India’s gay sex ban, now ruled illegal, was a British colonial legacy

This article was originally published in The Conversation.

The Indian Supreme Court has legalized homosexuality, overturning a 157-year ban on consensual gay sex.

In a nearly 500-page unanimous decision issued on Sept. 6, India’s highest court affirmed that “whenever the constitutional courts come across a situation of transgression or dereliction in the sphere of fundamental rights which are also the basic human rights of a section, howsoever small part of the society, then it is for the constitutional courts to ensure that constitutional morality prevails over social morality.”

Gay rights advocates worldwide celebrated the legal victory, which came after nearly a decade of contentious court battles against a British colonial law criminalizing homosexual acts.

“Our court, our justice system, really believes in the rights of the people,” said Kalyani Subramanyam, program director for the Naz Foundation, the primary petitioner in the court case, which could open the door to gay marriage.

And the ruling is more than a human rights win. It is also a restoration of ancient Indian sexual norms.

India, homosexuality and the ‘third gender’

In that way, India’s ruling differs from recent court decisions legalizing gay marriage in Colombia, Taiwan and Germany – though for LGBTQ Indians, the impacts may be similarly life-changing.

Sexual and gender minorities in India are regularly harassed, assaulted and jailed.

Yet many gender researchers who study India – myself included – argue that India’s religious and cultural heritage has long been more accommodating to multiple gender and sexual expressions than Western societies.

An Indian member of the lesbian, gay, bisexual, transgender (LGBT) community wears a badge against Section 377 of the Indian penal code as they waited on a Supreme Court decision on whether to strike down the colonial-era ban on gay sex, in Mumbai on September 6, 2018. - India's Supreme Court on September 6 struck down the ban that has been at the centre of years of legal battles. "The law had become a weapon for harassment for the LGBT community," Chief Justice Dipak Misra said as he announced the landmark verdict. (Photo by INDRANIL MUKHERJEE / AFP) (Photo credit should read INDRANIL MUKHERJEE/AFP/Getty Images)

Section 377 has been used to crack down on LGBT+ people (Indranil Mukherjee/AFP/Getty)

According to scholars Ruth Vanita and Saleem Kidwai’s groundbreaking 2000 essay collection on same-sex love in India, Hindus embraced a range of thinking on gender and sexuality as far back as the Vedic period, around 4000 B.C.

Hinduism’s first sacred texts tell stories of same-sex love and gender-morphing figures. The Hindu deity Shiva is sometimes worshipped as a multi-gendered figure composed of Shiva and his wife Parvati together, in what’s known as his Ardhanarishvara form.

Hindu texts from around 1500 B.C. likewise show that the “third gender” – individuals sometimes called “hijras,” who do not fit into the categories of man or woman – were integrated into India’s political and social life.

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