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“Empowered Criminals and Global Subjects”: Transnational Norms and Sexual Minorities in India

Abstract

In this paper, I comparatively examine the influence of transnational advocacy on legal struggles around sex work and homosexuality in contemporary India. While transnational scholars of sexuality understand globalization as a contradictory and uneven process, there has been little attention to how this unevenness is manifest in the realm of sexual rights and law. Based on qualitative research, I show how transnational discourses on health—in particular, HIV/AIDS interventions—and on human rights interact unevenly with national discourses on sexuality. Whereas discourses regarding HIV/AIDS enable sex workers to mobilize at the national level, global anti-trafficking discourses effectively reduce sex workers to “victims.” For Indian LGBTQ groups, discourses regarding the HIV/AIDS epidemic and global human rights enable these groups to problematize the anti-sodomy law in national politics. However, national legal discourses effectively reduce LGBQ individuals to “criminals,” and legal advancements in this arena are uneven. Focusing on this unevenness produced by transnational advocacy this paper highlights how sexual rights are articulated in context of asymmetric and uneven globalizations.

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Notes

  1. I use the term sexual minorities here to designate marginalization of non-heteronormative sex and I include paid sex in this definition. While sex work is not a sexual identity category, the stigma attached to sex work places sex workers in a marginalized position vis-à-vis law and state policy.

  2. I understand sexual rights to include rights pertaining to sexual orientation, gender identity, erotic practices, reproduction, intimate relations, bodily integrity, autonomy, and the potential for pleasure. “It also includes the right to seek, receive, and pass on information in relation to sexuality and the right to sexual education” (Corrêa et al. 2008, 4).

  3. Sexual rights projects are not only rooted in HIV/AIDS advocacy but also in feminist reproductive health campaigns that make bodily integrity and rights important aspects of personhood. This is reflected in the Cairo and Beijing platforms and the galvanization of women’s movements, gay and lesbian movements, HIV/AIDS interventions around new human rights discourses regarding bodily need’s for security, health, and pleasure that emerged in the transnational sphere in the 1990s.

  4. Until recently, India was placed on the Tier Two Watch List of the TIP Report, indicating that the nation was not making a significant effort to combat trafficking. This placed India at risk of placement in Tier Three, which would cause it to lose non-humanitarian, non-trade-related foreign assistance from the US. For more on this, see Kotiswaran 2012.

  5. I use the terms homosexual, MSM, and LGBT as they were deployed in the legal debates, acknowledging that the terms do not adequately capture the experiences of people who don’t identity in identity terms or whose sexuality doesn’t fall under the neat binary identities homo/hetero. In 2014, the Indian Supreme Court recognized transgender rights in response to a petition filed by NALSA (National Legal Services Authority). This is a very positive move for transgender people as the court recognized gender identity as an important aspect of a person’s self-expression. But the presence of Section 377 continued to mark transpeople as criminal and deviant as their sexual acts remain criminalized.

  6. NACO’s first phase of HIV/AIDS prevention (1992–1999) focused on information dissemination and condom distribution; the second phase (1999–2006) focused on behavior change; the third phase (2006–2011) focused on targeted interventions with high-risk groups. The current phase (2012–17) provides services and outreach to vulnerable groups.

  7. The legislative and legal framework that regulates trafficking and sex work in India is contained in the Immoral Traffic Prevention Act (ITPA), 1956. ITPA does not claim to abolish prostitution per se but to criminalize its visible and public forms. ITPA prohibits brothels and makes soliciting in public a crime.

  8. Letter to the Parliamentary Standing Committee on Human Resource Development by Ashodaya Sex Workers Collective, Mangalore, 2006.

  9. On July 7, 2001, the staff members of Bharosa Trust, an NGO serving MSM groups, and NFI in Lucknow were arrested by the police on the pretext that they were having public sex and were spreading homosexuality. In their official report, the police claimed that the four arrested staff members were picked up from a park while having public sex, but the NGOs reported that they were arrested at their office and that some educational materials, including televisions and video cassettes, were confiscated during the police raid.

  10. Naz Foundation v. NCT of Delhi, WP (C). 2009. No. 7455/2001. High Court of Delhi at New Delhi. http://www.lawyerscollective.org/files/Naz%20Foundation%20Judgement.pdf

  11. A statement in Support of the Open Letter by Vikram Seth and Others, 2006. http://www.nytimes.com/packages/pdf/international/open_letter.pdf. Accessed 15 March 2015.

  12. Naz Foundation v. Govt. of N.C.T. and others. 2006. Reply Affidavit on behalf of NACO High Court of Delhi at New Delhi. 3. http://www.lawyerscollective.org/files/NACO‘s%20Affidavit.pdf

  13. Naz Foundation v. NCT of Delhi, WP (C). 2009. No. 7455/2001. 17

  14. Naz Foundation v. NCT of Delhi, WP (C). 2009. No. 7455/2001. 72–3

  15. In the Supreme Court case Suresh Kumar Koushal and Others v. Naz Foundation and Others, the individuals and groups who challenged the Delhi High Court’s judgment include Hindu rights wings groups, Christian groups, the All India Muslim Personal Law Board and individuals claiming to protect Indian culture. Ironically, religious groups that otherwise seem to find little common came together on this issue.

  16. Suresh Kumar Koushal and another v. Naz Foundation and others. 2013. Civil Appeal No. 10,972. Supreme Court of India. 78. http://orinam.net/377/wp-content/uploads/2013/12/Naz-judgement-SC.pdf

  17. Kothis are one of the most visible group in the MSM category in India. They are defined both by the role they play in the sex act (as passive partners) as well as their feminine dressing. Kothi is both their gender and sexual self-identity. Hijras are biological males who reject their ‘masculine’ identity to identity either as women, or “not men,” or “in-between man and woman,” or “neither man nor woman.”

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Acknowledgments

I thank the Special Issue Editors Manisha Desai and Rachel Rinaldo, the editor David Smilde and four anonymous reviewers for providing valuable comments, as well as Hae Yeon Choo, Myra Marx Ferree, Rhacel Parrenas, Katie Hasson, Ayesha Khurshid, and Carmela Garritano who offered valuable comments on earlier versions of this article. I also thank all of the participants and organizations in this study who kindly agreed to share their insights and time with me. This project received financial support from the National Science Foundation Dissertation Improvement Grant in Law & Society and Glasscock Center for Humanities Faculty Fellowship, Texas A&M University.

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Correspondence to Chaitanya Lakkimsetti.

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Lakkimsetti, C. “Empowered Criminals and Global Subjects”: Transnational Norms and Sexual Minorities in India. Qual Sociol 39, 375–396 (2016). https://doi.org/10.1007/s11133-016-9341-8

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Keywords

  • Transnational
  • Sexuality
  • Sexual minorities
  • Sex work
  • Anti-sodomy Laws