From colonial violence to decriminalisation and recognition: An interdisciplinary appraisal of perspectives on Indian LGBTQ+ community’s encounter with law

ABSTRACT

This article explores the duality of law with regard to the LGBTQ+ community, examining both its historical regulation of non-heteronormative genders and sexualities and its contradictory potential to transcend such regulations over time. Situated within a postcolonial analytical framework, it undertakes a thematic overview and narrative appraisal of research materials, drawn from a diverse array of social science disciplinary intersections, spanning the timeline from 1990 to 2022, that expounds on the intricate and overlapping imbrications between law and the LGBTQ+ community in India. It was observed that the extant academic deliberations on the subject are dispersed across disciplinary boundaries within the larger scope of humanities and social sciences, necessitating an integrative approach. By delving into the historical antecedents of the subject matter, the current findings are situated within four domains, namely: i) the colonial nexus; ii) the postcolonial public redress; and iii) other domains of sustained legal contestation, such as healthcare, workplace, media censorship, and the fraught terrain of identity and legal lexicon.

KEYWORDS:

• Law
• LGBTQ+
• gender and sexuality
• India
• cultural politics
• postcoloniality

Acknowledgments

The authors express their sincere appreciation to the editors for their invaluable assistance in enhancing the quality of this research article during the review process. Moreover, the authors extend their deep gratitude to the two anonymous reviewers for their meticulous reading and insightful feedback on the earlier version of this study.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1. Hijra: ‘Popularly described as “neither men nor women” or as a “third” sex/gender, hijras exist as vibrant and variegated subcultures across South Asia despite colonial and postcolonial persecution and have gained recent international attention with their legal recognition as a third or distinct gender and/or as transgender subjects in several South Asian countries’ (A. Dutta et al., 2022, p. 85).

2. Aravani: Hijras in the Tamil Nadu state of India are also known as Aravanis; their cultural and religious associations are deeply rooted in the South Indian state of Tamil Nadu (Revathi, 2011).

3. Kothi/Koti: Kothis are mostly biological men who show varying degrees of being effeminate. ‘Some kotis may position themselves as a “fourth breed” distinct from the “third sex” hijras, while in other contexts, hijra may overlap with other categories such as koti, dhurani or zenana.’ (A. Dutta et al., 2022, p. 88).

4. Jogappas are a highly understudied lesser-known transgender group in the Karnataka state of India. Despite overlaps, the cultural and religious practices of Jogappas differ from that of the Hijras, especially due to the former’s centrality of divine association and religious role of being married to the goddess Yellamma (Bradford, 1983; Reddy, 2005; S. Dutta et al., 2019).

5. Kinnar is a term for hijras in North India, especially in states like Maharashtra (Kalra, 2011).

6. See (ABVA, 2022) for the full document of ‘Less Than Gay: A Citizens’ Report on the Status of Homosexuality in India’ published by the AIDS Bhedbhav Virodhi Andolan (ABVA) in 1991.

7. West/western: In using the terms ‘west’ or ‘western’, the authors do not connote a homogenised or monolithic perception of the west, but rather, it is cognisant of the multifarious cultures, perspectives, politics, and intellectual orientations that have transpired in the west, across diverse spatial and temporal junctures. However, the term focuses more on the Anglo-American geographies, cultures, or academia in this research, considering the British role in colonialism and the American role in the emergence of perspectives on gender, sexuality, and LGBTQ+ studies via academia and activism. The meanings and focus of the term ‘west’ is contingent upon the contextual utilisation.

8. Locus standi (Latin) is a legal terminology that refers to ‘the status of the person filing the case, which should be one where it must be clear that such person is affected by the said act and thus has the right to ask for recourse within the law in this regard. In the absence of such a status, the court may declare that the person has no “locus standi” and thus their request for legal recourse can be turned down or nullified’ (Thangarajah & Arasu, 2011).

9. See D. Mehta (1996); Rangayan (2003); & H. Mehta (2016).

Additional information

Funding

This research received no specific grant from any funding agency in the public, commercial, or not-for-profit sectors.