Legislation and Government Policy

Beyond the Letter of the Law: Queer Policymaking From the Margins

Anish Gawande*

On November 15, 1988, a group of 500 sex workers and trans women marched from Mumbai’s red light district, Kamathipura, to Churchgate’s Hotel Samrat (right next to Mantralaya, the administrative headquarters of the Government of Maharashtra) to protest against oppressive moneylending practices within the brothel business. 

A delegation, accompanied by Namdeo Dhasal, the poet-activist chief of the Dalit, met with the Chief Minister at the time, Sharad Pawar, to present a list of demands and to request immediate government action. Just a month later, in December, a victory procession was held in Kamathipura to celebrate concessions granted by the state government to sex workers — a major accomplishment for a community that had been invisibilised by governments for decades. 

In hindsight, the protest of 1988 and its outcome represents an alternative vision of what the fight for queer rights in India could have looked like. After all, the dominant form of queer policymaking in India over the past three decades has involved small victories won after hotly contested legal battles. The courtroom, rather than the political arena, has been the primary site of presenting demands and achieving forms of redressal. 

Much of this faith in the courtroom can be traced back to petitions against Section 377, originating in 1994 with a plea by the AIDS Bhedbhav Virodhi Andolan (ABVA) and picking up steam with a Public Interest Litigation (PIL) filed by Naz Foundation before the Delhi High Court in 2001. These petitions saw the queer community embark upon a rollercoaster ride in the pursuit of justice: an early victory before the Delhi High Court in 2009 gave way to a stunning reversal of rights by the Supreme Court in 2013, before a final verdict by the highest court in the land read down India’s colonial-era anti-sodomy law for good.

The landmark verdict by the Supreme Court in 2018 reaffirmed the queer community’s  faith in the judicial process. A slew of recent petitions — including several on marriage equality and others on protecting queer couples from estrangement under family pressure — have seen courts across the country take note of questions of equal rights for queer citizens. Some of these courts, like the Madras High Court, have gone as far as to issue wide-ranging guidelines to prevent police harassment of queer citizens and lay down guidelines for the central government to take measures to prevent discrimination against the queer community. 

Amidst these reassuring advances in the judicial realm, however, a range of worrying developments in the legislative arena have pointed to the critical need for the queer movement to engage more robustly with India’s political ecosystem. In 2019, the controversial Transgender Persons (Protection of Rights) Act was passed by parliament despite vociferous protests by the very transgender community it claimed to protect. In 2020, two critical pieces of legislation — the Assisted Reproductive Technology (Regulation) Act and the Surrogacy (Regulation) Act — were pushed through parliament despite several concerns raised about how they explicitly denied queer couples the right to have children.

Never has the disconnect between queer activist networks and political structures been more evident than in the aftermath of COVID-19. As the pandemic raged across the country, the queer community struggled to make ends meet as the virus shut down means of earning livelihoods and prevented individuals from finding safe spaces to escape abusive households and families. Some states, like Tamil Nadu, which had instituted a transgender welfare board as far back as 2008, responded to activist demands to provide ration and wage support to marginalised queer communities. In other states, activists faced an uphill battle to implement minor reforms ranging from the creation of separate isolation wards for transgender persons to the prevention of the conversion of ART centres for HIV patients into temporary COVID hospitals. 

As the queer movement in India matures beyond the fight against Section 377 and grapples with the scale of reforms needed to ensure that truly equal rights are extended to the queer community across the country, there is an urgent need to move beyond legal remedies to achieve progress within the policy sphere. Courtrooms have provided, and will continue to provide, urgent redressal in cases where judicial intervention is necessary. However, the allure of media attention in cases involving queer causes can often lead to the passing of verdicts that look excellent on paper but fail to provide any relief in practice. 

Nowhere is this more evident than in the case of conversion therapy, a practice that attempts to “cure” queer people of their sexual orientation or gender identity. Despite medical bodies in India asserting that queerness is not an illness that needs treatment, and despite conversion therapy being classified as an act of professional misconduct by the National Medical Commission in a submission before the Madras High Court, the practice continues unchecked because of a lack of explicit criminalisation. In the absence of concrete legislation laying down punitive measures for offenders, the directives against conversion therapy serve only as toothless tigers.

Substantive policy reforms that are queer-inclusive, then, will require not only recourse to judicial measures but also concrete political will from the legislative and executive branches. Opinions vary on the best way to secure political will for queer policy reforms. There is, of course, a common understanding that the queer community can never be a traditional votebank given its small size and geographic spread. One strand of thought responds to this inability to be a votebank by claiming that queerness must advocate for itself, with queer causes remaining distinct from other social justice issues. This involves supporting the government of the day to secure rights as an extension of their goodwill towards queer causes.

While I empathise with this strand of thought, especially given the precarious situation queer Indians find themselves in today, I draw inspiration instead by the protests of 1988 and the alliances created by the sex workers and trans women of Kamathipura. For me, rights for the queer community are not to be requested but rather demanded. If queer Indians cannot themselves form a votebank that can exert political pressure, then we must build solidarity with other marginalised groups to craft a common charter of demands for equal rights. Creating strong, resilient coalitions based on mutual respect and solidarity can lay the foundation for a queer movement that can effectively advocate for itself in spaces ranging from municipalities to parliament.

Expanding the horizons of what queer activism and the future of queer policymaking can look like involves finding common ground with a wide range of activist communities: from differently-abled groups to mental health advocacy groups to environmental groups. This also involves an assertion that standing up against discrimination against queer Indians means standing up against discrimination of all kinds: on the basis of caste, class, religion, race and gender. Because, after all, queer identities do not exist in isolation. Queer Indians are also Dalit, also Adivasi, also differently-abled. To turn a blind eye to oppression of one kind while advocating against oppression of another kind is to invite charges of rank hypocrisy.

Efforts to build such broader coalitions are already underway, led by an assortment of stellar activists and changemakers working tirelessly across the country. In 2000, Shabnam Mausi, a hijra woman from Madhya Pradesh, made history by being elected as the first transgender MLA in the country. Running as an independent candidate, she brought together diverse communities through a common message against hatred and discrimination. In 2019, Disha Pinky Shaikh, a Dalit trans woman, became the first trans spokesperson of a major political party in Maharashtra (the Vanchit Bahujan Aghadi). Later that year, as protests against the Citizenship Amendment Act and the National Register of Citizens raged across the country, a series of women, transgender and queer-led demonstrations took place in major cities. Slowly, but steadily, the queer movement is making inroads that suggest a critical engagement with politics and policymaking at various levels. 

If such a form of coalitional politics, where queerness allies with other social justice movements, becomes the dominant form of the queer movement in India, we will see queer politics — and, by extension, queer policymaking — chart a radically different journey as compared to similar movements in the west. While queer movements abroad, particularly in the United States and Europe, have involved queer-specific demands that have moved from the decriminalisation of sodomy to the right to marriage, the Indian queer movement has the potential to disrupt such a linear narrative. The range of possibilities of what queer demands can look like, particularly when made as part of a wider charter of demands by marginalised communities across the country, is limitless. 

Today, queer policymaking in India stands at a crossroads. Moving forward, I truly hope that queer movements across the country will look beyond the courtroom for justice and engage with a wide range of stakeholders — from lawmakers to bureaucrats to civic officials. There simply is no other alternative to build a more equal, a more equitable future. 


Anish Gawande is a Rhodes Scholar and the founder of Pink List India, the first country-wide archive of queer friendly politicians. He is also the director of the Dara Shikoh fellowship which focuses on global creative dialogue around Jammu, Kashmir, and Ladakh, with an emphasis on intersectional conversations that put gender, sexuality, and caste in conversation with each other and with the political dynamics of the region.