Sexuality,Gender,Humanity and Justice

Heterosexist ideals and norms within religion and society encourage homophobia and prejudice. We need to be aware of and debate sophisticated forms of bigotry in today’s world.

A five-judge bench of the Supreme Court of India recently ruled against legalising same-sex marriage. The court failed in its duty to stop widespread discrimination against the LGBTQIA+ community in the country. The court missed an opportunity to re-interpret and re-write laws in order to provide justice.

Modern medicine and psychiatry have abandoned pathologising same-sex orientation and behaviour since the 1970s.^{1, 2} Psychiatry’s understanding of human sexuality is based on studies that document a high prevalence of same-sex feelings and behaviour in men and women, its prevalence across cultures and among many animal species. ³ The consistency of same-sex attractions, the failure of attempts to change, the lack of success with treatments and the harm caused by these efforts support the stability of homosexual orientation.

Human sexuality is complex. The recognition of the distinction between desire, behaviour and identity acknowledges the multidimensional nature of sexuality. The discordance between dimensions in individuals suggests complexity.^3–5 Bisexuality, the discordance between biological sex and gender role and identity and temporal fluidity add to the conundrum.

Science continues to debate the relative contributions of nature and nurture, biological and psychosocial factors, to sexuality.^3–6 However, classical theories of psychological development employ un-testable conjectures. Similarly, genetic and biological theories are reductionistic. They do not explain complex aspects of human behaviour, including natural inclination and choice. The universality of same-sex orientation and behaviour and variations in its meaning and practice across cultures undermines single and simplistic explanations.

The Cultural Context

Anti-LGBTQ attitudes once considered the norm, have changed over time in many social and institutional settings in several Western countries.^3–6 In fact, the United Nations argues for non-discrimination based on gender identity, sexual orientation and sexual characteristics and equal rights for LGBTIQIA+ people. ⁷ However, heterosexism, which idealises heterosexuality and considers it the standard, while denigrating and stigmatising all non-heterosexual forms of behaviour, identity, relationships and communities, is also common. Many conservative and tradition-bound societies continue to be ruled by religious and social orthodoxy and patriarchy. This is particularly true in India, making it difficult for LGBTQIA+ people to be accepted as equals in society.^3–6

The Indian medical and legal establishments, steeped in traditional social and cultural orthodoxy, consequently hesitate to support LGBTQIA+ rights, while accepting many other Western-international legal and medical standards. Such a state of affairs calls for a clearer understanding of the relationship between medicine and law on one hand, and society and religion on the other.

Law and Justice

The Supreme Court rulings on different aspects of LGBTQIA+ rights (e.g., decriminalisation of gay sex, ⁸ transgender identities ⁹ and same-sex marriage ¹⁰ ) cherry-pick different aspects of fundamental and human rights, rights to privacy, equality, non-discrimination while disregarding similar values suggesting confusion of thought within the judiciary. The failure to build on previous Court precedents and uphold constitutional values because of prevalent social, cultural and political orthodoxy and patriarchy suggests a missed opportunity for justice. By asking Parliament to pass laws to prevent discrimination and ensure equality the Court mistook majoritarianism for democracy, failing in its duty to provide justice to LGBTQIA+ people.

It is generally believed that law and theory drive legal practice. In fact, legal practice defines theory; concepts of justice drive law. Justice is an agreed value implemented through law. However, laws often fall short of delivering justice and need to be constantly re-interpreted and rewritten in order to provide justice. Practice constantly engages with theory and re-tools it. It cites theory in specific contexts, modulating, redirecting and even re-making it. The demand for justice can exceed the law, bring new issues before it and consequently require an extension or a re-interpretation of it. Justice, then, renews the law and extends its hold. The law can never escape from this demand for justice, since it is a demand that can never be fully met.

The demands of our era, the different contexts and the call of justice mandate a creative citing of the law. The Supreme Court judges did not seem to heed the call of justice and renew the rule of the law in relation to the new question that was presented. They missed the opportunity to take up the challenge and re-think, re-make and cite the law to respond to the call of justice.

The Way Forward

The Gay rights movement in the West in the 1960s pragmatically framed sexuality as genetic and immutable and argued for a rights-based discourse. Current scientific evidence suggests a complex interaction between biology, social and cultural environment and personal choice. A libertarian framework, which seeks to maximise personal autonomy while minimising the state’s encroachment on and violation of individual liberties, is much more appropriate. It calls for a focus on people’s humanity, their individual freedoms, pluralism, freedom of choice and individualism.

Dimensional constructs like sexuality and gender demand nuanced understanding and mandate rejection of dichotomous categories (man/women; hetero-/homosexual). The immutability argument and the regret trap (for people who want to transition) often limit individual freedom and choice.

There is a need to accept the normalcy and universality of same-sex orientation, behaviour and lifestyle. Society needs to acknowledge that social stigma and consequent discrimination of people with same-sex orientation cause much harm. It should respect the dignity and human rights of all people, irrespective of their gender and sexual orientation. The recognition of people’s humanity also advocates the legal recognition of same-sex relationships, anti-bullying legislation, anti-discrimination laws in employment and housing, immigration equality, laws for an equal age of consent, marriage, adoption and laws against hate crimes and so on, thus providing enhanced criminal penalties for prejudice-motivated behaviour and violence against LGBTQIA+ people.

Stereotyping LGBTQIA+ lifestyles and emphasising heterosexual norms result in a toxic mix. Behaviours of the past, which openly discriminated against human beings, based on sex, gender, caste, race, ethnicity, language, religion and so on, are not now openly advocated; prejudice is now cloaked in subtle language and sophisticated arguments, but still employing old justifications and norms. Such practices ensure the persistence of discrimination.

We need to emphasise people’s humanity rather than focus on their gender or sexuality. We should measure our own goodness and humanity, not by the people we exclude, but rather by the attitudes we embrace and those we include.