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In Solidarity Against India’s “Section 377” – No to the Criminalization of Non-Conforming Genders and Sexualities!

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The Coalition for Sexual and Bodily Rights in Muslim Societies (CSBR) is deeply disappointed with the December 11 ruling of the Indian Supreme Court reversing the 2009 Delhi High Court verdict that recognized same sex relationships between consenting adults to be outside the purview of Section 377 of the Indian Penal Code. This section criminalizes sexual acts “against the order of nature,” and has been used in the past to discriminate against those with non-conforming genders and sexualities. In dismissing the premise of the 2009 verdict and declaring it as “legally unsustainable,” the Supreme Court has contributed to the erasure of over two decades of organizing in India for the freedom of sexual and gender expression and protection from harassment and abuse on grounds of sexual difference.

We join our Indian colleagues in protesting the Court’s inability to recognize Section 377 as a colonial vestige that is not reflective of a homegrown culture. As contended in the Court, Section 377 was passed during the colonial period and reflects British values from the Victorian era. The Indian court’s torpor reflects its inability to disengage from colonial prejudices. We also protest the voices that have hailed the judgment as religiously and culturally appropriate. The multiple religious leaders uniting to express their dissent against homosexuality are in fact expressing hegemonic cultural values that surfaced during the colonial period, and are disregarding the role of sexual and gender minorities in shaping their own religions. Moreover, India is a multicultural country where no definition of “Indian” culture can represent the entire populace. India is also a secular country, where it is unconstitutional to allow hegemonies that originate from one or even several religions to shape legal proceedings.

We stand with our Indian colleagues in their continuing struggle against this and other denigrating laws that have been used to criminalize and discriminate against vulnerable communities on the basis of caste, ethnicity, gender and sexuality. Section 377, in declaring “carnal sex against the order of nature” to be unlawful, criminalizes all sexual acts except penile-vaginal penetration, and contrary to the claims made by the Supreme Court, infringes on the rights of large fractions of the Indian population.

We demand that the Indian government discuss Section 377 in the Parliament and in the spirit of inclusiveness promised in the Indian constitution repeal a law that has led to the marginalization and denial of the existence and expression of multiple forms of genders and sexualities.

This statement has been endorsed by the Coalition for Sexual and Bodily Rights in Muslims Societies and the following organizations:

– AlQaws, for gender and sexual diversity in Palestinian Society (Palestine)
– GAYa NUSANTARA (Indonesia)
– Women’s Aid Organization (Malaysia)

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