desires,” one said, laughing self-consciously.
Though Lucknow is a large city, with a population of 2.8 million, the LGBT community is largely underground. In the capital of the conservative northern Indian state of Uttar Pradesh, many in the community remain closeted from their families. Even on the night the Supreme Court handed down its ruling recriminalizing gay sex, the protest outside the city’s general post office was small and quiet. Nearly every person protesting was a straight woman.
The only gay man who spoke to the media was Saleem Kidwai, a Lucknow native and the co-author of the book “Same Sex Love in India: Readings in Literature and History.”
“The gay community in Lucknow is one that lives in fear,” he said.
The evening after Vishal’s birthday party, his friend Nikhil* was strolling across the bridge by the bazaar at the railway station. He sported a fake diamond stud in one ear; his long-sleeved shirt and faded jeans hung loosely over his skeletal frame.
Nikhil identifies as a kothi, a term used to describe effeminate, working-class men who have sex with other men.
Outside of other kothis Nikhil knows, only his best friend from childhood knows his secret. He owns two phones; he gives the number of one to his family and friends, the second to his “other” friends.
Nikhil comes to the train station to find sexual partners. He’s there nearly every day now, since he lost his job at a call center. Public spaces like train stations and parks are cruising sites where MSMs, or males who have sex with other males, can be anonymous. One of Nikhil’s fondest encounters was with a businessman passing through Lucknow.
“He was young and attractive,” Nikhil said, smiling as he remembered. “So smart ... He asked me, ‘What is your profile, top or bottom?’ I said bottom.”
Nikhil met with him three times. Then the man vanished.
Though Nikhil says that he looks for partners only for his own “physical enjoyment” and that he “can’t do this for any kind of money purpose,” many other kothis end up in sex work. They often face discrimination when they appear effeminate and can have trouble finding and keeping jobs, says Arif Jafar, executive director of the Maan Foundation, which helps establish community organizations to address the needs of MSMs in India.
Rape, blackmail and violence
In 2001, police raided the offices of the HIV/AIDS organizations Bharosa Trust and Naz Foundation International. Educational materials were seized, and four staff members were charged on conspiracy to commit sodomy and possession of obscene materials. They were sent to jail for 47 days.
One of the men arrested was Jafar. He says the charges were a political ploy of the party in power in the state at the time, the right-of-center Hindu nationalist Bharatiya Janata Party, or BJP.
“Who would you assume is pushing the police to act the way they do?” Jafar asks. “It was the government! They had their own notions about morality, that this was immoral.”
The BJP has remained silent on the issue of homosexuality since the December judgment, although Rajnath Singh, the party president, has said the BJP won’t support anything “unnatural.”
International pressure and the assistance of the Lawyers Collective, a human rights NGO based in Delhi, helped the four men get bail after their 2001 arrest. But then in 2006, another incident occurred.
The chief superintendent of police created a fake profile on PlanetRomeo.com, widely known as a gay hookup website, to lure and arrest four gay men.
“The police officers allege they caught them red-handed in [Lucknow’s] Kukrail Park, all engaged in unnatural sex,” said Kidwai, who was part of a fact-finding team investigating the case. “But the park was closed at the time ... No one could have gotten in there.”
The four men were charged and arrested under Section 377, and were later released on bail. Their names, occupations and photographs were splashed all over local media. One of them, a school administrator, was fired from his job. Another left the city. Newspapers also published the name and workplace of the wife of one of the men arrested. Four lawyers took up the case to contest the charges for each of the men; eight years later, the case is still pending.
Fear of being outed is why many men don’t have a profile on PlanetRomeo, even though almost 1,000 users have listed Lucknow as their location. This fear extends even to defending their own: Few in the community come forward when it comes to police abuse.
About a year and a half ago, Ravi*, an HIV/AIDS outreach worker, was sitting on a park bench with a friend when a police officer approached him.
“[The policeman] said, ‘Why are you people sitting here? Why is your arm around his shoulder?’” Ravi recalls. “‘What, I can’t sit here and have my arm around my friend’s shoulder?’ I asked.”
The officer took Ravi to a corner of the park and beat him with his hands. Then he took him to another, more secluded spot just outside and sexually assaulted him, making him perform oral sex, scratching him on his back and penetrating him anally. After it was over, Ravi ran away. He has never reported what happened.
“If I make a report, then what will happen? I have no proof,” he says. “And I can’t turn to my friends or family for support.” Ravi hasn’t told anyone in his family that he is gay.
LGBT activists say the reversal on Section 377 makes exploitation against people like Ravi easier and makes it virtually impossible for them to fight for their rights — especially against the police.
“Rape, blackmail, violence and extortion by the police is pretty endemic,” says Tripti Tandon, deputy director of Lawyers Collective, though she acknowledges that formal figures documenting rates of abuse are hard to come by. “When the police is perpetrating the violence, then how do you resort to the same machinery to make a complaint?”
A closeted lesbian
Cultural anthropologist Lawrence Cohen, who specializes in South Asia, says the degrees of social oppression within India undoubtedly influence the experiences of gays, lesbians and transgenders in the country.
“Generally, women’s access to mobility in so-called public may be more limited, more policed by family, by school, by institutions, by the state,” he says. “You could argue [here] that the real issue is broader, that it’s women’s autonomy.”
Indeed, Ajaita’s* life as a closeted lesbian is vastly different from that of gay men — partly because of differing expectations of men and women in this conservative city. She can’t cruise train stations like Nikhil or stay out late at parks. But she’s freer in other ways.
Ajaita has cross-dressed since she was a child, something her single mother inadvertently helped promote when she accidentally bought her daughter boys’ jeans. Ajaita once bought tight women’s jeans in order to provoke her mother into letting her wear loose clothing. It worked.
Her mother found the jeans too risqué and said, “‘What about the other jeans that you wear? Those are also good,’” Ajaita says, smiling at the memory. “I played quite a brainy game at the time.”
Now the petite woman with androgynous features says she’ll talk to women anywhere, even at public spots like cafés.
“After I started behaving like a boy and boys didn’t have any interest in me, I was free! I used to flirt with girls, and I used to pass them comments, and it was quite an exciting feeling.” She grins, exposing a chipped left tooth. “I saw the boys doing these things, and they got slapped. But when I started doing these things, I never got slapped. Because they think, ‘She is a girl. What will she say, what will she do?’”
Ajaita is an anomaly, however. Her forward behavior and comments are atypical of other lesbians she knows in Lucknow — a tiny total of three. One of them will marry this fall, submitting to a pressure Ajaita understands.
“They [my family] expect that I will get married to a boy, but deep in my heart I don’t want to get married to anybody,” she says. “A woman I love, she cannot marry me. So what is the need to get married?”
Ajaita is focused on starting her own business so that she can become self-sufficient. But she’ll do anything for her mother — even marry, if it comes down to it.
“My mother raised me from birth,” she explains. “I want to give her each and every thing she never got in her life.”
Politics and Section 377
Ajaita was shattered when she heard the news about Section 377 in December, but few others described their reactions in such strong terms.
“The community [here] who isn’t out doesn’t really know too much about 377 because they are largely uneducated,” says Dhruv*, a bisexual program officer at Bharosa Trust, which serves members of the working-class MSM community.
Dhruv, who hasn’t revealed his sexual identity to his family and friends outside of work, says that many people within the working-class LGBT community know about 377 only in the vaguest of terms. Often, the desire to find a boyfriend or lover overshadows anxieties about potential exploitation. Gay rights activists worry that the judgment will give police more leeway in using the law to harass individuals, but for many of these men, Dhruv says, it’s already part of their everyday experience. So keeping up with the changes in 377 doesn’t register as a new concern.
“There are so many people who are harassed each and every day, but they don’t say anything,” Dhruv says. “After some time, it becomes routine.”
The Supreme Court rejected an appeal in February to review the judgment on Section 377. On April 2, the Naz Foundation filed a curative petition on the case, which is considered the last legal resort after other review petitions have been rejected. It is still pending.
Anand Grover, one of the founders of Lawyers Collective and the lawyer who filed the curative petition, says he expects political headway on Section 377 to be tricky because India’s general elections, a six-week-long process that started April 7, have put the brakes on the case.
“The BJP and the AAP [Aam Aadmi Party] don’t want to talk about the issue because they think they’ll alienate some voters,” he says.
Neither the BJP nor the AAP, despite the latter’s public condemnation of the December judgment, put their stances on Section 377 in the manifestos that Indian political parties release before elections. The Congress party included a small paragraph. It said it would “enact a law to ensure that consensual sexual relations between adults of the same sex are not criminalized.”
For Ajaita, news that the Supreme Court now recognizes the rights of transgenders has her crossing her fingers that 377 will be reviewed next, and soon, so that everyone can have equal freedom.
“India is a democratic country,” she says. “We are free to live our lives. Then why aren’t we free to choose our life partners?”
*Some names have been changed to protect people’s identities.