“Elephants do it, penguins do it, even butterflies do it. Ancient Greeks practised it freely, as did ancient Indians. Current estimates of the occurrence of exclusive homosexuality range from one to twenty percent of the population.” – Shamnad Basheer
Until 1800, there was no differentiation between homosexuals and heterosexuals. Homosexuality is moderately a new concept developed by the end of 18th century. The naissance of this term occurred in 1869 by Karl Maria Kertbeny . Sexologists sought to distinguish between the sodomite as a ‘temporary aberration’ and the homosexual as a separate species, bearing a distinctive sexuality. After such observation by Foucalt, there has been melee over the exact meaning of homosexuality. Since heterosexuality has always been associated with terms like ‘innate’ or ‘natural’, deviant forms of sexualities have always been stigmatised as problematic. The term homosocial is now used to describe single-sex contexts that are not specifically sexual. There is also a word referring to same-sex love, homophilia. Other terms include men who have sex with men or MSM (used in the medical community when specifically discussing sexual activity), homoerotic (referring to works of art), heteroflexible (referring to a person who identifies as heterosexual, but occasionally engages in same-sex sexual activities), and metrosexual (referring to a nongay man with stereotypically gay tastes in food, fashion, and design). Pejorative terms in English include queer, faggot, fairy, poof, and homo.
Hinduism and homosexuality
Contrary to popular belief, homosexuality is not a new concept to Hinduism. But it’s pertinent to note that, nowhere it is directly mentioned. To understand concepts pertaining to homosexuality, one has to understand aspects relating to sex and marriage. The punishments given to persons indulging in homosexual acts are negligible. Ancient texts have classified ayoni tainted and not pure. Only a negligible fine is enforced by Arthasahatra for ayoni sex. There is no different punishment for men and women. But certain features in Puranas goes against the law texts, since they illustrate gods and heroes arise from ayoni sex.
There is reference in ancient texts where marriage is considered a union of two souls rather than union of two different genders .Additionally there is reference to marriages where the consent of parents or the society is not required, namely gandharva vivaha. . The scriptures also discuss a child being born to same sex couple. In the ancient Hindu text of the Sushruta Samhita where it states that a boneless child (interpreted by commentators as having cartilaginous bones) is the result of an act of sexual intercourse between two women, in which their sukra, or sexual fluids, unite in the womb of one of them. But in the medieval period, things changed. These texts tell the story of how the hero, Bhagiratha, is born to two co-widows after their husband, King Dilipa, dies childless. Further in the Krittivasa Ramayana, it is the direct intervention and blessing of the god Shiva that sanctifies the two women’s relationship. Shiva is a god associated with gender trans formation, varying eroticisms, and miraculous birth. He is connected to femaleness through his ardhanarishwara (half-man, half-woman) form, and to homoeroticism through his playful transformation into a female to please his wife, Parvati, in love play.
Is Homosexuality an illness?
Medical establishments all over the world (WHO, American Psychiatric Association) accept homosexuality as normal behaviour and not a disease. The concept of human rights stands extended to people with different sexual orientation as prescribed in the London Declaration of 1988. It should be noted that even Amnesty International took a long time to accept that homosexual preference is a human rights issue.
In India an organisation like the Indian Medical Association (IMA), not exactly famous for its espousal of human rights causes, has supported repeal of Section 377 and has chosen to pronounce that homosexuality is not a disease. This was last year, in response to reports of HIV positive cases in Tihar jail and IMA’s recognition of the fact that condom supply would not be taken up unless homosexuality is decriminalised. This is one kind of reaction-supporting gay rights because it is necessary for AIDS control and prevention.
Indian psychiatrists often have negative perceptions, as do the people at large. Use of aversive options such as electro convulsive therapy for treating gays is not unusual.
ADD DANIEL SHEIKH
Homosexuality and other countries
The legal status of homosexuality differs immensely around the world. Homosexual acts between consenting adults are known to be illegal in about 70 out of the 195 countries of the world. Certain surveys have showed that secular countries are more tolerant towards homosexuals. In most African countries barring South Africa laws banning homosexuality are passed till date. So is the case with Middle Eastern countries. This dissertation will not focus a lot on countries where homosexual is illegal. It borrows aspects from countries where it homosexuality has been legalised.
Position in Europe
The first records of sodomy as a crime at Common Law in England were chronicled in the Fleta, 1290, and later in the Britton, 1300. Both texts prescribed that sodomites should be burnt alive. Such offences were dealt with by the ecclesiastical Courts. The Buggery Act 1533, formally an Act for the punishment of the vice of Buggerie was an Act of the Parliament of England that was passed during the reign of Henry VIII. It was the country’s first civil sodomy law, which regarded male sexuality as illegal. Female homosexuality was not even mentioned. Before the sixteenth century the punishment for homosexuality was sending the accused persons to the prison, which was comparatively lenient as from then on until the Offences against the Person Act,1861 death was the penalty for certain kinds of homosexual conduct. Then in 1885 the scope of the type of conduct was widely extended and it provided that ‘any male person who in public or private committed any act of gross indecency with another male person should be liable for two years of imprisonment. Soon after this period the notorious case of Oscar Wilde occurred where who prosecuted the Marquess of Queensberry for libel. But this trial brought into light such evidence that not led to Wilde dropping charges but ended up with him getting arrested and consequently imprisoned for two years for gross indecency with other men. From 1931 o 1955 there was tenfold increase in the number of ‘offences known to the police’. Some debated that it was wilde case which encouraged homosexuals to define themselves. Increasingly more men became open about their sexual orientation not caring if it led them to be considered as criminals.
The Wolfenden Report
Post World War II arrests and prosecutions for homosexuality heightened. Alan Turing a victim of homosexuality was forced to choose between prison or hormone treatment. He eventually lost his job and his death in 1954 was treated as a suicide. This and other cases instigated the Government to set up a committee under Sir John Wolfenden to consider both homosexual offences and prostitution. The committee included in its panel a psychiatrist, panel of judge, an academic and various theologians .The Wolfenden Committee published in 1957 originally seemed to be concerned about remove ‘moral panic’ in the minds of public about homosexuality. It reported that the problem of homosexuality was not widespread, it existed in ‘small minority of the population’ and that it should accordingly ‘be seen in its proper perspective, neither ignored nor given a disproportionate amount of public attention.’ For the most part, it can be stated that committee recommended homosexual behaviour between consenting adults no longer a criminal offence. Further the committee also mentions about the disparity that existed in treatment of such an act by police in courts alike in different parts of the country. It is pertinent to note that the committee only addresses the issue of decriminalising homosexuality not about its condonation or approval. Ironically the committee assumed the relationships which it proposed to be removed from sanctions under criminal law were immoral. But it did not elucidate why such relationships were immoral. It is imperative to note that neither the Wolfenden report nor the Sexual Offences Act 1967 was concerned with anything beyond the criminal law. This assumption had been criticised by some gay men and women who when freed by the threat of prosecution came out.
In 1967, the U.K parliament, passed Sexual Offences Act,1967. It decriminalised homosexual in private between two men, but both of them should have attained the age of majority 21. The Act applied only to England and Wales . It is material to note that did the Act was not applicable to Merchant Navy or the Armed Forces. In Scotland , homosexuality was decriminalised in by the Criminal Justice (Scotland) Act,1980 . In Northern Ireland , soon after the determination of a cse by European Court of Human Rights in Dudgeon v. United Kingdom it was decriminalised by the Homosexual Offences (Northern Ireland) Order 1982.
The Civil partnership Act in 2004 created parallel legal arrangement in Marriage, giving same sex couples nearly all the rights and responsibilities of the married couple. As per this , civil partners are entitled to similar property rights as married opposite-sex couples, the same exclusion as married couples on inheritance tax, social security and pension benefits, and also the capacity to get parental responsibility for a partner’s children, along with responsibility for reasonable maintenance of one’s partner and their children. Further rights regarding tenancy, , full life insurance recognition, next of kin rights in hospitals are also bestowed. There is a formal process for dissolving partnerships analogous to divorce.
FOOTNOTE SECTIONS + ADD THOSE SECTIONs
July 17 2013, Queen Elizabeth II approves a same-sex marriage bill for England and Wales. Her approval comes a day after it passes in Parliament. While the queen’s approval is simply a formality, her quick response clears the way for the first gay marriages to happen as soon as 2014 in England and Wales. The bill allows same-sex couples to marry in both religious and civil ceremonies. It also allows couples currently in a civil partnership to convert it into a marriage.
Scotland is currently considering its own new legislation on same-sex marriage.
Position in U.S
Sodomy laws in the United States were largely a matter of state rather than federal jurisdiction, except for laws governing the U.S. Armed Forces. In 1963, the penalties for sodomy in the various states varied from imprisonment for two to ten years and/or a fine of US$2,000. By 2002, 36 states had repealed all sodomy laws or had them overturned by court rulings. The remaining sodomy laws were invalidated by the 2003 U.S. Supreme Court decision Lawrence v. Texas.
In 1951, Harry Hay regarded as the founder of gay rights movement by many founded The Mattachine Society, the first national gay rights organization. In 1955, not many years later, Daughters of Bilitis , lesbian-rights organisation was also established. In 1962, Illinois becomes the foremost state in U.S to decriminalise homosexual acts between consenting adults. 1969 was a revolutionary year for gay rights activist as the Momentous Stonewall Rights transformed the gay rights movement in U.S from a degree of small number of activists into a widespread protest for equal rights and acceptance.
In 1973, The American Psychiatric Association removes homosexuality as a mental disorder from its official list for the same. In 1982, Wisconsin befalls as the first state to proscribe discrimination on the basis of sexual orientation.
In 1993 another pioneering event occurs when the U.S.Military by introducing ‘Don’t Ask, Don’t Tell’ policy allows homosexuals to serve in the military but forbades homosexual activity. President Clinton’s original intention to revoke prohibition against gays in the military gathered unbendable opposition. This led to the compromise, which led to the discharge of thousands of men and women in the armed forces. In 1992, Colorado electorates sanctioned by referendum an amendment to the Colorado state constitution (Amendment 2) that would have prohibited any city, town, or county in the state from taking any legislative, executive, or judicial action to identify gay and lesbian individuals as a protected class. In Romer v. Evans the Supreme Court in its landmark judgement relating to sexual orientation and state laws in the ratio of 6:3 held that the state constitutional amendment in Colorado prohibiting protected status based upon homosexuality or bisexuality did not pass the rational basis test, under the Equal Protection Clause. In 2000, Vermont emerged as the first state in the country to legally recognize civil unions between gay or lesbian couples. The law states that these ‘couples would be entitled to the same benefits, privileges, and responsibilities as spouses.’
This was a landmark case that overturned Bowers v. Hardwick decriminalised homosexuality, to the extent that it was between two consenting adults within the privacy of their room. In this case the Houston police responding to a reported weapons disturbance, entered petitioner Lawrence’s apartment and witnessed him and another adult man engaging in private consensual sex. Petitioners were arrested and convicted of deviate sexual intercourse in violation of Texas statute forbidding two persons of the same sex to engage in
certain intimate sexual conduct. The Supreme Court held the Texas statute making it a crime for two persons to engage in intimate sexual conduct as a violation under the Due Process Clause of the Fourteenth amendment. There were four main contentions that the court faced and it shall be discussed as follows:
i. One of the principal questions in this case was whether petitioners as adult were free to engage in private conduct in the exercise of their liberty under the Due Process clause. For this, the court reconsidered the decision in Bowers. The court stated that although the laws involved in Bowers or here purport to do no more than prohibit a particular sexual act, their penalties and puposes have far reaching consequences on private human conduct, sexual behaviour, in the most private of places, the home.
ii. The Bowers court stated that prohibitions against Sodom have ancient roots. However its pertinent to note that nowhere in history, homosexual conduct is required to be treated in distinct manner. It can be observed that there is more emphasis on non-consensual acts whether among men and women or men and men. American laws targeting same sex relations did not develop till 20th century. The nation’s laws and traditions in the past half century are more relevant. They show an emerging awareness that liberty gives susbatantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.
iii. This case does not involve minors, persons who might be injured or corced, thos who might not easily refuse consent, or public conduct or prostitution. It does involve two adults who with full and mutual consent engaged in sexual practices common to a homosexual lifestyle. Petitioners right to liberty under the Due process Clause gives them the full liberty to engage in private conduct without government intervention. The Texas statute pursues no legitimate state interest which can rationalaize its intrusion into the individual’s personal and private life.
In 2004, same sex marriages become legal in Massachusetts. GOODRIDGE V. MASSECHUESETTS In 2005, Connecticut legalises civil unions followed by New Jersey in 2006.
In Re marriage cases the California Supreme Court the court viewed that laws treating classes of persons differently based on sexual orientation should be subject to strict judicial scrutiny, and that an existing statute and initiative measure restricting marriage to opposite-sex couples violate the rights of same-sex couples under the California Constitution and may not be used to exclude them from marrying. California voters On November 4, authorised a ban on same-sex marriage called Proposition 8. The attorney general of California, Jerry Brown, asked the state’s Supreme Court to review the constitutionality of Proposition 8. By then, 18,000 marriages were already performed, the validity of which was in question as a result of the ban. Attorney General Brown restated in a news release that the same-sex marriages performed in California before November 4 should remain valid . The California Supreme Court, in Strauss v. Horton , a compilation of three law suits held that the amendment to the constitution in the form of Proposition 8 is valid. But the retroactive application of such law would not be entertained by the court. In 2010, the Connecticut Supreme Court in Kerrigan v. Commissioner of Public Health legalized same sex marriages in their state.
The court rules that the state cannot deny gay and lesbian couples the freedom to marry as per the Constitution of Connecticut, and that the state’s civil union law does not entitle same-sex couples with similar rights as heterosexual couples. In 2009, Vermont became the first state to allow same-sex marriage by way of legislation. In the same year New Hampshire same sex marriage was legalised. On June 2011, New York passes a law legalising same sex marriage. New York is now the largest state that permits gay and lesbian couples to marry.
In 2013, the U.S Supreme Court in the landmark judgment of United Sates v. Edith Windsor held section 3 of the Defence of Marriage Act to be unconstitutional. Section 3 defines marriage as the legal union between one man and one woman as husband and wife for purposes of all federal statutes. The decision connotes that same sex couples married in states that recognize same-sex marriage as legal cannot be denied federal benefits under federal laws in which marital or spousal status is addressed.
Thereafter New Jersey, Illinois and Hawaii become 14th,15th and 16th state to legalise same sex marriage, all by way of legislation.
POSITION IN AUSTRALIA
Australia succeeded United Kingdom’s sodomy laws on colonisation in 1788. It’s retention in the criminal codes passed by the various colonial parliaments during the 19th century was observed. Adhering to the Wolfenden report, the Dunstan Labour government introduced defence in South Australia in 1972 for sodomy involving ‘consenting adults in private’. This defence was instigated as a bill by Murray Hill which repealed the state’s sodomy law in 1975. The Campaign against Moral Persecution during the 1970s augmented the profile and acceptance of Australia’s gay and lesbian communities, and other states and territories repealed their laws between 1976 and 1990. Tasmania became exclusion to this practise. It retained its laws on sodomy until the Federal Government and the United Nations Human rights Committee forced their repeal in 1997. This was the result of ground breaking case of of Toonen v. Australia
Toonen v. Australia
The author was an activist for the development of the rights of homosexuals in Tasmania, one of Australia’s six constitutive states. He contested certain provisions of the Tasmanian Criminal Code, namely ss. 122(a) and (c) and s. 123, which criminalise various forms of sexual contact between men, including all forms of sexual contacts between consenting adult homosexual men in private. The moot point challenged was that the above provisions contravened certain aspects of international law mainly Articles 2 , paragraphs 1, and Article 17 and Article 26 of the International Covenant on Civil and Political rights. Firstly it was stated that the sections do not differentiate between sexual activity in private and sexual activity in public and results in transporting private activity into the public domain. In their enforcement, these provisions upshot violation of the right to privacy, since they enable the police to enter a household on the mere suspicion that two consenting adult homosexual men may be committing a criminal offence. It may also lead to unlawful attacks on the honour and the reputation of the individuals concerned. Further they characterise individuals based upon their exercise of right to privacy on the basis of sexual activity, sexual orientation and sexual identity. The Committee discarded the argument that for the purposes of Article 17 of the Covenant, moral issues are exclusively a matter of domestic concern. It opined that this would open the door to pulling out from the Committee’s scrutiny a potentially large number of statutes interfering with privacy. It further observed that with the exception of Tasmania, all laws criminalising homosexuality were repealed throughout Australia and that, even in Tasmania, it is apparent that there is no consensus as to whether ss. 122 and 123 should not also be repealed. Taking into account that these provisions were not enforced, entailing that they are not deemed essential to the protection of morals in Tasmania, the Committee concluded that the provisions failed to meet the “reasonableness” test in the circumstances of the case, and that they arbitrarily interfered with Mr Toonen’s right under Article 17. Since the Committee has found a violation of Mr Toonen’s rights under Articles 17 and 2(1) of the Covenant and required the repeal of the offending law, the Committee did not consider it indispensible to deliberate if there had also been a violation of Article 26 of the Covenant.
The common-law crimes of sodomy and commission of an unnatural sexual act in South Africa’s Roman-Dutch law were declared to be unconstitutional by the Witwatersrand Local Division of the High Court on 8 May 1998 in the case of National Coalition for Gay and Lesbian Equality v Minister of Justice . This was upheld by the Constitutional Court in the same year . The ruling applied retroactively to acts committed since the adoption of the Interim Constitution on 27 April 1994.
National Coalition for Gay and Lesbian Equality v Minister of Justice
The case concerned a referral for confirmation to the Constitutional Court of an order made by the Witwatersrand High Court. The referral sought to affirm that the following laws are unconstitutional and invalid
(a) the common law offence of sodomy; and (b) the inclusion of sodomy in schedules to the Criminal Procedure Act 51 of 1977 and the Security Officers Act 92 of 1987, and s 20A of the Sexual Offences Act 23 of 1957 which prohibits sexual conduct between men in certain circumstances. ADD SECTIONS
Even though in principle the Constitutional Court only had to decide on the constitutionality of the inclusion of sodomy in the schedules and of the section of the Sexual Offences Act, this could not be done without further deliberating the constitutionality of sodomy as a common law offence. The Constitutional Court stated that the offences, all of which are aimed at prohibiting sexual intimacy between gay men, violated the right to equality as they unfairly discriminated against gay men on the basis of sexual orientation. Such discrimination is presumed to be unfair since the Constitution expressly includes sexual orientation as a
‘Even when these provisions are not enforced, they reduce gay men . . . to what one author has referred to as ‘unapprehended felons’, thus entrenching stigma and encouraging discrimination in employment and insurance and in judicial decisions about custody and other matters bearing on orientation.’
The court further stated that:
‘[G]ay people are a vulnerable minority group in our society. Sodomy laws criminalise their most intimate relationships. This devalues and degrades gay men and therefore constitutes a violation of their fundamental right to dignity. Furthermore, the offences criminalise private conduct between consenting adults which causes no harm to anyone else. This intrusion on the innermost sphere of human life violates the constitutional right to privacy. The fact that the offences, which lie at the heart of the discrimination, also violate the rights to privacy and dignity strengthens the conclusion that the discrimination against gay men is unfair’.
Despite the abolition of sodomy as a crime, the Sexual Offences Act, 1957 set the age of consent differently. For same-sex activities it was 19 years, whereas for opposite-sex activities it was 16. This was rectified by the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, which comprehensively reformed the law on sex offences to make it gender- and orientation-neutral, and set 16 as the uniform age of consent. Later on, even though the new law had come into effect, the former inequality was retrospectively declared to be unconstitutional.
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