HomeSocio Legal ColumnSexuality as a Marker of Citizenship

Sexuality as a Marker of Citizenship

Introduction

Concept of citizenship has “social inclusion” as its grundnorm and the idea provides a framework for making claims with respect to rights.

As has been observed historically, the notion has been developed with the help of exclusionary techniques that were designed basing on binary divisions.

Citizenship has constantly shown itself to be a highly regulating and disciplining concept in the sphere of sexuality. The other side of citizenship as the venue for making right-based claims is the jargon of duties and responsibilities imposed on certain identities that do not conform to normativity that citizenship adheres to.

Therefore some questions that arise are, What are the contours of the relation between sexuality and citizenship? What is the impact of sexualisation of citizenship at the level of access to rights, to community as well on individual identities? How does a model based on heterosexual psyche contribute to social conditions that undermine the existence of sexually marginal identities?

Binary Logic of Citizenship

The modern invention of citizenship has relied upon the deployment of the public/private dichotomy. It also has been argued that the public/private distinction has deeply gendered implications and that it has never lived up to its liberal promise. The public/private distinction has masked how the private sphere can be a central site for surveillance and regulation, particularly for working class families. Thus, the private is not necessarily shielded from the glare of the state, and the public is far from universally inclusive.

The focus of civic republicanism on politics narrowly conceived has clear implications for sexual identity politics. For civic republicans, ‘political life is superior to the merely private pleasures, and the construction of non-heterosexually identified people as centred on (or obsessed with) pleasure and the body easily allows for claims grounded in sexual identity to be trivialised. Maurice articulates this most clearly in his claim that duties to family and community should be seen as prior to the claiming of rights. The emphasis here is not only on the perceived selflessness of the familial realm with its focus on relationships, but on self- control and ‘what is necessary for a society to claim to be civilized’.

Thus, if the body politic represents the movement from a state of nature to ‘rational’ society— the triumph of reason over desire—then ‘gays are not capable of being domesticated’ because of a lack of bodily (and social) discipline. In Christian Right discourse, for example, this lack of discipline is comprehensively constructed to include not only sexual acts, but also as manifesting itself through narcissism, avariciousness and anarchic tendencies. Such inherent qualities justify citizenship disenfranchisement.

Appropriating Citizenship

According to Davina Cooper citizenship have different lines of definitions or meaning which includes empowerment and responsibility and has the power to be put it in other way depending in turn on the specific historical context.

Advocating for citizenship as right coupled with embracing rights and duties is one of the practice of freedom which is accessible to non-heterosexual people.

Citizenship can be thought of through another binary, the difference between citizenship as a method of discipline and citizenship as self-developed & presented prior to getting citizenship status. Politicized identities are a factor behind producing disciplinary power (for instance when gay and lesbian becomes politically charged). Acceptance of identity in a way disciplines the very acceptance. Something vital is lost in this whole of process of discipline. It comes with the acceptance of identity in right inclined liberal society. This rudimentary something is regarded as political outlaw. Now, discipline is equal to normalisation, specifically sexual normalisation which converts identities into a model which in turn duplicates heterosexual monogamy but basically in non-public set up.

In words of Jeffrey Escoffier, normalised domination is enabled through institutionalising of political rights.

Locating the Debate Around Sexuality

As stated by Annie Smith arguments have been forwarded as to the conception of the “good homosexual”. The phrase signifies a person who adheres to law, is free of ailments, keeps his homosexuality hidden and knows that place is in the periphery of the society.

Following are the various concepts on the sexuality debate which are in circulation –

First is the concept of social inclusion. It is mainly defined as paid employment. Due to this definition, economic disparity in the society remains unquestioned and social inclusion is dependent at last on the inner conscience which in turn must be assisted by the state

Second is the association between duties and rights, the recognition of responsibilities is a prerequisite for enjoying the rights as the citizen of the state. This is connected with the discussion on social inclusion coupled with moral implication. By emphasising on inclusion in preference to economic disparity; responsibilities and opportunity can augment the language of rights. As long as rights have digressive cum discursive power, the rights are control by the individual inner responsibility

Third is the part of community in performing vital functions of inclusion, citizenship, and social control of aberrant behaviour. Communitarianism emphasis on the individual’s role in wider collective society, on shared values and the ethnic tradition. Generally, these form the nation state. It is pertinent to note that attainment of individual obligation is prerequisite for communitarianism. Further locating individual in community assists in language of individual duty to that of collective society.

Fourthly, new labour mainly focuses on the part played by the family which in turn is associated with communitarianism – in making active and accountable citizens. In community family is small but on a larger scale it is the base of the community also. The family is central place to raise children who are educated, responsible and law-abiding citizens who are central to the community.

Lastly, there exists a trust in law and managerialism. A careful thought should be given to the existing social problems for coming up with effective tactics to manage them and to strengthen the individual to manage themselves (mindful of the dangers of behaviour in order to act responsibly). The state and law have a role to play here, as law has been an efficient tool to promote accountable behaviour (ranging from law of crimes to taxation), making citizens self- disciplined and self-governing by incorporating appropriate inducements and deterrents.

The consensus of the majority should be represented in such a manner to aid gay and lesbian politics (through all-inclusive and progressing communitarianism), but sexual dissidents should be cautious of the communitarian rhetoric. Communitarianism with its main emphasis on nation, morality and family is inclined to exclude gays and lesbians.

The Concept of Sexual Citizenship 

The interest in citizenship by political theorists developed parallel to concept of sexual citizenship as visualised by queer academicians. The literature on the same points out a hierarchy being created in the notion of citizenship with sexuality as a marker and thus perpetrated by public policies. These policies were then used to control sexuality consolidate the majority identity politics.

The first argument put forth by literature on sexual citizenship is that of ‘heterocentrism’ which means that not only is sexuality embedded in the idea of citizenship but also that heterosexuality is the accepted form of sexuality permitted under the notion of citizenship.

A second point is that the heterosexual human is presented as the ideal man. A good citizen is one who is heterosexual, married and adhere to the prevailing gender norm. This idea of heterosexual man is fundamental to creation of 2nd class identity. Public policy ensures that regulation of sexuality is at the centre of creation of inequalities of gender, sexual orientation and class.

The identities that are regulated by policies are termed as “sexual strangers”, their person is not recognised and are bereft of full citizenship. The creation of such identities and misuse of policy to ensure restricted access to rights and limited recognition is highly exclusionary. But it is also necessary for demarcating the majority identity and thus making sure that heterosexual identities are not restrained in their access to rights.

The notion of sexual citizenship came alive to claim rights and criticise the policies that are predatory towards sexual orientation and thus leads to creation of 2nd class citizens. Diana Richardson provides 3 classification of claims based on sexuality- first are conduct-based claims that provides autonomy to people to decide on their engagement in sexual activity, second is identity-based which allows for self- expression and recognition , and third is relationship-based that allows for the autonomy to choose one’s partner.

The initiatives by social movements to bring the private into the public domain is the reason why discourse on sexual citizenship could take place. Sexuality is indispensable as it is inherent in every human and autonomy regarding one’s sexual activity and sex-life is instrumental to understanding ourselves as human. As the movements in support of LGBTQIA+ are coming to fore, so is the façade that deviant desires be contained in the private sphere which is often termed as the “duty of privacy”. Just like non-conforming people are expected to keep their affairs private, no such obligation is imposed on heterosexual individuals.

The norm of heterosexuality is a political gimmick and sexuality is essentially political. The patriarchal system tends to discipline those who fall beyond the sphere of desired forms of relations. The central aim to discuss about sexuality is because it is embedded in our comprehension of citizenship but is still not properly analysed.

The Historical Claim to Being Queer in Indian Context 

It is due to political reasons that homosexuality remained a less discussed issue in ancient India. Maintenance of silence on this issue has been a well-planned strategy used by those in power and this has lead to ancient Indian history being seen and read only as something that was heterosexual in nature.

It is pertinent to note that if we observe ancient legal texts of India, we would find that Manusmriti was the only text in which we find a mention of homosexuality. Manusmriti’s chapter regarding penance and atonement of sins mentions various sins like causing injury to a Brahmin, consuming liquors, deceiving other people and engaging in sexual intercourse with a man are listed as some of the reasons that will lead to losing of one’s caste. It should also be noted that women engaging in homosexual behaviour has been seen with utmost contempt and the text of Manusmriti prescribes a serious punishment and there can be atonement once this sin has been committed.

Scholars like Derrett have argued that raising the text of Smrithis to the position of law was a result of the colonial rule. The British needed some kind of law so as to achieve certainty and predictability of outcomes and hence they thought that texts in the Smritis will be able to serve the purpose of legislation in the Indian context.

If we analyse ancient Indian legal texts, we will find that there didn’t exist any strong forbiddance regarding homosexuality. On careful reading, it would be found that acts of sexual intercourse were prohibited, but there violation only attracted a monetary penalty. The situation has changed considerably when we India’s modern legal system where the act of homosexuals has been seen to be deplorable and not the homosexual person himself. Doing a Foucauldian analysis, it would be observed that notions of “deviants” or homosexuals being regarded as “criminals” was largely absent in ancient Indian law. There only remained a possibility in theory of a person contravening the Dharmic laws by engaging in homosexual sex and thus being penalised for the same. Needless to say, in ancient India, how rigorously the law would be applied depended on factors like gender, caste etc.

Even if we see literary and historical accounts of the medieval India, it would be observed that there still existed a greater tolerance for homosexuals and homosexuality. Various poems of that period have attempted to portray interactions which are romantic in kind between men and these interactions even transcended across the barriers of religion, class etc.

There was a remarkable shift in the notions and perceptions about lives of queer during the colonial era and mechanisms of legal as well as literary and also medical reasons had been brought forward to cast prohibition on homosexual acts. The discourses within the fields of law as well literature depicted a kind of Victorian morality where notions against homosexuality became firmly rooted not only because of the discourse spread by the colonising British but also how the people who were colonised responded to this.

Therefore the existence of homosexuality and non-conformity to gender norms was neglected and a myth was construed structured on hypermasculinity. The nationalist fervour generated by Bankim Chandra Chatterjee and Dayanand Saraswati was reliant on the forgetting of true past which was evidence to homosexuality so as to stress the virtues of control and virility. The nationalist project aimed at creating a sexual man who could assert the superiority of Indian culture over the coloniser’s and in doing so it emphasized the non-indigenous traits of sexuality. The deviant identity had to be closeted to attain a perfect movement of nationalism.

The Queer Treatment under British Legal Regime

The development of the queer community in the colonial law had made a huge difference in the laws that have been formulated in the post-colonial era, for a better understanding of it let us focus on the laws related to deviant sexuality in both the Civil and the Criminal laws.

Criminal law regime-

There were two provision that were present during the colonial time with regards to the queer community, the provision that were present can be in a sense be said to be extraordinary measures.

  1. there was a provision which clearly objected the notion of unnatural lust. It was been there in both the code i.e. the draft code as well as the code that was formulated in the year 1860
  2. with reference to the criminal tribe’s act, this act is there to deal with those aspects in the society where it cannot be categorised in a normal criminal law.

The principle which was thought of while drafting was utilitarianism, Macaulay who drafted it was of a view that prohibiting such kind of act would lead to situation where there is a greater good. But in fact, the draft which was being made by him is said be totally in violation of the principle which they planned to do (principle of Utilitarianism)

The Civil Law-

The person belonging to this community were treated as someone who are not capable of working. The term Silence in the code is determined as absence in some situation and in another cases it is said to be a strategy of power, In civil law the latter one should be focused.

Shastric texts are the only text which have higher value and the laws are also derived from it. For eg. The present Indian position of any law can be traced from the shastras and it keeps on evolving. This kind of approach can be said to have damaged the rights that women have and same points can be applied or inferred for the people who belong to the queer community. The main point that had appeared is that weightage was given more to the shastric texts, which got rid of the expansion of the Hindu law which ultimately led to a situation where the right of queer was prevented from asserting their own right by the modern law. Even till date i.e. in post-colonial time, also the rights of the queer have been deprived in the civil laws, same as they were earlier deprived in the pre-colonial civil laws.

Current Indian Stance on Treatment of Queer Community

Even though Section 377 has been decriminalised, homosexual people have now been regulated by other provisions such as Section 363 of the Indian Penal Code which penalise the abduction of any person from legal custody and is misused in order to regulate the sexuality of people. The only escape from the mires of the conversion therapy is the financial and social status of the LGBTQIA+. Our society still believes and spreads such archaic beliefs and other misinformation regarding the LGBTQIA+ community like it being a disease which can be cured. While this practice of “curing” homosexuality has been condemned by various members of the medical fraternity as a pseudoscience or for being unethical, it till poses a great risk to the LGBTIA+ community members.

The violence towards the LGBT community, however, does not affect every member of the community in the same way as other factors like caste, religion of the members have a major role to play in how individuals experience xenophobia or transphobia. The effect of the decision of Navtej Singh Johar is therefore disproportionate in nature as it favours the gay men in the upper class more than the cis women or trans people. Fundamentally, queerness is political and it permeates any element of an individual’s social experience as it is the state that actively removes individuals who have strayed from normativity, with the regressive NRC being a prime example. For example, in Assam, during the NRC procedure, the state list omitted some 2,000 transgender persons, essentially leaving them stateless. It is difficult to distinguish the two exclusions, and the right to do so has traditionally been open only to those who have caste and class advantages in society. The state expects the queer community to be apolitical so that they would not question the state or use their identity to reveal the inability of the State to guarantee their rights. This systemic racism is particularly detrimental to members of the queer community as there is no quota, no minimum labour market and no protection from workplace harassment and this makes them more vulnerable than any other individual.

Apart from decriminalising homosexuality, the judgment of Navtej Singh Johar refers to the past injustices faced by the queer community. However, the judgment does not give rise to any positive rights to the community. In addition, the passage of the Regressive Transgender Persons (Protection of Rights) Act, 2019 barely a year later, dramatically diminished transgender rights and advocacy. This Act is only a product of apathy, ignorance and sheer lack of inclusiveness and it can be seen from the provisions of the Act. Section-4 of the Act guarantees an individual the right to self-perceived identity but Sections 5 & 6 discuss how the District Magistrate has the discretion to provide trans people with a “transgender” identification certificate instead of their identified gender until they undergo sex reassignment surgery. This shows that the Act delegitimizes the right of a trans person to identify and be accepted as a specific gender and instead prefers to lump them into a broad category of “transgender”. There is a lack of clarification regarding the concept of intersex persons which dilutes their rights. Furthermore, there are no positive protections to the reservation and employment of transgender people. Throughout the consultative process, the Union Government has been deaf to the criticism of members of the trans-community. Although the members of LGBTQ community who have no caste or class privilege continue to face adversity and no positive rights, the media-discourse has covered the same-sex marriage as the next target for queer emancipation. It will still be trans-exclusive in a country where the legal system has not demarcated gender and sexual identities in a systematic way or granted them fundamental rights by legislation.

The Road Ahead

Imposing the idea that the straight married family is the most acceptable form of the family for the purpose of citizenship not only promotes the corruption of public policy, but also disrupts the democracy, its equality, and its inclusivity. Besides, it has also been observed that the idea of citizenship based on sex is not a static one but a dynamic one – one which is reconstructed based on culture and politics.

I want to say that we need a new understanding of democratic subjects and the interaction between our identity and polity; that we need a clarified grasp over the interaction between neoliberalism and sexual regulation; and that tactics that combine these diverse understandings of sexual citizenship and sexual regulation are needed by social movements for political reform.

Conclusion

To say the sexuality is not a factor to ascertaining citizenship is a façade. The entire field of citizenship is not only marked but the notion itself embeds the factor of sexuality. Citizenship that seems to provide a framework for realisation of civic, political and legal rights through its exclusionary tactics acts to create secondary citizens. To these secondary citizens carved out of their deviant sexual orientations, the access to rights is severely limited. The recognition of identity for them only serves to create “othering” (even invisibilisation) and allow for the regulation of such people through public policies.

In light of the above, it becomes imperative that the notion of citizenship as it is founded on patriarchal beliefs be scrutinised and exposed for its discriminatory application. This requires the need to enter the domain of politics and put forth the politics of identity so that the queer community that is accorded the status of secondary citizens highlight their identity that serves as a form of oppression for them. By way of identity politics they should strive for acknowledgment and recognition of their identity in the political sphere so that their access to rights come to parity with others. Only then can they truly be complete citizens. This realisation of identity politics should be made to happen by way of social movements that capture not only the imagination of the oppressed queer but also garner public support to challenge and modify the notion of citizenship for their full involvement as citizens.

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