Rethinking on Homosexuality: An Impact Analysis
Evnat Bhuiyan :
The demand of LGB community (Lesbian, Gay, Bisexual) for legal rights, liberty and equality had always been challenged as this is a thoughtful issue which has close connectivity to such socio-psychological change that a society in our country might not be ready to accept very often.
Though Brunei made an outbreak in international field through an eye blasting modification in their national Penal Code that criminalizes sodomy with death penalty by stoning, later it put a halt to execute the law after a huge international uproar against it. Decriminalizing social status and identity of LGB community, the groundbreaking verdict of the Supreme Court of India overturned the embargo on ‘Consensual Gay Sex ‘, declaring Section 377of IPC (Indian Penal Code), 1860, as irrational, arbitrary and manifestly unconstitutional. The verdict has been spoken in superlative across the world, as a symbol of eradication of discrimination based on sexual orientation, portraying it to be a broader concept of humanity, independence and human dignity. LGB community lit up the candle of hope when right to privacy got constitutional recognition in India. Petitioners argued that- State should not peep into the bedrooms of its subjects and should act within the ambit of right to privacy, right to love, right to human dignity, right to equality. But the other side of the coin may not seemingly as positive as it supposed to be. Criticism of some of the features of homosexuality might have finest sharp edges.
In the context of Penal Code,1860- the wording of section 377, could be interpreted to be neither targeted nor intended to attack the homosexuals, rather it intended to be equally punishable, for every human being, whether heterosexual or homosexual, man or woman, on ground of gross indecency, for engaging themselves in unnatural sexual intercourse. Sec.377 has the terms “Carnal intercourse against the order of nature.” Thus, it is solely the ‘ Act ‘, not specifically a person or community, against which the law is sanctioning. The underlying question is, “Does the State have the authority to intervene private life of its citizens?”
To figure out the reasoning behind condemning homosexuality, it will be convenient to put a glimpse on the differences between heterosexuality and homosexuality.
Firstly, the popular hearsay about LGB people is that they suffer struggle to realize self identification or sexual orientation until adulthood and born naturally with distinct nature of sense.
One of the Bench- judges of Indian SC verdict said, “homosexuality is a variation, not aberration”. Unfortunately, this dichotomy is supported to be a good fallacy both medically and scientifically by many medical specialists. Dr. John Tay, a famous clinical geneticist, clarified the matter ‘ whether gays are born that way and cannot change ‘ by explaining the influence or activity of ‘ Genes ‘ in human body:
“The effects of genes on behavior are very indirect because genes make proteins, not preferences. The scientific truth is that our genes do not force us into anything. Genes are responsible for an indirect influence but on average, they do not force people into homosexuality. Genetic factors are much less important than environmental ones in the causation of homosexuals. So, the claim that, ‘I am born that way, so I can’t change’- is simply not true.”
The harsh reality is that they can’t lay claim the way heterosexuals can, regarding procreation. Heterosexuality has a legitimacy which homosexuality cannot lay claim to. Like the biological purpose, rights based on this theme are also unproven.
This is one of the unbeatable reasons why Indian SC verdict clearly ignores marriage, maintenance, inheritance and divorce issues for homosexual couples as it will outburst several legal contradiction, judicial confusion and problematic circumstances if the existing laws for heterosexuals are used for the homosexuals.
Secondly, homosexuals are prone to STD (Sexually Transmitted Diseases) much higher than heterosexuals. Bill Roundy, from the newspaper, New York Blade News, reported that – the increase in STD cases is the result of risky sexual practices by a growing number of gay men. In a large CDC study (Centers for Disease Control and Prevention)in STD clinics in 5 major US cities in 2002, the rate of new HIV (Human Immuno Deficiency Virus) infections among MSM (Men having Sex with Men) is found to be 9times higher than among women and heterosexual men.
The CDC also reports in 2001 that homosexuals comprise the single largest exposure category of more than 6,60,000 males with AIDS (Acquired Immunodeficiency Syndrome) in the USA.
A paper delivered at the 4th International AIDS Malignancy Conference, at the National Institutes of Health, in 2000, revealed that –
Homosexual men with HIV have a 37-fold rise in anal cancer, a 4-fold rise in Hodgkin’s diseases (cancer of the lymph nodes), a 2.7-fold rise in cancer of testicles and a 2.5-fold rise in lip cancer. One of the inflammatory diseases of genitals tract is Gonorrhea, which recently appeared in rectal regions (as a result of anal sex) and in the throat (as a result of oral sex). The Canadian Medical Association Journal found that – Homosexuals are 37 times higher than heterosexuals in being affected by gonorrhea. Similarly, a study in the Journal of Clinical Pathology, found that- Homosexual men had a much higher prevalence of ‘ Pharyngeal (throat) gonorrhea’, 15.2 % compared with 4.1% for heterosexual men.
Even a pro-homosexual organization GLMA (Gay and Lesbian Medical Association) cannot help but acknowledge the heightened health risks experienced by homosexuals. In twin press release in 2002, GLMA marked ‘top 10 reasons why homosexuality is harmful to health.’ A study on childhood and adolescent molestation found rates of homosexual abuse by homosexual adults to be 7 times higher for homosexual male and 22 times higher for homosexual female compared to their heterosexual counterparts, which is an alarming parameter of sexualizing minors.
A research on countries with long gay history like Denmark and Norway reveals that married gays and lesbians have shorter lifespan than conventionally married heterosexuals by 24 years! A mountain of societal complexities, environmental difficulties- the homosexual community faces – including parenting complications, compared to heterosexual parents.
The term ‘Lesbian Mother’ or ‘Gay Father’ is deadly unthinkable and unacceptable as it will hammer an attack upon the social values, culture, norms, morality in a society. Our children will be grossly misguided, demoralized as it will inject the idea of gender misconception, will promote vulgarity, indecency, obscenities through frightful behaving, organ and partner abuse.
While recognizing liberty to adults’ private choice to have own sex life, the rights of the remaining bigger community, especially children, should not be overlooked or compromised. Thus, recognition of homosexual practices in the society might explicit the possibility to the removal of the word “Family” from the dictionary!- And it cannot, in any way, be rationalized in our society.
Considering the aforementioned predominating consequences, it is quite evident that, it is obligatory for law to distinguish these fundamental differences. Sec.377 should not necessarily be showcased as an enactment of stigmatization or marginalization of any community. If the matter is seen with constitutional lens, equality before law and equal protection of law does not mean, “All persons are to be treated equally.” Rather it signifies “all persons in the like situations are to be treated alike.” It means that, when a woman is entitled to 6 months maternity leave and a man is not, it is not for inequality, rather the situation of the two is different because of a fundamental biological difference between male and female’s anatomical functions that- females gives birth naturally. Moreover, Sec.377 has nothing to do with right to love. It reflects the need of protecting public health, children wellbeing, institution of marriage and preventing erosion of societal mores.
Bangladesh is one of the 59 countries that signed a statement opposing LGBT rights at the United Nations General Assembly, in December, 2008. However, in January 2014, the Bangladesh government granted hijras, who are neither male nor female, official recognition as a separate gender. The move was made to ensure all hijras get priority for education and other rights and homosexuals are not akin to the transgender community.
Despite of the fact that the practice of homosexuality should be discouraged, the torture or inhuman and degrading treatment to homosexuals should not be supported within the purview of human rights perspective. In fact, punishing a gay inflicting heavy penalty or strict provision might not be a successful or appropriate attempt to control homosexuality rather it should be taken into account as, a psychic matter- can be termed as a habit usually get contaminated into a person through his surroundings or can also be an effect of extreme pornography addiction or some other environmental effects and this could be cured adopting medical treatment, counseling, motivation. Law might has a merely evaluation in the moral perspective, but the connectivity and applicability of ethics and morality simply can not be ignored. Apart from the legal side, religious scriptures of every single religion have no recognition to such practice as a way of expressing love rather inflicting prohibitions. In that sense of protecting the societal equilibrium and harmony, law has its function to perform too. Whatever may be the attempt, the ultimate concentration of a government should be given to the children and the entire society in dealing with homosexual issues.
The writer is a Student, Department of Law, Jagannath University.
