It still takes courage to say out loud ‘I’m in a same-sex relationship’
Sprinter Dutee Chand became India’s first athlete to declare openly that she is in a same-sex relationship, in a press conference last week. Unfortunately, while she has been receiving praise internationally, she has limited support from her family and the Indian sports fraternity. On the other hand, the Madras high court ruled in late April that marriage between trans and cis individuals would be considered valid.
These news items are indicative of the dichotomous nature of rights recognition for LGBTQIA+ people in South Asia. To reflect upon this FNF South Asia’s Human Rights team did a round-up of legislation impacting SOGI(E) rights in the region.
According to Amnesty International, 76 countries criminalise sexual acts between consenting adults of the same sex. Out of these 76 countries, 6 are from South Asia; Afghanistan, Bangladesh, Bhutan, Pakistan, Maldives and Sri Lanka. Except for Nepal, none of the South Asian countries have constitutionally ensured that individuals are not discriminated against based on their sexual orientation. This can be attributed to the fact that most South Asian countries are still plagued by colonial-era legislations, which consider homosexuality “an offence against the order of nature”.
However, more countries in South Asia have been proactive in recognising rights relating to gender identity. This piece traces the status of rights granted with respect to sexual orientation and gender identity in various South Asian countries. Most South Asian countries are now showing progress in guaranteeing peoples’ sexual orientation and gender identity (expression) (SOGI(E)) rights. But the societal attitudes towards sexual and gender non-conforming people have not changed.
Sexual Orientation in South Asia
Nepal is at the forefront in South Asia in ensuring that the LGBT+ community is protected against 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 enjoyment of all rights under the Constitution (then to be ratified) as well as in international law. Under this judgment, the State was directed to ensure that the community could access rights without any discrimination. Homosexuality was also decriminalised by this judgment. 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 the example laid down by Nepal and decimalise homosexuality. After fighting a battle in the judicial system of India that lasted more than two decades, homosexuality was decriminalized by a judgment from the Supreme Court of India in September 2018. The Supreme Court judgement read down Section 377 of Indian Penal Code and said that homosexuality would not be considered “against the order of nature”.
Gender Identity in South Asia
Pakistan became the first country to legally recognize a third gender category. In 2009, Pakistan’s Supreme Court passed judgement deeming transgender people full and equal citizens. Later on, in May 2018 Pakistan passed another law allowing transgender people to self-identify as male, female or a “third sex” on official documents. The law was later extended to protect transgender people from any kind of discrimination faced in educational institutions, workplaces, and while utilising the healthcare services 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 ‘eununchs’, intersex people and transgender people. However, such recognition came with intrusive medical examinations which would stretch over a number of weeks. Further, since there are no guidelines dealing with recognition as ‘Hijra’, officials act and rely on their personal understanding while changing official documents. This causes unwarranted reliance on personal prejudices, leading to discrimination.
India’s Supreme Court in 2014 issued a judgment that upheld the right of self-identification for transgender people. Unfortunately, the Transgender Persons (Protection of Rights) Bill 2018, does not permit self-identification as sufficient to legally change a person’s gender on official documentation. It instead requires mandatory sex reassignment surgery, a move that has been heavily criticised. However, the bill still guarantees basic protections against discrimination to transgender persons. The bill is currently pending in the Upper House of Indian Parliament. Sri Lanka’s Ministry of Health, Nutrition and Indigenous Medicine has guidelines, criteria and a specific process for the issuance of Gender Recognition Certificates (GIC) for anyone seeking a legal gender change. People who seek a legal gender change are required to fill out a single form as an application to amend all pertinent government records. But GIC is only issued after psychiatric diagnosis of transsexualism based on the International Classification of Disease 10. A person receiving this diagnosis is referred to hormone and surgical treatment. The country does not provide any protections to transgender people.
In Afghanistan, Bhutan and Maldives SOGI(E) rights are not protected under any category. Homosexuality is criminalised and the right to change gender legally is ambiguous. These countries have, so far, not showed any enthusiasm to recognise the rights of the LGBT+ community.
‘Any rule which deprives someone of happiness is wrong’, Chand mentioned in an interview immediately after her proclamation. Governments in South Asian countries have often used cultural relativism to support practices recognised as detrimental to human rights. However, cultural contexts cannot deprive an individual from being in a same-sex relationship. Author feels that the situation is pitiful for nation if a self-proclaimed godman/godwoman gets more acceptance from society than self-proclaimed trans person.
Civil society organisations in South Asian countries have been fighting for a long time against the discrimination faced by the LGBT+ community. South Asian countries often face entrenched discrimination against people who do not conform to gender and sexual norms. This discrimination is pervasive, affecting not just private life, but also officials responsible for ensuring that progressive policies are implemented. Countries in the region have a long fight ahead of them to ensure that LGBTI+ individuals are treated equally in the eyes of both society and law.