Light at the End of the Rainbow?
“Any rule which deprives someone of happiness is wrong.”
These are the words of sprinter Dutee Chand who in a press conference revealed that she is in a same-sex relationship. While Dutee has been receiving support internationally, support from her family and the Indian sports fraternity has not been encouraging.
This is ironic for several reasons – in 2019, Madras High Court passed a ruling which directs the authorities to register marriage between a transgender and cisgender person.
These developments are indicative of the dichotomous nature of rights recognition for LGBT+ people in South Asia. Sadly, the attitude of the society towards sexual and gender non-conforming people have not changed.
The Regional Office of the Friedrich Naumann Foundation for Freedom (FNF)’s human rights team did a round-up of legislations impacting Sexual Orientation and Gender Identity Expression (SOGIE) rights in South Asia.
According to the Amnesty International, 76 countries have criminalized sexual acts between consenting adults of the same sex. Out of these 76 countries, 6 are in South Asia: Afghanistan, Bangladesh, Bhutan, Pakistan, the Maldives and Sri Lanka. Except Nepal, none of the South Asian countries constitutionally ensure no discrimination based on sexual orientation. Most of these countries are still plagued by colonial legislations, which consider homosexuality “an offence against the order of nature”.
Dismal the situation might seem, more countries in South Asia have been proactive in recognizing rights relating to gender identity and are now showing progress in guaranteeing SOGIE rights.
Sexual Orientation in South Asia
Nepal is at the forefront in South Asia in ensuring that the LGBT+ community is protected from discrimination. The LGBT+ community in South Asia saw their first ray of hope in 2007 when Nepal’s Supreme Court delivered a ground-breaking judgment guaranteeing the community rights under Nepal’s Constitution and the international law. Homosexuality was decriminalized and in 2011, Nepal became the first country in the world to include the third gender on its federal census.
It took India more than a decade to follow in Nepal’s footsteps. In September 2018, the Supreme Court of India passed the historic judgement that decriminalized homosexuality. The judgement declared Section 377 of the Indian Penal Code unconstitutional by ruling that homosexuality cannot be considered “against the order of nature”.
Gender Identity in South Asia
Pakistan became the first country in South Asia to legally recognize a third gender category. In 2009, Pakistan’s Supreme Court passed judgement deeming transgender people equal citizens. Later in May 2018, Pakistan passed another law allowing transgender people to self-identify as male, female or a third sex. The law was later extended to protect transgender people from discrimination faced in educational institutions, workplaces, healthcare and other public amenities.
In November 2013, the government of Bangladesh officially recognized Hijra persons as third gender. Hijra is used as an umbrella term that includes eunuchs, intersex people and transgender people. However, such recognition came with intrusive and long medical examinations. Officials act and rely on their personal understanding of people who recognize as Hijras for filing official documentations as there is no guidelines issued by the government for dealing with such cases.
In 2014, India’s Supreme Court issued a judgment that upheld the right of self-identification for transgender people. However, the Transgender Persons (Protection of Rights) Bill 2018, does not guarantee a change in the gender based just on self-identification. A sex reassignment surgery - a move that has been heavily criticized – is mandatory. The bill just guarantees protection from discrimination to transgender persons.
Sri Lanka’s Ministry of Health, Nutrition and Indigenous Medicine has guidelines, criteria and a process for the issuance of Gender Recognition Certificates (GIC) for anyone seeking a legal gender change. However, the GIC is only issued after a diagnosis of transsexualism based on the International Classification of Diseases 10 (ICD10). A person diagnosed with transsexualism is prescribed a hormonal and a surgical treatment. The country does not provide any protections to transgender people.
In Afghanistan, Bhutan and Maldives, SOGIE rights are not protected by any legislation. Homosexuality is criminalized and the right to change gender is ambiguous. So far, these countries have not showed any enthusiasm to recognize the rights of the LGBT+ community.
Governments in South Asian countries have often used cultural relativism to support practices recognized as detrimental to human rights. However, cultural contexts cannot deprive an individual from being in a same-sex relationship. “The situation is pitiful for a nation where a self-proclaimed godman or a godwoman gets more acceptance from society than a trans person” gathers our human rights team.
Civil society organisations in South Asian countries have been fighting for a long time against the discrimination faced by the LGBT+ community. These countries often face pervasive discrimination against people who do not conform to gender and sexual norms affecting not their private life. The officials responsible for ensuring that progressive policies are implemented face the flak too. South Asia has a long fight ahead of it to ensure that LGBT+ individuals are treated equally in the eyes of both society and law.