Born Free and Equal: LGBT rights as Human rights

The introduction of new particular issues under the ambit of the broader human rights movement is always challenging. The emergence of new rights has been termed as convoluted, conditional and contentious.[1] When these new rights gain importance, they essentially affect the other human rights in either absolute or relative terms.[2] Hence, the discrimination grounded on sexual orientation has brought new challenges for debate surrounding freedom of religion. Individuals advocating for recognition of LGBT rights as human rights internationally have been successful in formulating policies. However, it is believed that any human rights advocacy movement is always backlashed with political and social hindrances. These social, political and religious obstacles are stronger in some part of the world. Although where human right discourse on LGBT rights in the West has been embraced by people, particularly, legalizing gay marriages; however, there are countries where homosexual conduct is criminalized. This disparity in legal regimes shows that there is a historical narrative yet to be discussed. The essay focuses on the part of the world where these rights are yet to be recognized. The sub-continent has largely faced issues accepting LGBT rights. Why is there a huge difference in legal regimes? What is the genealogy of human rights in the West? How is it different from the countries who still find difficulties in accepting new human rights discourse? The problem is that history is read devoid of its context. The purpose of this paper is to look into the history of sub-continent and see why we have such laws in Pakistan that still bans homosexuality. One of the hypothesis is that colonialism is responsible for the exclusion of groups within the LGBT community.[3] The perpetuation of colonial structures invented the tradition of excluding them. Specifically, the transgender persons who before Colonial rule were employed in Mughal Courts.

The essay looks forward to investigating the exclusion of certain groups within the LGBT community in sub-continent and the laws in place as of now. Firstly, the paper responds to the question as to why we need LGBT rights as human rights discourse? Secondly, the paper explores the punitive national laws in sub-continent and international obligations. Thirdly, the history and social context of these punitive national laws which prohibit homosexuality would be gauged. It will help in understanding the social milieu which gave rise to such laws. Fourthly, the paper investigates the evolution of the transgender community in India. This would give us a brief as to what cultural changes occurred in British India through which the state decided to exclude transgender person. Lastly, the paper focuses on Pakistan and its social and religious acceptance. Moreover, it put forward a stance that it is impossible for the state to do positive legislation due to religious constraints and due to the colonized impacts.

The politics of LGBT rights have been under debate across the globe. Lesbian, Gay, Bisexual and Transgender (LGBT) activists have tried to put forward the idea that their rights should be recognized as they are the final bastion of civil rights in contemporary democracies. Historically, the advocacy of LGBT rights as human rights has always been done by interpreting the standing substantive rights and obligations rather than debating for a separate discourse of human rights for LGBT rights.[4] It was essential that sexual orientation problems should be covered under the existing laws for human rights rather than creating new discourse altogether. The implicit supposition was to ensure that recognition of sexual orientation issues should be dealt with under the prevailing human rights discourse as it would make the current discourse more consistent and flexible.[5] The advocacy on LGBT rights and sexual orientation discrimination started off with non-discriminatory campaigns and social movements. However, sooner or later the discourse was shifted as a separate human rights discourse. As overtime, it was considered as a distinct ground of discrimination. However, not everyone is able to enjoy the human rights because even in existing laws there are some communities and minorities who are excluded because they do not hold the position of being a citizen of a state. According to Douzinas people who are part of the political community should be given human rights. However, the states decide who comes under the ambit of political community by defining the term ‘citizens’. A transgender person was excluded from the purview of the definition of the citizens because of their sexual orientation. In Pakistan, they were not awarded any national identification card, hence excluding them from the definition of citizen. Therefore, it was necessary to shift the paradigm from interpreting the existing human rights discourse to a separate human rights discourse for LGBT rights. Moreover, it is believed by Michael Foucault the word ‘homosexual’ never existed. The word came into existence during the Victorian era in the late 1800s. Queen Victoria didn’t wish to see other males’ aristocrats have sex with other men. This practice was persistent; however, it had no name. After the word ‘homosexual’ came into existence, soon enough the opposite of it was invented which was ‘heterosexual’. Hence, the latter was believed to be a social construction by a woman who considered the latter to be natural. This narrative of history shows that the word homosexuality was set up as Other of heterosexuality. The history also finds it traces that even in former European colonies, there was a prevailing man to man sex than men to woman sex. However, it was not normal for Queen Victoria. Heterosexuality was soon wedded into the social structures and the ideas to sex categories were confined. It was essential for a man to be a heterosexual man and a woman to be a heterosexual woman. The idea of heterosexuality was ingrained in society in the early 1900s. Whereas homosexuality became criminalized. To be a heterosexual was to be considered normal and natural. However, homosexual people had to make themselves recognize to society because they were different from heterosexuals.

LGBT people are excluded due to the fact that heterosexuality had become the norm of society. It made the non-heterosexual people as others, although homosexuality was always a part of society. All societies have tried to restrict homosexuality but to say that heterosexuality is a norm is not a valid argument to make. This process of social exclusion causes LGBT community to suffer drastically. LGBT individuals face poverty, lack of healthcare, suicides, and physical violence even in the countries that are more acceptable towards the LGBT community. The process of excluding someone from society, as a result depriving them of different basic necessities of life is known as social exclusion. It is a multi-dimensional process. For instance, the United States made sodomy laws unconstitutional in 2003. Moreover, there was some other positive legislation as same-sex marriage was allowed in 2013 and the commencement of adoption rights in 2016. However, there still is a huge disparity between LGBT and straight individuals. The situation is still worst for this community. For instance, suicide rates are 10–20% for lesbian, gay, bisexuals and 41% for transgender adults; however, 4.6% for the general public.[6] Similarly, an LGBT person is more unemployed and live in poverty. 8% of them are unemployed as compared to 12% for non-LGBT.[7] Similarly, 32% are living in poverty as compared to 24% of non-LGBT.[8] These statistics are coming from a country who is far more acceptable towards LGBT rights. However, the situation is more worst for countries who still have punitive laws. Hence, it was necessary to demand LGBT rights as a separate discourse for human rights and not an extension for already existing rights.

The national laws in a lot of countries still prohibit sodomy and same-sex relationships are criminalized. It is considered against nature and not normal. This comes from the social construction of heterosexuality as a norm of society. Hence, the alternate form was considered illegal and morally incorrect. Some laws happened to have a religious genealogy. In Muslim countries, same-sex marriages and sodomy were prohibited because of religious contours. Section 377 of the Pakistan Penal Code states about Unnatural offenses which makes sodomy punishable. It could lead up to 2 years of a life sentence. Same-sex sexual activity is illegal in Afghanistan. It can cause long imprisonment or even the death penalty.[9] It is likewise illegal in Bangladesh to have same-sex marriage or same-sex sexual relationships. It will cause up to 10 years of life imprisonment.[10] India had recent developments and made same-sex sexual activity legal in 2018.[11] However, same-sex marriage is not yet recognized in India. Until 2018, India still followed the same colonial rule of 1860 which banned sodomy and it didn’t recognize the rights of gay, lesbians, and bisexuals.

Around the globe, same-sex relationships are illegal in 72 countries and have punitive punishments for indulging in such activities.[12] Following the decision in Toonen v. Australia,[13] the United Nations Human Rights Committee, ICCPR made it clear that the laws against homosexuality are in contradiction with International human rights law.[14] When it comes to international obligations or treaties there has been relatively slow progress at the UN regarding sexual orientation issues. Not until the 1990s there was any significant voice raised for the LGBT community. However, after that many NGOs who are related to LGBT rights have fought for the formal recognition of these rights in international law. In 2008, a Joint Statement concerning the human rights of LGBT individuals was sent to General assembly. It added sexual orientation and gender identity in the non-discrimination clause; however, it met with great resentment. There were 66 states who were in support and 57 states who made a negative formal response.[15] In 2011, there was a statement passed by 85 states who were ready to talk about sexual orientation discrimination. The title was “Ending Acts of Violence and Related Human Rights Violations Based on Sexual Orientation and Gender Identity”. This was supported by almost all the regions of the world; 94 Members states of the United Nation were in support of LGBT rights. Later on, this was adopted as a Resolution 17/19 on “Human Rights, Sexual Orientation and Gender Identity”.[16] However, it then faced with opposition. Almost 19 states which mostly included Muslim states stepped outside of the Palais des Nations in Geneva in protest.[17] Pakistan spoke on behalf of the OIC[18] (Organization of Islamic Council) and opposed the resolution and held it to be vague and controversial and it had no standing in international law. It was particularly stated that it was not tolerable for the OIC to accept the legitimization of homosexuality in the name of sexual orientation.[19] Most resentments were shown from the states which had religious genealogies for their human rights. They believed it conflicted with the teaching of their religion to practice such activities. However, there was another idea that making up new discourse for LGBT rights would be an effort to make new special human rights which would lead to the fissure of human rights into groups and sub-groups. Despite the strong resentment the advocates of LGBT rights kept on working in order to come up with a solution that is acceptable. In April 2015, Human Rights Council which worked on Discrimination against Women came up with a report that included “families comprising lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons”[20] There has been slow progress in the international framework regarding LGBT rights because of the resentment. However, the proponents have tried their best in their capacity to overcome the hurdles. In Young v Australia[21] and X v Colombia[22], it was concluded that there should be no discrimination for same-sex partners in relation to the award of pension benefits. It was considered to be a violation of the non-discriminatory clause which included grounds of sex or sexual orientation. However, this represents that religion plays a massive role in opposing rights for the LGBT community.

Before the emergence of colonial rule, LGBT rights were not criminalized and they were not considered as immoral. Urdu was considered a language of love with full of eroticism filled in it. The cultural and social context was different in the pre-colonial time period as it never made sodomy a crime. The pre-colonial Urdu literature had aspects of obscenity and eroticism in it. Medieval literature in Muslim cultural languages i.e. Arabic and Persian had erotic content. Sexual desire was also described as a normal response to beauty. The sexual organs and intercourse itself were described in metaphorical, stylized language. The body parts that are normally not spoken of in the normal conversation and which in other words are tabooed were normally used in literature.[23] Moreover, same-sex love was also portrayed in the form of literature. Similarly, Rekhti was the form of literature where a woman shows love for another woman, in other words, a lesbian relationship.[24] Hence, it is quite obvious that the culture before colonial rule had the literature produced which depicted the form of fantasies that people had in that time. LGBT rights were never criticized or criminalized in the pre-colonial time period.

There is ample literature to be found on the impacts of the colonialism on the world. Much ink has been spilled on the positive impacts and contributions colonial empire had brought to India. The colonial rule takes credit for creating a legal and formal democratic development in the colonized countries. The introduction to the Parliamentary system and the infrastructure of the government is all a gift from the British. However, the British also left behind a dark legacy which had several consequences. The British rule has been unfavourable for LGBT rights in colonized societies. In 1860, British Empire formulated a legal code which was Indian Penal Code 1860. This was established both in India and Queensland. The code specifically criminalized sodomy or male to a male sexual relationship. Section 377 of the Indian Penal Code made it punishable with imprisonment for life.[25] Moreover, the code also banned the publishing of Obscene literature in Section 292 of the Indian Penal Code. The traditional cultural inheritance was subject to a brutal critique by colonial administration who set the new standards of “civilization and cultivation”. In essence, the British attacked the poetic tradition of India for its perceived homoerotic “vulgarity”. The British policed and banned the selling of such literature and made sodomy and made same-sex love punishable under Section 377 of Indian Penal Code 1860. The Indian Penal Code was the first ever codified criminal law which was formulated by the British Government. British feared that their soldiers without their wives would turn towards men and have sexual relationships with them.[26] The intention of coming up with a Criminal law was to make sure that Christians were not doing any corruption and with the view of Christianizing the native custom. Without any debates or cultural consultation, the British Empire legislated laws against homosexuality.[27] There was a presumption that the native cultures do not prohibit sex enough. It was believed that the laws would be able to inculcate the morality of Europe in general public of India. The British believed that the orient subjects were erotic and the young colonial officers would get into such sexual activities due to the prevailing culture. Moreover, the British not only made the laws that criminalized sodomy but they paved the way for internalization of these norms by the native that there was no longer any prospect for liberalization from those laws. The criminalization of sodomy had significant impacts on LGBT people. It widely affected their conception of social relations, public space and their individual identity. These laws and ideas against LGBT rights were ingrained by the society that actively then excluded the people from the societal framework.[28] Hence, these people were frowned upon and the general public considered homosexual activities as immoral. Wilets argue that there have been deep impacts of colonialism post-independence in Caribbean states as well. These colonies still have a high tolerance for anti-LGBT rights. It follows from the above discussion that the reason we still have banned sodomy is due to colonial inheritance.[29] The fact that there were no laws in place before and there is ample literature that depicted same-sex love shows that colonial roots had deep impacts up till now. The ex-British colonized societies still are not able to liberalize themselves from these laws. The laws worked like a slow poison, it made people used to the law and it became a norm. Heterosexuality became a norm whereas Homosexuality was considered as an immoral activity.

Transgender people have been part of the subcontinent from decades. The third gender was recognized in the earlier ancient texts of Hinduism. There was the concept of “trityaparakriti” or “napumsaka” in Hinduism mythology and epic.[30] These terms meant that there was an absence of male masculinity and female femininity from a person. Hijras or Transgender people played a significant role in the Mughal time period. They had a position in royal courts of the Islamic world. They all occupied administrative positions.[31] They were political advisors, administrators, generals and guardians. They had a reputation of being clever, trustworthy and loyal. They had access to all public places and they also had an essential role in politics in the Mughal era. Moreover, they occupied higher positions in religious institutions. They were appointed as guards to protect holy places of Mecca and Medina as they were considered as trustworthy individuals. They were close to the kings and Queens. However, things changed quite roughly once the colonial rule was in place. Previously they acquired protection and benefits from Indian states. These benefits included part of the land, right of food and some amount of money.[32] All of these benefits were removed by British legislation. The colonial rule changed the situation for the Transgender people after the 18th century. The Europeans could not stand the fact that Hijras were given so much respect in royal courts. In the mid-19th century, the British rule came up with punitive measures which criminalized the transgender community and refused to provide civil rights.[33] They were thought of to be as individuals belonging to a different tribe. The commencement of Criminal Tribes Act, 1871, included transgender people who were allegedly involved in the kidnapping and dressed like a woman to lure men into them. These activities were made punishable for up to two years in imprisonment. These laws and the attitude of colonizers towards transgender has a great impact on the transgender community up till now. There is evidence of social exclusion, they have been socially excluded from social and cultural participation. In India, human rights violations against sexual minorities involve discrimination against the transgender community. The society does not accept a child if he/she behaves like the opposite gender. The child faces blatant threats from the family to act like the expected gender role. Similarly, they faced a similar set of discrimination ina political framework. In Criminal Tribes Act, 1871, some tribes and communities were termed as criminals by birth. All of the offenses were non-bail able. Moreover, in 1897 the act was amended and the word eunuch as an impotent male. Moreover, if they were found to publicly dance by dressing up as women, they would be arrested without a warrant. Hence, it is apparent that how Hijra or transgender community lost their value and regard after the emergence of colonial rule. The colonization still has deep impacts as the transgender community is still frowned upon. The police harass them and ask for sexual relationships. Moreover, they were not given Identification cards up till 2011. They had no right to vote and their rights were denied for 64 years. However, the mere identity card was not able to fight alone with social exclusion. As the whole community has now a general hatred from society. The courtesy of this hatred goes to Colonial rule.

In essence, the LGBT community is not able to recognize itself universally. There are still countries which are against providing rights to individuals who identify themselves as a part of this community. They deserve a separate human rights discourse as the current prevailing structures are not able to help them. Similarly, most of the countries which deny giving them rights are either Muslim countries or ex-British colonized countries. Most of these countries still have the laws in place that the British colonial rule had established. Pakistan has still the same laws that were in place when the colonial rule was in power. The mentality of the people had drastically shifted from what it was when the Mughal era was in power. People no longer believe that transgender people have any respect. They are considered as a sign of bad luck and they are socially excluded from all spheres of life. Pakistan as a state could never accept LGBT rights because of religious backlash. Firstly, Islam prohibits sodomy and same-sex love. It is impossible for the state to follow international reports and resolution which asks the state to provide the LGBT community with their necessary rights. Because it would be inherently wrong for the state to go against the very reason as to why it was created. Islam as a religion doesn’t allow same-sex love or sodomy. Secondly, people in our society has attached negative connotation with the transgender community. The transgender community has been labialized and stigmatized to such an extent that they face an identity crisis. Our state cannot provide any positive legislation to help the people belonging to the LGBT community. Moreover, it cannot follow any customary international law as well.

[1] Bob (ed.), The International Struggle for New Human Rights (2008).

[2] Johnson and Vanderbeck, Law, Religion and Homosexuality (2014).

[3] Sanders, D. E. (2009) ‘377 and the Unnatural Afterlife of British Colonialism in Asia’,

Asian Journal of Comparative Law, 4 (1), 1–30.

[4] OHCHR, ‘Born Free and Equal: Sexual Orientation and Gender Identity in International Human Rights Law’, 2012 (‘OHCHR Report 2012’).

[5] Kollman and Waites, ‘The Global Politics of Lesbian, Gay, Bisexual and Transgender Human Rights: An Introduction’ (2009) 15 Contemporary Politics 1.

[6] Haas, A.P., Rodgers, P.L., and Herman, J.L., 2014. Suicide Attempts among Transgender and Gender Non-Conforming Adults Findings of The National Transgender Discrimination Survey. The Williams Institute, UCLA.

[7] ibid

[8] Lee Badgett, M.V., Durso, L.E., and Schneebaum, A., 2013. New Patterns of Poverty in the Lesbian, Gay, and Bisexual Community. The Williams Institute, UCLA.

[9] “State Sponsored Homophobia 2016: A world survey of sexual orientation laws: criminalization, protection and recognition”. International Lesbian, Gay, Bisexual, Trans and Intersex Association. 2016.

[10] ibid

[11] “India court legalises gay sex in landmark ruling”. BBC News. 6 September 2018.

[12] “State-sponsored Homophobia”. The International Lesbian, Gay, Bisexual, Trans and Intersex Association 2010.

[13] CCPR/C/50/D/488/1992

[14] “United Nations: General assembly to address sexual orientation and gender identity — Statement affirms promise of Universal Declaration of Human Rights”. Amnesty International 2008.

[15] Sheill, ‘Human Rights, Sexual Orientation, and Gender Identity at the UN General Assembly’ (2009) 1 Journal of Human Rights Practice 315.

[16] Protection against violence and discrimination based on sexual orientation and gender identity. (2011) A/HRC/RES/32/2

[17] Gennarini, ‘UN Delegates Walk Out on Sexual Orientation Panel at Human Rights Council’, PRN: 2011/451

[18] Almost 17 Member states were part of the OIC

[19] OHCHR, ‘Human Rights Council holds panel discussion on discrimination and violence based on sexual orientation and gender identity’ (2012).

[20] ‘Report of the Working Group on the Issue of Discrimination against Women in Law and in Practice’. (2015), A/HRC/29/40, [23]

[21] CCPR/C/78/D/941/2000, [10]

[22] CCPR/C/89/D/1361/2005, [9]

[23] Rahman, Tariq. From Hindi to Urdu: A Social and Political History. Karachi: Oxford University Press and Delhi: Orient Blackswan, 2011. Print.

[24] Vanita, Ruth, and Saleem Kidwai. Same-sex Love in India: Readings from Literature and History. New York: St. Martin’s Press, 2000. Print.

[25] Han, E. and O’Mahoney, J. (2014) British colonialism and the criminalization of homosexuality. Cambridge Review of International Affairs, 27 (2). pp. 268­288.

[26] ibid 6

[27] ibid 7

[28] ibid 8

[29] Wilets, J. D. (2010) ‘Divergence between Lgbti Legal, Political, and Social Progress in the Caribbean and Latin America’, in J. Corrales and M. Pecheny (eds), The Politics of Sexuality in Latin America: A Reader on Lesbian, Gay, Bisexual, and Transgender Rights. Pittsburgh, PA: University of Pittsburgh Press.

[30] M. Michelra “Historical Evolution of Transgender Community in India” (2015). Asian Review of Social Sciences. 17–19

[31] K. Delliswararao and C. Hangsing (2018) Int. J. Soc. Sc. Manage. Vol. 5, Issue-1: 10–17

[32] ibid 5

[33] ibid (n 30) 4