Can the U.S. and India Forge a Human Rights Partnership on LGBT Rights?
By Arvind Narrain and Mark Bromley
President Obama described his journey to India last month as the dawn of “one of the defining partnerships of the 21st century.” And when confronted by human rights abuse, he reminded, “it is the responsibility of the international community—especially leaders like the United States and India—to condemn it.”On this Human Rights Day (December 10), our countries should commit to a new partnership to protect those who are persecuted worldwide because of their sexual orientation or gender identity. This is the latest chapter in the modern human rights struggle, and in Obama’s words, it is time to “put aside old habits and attitudes.” The United States and India are late in joining the struggle. Our courts propelled us forward, through legal decisions in the U.S. Supreme Court in 2003 and in the High Court of Delhi in 2009 that invalidated homosexual sodomy laws in each country. We now have an opportunity to turn those legal battles into larger human rights commitments, and to use them to frame difficult dialogues with other countries that continue to oppress their LGBT citizens. U.S.-India leadership is important, because many countries justify repression against LGBT individuals based on laws related to Article 377 of the Indian Penal Code, which the Delhi court struck down last year. Colonial rulers with deeply racist views about “native” sexuality and colonial morality imposed Article 377, criminalizing “carnal intercourse against the order of nature,” on India and subsequently on many other colonies beginning in the 19th century. Similar laws still exist in Asia, Africa and the Caribbean. They have no place in the 21st century.
With the memories—and scars—of court battles for decriminalization still fresh, India and the United States have much to say to the rest of the world. The most important message is that these sodomy laws are inherently demeaning and discriminatory, and their persistence limits all other rights for LGBT individuals. The U.S. Supreme Court found its jurisprudence “demeans the lives of homosexual persons.” The Delhi court determined that the principle of “inclusiveness,” or “recognizing a role in society for everyone,” is the “one constitutional tenet that can be said to be an underlying theme of the Indian Constitution.” In so ruling, the court honored “the dignity of every individual.”
Another shared perspective is that our courts looked to evolving international standards and fundamental human rights in making their decisions. The U.S. Supreme Court cited international practice and a decision of the European Court of Human Rights in recognizing that sometimes “laws once thought necessary and proper in fact serve only to oppress.” The Delhi court cited that U.S. decision, a recent UN “Statement on Human Rights, Sexual Orientation and Gender Identity” and a handful of intervening decriminalization cases. The point is that countries often need outside help to set aside old habits and attitudes. That can be a nudge from an ally or a strong and principled stand by a high court in one country that has resonance in another.
So how might the United States and India nudge each other and the rest of the world? In a speech to India’s parliament, Obama opined that on human rights, “India has often shied away from some of these issues.” It is time for India to join the UN “Statement on Human Rights, Sexual Orientation and Gender Identity,” which calls on all countries to decriminalize and to protect the fundamental rights of LGBT individuals. India must also embrace the 377 ruling nationally, while encouraging leaders in countries with similar laws to jettison them to the trash heap of history, where they belong. And for the United States, which only recently joined the UN Statement, it is time to put more muscle into the policy through active support to help reform the nearly eighty homosexual sodomy laws remaining worldwide.
The United States and India must also ensure that Obama’s “passage to India,” and the cooperation he outlined, does not smack of modern-day imperialism. As the world’s largest and most powerful democracies, both with vibrant gay communities but a checkered history of LGBT inclusion, a new partnership in support of decriminalization must be worthy of the 21st century, and it must reflect the humility and credibility of newcomers to a game that too often degenerates into a neo-colonial fistfight.
Arvind Narrain is a founder and member of the Alternative Law Forum in India, and a member of the team of lawyers who represented “Voices Against 377” in the successful challenge to the sodomy law in India. He spoke last week in Washington to elected officials at the 2010 International Gay and Lesbian Leadership Conference. Mark Bromley is Chair of the Council for Global Equality in Washington, DC.
