Economics · Governance · Law · Public Policy

Sodomy Laws and the LGBT Movement

The Puranas tell a story about a Prince Sudyumna, who once while out hunting rode into a forest where Shiva and Parvati were sharing an intimate moment. Shiva had cast a spell on the entire forest so as to save his consort any embarrassment from the sages and kings who frequented the forest, that any male creature who would enter the forest that day would turn female. On turning female as soon as he entered the forest, he went begging to Shiva to reverse the spell. But there was a catch, the spell that Shiva had cast was irreversible and Sudyumna had no choice but to accept his new form. On seeing Sudyumnas desperation, Shiva agreed to modify his curse. From then onwards, Sudyumna or Ila, would be a man when the moon waxed and a woman when the moon waned.

One day, Ila was approached by Boodh, lord of planet Mercury asking for her hand in marriage which baffled Ila to no end. On seeing Ilas reluctance, Boodh decided to tell his story to Ila to make her understand why he would be perfect for her. Boodh was the son of Tara, goddess of the stars and she was married to Brihaspati, lord of planet Jupiter, but she had fallen in love with Chandra, lord of the moon and eloped with him. Consequently, a war ensued after which Indra, the sky – god forced Tara to go back to her rightful place, next to Brihaspati. At that time Tara was pregnant and therefore, several questions were raised on the paternity of the child but, Tara remained silent. Finally, the child himself spoke up from the mothers womb and stated that he was the lovers child. Everyone was very impressed with the childs honesty but, Brihaspati was far from being impressed and in sheer rage, cursed the child to be of indeterminate gender! So it came to pass; Sudyumna who was both a man and a woman would be married to Boodh who was neither a man or a woman. Both were husband and wife to each other

The world that we are a part of, is a dark place India not being an exception to this. We are driven a lot by how we are perceived by each other, how the society looks at us, and whether does it even like what it sees? These aspects, unfortunately, decide our standing in society, but more than anything else they decide how we perceive ourselves, and are we ready to accept that?

Gender identities, have gone through cyclical phase of acceptance in the society. The story above talks of a time where the idea of a male and a female was not so stringent and diffusion was acceptable. Then came a phase where society placed too many norms and regulations on the conduct of the people, especially during the Medieval ages. In India, the system of patriarchy became more acceptable, according to which “men” and “women” were supposed to conduct themselves a certain way. Similarly, in other parts of the world, especially the European regions, Church became the authority, imposing rules for conduct with divinity and sanction directly from God as its alibi. It was at this point in time, Sodomy laws started taking shape. The term “sodomy” has been derived from the biblical story of Sodom and Gomorrah, about how two angels were invited to take refuge for the night by, Lot, a man of the God, in the sinful city of Sodom. The men of the city, that night, surrounded Lot’s house demanding his guests to be submitted to them for their pleasure, he protested and ultimately to save his guests, had to sacrifice his two daughters instead. Ultimately, the angels struck the Sodomites blind and the entire city was destroyed by God.

Sodomy law defines certain sexual acts as crime. The existence of such laws, has been misused time and again to justify discrimination against people who don’t fit into the traditional norms of gender identity.

In August 1982, Michael Hardwick, a gay man was issued a citation after seeing him violate the city’s ordinance against public drinking. Subsequently, due to Hardwick’s failure to appear in court, he was issued an arrest warrant following which, the officers went to his residence to serve the warrant. Here, they found him engaged in mutual, consensual oral sex with a companion. Both men were placed under arrest for sodomy under the Georgia state’s sodomy law. Hardwick later sued Michael Bowers, the attorney general of Georgia for a declaration to the effect that the state’s sodomy law was invalid and unconstitutional. In the United States Supreme Court, the main issue was the fundamental right to privacy and personal liberty. The court held, that this right did not extend to private, consensual sexual conduct, at least insofar as it involved homosexual sex. This case was the first time in the United States wherein the constitutionality of sodomy laws was challenged, and paved way for the much active now LGBT movement of the world. The decision was greatly criticised for upholding the restrictive and invasive sodomy law of the state specifically against homosexuals.

In 1996, in Romer v. Evans, the court ruled that state constitutional amendment in Colorado preventing protected status based upon homosexuality or bisexuality did not satisfy the Equal Protection Clause of the United States constitution. This case set the stage for the landmark cases of Lawrence v. Texas of 2003 and United States v. Windsor of 2013 which ultimately formed the basis for the current legal status of the people belonging to the LGBT community. In Lawrence v. Texas the Supreme Court struck down the sodomy law in Texas and by extension, also invalidated sodomy law in 13 other states making same – sex sexual activity completely legal in every U.S. state and territory. This ruling was as a major crack in the long standing LGBT discrimination that had been practiced in the country since time immemorial. This view was further affirmed in the recent landmark case of United States v. Windsor in 2013, in which the Supreme Court held that restricting U.S. federal interpretation of “marriage” and “spouse” to apply only to heterosexual unions, by way of Section 3 of the Defence of Marriage Act is unconstitutional thus giving a lot of weight and legal backing to the LGBT movement of U.S.

Sodomy laws are intrusive and violate human dignity, are applicable in India too in the form of Section 377 of the Indian Penal Code which has become subject to varied judicial interpretations over the years; initially covering only anal sex, and later penile penetration of any other artificial orifice; it upholds the basic tenet of sodomy laws. But, this provision for the first time in the history of India, was challenged in the Delhi High Court in 2001. The Naz Foundation Trust, a Delhi based NGO working for HIV prevention amongst homosexuals realised that Section 377 acts as one of the biggest impediments in access to health services for MSM (men having sex with men) which has remained a hidden population due to fear of arbitrary prosecution. Subsequently, it filed a writ petition in Delhi High Court challenging the constitutionality of Section 377 under Article 21, 14, 15 and Article 19 as well. Eventually, the matter went upto the Supreme Court as a Special Leave Appeal filed by the petitioner after which the Supreme Court remitted it back to the Delhi High Court. Thereafter, the Delhi High court passed a landmark judgement holding Section 377 to be violative of Articles 21, 14, and 15 of the Constitution insofar as it criminalised consensual sexual acts of adults in private. But, 21 months later, the Supreme Court passed a ruling, criminalising Section 377 thus overruling the forward judgement of the Delhi High Court.

This decision has taken our country back by a few hundred years. Section 377 was inspired by Medieval and Victorian beliefs and morality which propagated that procreation is the only purpose of sex. However, accepting this ideology today in the 21st century would be symbolic of a very orthodox and a restrictive outlook, and violates basic human rights of an individual. The LGBT movement in our country is in a very nascent stage. Coming out is looked down upon, is unacceptable most of the times to the extent of being seen as a mental ailment. Transgenders (transsexuals, cross – dressers, or genderqueer) who challenge the hegemonic notions of gender identity by not conforming to the widely accepted gender binary i.e. “men” and “women”, and the stereotypical sexual regimes are still not a very accepted community in the country. India, is still quite far behind in this movement but the process has begun.. But, the question still remains.. since we all belonging to the same human race then who gives us the authority to  decide the rights and the wrongs? Why does, how we appear to the outside world define so much about ourselves, whether it is race, sex or our religion for that matter? Why do these fictional demarcations and divides determine our standing in society? We as humans constantly strive to create a perfect society and in that strife for perfection end up being the biggest bigots!

About the Author

Kavya KathpaliaKavya Kathpalia is a student of Hidayatullah National Law University pursuing BA.LL.B. (Hons) and is currently in her fourth year. She has keen interest in research work, and aims to pursue a career in the same and make a niche for herself in the field of teaching. She is an avid reader with mythology and social governance as her prime areas of interest. Other than that she dabbles in poetry and prose writing in her leisure time. She is currently interning with the Model Governance Foundation.

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