Session 8, Intersectionality

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[00:00:00] This recording was made up a second the Asia Pacific Outgames human rights conference held in Wellington, New Zealand in March 2011. [00:00:09] The reason why [00:00:11] I have been from the moment that conference started really, really pleased and delighted. The lights the speakers, the likes of Elizabeth Crary, Annette from Australia. Speakers like Gabby money, Perry, the subject that they have been speaking on, that of indigenous people that have Aboriginals Australians that have Mallory's is something which is of us is something that analogies can be drawn on the subject that I'm going to be addressing. In this in this workshop. I want to acknowledge Mr. Mina from the National Human Rights Commission of India, it is just such a delight to have you here, sir. And while we we'll start with the the the [00:01:04] decriminalization recent legalization in India, [00:01:07] which is going to occupy the first part of this workshop, I'm going to invite your attention to aspects of this judgment, [00:01:18] which are applicable, of course, to the rights of LGBT people in India, [00:01:23] but also [00:01:24] to the rights of minorities, to the rights of religious minorities to [00:01:29] the rights of ethnic minorities, linguistic minorities. [00:01:31] And in doing that, I'm hoping to build a basis for dialogue mates, communities, within communities, and for communities to talk to each other and have a politics of coalition. [00:01:51] So this [00:01:51] workshop is going to be in three parts. While planning for this workshop, I had very little idea about who the audience is going to be, or so much as how many how many people are going to attend. And I think about the number that we have is just about perfect, because the description of this session is a workshop. And I would really like it that I speak minimal. And I really mean it. I love the spotlight, I love the microphone. But I would really like this workshop to be interactive. And for that the number that we have is just brilliant. And the workshop is going to be in three parts. In the first part, we're going to talk about the [00:02:32] the judgment, which was [00:02:34] delivered on second July 2009. And the judgment, which has been a source of much anticipation and joy and excitement and hope. In doing that. What I want to focus on is the role of the community and the process that led to it. In second part we are going to address we're going to begin with a case study of a man who combines the data of being gay and of being valid. Now, before we proceed any further with the workshop, I just want to have a sense of how many people who are here have a sense of what valid means. [00:03:15] 3050. [00:03:17] So we're going to spend some time on what that as an identity means and what similarities there might be if any with a virginal Australians or with Mallory's. [00:03:27] And in the final part, [00:03:30] I'm going to really look forward to [00:03:32] inputs and directions [00:03:35] on how this work can be built some more in India, in South Asia globally. I'm going to begin with I don't have any DVDs. What I have is handouts. And I'll begin with giving that out [00:03:55] from [00:03:58] from another report [00:04:00] was a visit to the UN dp. And I've just called out a portion of it, which gives the process that led to the judgment of 2009. By itself, it is for us within the workshop. And I could well have read from the material that is being handed out. And but I thought that anything that I can read, you can read just as well yourself. So I'm going to give that out. But I'm going to recall, because I had the privilege of being a part of this process. I'm going to recall how this process unfolded. And I'm going to do that in brief points. Another reason why I've given out this handout is that the handout discusses in some more detail, what the process was like. And as much as all the attention that I might pay to all the details, I will not be able to to describe this process exhaustively. The this process began in 2001 when [00:05:05] an NGO in Delhi NAS Foundation, India, [00:05:09] approached the Delhi High Court [00:05:12] seeking decriminalization or reading down of Section 377 of the Indian Penal Code, on grounds that the law was an obstacle to getting out HIV intervention work. Um, it's men who have sex with men and transgender persons. But before this petition in 2001 1994, had known its predecessor by another group, which was the AIDS baby now, we know the Underland, you won't find a mention of AIDS paper below the Underland in the handout that I've just given, because the period that I'm covering in the handout is 2002 2010. And the predecessor to the petition that led to 2009 judgment was in 1994, which unfortunately, was not successful. In 1998 99. The petition, the predecessor petition was dismissed by the Delhi High Court not on merits, but on procedural grounds. So it never reached the stage where it could have been considered on merit. 2001, then is the historic year in which a legal challenge was mounted, and a challenge that survived the course of adjudication, a challenge that bore fruit by way of judgment in 2009. In 2003, the Government of India filed its response, primarily arguing that section 377 or the criminalization ought to remain because it is essential for maintaining public morality. Various many grounds to opposition that can be to decriminalization, the ground that was taken by government of India was public morality. response to this for the first time, the petitioner NGO, along with the lawyers collective, who had provided support, who had provided the legal expertise in filing this litigation, called a community consultation, to discuss aspects to discuss the response that will be to the government stand on public morality. And that was the first time when the two NGOs sort actively sought community inputs. Until then there was some resentment beginning to build within the community that How could something as significant as a constitutional challenge to a law that is going to impact all our lives, be mounted in the court without ever asking us? What is it that we want to say? But that resentment was very quickly, very quickly addressed, and a community consultation was thought that consultation sought to build a larger coalition, which was to tackle the issue of public morality? If you're talking about morality, whose morality are you talking about? Who is this public? Can there be any one cohesive public in a diverse country as India, which has one voice on morality? No. The coalition of organizations that was formed was the voices against 377, which was built on the principles of intersection ality. And that is where the topic of this workshop is key. The workshop is titled intersection ality and voices against 377. As a coalition, based on intersection ality brought together groups working on women's rights groups working on health rights groups working on child rights groups working on LGBT rights, a diverse range, which we're all coming together in one voice and saying that they were against section 377. In 2004, sadly, the Delhi High Court dismissed the petition on grounds that how can an organization bring this challenge? Where are the real people who are affected by this law? That this petitioner does not have the local standard to challenge the law in the first place. It was a very scary moment, because having taken this bold step, it suddenly seemed that without even being considered on merits, the matter was going to be thrown out on grounds that there is no local standard that this organization is not affected directly bring the people to court who are affected. And at the time, it was a valid concern that there is stigma. There is so much risk. At what cost would individuals come before court and claim that they are criminals. And the crime is a violation of human rights. [00:10:07] Thankfully, in 2006, Supreme Court of India set aside the dismissal and restored the matter. And 2006 was also a time that was against 377, as a coalition entered the legal arena. It filed an intervention on behalf of all the organizations representing different [00:10:32] sectors and [00:10:36] brought to court viewpoint which included that of community members, which included voices from people who were directly affected by the law. These were by way of seven affidavits that we gathered from different parts of India. And these also represented the sexual diversity, gender and sexual diversity, because they were not only from men who have sex with men, not only from transgender persons, they were also from from women. And that was a very important moment in the movement, where we had to decide should we should we not include women into this petition? On one hand was the risk that if you bring to attention, something which has not so far something that the law has not imagined so far? Are you unnecessarily bringing women into the fold of criminality, on the other hand, was the fear that if you proceed with a movement, which is largely dominated by men, and remains visible through men, do you then sideline women? What is going to be the role of women in this very central moment in India, where all of the LGBT movement was focusing was looking towards section 377 as a central point? It was a difficult decision was again 377 decided that we are going to infuse the sufferings we are going to include the zone of criminality because women are included in the zone of criminality, we won't be ignoring it and looking the other way, if we do not include the experiences of women. So we did. And this is just one example of how different stakeholders differently invested, perhaps equally sharing the risk came together and partook in this politics of intersection ality I'm going to end with the the reading from the judgment because that those are very powerful words, and there is no replacement to the conclusion that judgment arrives at and altogether the judgment is hundred and five pages, I will not read all of it. I will only read the portion that was right out in the court. And it's a this is exactly what was read out on the day. And I was present in the court that day. And even now as I speak, I get goosebumps because it was such a historic moment. And it is a great privilege for me to do what justice Shah did that day from the bench as you read out these words. The notion of equality in the Indian constitution flows from the objective resolution moved by pundit Jawaharlal Nehru on December 13 1946. [00:13:32] Narrow in his speech, [00:13:33] moving this resolution, wished that the house should consider the resolution not in a spirit of narrow legal wording, but rather look at the spirit behind that resolution. He said, quote, words are magic things often. I'm going to start with he said, quote, words are magic things often enough. But even the magic of words sometimes cannot way, the magic of the human spirit and often nations passion. The resolution seeks very deeply to tell the world of what we have thought or dreamt for so long, and what we now hope to achieve in the near future. Unquote. If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of inclusiveness. This court believes that Indian constitution reflects this value deeply ingrained in Indian society. nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life is manifest in recognizing a role in society for everyone. Those perceived by the majority as quote unquote, deviants, or quote unquote, different are not on that score, excluded or ostracized. Were society can display inclusiveness, and understanding such persons can be assured of a life of dignity and non discrimination. This was the spirit behind the resolution of which Nehru spoke so passionately. In our view, Indian constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBT are. It cannot be forgotten that discrimination is the antithesis of equality, and that it is the recognition of equality, which will foster the dignity of [00:15:37] every individual. [00:15:40] We declare that section 377 IPC in so far, it criminalizes consensual sexual acts of adults and private is violated of Article 21 1415 of the Constitution. The provisions of Section 377 IPC will continue to go on non consensual penile non vaginal sex and penile non vaginal sex involving minors. By adult we mean everyone who's 18 years of age and above a person below 18 would be presumed not to be able to consent to a sexual act. This clarification will hold till Of course, Parliament chooses to amend the law to effectuate the recommendation of the law Commission of India in his 170 second report, which we believe reveals a great deal of confusion. Secondly, we clarify that our judgment will not result in the reopening of criminal cases involving section 377 IPC that I've already attained finality. We allow the repetition in the above terms Chief Justice AP shop, second July 2009. What happened on the day in the court was a deeply poignant moment for a good majority in the court. They weren't applause because there is a decorum which is maintained in the court. And regardless of the emotions that you might feel inside. You wouldn't demonstrate them by way of an applause. But they were certainly tears in the eyes of many people. They were people who were hugging in the court, which is unusual for a large group of people to suddenly start hugging each other. And they were the group of people who were there were went about it in a very, very quiet and dignified manner, and walked slowly into the corridors of the Delhi High Court. And I'm there as I say these words, and we walk down the stairs. And as we exited the building, there was press, there was so much TV media, there were so many reporters, and many of us were surrounded by these reporters. We were celebrating the judgments congratulating each other individually, at the same time saying a few words to the press. It was a it was a historic moment [00:17:58] for everyone gathered [00:18:00] there. And later in the afternoon, we all gathered at a certain point in the city, and they were applause and drums and they were songs and there was a party. So that now a child rights. And this I will connect to the diversity question as well, what was some of the internal dialogue because I will not be able to address all of these internal dialogues, I will use the example of child rights to give an example. [00:18:26] When we were filing the the intervention, there was a concern by the by HAC center for child rights, who is a member of voices against 377, that taking away of this law will mean children will be rendered vulnerable, because this is the only law which attempts to address child sexual abuse, although it was never the intention of the law to address child sexual abuse. But because of Indian Penal Code, not entirely not at all equipped, addressing child sexual abuse. By default, section 377 has played that role in the past. And the concern quite rightly, that heart center for child rights had was that if you do away with a law in Section 377, you're going to render children vulnerable to sexual abuse, what law will remain then to prosecute perpetrators of child sexual abuse? And that had to be very carefully discussed, the concerns had to be addressed. And it was made clear that what is being sought in the petition is that of consent. That brings me to the question that is asked here that which involves consensual adults. And what will still remain in the law will be all those act which involves children, or are against the are without consent. So what was being asked effectively, was not repeal of the law. What was being asked was reading down of the law, that yes, this is the law, but read it down, read it down to exclude consensual sex between adults in private, which would still include within the zone of criminality, that which involves minors, and as a judgment very clearly states that in the last few lines, and it will include all that is non consensual. So the element of consent is essentially, the same element element of consent that you talked about was not present in the text of the law. The text of the law was whoever voluntarily has sex against the order of nature, etc, etc, etc. But it did not differentiate between acts that were consensual acts which were non consensual. Having said that, the notion of consent did not occupy attention of the judges did not even occupy the attention much attention in arguments if I was to highlight aspects of the judgment, which which come out all the themes of the judgment, he themes of the judgment would come out, it would be privacy and dignity, it would be equality. Consent was raised in the arguments by an inter Veena, which was which took it to a tangent, which was on lines that if you allow this, that anything which is by consent, for example, [00:21:43] drug abuse, [00:21:44] for example, study, which is voluntary suicide committed by a widow, which is customary and and there have been laws against it. A number of gambling, consensual gambling, these were arguments taken by an inter Veena by the name of BP single he was a private party. And his intervention was located squarely on the element of consent that if you allow this, if you decriminalize BB single was telling the court that if you decriminalize sodomy today, it will open the floodgates, you will have to decriminalize gambling, you will have to decriminalize study, which is a voluntary, suicide by widows, a number of ills and wrongs in society, they are all going to suddenly emerge and you're going to have to recognize everything. And that was the role of consent. [00:22:40] It isn't addressed in great detail in the judgment. [00:22:44] And [00:22:48] how was the judgment received by the, by the media, there was a great deal of interest. They were they were TV channels, we, we're a buzz, and this was a story that was going to sell it was grabbed the attention. It had everything it had sex, of course, it was based on the lives of people who were largely hidden. There was mixed response, largely, it was of support where televisions were supporting the judgment, but they were also especially the religious right wing groups emerged. And this was the first time where there was solidarity, where the Christians and the Muslims and the Hindus were suddenly speaking one voice. They were all united in saying that the judgment is horrendous, and it ought to be set aside by the Supreme Court. Right. Have I addressed everything? Did I miss something? Yes, yes, please. The Supreme Court, the matter was not contested. It was appealed by the by the petitioners. But the Solicitor General at the time, Gopal Subramaniam, admitted before the court that this is a matter which is deserving of public of which is deserving of public interest litigation and therefore ought to be considered on merit. And I think that thank you very much for bringing that point. Because often, in our zeal for activism, we only imagine opposition. And we forget that there are officers within the government, which would be supportive. And I remember that day we were all prepared for all ammunition to support this. And it was it almost took our breath away, because they were Solicitor General stood up and say that your lordship, we concede that this is a matter entirely deserving of public interest litigation. Even the bench was taken aback a bit, and then it was recorded that the Solicitor General has conceded. And then on that door, it went back to the age of consent. The Indian Penal Code provides the age of consent in the context of rape. And for sexual intercourse with a girl less than 816 is considered rate regardless of consent. And there you get a sense of the age of consent for girls. The other age of consent is visibly marriage, where the age of marriage for girls is 18. And the age of marriage for boys or men is 21. So these are the the legal ages of marriage, the legal ages of consent, which are there in legal tests and legal imaginations. The age of consent in judgment is 18. And therefore, it would set it on different terms to the 16 age of consent, may well be at a later stage of fit case for discrimination. Because 16 verses 18. And there's a disparity. Did that answer your question? Can we proceed to the second part of this workshop now? Are we going to do that with a case study and I'm going to request my good friend and colleague Satya to read, and I'm going to give the handout [00:26:24] for that. [00:26:29] I used to think I'm the only one. I wasn't interested in girls. All my friends were attracted to girls. They go on about it. I used to wonder why I don't feel the same way. I used to worry. Some people wouldn't. Some people would tell me it's a disease. I had so many questions. I didn't have any answers. I had no one to share my loneliness. I couldn't have told my family. I didn't know myself who or what I am. Some of my early relations were consensual someone. They were those with whom I couldn't even bear to sit. They were by force. It was terrible. I had to fight I had to control what else could I do? This is common. They consider this their manpower, masculinity. If somebody is below them, they feel happy. Maybe they consider it an honor, that I have fucked him. Now he will be subservient to me all his life, he will not lift his eyes in front of me. I think when this is revealed about a boy, everyone wants to use him. They think he is soft target. He will not tell anyone. And if he does, it will only bring him shame. He will be beaten up. His family will think he is to blame. With me this went on from the age of 13 to 25. I used to prefer staying home not going about I used to feel scared making new friends. If they'd be a new friendship but building I used to wonder if I should get into it. Will I end up with a tag ganda burger. My friends would say, people say this and that about you. If you learn self defense, it will be good for you. So I started learning martial arts, my body became strong. It was an era of struggle for me. I knew I had to win the win against these people. And to win it is necessary to have power. physical power is necessary in a village. The kind of mentality people have is not for people like us. They speak another language. They have to be tackled in that language. They would say we can't get our hands on him these days. Wonder what he's up to? After all that we have done to him? How dare he stand up to us. Even now he is seeing someone the day he gets caught? We will do it him again. They said they used to make many more jibes slowly and gradually, I overcame all that. I was very not to get the tag gon do again. I used to make relationships, after a lot of thought and consideration. I'd be willing to have a relationship if I found the man worthy. If not, I'd say to him, don't mess with me. If you try to grab me, your hands will be chopped off. At this stage of my life. I don't care what my neighbors think. Some of my family members support me, some don't. I can only tell them I'm gay. I can only say yes. My relationships will be with men, not women. Open your eyes and look at this. Open your minds and understand this edit upon your hearts. This is what I am. [00:30:17] Thank you. Thank you, sir. [00:30:21] What's that they're just read is a narrative [00:30:24] from [00:30:27] a longer more detailed [00:30:29] interview [00:30:31] with [00:30:32] a man who is both gay [00:30:35] and valid. [00:30:41] Before [00:30:44] I invite you to imagine the possibilities of combining [00:30:51] these two aspects. [00:30:54] I would draw reference to [00:30:58] where we are and [00:31:02] propose analogies with the people who are Maori, and people who are also lesbian, gay, bisexual, transgender, people who combine in their single lives. The aspects of being aborted general Australians. And also lesbian, gay, bisexual, transgender, queer. [00:31:28] I want to [00:31:30] I was listening with interest about the culture of leaning in some more. And I'm curious to know what life would be like for a gay somehow on these different, almost exclusive pockets. We live our lives in. Sometimes these communities come together, sometimes [00:31:52] they don't. And [00:31:55] I'm looking to this space with a lot of anticipation. Because cause there is already a great deal of work that has happened I'm so envious of people who are already here in the conference. Elizabeth Caray, the wonderful man who was comparing the entertainment at the conference dinner yesterday. And it seems to me that they have lived their lives openly [00:32:26] and have had no doubt struggles. [00:32:29] And I think of possible parallels in [00:32:33] India. [00:32:36] And I want to know, where are those people who are valid and who are also gay or queer are these two communities so dissimilar, so world such such a such a difference between them that their world apart, that it cannot be imagined that they can be quarter of a billion people in India. So we're not really talking of a minority. In Numbers, [00:33:07] we are talking of a set of people [00:33:10] who are oppressed, and have been not only for 100 200 years, but have been systematically through the culture and tradition in the Hindu caste system. And caste system is not a relic. It's a living organism, which pervades the life of Indian society. There have been tremendous efforts by way of Law Reform by way of constitutional guarantees, which protect ballots, there is article 15, which prohibits discrimination and grounds of cast. That is the prohibition of discrimination there are protective legislations. And yet, if you were to evaluate the impact of these legislations, evaluate in what way people are actually able to seek these protections, you will find that the effect of the law is minimal. And people continue to have lives which are filled with discrimination, oppression, stigma and abuse. That is a cast, it combines its had a great diversity of people. So it is not any one cohesive group. It will constitute what is referred unconstitutional terms scheduled cast and shadows tribes. And within these scheduled cast and Scheduled Tribes, they will be multiple possibilities of many, many, many, many casts. So by itself, it is not a cohesive group or a cluster or a single community. It is all those people who have been oppressed, exploited and discriminated, because of that cast identity. In the Hindu caste system, there were natural caste system, there are four burners, of which there is a clear hierarchy, which has Brahmins at the top, which is the teacher class or the teacher cast. There are the shutters, who are the warrior cast. There are the fish who are the business cast. There are the shooters who do work with the hands and the artisans. And the outcasts are those who are Untouchables. And in the Hindu caste system, untouchability was practiced, they were so below any human standards, that they were not to be touched, even their shadow was not to fall upon you. And so much as the short shadow was to fall upon a cast Hindu, it would define the cast Hindu and the cast into must take a bath, and they will see their punishment for the so they were practices like that. And I don't want to delve too much into it, because there are more detailed accounts of caste system in India that would be available for, for reference, but I think this description will suffice. I will also say that it is a dynamic society we live in, these are dynamic times, so no one truth is going to apply equally to all of India to all of Dallas. So there would be Dallas who live in cities, they would be Dallas will live in villages, and the lives in villages and cities would be world apart. So anything that I might say, and I don't want to overly dramatize the the caste system in India, and I don't want to do to say this in, in in rhetorics. But I do want to say that there are very strong elements of oppression, exploitation, and discrimination that continue to exist. And I want to recount from, from a personal experience. The narrative that was read, of course, was my interview with somebody who lives in a village. But when I went to university when I went to law school, in my first year, with great anticipation, I was looking forward to meeting my roommate who I was going to share my the hospital, you know, their rooms on shared basis. And with a lot of courage, for my first time, I came out to him. And I told him that I'm valid. My first coming out was not that I'm gay. My first coming out was dialect. And it is interesting to us coming out in this context, because cast is not like race, it is not apparent on the face of on your face. [00:37:59] And his response to me was really, you don't look like one. [00:38:03] And at the time, I remember feeling really pleased [00:38:06] with the response that I was relieved that I don't look like one. But the what was implicit in that statement, or in my feeling of relief, or joy that I don't look like one was that it, nobody wants to look like a valid. Why because fellas don't look that good. They don't wear good clothes, they don't able to speak very well, certainly not English. And even now in cities, there is a greater freedom of leading lives where you can keep aside your cast identity and lead a life where your cast identity will not constantly put obstacles in your way. But there are very regular interrogation on your end cast is apparent in your surname. So it needn't be that you have to necessarily come out but your surname could well disclose your cast identity certainly. And that's a name that doesn't reveal a cast identity is by default, not worthy at all times of very good social status. So it could be that way the witches chat already or you know surnames which are better known as caste Hindu surnames would be treated with a marginal greater respect than an unknown surname. So, these are some of the these are some of the more subtle aspects of caste system which are not so subtle back home, they are very, very apparent and everyone understands managers are almost entirely you know, the classifieds. If you pick up any classified newspaper, you find matrimonial advertisements, looking for bash, fair, polite and good looking, Lenny they're all on cast line. They're also on color of skin, but also Swan coastlines. [00:40:07] That's right. [00:40:09] Certainly not and the just to give the just to give the dimensions of cast it is more than 16% for sure you will cast this is according to 2001 census more than 16% for scheduled cast, and 8.2% for Scheduled Tribes. So all together, it is about 25% of India, God will cast and share you will tribes, which is a quarter of a billion people. And to further take that percentage and bring to the subject of this workshop. And if we were to take as little as 5% [00:40:43] of people who may be queer [00:40:46] 5% of this quarter of a billion people in India may be queer, and we know absolutely nothing [00:40:52] about them. [00:40:55] The case study that I shared with you is something that I'm looking to a lot of anticipation and I'm looking to build more on this. It is a pioneering work and I'm really very pleased to be able to share it with you. Thank you

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