Tolerable Identities, Intolerable Sex Acts

Abstract

This chapter comparatively focuses on rights struggles of gay groups and transgender/hijra groups by focusing on two seemingly contradictory judgments of the Indian Supreme Court—the Koushal judgment of 2013, which declared Section 377 constitutional, and the same court’s 2014 NALSA decision, which granted rights to transgender groups—in order to discuss the impact of these legal decisions on the rights and recognition of LGBTKQHI groups. While the NALSA judgment made nonnormative gender identities legal, the Koushal judgment retained Section 377 and therefore upheld the idea that sexual acts considered to be against the “order of nature” were criminal. The chapter illustrates that while years of social activism have led to the tolerance of identities (today LGBTKQHI groups regularly organize pride marches and rally their political identities in public), nonnormative sexual acts remained criminal until 2018. The legal dichotomization of acts and identities has very important implications for the rights of sexually marginalized groups.