Big win for LGBT community as Brazil's apex court criminalises homophobia

Brazil now joins a growing number of countries in the typically conservative and Catholic-influenced Latin American region that have passed measures in favour of LGBT rights.

Business Standard : Brazil's Supreme Court voted Thursday to criminalise homophobia, an important step for sexual minorities in one of the most dangerous countries for LGBT people in the world.

The Supreme Federal Court (STF), which voted eight to three in favour of the measure, classified homophobia as a crime similar to racism, until Congress -- which is held by a conservative majority and is strongly influenced by evangelical churches -- passes a law specifically addressing such discrimination.

Brazil now joins a growing number of countries in the typically conservative and Catholic-influenced Latin American region that have passed measures in favour of LGBT rights.

"All prejudice is violence. All discrimination is a cause of suffering," said judge Carmen Luzia while voting in favour of the measure.

"But I learned that some prejudices cause more suffering than others." According to the NGO Grupo Gay de Bahia, which has collected national statistics for the past four decades, there were 387 murders and 58 suicides over "homotransphobia" in 2017, a 30 percent increase from 2016.

This works out to one LGBT death by suicide or murder every 19 hours in Brazil.

The country's highest court considered it neglect of legislative power not to have outlawed such discrimination until now. But the three judges that voted against the measure insisted that criminalizing homophobia was Congress's job, not the court's.

"Only Congress can approve (the definition of) crimes and penalties; only Congress can pass laws on criminal conduct," said judge Ricardo Lewandowski.

Acts of racism, and now acts of "homotransphobia," in Brazil face one to three years in prison or a fine.

The STF's decision has caused tension within Congress, with some legislators feeling stripped of their powers.

With a large group defending their interest in Congress, the Pentecostal churches -- whose following has grown exponentially in

Brazil, the country with the most Catholics in the world -- are expected to try to slow down initiatives such as that passed by the STF.

Criminalising homophobia could restrict church leaders, many of whom fear being penalized for rejecting same-sex unions by invoking religious texts.

Article 377 of IPC: Decriminalising homosexuality, a wrong is righted

In 2013, the Supreme Court had overturned the HC, finding it "legally unsustainable.

In the judgment that revoked provision of Article 377 of the Indian Penal Code that criminalised consensual same-sex relationships in September this year, Justice Indu Malhotra wrote: “Members of the LGBT community and their family members are owed an apology from society for being denied equal rights over the years.”

The road to the sexual rights of the LGBTQ community being recognised in this country has been a bumpy one.

The Delhi High Court (HC) had decriminalised homosexuality in 2009, saying that the colonial era law was incompatible with Articles 14, 15 and 21 of the Constitution.

However, in 2013, the Supreme Court had overturned the HC, finding it “legally unsustainable”. Other challenges, however, remain.

ALSO READ: Abrogation of Section 377: Law can only change law, not behaviour of people

There is no legal provision for same-sex marriages, LGBTQ couples or singles are still not allowed to adopt children, and discrimination at jobs, education and at homes is still too common.

In fact, even health care professionals have been accused of discrimination towards people from the community, at times classifying homosexuality as a mental health issue.

The road ahead is as much a legal route as a social one. While legal hurdles might now become relatively easier to overcome, deeply entrenched social prejudices are more difficult to combat. Only a society that fully embraces all sexual minorities can be expected to apologise in earnest.

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Lok Sabha passes transgender rights bill, community says it's violative

'This Bill is not actually giving us any rights, but legalising the atrocities committed on us'.

On Monday, the Lok Sabha passed the Transgender Persons (Protection of Rights) Bill, 2016. In the eyes of transgender and gender non-binary activists, this is an act of doublespeak because the Bill, if it goes through the Rajya Sabha, will not only fail to protect the rights of transgender people in India, it will actively violate these rights.

Activists from the community have condemned the passing of the Bill in its current form, and are calling on the government to withdraw it from consideration in the Rajya Sabha and instead pass the private member’s bill drafted by Tiruchi Siva in the Lok Sabha.

Why should a community so vociferously oppose a Bill that is drafted in the name of the protection of its rights? For those who celebrated the passing of the 2014 Supreme Court judgement affirming the rights of transgender people (colloquially called the NALSA Bill), the answer is obvious.

Although the NALSA judgment was flawed in its own ways, it made some incredible strides in the judicial recognition of the fundamental rights of transgender people. It affirmed the self-determination of gender identity, which upended commonsense notions about transgender identities only being valid if certified by the medical establishment.

It recognised the intense discrimination faced by transgender citizens and called for access to education, employment, healthcare and protection from violence. It recognised that affirmative action is needed for trans people across the country and that reservations in education and employment were even more necessary for those transgender people who were marginalised on the basis of caste.

In spirit and letter, the Supreme Court judgment was a huge victory for transgender people, who face intense stigma, discrimination and violence across the country.

The passing of the current Bill completely shatters the hard-won victory of the Supreme Court judgement, both in spirit and letter.

How the Bill will harm trans rights

Here are only some of the ways in which the Bill will harm, rather than help, the transgender community.

Transgender people will be subject to certification by a District Screening Committee to be acknowledged as transgender, and those wishing to identify as either a man or a woman will need to go through gender affirmation surgery (popularly known as sex reassignment surgery, or SRS). This completely violates the Supreme Court judgment which states that the only thing needed to acknowledge a person’s gender identity is their word for it. The government’s Bill assumes that all transgender people either want to or have the ability to go through medical and surgical procedures, which is totally inaccurate.

The presence of screening committees and the need for medical certification open up a space where a transgender person’s very identity is subject to doubt until ‘approved’ by external gatekeepers, which is inherently problematic. It will also inevitably lead to more discrimination and harassment by people empowered to screen and scrutinise trans people’s lives.

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How the SC judgement on Section 377 ties constitutional values with emotion

Supreme Court's decision to decriminalise homosexuality is incredibly heartfelt and vindicates the dignity of LGBT people.

What does it mean to love in law? On Thursday 6th September, my social media feeds lit up with heart emojis, #lovewins hashtags, and status updates expressing love in response to the Supreme Court of India’s unanimous decision to decriminalise gay sex. There was a collective sigh of relief as the court lifted the weight of criminality from those who lived in the shadow of India’s law criminalising homosexuality, specifically section 377 of the Indian Penal Code 1860 – a vestige of British colonialism.

Section 377 criminalises “carnal intercourse against the order of nature”. Broadly drafted, the law codifies Victorian morality to criminalise a range of consensual and non-consensual (“unnatural”) sexual behaviours, including homosexuality, bestiality, paedophilia, and rape. While very few people were prosecuted for same-sex sexual activity under the criminal law, it left sexual minorities vulnerable to extortion, harassment, and abuse. Thursday’s decision means that gay sex is now excluded from its reach.

In 2001, the Naz Foundation, an organisation working to end HIV/AIDS, petitioned the courts to “read down” the law to exclude consensual sexual activity between adults. The Delhi High Court agreed and held that criminalising gay sex violated rights to equality (Article 14) and privacy/liberty (Article 21) guaranteed by the Indian Constitution. However, the Supreme Court overruled this decision in 2013, holding that only parliament could change the law.

ALSO READ: Section 377 read down: When lovers of liberty rose to the occasion

This protracted litigation history culminated last Thursday when a newly constituted bench of the Indian Supreme Court repudiated their previous decision and decriminalised gay sex. And it did so with an endearing emotional depth.

Loving jurisprudence

Spanning almost 500 pages, the court’s jurisprudence is a valentine to India’s LGBT community. The court’s four judgments (from five justices) tie expansive constitutional values of inclusion, democracy, and dignity to emotional claims about compassion, respect, empathy, hope, and love.

Chief Justice Dipak Misra observed that punitive laws eroded the “right to choose without fear” a partner and realise “a basic right to companionship”. Citing one of the court’s prior decisions about privacy, he noted: …Read More

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SC judgement on Section 377 today; A look at the history of the archaic law

Amish Tripathi, a noted Indian mythologist, argues Section 377 does not reflect the traditional Indian attitude towards sex.

Section 377 of the Indian Penal Code is a relic of British India, having been introduced way back in 1861. It was modelled on a 16th-century British law called the Buggery Act, which was the first such civil law that criminalised certain kinds of sexual intercourse.

The Supreme Court is expected to pass its judgement on the legality of the section on Thursday. It has heard arguments representing all sides of the issue over the last few months.

Even though homosexuality was partially legalised in England more than fifty years ago, it stayed on as an illegal act in India. The Guardian reported last year that 72 countries and territories worldwide continue to criminalise same-sex relationships, including 45 in which sexual relationships between women are outlawed.

Amish Tripathi, a noted Indian mythologist, argues Section 377 does not reflect the traditional Indian attitude towards sex. It is, instead, he argues, a reflection of the British colonial mindset, influenced by medieval interpretations of Christianity.

He cites several examples and anecdotes from Hindu religious texts to make his point -- that LGBT rights were accepted in ancient India.

"Purush napunsaknarivajivcharachar koi / Sarv bhavbhajkapattajimohi param priy soi. (Any man, any transgender, any woman, any living being, as long as they give up deceit and come to me with love for all, they are dearest to me.)"

"These lines were said by Lord Ram in the Ramcharitmanas. He did not differentiate between man, woman or transgender. What does this mean? According to me, this shows our liberal ancient attitude towards LGBTs. And there are other examples in the Mahabharata too. Such stories were celebrated in ancient India and this, to my mind, reflects the liberal attitude we had towards LGBT communities," he elaborated.

Naz Foundation vs Govt. of NCT of Delhi

A historic judgement delivered on 2 July 2009, Delhi High Court overturned the 150-year-old section, legalising consensual homosexual activities between adults. The court said that the section goes against the fundamental rights of citizens while striking it down...Read More

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