India: Supreme Court urged to consider review of anti-gay law after third gender ruling

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A law that re-criminalised homosexuality in India could be heading back to the country’s Supreme Court, after a separate ruling in favour of trans people.

Section 377, a colonial-era section of the Penal Code which bans homosexuality, was re-enacted by India’s Supreme Court in December, and in January  the same court rejected an appeal against the decision.

The Naz Foundation, an NGO that works to prevent HIV, will argue in a hearing on Tuesday that the judgement should be reopened, after the Supreme Court earlier this month opted to create a legal third gender, for the country’s trans and intersex populations.

It is thought there could be a ‘ripple effect’ from the later ruling, as it sets precedent against discrimination which could would deem Section 377 unenforcable once more.

Anand Grover, the counsel acting on behalf of Naz, told the Times of India: “The judgement says there will be no discrimination on the grounds of sexual orientation or gender identity, which means that it has now open the door to challenge the Koushal judgment.”

“I am making an application to Chief Justice of India to request that when on Tuesday he decides whether the Koushal judgment (upholding Section 377 IPC that criminalizes consensual gay sex) should be reopened and an open hearing should be granted or not, he takes into consideration the National Legal Services Authority (NALSA) judgment (creating legal rights for transgenders)”.

Activist Swami Agnivesh said: “We will fight till we achieve our rights. It is written in the Vedas [Hindu holy book] that every man is equal and no discrimination should be done on the basis of caste, creed or sex. The SC has upheld the Vedas.”