Anand Grover

What are the prospects for the government of India repealing Section 377 of the Penal Code? Is there anything that the international community can do to hasten this?

The issue of repealing, in one sense, does not arise. The Delhi High Court has held that consensual sex between adults in private is not criminal. The matter has gone to the Supreme Court of India in appeal. Whatever decision the Supreme Court gives will be applicable all over India. The Government of India is awaiting for the decision of the Supreme Court.

Having said that, it is important to mention that the Government of India is now supporting the judgment of the Delhi High Court – that section 377 is unconstitutional in respect of consensual sex between adults in private. It is thus supporting decriminalization. This is unlike when the matter was being argued in the Delhi High Court, when there was a division in the Government ranks, the Home Ministry opposing the decriminalization and Health Ministry supporting it.. The Government has not appealed against the judgment.

The international community can support the decriminalization by highlighting the historic nature of the Delhi High Court judgment and supporting the Government’s move to support the judgment.

Can you discuss any other challenges – current or upcoming – to Section 377 by activists and organisations in other parts of India?

Just because the Delhi High Court has decriminalized “unnatural sex” does not mean that stigma and discrimination relating to LGBT groups is over. The battle is won but the war for equality is going on. Thus, some police officers are still arresting gay men on the basis of public nuisance laws. Sensitizing the different sectors of the state and, for that matter, different sectors of society, will take time.

In a recent decision, the Election Commission of India expanded the electoral rolls to include a third gender option, ‘O’ or ‘Other’. In light of this, what are your thoughts about the federal government’s will to address Section 377 and hasten it to the Supreme Court?

There have been various moves by the Government of India to support the transgender community. This Election Commission’s step that you talk of is one such instance. The Passport authorities have for some time also allowed persons of changed gender to obtain a passport on a new gender. All of these steps indicate that the Government of India has recognized different gender identities. This will also help our arguments in the Supreme Court.

If the Supreme Court should address Section 377, and overturn it, does Indian law include mechanisms for referenda that might see the decision challenged in a popular vote (à la Proposition 8 in California)?

If the Supreme Court upholds the decision of the Delhi High Court, it is theoretically open to the Government to bring in a law that will criminalize sodomy or unnatural sex. The Government does not need a referendum to change the law. That is very unlikely, as most of the major political parties have not opposed the decision of the Delhi High Court. The people who have opposed it do not really have popular support. However, there is a legal reason that the Government cannot do what you suggest. Under the Indian Constitutional dispensation, the Government cannot bring back a law that the Court has held to be unconstitutional.

Do you think that the criminalization of transmission of HIV as a human rights issue and as a barrier to effective prevention mechanisms should be addressed at a global level specifically as it pertains to MSM and LGBT communities?

Yes, criminalization of HIV is very much a human rights issue. It is not only a barrier to effective prevention strategies, but further stigmatizes only the vulnerable groups, the LGBT communities as well as women. I personally think that criminalization of same sex practices, drug use, sex work and HIV transmission are counterproductive to the prevention of HIV transmission.

Why do many politicians resist LGBT rights even when they say they respect human rights for everyone?

It is not only politicians who have such contradictions. For them, however, such phrases are convenient tools to secure more power and get into strategic positions.

I'd like to hear your viewpoint on the foreseeable impact of Uganda's Anti-Homosexuality Bill 2009 on HIV prevention work within the LGBT and MSM communities – but also beyond these communities – in Uganda. In particular, how would the bill impact Ugandan citizens' right to enjoy the highest attainable standard of physical and mental health (right to health)?

Criminalization of same sex relations as is sought to be done through the anti-homosexuality bill in Uganda is an extremely retrogressive step. As I said earlier, criminalization of practices done on account of one’s own volition (willingness) or by consent between adults in private should not be criminalized. Criminalization would drive the epidemic underground and prevent people seeking health services and infringe upon the right to health. The Ugandan Authorities need to be informed that by the proposed bill they will not only run the risk of accentuating the HIV pandemic in Uganda but directly infringe upon the right to health, and should be persuaded not to take a drastically wrong step.

I would like to know how you can ensure that trans people (transgender/transsexual/travesty, etc.) can get equal access to health care. Many trans people do not even dare to go to a doctor for any reason for fear of harassment, humiliation, exposure and maltreatment. On top of that, many insurance companies deny any coverage for anything related to a physical gender transition - even if the same hormones are accessible for other reasons, or when other medically necessary surgery is covered. How can the Special Rapporteur make sure that trans people of all genders who have sex with men are targeted in prevention work as a risk group?

While there has been considerable progress on gay people’s rights, the glare of that progress has largely obscured the denial of the rights of the trans community. Unfortunately, the reality is that they are trampled upon in most societies – and that in all sectors of society. Stigma and discrimination pervade all sectors of society against the trans community. We need to use the political and social spaces opened up rights by the gay person to articulate the rights of the trans communities and have comprehensive anti-discrimination laws to tackle what you talk about. This should also be extended to the private sector employment where, in most developing countries, anti-discrimination laws don’t apply. Apart from laws, we need to build a sensitive and enabling environment where all traditionally marginalized communities, including the trans community, can realize all their rights fully and occupy their rightful space in society with dignity.

Though we may not have made great progress in general rights of the trans community, fortunately in HIV programs the trans community in most countries is part of intervention programs, with the community actively participating in implementation of the programs where they are perceived as a risk group. However, I think that decision-making is still in the hands of the AIDS bureaucrats and not the trans community. Consequently, not enough funds are being directed towards their needs. We need to change that and involve the community in decision-making so that their needs would be served and their risks taken into account.

Is the Special Rapporteur willing to report on the right to the highest attainable standard of health as it relates to trans people?

I feel strongly about the rights of the marginalized and historically oppressed sectors in all our societies, and the trans community is one such important marginalized community whose right to health is not realised. Not only am I willing to report on their right to health but it is my duty to do so. There is a formal procedure for doing that, in the form of a complaint. If you find that the right to health of the trans community or an individual in any country is being infringed upon, you can complain to me and that complaint will be made into an appeal to be sent to the country concerned. The procedure for the complaint can be found on the website www.lawyerscollective.org. Please make use of the procedure if you feel somebody’s right to health is being infringed upon.