Violence Against the Queer Community: History, Laws, and Solutions
“I felt different from the boys (as I was born as a boy) of my age and was feminine in my ways. From an early age, I faced repeated sexual harassment, molestation and sexual abuse, both within and outside the family, due to my feminine ways. Due to my being different, I was isolated, and had no one to talk to or express my feelings to while I was coming to terms with my identity. I was constantly abused by everyone as a ‘chhakka’ and ‘hijra’.”
This was Laxmi Narayan Tripathy, a transgender activist, explaining the trauma she and many others face as they grow up in a conservative society that believes that transgenders don’t deserve equal rights.
On July 20th, 2020, a 23-year-old gay man, Sanjit Mondal, was approached by two men on a motorcycle while on his way home from visiting a friend in Kolkata’s Chinar Park neighborhood. The alleged police asked him questions like “why do you wear earrings?”, “Why do you have long hair?”. Mondal was then taken to Narayanpur police station, under the Bidhannagar City Police, where he was further humiliated, threatened and abused for his sexual orientation. These types of crimes have become prevalent in our society. Attacking and humiliating someone because they have a different sexual orientation has become more and more common. The LGBTQ+ community has suffered years of oppression and neglect, and to date, they strive to have their rights recognized by society and by law.
It may refer to anyone who is non-heterosexual and/or non-cisgender. The LGBTQ community has always found it difficult to access the basic laws every human deserves due to historical events, conservative mindsets and religious texts. They have suffered years of violence and suppression, whether it be physically, medically or mentally. In imperial India and the United Kingdom, homosexual activity was criminalized. It was considered “unnatural” and was something that needed to be “cured”. Yes, homosexuality was first considered as a mental illness but study and subsequent research consistently failed to produce any empirical or scientific basis for regarding homosexuality as a disorder or abnormality, rather than a normal and healthy sexual orientation. In fact, since homosexuality does not cause any impalement in judgment, stability or reliability, it cannot be classified as a disorder.
While many countries now provide the community with basic security against hate crimes and, this hostility continues to prevail in many, if not most, countries, be it in secret or in public.
Section 11 of the Criminal Law Amendment Act 1885, commonly known as the Labouchere Amendment, made "gross indecency" a crime in the United Kingdom. In practice, the law was used broadly to prosecute male homosexuals where actual sodomy (anal intercourse) could not be proven. The penalty of life imprisonment for sodomy was death until 1861. Even afterwards, conversion therapists and drugs rules by the court was used to disregard the existence of homosexuality in the United Kingdom. The court of UK started using chemical castration as a method to “cure” someone of their homosexuality. Chemical castration was seen as an easier alternative to life imprisonment or the death penalty because it allowed the release of the convicted and continue use of the drugs under medical attention. The first use of chemical castration occurred in 1944 when diethylstilbestrol was used to lower men's testosterone. The antipsychotic agent benperidol was sometimes used to diminish sexual urges in people who displayed as then thought inappropriate sexual behavior and were likewise given by depot injection. Conversion therapies also played an infamous role in trying to change someone's sexual orientation. Psychological methods like psychoanalysis, reparative therapy and sex therapies and applied behavior analysis were also used to eliminate same-sex attractions.
Saudi Arabia is also one of the many countries which criminalizes same sex intimacy. Saudi Arabia has an uncodified criminal code based on Sharia Law. Under Sharia, same-sex intimacy and marriage are illegal. Same-sex conduct can be punishable by flogging or even death. Even supporting the LGBTQ+ community on online platforms can end in imprisonment. For example, in 2014, a 24-year-old Saudi Arabian man was sentenced to three years detention and 450 lashes after a Medina court found him guilty of "promoting the vice and practice of homosexuality" after he was caught using Twitter to arrange dates with other men. More recently, on April 8, 2020, 29-year-old Yemeni national Mohamed al-Bokhari was arbitrarily arrested from his home in the Saudi capital, Riyadh, and detained incommunicado at Malaz prison. Al-Bokhari was accused of “perversion” and “imitating women” after he published a video stating his belief in the personal freedoms of LGBTQI+ individuals. He was ordered to 10 months in prison, a fine of 10,000 riyals ($2,600) and deportation to Yemen.
Under Islamic jurisprudence, in Saudi, cross-dressing (men wearing women's clothes and vice versa) is not allowed and can lead to whippings, fines, imprisonment, capital punishment, and, for foreigners, deportation. Saudi Arabia doesn’t allow new legal documents to be made for people who want to change their gender and sex-change operations are not permitted in the kingdom.
In India, studies conducted have found that lesbians forced into heterosexual marriages faced a higher rate of physical violence than a lesbian who was not married (CREA, 2012a), sometimes they have also been led to psychiatric hospitals to get “cured” which for some has led to suicide. In 2019 a 19-year-old boy named Avinshu Patel from Mumbai had committed suicide, due to being burdened and harassed by society for being gay.
Studies like the Blondeel et al., 2017, have consistently demonstrated that, compared to the general population, LGBTQ+ people are more likely to suffer violence in their lifetime due to their non-conformity with established gender and sexuality. In addition to often being subject to the laws that prohibit consensual same-sex sexual intimacy, transgender and gender diverse people are also criminalized by-laws that regulate their gender expression (through so-called ‘cross-dressing’ or ‘impersonation’ laws) and the misuse of public order, vagrancy and misdemeanor offences (Housing Delivery Test, 2019b).
What is most concerning is that there is a major gap between the crimes being committed against the LGBTQ community and the crimes recorded. That means that there are major shortcomings in data collection and appropriate actions by authorities.
Teenagers are constantly discovering and exploring their identity, it is a time of great importance in their life. But it is integral that they have adequate support from their family. According to a report in the USA, 76% of queer persons have feared coming out in their childhood and teenage years. They fear society and their family’s reaction. “Family connectedness” is an important psychological aspect in a queer youth’s life.
Schooling is also an important part of adolescent life. School is where one learns, grows and understands how to deal with situations. Bullying is one of the most common and prevalent practices in schools, and queer students are often the most vulnerable. In a survey of almost 400 LGBTQ+ youth in Tamil Nadu by the United Nations’ cultural agency, UNESCO, more than half of them skipped classes to avoid bullying, while a third dropped out of school altogether. They either stopped coming to school or did not talk to anyone upon their arrival due to the fear of abuse. The abuse included threats of rape, groping, hitting, kicking, being locked in a room, having their belongings stolen and having rumours spread about them and their bodies. This type of experience can completely break an individual. This mentally harms them and might leave them with short term or long-term effects. This trauma can follow a victim to their adulthood causing problems like psychological distress, depression, anxiety etc.
While India is slowly making reforms to provide equal treatment to this community, it is important to notice some shortcomings in the law and how some measures can be taken to protect them and provide them with respect and equality.
To remove workplace homophobia, data should be taken through different processes for administrative purposes, for example, to understand the demographics of an agency’s clientele overall. Collecting administrative data anonymously (for example, through an online questionnaire) would allow an agency to gather data on the number of youths who identify as LGBTQ without asking youth to disclose the information to a staff member. In the questionnaire, all possible sexualities can be mentioned with the option of abstaining to answer as per the comfort level.
As mentioned above there is a gap between the publicly available data on hate crimes and the actual reported crimes. Many victims still don’t come forward to report the crimes committed against them due to fear of authorities and because they are unsure about their legal status. The correct flagging of cases will be facilitated where public policies and guidelines are detailing what a hate crime is and how it should be recorded. For example, in England and Wales, the College of Policing has produced a National Policing Hate Crime Strategy (College of Policing, 2014), as well as the Hate Crime Operational Guidance (College of Policing, 2014). The strategy commits the police to “prevent, positively respond to and reduce the underreporting of hate crime”, while the guidance defines hate crime (including anti-queer incidents), and includes information on minimum standards for responding to victims; investigating and supervising offences; intelligence and performance measures; and how to engage and consult with relevant communities
Education plays an integral part in the formation of young minds. It is proven that many children don’t come out because they don’t understand their sexuality. It is important to teach them about various sexualities and explain to them the reason behind their sexual attractions and the science and psychology involved in it so they know that it is not something to be embarrassed about. Studies have shown that what the children learn in schools, they perceive to be “normal”. Since we are still surrounded by people who hold the belief that homosexuality is a sin, it is vital to explain the opposite. Awareness can be spread in various forms: - bilingual manuals should be distributed in schools free of the cost containing information about sexual orientation, gender identity and explaining how bodies are different. There should be open counselling sessions with people in schools who are physically and mentally bullied because of their sexual orientation and gender identity. Workshops, webinars and awareness events should be held to make the young population understand this topic. Gender studies should be a separate subject or should be included in the curriculum.
As suggested by the Madras High Court recently, Parent Teachers Association (PTA) should be used in schools to sensitize parents on issues of the LGBTQIA+ community and any child who is unsure about its gender or would want to come out to their parents with the help of counsellors who are LGBTQIA+ inclusive. “Transgender” should be included as an option alongside “male” and “female” in all official documents and there should be an option to change the gender on the academic record.
CONVERSION THERAPY CRIMINALISED
Conversion therapy is still legal in states except for Tamil Nadu. If doctors agree to participate in any such practices, civil liability under medical negligence would be imputed to them. This civil liability involves only monetary compensation which the doctor can easily pay. Therefore, attributing criminal liability is more favorable here. How can we proceed with criminal liability?
Section 319 of the Indian Penal Code (IPC) provides that causing infirmity will constitute the offence of “Hurt.” A calculated deduction can be made that conversion therapy comes under the idea of “hurt” with the help of evidence that has made it illegal in many countries. It can be concluded that the process brings mental, physical and emotional trauma, all falling under the ambit of “hurt”. Hence, this way conversion therapy could be criminalized under Indian Law.
All these changes require a panel of legal practitioners along with company heads to sit and decide which solution is best for the future of India. But legal change does not mean that change happens overnight. Society has to accept the way of life and treat this community with love, respect and dignity that they deserve. With social media growing more and more powerful by the second, the voices of this community cannot be stifled for long. We as a society need to accept people and not differentiate amongst one another only based on our sexual orientation or gender.