LGBTQ Indians still haunted by trauma in years since nation lifted gay sex ban, says judge

Indu Malhotra was part of the five-judge bench that ended the gay sex ban in 2018 but says LGBTQ Indians still face persecution and discrimination today
PM Narendra Modi’s government has opposed legalising same-sex marriage, an issue that India’s Supreme Court is expected to rule on in the coming weeks

India

Thomson Reuters Foundation

Published: 8:00am, 7 Sep 2023

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Five years since India legalised gay sex, persistent discrimination means many LGBTQ Indians continue to suffer “mental trauma and alienation”, said one of the Supreme Court judges who lifted the ban.

Indu Malhotra was part of the five-judge constitutional bench that in 2018 unanimously struck down part of Section 377, a law introduced by India’s former British colonial rulers that had stood for almost 160 years.

Malhotra, who is now retired and was only the seventh woman to serve as a Supreme Court justice, said the September 6, 2018 ruling marked “the most momentous day of my career as a judge”.

“The court was packed with people from the LGBTQ community and also some of their parents. There was so much emotion, it was such an atmosphere … There was so much revelry and relief,” she said in an interview by phone from Delhi.

India’s LBGTQ couples fight for Supreme Court to recognise same-sex marriages

But Malhotra said that while the ruling had ushered in greater acceptance in the cities, LGBTQ Indians still face persecution and the hangover of decades of discrimination, including deep psychological scars.

“[Many] people from the LGBTQ community, because of alienation and hostility from their family, turn suicidal,” said Malhotra, 67, who served on the Supreme Court from 2018 until her retirement in 2021.

Before decriminalisation, Malhotra added, LGBTQ people were afraid of getting blood tests, fearing that being screened for HIV or Aids could lead to further scrutiny of their sexual orientation.

Many faced intense pressure from their families to undergo conversion therapy, the now widely discredited practice of trying to change someone’s sexuality or gender identity, Malhotra said.

“I know so many lesbians (whose) parents wanted them to go through conversion therapy or psychological treatment,” she said, adding that while attitudes towards homosexuality were changing, much remained to be done.

“The fear of ridicule (and) stigma has gone at least in the cities (but) I won’t say the same for the smaller towns,” said Malhotra.

02:17

One year after gay sex was legalised in India, LGBT couples still struggle for acceptance

Same-sex marriage next?

India’s LGBTQ community is again focused on the Supreme Court as judges consider whether to legalise same-sex marriage in the country of 1.4 billion people, with a verdict expected in the coming weeks.

Prime Minister Narendra Modi’s government has voiced its opposition to recognising gay marriage.

It has said appeals to legalise same-sex marriage represent “urban elitist views” and that LGBTQ relationships are not “comparable with the Indian family unit concept of a husband, a wife and children”.

Members of the LGBTQ community at a protest in Bangalore. Photo: EPA-EFE

Due to the ongoing deliberations, Malhotra said it would be inappropriate for her to comment on the same-sex marriage case, which is seen as potentially the biggest development on LGBTQ rights in India since the 2018 ruling.

For Malhotra, the decision five years ago crucially helped embolden more people to be open about their sexuality.

“[What] this judgment changed most radically was acceptance and acceptability by their families and societies, so more people came out of the closet,” she said.

Many LGBTQ people have since taken the opportunity to speak publicly about their sexual identity, as the fear of prosecution or blackmail receded, Malhotra added.

“[Their sexuality] is no longer treated as an aberration,” she said. “They don’t feel any longer the need to live in hiding or remain in the closet.”