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On Thursday, September 6th, 2018, the Supreme Court of India repealed Section 377, a centuries-old law imposed during British rule in India that banned any intercourse “against the order of nature.”
The law, which carried a maximum sentence of life in prison, was used to both justify the criminalization of homosexuality and as a means for blackmail and intimidation.
The repeal of Section 377 is a huge victory for the Indian LGBTQ community, and is the result of a long legal battle between the courts and LGBTQ activists. Though homosexuality and nonbinary gender identities have been accepted, or even celebrated, as part of Hinduism, the most prominent religion in India, opposition to the repeal of Section 377 has been mainly based on religious and moral resistance from conservative Hindi groups. Both Section 377 and the homophobia and transphobia that still permeate Indian society today serve as stark reminders of the lasting effects that imperialism has had on Indian culture.
Section 377, before its repeal, was part of a set of laws known as the Indian Penal Code, introduced by the British Empire in 1860 in the beginning of the British Raj. Drafted and enacted by British lawmakers in India, the Indian Penal Code contained many laws based on or taken directly from English common law, including the Buggery Act and the Labouchere Amendment, both of which criminalized consensual homosexual acts. These laws had the intention of spreading British moral and religious values to the colonies, while also protecting British subjects living in India. The inclusion of these laws in the Indian Penal Code continued even after India and Pakistan gained their independence from Britain. By criminalizing homosexuality and nonbinary gender identities for nearly a century during the British Raj, imperialist Britain stifled the cultural acceptance of these identities even after Indian independence.
This history of imposed homophobic legislation extends far beyond India, and permeates nearly every state formerly under British rule. Out of 48 former British colonies that have laws criminalizing homosexuality, 30 retain the same legislation imposed during British imperialism. Of 72 states that criminalize homosexuality in 2018, 38 of them were, at one point, under British colonial rule. The penalties for homosexual acts range from minor misdemeanors, like in Singapore, to life in prison, like in Uganda and Zambia. Even in the United States, leftover anti-sodomy laws from British settler colonialism were on the books in some states until the early 2000s.
The effects of this legislation are felt much deeper than the legal consequences they maintain. In many cases, anti-homosexuality legislation imposed by colonial powers forced a new standard of morality upon the colonized, erasing the cultural significance that non-heteronormative identities had. In India, for example, Hinduism depicted homosexual couples and acts as normal, and the Hijra, or third gender, blurred lines between male and female while also taking on special cultural and spiritual roles in the community. Today, the history of British rule has made homosexuality a controversial issue, and those identifying as Hijra are ostracized. The Two-Spirit identity, an identity in Native American culture in which a person of either sex takes on both male and female social roles, faced a similar level of cultural erasure by European colonists. By imposing Western societal norms of dress, child-rearing, spirituality, and social roles, European colonists forcefully suppressed any indigenous cultural practice that they believed to be deviant or unnatural.
Despite centuries of suppression, LGBTQ acceptance in formerly colonized states is beginning to grow. Since gaining their independence, former colonies in Latin America, Africa, and the Caribbean have adopted laws decriminalizing homosexuality, resisting imposed European social norms. Though the repeal of Section 377 of the Indian Penal Code is a monumental victory for the LGBTQ community in India and abroad, it is just the start of a long fight towards LGBTQ acceptance worldwide.
Carolyn Ford is a Copy Editor at The Rational Creature. They study Journalism, Linguistics, and Gender and Sexuality studies at NYU.