“There must remain a realm of private morality and immorality which is, in brief, and crude terms, not the law’s business.”—Lord Wolfenden
Last Constitution Day, one of the legal pillar of Calcutta High Court, Hon’ble Justice Soumen Sen, at the event organized by State Legal Service Authority at the Calcutta High Court on 26th November 2021, beautifully etched in our mind the history, law, and jurisprudence of the right to equality of persons with gender queerness. His speech was followed by a powerful and moving speech by Ms. Minakshi Sanyal, alias Malobika, founder member of Sappho for Equality. She shared the story of her struggle for identity as a lesbian and ardent quest to meet someone like her, which pushed her and her partner to stand outside the Cinemas showing the “The Fire” movie, desperately looking for someone just like them. This quest has brought her closer to genderqueer individuals and she has dedicated her life to the cause.
This august occasion was greeted in the heels by a clarion call from a foreign land. In a unanimous full bench of the Botswana Court of Appeal affirmed, a 2019 High Court of Botswana judgment that threw down punitive laws criminalizing same-sex sexual interactions. The unanimous ruling by five judges found that criminalizing consensual same-sex relations breached the constitutional rights of lesbians, homosexuals, bisexuals, and transgender people to dignity, liberty, privacy, and equality, as stated by the Court of Appeal Judge President Ian Kirby.
This present case was the third appeal to be heard by the same bench after the Kanane v. The State,  2 BLR 67 (CA) and Rammoge and Ors. v. The Attorney General, 2017 1 BLR 494 (CA), concerned respectively with offenses related to homosexuality and the right to form a society for gender-queer persons. The appeal against Letsweletse Motshidiemang v Attorney General, was dismissed and Sections 164(a) and 164(c) of the Botswana Penal Code, which banned a person from having or causing another person to acquire “carnal knowledge against the order of nature” and prescribed up to seven years in jail for such offenses, were declared unconstitutional. Pithily summarised, the facts are that in 2016, Motshidiemang, a homosexual man, filed a petition with the Supreme Court that criminalizing his “only means of full sexual expression” violated his rights to liberty, dignity, and equal protection under the law under section 3 of the Botswana Constitution. The restriction also violated his right to be free from discrimination based on sexual orientation under section 15 of the Constitution. The court agreed with Motshidiemang and found the measures to be in violation of section 9 of the Constitution, which deals with privacy.
The Court noted that the judiciary in the recent years have been emphatic towards the gay community, one notable exception being, the outright categorical condemnation by Mwaikasu J. in the Kanane Case on the evangelical ground and, such, as the Court noted, was an “un-African import from the West”. Expert evidence was given consideration and the impugned provisions were considered to have negative consequences which lead to stigmatization of gay men and made them vulnerable to HIV/AIDS and STDs and hence consequently struck down.
Gender Queer and Judicial Discourse
This foreign law marks a footprint in the global judicial discourse, sparked by India’s Supreme Court’s landmark judgment, Navteej Singh Johar v Union of India.
The preamble to the Constitution of India calls for justice, social, economic, and political equality for all. The right to equality before the law and equal legal protection is guaranteed in Articles 14 and 21 of the Constitution. Supreme Court of India and etched another stroke of lively color into this rainbow through the landmark judgments, National Legal Services Authority v. Union of India, Justice K.S.Puttaswamy v. Union of India and Navteej Singh Johar v Union of India.
Transgender Persons (Protection of Rights) Act, 2019 was enacted as a direct consequence of the Supreme Court’s direction in the National Legal Services Authority vs. Union of India case. This ruling declared transgender individuals to be the “third gender,” affirming that the fundamental rights guaranteed by the Indian Constitution apply equally to them, and awarded them the ability to self-identify as male, female, or third gender. Furthermore, the court determined that because transgender persons were considered socially and economically disadvantaged, they will be given preference in educational institutions and career opportunities.
Just like in the Bostwana ruling, Justice Kirby’s observation resonated with Justice Chandrachud’s observation that, “An individual’s sexuality cannot be put into boxes or compartmentalized; it should rather be viewed as fluid, granting the individual the freedom to ascertain her own desires and proclivities… Sexuality must be construed as a fundamental experience through which individuals define the meaning of their lives…To confine it to closed categories would result in denuding human liberty of its full content as a constitutional right.”, and also with Justice Indu Malhotra’s observation that “History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries”.
Thus, in the horizon of gay rights jurisprudence in India, Navtej undoubtedly sliced time into a ‘before’ and a ‘now’ it would be negligent not to admit that Navtej established a space for a more comprehensive legal acknowledgment of LGBT rights in India.
The discussion on judicial discourse vis a vis genderqueer entities shall be incomplete without a reference to international judicial pronouncements. In Bostock v. Clayton County, the Supreme Court of the United States held that employees were guaranteed protection under the Civil Rights Act, and none should face discrimination based on their gender. This case was an amalgamation of three other cases, namely Altitude Express Inc. v. Zarda and Bostock v. Clayton County, Georgia, in which gay men were fired because of their sexual orientation, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment and Opportunity Commission, where a transgender woman was fired because of her gender identity. According to the Supreme Court’s ruling, discriminating against a person for being homosexual or transgender is impossible without also discriminating against that person based on sex, which is unlawful. Proponents of LGBT rights hailed the Supreme Court decision as a huge triumph.
Similarly, in Jones v. Trinidad & Tobago, the High Court of Trinidad and Tobago upheld a challenge to domestic legislation criminalizing same-sex relationships in Jason Jones. In this case, a gay LGBTQ activist challenged the constitutionality of certain provisions of the legislation that prohibited sexual acts between persons belonging to the same gender. The court held that, just because a person’s sexuality is different-minded than the norms prevalent in a particular place, does not invite state control over it and nor should it be used as a tool for spreading hate, thereby affirming a transgender person’s right to equality. The Puttaswamy dictum, which states that sexual orientation is a basic quality of privacy that is inextricably linked to human dignity, also guided the court’s decision.
In ND V. Attorney General of Botswana, a transgender man who was assigned the female sex at birth was denied to alter his gender to that of a male at the National Registry. The Court held that the Registrar failed to preserve ND’s human dignity since he was denied acknowledgment of his gender identity through correct identification, and recognition is an aspect of dignity. The Registrar’s refusal also infringed ND’s right to free expression, equal protection under the law (since his identification was not recognized, he was more susceptible to harassment, violence, and sexual assault), and his right to be free from inhumane and degrading treatment and discrimination. Although gender identity is not mentioned in the constitution’s list of forbidden kinds of discrimination, it is not exhaustive. Importantly, the court’s reasoning was substantially influenced by Navtej Johar’s decision. The court cited Justice Malhotra’s ruling in Navtej in saying that the right to privacy protects an individual’s judgemental autonomy and decisional privacy or privacy of choice against unjustified State intrusion. The judgment cited Justice Chandrachud’s decision, which said that societal concepts of heteronormativity cannot restrict LGBT people’s rights.
Now is the time when Advocate Saurabh Kirpal could be finally elected to the Indian Judiciary, making him the first person belonging to the LGBTQ circle to be promoted as a High Court Judge. The Constitution with the golden and sacrosanct values of equality and liberty has provided, us being the People. But we cannot impose new values on India without us having the required patience and zeal. Different values, albeit good, need hours of patience and hard work to weave into the mainstream of Indian life. It might be too soon to believe a rainbow in our sky, but this hope, shall not be a hapless fantasy. Much work remains to be done in India and elsewhere in the world to abolish outdated and oppressive legislation against homosexuals and pass new comprehensive legislation and decisions.
This is a guest-post by Malobika Sen and Soham Das. Sen is a Research Assistant to Hon’ble Justice Soumen Sen at Calcutta High Court. Das is a first-year law student at West Bengal National University for Juridical Sciences, Kolkata.