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Indian court decriminalizes gay sex

Activists herald new wave of HIV prevention

A REALLY BIG DEAL. "India is a democracy. To have them do something of this caliber is a big thing for a lot of South Asian communities," says Rahim Thawer, men's outreach coordinator for the Toronto-based Alliance for South Asian AIDS Prevention. Credit: Peter Bevan photo

Toronto HIV/AIDS outreach workers say India’s Jul 2 ruling to decriminalize gay sex will have positive effects on HIV/AIDS prevention work in a country ravaged by high HIV infection rates.

Devan Nambiar, a Toronto-based educator and consultant who does regular HIV prevention work in India, says the ruling will allow outreach workers there to promote safer-sex more publicly without facing criminal prosecution. He says that, prior the ruling, prevention workers risked jail time for distributing condoms and prevention literature to men who have sex with men.

“HIV/AIDS prevention is hidden,” he says. “You have to negotiate with local communities about distributing protection. You have to let police know that you’re an [outreach] worker, not selling sex. Otherwise you could be arrested. It wasn’t used a lot, but it was always hanging over your head.”

The court ruling, the first of its kind in India, states that treating consensual gay sex as a crime is a violation of fundamental human rights protected under Indian constitution.

The move comes nearly eight years after the Naz Foundation (India) Trust, a New Delhi-based HIV/AIDS organization, filed a petition to amend India’s sex laws. Prior to the amendment, gay sex was punishable by up to 10 years in prison.

“I’m so excited, I haven’t been able to process the news yet,” Anjali Gopalan, executive director of the Naz Foundation (India) Trust, told the Associated Press. “We’ve finally entered the 21st century.”

Gay activists in Toronto view India’s decision as a major step forward for queer people in developing countries.

“India is a democracy. To have them do something of this caliber is a big thing for a lot of South Asian communities,” says Rahim Thawer, men’s outreach coordinator for the Toronto-based Alliance for South Asian AIDS Prevention.

Thawer says it will take a long time to change the social stigma around homosexuality in India but that the ruling “sets up a framework” that will “make it easier for safe-sex discussion to take place.”

El-Farouk Khaki, a Toronto immigration lawyer, politician and human rights activist, says the ruling gives gay men a new sense of legal protection. Khaki says the law was commonly used as an intimidation tool, either to blackmail or sexually abuse potential offenders. Prior to the ruling, if a person was gay bashed they could be afraid to report the incident to police for fear that they would “be arrested and charged” under the anti-sodomy law, says Khaki.

Khaki says he remains skeptical about how decriminalization will fit into the context of Indian culture.

“Often anti-sodomy laws are removed from the books but that does not mean the everyday human rights situation for the average person has changed,” he explains. “The cops that used the law to abuse people are still the same cops.”

Being openly gay in India is still largely taboo. In a culture heavily influenced by religion and family honour, gay people often repress their sexualities or live double lives.

“There’s a public face and a private face,” says Khaki. “People will come out to their families, and families will tolerate it, but they won’t tell anyone else…. Sometimes same-sex marriage is tolerated and accepted as long as people are also in heterosexual marriages.”

Nambiar says the choice to come out in India sometimes depends on socio-economic status.

“Middle and upper class gays are much more comfortable coming out,” he says. “If you’re below it’s more challenging due to the lack of education.”

And “coming out” as “gay,” as we in the West would say, isn’t always the goal. In India, many men who have sex with men don’t bother with identity labels, says Nambiar.

“In Western culture gay men are piped into being a top, a bottom, a butch, a femme,” says Nambiar. “In India it’s more like, ‘I’m a man, I like you, end of story’…. I find it liberating to be gay in India.”

Many religious groups are expected to pressure India’s ministries and courts to reverse its decision to decriminalize gay sex.

The ruling “is dangerous and harmful for Indian society,” Uzma Nahid, member of an Islamic law board, told the LA Times.

Nahid promised to join Christian and Hindu groups in fighting the ruling, the newspaper reported. Such an appeal would be made to India’s supreme court.

The ruling was celebrated in cities across the India but Thawer says there is a small chance, if the religious right pushes hard enough, that the anti-sodomy laws could be reinstated.

“The lawmakers and a lot of academics would counter the argument,” says Thawer. “The state would have to recognize that while some find homosexuality immoral, people would have to look at the true spirit of equality. Not to ask what makes everyone happy, but to do what is right.”

India becomes the 127th country to decriminalize gay sex. Anti-sodomy laws remain on the books in 18 Asian and Pacific, 17 African, and 13 Caribbean countries and colonies, reports Human Rights Watch, a New York based human rights organization.