Legalising Sexualities in a Patriarchal State

The Supreme Court’s judgment on 6 September 2018, which read down Section 377 to declare that sex in private between consenting adults is legal, is an ode to self-determination of identity. The five-judge bench, in four separate but concurring judgments, has now affirmed that LGBTQ (lesbian, gay, bisexual, transgender, and queer) persons are entitled to equal rights under Articles 14, 15, 19, and 21, and other fundamental rights that the Constitution provides its citizens. Section 377 will continue to apply to sex with minors, animals, and to non-consensual sex. This judgment of the apex court overrules its 2013 judgment in Suresh Kumar Koushal and Another v Naz Foundation and Others which had pushed India’s LGBTQ community into more years of indignity by maintaining that non-vaginal penetration between consenting adults falls under the colonial law criminalising “carnal intercourse against the order of nature.” 

The recent judgment has been welcomed by activists and LGBTQ persons, who have admired its insistence on the right to dignity for the identity that one chooses for themselves. The NALSA (National Legal Services Authority v Union of India 2014) judgment has been instrumental in making this possible. The recognition of transgender persons as the “third gender” showed the way out of gender binaries, emphasising that “gender identity” is one of the most fundamental aspects of life. Crucially, the judgment defined gender identity as each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth.