#BornwithPride in a hetero-normative society
In a society where homosexuality is illegal and persons are not free to determine their gender, the choice of whether to express oneself freely or continuing to live a life in secret is an everyday struggle. South Asian countries are still plagued with homophobia, biphobia and transphobia as well as legal restrictions on sexual orientation and gender identity. No South Asian country, except Pakistan, has provided an option of self-identification to transgender people. Homosexuality is still illegal in six out of the eight South Asian countries.
To highlight the everyday challenges and express solidarity with sexual minorities and gender non-conforming individuals, the Friedrich Naumann Foundation for Freedom (FNF) South Asia organised two online sessions this pride month under the banner #BornwithPride.
The first session focused on recent developments in transgender rights in India and on how the concept of gender was created in India during British rule. The session also focused on the impact of COVID-19 on transgender people while accessing basic health facilities and the impact of the lockdown on livelihood as the majority of transgender people depend on begging and sex work.
During the colonial era, gender as a concept was defined purely physically and trans persons were also subject to this archaic classification. It was only in 2014 through judgement in National Legal Services Authority (NALSA) v. Union of India, that the Supreme Court of India decided to decipher the concept of gender. The court not only had to decide what trans is but also what gender is.
Speaking critically about The Transgender Persons (Protection of Rights) Act, 2020 (Trans Act), Vikramaditya Sahai from the Centre for Law and Policy Research (CLPR) mentioned that the greatest violator of trans rights is the state. The act took away the rights provided by the NALSA judgement and made a screening process mandatory to change a person’s gender in official documents. This is primarily because the people who helped draft the act, view trans-ness as a function of pure biology instead of a choice. Therefore, proclaiming oneself as transgender does not suffice and medical examination is mandatory.
Talking about the way forward, the panellists mentioned that it is important for society to challenge the Trans Act to ensure that the community can enjoy the rights guaranteed by the NALSA judgement. Panellists also mentioned that gender should be treated as a choice-based issue for everyone. We should challenge the regime of assigning gender at birth as it is what becomes our primary identity in the future.
In the second session, Being Queer in South Asia, panellists from Bangladesh, India and Nepal spoke about the situation of queer people in their home countries. The session focused on how queerphobia and online hate speech has been impacting the lives of sexual minorities in these countries.
Reflecting upon the existence of queerphobia in South Asian countries, Smita Vanniyar from Point of View, Mumbai, mentioned that both law and society in South Asian countries want to be progressive but not too progressive. They further added that change can only happen if society becomes very progressive and the law follows or the law is very progressive and society has to abide by those rules. Since neither is happening anywhere in South Asia, progress is slow.
A person may be fired because of their sexual orientation due to lack of anti-discrimination protection. Corrective rape of homosexual people or harassment in public transport or bathroom lines is an everyday horror. Online dating applications that are supposed to be affirmative spaces have become a platform for violence against sexual minorities.
In what appeared to be a huge step forward for Nepal at the time the Supreme Court of Nepal in 2007 issued a ruling in favour of LGBT rights in the case of Sunil Babu Pant & Others v. Nepal Government. However, even after 13 years no laws have been implemented to make sure that the community receives the rights guaranteed through the judgement. Although the Constitution of Nepal guarantees the rights of sexual minorities, no laws have been passed till date.
However bad things may seem in India and Nepal, they are considerably better than the situation in Bangladesh. Xulhaz Mannan, the editor of the first and only LGBT magazine Roopbaan, in Bangladesh was murdered after he came out as gay in 2016, putting an end to print magazine. This act drastically affected the movement in the country. Religious fanatics have been attacking the community as homosexuality is forbidden in Islam. Nevertheless, various volunteer and non-registered organisations in the country have been working with the community to build their capacity. These organisations have been working on developing a movement on social media and also teaching the community about digital hygiene and reducing digital footprints.
During the session, it became evident that the struggle of the community in South Asian countries is the same. Legal and societal norms are very hetero-normative and don’t allow sexual minorities and gender non-conforming individuals to be visible. “T” (third gender) in India or “O” (other) in Nepal in documents negate the idea that trans people identify as men or women. Further, being homosexual or from a sexual minority can often intersect with the specific conditions of one’s life (gender, religion, income, caste etc.) and create additional issues. For example, a homosexual female from a religious minority in rural India will face additional hurdles in expressing her sexual identity freely due to societal and religious pressures. This would compound the pressures felt by her to suppress her identity in the first place. Intersectionality is deeply embedded in all South Asian countries. Policy makers should consider these intersectionalities while drafting policies and create effective support systems within law.
FNF has always stood against discrimination based on sexual orientation and gender identity and will keep fighting for the rights of LGBT+ community. FNF very well understands that talking about the issues only during Pride Month is not adequate and it is for the same reason that FNF will be hosting another round of events in December 2020.
Shruti Sharma holds a bachelor’s degree in Social Sciences from Guru Nanak Dev University. She has worked for various libertarian think tanks voluntarily for a period of 3 years. She takes interest in Austrian Economics and Individual Liberty. She is currently working on a European Union project titled ‘Enabling accountable and transparent governance in Mumbai and Delhi’. She also works on other human rights project in South Asia.