Índia. Crédito: Naren Morum/Unsplash

India’s Supreme Court decriminalizes homosexuality

After a process dating almost a decade pressed by Indian citizens, the country reviewed a 1861 legislation, which set a 10-year penalty of reclusion to sexual acts "against the order of the nature"

The definition of the population included in alternative sexual and gender orientations is being updated as the social movements include more diversity and give visibility to a growing and diverse group of people. Currently the group is called by the acronym LGBTQIA: lesbians, gays, bisexuals, transsexuals, queers or nonbinary, intersex, and asexual. However, the flag, events, parades, marchs, and debates have not been able to solve the problem satisfactorily.

A report by the NGO Transgender Europe shows that the highest numbers of murders (in 2016) are, oddly, in countries with strong visibility and organization of trans communities and gender diversity: Brazil (868), Mexico (259), USA (146), Colombia (109), Venezuela (109), Honduras (86), and India (58). However, the 2,190 total murders that year would be just the tip of the iceberg in a series of systemic violence that does not necessarily culminate in deaths.

In Brazil, according to Grupo Gay da Bahia [Gay Group of Bahia], an individual of this population is murdered or commits suicide for being a victim of homophobia every 19 hours, which turns Brazil into the world champion of this type of crime.

Because of these figures, India decided to decriminalize homosexuality. The measure represents a double victory: the diversity and national emancipation, because the legislation, known as “Section 377”, was still a result of British colonization. The regulation typified the relationship between people of the same gender as a crime and put under surveillance the intimate life of a country with 1.3 billion people, the second most populated nation in the world.

"This new fact puts several rights of the LGBTQIA population up again, to the point of beginning to rethink the issue of employment, marriage, and other things that come from decriminalization. I think it’s still a very fragile moment and India is going through a conservative momentum. I hope people can achieve more rights as quickly as possible. This is my biggest concern”, says Juily Manghirmalani, 28, filmmaker and researcher. Daughter of an Indian father and a Brazilian mother, she was born in Manaus and has lived in São Paulo since her childhood. Juily holds a master's degree in cinema with a focus on Indian genre and diaspora. She follows-up with debates on gender diversity and sexual orientation, as well as being part of Indian cultural groups and the Plataforma Lótus [Lotus Platform], which guides the Brazilian agenda in issues of Asian feminism.

"When we talk about laws, we talk about people with rights. This gives great power to a subjugated and marginalized social stratum, and strength to put oneself in public, to feel the authority to be who they are. It's a breakthrough, it gives you a sense of comfort, to fight with more knowledge, to feel that maybe the State supports you in some way and that you can be a person with more dignity."

Civil lawsuits against the Indian rule began in 1994 and 2001, but were stuck in the bureaucracy of local courts. In 2009, came the first victory: a court in New Delhi considered the legislation unconstitutional, but the Supreme Court referred the case to the Parliament in 2013. Finally, this year's decision puts an end to the impasse and considers the old legislation "discriminatory and unconstitutional", thereby repealing it.

In Brazil, article 226 of the Federal Constitution inserts the marital relationship between people, marriage, and common-law marriage. The legislation mentions the union between "man and woman", but does not include nor excludes the possibility of union between people of the same gender. According to the Civil Registry Statistics research of the Brazilian Institute of Geography and Statistics (IBGE), between 2013 and 2016, 19.5 thousand homoaffective couples registered their union in notary offices, approximately five thousand per year. Homosexual marriages account for about 0.5% of the country's annual total marriages.

Homosexuality in the world

At least 70 countries across the globe continue to criminalize relationships between people of the same gender. According to an annual report by the International Lesbian, Gay, Bisexual, and Intersex Association (ILGA), there are eight countries where homosexuality can result in death penalty, and dozens of others in which homosexual acts may result in imprisonment.

Countries regulated by sharia interpretations (a set of religious laws in the Qur'an) still punish homosexuality with death, such as Iran, Sudan, Saudi Arabia, and Yemen, part of Somalia and northern Nigeria. In two other countries - Syria and Iraq - the death penalty is carried out by non-state agents, including the Islamic State.

India is estimated to have the largest rural population on the planet, with 68% of citizens living in the countryside. Only a third of Indians live in cities. Regarding large economies, India is the only one that does not yet have an urban majority. Filmmaker Juily recalls how access to culture and community training affects the way people perceive homosexuality. "India is very complex. Most of the population still grows listening to Hindu tales that bring about the formation of the traditional family, procreation, the roles of genders, the woman as the one who is subjugated and passive, while the man is the one who struggles, speaks, and makes decisions."

Islamism, Christianity, and Buddhism, in addition to other religious segments, have a presence in India, but 80% of the Indian population follows Hinduism. Juily says that, although traditions present homosexuality as unnatural, several myths include deities that change gender, become androgynous or hermaphrodite beings. Shiva and Parvati, for example, unite in the androgynous figure of Ardhanarishvara. "For many years, homosexuals carried a negative point of view. The law is a first step for people to have a voice and break this whole mystique. It is a time-consuming, urban process that will take a long time to reach rural areas, but it’s very important", says Juily.