[LCC] India's Stonewall

[Terrence Lockyer]

Reading the Delhi High Court judgement downloadable from

http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/02_07_09_india_gay.pdf

I was interested to note that this court, like others in other
places, appears to have held that rights to equality and
non-discrimination based on sexual orientation (and indeed gender
identity, since the court also makes specific reference to the
country-specific identity of "hijra") are not separate from, but
implicit in, the same protections with regard to sex.  In
particular, on p. 83, there is the statement that "Discrimination
on the basis of sexual orientation is itself grounded in
stereotypical judgments and generalization about the conduct of
either sex";  which seems to me an important and under-utilized
argument in places like my own country, where religious right and
social conservative groups (which, I might add, fared abysmally
at the last general election, losing about half of their already
tiny proportional parliamentary representation) have consistently
demanded a referendum to alter the 1996 Constitution so as to
eliminate "sexual orientation" from the so-called "Equality
Clause".  That is, legal protection for same-sex sexual behaviour
and relationships stems not only from specific protections based
on sexual orientation, but also from the prohibition of
discrimination based upon sex (which, for obvious reasons,
political parties and groups are far more reluctant to attack),
since without a concept of "[biological] sex" and the social
construction of normative differences of identity and behaviour
based therupon, the entire foundation of terms like "same-sex",
"homosexual", "homoerotic", and so on, and the recognition as a
distinct class attracting differential treatment of the
behaviours, desires and relationships to which they refer, lacks
foundation and is unable to exist.

I also liked the clarity of the statement (p. 100), in answer to
populist-majoritarian arguments and the claim that the will of
the legislative branch cannot be overridden by the judicial, that
"A modern democracy while based on the principle of majority rule
implicitly recognizes the need to protect the fundamental rights
of those who may dissent or deviate from the majoritarian view".


Terrence Lockyer
Johannesburg, South Africa