What next after Sec. 377?

Second Freedom: SC ruling decriminalising gay sex has opened the path to equal rights for LGBTQI
Last Updated : 25 September 2018, 04:42 IST
Last Updated : 25 September 2018, 04:42 IST

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Case 1: In central Mumbai, G and A are a lesbian couple who have lived together since 1993 in a tenanted property that is in the senior lesbian woman’s name. What is worrying is, what happens if she passes away. The Bombay Tenancy Act of 1954 gives a tenant every right on par with ownership. However, if G dies, then A, the younger lesbian partner, faces great uncertainty. The tenancy can be “inherited by close relatives and the spouse”. But is A the spouse? Under which law is lesbian marriage accepted by the State and government.

Case 2: In Bhiwandi, an industrial township near Mumbai, S and A are an inter-faith gay couple. S, the older gay man who owns a textile firm, is a Muslim and A is his Hindu younger partner. They are in a relationship for over 20 years.

As gay relationships are not recognised by the State, S thought of “adopting” A, his Hindu lover, as his son. However, S discovered he cannot pass on his property or give any inheritance even in that case as adoption is not recognised by Hanaffi Sunni law that is operational for Muslims in India. A’s will could be challenged by any natal family of S in a court of law as his Hindu partner has no locus standi as a relative. S is worried although A is an economically independent working man of means. But this issue of not being recognised as a spouse/partner can be chilling. There is every possibility that S’s relatives may not allow A to attend his funeral rites or be with him at his hospital bed if anything happened as the close “family” is slowly turning hostile on realisation that it is more than just friendship that binds the two.

These are only two of the cases I can quote from the secret world of LGBTQ. There are other heart-breaking scenarios, too. Hijras or trans-women are disinherited and asked to leave the family house when they have every right to be considered part of the family. The reproductive rights of LGBT are also precarious. Cis-men (men born as males and with a male gender identity), for example, cannot adopt girl children as a rule. As openly gay men, they are not allowed to adopt male children either. So, adoption is out. Surrogacy is, of course, flatly disallowed for LGBTQ according to new guidelines, so reproductive rights are non-existent.

Nominations of LGBTQ partners on insurance forms, mediclaim covering partners, company cover for partners or even for holiday and leave travel allowance for partners are simply not accepted. A Mahindra Holiday agent flatly refused to consider my gay partner for the holiday packages they have for families as we were not considered a family.

In many ways, as somebody who detests the heterosexual monogamous family structures as exploitive and oppressive, I am surprised how many models exist in the LGBTQ world that are worthy of respect and validation by the State. Hijra households or ‘gharanas’ have one senior transwoman or ‘Naani’ or ‘Nayak’ as the ‘Karta’. She adopts scores of younger hijras or trans-women (male cross-dressing and identifying as female). She gives them shelter and a lineage. Her daughters are fed, clothed and given gifts in kind and cash and the ‘chela’ or daughter hands over her earnings to the mother.

Besides this, there are sisterhood households where numerous cross-dressing males live together and share expenses and, above all, there is the imitation of the hetero-normative ‘couple’ who form a household. The Humsafar Board of Trustees had two members who lived with their same-sex partners for over 10 years with no legal recognition at all. Legal, in the sense they are not ‘married couples’ in the eyes of the State.

It’s interesting how even the housemaid enquires why they need one double bed when they should be having two different beds, and taking a house on rent can be traumatic as they are two bachelors’ who are living a stressed-out life in urban India. Many of these couples have what are called open relationships. The couple may or may not adopt a younger member or gay senior citizen and it becomes more interesting if there are ‘understanding’ relatives brought in to look after the household’s mundane needs, like overseeing the house, mentoring younger men or the larger extended LGBTQ family.

I have seen gay couples holding soirees for music and drama troupes with the clear understanding that the pillar of the household is one senior gay man who has two or three younger male lovers as ‘spouses’ looking after him. In smaller towns, one wonders how this household is seen, but
that it exists happily within mainstream hetero-normative traditions is a given.

The chronicler of many Indian homosexual traditions, Ruth Vanita, had recorded such relationships in the LGBTQ communities in India in a book “Queering India”. Ruth records amazing stories of relationships between same sex couples across various intersections. She traces histories in major industries, like films and theatre, to show these relationships have been enriching and admired by the public at large.

Bollywood itself has these tales in plenty, with the archives of film magazines and papers like ‘Screen’ and ‘Stardust’ recording them as gossip or matter-of-fact narratives. The only time this came out as a salacious legal case was when the film diva Rekha sued Cine-Blitz. More recently, we had Karan Johar hinting at his homosexuality in his biography and starting a family as a single father.

None of this would have mattered if the reading down of Section 377 by the Supreme Court earlier this month did not impact LGBTQ in many major ways. From citizenship entitlements to plain benefits taken for granted by heterosexual couples, LGBTQ communities will have to engage the State and practically squeeze each entitlement out by dragging it through the courts.

I see an arduous journey ahead. It took me 18 years from 1991, when the senior criminal lawyer Srikant Bhat wrote about Section 377 criminalising same-sex behaviour or any form of non-peno-vaginal sex in my newsletter ‘Bombay Dost’, to this day, seeing the legal impediment to our existence finally overcome. But a Pandora’s Box has been opened and the hitherto invisible citizen of India will find it a difficult journey negotiating civil life through the maze of legal barriers the State has set up against us.

(The writer is a journalist and one of the best-known LGBT rights activists in India)

Published 22 September 2018, 18:57 IST

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