“But how can you expect me to go against the law?” DR’s mother asked her at the end of another conversation about DR’s sexuality. DR, a 32-year-old media professional, was visiting her parents, who lived in another city, intent on setting boundaries six years after she had come out to her parents. Her queerness was not a phase, her female-bodied gender-queer partner was not going anywhere, and the least her mother could do was not speak about marriage at all, as doing so only rendered DR’s queer relationship invisible, and that was demeaning.
But the statement gave DR pause. It was an insight into her mother’s not insignificant concern about her daughter’s unwitting criminality.
Soon after the 11 December 2013 verdict of the Supreme Court that upheld Section 377, which criminalizes consensual adult non-penile vaginal intercourse, the matter of recriminalization was one of the foremost concerns in the lesbian, bisexual, gay and transgender communities. The last have—through a plethora of laws starting with the 1897 amendment to the Criminal Tribes Act of 1871, which was subtitled “An Act for the Registration of Criminal Tribes and Eunuchs”—faced criminalization for years. Section 377 of the Indian Penal Code only serves to highlight the contradiction between the fundamental rights of transgender persons of this country and a law that strips them, and the lesbian, gay and bisexual communities, of these rights. Legal redressal has been slow in coming—it was only in 2014 that the Supreme Court delivered the Nalsa (National Legal Services Authority of India) verdict that recognized transgender as a third gender, with the right to self-identify, among other things.
The reading down of Section 377 is just one of the ways in which LGBT communities in India can achieve a degree of equality with other citizens. But for DR’s mother, and countless other birth parents of LGBT persons no doubt, criminality is not simply a matter of law. It’s intricately linked to the social and cultural mores of what is acceptable behaviour and what isn’t, and how sexuality—particularly female sexuality—is policed. DR’s mother didn’t just want her daughter to marry, she wanted her to not be the “other”. She wanted her daughter to accrue the benefits and entitlements that society bestows to a straight, married woman. She wanted her daughter to access the relative safety of conforming.
A more in-depth insight into sexuality and gender roles rests on understanding criminality within broader brush strokes. DR’s choosing to not marry, her exercising the right to have consensual intercourse outside of marriage, and of asserting her sexuality outside heterosexuality, all render her criminal in ways that go beyond the Indian Penal Code.
Two years ago, when I began this column, my second piece was about coming out. I had written, “Coming out—if done and received well—is cathartic. It’s also an act of great courage, and often requires one to take a leap of faith.” As DR’s story reveals, many instances of coming out take place in a context that doesn’t recognize the trauma of criminality: each queer person is an “unapprehended felon”, to use a memorable phrase used by a sympathetic Delhi high court judge. The context often plays a role in ascribing criminality to the queer person in the first place. So while coming out is cathartic, sometimes it’s the calling out that might make all the difference to the queer person.
The Sex Talk is a monthly column on gender, sexuality and blind spots. Dhamini Ratnam tweets at @dhamini.