Contents   Abstract 1. Introduction 2. The Cross Cultural Existence of Sexual Minorities 3. The Global Scale of Oppression 4. The Global Scale of Resistance   4.1 Use of Quasi-judicial Bodies to Litigate the Rights of Sexual Minorities 4.2 Use of International Law for the Purpose of Advocacy of the Rights of Sexual Minorities 4.3 National Human Rights Initiatives and their Internationalisation 5. Human Rights of LBG in the Indian Context   5.1 The Position in Law 5.2 Efforts at Human Rights Articulation   5.2.1 The National Law School Seminar on Gay Rights (1997) 5.2.2 The Campaign for Sexuality Minority Rights (CSMR) 6. Conclusion: Problematic of Human Rights Articulations Notes and References   Download

Arvind Narrain
National Law School
India University
arvindnarrain@hotmail.com
 

 Abstract

This commentary examines the global discourse on Lesbian, Gay and Bisexual (LBG) rights and how there has been a shift from a silence to an increasing articulation of rights. It also attempts to trace the interaction between the global and the local discourses with particular reference to India. That is, the way the global discourse has been tracked by the increasing proliferation of LBG voices, which are using human rights language in the Indian context.

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This is a Refereed article published on 19 December 2001.

Citation: Narrain A, 'Human Rights and Sexual Minorities: Local and Global Contexts', Refereed article, Law, Social Justice & Global Development (LGD), 2001 (2), <http://elj.warwick.ac.uk/global/issue/2001-2/narrain.html>.New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2001_2/narrain/>

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1. Introduction

Human rights movements as an international basis for mobilisation and resistance to oppression emerged after the Second World War with the International Bill of Rights[1]. Though the second half of the twentieth century has been characterised as 'the age of human rights' with the point being made that:

One such silence has been the entire discourse on the rights of sexual minorities which finds no express mention in either the International Bill of Rights or the regional human rights conventions[2]. The silence is all the more extraordinary when one takes into account the fact that it was the supposed horror of the holocaust which triggered the development of international human rights law. Yet what is ignored in this telling of history is that thousands of homosexuals were persecuted by the Nazis and thousands of gay men died in the concentration camps (Plant, 1988, Grau, 1995)[3 ]. Yet those who suffered and died are not worthy victims which only goes to show the profoundly homophobic nature of modern society. And quite obviously persecution on the basis of sexual orientation did not produce either acceptance of the rights of gays and lesbians either at the level of norms or at the level of practise[4]. It was only the greater visibility of LBG people world-wide that and the mobilisation which took place on the basis of a gay/lesbian identity which has pushed sexual orientation onto the human rights agenda.

 

It was as late as 1991 that Amnesty International interpreted its mandate to consider as prisoners of conscience:

This interpretation of the mandate wherein the word sex was taken to include sexual orientation was not without immense internal struggle[5]. The issue was cast in terms of a 'western notion of homosexual rights' which was a non-issue in non-western societies.

What the opponents of LBG rights as human rights put forward was that in societies where homosexuality is considered a physical ailment or a reflection of socially deviant behaviour, activities on behalf of such individual would be seen as not related to human rights and make Amnesty look ridiculous. Moreover if Amnesty were to work for imprisoned homosexuals, this would risk involving it in having to deal with all sorts of other sexual practices (Baehr, 1994).

 

In its resolution the International Council instructed the International Executive Committee to draft guidelines regarding action on behalf of imprisoned homosexuals,

This sharply polarised way in which the silence was broken indicates three major issues which proponents of the rights of sexual minorities will have to face.

• To demonstrate the cross cultural existence of sexual minorities;
   
• To demonstrate the global scale of oppression of the rights of sexual minorities guaranteed under both national and international law;
   
• To show that global oppression on the basis of sexual orientation has resulted in a global resistance to the forces of oppression, which is both local and international in scope.

2. The Cross Cultural Existence of Sexual Minorities

This question has to be addressed to lay to rest once and for all the notion that LBG rights are a western cultural import, which have no relevance to other societies. Just as one can not homogenise communities as male and construe male cultural practises as the practises of a culture[6] one needs to take seriously the notion that definitions of community are very often not only patriarchal but also heterosexist. If one starts from the stories of sexual minorities in non western societies and see what they think of the notion of their desires as western and of the notion that homosexuality does not exist in our culture one would arrive at a very different notion of our culture which problematizes both the notion of 'our' and the notion of 'culture'[7].

 

Various studies seem to indicate that sexual minorities exist in almost all cultures. In a seminal anthropological study in 1951, Yale University Professors, Cllelan Ford and Frank Beach found that:

They go on to conclude:

William Eskridge Jr. has written of the existence of same sex or transgender unions in 19th Century Nigerian society, pre Colombian native American society, 19th Century Zuni society, ancient Egyptian, Greek and Roman society, Mesopotamian society, the Azande, Siwah, El Garah, Basotho, Venda, Meru, Phalaborua, Nuer, Bantu and Lovedu society in Africa, the Paleo Siberian, Chinese, Vietnamese, Indian, Japanese, Burmese, Korean, and Nepalese societies in Asia (Eskridge, 1993).

 

Gilbert Herdt has also edited a book in which he documents what he calls the third sex, third gender, the:

Through cross cultural studies of the berdache in native American culture, the hijras in India, and transsexual people in Polynesia, the Balkans, and New Guinea, the sexual diversity of different societies is shown.

In the Indian context the 10 reported cases of marriages between women since 1988 explodes the myth of homosexuality as western. The most widely reported marriage was that of two policewomen Leela and Urmila who got married in front of 40 witnesses in a temple. What is common to them and the nine other couples other than the fact that society tried to break up the relationship was that:

In the light of this compelling evidence of the existence of sexual minorities across cultures and through time, James Wilets notes that if there is a specifically western contribution it is not homosexuality but homophobia. As he argues:

The knowledge that homophobia is largely a colonial legacy lies is the fact that anti sodomy legislations through out the third world were born in colonial times[8].

 

3. The Global Scale of Oppression

International human rights treaties are explicit in the applicability of their provisions to all people. What the global survey carried out by James Wilets reveals is that sexual minorities in the practise of states and civil society are often excluded from the protection afforded to all people (Wilets, 1995). In a wide ranging survey he looks at the right to life, freedom from torture, freedom from arbitrary arrest, right to equal protection and non discrimination, right to privacy, freedom of expression, freedom of association, right to marriage, right to asylum and right to work. Though these freedoms are guaranteed by international law and very often by national laws to all people, he shows that when it comes to sexual minorities these basic rights are violated with impunity. To give some flavour of what Wilets documents at length, if one takes the most basic right[9], the right to life a cross cultural survey reveals:

The right to life of sexual minorities is violated in advanced industrial countries with well established gay rights movements. The recent murder of a 19 year old student Matthew Shepard in Wyoming, USA by two men who picked him up in a gay bar, took him to a secluded place and then brutally pistol whipped him to death is testimony to how pervasive is the social hatred of LBG people[10]. This murder resulted in a huge outpouring of rage and led to demonstrations and vigils in many parts of the United States. The Internet was also used effectively to mobilise the LBG community in other parts of the world (Ibid). Gay bashing as a phenomenon is fairly widespread in the USA and Matthew Shepard was by no means the first gay person to be murdered[11]. The state stands implicated in this form of violation of the right to life of sexual minorities because it plays a positive role:

As Nicholas Toonen put it in his path breaking complaint to the Human Rights Committee, the anti sodomy laws:

In effect the state acts as an ideological instrument which legitimises violence against sexual minorities.

Thus right to life which is guaranteed under international law is violated directly through state law as in the case of Iran, through the complicity of the state in the aiding and encouraging of right wing groups as is the case in Columbia and through state laws which create a climate of hatred which manifests itself in the violation of the right to life as is the case in the USA.

4. The Global Scale of Resistance

Oppression of sexual minorities like the oppression of women has been identified as a global phenomenon. The oppression operates through what Foucault would call the power knowledge complex wherein discourses about sex produce the homosexual in pathological terms.

As Foucault famously put it:

However the discourses which produce the homosexual as a pathological species is not unidirectional.

So violation of the rights of sexual minorities rests upon the very discourse of law. Law has been instrumental in producing the homosexual as the pathological other (Collier, 1995, 87-129)[13]. This does not then mean that the field has been vacated, with there being no space for resistance.

One such resistance to the exercise of power which has been patiently built up, is the notion of the rights of sexual minorities as human rights.The very articulation of the violence inflicted on sexual minorities in terms of the violation of rights and the categorisation of the violence in terms of the violation of the rights guaranteed under the International Bill of Rights is a counter discourse[14].

The reason why resistance can be conceptualised as global is not only because resistance to power occurs in every part of the world where there is power but also because today the resistances are being increasingly networked[15]. Human rights discourse means that the violation of the rights of sexual minorities in any part of the world is a legitimate concern of every human being. Thus normatively, the fact that gay people in the United States are subject to gay bashing is a concern of human rights activists world-wide. This normative concern is slowly being forged through the various gay/lesbian organisations[16] and human rights groups[17], which are breaking the silence on the rights of sexual minorities. The progressive internationalisation of the rights of sexual minorities has been achieved through the use of quasi-judicial bodies and the use of international law for the purpose of advocacy of the rights of sexual minorities.

 

4.1 Use of Quasi-judicial Bodies to Litigate the Rights of Sexual Minorities

The use of the quasi-judicial procedure under the Human Rights Committee[18] in the case of Toonen Vs Australia[19 ] was really the first time that sexual minorities rights were internationalised. In this case Nicholas Toonen, a gay rights activist resident in the Australian state of Tasmania challenged the anti sodomy law as violative of Art 2 (1) Art 17 and Art 26 of the ICCPR[20].

 

The Human Rights Committee held that the anti sodomy statute did violate Toonen's right to privacy guaranteed under Art 17. The Committee also held that the reference to the word sex in Art 2(1) and Art 26 is to be taken as including sexual orientation .It held that Art 2(1) was also violated but refused to rule on if Art 26, the non discrimination clause was violated. According to Helfer the decision:

The decision at the level of materiality had the effect of forcing Tasmania to repeal the anti sodomy law ( ibid). At the level of discourse it opened up sexual orientation as a part of human rights language .The rhetoric of rights became the new tool through which one could articulate the complex feelings, emotions and desires associated with homosexuality in a language which had to be listened to[22 ]. At the level of the law it opened up the use of the right to privacy to question the validity of anti sodomy statutes, it put forward the possibility of interpreting sex to include sexual orientation in anti discrimination clauses[23].

 

4.2 Use of International Law for the Purpose of Advocacy of the Rights of Sexual Minorities

In the international arena where human right is a marketable commodity there is a sad tradition of human rights in the service of the national interest of powerful states. As Santos notes:

However there is the other tradition where human rights concern flows from global civil society:

It is this other tradition which can be seen as the source of international pressure being applied upon nation states to change their discriminatory practises vis-a-vis sexual minorities[24]. For example, the cancellation of the International Gay and Lesbian Association's Conference in Guadalajara in Mexico, occasioned widespread protest by AI, IGLHRC and even 28 members of the United States Congress based on the fact that right to freedom of association is guaranteed by international law (Wilets, 1995, 91).

This culture of the rights of sexual minorities as human rights is also getting institutionalised through the formation of the European Union, due to LBG people putting forward their claims for equal citizenship through various activist organisations[25]. This institutionalisation in turn acts as a pressure point on members to change their discriminatory laws and also can be useful in ensuring commitment to rights of sexual minorities of nations wanting to join the European Union .The test case in Romania, which needs to repeal its anti sodomy laws before membership of the European Union is considered (ibid, 20).

 

4.3 National Human Rights Initiatives and their Internationalisation

In a networked society changes at the national level often have international implications and global changes have their impact on national jurisdictions. Wilets notes:

One of the most crucial changes in national jurisdiction which has international implications is the adoption of the new constitution of South Africa on December 10, 1996.

South Africa is the first country in the world to expressly include sexual orientation as a prohibited ground of discrimination in its non discrimination clause[26]. The constitution also allows for affirmative action measures to achieve equality[27].

 

With regard to affirmative action, Johnson argues that:

The position of the human rights of sexual minorities is further strengthened due to the provision in the South African constitution which provides that international law must be considered in the interpretation of the Bill of Rights. The constitution also provides that foreign case law may also be considered[28]. This means that progressive decision in all jurisdictions become instrumental in interpreting the Constitution. Toonen Vs Australia[29], the decisions of the European Court of Human Rights[30], decisions like Romer Vs Evans[31] and Baehr Vs Hawaii[32] in the USA and M Vs H in Canada[33] all have implications for the lives of LBG people in South Africa.

The changes in South Africa have global implications. The entire debate on universality of human rights versus cultural relativism is given a new twist by South African developments. For the first time it is a developing country which has taken the lead with respect to the rights of sexual minorities[34]. This obviously means that it becomes that much more difficult to dismiss the rights of sexual minorities as a western concern. The South African constitution as a normative instrument, is the best challenge to the virulent homophobia of many African leaders[35].

The South African constitution also shows that it was a product of the struggles of black, socialist and gay/lesbian people and when the time came to make a new beginning an attempt was made to include all minorities. Due to the courage of those who were in the anti apartheid movement and still identified themselves on the basis of a gay/lesbian identity[36] we had the first democratic revolution in which gay lesbian people were taken to be equal citizens with their heterosexual compatriots.

 

In the context of Africa which has the least number of organised gay rights movements world-wide, the South African example will provide a normative vision to aid similar struggles world-wide.

5. Human Rights of LBG in the Indian Context

Globally the rise of LBG rights as human rights has been shown to be a slow movement from silence to an increasing proliferation of voices. The Indian context also shows a movement from a silence to an increasing articulation of rights of sexual minorities. This section will look at how the legal framework has treated the LBG population and today groups articulating LBG rights are increasingly using human rights language.

5.1 The Position in Law

The constitutional framework extends protection to all persons[37]. However no specific mention of sexual orientation as a ground of non-discrimination stands articulated within the constitutional framework. However activists had filed a petition with the Delhi High Court challenging the constitutionality of Sec 377 of the Indian penal code which prohibits carnal intercourse against the order of nature between a man and a man, man and a woman and a man and an animal. The challenge was on the grounds of violation of Art 14, 15 (right to equality and non-discrimination), Art 19 (right to freedom of speech and expression) and Art 21 (right to life which encompasses the right to privacy). The petition filed in 1994 is still in cold storage. Based on the was sex has been included to include sexual orientation and the use of the right to privacy argument to strike down anti sodomy statutes in international human rights law the normative possibilities of the Indian constitution still remain open[38]. Underlying the Indian constitution is the legal framework containing both civil and criminal laws impacting on LBG rights.

As far as criminal laws[39] are concerned specific attention will be focussed on the main provision used to police same sex desire which is Sec 377 of the Indian Penal Code. Sec 377 reads:

Explanation- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section. This provision does not distinguish between consensual and non-consensual sexual activity and is a clear importation of a Judeo Christian morality into the framework of the criminal law. It is important to note that the prohibition applies to certain kinds of sex which the judiciary has interpreted as belonging to the category:

This prohibition is neutral as to identity and as it exists applies both to heterosexuals and homosexuals. Consensual homosexual activity is not the only target of the law.

This seems to be validated by an analysis of the case law under Section 377 in both the High Courts and the Supreme Court from 1860 to 1989. The large majority of prosecutions have been for non–consensual acts of sodomy, with only 4 cases where consensual acts of sodomy have been brought to court, 3 of them prior to 1940. In addition most of the cases, 15out of 30 are of assaults on minors, only 5 out of 30 being on adults (Khan, 1992).

However an analysis of the law based on the materiality of its use produces a different picture, The police under the Criminal Procedure Code, have the power to arrest on suspicion that a crime is going to be committed. It is this power which is used to harass the homosexual population who frequent the public parks (ABVA, 1991). There are documented cases of police abuse, which includes illegal detention, extortion, abuse and intimidation of the homosexual population. The silence and shame around the issue of homosexuality is so great and the fear of being outed is so prevalent that a lot of those who are caught by the police prefer to pay the police rather than fight back. Almost none of the cases go to court with the person being let off after he has paid of the police officer (PUCL, 2000 , forthcoming). Apart from the human rights abuses, which are legitimised by law, its impact is also in terms of discursive constructions of homosexuality. This is also in terms of producing the homosexual as a furtive figure, who is always about to commit a crime. A stigmatised identity of the homosexual as criminal is produced by the operation of the law. This production of the homosexual through the materiality of police action is further reinforced by the media. Newspaper reports of periodic raids of public places produces the homosexual as criminal in the larger public eye (Fernandez, 1999, 66). The structure of the criminal law thus acts along with other societal structures to produce homosexuality as an unnatural deviant activity.

What is also to be noted is that, within the wording of section 377, the lesbian act is not the subject of criminalisation[40]. This flows from the requirement of penetration to constitute the offence.

In terms of civil laws, the entire gamut of benefits which flow out of the institution of marriage are heterosexually ordered. Marriage under all personal laws and the Special Marriage Act is defined as an arrangement between two members of the opposite sex. This has caused particular violence to lesbian women in India who have forcefully articulated their desire to have their relationship validated by marriage. There have been ten documented cases of lesbian marriages since 1988, all of which were subverted once they became publicised (Fernandez, 1999 , 73)[41].

Consequently all the benefits which flow out marriage including adoption and succession accrue only to a heterosexual couple. The benefits, which flow out of, labour laws, insurance laws depend on the definition of family. Either because of the statutory framework or because of judicial interpretation, all benefits flow only to the members of the heterosexual family (Desai, 1999)[42]. Thus what is clear is that the homosexual population is a subject in the criminal law who is fit to be harassed, but invisible in the civil law as a rights holder.

 

5.2 Efforts at Human Rights Articulation

As has been noted before human rights language functions to eloquently put forth the suffering imposed by society upon LBG people. No other language is as acceptable in talking about same sex desire in a non-pathological sense. The opening of human rights space for issues of sexual minorities means that human rights communities around the world will have to continue to grapple with the issue of LBG rights as human rights. However it has to be noted that most human rights groups have not succeeded in taking LBG rights on board as part of the human rights agenda[43].

The articulation of LBG rights has proliferated in the last fifteen years. There have been campaigns, protests , seminars, mission statements and public hearings all of which have broken the silence on LBG rights. With the emergence of stronger and more articulate LBG communities' human rights space is being occupied by those who have historically been left out. Groups have used human rights language both at the level of discourse and at the level of materiality. An example will be taken up to illustrate both respectively.

5.2.1 The National Law School Seminar on Gay Rights (1997)

This was the first time that a seminar on gay rights was held in an academic institution. The Law School proved to be a suitable environment for such a seminar to be held because of the familiarity with the language of rights. It was difficult to articulate an opposition to the seminar as the organizers had appropriated the space opened up by human rights discourse. The opening of discursive space within the Law School has had a ripple effect with some faculty members and most students opening their minds out to others who might choose a non heterosexual way of life. This was evident in a recent programme organised by the Law and Society Committee in which a person with church affiliations spoke on how homosexuality was a wrong choice because it was against the law, spread disease and because homosexuals led a sinful life. The 50 odd students who were gathered there spontaneously disagreed strongly with the hatred and prejudice on view. There is also a change from a hidden discourse to something students take up as a fit subject for study as is evident in the fact that there are family law projects on same sex marriages and adoption and law, poverty development projects on LBG rights[44].

5.2.2 The Campaign for Sexuality Minority Rights (CSMR)

This was a coalition, which was formed to campaign against the police harassment of gay/bisexual men in the cruising areas in Bangalore City in 2000. The coalition consisted of women's groups, human rights lawyers, and groups articulating the concerns of the sexuality minority community. The Coalition distributed around 500 leaflets protesting against police harassment and putting forward the rights of people on being arrested in the cruising areas. The group also took up a media campaign against police harassment[45].

 

6. Conclusion: Problematic of Human Rights Articulations

While seeing how useful human rights doctrines are, one also has to note their limitations. Human rights norms are useful when it comes to contesting abuses which occur in the public sphere, but when discrimination is more subtle and depends on the existing social framework of homophobia then it becomes that much more difficult to contest. Societal attitudes and prejudices, which cause discriminatory behaviour, would be difficult to target using human rights language. Take for example the issue how the family enforces heterosexuality as the only option possible for all its members. In such a case the pain, isolation and rejection faced by those who come out is difficult to capture in human rights language. Human rights doctrines might also be unable to tackle structural factors of homophobia. If the reason why homophobia exists and increases is because of the structures of both capitalism and patriarchy. Human rights does little to address the root causes (D'Emilo, 1992).

Endnotes

1 . The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Social and Economic Rights are taken to be the International Bill of Rights.

2. The European Convention of Human Rights, the African Charter on Human and Peoples Rights and the American Convention on Human Rights do not mention sexual orientation.

3. As Grau puts it: 'the declared aim of the Nazi regime was to eradicate homosexuality. To this end homosexual were watched ,arrested ,registered , prosecuted and segregated ; they were to be re-educated , castrated and if this was unsuccessful –exterminated' (Grau, 4).

4. In true Orwellian fashion the Stalinist state persecuted homosexuals denouncing homosexuality as a fascist perversion , completely ignoring Nazi perpetrated genocide of gay people (Wilson, op.cit.).

5.The Charter in Art 1a reads: 'the imprisonment … of any person by reason of his or her political, religious … sex, colour or language provided that he or she has not used or advocated the use of violence' is a prisoner of conscience. It has also to be noted that what AI went in for was an interpretation of their mandate and not an amendment of their mandate to include sexual orientation.

6 . Das asserts that: 'there is a double definition of culture as a system of shared meanings which both define collective life as well as keep an individual within strict social bounds. This manifests itself in definitions of community in the polarity community rights versus the state as specifically male' (1996, 117).

7. Due to the social disapprobation attached to same sex desire such writing by the marginalized in subordinate culture is itself a question of breaking the silence. See Selvadurai, 1995, Chugtai , 1990, Merchant, 1999, Sukthanker, 1998. Sukthanker and Merchant have edited the first Indian gay and lesbian anthologies respectively.

8 . India, Pakistan, Hong Kong, Malaysia, Kenya and every other British colony had a provision similar to Section 377 of the Indian Penal Code. See Hendriks et al, 1993. .

9. Art 3 of the UDHR states that: 'everyone has the right to life liberty and the security of person. Art 6 of the ICCPR states: 'Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life'.

10. The well known gay novelist, David Leavitt, writing in the context of Matthew Shepard's death said of himself and his lover: 'even though we share a house, a bed, a car, and a bank account, when we walk together in any city, we never hold hands, and not because we flinch at public display of affection, but because we are afraid of being killed' (Gay Times, December, 1998).

11. Gay bashing is itself seen as a hate crime motivated by the actual or perceived sexual orientation of the person attacked.. It is intended to intimidate not only individuals per se, but the entire group to which the individual is thought to belong. This particularly vicious hatred is on the rise. A report of the US ministry of justice noted that: 'members of the gay community are more likely than are members of ethnic or religious minorities to be attacked because of their minority status' (Nardi, 1998, 412).

12. Comm.No.488/1992, UNGAOR Hum. Rts.Comm,49 Sess, Supp. No 40, Vol 2 at 226, UN Doc. A/49/40 (1994).

13. The anti sodomy statutes in many post colonial states show how homosexuality is constructed as unnatural and against the order of nature. The silence in all other areas of law right from contract, to family law to insurance laws only reinforces the purely pathological nature of homosexuality constructed by criminal law.

14. The counter discourse is embedded in its own problematics as will be demonstrated. Human rights discourse is both hegemonic, silencing and liberatory at the same time. In Foucault's words, there is a 'tactical polyvalence of discourses' (Foucault, 1976, 100).

15. See Castells, 1997. In his analysis he shows how the Zapatistas networked their resistance using the internet to great effect thereby creating a global resistance movement out of a local struggle.

16 . International Gay and Lesbian Association, International Gay and Lesbian Human Rights Commission are the two international organisations.

17. Amnesty International and Human Rights Watch have taken on board discrimination on the basis of sexual orientation as part of their mandate.

18. For an individual to access the complaint procedure to the Human Rights Committee, the state party complained against must be a signatory to the Optional Protocol to the ICCPR.

19. See supra n.12.

20. Art 2 (1) provides that each state party will ensure to all individuals the: 'rights recognised in the present Covenant, without distinction of any kind, such as … sex … political or other opinion … or other status'. Art 17 provides that no one shall be subjected to: 'arbitrary or unlawful interference with his privacy ...'. Art 26 provides that all parties are: 'equal before the law and are entitled without any discrimination to the equal protection of the law'.

21. The court in Norris Vs Ireland, 13 Eur. Ct.H. R.149 (1981), Dudgeon Vs Great Britain, 4 Eur. Ct. H. R. 149 (1981) and in Modinos Vs Cyprus, 16 Eur. Ct. H.R (1993), held that the anti sodomy laws of Ireland , Great Britain and Cyprus respectively violated Art 8 (right to privacy) of the ECHR.

22. The interesting way that rights language has been used to break silences in societies is illustrated by various lectures given by Justice Michael Kirby from Australia in 1996 at the National Law School of India University. J.Kirby used the language of rights to eloquently put forth the suffering imposed by society upon gay/lesbian people. No other language would have been acceptable in talking about same sex desire in a non pathological sense. Specifically Kirby spoke about the pathbreaking decision in Toonen Vs Australia and given the central role that the international bill of rights and its interpretation plays, one can safely predict that sexual orientation is an issue that the human rights community will have to continue to grapple with. In discourse terms the above example is just one of the many spaces opened up, in human rights communities around the world. Visibilising the hitherto invisible is part of the way that human rights discourse functions as an emancipatory language.

23. This becomes particularly useful in countries in which international law to which the country is signatory automatically becomes a part of municipal law. Romanian is a good example (Wilets, 1995).

24. This flows from the logic that all states are to a greater or lesser extent heterosexist in orientation. All advances in the rights of sexual minorities have been won due to bitter and hard struggle by gay/lesbian people. If discrimination against sexual minorities is ever made an issue internationally it is because of gay/lesbian activism. No state would willingly taint itself with the label of championing the rights of LBG people.

25. Ibid, 58: 'in 1994 the Committee on Civil Liberties and Internal Affairs of the European Parliament issued the Report on Equal Rights of Homosexuals and Lesbians in the EC (the Roth Report) which calls for the adoption of the resolution in recognising civil unions for same sex couples and eliminating discrimination with respect to freedom of movement and other areas of civil life. In February 1994 the European Parliament approved the Roth Report'.

26. Chapter 3, sec 8 (2) provides: 'no person shall be unfairly discriminated against, directly or indirectly … on one or more of the following grounds in particular: race, gender, sex, … sexual orientation, … or language'.

27. Chapter 3 sec 3 (a) provides: 'this section shall not preclude measures designed to achieve the adequate protection and advancement of person or groups or categories of persons disadvantaged by unfair discrimination in order to enable the full and equal enjoyment of all rights and freedoms'.

28. Chapter 3 Sec 35(1) provides: 'in interpreting the provisions of this chapter, a court of law shall promote the values which underlie an open and democratic society based on freedom and equality and shall where applicable have regard to public international law, applicable to the protection of the rights entrenched in this chapter and may have regard to comparative foreign case law'.

29. See supra n.12.

30. See supra n 21.

31. 517 US 620 (1996), in which the Supreme Court struck down a Colorado voter approved amendment which prohibited any laws, ordinances, policies, entitling people of homosexual orientation or conduct to minority status, quota preference, protected status or claims of discrimination.

32. Baehr vs. Levin, 852 P2d at 44. The Hawaiian Supreme Court in this case held that prohibitions on same sex marriage violated non discrimination on the basis of sex.

33. The Supreme Court held that spousal benefits were applicable to gay lesbian couples as well and so the law of the state of Ontario which defined spouse as heterosexual only was unconstitutional (Guardian, May 22, 1999).

34. The clause on sexual orientation did occasion disagreement from the African Christian Democratic Party in parliament which claimed that it was UnAfrican, Winnie Mandela protested against homosexual rights and Johnson makes the argument that a majority of South Africans would be against equal protection. However it was due to the contribution of gay/lesbian people to the anti apartheid struggle that this clause has became a part of the constitution.

35. Robert Mugabe states: 'I find such immoral and repulsive organisations like those of homosexuals who offend both the laws of nature and of morals or religious beliefs espoused by our society outrageous and repugnant to my conscience' (Thomas, 1997, 365). However what is never questioned is why our society is always defined in heterosexist terms.

36. The pioneer in this regard is Simon Nikoli who was an openly gay individual involved in the anti apartheid struggle. He founded the organisation Gay and Lesbians of Witwatersrand (GLOW) which was dedicated to the issue of gay lesbian rights. As Simon put it: 'there are lot of gay activists involved in political organisations. But because of the pressure put upon the gay and lesbian community we are afraid to come out. What will people think if they know I am a gay person? I better fight against apartheid in a hidden way. The danger is when South Africa is liberated, we as gay people will never seem to have taken part in liberating our people' (Gay Times, January, 1999).

37. Except Art 19, 15, 15 and 29 which apply only to citizens.

38. See n.21. Also the 1999 address by Justice Kirby from Australia and Justice Cameron from South Africa to judges from some of the High Courts in India are interesting attempts at encouraging the greater awareness and use of international human rights norms in domestic jurisdictions.

39. Apart from Sec 377 police often use the provisions of the local police acts to target the homosexual population. The other provisions of the criminal law which can be used to police same sex desire are Section 292 of the Indian Penal Code: 'wherein a book … representation shall be deemed to be obscene if it is lascivious or appeals to the prurient interest ... or tends to deprave or corrupt persons …' is deemed obscene. Further the Dramatic Performances Act 1876, The Indecent Representation of Women's Act 1986, through notions of obscenity, depravity, and pubic morality would act as regulators of sexual speech. These provisions derive constitutional sanction as under Art 19(2) freedom of speech and expression is subject to public morality and decency limitations .The mechanisms exists for policing free speech to ensure that it never becomes LBG speech.

40. The lesbian population is so invisible that there is no sustained harassment of lesbians on the basis of Sec 377. The difficulty in using Section 377 is further compounded by the requirement of penetration sufficient to constitute the offfence. However there have been isolated cases of the use of Section 377 against lesbians (See ibid).

41. The most famous case is that of two police women from Madhya Pradesh who got married in front of their parents and 40 witnesses in a simple ceremony. The priest believed that marriage was a union of two souls and had nothing to do with the gender of the betrothed. However, the moment the media got wind of the story, the two women were dismissed on the ground of a long leave of absence. This was patently untrue as testified by comments made by the authorities in the local press when they attributed the dismissal to the two being lesbian.

42. To take just two examples in labour law. Under the Employees Provident Fund Scheme, 1952, nomination: 'shall be in favour of one or more persons belonging to the family. Any nomination made by such member in favour of a person not belonging to his family shall be invalid' (Regulation 61(3)). Family under Regulation 2(g) exhaustively lists all the members of a heterosexual family. The Payment of Gratuity Act 1972 similarly constructs heterosexuality through controlling and regulating the process of nomination. A dependent under the Workmen's Compensation Act, 1923 and Employees State Insurance Act 1948 is defined in a very narrow sense to only include relations by blood and marriage.

43. The Human Rights Law Network an NGO which works on issues of human rights and law has outlined four reasons:

 

1. Most human rights groups have strong linkages with traditional left and Maoist parties. They view a discussion of sexuality, even heterosexuality as a frivolous ,petit bourgeoisie deviation. They like their parent organisations view homosexuality as a capitalist aberration arising out of imperialist influence.

2. Those human rights groups which do not come from that background still tacitly accept the sexual mores of the liberal tradition that accepts homosexuality as unnatural and deviant.

3. Some organisations have stopped openly condemning homosexuality but even their toleration of homosexuality is based on a patronising attitude of looking at gay men and lesbians as frustrated individuals who have undergone a traumatic childhood. They also have no idea of the extent of prevalence of homosexuality.

4. Human rights organisations are influenced by the movements around them. It is only the pressure of the women's movement that has forced human right organisations to now take up women's issues. .In the absence of at least a somewhat strong gay ,lesbian and bisexual movement it is difficult to imagine human rights organisations giving the issue any prominence (Fernandez, 1999, 100).

44. This if of course not the first or the only such articulation. There have been other such articultions such as in 1995 activist Anuja Gupta representing India as a testifier in a tribunal on human rights violations against sexual minorities organized by the International Gay and Lesbian Human Rights Comission, the conference on gender just personal laws where the rights of marriage of none heterosexual people was articulated (1996), the formation of Sabrang a collective of people belonging to all sexualities which has organized lectures on LBG rights, the formation of Campaign for lesbian rights and the work they along with other groups do on the Fire issue. In its mandate 'they note that they are a group of individuals –lesbians,gay and straight – and organisations who feel strongly that discrimination on the basis of sexual orientation /preference is a violation of basic human rights' (1999). The National Conference on Human Rights Social Movements and the Law (2000) in which a session 'lesbigay' rights is scheduled (forthcoming).

45. Other such efforts include the Demonstration in 1992 in Delhi to protest police harassment of gay people, the Aids Bedbhav Viroadhi Andolan (ABVA) petition filed in 1994 challenging the constitutional validity of Sec 377 of the IPC, The PUCL(K) Fact Finding Report on Police Harassment in Bangalore (2000, forthcoming).

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