This is the first piece of legal writing that I did after entering law school. The essay was originally an entry for an essay competition held in December 2010.
DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION: THE LAW IT IS AND THE LAW IT OUGHT TO BE
“As long as society is anti-gay, then it will seem like being gay is anti-social.”
-Joseph Francis
-Joseph Francis
Homosexual discrimination is prevalent in society today. Homosexuals are harassed by the “straight society” that believes in “straight thinking” and “straight living”.
Moreover, constitutions of many countries guarantee equality to all citizens under the rule of law, but this protection does not always extend to the queer citizens. In fact, some laws even seem to be of a discriminatory nature in their provisions for gays. From being denied a chance to serve in the army and the right to marry people of the same sex to being awarded capital punishment for being homosexual, these people are the victims of unjust laws.
The queer legal theorists have started questioning this orthodox ideology that is prevalent even among the educated elite class. Many queers are now fighting a legal battle to be recognised and accepted in the society.
Several organisations such as the Naz Foundation (India) Trust and the Human Rights Campaign have joined the battle for justice. From the Wolfenden Committee report (1957) to the Stonewall riots (1969) to the Naz Foundation case judgment (2009), the LGBT community is slowly, but steadily gaining acceptance in society.
The time to come out of the closet has come...
Essay-LEGALLY GAY
“It’s the answer spoken by young and old, rich and poor, Democrats and Republics, black, white, Hispanic, Asian, Native American, gay, straight, disabled and not-disabled. Americans have sent a message to the world that we have never been just a collection of individuals or a collection of red states or blue states. We are and always will be the United States of America.”[1] -President Barack Obama
Soon after being elected the 44th President of the world’s most powerful nation, Barack Hussein Obama Junior delivered his victory speech at the Democratic National Convention. One of the most powerful men in the world recognized and supported persons with different sexual orientation. His distinct mention of gays and straights in the speech won him the appreciation of the people of America. He acknowledged the fact that gays made up a part of the diverse population of the United States of America just like people of racial, physical, political and economic diversity.
Discrimination of humans by other humans has been a social practice since times immemorial. Although the basis for prejudice has varied from race to gender to religion to caste, discrimination as a norm has continued in the past. The latest ground of bias is sexual orientation. People who are discriminated against on the basis of their sexual orientation include the gays, lesbians, bisexuals and transgenders, commonly known as the LGBT community. From among the members of the LGBT community, homosexuals (men and women) are discriminated against the most.
The roots of homosexual discrimination can be traced back to the Biblical sources. There are a few verses that condemn homosexuality:
Leviticus 20:13- If there is a man who lies with a male as those who lie with a woman, both of them have committed a detestable act; they shall surely be put to death. Their blood guiltiness is upon them[3].
Engaging in LGBT (homosexual/bisexual) behaviour is believed to be irreligious and unholy. According to ancient Hindu texts such as the Arthashastra and the Manusmriti, homosexuality was treated as an offence[4], though a minor one in the East. Many Islamic countries too have severe punishment for people found to be indulging in homosexual behaviour.
That there is discrimination of the LGBTs in most parts of the world is a fact. People with different sexual orientation have been shunned and ostracized by the society for a long time now. In the past, homophobia had forced them into their “closets”. “Gayism” was looked upon as a “disease” at one point of time. Gays were labelled as the “queers” and the “dykes”. In the course of time however, more was spoken about such people and active groups were formed for the promotion of equal rights and privileges for gays. As a result, a vast population of homosexuals started declaring their sexual orientation in the open...
The Naz Foundation v. Government of N.C.T. of India[5] is a landmark case legalizing homosexuality in India in 2009. The Naz Foundation (India) Trust[6] filed a petition in the Delhi High Court calling for the abrogation of section 377 of the Indian Penal Code[7] (introduced about 150 years back by Lord Thomas Macaulay) which criminalized “carnal intercourse against the order of nature”. The Division Bench read down section 377 and said that criminalizing consensual sex between two homosexual individuals was a gross violation of fundamental rights guaranteed in the Constitution of India. The section was found to be violative of Articles 14 and 15 (Right to Equality) and Article 21 (Right to Life and Personal Liberty). Discrimination on the grounds of a person’s religion, race, caste, sex or place of birth is prohibited by Article 15. The Delhi High Court held that in Article 15, “sex” shall also be inclusive of sexual orientation. Gay rights’ activists all over India celebrated this joyous moment of victory. This is indeed a milestone in prohibiting discrimination on the basis of sexual orientation.
Unlike India, where consensual sex between homosexuals is now legally permitted, Iranian law treats even consensual sex between homosexual adults as a crime. Capital punishment is awarded to the offenders for the same. This has been strongly criticized by the human rights groups.
The Gay Rights movement started with the Stonewall riots in New York in June, 1969. Stonewall Inn was a popular gay bar[8] frequented by LGBTs in Greenwich Village, New York. In the month of June, homosexuals and their supporters protested against the police officers who frequently raided the bar and harassed homosexuals. For the first time, a large population of New Yorkers were united in their effort to fight for homosexuals. As a result, gay pride parades started.
The movement gained popularity and wide support from LGBTs in various parts of the world. This was a wake-up call to all from the queer community, urging them to stand up for their rights. Homosexuals started demanding equal rights...
To commemorate the Stonewall riots of 1969, President Barack Obama, proclaimed that he would strive to achieve equal justice under law for LGBT Americans[9].
“Everybody's journey is individual. If you fall in love with a boy, you fall in love with a boy. The fact that many Americans consider it a disease says more about them than it does about homosexuality.”
James Baldwin[10]
James Baldwin[10]
Activists for gay rights are fighting a tough battle today to legalize same-sex marriages. The ancient belief that man and woman are meant to procreate, often stunts liberal thinking on the part of most people, thus driving them to look upon same-sex marriages with disgust. Even the idea of such marriages is viewed as “unnatural” and “unthinkable”.
In India, same sex marriages are not yet legal. Indian society, in general has usually resisted any change in its usual traditional fabric. Moreover, marriage for long has been a sensitive issue in traditional Indian families, with factors like race, caste and religion playing a pivotal role in matrimonial alliances. Thus, it will definitely be a long time before the concept of same sex marriages is accepted in the country.
However, the Occidentals seem to be bolder in their outlook towards the same...Let’s look at the scenario in the United States of America. Del Martin and Phyllis Lyon were the first homosexuals to be legally married in the United States. Regarding their marriage, the Human Rights Campaign[11] President, Cheryl Jacques was quoted as saying- "The women married today, Del Martin and Phyllis Lyon, have spent the last 51 years of their lives together. There is absolutely no good reason for a couple so loving and so committed to each other to be denied the right to marry and the thousands of protections that come with it.”
Massachusetts is one of the five states in the U.S. which allow gay marriages. In most other states, civil unions between homosexuals are legally valid[12], which give the couples certain (if not all) rights that are enjoyed by married couples.
“Gay and lesbian people fall in love. We settle down. We commit our lives to one another. We raise our children. We protect them. We try to be good citizens.”
California Sen. Sheila Kuehl[13](after California Senate approved gay marriage bill.)
California Sen. Sheila Kuehl[13](after California Senate approved gay marriage bill.)
The Netherlands became the first country to legalize same-sex marriages in 2001. Several other countries like Argentina, Belgium, Canada, South Africa and Spain followed suit, legalizing such marriages.
In U.K., homosexuality was legalised in 1967. Although gay marriages are not legal in U.K. yet, under the Civil Partnership Act, 2004, gay couples can register and enter into civil partnerships.
In U.K., discrimination in workplaces on the basis of a person’s sexual orientation is prohibited. Gay men are now allowed to serve in the army and form civil partnerships. In the U.S., however, there exists the D.A.D.T. (Don’t Ask, Don’t Tell) policy introduced in 1993, which does not allow LGBTs to serve in the army.
Although the situation in the 21st century seems to be much more promising for homosexuals in certain parts of the world, a lot has to be done to change societal attitudes towards these people.
The most important debate regarding the legality of homosexuality is an ethical one. ‘God’s idea of creation’ does not form a strong argument for condemning homosexuals.
“Gay people, well, gay people are EVIL, evil right down to their cold black hearts which pump not blood like yours or mine, but rather a thick, vomitous oil that oozes through their rotten veins and clots in their pea-sized brains which becomes the cause of their Nazi-esque patterns of violent behaviour. Do you understand?”-Trey Parker and Matt Stone [14]
(From South Park, spoken by Mr Garrison)
(From South Park, spoken by Mr Garrison)
Religious orthodoxy and conservatism often make it difficult to introduce and encourage liberal thinking towards people of the queer community. Moreover, lack of awareness about the gays in general leads to a kind of illogical fear of the less known homosexuals. For long, even the Acquired Immuno Deficiency Syndrome (A.I.D.S.) was associated with homosexual behaviour. It was known as the “gay” disease, and became the theme of anti-gay slogans.
There have been various instances of hate crimes against queers[15]. Homosexuals are often subject to verbal as well as physical abuse. The intensity of these crimes is much more, because they are brutal in nature and done out of pure hatred towards the LGBTs. Those who are anti-gay feel that homosexuals are polluting the world. Therefore, hate crimes against LGBTs are done with the motive of “purging” the world of gays. As suggested in various Biblical verses, engaging in homosexual activity is believed to be sinful. Police officers themselves are often reluctant to help the victims of such crimes.
Pride parades have even been banned in certain places[16]. Homophobic songs have been composed by reggae artists and have been written with the intention of inciting anti-gay crimes. The songs explicitly condemn homosexuality and contain lyrics that suggest various means of brutally killing homosexuals[17]. The ‘Stop Murder Music’[18] group has been started by gay rights activists to curb such activities.
Lately, many homosexuals have come under the scrutiny of various anti-gay organisations that condemn homosexuality for various reasons- ethical, religious, etc. Some even have the notion that various sexually transmitted diseases are communicated via men who have sex with other men (MSM). There have been instances of sting operations that have caught homosexuals engaging in sexual activities on camera[19]. In this way, their Right to Privacy is also being violated. Sometimes, even families of homosexuals disown them and subject them to mental torture, calling them a “disgrace” to family pride, etc.
"Out of the closets and into the streets":
The formation of the Wolfenden Committee[20] in Britain in August, 1954 was a remarkable attempt towards understanding the problems of homosexuality and the hysteria associated with it. In 1952, there had been 670 prosecutions in England for sodomy; 3,087 prosecutions for attempted sodomy or indecent assault; and 1,686 prosecutions for gross indecency[21].
The Wolfenden Committee prepared a report after interacting with various psychiatrists, homosexuals, judges, etc. Among its many proposals, the Committee recommended that the Right to Privacy of homosexuals be respected. As long as consensual homosexual activities were carried out in private, there was no need for law to interfere with them[22]. The Sexual Offences Act was enacted in 1967[23]. It gave effect to the recommendations of the Wolfenden Committee Report and introduced some privacy restrictions, while decriminalizing homosexual acts between consenting adults. This was instrumental in changing people’s perspective towards homosexuals.
There has been active campaigning for the LGBTs by renowned persons worldwide. Actress Celina Jaitley has been a staunch supporter of gay pride parades that were recently carried out in several metropolitan cities of India like Mumbai, Delhi and Chennai. She also re-launched ‘Bombay Dost’, the first magazine about gays in India. Gay celebrities like Karan Johar and other persons of repute like Vikram Seth took a bold step in this direction by declaring their sexual orientation in public.
Media has played an active role in making the idea of homosexuality more acceptable to the Indian public. Books like A Suitable Boy authored by Vikram Seth and Oscar-winning movies like Brokeback Mountain that have gay characters have helped give people an insight to the life of gays.
Various organisations like the Naz Foundation have taken up the cause of homosexuals. New laws, granting equal rights to homosexuals are being demanded. Existing laws are being amended to make provisions for the homosexuals. Queer legal theorists have now started questioning laws that seem discriminatory towards queers.
We need to recognize the fact that people with different sexual orientation are also an integral part of the human population. Recognition of LGBTs as a minority should be made. Just like we have constitutional provisions to protect linguistic minorities, religious minorities, etc., provisions related to protection of LGBTs should be made. The basic structure of the Constitution itself should uphold the ideal of equality towards all, including the homosexuals.
Moreover, it is a question of their individuality. Their sexuality is a vital part of their identity. It is the way they have been created.
Every person has the right to choose his/her way of life and to be proud of that. It is a duty of the society to respect an individual’s choice. The “queers” need the support of their family and friends to come out of the closet and live a normal life, where they are treated like their straight counterparts. They need to be accepted as they are. They are no less worthy of respect.
The Right to Equality is a fundamental right of every Indian. Laws in India need to be amended in order to ensure that even people with different sexual orientation are ensured equal protection. To be treated equally is their right, not a privilege. They are not to be discriminated against just because of their sexuality. Their right to dignity should be preserved.
Not only should homosexuals not be denied the right to marry, they should be given equal adoption rights. After all, they too have the right to a healthy life, which includes the right to a family. We as individuals cannot take away these natural rights from them, thus doing them grave injustice.
Like every injustice that is fought with perseverance and determination, the war against this kind of “queer” discrimination also requires the co-operation of people who can help in making the gays live with pride.
Gay pride parades, gay bars and cases such as the Naz Foundation case mark the beginning of the “queer revolution”. With several N.G.O.s and international human rights groups standing up to support the LGBTs, the day is not far when the queer minority too would enjoy the same status as the straight majority.
“So, let us pray and hope for the day
when we may hear the universal echo,
that IT IS LEGAL TO BE GAY!”
[1] Barack Obama Hussein Junior’s Presidential acceptance speech (2008),
available at http://obamaspeeches.com/E11-Barack-Obama-Election-Night-Victory-Speech-Grant-Park-Illinois-November-4-2008.htm (last visited Dec. 10, 2010).
[2] Prophet Moses, Leviticus
[3] Id.
[5]160 Delhi Law Times 277
[6] The Naz Foundation (India) Trust (NI) is a New Delhi based NGO working on HIV/AIDS and Sexual Health since 1994.
[7] Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life], or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine. Explanation -Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
[8] A gay bar is a drinking establishment that caters to an exclusively (or predominantly) gay, lesbian, bisexual, and transgender (LGBT) clientele. Gay bars once served as the epicentre of gay culture and were one of the few places people with same-sex orientations and gender-variant identities could openly socialize.
[9]Barack Hussein Obama Junior’s Presidential Proclamation (2009),
(last visited Dec. 10, 2010).
[10] James Arthur Baldwin (August 2, 1924 – December 1, 1987) was an American novelist, writer, playwright, poet, essayist and civil rights activist. Most of Baldwin's work deals with racial and sexual issues in the mid-20th century in the United States.
[11] The Human Rights Campaign represents a grassroots force of over 750,000 members and supporters nationwide. As the largest national lesbian, gay, bisexual and transgender civil rights organization, HRC envisions an America where LGBT people are ensured of their basic equal rights, and can be open, honest and safe at home, at work and in the community.
[12] A civil union is a legally recognized union similar to marriage. Civil unions can often come under other terms such as registered partnership and civil partnership. Beginning with Denmark in 1989, civil unions under one name or another have been established by law in many developed countries in order to provide same-sex couples rights, benefits, and responsibilities similar (in some countries, identical) to opposite-sex civil marriage. In some jurisdictions, such as Quebec, New Zealand, and Uruguay, civil unions are also open to opposite-sex couples.
[13] Kuehl was elected to the California State Assembly in 1994, becoming the first openly gay person elected to the California legislature. She was later a founding member of the California Legislative LGBT Caucus.
[14] Creators of South Park (an American animated sitcom)
[15] Jordan Smith, 27, of White Rock, British Columbia, was brutally assaulted on September 27, 2008 by 20-year-old Michael Kandola of Vancouver. Smith was holding hands with another male while walking in Vancouver's Davie Village, an area frequented by GLBTQ individuals, when Kandola started following the pair with four to five of his friends and began shouting anti-gay obscenities towards the gay pair. Kandola confronted the two and punched Smith on the side of his head, knocking him unconscious. Smith required surgery for his injuries. Kandola was charged with assault causing bodily harm, and police sought to invoke Canadian hate-crime legislation against Kandola. A Facebook group with over 4000 members had been established, petitioning for a minimum life imprisonment sentence for Kandola. On April 30, 2010, the assault was deemed by the B.C. Supreme Court to be a hate crime and Kandola was sentenced to 17 months in jail.
[16] On 30 June 2005, the fourth annual Pride march of Jerusalem took place. It had originally been prohibited by a municipal ban which was cancelled by the court. Many of the religious leaders of Jerusalem's Muslim, Jewish and Christian communities had arrived to a rare consensus asking the municipal government to cancel the permit of the paraders.
[18] Stop Murder Music is a campaign to censor alleged homophobic work of certain Jamaican musicians, primarily dancehall and reggae artists such as Buju Banton, Bounty Killer, etc. The campaign accuses these artists of promoting violence against LGBT people through the lyrics in their music and attempts to stop this.
[19] An Aligarh Muslim University professor, on the verge of retirement, was suspended after some students set up cameras to catch him having consensual sex with a rickshaw-puller in his campus home, and sent the video film to university authorities.
[20] The committee included fourteen men and three women, thirteen of whom served for the entire three years of the committee's deliberations. The committee included, among others, two judges, a Foreign Office official, a Scottish Presbyterian minister, a Conservative MP, a consulting psychiatrist, the vice-president of the City of Glasgow Girl Guides, and a professor of moral theology. It was commissioned in 1954 in the aftermath of a number of high-profile prosecutions for homosexual behaviour, including the 1953 arrest for soliciting of newly knighted actor Sir John Gielgud and the sensational 1954 trial of the Montagu/Pitt-Rivers/Wildeblood case in which a peer (Lord Montagu of Beaulieu), his cousin (Michael Pitt-Rivers), and a journalist (Peter Wildeblood) were convicted of having sexual relations with young working class men and received sentences ranging from twelve to eighteen months imprisonment.
[22] Decision given in Naz Foundation vs. Government of NCT of Delhi: "it is not within the constitutional competence of the State to invade the privacy of citizens’ lives or regulate conduct to which the citizen alone is concerned solely on the basis of public morals. The criminalisation of private sexual relations between consenting adults absent any evidence of serious harm deems the provision's objective both arbitrary and unreasonable. The state interest “must be legitimate and relevant” for the legislation to be non-arbitrary and must be proportionate towards achieving the state interest. If the objective is irrational, unjust and unfair, necessarily classification will have to be held as unreasonable.”
[23] The Sexual Offences Act 1967 is an Act of Parliament in the United Kingdom. It decriminalised homosexual acts in private between two men, both of whom had to have attained the age of 21. The Act applied only to England and Wales and did not cover the Merchant Navy or the Armed Forces. Homosexuality was not decriminalised in Scotland until passage of the Criminal Justice (Scotland) Act 1980 and in Northern Ireland by the Homosexual Offences (Northern Ireland) Order 1982.
