Interconnected Rights

This final chapter focuses on the relationship between rights-based struggles and social transformation goals of sexual minorities. In September 2018, the Supreme Court of India reversed the Koushal judgment and declared Section 377 unconstitutional. This was a huge success for sexual minorities who rallied against the law for almost two decades and saw it as a symbol of state-sponsored homophobia. The two decades of sexual minority politics in India have not only foregrounded sexual orientation and gender identity as important constitutional rights but also strengthened the idea of constitutional morality. Constitutional morality, defined as respecting diversity and difference and protecting the most marginalized sections of the society, has helped sexual minorities to fight a growing populist morality that quintessentially defines India as Hindu and heteronormative. These successes also indicate that biopolitical mandates can be strategically used to fight popular morality and norms. In addition, by articulating sexual rights as interconnected with other social justice goals, sexual minorities in India also showcase the importance of intersectional struggles. The conclusion also touches upon challenges and opportunities for alliance building across sexual minority groups.

“HIV Is Our Friend”

This chapter provides an overview of HIV/AIDS policies as well as how sexually marginalized groups are drawn into biopower programs as “high-risk” groups. In 1983, when HIV/AIDS was first detected among sex workers in India, the state’s initial response was to blame the sex workers themselves as well as to forcefully test them and confine them in prison. However, it proved impossible to incarcerate every sex worker and to stop the spread of the HIV/AIDS epidemic. Instead, I argue, ultimately a consensus formed that supported giving marginalized groups a leadership role in tackling the epidemic. Drawing on ethnographic observations and the HIV/AIDS policy of the National AIDS Control Organization (NACO), this chapter also highlights how these biopower projects deepened the involvement of high-risk groups as they moved from simple prevention to behavioral change. Ultimately, communities became extensions of biopower projects as they implemented these programs at the day-to-day level.

Tolerable Identities, Intolerable Sex Acts

This chapter comparatively focuses on rights struggles of gay groups and transgender/hijra groups by focusing on two seemingly contradictory judgments of the Indian Supreme Court—the Koushal judgment of 2013, which declared Section 377 constitutional, and the same court’s 2014 NALSA decision, which granted rights to transgender groups—in order to discuss the impact of these legal decisions on the rights and recognition of LGBTKQHI groups. While the NALSA judgment made nonnormative gender identities legal, the Koushal judgment retained Section 377 and therefore upheld the idea that sexual acts considered to be against the “order of nature” were criminal. The chapter illustrates that while years of social activism have led to the tolerance of identities (today LGBTKQHI groups regularly organize pride marches and rally their political identities in public), nonnormative sexual acts remained criminal until 2018. The legal dichotomization of acts and identities has very important implications for the rights of sexually marginalized groups.

Challenging “Bare Life”

This chapter draws on Giorgio Agamben’s concept of “bare life” to show how prior to HIV/AIDS, sexual minorities experienced the state only through “raw power,” where rampant violence and abuse were the norm and the state freely consigned individuals to death by depriving them of resources. The management of “risk” in the light of the HIV/AIDS epidemic brought attention to the violence faced by sexual minorities, especially arbitrary police violence supported by criminal laws. During the earlier phases of the epidemic, peer educators and outreach workers—who were drawn from “high-risk” groups themselves—faced challenges and even violence in reaching out to their peers. Even carrying condoms for outreach purposes was seen as evidence of “criminal” sexual activity. This tension between peer educators and police reveals internal contradictions in the state; peer educators, who are at the cusp of state juridical and biopower, bring this contradiction in the state to the foreground.

Empowered Criminals

“Empowered Criminals” compares the mobilization of sex workers and MSM and gay groups around two separate legal campaigns: the campaign to decriminalize adult consensual same-sex sex (Section 377 activism) and the campaign to stop new amendments to ITPA. Through advocacy and sustained campaigning, sex worker and MSM/kothi groups were able to not only mobilize against these laws but also use their roles in the HIV/AIDS prevention programs to argue that these laws undermined the state’s health mandate. Through protests and lobbying, they were able to gain the crucial support of HIV/AIDS groups as well as the federal Ministry of Health (which is primarily responsible for implementing HIV/AIDS policy). Furthermore, sex workers successfully stalled ITPA amendments in 2007, and LGBTKQHI groups had brief success with the reform of Section 377 in 2009. I argue that despite these successes, sex workers and LGBTKQHI groups still remained “empowered criminals.” They were empowered to make claims on the state based on their shared responsibility in preventing HIV/AIDS, and yet they were still classified as criminals because the laws that criminalize sex acts remain intact.

Introduction

“We want employment, we want jobs, we want welfare.” This was a main slogan at a daylong dharna (protest) organized by a South India–based transgender and hijra group one humid summer afternoon in the city of Hyderabad in July 2015. The main goal of the dharna was to demand that the state government recognize transgender rights as recommended by India’s Supreme Court (SC). In 2014, for the first time in India’s history as an independent nation, the SC had recognized nonnormative gender identities as legal. It had also recommended that the government implement corresponding affirmative action policies in employment and education. There was a significant media presence and great interest in the dharna, whose organizers had mobilized a surprisingly large number of progressive groups to support their cause. It had been previously unthinkable that one of the most marginalized and stigmatized groups in the country could make demands of the state. When the day was over, the gathering had been a huge success that increased the visibility of the community while also showcasing its newfound political power....