Colonial Hangover: LGBT Rights in the Subcontinent

In remarks that coincided with a 2018 summit of Commonwealth leaders in London, British Prime Minister Theresa May said that she “deeply regrets” Britain’s legacy of promulgating anti-gay laws in its former colonies. She went on to urge Commonwealth leaders to scrap outdated colonial-era legislation that continues to serve as a means for the systematic oppression of LGBT communities in these countries.

May’s expression of regret is invaluable, as it has profound implications for the way in which the contemporary debate surrounding the oppression of the LGBT community plays out within post-colonial societies. This is because it carries the insinuation that the provision of rights to LGBT communities in post-colonial societies is simply an extension of the process of decolonization that began in the aftermath of the Second World War. Historically, efforts to decolonize have served as unifiers in the otherwise fraught and polarized political climate that exists in post-colonial societies.

The British Prime Minister’s words are also a negation of the Eurocentrist belief that although Western society has witnessed tremendous progress in the past few decades—especially when it comes to granting civil liberties and other fundamental rights to the LGBT community—the rest of the world has failed to keep up. This is because, in many developing societies, present-day ostracization of LGBT communities is antithetical to local cultural heritage. Instead, this oppression is a remnant of colonial rule, which was critical in fomenting and institutionalizing anti-LGBT sentiments in colonized societies.

The Impact of Colonialism on Gender and Sexual Norms in Pre-Colonial India

The Indian subcontinent, which is home to Pakistan, India, and Bangladesh, offers a unique and fascinating prism through which we can analyze the relationship and impact of colonialism on LGBT communities. This is because the region’s religious and cultural heritage has long been more accommodating to multiple gender and sexual expressions than Western societies. Today, however, LGBT communities in South Asia face increased marginalization, more so than their counterparts in the Western world. This change in attitudes can be attributed to nearly two centuries of colonial rule in the subcontinent.

Homosexuality was not outlawed in pre-colonial India. Similarly, for thousands of years, the “khwaja sira” or “hijra” community has been recognized in South Asia as a third gender, playing an important role in the region’s social and political history. Records and accounts from the Mughal Empire and before show that members of the community were invited to sing and dance at festivals, weddings and other celebratory occasions. They also served as advisers to the Mughal court.[i] However, this culture of acceptance began to erode following the arrival of the British in South Asia.

The subcontinent’s fluid gender and sexual norms did not conform to Britain’s Victorian era conceptions of appropriate sexual behavior.[ii] As the British Empire consolidated its control on the Indian subcontinent in the 19th Century, its ideas about culture, society, and law began to manifest themselves in Indian society. These included Western, Judeo-Christian sexual norms that viewed local notions of sexuality as barbaric. Homosexuality, for instance, was not outlawed in India until 1861 when British colonizers promulgated Section 377, a law that criminalized homosexuality.[iii] This crackdown on LGBT communities was not limited solely to the subcontinent. In fact, variations of the law were instituted by the British in 42 other colonies as well, such as Bhutan, Uganda, Singapore, and Malaysia. LGBT communities in societies that had not been colonized also faced increased marginalization as an indirect result of colonialism. For instance, influenced by events in neighboring India, Nepal, which was never formally colonized, also incorporated Section 377 into its penal code.[iv]

Ten years later, in 1871, the British laid the groundwork for the systematic oppression of the subcontinent’s transgender communities. The Criminal Tribes Act, inspired by European vagrancy laws, defined certain tribal communities collectively as dacoits, thieves, and undesirables.[v] The legislation marked out entire communities as intrinsically criminal, and required members of these communities to register with local authorities--or risk prosecution. Once registered, the tribe member's movements were restricted to authorized areas.[vi] Individuals could be arrested if found outside their designated areas and, if discovered in suspicious circumstances, even inside them, could be faced with a penalty of up to three years in prison.[vii] The Act was amended in 1897 to include eunuchs, which was "deemed to include all members of the male sex who admit themselves, or upon medical inspection clearly appear, to be impotent."[viii] In practice, this meant India's hijras. Under this law, eunuchs could be arrested without a warrant and imprisoned for up to two years. Not only were they denied the right to draw up a will or adopt children, but their traditional rights, including their rights to land and money, were obstructed by colonial authorities in villages across India.[ix]

LGBT Rights in India & Pakistan Today

The past few years have been encouraging for LGBT communities in Pakistan and India. Both countries have been in the news for landmark legislation and judicial verdicts that have granted civil liberties to LGBT communities.

In early 2018, Pakistan’s parliament passed the “Transgender Persons (Protection of Rights) Act,” a law which ensures transgender citizens the full protection of the laws. The law states that "a person's innermost and individual sense of self as male, female or a blend of both, or neither; that can correspond or not to the sex assigned at birth” must be respected.[x] Further, it allows citizens to have their gender identity recognized on all state documents, such as passports and drivers' licenses. It also requires the Pakistani government to provide protection centers and safe houses for those who feel at risk. Under this act, trans citizens will also have the right to inheritance and to run for office.[xi]

Similarly, in September 2018, the Indian Supreme Court legalized homosexuality, overturning a 157-year ban that outlawed sodomy. The law that the Supreme Court overturned, Section 377 of the Indian Penal Code, was first enforced in 1861 by the British as they consolidated their rule over India and included in India’s criminal statutes upon their independence.[xii] The statute could be used to punish those who committed sodomy or other homosexual acts with life in prison.

Western observers hailed these events in India and Pakistan as consistent with modern society’s changing attitudes towards LGBT communities. However, in many ways, each of these initiatives characterized a return to the fluid conceptions of gender and gender identity that prevailed in the subcontinent prior to the arrival of the British.

Conclusion

The establishment of a causal relationship between colonialism and the oppression of LGBT communities in post-colonial societies carries serious implications. For one, it disempowers right-wing groups in these nations who characterize the provision of rights to these groups as an example of westernization. This, by definition, implies that LGBT rights are antithetical to local traditions, culture, and history. This was evident in the response of Indian right-wing groups to the Supreme Court verdict that legalized homosexual relations. Subramaniam Swamy, a member of India’s ruling Bharatiya Janta Party (BJP) stated that homosexuality went “against Hindutva”, an ideological framework that is built on Hindu nationalism.[xiii] Similarly, a statement issued by Rashtriya Swayamsevak Sangh (RSS), an armed right-wing Hindu group, declared that “Indian society has not supported such relations.”[xiv] History suggests that this isn’t the case. Pre-colonial India had no qualms with both homosexuality and trans communities; colonial India did.

This aversion to Westernization, coupled with a desire to regain the subcontinent’s pre-colonial identity and rich cultural heritage is also part of a broader struggle that has ensued in the aftermath of Britain’s departure from the region in 1947. Post-colonial societies such as India and Pakistan are faced with the challenge of initiating reform, while also ensuring that this reform is consistent with their own civilizational history and values—not those espoused by contemporary Western civilizations. As a result, one of the key obstacles for both state and society has been to separate initiatives that are inconsistent with local culture and tradition from those that aren’t. Unfortunately, the provision of rights to the LGBT community has consistently been placed in the former category. This has begun to change in recent years, as evidenced by events in India and Pakistan. However, there is still room for progress, especially with respect to fostering wider societal acceptance of both gay and trans communities. This can only be accelerated by acknowledging colonialism’s impact on LGBT communities in the region, and the ways in which colonial-era laws marked a stark departure from the fluid conceptions of gender and sexuality once prevalent in pre-colonial India.

Illustration by Lane Letourneau

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