Title: Section 377 - The British colonial law that changed the people’s view of the LGBTQ+ community

Content warning: mentions of colonial violence

On Thursday, September 6, 2018, the Supreme Court of India delivered a historic verdict to overturn a 157-year-old British Colonial law entitled Section 377, which stated, that: "Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal" would be punished with an imprisonment for life or for a term of up to 2 to 20 years, in addition to a hefty fine. The law was put into place in order to ‘protect’ the innocence of British soldiers deployed to the British-Asian colonies from the ‘exotic, mystical Orient' that were deemed too ‘erotic’ and ‘enticing’ by British historian Lord Thomas Babinton Macaulay, who implemented the most prominent set of laws during the British Empire’s colonisation in Asia, known as the IPC (or the Indian Penal Code) in 1862, which included, most famously, the section that Macaulay noted would be a ‘blessing’ for India, as well as the rest of the Asian colonies under the same law, believing that it would be able to turn these ‘uncivilised’ nations towards modernity. However, many would argue if this was true given its lasting legacy that is still actively implemented in the countries of Bangladesh, Malaysia, Myanmar, Pakistan, and Sri Lanka. 

In a range of different ancient cultures around the world, there were no labels for anyone who identified under the umbrella of the LGBTQ+ community, since many didn’t see the difference between what is now identified as a homosexual or heterosexual relationship. And there is no greater evidence of this than in Ancient Asia. In India, the law code Manusmriti (c. 1250 BCE) sees same-sex and opposite-sex relationships equally, along with the Kama Sutra (c. 400 BCE), which refers to the existence of a third gender known as the Kinnar, or more commonly known as the Hijira, who often dress themselves as women and describe themselves as being castrated or born that way. Although many identify as transgender, a fraction of them also identify as non-binary. Besides that, they are thought to possess the power to bless or curse fertility according to the 2,300 year old Indian poem, called ‘Ramayana’, which follows the story of the deity Lord Rama, who was banished from his Kingdom for 14 years and as an act of loyalty all of the men and women followed their former leader to the forest, yet were only met with the direction that all of the men and women who followed him should safely return to the city. Since, the Hijiras felt that they didn’t fall into either category, they chose to stay with Lord Rama. Touched, he granted them the ability to bestow blessings for a range of special occasions.   One of the most notable cases involving a Hijira is that of Bhoorah in 1852, who was found brutally murdered in the northern district of Mainpuri, India. She lived with two disciples and her lover, yet during her murder trial, there was much speculation revolving around her leaving her partner for another man, causing her former lover to go into a fit of rage. Killing her in the process. The trial - consisting of an all  white-British court - caused a moral panic to spread across its British officials, with vulgar descriptions of Hijiras being 'filthy, disease-ridden, and sex crazed,' leading many to believe their existence to be a threat to their morality and their position as a 'colonial political authority'. However, it wasn't until years after her death that regional outrage erupted. The provinces across India launched a campaign to lower the number of Hijiras within the community after the introduction of a controversial law in 1871, called the Criminal Tribes Act, which targeted caste groups that were considered to be hereditary criminals. One of which includes the Hijiras. The law allowed the police to keep and record personal details of all the Hijiras in the community in order to keep them under surveillance, as well as implement fines and prison sentences for any Hijira caught wearing female clothing and accessories. What’s more, they also used their power to perform acts of brutality, as they forcefully cut their hair and stripped them of their clothing and accessories if they didn't comply. Yet, in spite of this violence, no act of aggression would be as comparable until the police began taking their children from them in order to ‘save them from a life of enormity’. Most of the children under the care of Hijras were previous orphans, slaves, and children of widows who found themselves roaming around the city, hungry and in danger of corruption and crime, so to 'save' them, most Hijiras took them under as disciples or even went as far as to 'adopt' them. Thus, when these acts of intimidation increased in frequency, the community reacted both democratically by holding petitions for the right to dance, play, and perform in public and illegally by methodically toeing the line between breaking the law and evading the keen eye of police surveillance by mixing both female and male pieces of clothing and accessories when going out in public. These small acts of rebellion showcased the resistance and perseverance of these Hijiras that resulted in their community to flourish under harsh conditions whilst withholding a very public image that didn’t abandon their morals or duties as entertainers and prominent symbols of divine sanction. 

Nevertheless, it could be presumed that the outward, homophobic outlook of the colonisers also heavily influenced local attitudes and outlooks towards people who identified their interests as lying elsewhere. As shown by the acts of police brutality against the Hijjiras. This assumption has since been strengthened, from the 1800s to the present day in 2023, when the executive director of Naz Foundation India (a non-governmental foundation that provides counselling services for people who identify as part of the LGBTQ+ community), Anjali Gopalan, said:

"It's in our traditions. But now we're getting so embarrassed about [LGBTQ+ relations]. Clearly, the change happened because of certain influences".

She points out that the LGBTQ+ community centuries ago were not ashamed of hiding their sexuality, yet instead were flamboyant with it by showcasing their love through art and documenting it in pieces of literature and myths; exactly how the Hijiras in the late 1800’s resisted denouncing their way of life to meet the status quo placed to submit them in to an act of ‘normality’ and instead chose to find small enjoyments that showcased to the world that their presence couldn’t be condensed. We see the same act of rebellion numerous times across Asia and the rest of the world, where the continuance of marginalisation and stigmatisation of the LGBTQ+ community could be in correlation with the increasing influence and acts of conservatism that secure the suppression of ‘Western influences’ that encourage boldness and individualism that only display its acts of dehumanisation, which not only contradict the country's constitutional values stating that every citizen should be treated equal, but also hold a mirror to both familial and societal values that preach about the importance of family, reputation and honour. Therefore, the overturning of Section 377 was a major step forward to opening the ideas of LGBTQ+ rights in India by lessening the stigma surrounding the community, as well as also inspiring other countries formally or currently under the same Penal code to break the chain of discrimination that was placed by a foreign power.