28th June, 2019 marked the 50 years of the infamous riots at the Stonewall Inn in New York, where on 28th June, 1969, the New York police personnel had barged into a gay bar called Stonewall, and had mercilessly beaten up lesbian, gay, bisexual and transgender persons, which then sparked off one of the first and biggest demonstrations by the queer community in the USA against police atrocity, and homophobic laws. To mark the occasion, ‘pride’ is celebrated in the month of June every year all over the world. In 1969, the world was just waking up to queer rights and activism. Britain had just decriminalised homosexuality in 1967, though the age of consent for gay men was still higher than the rest of the population, i.e., 21. Most of the European and United States had anti-sodomy laws, while the post-colonial Asian and African
countries had happily retained the colonial law on sodomy. In fact, adult homosexual acts finally got decriminalised in all the States of the USA only in 2003! Just 16 years back!

It is not possible to take stock ofb the developments of the last 50 years in the current piece. Even taking stock of the last one year of the LGBTQIA rights is not easy, but an attempt can be made. Most importantly because, on 6th September, 2018, the Supreme Court of India in a five judge bench decision in Navtej Singh Johar & Ors. V. Union of India (2018) 10 SCC 1 struck down Section 377, IPC and decriminalised consensual sexual acts between adults. This judgment affected one-sixth of the world’s LGBTQIA populations, thereby becoming one of the most significant decisions on queer rights for a long time to come. Since then many countries have followed Navtej decision, and decriminalised homosexual acts between consenting adults, while some have tried to ‘differentiate’ their jurisprudence in retaining the colonial relic of the law.

On 24th May, 2019, the High Court of Kenya in a highly disappointing decision upheld the validity of Sections 162 and 165 of the Kenyan Penal Code, which criminalised ‘carnal intercourse against the order of nature’ and ‘gross indecent acts’ between men, i.e., mere euphemism for homosexual acts. The Court reasoned that since the Constitution of Kenya allowed marriage of individuals only from ‘opposite sex’, decriminalising sodomy would result in legitimising same sex relations, and in effect, same sex marriage, which was impermissible. In this rationale, the Court refused to take into account humungous evidence of violence and discriminated faced by the LGBT persons in Kenya, owing to criminalisation.

Within few days, on 11th June, 2019, the Botswana High Court struck down similar provisions of
Sections 164(a) & (c), 165 and 167 of the Botswana Penal Code that criminalised sexual acts between same sex adults. The High Court categorically observed that “sexual orientation is innate to a human being. It is not a fashion statement or posture. It is an important attribute of one’s personality and identity; hence all and sundry are entitled to complete autonomy over the most intimate decisions to personal life, including choice of a partner. The right to liberty therefore encompasses the right to sexual autonomy.” Unlike the Kenyan High Court, the Botswana Court acknowledged the devastating effect of criminalisation and fear of prosecution on the rights to equality and dignity of LGBTQIA persons noting that “it perpetuates stigma and shame against homosexuals and renders them recluse and outcasts”.

As someone who has worked on the Indian case of decriminalisation for almost 10 years, I must say that it was pure joy the see the faces of the Botswana queer activists present in the Court when the verdict was pronounced. It’s like everytime a judicial victory is achieved, it gives a fresh lease of life to lawyers and activists in both countries, where decriminalisation happened, and where the struggle w s still going on.

More good news emanated from South America. On 15th June, 2019, the majority judges of the
Supreme Court of Brazil voted to make homophobia an offence in the country, within the Anti-Racism law and would be punishable with five years’ imprisonment till the time the Government makes a separate law on prohibition of homophobia. On the same day, i.e., on 15th June,
2019, the Constitutional Court of Equador granted legal recognition to same sex marriage in Equador on the basis that there was no constitutional purpose to exclude same sex individuals from the institution of marriage. Such exclusion was unjustified, discriminatory and unconstitutional.

It is evident that the march of time and the arc of justice are both moving towards greater freedoms for LGBTQIA persons all over the world. But positive judicial verdicts or legislative measures are never the end of the road. The real challenge lies in implementing the decisions in their true spirit and bringing change on the ground. Almost one year after decriminalisation in India, queer persons are still struggling to exercise their sexual choice and freedom, facing gross family backlash aggravated by police insenstivity and prejudice, and lack of safe shelter and facilities in most cities of India, amongst others. In many cases, lesbian couples have had to approach the High Courts to protect their life and liberty and to live with their chosen partner.
Not many have the wherewithal to go to courts. Not many have the chance to leave their house. Not many still dare to hope. The lesson of Stonewall is make the most marginalised persons in the queer community hope again, if not to dream, of a more dignified and just life.

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