THE NEED FOR A LEGISLATION AGAINST OUTING: PROTECTING THE LIVES AND RIGHTS OF THE INDIAN QUEER

Author: Shipra Tiwari, V year of B.A.,LL.B.(Hons.) from National University of Study and Research in Law, Ranchi

Introduction

Outing refers to the act of exposing or publicizing someone’s sexual orientation or gender identity as a Lesbian, Gay, Bisexual, Transgender, or any other, not being heterosexual or cis-gender when the person is not open about it. The decision regarding if, when, and how to come out, is not only a matter of choice but also safety- due to the homophobic nature of the Indian society, which may even go as far as posing a threat to the life of a queer person.

In 2020, a trend of outing gay men on dating apps had swept Morocco. In India as well, similar stories have circulated. Admittedly, data regarding instances of outing is close to negligible, because most of these cases go unreported due to the stigma against the community, yet, there have been instances of extortion, blackmail, and threatening outing.

Recently, the Mie prefectural assembly in Japan passed an ordinance banning anyone from outing a person without their consent, or without good reason, to realize a society that recognizes sexual diversity. Last year, the Japanese government had also declared outing to be an abuse of power in its guidelines against workplace harassment and had prohibited it. In a country like India, where the rights of the community have finally begun to be recognized, with homosexuality being decriminalized as recently as three years ago, in the Supreme Court judgement in Navtej Singh Johar v Union of India, and conversion therapy being banned by the Madras High Court- the next course of action towards giving the LGBTQIA+ community the life that they, as citizens of this country, truly deserve, should be similar.

Consequences of Outing

Outing a person can not only cause mental and/or emotional harm, but can also expose them to discrimination in the society and workplace, familial estrangement, and be a potential cause for bodily harm or a life-threatening situation. In India, gender and sexuality-based hate crimes like instances of forcing homosexual people into straight marriages, corrective rape, conversion therapy etc. are not unheard of. Homophobia and conversion therapy have also been the cause of suicides being committed by queer people. The ridicule faced by the community and the pressure of keeping same-sex relationship under wraps has been noted as some of the reasons for the high rate of suicides among the youth.

Exposing someone’s gender or sexual identity affects their personal as well as professional life, leading to facing biases and bullying at the workplace. The findings of a 2018 survey show that 57% of the participating employees think that their companies would not employ people belonging to the LGBTQ+ community at positions of leadership.

In a society where heteronormativity is imbibed in an individual since they are born, be it through the media, or by observing what is considered ‘normal’ by society, accepting one’s own gender identity or sexual orientation must be a challenge. Therefore, deciding who a person wants to share this information with, how and when they want to do it, or if they want to come out at all, especially when it may lead to major setbacks in life, should be a matter of their choice.

Protecting the Interests of the Community

It has been noted in the case of Anuj Garg and Ors v Hotel Association of India and Ors, that the concept of personal autonomy includes the positive right of individuals to express themselves, make decisions about their life and decide which activities they want to be a part of, in the exercise of one’s choice. It also includes the negative right to not be subjected to interference in the enjoyment of their positive rights. The Supreme Court, in Justice K.S. Puttaswamy v Union of India and Ors, declared the right to privacy to be a fundamental right and stated that it includes self-determination and expression of sexuality within its ambit. Although the Apex Court in its landmark judgement in Navtej Singh Johar v Union of India held the expression of one’s sexuality to also be a fundamental right under Article 19 and 21 of the Constitution, the fact that Fundamental Rights have positive as well as negative aspects cannot be ignored, as was noted in the case of Bijoe Emmanuel v State of Kerala that the freedom of speech as enshrined in Article 19 also includes freedom not to speak. The people of the LGBTQ+ community, therefore have as much a right not to express their sexual identity, as they have the right to do so. Outing, therefore, is not only against the concept of personal autonomy, but also violates the individual’s right to privacy, liberty, dignity, and freedom of speech and expression.

Article 12 of the Universal Declaration of Human Rights protects a person against arbitrary interference with their privacy, and attacks on their honour and reputation. Article 17 of the International Covenant on Civil and Political Rights also states that every individual has the right to be protected by law, against such interference or attacks. The Supreme Court of India in Vishaka v State of Rajasthan, cast a duty upon the government to frame a law, in case of a lack thereof, to protect the fundamental rights of one section of the society from being violated by the conduct of another. Also, the Yogyakarta Principles, which the Supreme Court in NALSA v Union of India directed to be applied as a matter of national law, require the State to ensure that no person is subject to unlawful interference with their privacy, and states that privacy includes the choice to disclose or not to disclose any information relating to one’s sexual orientation or gender identity. It directs the State to take such legislative and administrative measures as may be necessary to ensure the enjoyment of these rights. Therefore, it is the duty of the State, to protect the interests of the LGBTQIA+ community, by way of ensuring that any information about their sexual orientation and gender identity not be made public, against their will, especially when such publicization could have outcomes as grave a threat to their life.

Conclusion

The members of the LGBTQ+ community, being as much the citizens of India, deserve the equal protection of the law that their cisgender heterosexual counterparts enjoy. Especially when the mere existence of the community has such a widespread stigma attached to it, the State should take special measures to ensure that the members of the community feel and stay safe, and the drafting of legislation that provides for the same should be the first step towards the realization of this goal.

The legislation could take inspiration from the Equity (Prohibition of Discrimination) Bill, 2021, drafted by the Centre for Law and Policy Research, that aims to promote equality and prohibits all sorts of discrimination- direct, indirect, systematic, intersectional, or based on association, on the grounds of sexual orientation, gender identity, and gender expression among other things. Although the Bill does not explicitly prohibit or penalize outing, the definition of ‘harassment’ as provided under the Bill could be interpreted to include outing within its scope. The Bill could potentially lay the foundation stone towards the egalitarian society that we should aim to achieve. The Yogyakarta Principles should also be adopted as national law.

Admittedly, merely enacting a law would not be enough to do away with the biases and prejudice ingrained in the social fabric through generations. The government needs to undertake the task of creating awareness, as it has previously done, to tackle the taboo around issues such as domestic violence, AIDS, tuberculosis, menstruation etc.- issues that the majority population of India is not ready to address. The campaign should aim at sensitizing, creating awareness, and busting the myths about the LGBTQ+ community in India, to provide for safer living conditions for them.

With the amount of sensitivity and support that the Indian judiciary has finally started showing towards the community- be it the NALSA judgement, the decriminalization of homosexuality in Navtej Singh Johar, or the Madras High Court banning conversion therapy- it is high time that the legislature starts implementing the directions of the Courts and drafts laws that provide the members of the community the safety, privacy and dignity that they rightfully deserve.