India: A Microcosm of Tensions on LGBT Rights

In October this year, India’s External Affairs Minister Sushma Swaraj, while addressing a special U.N. event to commemorate the International Day of Non-Violence, extolled India’s approach to a broad range of global issues. Claiming the mantel of Gandhi’s legacy of ahimsa (non-violence), Swaraj identified national programs such as Clean India and Beti Bachao Beti Padao as designed to create “the basis for human dignity.” Disparaging bigotry and intolerance, Swaraj expressed hope that the entire world will one day stand up to these scourges.

These are lofty ideals and to be sure, Prime Minister Narendra Modi’s government is taking steps in many areas designed to address the ills that currently challenge India. However, listening to Swaraj, one cannot help but think of a huge swath of India’s population that Modi and his government have thus far largely ignored. With the admirable efforts being made on poverty alleviation and women’s rights, it is discouraging that in recent years, India has actually backtracked on LGBT rights.

India’s track record on LGBT rights is a mixed legacy. In early 2014, the Indian Supreme Court legally recognized “hijra”, or transgender people, as a third gender based solely on self-identification. According to the U.S. State Department’s Human Rights Report for India, India’s National Legal Services Authority included transgender persons in its definition of marginalized groups, thereby enabling national access to free legal aid. In certain Indian states, transgender persons have made progress in gaining some legal protections. In Kerala and Tamil Nadu states, for example, hijras have access to welfare, free housing, citizenship documents, scholarships in government colleges, and sources of alternative livelihood. In regards to transgender legal protections, India is more progressive than even the United States. The United States formally recognizes only two biological sexes and extends legal rights throughout the country based upon them.

Unfortunately, from a legal standpoint, it is better to be a transgender person in India than it is to be lesbian or gay. In December 2013, the Indian Supreme Court ruled that consensual same-sex behavior is against the law. This represented a significant step backwards, one that has yet to be overturned, and puts India on par with such LGBT rights abusers as Uganda and Nigeria.

This is truly unfortunate because India, and South Asia as a whole, stands in the middle of a deep divide on LGBT rights in the international community. More importantly, the region has considerable potential to reframe the existing narrative of LGBT rights as only a Western value.

In North America and Europe, LGBT rights are flourishing like never before, at a rate that even scholars struggle to explain. Western governments have enacted non-discrimination laws and rights for a host of LGBT concerns, including marriage, adoption, and inheritance rights. Sweeping legislations across the West have rapidly come to define LGBT individuals as a protected minority, deserving of equal rights.

To be clear, critics of LGBT rights exist in the West. The United States still struggles to enforce rulings for same-sex marriage over conservative religious dogma and examples of hate crimes and societal violence towards LGBT community still happen throughout North America and Europe. Yet the West has still taken the mandate to promote these rights domestically and abroad.

Concerns for the rights of the LGBT community are also reflected in the foreign policies of the United States and certain Scandinavian countries, as part of their overall human rights agendas. Equal to religious and ethnic minorities, U.S. diplomats and embassies worldwide are tasked with promoting LGBT rights, including ambassadorial participation in global pride events, advocating to decriminalize same-sex relations, and supporting local LGBT civil society in many countries.

Progressive reforms on LGBT rights are unfortunately not a global trend. By contrast, many countries in Africa, the Middle East, and Latin America sanction societal violence against LGBT people. Uganda, Saudi Arabia, and Jamaica are just a few of the abusers. State-sanctioned killing mobs, rape, and physical assault of LGBT persons are commonplace in many parts of the world, and in many countries, it is illegal for LGBT people to simply exist. Even large state actors such as Russia continue to obstruct reforms on LGBT rights in the United Nations.

South Asia itself is a microcosm of the tensions between differing international perceptions of LGBT rights. Nepal was the first country in the world to legally recognize a third gender and is now a bastion for same-sex tourism and weddings. Similarly, Bangladesh recently enacted a national law recognizing transgender citizens that also ensures their right to equal education. In Pakistan, the Supreme Court began identifying a third gender on identity cards as of 2009, and yet at the same time an LGBT person is at risk for extreme societal violence. In addition, Pakistan, unlike India, continues to frame LGBT identities and rights as something foreign; a Western colonial ambition to impose foreign cultural values. For example, in 2011, the U.S. Embassy in Islamabad held a pride event to promote LGBT rights in Pakistan. This event led to hostile anti-American sentiment and protests. Pakistan’s largest Islamist party called this event an act of “social and cultural terrorism.”

By criminalizing certain LGBT activities and neglecting to grant legal protections to all parts of the LGBT population, India and South Asia have thus far chosen a conservative path on broad LGBT rights. But by doing so, they have turned their backs on their own legacies. To name just one example, according to recorded history, hijras have been in the Indian subcontinent since the Kama Sutra period, between 200 and 400 CE. In addition, there are numerous references to transgender and homosexual individuals being an organic, historically-documented part of South Asian culture. In this context, South Asian nations have a unique voice in the current international debate on LGBT rights. It remains disconcerting to see how times have changed so drastically.

Before we lose ourselves in a cloud of nostalgic history and idealism, it is important to remember that LGBT rights is not simply a human rights issue, but also an economic and national security issue, not to mention one of national prestige. Neglecting LGBT rights, as South Asia has done thus far, has the potential to keep any one of the member countries from achieving their lofty development and leadership goals among other modern democracies.

According to a recent study by the Williams Institute, when LGBT people are denied full participation in society because of their sexual orientation and gender identity, the subsequent violations of their rights are likely to have a harmful effect on a country’s level of economic development. The study’s findings demonstrate a strong linkage between LGBT rights and economic output, and even suggest that LGBT equality should be part of economic development programs and policies.

Moreover, the linkage between financial profits and minority rights is increasingly being made by the very private sector firms that India so publicly covets. In June this year, representatives of 11 top major multi-national firms met in Bangalore to share best practices for fostering a culture of LGBT inclusion in their organizations. At a similar event in Hyderabad, the attendees were encouraged to change their business practices by a speech on the struggles of being gay in India given by a well-known gay rights activist. Specific discussions that took place during these meetings have not been made public, but one can imagine the business leaders wondering how their firms would be treated by a government that prosecutes individuals, and their potential employees, for same-sex relations that are legal in most countries. Meetings like the one in Bangalore make it clear that business leaders recognize that competing in today’s global marketplace requires policies that foster talented employees, whomever they may be.

On the national security side, the case for LGBT rights is made by Swaraj herself. In the same U.N. speech quoted above, Swaraj notes that the growth of religious bigotry and intolerance has in many cases “directly fueled support and sponsorship of terrorism.” In declaring this, Swaraj is implicitly recognizing that marginalization of any minority leads to disenfranchisement, which creates populations pre-disposed to poverty and unrest. Her words also reinforce the notions that legally excluding a subset of your population from basic rights can be a tool for extremist recruitment and also that ignoring the rights of an oppressed class leads to disillusionment. Finding anyone to disagree with that sentiment would be a tall order.

The economic and security reasons for progress on LGBT rights are compelling. But ultimately, the issue of LGBT rights in South Asia comes down to what kind of countries they wish to be. A prominent LGBT scholar notes that LGBT claims for equality were most resonant in new EU member states for countries seeking to be considered modern, democratic societies. In a similar light, if India is going to play a significant role in international institutions, as it desperately desires, its representatives will have to put forward a more progressive stance on LGBT equality. To be taken seriously by other major powers, that stance will necessarily have to be supportive of equality, both in rhetoric and in action. Given the trend of greater attention to this issue globally, India cannot remain conservative or even silent.

Following the 2014 Indian Supreme Court ruling on transgender rights, a top legal scholar noted positively the “possibility of developing a unique South Asia jurisprudence on transgender rights.” Such examples, of South Asia leading the world on an issue of global importance, are unfortunately not plentiful. But South Asia now has an opportunity, to not only improve LGBT rights domestically – thereby upholding human rights for all of their people, strengthening their countries, and honoring their histories – but also to help shape the international human rights discourse on LGBT rights and thus help protect discriminated individuals around the world. Creating the basis for human dignity, as Swaraj aspires, requires no less.

Note: The views expressed here are solely those of the authors and do not necessarily represent the views of the U.S. Department of State or the U.S. government.

Photo Credit: Daniel Berehulak/Getty Images.