Collection of data : preliminary for homosexuality:legal tussle

BACKGROUND
Section 377 of the Indian Penal Code (IPC) penalizes voluntary carnal intercourse against
the order of nature with any man, woman or animal. Punishment includes 10 years to life in
prison and/or a fine. Part of British colonial law enacted in the 1860s, Section 377 was
intended to criminalize all unnatural acts ranging from consensual same-sex sexual activity
between adults, or even oral sex between a married heterosexual couple, are offenses,
though the pervasive homophobia in our [Indian] society ensures that only the first is ever
prosecuted.1
Documented reports and anecdotal evidence suggest that the impact of Section 377 on
lesbian, gay, bisexual, hijra, and transgender communities in India include: police violence
including sexual assault, custodial abuse and extortion; forced electroshock and drug-based
reparative therapies in mental health institutions; the use of police by parents and older
siblings to detain and intimidate family members in gay and lesbian relationships; the arrest
of NGO workers doing HIV/AIDS prevention with men who have sex with men (MSM); and
daily stigma and discrimination against LGBT people contributing to significant suffering and
suicides. As noted by one Indian activist, violence, intimidation and fear in the lives of queer
people are legitimized in the name of the law. 2
In 1994, AIDS activists filed a petition against 377, asking the Supreme Court to consider the
right to privacy. The petition was later withdrawn. In 2003, the Naz Foundation, a New Delhibased NGO working on HIV/AIDS and sexual health filed a petition in the Delhi High Court.
The petition was rejected on a technicality by the High Court whose decision was
subsequently appealed in the Supreme Court. In 2004, a Delhi-based coalition of groups
working on womens rights, childrens rights, human rights, sexual rights, the right to heath,
and LGBT issues came together with Amnesty International India and called for public action
to end discrimination of all kinds under Section 377.
In 2006, the Indian Supreme Court sent the Naz petition back to the Delhi High Court. On
May 19, 2008, the Delhi High Court finally began hearing the petition. The judges on the
case are Justice Sikri and Justice Mirdha. Anand Grover of the Lawyers Collective is
representing the petitioners. Their first effort is to declare Section 377 unconstitutional for
adults having consensual sex on the basis of the Indian Constitutions Article 14 which talks
of equality, Article 15 which talks of equality on the basis of sex, Article 19 which talks of the
freedom of speech and expression, and Article 21 which talks of the right to privacy and
health.
IGLHRC is receiving regular updates (first update attached) on the courts proceedings from
the Lawyers Collective and will post them on the IGLHRC website. We will keep you
informed about major developments about the case.

Naz Foundation (India) Trust v. Union of India came up for hearing before a division bench of
Justice Sikri and Justice Mirdha of the Delhi High Court at 2.30 pm on May 19, 2008.
Day 1 proceedings:
Counsel for the petitioners Anand Grover, introduced the case which challenges the
constitutional validity of Section 377, Indian Penal Code (IPC), that criminalizes sodomy for
violating Articles 14 (equality), 15 (non-discrimination), 19 (freedom of speech and
expression) and 21 (life and liberty).
Anand proposed to present his arguments in the following sequence: tracing legislative
history of anti-sodomy law(s) in England and pre colonial, colonial and post colonial India,
examining the meaning and scope pf of Section 377 through textual reading and judicial
interpretation by Courts, and arguing that the section lends itself to vagueness and
uncertainty and is therefore open to an attack on constitutional grounds.
In the alternative, he proposed to argue that even if unnatural offences under Section 377
had acquired a meaning of proscribing non procreative, penetrative penile sex, it still fell foul
on constitutional grounds.
Justices Sikri and Midha inquired if the counsel for the respondent Union of India was
present. Counsels for Respondents No. 6 (JACK), No. 7 (Mr.B.P Singhal) and No. 8 (Voices
against 377) marked their presence.
Counsel for the Union of India submitted that her client had filed two affidavits, one by the
National Aids Control Organization (NACO) under the Ministry of Health and the other by the
Ministry of Home Affairs. She admitted that NACOs reply is supportive of the Petitioner. To
this, Justice Sikri remarked that if that is the Unions position then why not doesnt it amend
the law itself?
The Counsel for the Union of India replied that the Ministry of Home Affairs has opposed the
petition but that its counter was filed in 2003 prior to NACOs reply (in 2006). She admitted
that the client (i.e the Ministry of Home) had not given any new or additional instructions. It
therefore appears that the Ministry of Home stands by its earlier stand of contesting the
petition.
Amused by the fact that the Union was divided in its opinion, Justice Sikri remarked It
(homosexuality) is not a health hazard but is affecting the home.
Counsel for B. P Singhal referred to a 1996 case involving ONGC where there was a
difference of opinion between two government departments. Singh was of the opinion that
the matter be decided by the Cabinet and suggested that the Cabinet Secretary be directed
to appear in Court. The Judges dismissed Singhs proposal.
Counsel for the Union then read out portions from NACOs affidavit which admit that
criminalization of homosexuality make it difficult to prevent HIV. She also drew attention to

NACOs submission that there are nearly 2.5 million men having sex with men (MSM) in
India and that it is estimated that 8% of this population is infected with HIV as compared to
less than 1% of the general population. Reading on, she highlighted NACOs strategy for
prevention of HIV which includes provision of information and education, communication for
behaviour change and prevention tools, i.e condoms to high risk groups like MSM. At the
same time, NACO strives to reinforce traditional Indian values and morals. The Counsel
accepted that she was unable to reconcile contradictions in NACOs affidavit as well as
divergent stands bwtween NACO and the Ministry of Home.
Thinking aloud, Justice Sikri said that the Home Ministry maybe asked to review its own
position in light of NACOs affidavit.
At this stage, Anand drew the Courts attention to another matter (re recruitment of HIV
positive persons in the Police) pending before the Supreme Court where NACO and the
Ministry of Home had taken different stands. Anand said that he was not minded to oppose
the Courts suggestion but would still press for the matter to be heard at the earliest. The
Judges clarified that they were ready to hear the matter today itself and ultimately decided to
proceed with the hearing with whatever was on record.
Singhals counsel interjected by saying that the crux of the matter was whether adult
consensual unnatural sex should be decriminalized. In his submission, it cannot be, as by
that logic, sati, paid organ transplant and drug purchasing should be let off the hook.
Anand then proceeded with his submissions:

HISTORY OF LAW ON HOMOSEXUALITY

1. England: Biblical writings incorporated in Law
Anand traced the treatment of sodomy as an abhorrent act or unspeakable vice in
original biblical writings from the 13th century upto the enactment of the Buggery Act
in 1533 in England. Sodomy was punishable with death up until 1835.
Anand pointed out that after 1850, there were two sets of crimes (i) sodomy and (ii)
indecent acts or assault. Justice Sikri sought a clarification on the definition of
sodomy and noted that indecent assault implies lack of consent.
England reformed its law in 1967 decriminalizing same sex activity between adults.
2. Pre colonial India
Anand presented relevant texts from Manusmitri. At this juncture, Counsel for B.P
Singhal objected saying that the arguments should be confined to anglo-saxon
jurisprudence and not venture into sensitive areas of religion, anthropology etc.

Although the Justices were inclined to hear ancient scripts, Anand conceded and said
that since the submission was part of the pleadings on record, it may be considered
read.
3. Colonial India: Introduction of the Penal Code
Anand then read out relevant sections from various drafts of the Penal Code
submitted by Macaulay. He pointed out to the lack of discussion on the subject,
which, in Macaulays own admission was so abhorrent that it cannot be subjected to
public debate. Anand submitted that in the absence of legislative deliberations, the
Court will not be able to use external aids to interpret the law.
4. Independent India: Law Commission Reports
Anand drew the attention of the Court to two reports of the Law Commission (156th
and 172nd) that discussed Section 377, of which the latter recommended its deletion
in the year 2000.

MEANING AND SCOPE OF SECTION 377

Anand began with a textual reading of Section 377.
Unnatural Offences,
-Whoever voluntarily has carnal intercourse against the order of nature, with any
man, woman or animal, shall be punished with imprisonment for life, or with
imprisonment of either description for a term which may extend to ten years, and
shall also be liable to fine.
Explanation,
- Penetration is sufficient to constitute the carnal intercourse necessary to the offence
described in this section
Anand submitted that though the law penalized specific acts, it been applied arbitrarily since
its inception. In one this case, a eunuch was prosecuted under 377 on the basis of dress and
demeanor and later medical examination. Though the High Court overturned the conviction,
criminal proceedings were initiated even in the absence of a sexual act.
Anand said that the section penalizes unnatural offences, which are not defined. However,
terms/ language of the section indicate what it intends to cover:
1. Voluntarily which, though synonymous does not signify consent as the latter
requires two parties.
2. Whoever - which could refer either to the person penetrating or the person being
penetrated.

3. Carnal intercourse Anand contrasted the term with sexual intercourse, which is
used in two other sections of the IPC dealing with sexual offences, i.e Section 375
and 376 dealing with rape and Section 497 which criminalizes adultery. Since both
these provisions pertain to a heterosexual context, Grover inferred that sexual
intercourse refers to penile-vaginal sex while carnal intercourse covers non-penile
vaginal sex.
4. Penetration - incorporated in the explanation to the section. In the biblical sense,
the act of sexual intercourse is complete with erection, penetration and ejaculation.
However, Section 377 merely requires penetration, with or without seminal discharge.
Anand stated that that through judicial interpretation, non-penile vaginal sex has acquired
another color, that is, non-procreative sex. He added that over time, the word perversity
also gained usage in interpreting 377.
Anand went on to argue that over a period of time, Courts have included many sexual acts
within the meaning of unnatural sex under Section 377 such as coitus per anus (anal sex),
coitus per os (oral sex), rubbing the penis b/w thighs. In addition to disparate acts, the
Section covers actions between different parties man and man, man and woman and man
and animal.
Anand then pointed out that the section makes consent irrelevant. Sometimes however,
Courts have held consent to be a factor mitigating the sentence. In one case involving oral
sex between a husband and wife, consent was accepted as a defence, leading to acquittal.
Summarizing the vague and uncertain reading of the section, Anand said that being preconstitutional; the section has not been subjected to strict scrutiny. He asserted that now the
time has come to test it against Constitutional parameters of fundamental rights.

DECRIMINALISATION IN ENGLAND WOLFENDEN REPORT

Next, Anand introduced the report of the Wolfenden Committee, set up in 1957 to examine
criminal laws on homosexuality and prostitution in England and Wales. The reports
recommendations were the basis for decriminalization of adult consensual homosexual acts
in the U.K. Impressing the importance of the report, Anand said that its findings on the
object, scope and limits of criminal law are enlightening to the merits of the petition, which
sought the exclusion of adult, consensual sex in private from section 377. In conclusion,
Anand emphasized that it was well accepted that acts done by consenting adults in private
are not the province of criminal law and that morality cannot be the basis of subjecting
individuals to penal hardship.
Anand asserted that when a country (England) without a constitutional legal system has
revoked the law, India with a robust Constitutional scheme, must be open to scrutinizing the
law against the rigours of the Constitution.

Drawing a parallel with prostitution, Anand pointed that prostitution is not an offence. The
Immoral Traffic (Prevention) Act 1956merely proscribes attendant activities.
Justice Sikri commented that public opinion on this subject differs. To this Anand said that
the issue is to decide what role criminal law should play?

SEXUAL ACT OR SEXUAL ORIENTATION

Anand went on to point out the difference between homosexuality and homosexual acts. He
said that though the section does not criminalise sexual orientation or a homosexual identity,
it is still offensive to the dignity of homosexuals. He referred to studies that show that health
risks/burden of disease are higher among gay men.
Justices responded in the affirmative and said that NACOs affidavit itself acknowledges this
finding.
Anand drew attention to situational homosexual acts such as in military barracks, prisons or
other exclusively male settings. He referred to an earlier petition filed by the AIDS Bhed
Bhav Virodhi Andolan (ABVA) that challenged Section 377 on the ground that it prevented
jail authorities from supplying condoms.
Justice Sikri inquired about the matter and its outcome. Anand replied that the case was
dismissed in 2001 for non prosecution.
Update: Section 377-Proceedings on May 22, 2008
The matter Naz Foundation (India) Trust v. Government of NCT, Delhi and Others, Writ
Petition (Civil) No. 7455 of 2001 came up before Justice Sikri and Justice Midha at 3 pm on
22.5.08. The Bench did not sit on 21.5.08, when the matter was originally scheduled to be
heard.
Anand Grover appeared for the petitioners while the respondents were represented by
Monica Garg (Union of India), Ravi Shankar Kumar (JACK), Mr. H.P Sharma (Mr.B.P
Singhal) and Vrinda Grover (Voices against 377).

DAY 2 PROCEEDINGS
Law reform in England Wolfenden Committee Report
Resuming the arguments, Anand Grover continued to read extracts from the Wolfenden
Committee report. Iterating its importance, Anand Grover said that the report sets out a
framework for discussion on public policy on consensual sodomy. More importantly, it
addresses all the arguments against decriminalization of homosexuality including those that
may become relevant considerations for this Court.

Anand Grover highlighted the reports findings on the following questions vis--vis
decriminalization of same sex activity:
1. whether it will encourage homosexual conduct?
2. whether it will have an negative influence on marriage and family?
3. whether it will pave the way for pedophilic acts?
4. whether it will hurt pubic sentiments/morality?
Anand Grover pointed out that on the first question, the report found no evidence that
removal of legal sanctions will result in increased homosexual activity. In other words, the
report found no association between law and the prevalence of homosexuality.
In considering whether legitimizing homosexual conduct would lead to break up of marriage
and families, the report concluded that male homosexuality was as much a factor for break
up of marriages as adultery, fornication and lesbianism. Therefore, the report found no
justification for treating male homosexuality different from these causes. Anand Grover
added that in the Indian context, criminality associated with same sex relations compels
many gay men to marry. Besides an unhappy marriage, this may expose the spouse to the
risk of HIV.
On the issue of pedophilia, the report categorised men engaging in same sex acts as - 1)
those desiring adult male partners, and, 2) those seeking sexual contact with underage
boys, that is, pedophiles. Anand Grover emphasized that the report supported the deletion of
penalties against the first category but not men engaging in pedophilia. Pointing out to what
may be a determining factor for this Court; Anand Grover stressed the reports observation
that the function of the law is to protect the weak, the defenseless. This would cover
underage persons, unable to consent. In this context, Anand Grover reminded the Court that
the petitioner is mindful that Section 377 is the only recourse for sexual abuse against boys,
and is therefore merely seeking a reading down of the law.
In examining public acceptance of consensual sodomy, Anand Grover pointed out to the
reports conclusion that moral codes or attitudes cannot be the basis for penalizing
individuals in a free society. Concurring with the report, Anand Grover argued that is not the
role or function of criminal law to uphold or preserve private morality.
Thereafter, Anand Grover skimmed through legal concepts that the Wolfenden Committee
was faced with:

What is consent?

Who is an adult?

What is private?

Consent: Can be an eager response or a grudging submission. The report found no reason
to differentiate in standards for consent for heterosexual and homosexual sexual activity.
Adult: Criteria tends to be arbitrary. Still, the report suggested 21 yrs, which the Legislature
in England agreed to. Anand Grover pointed out that the same was later lowered to 16 yrs, in
accordance with decisions of the European Court.
Private: Need not be strictly spatial. Anand Grover explained that through a park is a public
place, at night and in the dark, it may be seen to create a zone of privacy.
At this stage, Justice Sikri inquired about reservation(s), that he observed in sections of the
report. Anand Grover admitted that there was dissent, and that those portions will also be
placed before the Court.

LEGAL STATUS OF HOMOSEXUALITY TRENDS

Next, Anand Grover presented a list of countries that have decriminalized homosexual
conduct. Updating the Court, he said that Nepal and Fiji have been added to the list through
pronouncements of Court(s). Anand Grover mentioned a recent decision of the Supreme
Court of Nepal directing the Government to repeal discriminatory provisions against sexuality
minorities. In Fiji too, legal proscriptions against same sex acts between adults were
declared void or unconstitutional by the High Court.
Drawing the Courts attention to Asian countries, Anand Grover mentioned China , Thailand,
Cambodia, Indonesia and Iraq among others. He went on to say that some countries have
also enacted law(s) to prohibit discrimination based on sexual orientation.

RECOMMENDATIONS OF THE LAW COMMISSION OF INDIA

Anand Grover then apprised the Court of recommendations of the Law Commission vis-a-vis
Section 377. He presented extracts from the 172nd repot that suggested a repeal of Section
377 in the context of reforms of rape law(s).
At this stage, Mr. H.P Sharma pressed concerns over child sexual abuse from the said
report. Anand Grover responded by saying that the petitioners prayer is limited to
decriminalization of conduct between adults, which, under Indian law, would mean persons
18 yrs or above. He clarified that child sex offenders will continue to be prosecuted under the
reinterpretation that he seeks.
Justice Sikri observed that even in Section 375 (definition of rape), consent of girls below 16
yrs is invalid.
At 4 pm, Anand Grover inquired of the Judges whether they would proceed with the hearing
in view of the forthcoming Court vacation. Ruling out the possibility of a hearing in the week

before vacation, Justice Sikri said that the matter to be considered part heard and be listed
on 2nd July 2008 at 2 pm.
At this stage, Mr. H.P Sharma sought the permission to read out a 1993 judgment of the
House of Lords that upheld the conviction of gay men engaging in consensual sadomasochistic acts.
Justice Sikri remarked that a line must be drawn between what may be considered a crime
even in the private domain.
Mr. Sharma opined that if the petitioner succeeds, there will be demands to repeal Hindu
Marriage Act and other similar laws.
At this stage, JACKs counsel interjected pointing out to a defects in NACOs affidavit. Ms.
Monica Garg admitted that the numbering was a typographic order.
Counsels for JACK and Mr. Singhal once again suggested that the ratio of the ONGC
decision be followed and the issue be remanded to the Government.
Disagreeing with the submission, Justice Sikri said that ONGC matter involved a dispute
between two government departments which then sought judicial intervention. On the other
hand, the present case involves a dispute raised by a third party ( Naz Foundation India ) in
which two departments have taken different stands.
Monica Garg then clarified that even the Home Ministrys affidavit was qualified by the fact
that the Section 377 is not invoked against any person(s).
Vrinda Grover, counsel for Voices against 377, interjected that her client has filed affidavits to
show how the impugned section interferes with individual freedom and rights.
Justice Sikri then asked if a complaint under Section 377 can be lodged by the victim alone
or by any person.
While Anand Grover answered that anyone can make a complaint, Singhal counsel argued
otherwise.
Justice Midha inquired about the number of instances when the impugned section has been
applied by the prosecution. Anand Grover clarified that there were 48 judgments from High
Courts (appeals from orders of lower Courts).
In considering ways to clarify the Union of Indias stand, the Justices recorded that the Court
seeks the assistance of a Law Officer with the Government to represent the Attorney
General.
Update Section 377 Proceedings on July 23, 2008

Summary: The court returned from vacation and scheduled the hearing on 377 to resume in
September. The petitioner in the case is the Naz Foundation, represented by Anand Grover
from the Lawyers Collective. Supporting the petitioner is Voices Against 377, a coalition of
rights based activists from various social justice movements in India. Two parties oppose the
petitionerJoint Action Council Kannur (JACK) which refutes the AIDS crisis in India and
challenges the prevention methods used by the government and non-governmental
organizations in India., and parliamentarian, B.P. Singhal from the ultraconservative
Bharatiya Janata Party that strongly advocates criminalizing homosexuality.
The matter Naz Foundation (India) Trust v. Government of NCT, Delhi and Others, Writ
Petition (Civil) No. 7455 of 2001 challenging the constitutional validity of Section 377, Indian
Penal Code, came up, today, 23rd July 2008, before the Bench of Chief Justice A.P Shah
and Justice Muralidhar of the Delhi High Court.
Earlier, a division bench (DB) comprising Justice Sikri and Justice Midha had begun hearing
arguments in May 2008 before breaking for vacation. On account of a change in roster (that
usually occurs during vacation), the matter came up before a different bench on 2nd July.
This bench however, did not proceed with the hearing as the matter was part heard by the
previous bench. Following administrative procedure, Justice Sikri released it on 4th July. The
matter has now been assigned to a DB of Chief Justice A.P Shah and Justice Muralidhar.
The Chief Justice enquired into the status of parties and noted that of the respondents,
Ministry of Health has filed an affidavit in support of the petitioner while the Ministry of Home
has opposed them. The Court further noted that of the three interveners, one, i.e, Voices
against 377, supports the petitioner while the other two - B.P Singhal and JACK oppose the
petition.
The DB then asked whether pleadings were complete and the estimated time that parties
would take to complete their arguments. On this basis, the Court set aside 18th and 19th
September 2008 for the hearing with the option of extending it to 20th (Saturday), if
necessary. On behalf of the Respondents, Additional Solicitor General P P Malhotra
mentioned the possibility of the Union filing an additional affidavit, if the two Ministries are
able to reconcile their position. The Court allowed them to do so ahead of the final hearing.
The Court directed the parties to file written submissions as well as submit compilation of
judgments and other documents one week before the final hearing.
Update September 5, 2008
Indias court battle to decriminalize same-sex sexual behavior resumes this September in
the Delhi High Court. At an international AIDS conference in Mexico in August, Anbumani
Ramadoss, Indias Minister for Health advocated for the repeal of Section 377 of the Indian
Penal Code, saying, the law tends to drive gays and lesbians underground, hindering the
country's efforts to prevent the spread of HIV and treat those with HIV and AIDS.1 But some
members of Indias Law Ministry are pushing for 377 to remain so it can be used to
prosecute perpetrators of child sexual abuse. In response, Voices Against 377, a broad

coalition of social justice activists, including childrens rights advocates, have written a letter
to the press, pointing out that Section 377 in fact fails to protect children from sexual abuse
and is more often used to target consenting adults for non-normative sex.
B-64 Second Floor
Sarvodya Enclave
New Delhi 110017
Date: 2 Sep 2008
To: Sh Hansraj Bharadwaj
Honourable Minister for Law & Justice
Ministry of Law and Justice,
4th Floor, A-Wing, Shastri Bhawan
New Delhi-110001
Sub: Decriminalisation of adult and consensual same-sex sexual acts by reading down
Section 377 of the Indian Penal Code.
Ref: "Gays have no legal rights: ministry", Hindustan Times, 28 Aug 2008."
Dear Sir
We write to you as child rights groups, groups working on issues of child sexual abuse,
women's groups, sexual rights groups including groups working for the rights of gay, lesbian,
bisexual and transgender people, NGOs working on a range of issues including health and
HIV /AIDs prevention, human rights groups and concerned citizens from across the country.
This bears reference to a newspaper report titled "Gays have no legal rights: ministry",
published in the Hindustan Times on 28 Aug 2008. It reports the Law Ministry's opposition to
"scrapping of section 377 of the Indian Penal Code" and quotes an unnamed senior Law
Ministry official thus, " it [S. 377] acts as an effective deterrent against paedophiles and
those with sick minds".
We write this letter to clarify some common misconceptions and to humbly urge you to view
the matter more favourably please.
The PIL in the Delhi High Court related to S. 377 does not ask for its repeal. It seeks to read
down the section in order only to remove consenting sexual acts between adults from its
purview. In terms of such reading down, it would still be possible to prosecute instances of
child sexual abuse under (an amended) S. 377.
S. 377 is not an effective deterrent against paedophiles. S. 377 was not intended to
prosecute child sexual abuse, but has served as a partial means to do so in the absence of a
specific law on the subject. While it has been used to deal with child sexual abuse that

involve non penile-vaginal penetration, for example, penile penetration of the anus, it cannot
be used to respond to other rampant forms of abuse, such as fondling, penetration with
objects, fingers, etc. Unfortunately, such grave abuses in the case of girls, can only be
prosecuted under S. 354 IPC (a lesser offence on outraging modesty), that has much lower
punishment or at most, under S. 319 or 320 (for simple or grievous hurt), both very
inadequate for addressing the offence in question. Likewise, most sexual abuse for boys
would only be prosecuted inadequately if at all, under simple or grievous hurt, mentioned
above. Therefore, and at best, in cases of child sexual abuse S. 377 is effective only in
partial legal recourse.
In this context, we the undersigned are concerned about the absence of a comprehensive
law on child sexual abuse. For child sexual abuse to be addressed in all its dimensions, for
children to be protected and for child molesters and paedophiles to be dealt with
appropriately, there is an urgent need for a new law. Retaining an outdated and unjust
Victorian law (S. 377) that was not designed to address child sexual abuse, but has due the
absence of such a law served to provide an inadequate and partial legal remedy is not the
solution.
The legislative scheme of section 377, 354, and 376 are grossly inadequate to cover the
range of sexual violence that children and women are subject to. Recognising the lacunae in
the present framework, the 172nd Law Commission Report and the National Commission for
Women in its 'Recommendation on Amendments to Laws Relating to Rape and Related
Provisions', recommended the deletion of section 377.
In view of the injustice resulting from the absence of law on child sexual abuse, as well as
injustice resulting from the criminalization of adult, consensual sex by S.377, we urge your
support and urgent action in this matter of public interest.
Thank you.
Sincerely,
Cc
Shivraj V. Patil
Union Home Minister
Room 103
North block
New delhi 110001
Dr. Anbumani Ramadoss
Union Minister for Health & Family Welfare
Ministry of Health & Family Welfare
Nirman Bhavan
Maulana Azad Road
New Delhi 110011

1- Raymond Thibodeaux, India's Anti-Gay Law Set for Biggest Court Challenge, Voice of
America, August 11, 2008, http://www.voanews.com/english/2008-08-11-voa40.cfm
Update Naz Foundation v Union of India- Proceedings on September 25th, 2008
Chief Justice A.P. Shah and Justice S. Muralidhar heard arguments from the intervenors in
the case, Voices Against 377, a coalition of human rights, child rights, women's rights and
LGBT rights groups that had intervened in support of the petitioners Naz Foundation. Shyam
Divan, the lawyer for the petitioners said that a wide group of persons from diverse
backgrounds were supporting this petition.
Divan began his arguments by outlining the impact of criminalization on homosexuals. "This
provision subjects male and female homosexuals as well as transgenders to repressive,
cruel and disparaging treatment that destroys their sense of self esteem, inflicts grave
physical and psychological harm on members of the LGBT community, inhibits the personal
growth of these persons and prevents them from attaining fulfillment in personal,
professional, economic and other spheres of life," he said. "Section 377 degrades such
individuals into sub-human, second-class citizens, vulnerable to continuous exploitation and
harassment."
Divan said that he would demonstrate, through records of incidents from across the country,
as well as personal affidavits, reports and orders, that the continuance of section 377 on the
statute book operated to brutalise a vulnerable, minority segment of citizens for no fault of
theirs. "A segment of society is criminalized and brutalized to a point where individuals are
forced to deny the core of their identity and vital dimensions of their personality", he said.
Referring to Professor Ryan Goodman's study on the impact of sodomy laws on LGBT
persons in South Africa, Divan emphasized that condemnation expressed through law
shapes an individual's identity and self-esteem. "They produce regimes of surveillance that
serve to operate in a dispersed manner, and such laws serve to embed illegality within the
identity of homosexuals."
He argued that section 377 was a direct violation of the identity, dignity, and freedom of the
individual, and that it fostered widespread violence, including rape and torture of LGBT
persons, at the hands of the police and society. "Section 377 allows for the legal and extralegal harassment, blackmail, extortion and discrimination against LGBT persons." "The harm
inflicted by section 377 radiates out and affects the very identity of LGBT persons. Sexuality
is a central aspect of human personality, and in a climate of fear created by section 377 it
becomes impossible to own and express one's sexuality, thereby silencing a core part of
one's identity. It directly affects the sense of dignity, psychological well-being and selfesteem of LGBT persons," he said.
Diwan cited the Human Rights Watch Report report titled "Epidemic of Abuse: Police
Harassment of HIV/AIDS social workers in India" which documented the harassment of

HIV/AIDS workers in India. This report documents the police raid of the office of Bharosa
Trust in Lucknow in June 2001, when the police arrested four health care workers and
arrested them under section 377. They were charged with possessing obscene material that
was nothing but educational material. However, since 377 was a non bailable offence, the
health care workers were jailed for 48 days.
Referring to judges' observations related to the Criminal Tribes Act in the last hearing. Divan
said that during the colonial period hijras were criminalized on the basis of their identity, and
in 1897, the criminal Tribes Act was amended to include eunuchs. "While this act has been
repealed, the attachment of stigma continues", he said.
The next incident (which occurred in April 2006) that Divan narrated was that of two adult
lesbian women in Delhi who were in a relationship. The father of one of the women 'X' filed a
complaint stating that she was abducted by her partner 'Y'. Y was arrested and brought
before the police. X wanted to file a statement under section 164 of the Criminal Procedure
Code saying that she had left her parental home of her own free will. However her
application was refused, and the Magistrate, in his order recorded that it "appeared prima
facie that under the guise of the section there were hidden allegations of an offence under
section 377 as well. Divan pointed out that to constitute an offence under section 377 there
needs to be penetration, and thereby the section could not be applied in this case. However,
since section 377 served to criminalise all homosexuality, and not merely certain sexual acts,
it applied to lesbians as well.
Divan then referred to an incident in Bangalore in 2004, which involved the rape of Kokila, a
hijra who was a community mobiliser for Sangama, an organization that worked on the
human rights of sexual minorities in Bangalore. Kokila was raped by ten goondas, and the
police instead of helping her, tortured her in the police station. Diwan stressed that this
incident happened because she was a transgendered person.
Justice Muralidhar asked Divan what recourse could be take for the offences committed
against Kokila. Diwan said that this would be an instance where 377 could be used. He said
that for non consensual acts and sex with minors, 377 should be retained in the statute
book.
Diwan also referred to the Jayalakshmi case that was decided by Justice Shah in which the
petitioner's sister, who was a hijra, committed suicide after being tortured and sexually
assaulted by the police.
He talked about was the arrest of four gay men in Lucknow in 2006, for allegedly indulging in
sex in a picnic spot. Reports by both Human Rights Watch and the National Coalition for
Sexual Rights that this incident was actually a case of police entrapment, and that none of
the men arrested were having sex in public.
Finally, Divan referred to the complaint filed by the Inspector of Police, Bangalore on
September 11, 2006, where he states that he raided Cubbon Park and found 12 khojas who

with "an intention to engage in unprotected, unnatural sex, were standing in the shade of
trees and soliciting passers by". He said that by such unsafe, immoral, sexual acts, they may
spread immoral diseases like AIDS, which may cause severe harm to the general public and
thereby are likely to affect public health". Divan said that the affidavit of Madhumita, one of
the persons arrested in the case showed that the police version was false. Madhumita states
that she was standing at a bus stand when she was surrounded 5 constables, and arrested
without giving any reason. She said that she was targeted by the police because she chose
to dress as a woman, and that section 377 branded her as criminal and made her vulnerable
to harassment and persecution from the police.
After the narration of these incidents, Divan talked about the recently framed Yogyakarta
Principles on sexual orientation and gender identity to clarify what exactly was meant by
these terms.
The right to dignity, said Divan, would be violated by section 377. Drawing from the South
African Constitutional Court decision in the NCGLE case, Divan said, "Gay men are at risk of
arrest, prosecution, and conviction simply because they seek to engage in sexual conduct
which is part of their experience of being human. The homosexuality offence builds
insecurity and vulnerability in the daily life of gay men. Such a law degrades and devalues
gay men in the eyes of society. Such a provision invades and erodes the dignity of
homosexuals."
Emphasising that the assault on dignity takes on various forms, Divan quoted Professor
Goodman to argue that sodomy laws reinforce public abhorrence of lesbians and gays
resulting in an erosion of self- esteem and self-worth in various ways. These included selfreflection, reflection of self through family, verbal harassment and dispute, residential zones
and migrations, restricted public spaces, restricted movement and gestures, and conflict with
law enforcement agencies. "Virtually every dimension of the lives of gay men have been
affected", said Divan.
"Homosexuals suffer tremendous psychological harm. Fear of discrimination leads to a
concealment of true identityin the case of homosexuals it is the tainting of desire, it is the
attribution of perversity and shame to spontaneous bodily affection, it is the prohibition of the
expression of love, it is the denial of full moral citizenship in society because you are what
you are, that impinges on the dignity and self worth of a group", he said.
Arguing that homosexuals have the right to privacy, Divan quoted from Justice Kennedy's
decision in Lawrence v Texas. "Matters involving the most intimate and personal choices that
a person may make are central to the personal dignity and autonomy of the individual and
are protected from unwarranted intrusion. At the heart of personal liberty is the right to seek
and develop personal relationships of an intimate character."
Diwan argued that the notion of autonomy extended beyond the spatial dimension "It
projects beyond the home or the closet, since individuals to attain growth and fulfillment
cannot be confined to such spaces," he said.

Diwan then outlined the global trends with respect to laws relating to homosexuality including
the Yogyakarta Principles, the decision of the South African Constitutional Court, the Fijian
High Court, the High Court of Hong Kong, the European Court of Human Rights, the
Nepalese Supreme Court, and the UN Human Rights Committee.
He said that these judgements showed that moral disapproval could not be adequate
rationale to keep 377 on the statute book. Chief Justice Shah then pointed out that the
Indian Constitution provided that public morality could be a ground for restricting
fundamental rights. Divan responded with an impassioned argument. "If it is a law which
impinges on the dignity of an individual, not in a nebulous sense, but affecting the core of the
identity of a person..Sexual orientation and gender identity are part of the core of the identity
of LGBT persons. You cannot take this away..". He said, " Morality is insufficient reason in a
case like this where you are criminalising a category and affecting a person in all aspects of
their lives, from the time the person wakes up to the time they sleep. He said that NACO
figures estimated that there were 25 lakh MSM in India, which is a minimum figure that we
are talking about.
Divan said that if the court did not declare its relief limiting the scope of section 377 , it would
cast a doubt on whether LGBT persons enjoyed 'full moral citizenship' of this country. "A
moral argument cannot snuff out the right to life and personal liberty (of LGBT persons).
"This is a law that affects what a person considers himself to be while facing the mirror", he
said.
Addressing the point on whether the morality argument could be used to curtail the right to
life and liberty, Divan cited Justice Thomas, who even while dissenting in the Lawrence
case, characterized the Texas legislation as "an uncommonly silly law".
Chief Justice Shah asked if one could argue that section 377 would lead to disqualifications
when it came to elections, employment, etc.

POST LUNCH SESSION

Divan cited the decision of the Fiji High Court where the Fijian Court, faced with a similar
dilemma as the Delhi High Court, had invalidated the relevant section to the extent that it
declared inconsistent that part of the section that criminalized private consensual acts
between adults. "This is what we recommend that the court does. The section should be
interpreted in a manner in which the constitutionality is preserved, not struck down", he said.
Arguing that the grounds of discrimination in Article 15 and 16 of the Indian Constitution
should be read to include discrimination based on sexual orientation, Divan cited the Toonen
case (Tasmania) where the term 'other status' in the International Covenant of Civil and
Political Rights was interpreted by the U.N. Human Rights Committee to include 'sexual
orientation'. He relied on the Canadian Supreme Court decision in Vriend v Alberta and the
Indian Supreme Court decision in Anuj Garg to argue that 'sexual orientation' should be read
into 'other status' or the term 'sex' that already exists in Article 15. The Canadian Supreme

Court held that despite the term 'sexual orientation not being specifically mentioned in the
Canadian Charter, on the basis of historic social discrimination based on sexual orientation,
it was declared an analogous ground of discrimination.
Chief Justice Shah pointed out that the recent submission Navneetan Pillai had raised,
before the Human Rights Committee, the question of whether the term 'race' had to be
understood only in its traditional sense. (This was in the context of the genocidal violence in
Rwanda). Here, race was interpreted in a wider sense.
In order to show that there was increasing realization in India of the rights of LGBT persons,
Divan pointed out that the Tamil Nadu government had enacted legislation for the welfare of
aravanis (hijras), and that the Election Commission had provided a column for persons of the
'third gender;'.
Agreeing with Divan, Chief Justice Shah said, "This is also reflected in the statements made
by the Health Minister and the Prime Minister."
Divan said that the estimated figures of the number of homosexuals was around 5-7 percent
of any given population. He said that homosexuality was no longer a disease and had been
removed from the list of disorders by the American Psychiatric Association. The amicus brief
in the Lawrence case showed that the core basis of adult sexual attraction arose in
adoloscence , which most people had no choice over.
Quoting from the affidavit filed by Gautam Bhan, Divan showed that the legal repercussions
of section 377 hindered the lives of homosexuals even though society and family could be
supportive of the issue. In his affidavit, Bhan states that he felt like a second-class citizen in
his own country because of 377.
Argued Divan, "Section 377 operated to criminalise and stigmatise people for being
themselves. There is no justification for such a law.."
Divan elaborated on the importance of the notion of identity. "We were discussing the issue
of caste. In parts of India , men identify themselves by their caste. Women often identify by
gender. For some, religious identity is paramount. When you are enumerating identity, a
heterosexual person may not consider sexual orientation as important, but for a homosexual,
sexual identity may be paramount. Sexual orientation is often the first thing that governs a
person's life. As we saw in Gautam Bhan's affidavit, he asks why, though he is equal to
persons in all other aspects, he still suffers from the stigma of section 377.
Divan said that he wanted to underscore the need for appropriate directions where persons
of the LGBT community are alleged to have committed offences other than Section 377. "It is
a widespread experience that law enforcement officials policing against obscene acts in the
public, etc. proceed against LGBT persons not as they would in respect to heterosexuals but
under Section 377 as well. This amounts to a particularly invidious discrimination inasmuch
as an offence under Section 377 is non bailable and is punishable with a sentence upto life

imprisonment. In contrast, a heterosexual person is generally booked under Section 294 of

the IPC which carries a relatively lighter sentence of three months imprisonment and is a
bailable offence", he said.
Said Divan, "It is submitted that the constitutionality of a provision must be judged keeping in
view the changed situation with the passage of time. A law that is constitutional at a certain
point of time may with the passage of time be held to be unconstitutional. (Anuj Garg). In
matters impacting human rights, a progressive interpretation of the law is necessary (M. C.
Mehta Vs. Union of India). In a distinct context the Supreme Court has observed "it is not
necessary and indeed not permissible to construe the Indian Penal Code at the present day
in accordance with the notions of criminal jurisdiction prevailing at the time when the code
was enacted. The notionshave considerably changed then and now during nearly a
century that has elapsed. It is legitimate to construe the code with reference to the modern
needs, whenever this is permissible, unless there is anything in the code or in any particular
section to indicate the contrary."
He said that the interpretation with respect to Section 377 urged by Voices Against 377 was
in keeping with contemporary understanding of sexual orientation and gender identity. "It is
consistent with Indian constitutional values; it is consistent with international human rights
standards; it is consistent with the developments in this field of the law worldwide as
reflected from legislative changes and decisions of the superior courts in countries across
the world", he said.
Divan concluded his argument with an impassioned plea for emancipation for a large
segment of India's population. "At its root, this case is about the Emancipation of a large
segment of our people. All of them Indian, all of them citizens. The Constitution of India in
one of the great emancipatory charters, lifting as it does from the status of wretchedness
and subordination -- communities, castes, tribes and women -- to full Citizenship. This case
is about an invisible minority of Indians that seek to unlock the assured liberties enshrined in
the Constitution, but denied to them in an aspect of life that matters most to them: their own
identity; their own sexuality; their own self," he said.
Said Divan, "As Justice Kirby puts it, The question is bluntly posed: can laws criminalising
sexual minorities be any longer justified? Can violence and discrimination against this
minority be tolerated or should the law adopt a leadership and educative role? In pluralistic
societies, is it fair and realistic to demand that members of sexual minorities change their
orientation or live completely celibate lives? Is it in society's interests to protect supportive
mutual relationships, given that sexual minorities exist, have always existed and will continue
to exist, whatever the law and society say?"
"LGBT persons are a permanent minority in society and have suffered in the past from
severe disadvantages. Their dignity has been and continues to be degraded, severely
undermining their sense of self-worth. The criminalization of homosexuality condemns in
perpetuity this sizeable section of society and forces them to lead their lives in the shadow of
harassment, exploitation, humiliation and cruel and degrading treatment at the hands of the

law enforcement machinery. The Government of India estimates the MSM number at around
25 lacs. The number of lesbians and transgenders would run into several lachs of persons
as well. This vast section of our society comprises honourable citizens who lead wholesome
lives but, in the language of the South African Constitutional Court, are denied full moral
citizenship. The "moral" dimension of their citizenship is denied to them, not because of any
harm that they have inflicted on any other person, but only because they seek to live lives
and build relationships -- so essential for the realization and fulfillment of life's goals -- with
others, based upon a inner aspect of their being."
"To blot, to taint, to stigmatize and to criminalize an individual for no fault of his or hers, is
manifestly unjust. To be condemned to life long criminality shreds the fabric of our
Constitution. For the male homosexual in particular and by its expanded application to
lesbians and transgenders as well, Section 377 has worked to silence the promise of the
Preamble and Part III of the Constitution. It is the case of the Petitioner and those who
support the petition that it is the liberating, emancipatory spirit underlying the Fundamental
Rights invoked in this case that must prevail. The Constitution of India recognizes, protects
and celebrates diversity. LGBT persons are entitled to full moral citizenship.", he said.
Divan then tendered a list of suggested operative directions for the court to consider while
passing orders.
Chief Justice Shah asked the JACK lawyer R.S. Kumar what the gist of his arguments were.
Unimpressed with the response, Chief Justice Sha said he wanted arguments related to the
constitutionality of the provision, and not arguments related to locus of the petioners etc. He
asked the Additional Public Prosecutor to continue tomorrow remarking that he did not
expect too much constructive assistance from the intervenors JACK or B.P. Singhal.
Dismissing the JACK counsel's claim that NACO was being prompted to file their affidavit by
the petitioners, Chief Justice Shah remarked that it was perfectly permissible for different
sections of society tomake all efforts to change the law , and in doing so to appeal to various
bodies.

UPDATE MINUTES OF THE NAZ CASE CHALLENGING THE VALIDITY

OF SEC 377; SEPTEMBER 29,2008
The matter came up only twenty minutes before the Court was due to rise. In the short time
the Mr. P.P. Malhotra, (Additonal Solicitor General) made the following submissions for the
Union of India Firstly, that the 172 Law Commission Report recommended certain changes
in rape law and it was only if these changes could be effectuated that Sec 377 could be
deleted. He was questioned by the judges as to whether his position was that the Court was
bound to follow the recommendations of the Law Commission. Justice Shah noted that the
Law Commissions opinion had changed since its earlier Reports and that the Court was not
bound by the law commissions recommendations and can still examine the Constitutionality
of a statute regardless of what the Law Commission held. The Law Commissions
recommendations was one of the factors which the Court would consider but was not a
determining factor.

Secondly, the ASG by reference to three Supreme Court judgements made the point that the
Court cannot speak for parliament and can only hold what parliament has already stated..
No act of parliament can be struck down because of a misunderstanding of the statute by
the Court.. Judges cannot make law but only interpret it. The law is clear, the will of
parliament is the will of the people.
Thirdly, the ASG made submission related to the affidavits filed by NACO. His point was that
NACO might say or anybody might say that there are 25 lakh people(MSM), but the Court
was not bound by statements by any party be it NACO or anybody else. The Courts role
was to interpret the Constitutional validity of the statute and the affidavit was of no value in
this regard.
J. Shahs response was to say that while he appreciated the point of the role of the Court
being to adjudicate Constitutional validity, but the Court could not make up its mind in the
abstract. The determination of Constitutional validity had to be based on some material. For
example to decide if Sec 377 violates the right to health implicit in Art 21 the Court will have
to examine if crminalization of homosexuality results in a denial of the right to health.
The ASG countered by saying that the right to health of a few cannot mean that you make
society unhealthy as others too have a right to a live a healthy life. J. Shah responded by
saying that the state will have to show material to make the point that criminalization protects
health. If the health of other parts of society was affected then the Court may have to
balance interests.
J.Shah then referred to the minority opinion in Lawrence v. Texas and noted that the
minorities viewpoint on whether the Texas statute should be struck down was that it was not
necessary to read the Wolfenden Report..
Before J. Shah could finish, the ASG interjected to say that the social circumstances, moral
standards were very different here and the Court would have to consider that. The ASG
further argued that people from the West came to India for our high moral standards. The
matter was then posted for tomorrow morning when the ASG would continue his arguments.

DAY SIX OF NAZ HEARINGS; SEPTEMBER 30, 2008

The ASG, PP Malhotra continued his submissions on behalf of the Union of India by stating
that as per NACOs affidavit 8% of the MSM population was infected by HIV, whereas HIV
prevalence among the general population was only 1%. Presently 6% of the infected
population of MSM is being covered by NACO interventions. The ASG read this out to make
the point that the main cause for the disease was homosexuality.
To which J. Shah asked if it was his submission that the removal of Sec 377 would create a
health hazard. .

The ASG responded by saying that if homosexuality was decriminalized it would result in a
health hazard to society.
Moving on the ASG referred to two judgements on privacy ( Kharak Singh and Govind) to
make the point that the right to privacy was not absolute and could be restricted by any valid
law. His point was that the right to privacy under Art 21 could not be invoked as long as there
was a valid law.
J. Shah asked the ASG if this position (that one cannot question constitutionality of a statute
as long as the legislature had validly enacted it) was valid as the law had changed post the
decision in Menaka Gandhi ?
The ASG contended that the decision in Menaka Gandhi related to a passport issue and
sought to distinguish it on facts.
He went on to state that the question was about the extent of the right to privacy and
whether a man had a right to do any act, which is an offence.
He went on to read Govind v. State to make the point that if regulations are framed in
accordance with law , as it was in the case of Govind it will be upheld.. Validly enacted law
( Police regulations authorizing surveillance in the case of Govind) will be upheld as it will not
be violative of Art 21.
The ASG then went on to reiterate his point that when there is an apparent conflict between
the right to privacy of the person and the interest of general public and society that this
disease is not spread. Homosexuality is one of the causes, which affects this disease. If this
is allowed what will happen ? There will be more sex and the disease will be spreading. He
noted that he no objection to condoms being supplied as that was a precaution, but it must
not be made legal. The law is clear and need not be read down.
When the ASG was asked by the Bench as to whether the right to health was a part of the
right to life under Art 21 he stated that yes , but not only the right to health of those affected
but also society. Finally the ASG conceded that the right to health was included under Art 21.
However he continued to stress that the right to health also included the right to health of
others as well.
J. Shah posed the hypothetical question as to whether a law which discriminated against
HIV positive people by denying them employment and isolating them would be valid ?
The ASGs response was that no law is abstract and this right cannot be absolute. One has
to see if other persons rights are affected. He went on to note that the Supreme Court had
said that it was a moral perversity. Tomorrow you will say that you have a right and exercise
it in the road. We have to see limits, see other mens rights as well and balance rights.
Speaking particularly of Lucy v. State of Bombay,(1990). Shah noted that the judgement
( which upheld the validity of a Goa law allowing for isolation of HIV/AIDS patients ) was,

though not over ruled, outdated. He noted that Indian Law Institute had a seminar in 1994
after the judgement which was attended by numerous experts. Following this one can say
that the law was never implemented inspite of eleven years having passed.
The ASG speculated that perhaps at that time one was not aware that this disease spread
through blood, sex etc..
J.Shah noted that the ASG was relying on these judgements to show that AIDs was
transmitted through homosexual sex. However on affidavit you are silent on whether noncriminalization would lead to spread of HIV/AIDS. There is not a word on this. In fact the
NACO affidavit says the exact opposite. Where do you get this point that de-criminalization
would result in the spread of HIV/AID's. Show us some study, research on this point, surely
we cant rely on your word alone. In fact the consensus around the world is that
criminalization will drive HIV underground.The judgement you rely on ( Vijaya v. Chairman
SCCL ) AIR 2001 AP 502, upholds the validity of mandatory testing in the case of HIV/AIDS ,
but the Union of India has inspite of the judgement not made testing mandatoryYou have
to place some material to show that criminalization will stop HIV. In fact what flows from your
argument is that we should not have HIV at all because we have Sec 377.
The ASG went on to read some more judgements to make the point that the right to privacy
was not absolute. He then went on to refer to the Gian Kaur judgment in which the Supreme
Court held that the right to life did not include the right to die. He referenced some quotations
from the judgment to make the point that global debates and Law Commission India
recommendations will be insufficient to strike down a law.
The ASG was repeatedly asked by J. Shah as to whether that was the sum and substance of
his Art 21 arguments. Whether he would make an argument on public morality as a
justification for limiting Art 21 rights and also whether he would address the question of
dignity. J. Muralidhar made the point that the other party had made a very strong oral
submission as well as written submission that Sec 377 violated the right to life with dignity
and the ASG had not addressed that limb of the Art 21 question. Dignity formed a part of the
Preamble as well as UDHR. The ASG was also asked to address the Court on the question
of whether sex in Art 15 and Art 16 included sexual orientation.
The ASG while assuring the Court that he would address the Court on those points went on
to make submissions on the interpretation of Sec 377. He said the question under this
provision was not whether intercourse was with consent or not but was whether it was
against the order of nature. He said that nature had devised scientific methods. You breath
through your nose, eat through your mouth. Similarly order of nature would mean that
intercourse should be in the place specified by nature in all human relationships even among
animals. The phrase order of nature means that if a man wants to have intercourse with a
woman, the place is specified.

J. Shah asked the ASG to please address the Court on the Constitutionality of Sec 377 and
to leave aside the question of interpretation of the meaning of Sec 377 as that question was
not before the Court.
The Court rose and J. Shah proposed that if tomorrow was a holiday , the Court could sit the
whole day and finish hearing the matter or if it was not a holiday could be heard for half a
day. The ASG made the cryptic suggestion that man was a social animal and that he would
prefer not to sit on a holiday. J. Shah noted that there was a perception that the Court had
many holidays and if the ASG did not wish to sit, and tomorrow was a holiday, then the Court
would recommence hearing on Friday. Otherwise the Court will continue hearing the matter
tomorrow morning.

The Homosexuality Debate: Two

Streams of Biblical Interpretation
Ted Grimsrud
[Versions of this essay were published in C. Norman Kraus, To Continue the Dialogue (Cascadia
Publishing House), and in Ted Grimsrud and Mark Thiessen Nation,Reasoning Together: A
Conversation on Homosexuality (Herald Press)]
In seeking discernment concerning the controversy over intimate same-sex relationships among
Christians, we must learn better to understand points of view different from our own. This essay
represents my attempt to do so. I will be describing the main arguments of several recent scholars
who, in general, may be seen as reflecting two different understanding of biblical teaching.
I use terms for each of these viewpoints, restrictive and inclusive, that I hope are essentially
value neutral. By restrictive, I mean views that support restricting the participation in the church
of gay and lesbian Christians who are in intimate relationships. By inclusive, I refer to those who
support inclusion with no restrictions based related to homosexuality per se on the participation of
such Christians in the church.[i]
The Restrictive Case
Thomas E. Schmidt. Straight and Narrow? Compassion and Clarity in the Homosexuality
Debate. Downers Grove, IL: InterVarsity Press, 1995.
In Thomas Schmidts view, the basic message of the Bible stems from and elaborates on the
teaching of the creation story in Genesis one and two. Our understanding of appropriate human
sexual expression should follow from Genesis. The creation account makes four crucial points
regarding sexuality. (1) Reproduction is good. (2) Sex is good. (3) Marriage is good. (4) Male and
female are necessary sexual counterparts (43).

Same-sex sexual relationships, according to Schmidt, are problematic in a fundamental way. They
reflect an implicit rejection of the very order of creation and in doing so they reflect a rejection of
God. Same-sex sexual relationships undermine the sanctity of opposite-sex marriage. They
declare that a different expression of sexuality outside of the God-created intent for human beings
is good (48). Such a rejection of Gods will has to be unacceptable for all Christians who accept the
authority of the Bible.
The biblical teaching against same-sex sexual intimacy in the rest of the Bible all presupposes the
Genesis portrayal of normative marriage and is consistent with that portrayal. The main reason the
Bible speaks so clearly about sexual activity which does not occur within the context of oppositesex marriage is, in Schmidts view, because illicit sexual activity is understood to be a threat to the
very social foundations of the Bibles faith communities.
Leviticus 18:22 and 20:13 give us the most direct teaching in the Old Testament proscribing samesex sexual relationships. These two verses have normative force, even though they are surrounded
by other commands which present-day Christians no longer consider binding. The normativity of
the anti-same-sex sexual intimacy verses follows from their rootage in the creation story. The
sexuality commands have the force of abiding moral law, not simply temporal purity regulations
that Christians understand to have been superceded in Jesus (90).
Pauls writings reflect the creation ordering of human sexuality. A key text is Romans 1:18-32. This
passage begins with a reference to idolatry as the root cause of the immorality that the verses that
follow address (53). Paul points here to an inherent connection between idolatry and
homosexuality. He singles out same-sex sexual activity because he seeks a vivid image of
humankinds primal rejection of the sovereignty of God the creator (67). Since Gods intent for
opposite-sex marriage as the only appropriate context for sexual relationships, the denials of the
exclusivity of this context implicit in same-sex relationships means rejecting God.
Schmidt understands Paul to be teaching in Romans one that homosexuality is a paradigmatic
case of human beings sense of their identity being distorted due to idolatry. Living in a same-sex
relationship is to be in revolt against God. When people live in revolt against God, inevitably their
lives will be corrupted, with the consequent consequences of alienation and brokenness (85).
Pauls teaching against same-sex sexual intimacy also found expression in 1 Corinthians 6:9 and 1
Timothy 1:10. Paul uses a term here that he likely coined himself in condemning same-sex sexual
intimacy. The Greek word arsenokoites clearly comes from the Greek translation of Leviticus 18:22
that Paul would have used. The Leviticus verse uses two words (arseno = men and koiten = lies
with) which are combined by Paul, presumably to evoke memories of the teaching of Leviticus that
forbids a man laying with another man as he would with a woman (95-96).
Schmidt concludes that the biblical teaching is being confirmed in our present day as we observe
the self-destructiveness of same-sex sexual activity which is what Pauls teaching in Romans one

would lead us to expect. Idolatrous behavior is invariably self-destructive as God gives up

idolaters to the consequences of their rebellion versus God (100-130).
Richard B. Hays, The Moral Vision of the New Testament: A Contemporary Introduction
to New Testament Ethics. San Francisco: HarperSanFranciso, 1996.
Richard Hays admits that the Bible rarely refers directly to homosexual behavior; however, he
asserts, we must recognize that each of these rare references is totally negative and needs to be
taken seriously. The two references in the book of Leviticus (18:23; 20:10) establish the basic
tone. Their. unambiguous prohibition of same-sex sexual intimacy founded the universal rejection
of such relationships in Judaism (381).
Hays focuses most of his attention on pertinent New Testament texts, especially Romans 1:18-32.
Romans one plays a special role in Christian sexual ethics because it is the only place in the New
Testament that explains the Christian condemnation of homosexual behavior in an explicitly
theological framework (383).
Underlying Pauls theology here is his reference to God as creator. This reference grounds Pauls
discussion of sexuality in the story of creation in Genesis one and two (i.e., the portrayal of
male/female sexuality as the norm, 386).
The practice of same-sex sex may be understood as a type of sacrament for the contra-faith of
those who reject God as creator and ruler of the universe (386). Faith in God includes, by
definition, an acceptance of the order God has created. To blatantly deny the exclusive normativity
of male/female sexuality, hence, is par excellence an expression of the refusal to honor God as God
that Paul sees as the core problem with pagan idolatry.
When Paul writes that same-sex sex is against nature, he means it goes against the order of
creation, as nature for Paul means the created order. Those who engage in sexual relations with
people of the same sex are acting against nature in defiance of the Creator (387).
Why does Paul single out homosexual intercourse here? According to Hays, Paul does so because it
so graphically reflects the way in which human rebellion against God is expressed in ways that
blatantly distort the way God created things to be. When rebellious human beings exchange
their created sexuality for same-sex intimacy, they manifestly show how sinful human beings have
exchanged the truth about God for a lie (Romans 1:25, 388).
The created order, the natural pattern, points toward the exclusivity of heterosexual marriage as
the context for appropriate sexual intimacy. The entire Bible supports this understanding. This
normativity of heterosexual marriage provides the context for the Bibles univocally negative
explicit mentions of same-sex sexual activity (390).
The fact that some human beings might feel a strong sexual attraction toward people of the same
sex is not to be understood as necessarily good and trustworthy. That these desires and impulses

happen to be involuntary is not evidence that they are appropriately acted on. Due to the depth of
the power of sin in the human heart, even our involuntary impulses may well be corrupted (390).
Stanley J. Grenz. Welcoming but Not Affirming: An Evangelical Response to
Homosexuality. Louisville: Westminster/John Knox Press, 1998.
Stanley Grenzs position rests on his interpretation of biblical texts of two sorts, the handful of texts
that he understands directly to address the issue of same-sex sexual intimacy and the overall
understanding the Bible gives of marriage as rooted in the creative intent of God. He believes that
the fundamental issue in the debate ultimately boils down to how much respect one is willing to
give to the teaching of the Bible. For those who uphold the authority of the Bible in the church,
Grenz asserts, rejecting the moral validity of all same-sex sexual intimacy is the only option (89).
Grenz understands Old Testament morality concerning sexual relationships to be reducible to one
basic principle. The overarching focus of Old Testament sexual ethics is to defend family and
married life. The Holiness Code in Leviticus 17-26 argues that any sexual activity outside of the
context of heterosexual marriage is a threat to the institution of marriage and hence is an
abomination (46).
The extremity of the punishment in Leviticus 20:13 for same-sex sex reflects the seriousness of
such a violation of Gods intent for human sexuality. Even if we do not use the death penalty for
such offenses any more, we nonetheless should recognize the seriousness of the violation that
evokes it in Leviticus. The prohibition remains normative for us today, even if the punishment does
not (47).
Turning to the New Testament, Grenz argues that in Romans one Paul echoes the concerns of the
Levitical Holiness Code in rejecting same-sex sexual intimacy as contrary to Gods intentions for
human beings. For Paul, only the model of male/female marriage as the one legitimate context for
sexual expression is natural and fits with the Creators design. Sex outside of this context is
against nature and brings upon itself Gods anger (56).
In responding to claims by inclusivist thinkers, Grenz rejects the idea that understanding the core
Christian ethical criterion to be love should lead the church to affirm same-sex covenant
relationships as expressions of the ultimate Christian value love. For Grenz, love must be
understood in the context of the overall biblical message of Gods intentions for human social life.
If Gods order is being violated, it is not a loving response to condone that violation.
The creation account in Genesis provides us with crucial information in relation to these questions.
Our direction as human beings may be seen in the fact that God created human beings as male
and female (Genesis 1:27, 103). Furthermore, Genesis 2:18 tells us that simply as male, the first
human being was incomplete. To be complete, human living must include both sexs, different from
one another yet complimentary.

Grenz understands the creation stories to provide the normative model for marriage male and
female, complimenting each other, completing each other. From this portrayal, he concludes that
sexual intimacy is meant only for people in an opposite-sex marriage. Sexual intimacy is meant to
address our incompleteness the incompleteness that God resolved by creating women to join with
men (104).
Sexual intercourse has profound symbolic meaning for Grenz. It is always a symbolic act, with
three central messages at its core. (1) Sexual intercourse symbolizes the exclusive bond between
husband and wife reflecting the biblical confession that the person of faith has an exclusive bond
with God. (2) Sexual intercourse symbolizes the mutuality of the marriage relationship each
partner finding pleasure in the intimacy and seeking for foster the others pleasure. (3) Sexual
intercourse symbolizes the married couples openness to new life emerging from their relationship
through the birth of children (108).
Grenz argues at length that same-sex covenant relationships simply cannot share in the richness of
this symbolism. He believes that legitimate sexual intimacy must always be symbolic in these
ways, and that the institution of marriage is meant to foster such rich symbolism. In doing so,
marriage serves as a crucial element in the life of the faith community.
For Grenz, probably the most fundamental reason same-sex covenant relationships among
Christians should not be affirmed is that they devalue marriage (141). He understands
monogamous, male-female marriage to be the foundation for Christian communal spirituality.
Willard Swartley, Homosexuality: Biblical Interpretation and Moral
Discernment. Scottdale, PA: Herald Press, 2003.
In his introductory chapter Swartley asserts that unlike issues he has written on previously (such as
war, male/female relationships, and slavery), with homosexuality there is clarity and uniformity in
the biblical witness that do not allow for movement away from a more status quo view towards a
more liberative view. Homosexual practice is not related to grace-energized behavior in a single
text (18).
The three main points Swartley draws from the Old Testament in developing his case for opposing
same-sex sexual intimacy are: (1) Genesis one portrays Gods intention with creation being that
sexuality is a good gift, with great power and subject to misuse (27-28). The only appropriate
context for sexual intercourse is male/female marriage.
(2) The story of Sodom and Gomorrah is rightly understood as focusing on threatenedrape as an
expression of inhospitality, not on loving homosexual relations. Nonetheless, it is significant that
in Genesis 19 and Judges 19 it is precisely (homo)sexual lust that precludes hospitality (31-32).
(3) Leviticus 18:22 and 20:13 regard same-sex relations as an abomination in the same category as
idolatry and child-sacrifice (33). The fact that same-sex male relations and Molech worship, which
involved sacrificing offspring, are linked may be telling of the seriousness of the same-sex
offense (35).

While acknowledging that Jesus did not overtly speak of homosexuality, Swartley draws a number
of points from Jesus teaching that are relevant for our ethical discernment. He believes that Jesus
combines a commitment to holiness (e.g., a condemnation of porneia[fornication, defined by
Swartley as as sexual genital relations outside heterosexual marriage, 40]) with mercy (e.g., be
loving toward even those you must critique for transgressing holiness requirements, 47).
In relation to Paul, Swartley focuses on Romans 1:24-27 and 1 Corinthians 6:9. He proposes that
the Romans passage is particularly important because it links same-sex practices with idolatry a
rejection of the God-ordered normativity of heterosexuality. For people to turn to others of the
same sex as sexual partners, according to Paul, reflects a substituting of worship of creation for
worship of the creator (51-52).
Because Paul also condemns female-female sexual intimacy in Romans 1:26-27, he cannot have in
mind only specific sexual practices peculiar to males (i.e., pederasty) but means to make a
categorical judgment of all same-sex sexual intimacy (57). Paul grounds this general
condemnation on the normativity of Genesis 12 and its portrayal of male/female sexual intimacy
as the exclusive norm, and all exceptions as unnatural (57).
Swartley understands 1 Corinthians 6:9 in the context of Pauls concern with sexual libertinism that
is reflected in 1 Corinthians 5 and the critique of porneia (fornication). Because of the general
level of unrestrained sexual behavior in Corinth, Paul and his readers likely knew of all kinds of
same-sex relationships, including long-term stable partnerships. Hence, his writing against samesex sexual intimacy is to be seen as all-encompassing (70).
Paul is best understood, in Swartleys view, as being unalterably opposed to same-sex sexual
intimacy simply because it involved people of the same sex. Hence, it is misleading to focus on
particularly problematic types of sexual expression as if that might make room for Paul accepting
less problematic expressions (70).
Robert A. J. Gagnon in Dan O. Via and Robert A. J. Gagnon. The Bible and
Homosexuality: Two Views. Minneapolis: Fortress Press, 2004.
Robert A. J. Gagnon has become the most prolific and arguably most influential writer supporting a
restrictive view. His arguments are developed at the greatest length in his massive volume, The
Bible and Homosexual Practice.[ii] A more concise and accessible summary may be found in more
recent book he co-authored with Dan Via,Homosexuality and the Bible: Two Views. It is from the
latter work that I will draw for this summary of Gagnons argument.
Gagnons opposition to the acceptance of homosexual practice stems from his sense of clarity
concerning the thrust of the Bibles core values. These core values point
unequivocally against homosexual practice (42). As Gagnon develops his argument, he draws on
materials from throughout the Bible to support this assertion.
Most of the arguments in favor of the churches taking a welcoming stance toward gays and
lesbians utilize at least to some degree various analogies that are interpreted as providing support
for the churches devaluing the explicit anti-homosexual practice texts. Gagnon discusses various
of these (e.g., Gentile inclusion as reflected especially in the book of Acts, the Bibles apparent

support for slavery that is rejected by modern Christians, the recent acceptance of womens
leadership in the church, and the acceptance of remarriage after divorce for church members). He
argues that none of these analogies holds much weight (43-47).
By far the clearest moral analogy, in Gagnons view, is the parallel between the Bibles perspective
on incest and its perspective on homosexual practice. For Gagnon, just as the Bibles prohibition of
incest remains normative for contemporary Christians, so too does the parallel prohibition of
homosexual practice (48-50).
Contrary to the argument that Jesus, in his love command, provides warrant for the churches to
practice toleration toward gays and lesbians, Gagnon asserts that Jesus love command most
certainly does not underwrite modern-day notions of tolerance (50-53). Jesus call to love neighbor
and God is fully consistent with ethically rigorous convictions concerning moral purity and practices
of church discipline that challenge Christians to separate themselves from sinful behaviors.
Gagnon believes that the Bible as a whole clearly and explicitly condemns same-sex sexual
intimacy. The Old Testament has a large web of texts that directly and indirectly indict same-sex
intercourse as inherently unacceptable (56). One key part of this web of texts is the story of
creation that portrays one-fleshness as requiring a male and a female (61). The core of the
creation account, according to Gagnon, is to establish for all times the significance that God has
created males and females for each other. This complementarity of the sexes establishes the
exclusive normativeness of heterosexuality as the only morally acceptable context for sexual
intimacy.
A second key part of the Old Testaments stance may be found in the book of Leviticus amidst this
books account of the Holiness Code. Leviticus 18 and 20 single out male-male sexual intercourse
as uniquely problematic. Such activity directly violates the norm of the complementarity of the
sexes as the only acceptable context for sexual intimacy (65). The on-going significance of the
Leviticus laws for Christians is seen in how Paul in his context directly draws on Leviticus to
articulate his own negative views about same-sex sexual intimacy(67).
Gagnon understands Jesus silence on these issues not to be evidence in any way of him having
an accepting or affirming view of such practice. To the contrary, that Jesus did not speak directly to
this issue much more likely reflects his acceptance of the traditional view that saw all same-sex
sexual intimacy as inherently wrong. The best explanation of Jesus silence is that Jesus assumes
the anti-homosex assumptions of his day and age and simply found no need to articulate those
assumptions since they were so commonly shared. As support for this view, Gagnon mentions
Jesus general concern with sexual purity (68-74).
Unlike Jesus, the Apostle Paul did write directly about same-sex sexual intimacy. He articulates the
normative New Testament view. In Romans one, Paul links idolatry and same-sex intercourse in
asserting that each problem absurdly denies the natural revelation that makes it clear that each
leads a person away from authentic life and toward self-destruction. Paul widens the net by also
condemning lesbianism, providing the basis for making the biblical condemnation of homosexual

practice equally applicable to all same-sex relationships. Pauls comments reflect an awareness on
his part of all sorts of possible same-sex relationships; hence, his negative conclusions apply to all
(75).
In a second text, 1 Corinthians six, Paul links back with the judgments of Leviticus in what seems
clearly to be a direct allusion to the language of the Levitical prohibition. Here Paul obviously has
in mind the biblical presumption about the creation norm of heterosexuality (81).
A third text, 1 Timothy one, while in Gagnons view not necessarily written by Paul himself, does
reinforce Pauls thinking concerning same-sex practice. This passage echoes the Ten
Commandments in condemning every conceivable type of male-male intercourse. (87)
As a consequence of the clear message of the Bible and the centrality that biblical ethics should
have for Christians Gagnon concludes that the church must explicitly oppose homoerotic acts in
order to remain faithful to its Lord (91).
The Inclusive Case
Letha Scanzoni and Virginia Mollenkott. Is the Homosexual My Neighbor? A Positive
Christian Response. San Francisco: HarperCollins, 1994.
According to Letha Scanzoni and Virginia Mollenkott, the core message of the Bible is the command
from Jesus to love ones neighbor as oneself. With the love command as central, we are then going
to be impressed with a passage such as Acts 1011, the story of the change in which the early
Christians began to welcome non-Jewish Christians as full members of the church. With Acts 1011
as our model, they assert, we will realize that we may be called to transcend rules and simplistic
readings of scripture in order consistently to live in light of the love command (17).
Scanzoni and Mollenkott believe the gospel calls upon Jesus followers to be partisans and
advocates of marginalized people (39). When the love command is the starting point in
approaching the Bible, we will place the highest priority on biblical texts that call upon us to
welcome the lowly and outcasts. This benefit of the doubt toward compassion for the outcast
challenges followers of Jesus to overcome the social gap between themselves as heterosexual
Christians and homosexuals. This gulf is necessary for objectifying and excluding (51).
Scanzoni and Mollenkott do turn to the traditional texts that overtly refer to same-sex sex. They
begin, however, by emphasizing that the context for the mention of same-sex sexual activity in
scripture is always that of other negative acts for example, adultery, failure to propagate,
promiscuity, violence, idolatrous worship. The sexual acts themselves are not condemned in
isolation from the other problems (56).
For example, the story of Sodom in Genesis 19 tells not about same-sex sexual orientation and
intimate loving relationships. The story there is about heterosexual males who were bent on gang
rape (58). A second example, Leviticus 1820, reflects a deep concern for ritual purity as a means
of showing Israels distinctiveness as a people set apart for God. Activities that reflected

conformity with surrounding cultures, particularly their religious practices understood by Israelites
to be idolatrous, were strictly forbidden. It appears that Israelites associated male/male sex with
such practices.
A third example of the Bibles references to same-sex sexual activity being connected with other
problems is seen in the New Testament the book of Romans. In chapter one, Paul says nothing
about homosexual love; rather, the focus is on sexual activity in the context of lust and idolatry
(68).
The final examples of the Bibles mention of same-sex sexual activity come in 1 Corinthians and 1
Timothy. In both of these cases, Scanzoni and Mollenkott argue, the writer is referring to particular
types of sexual abuse, not homosexual orientation in general (76).
Another central issue in discussions from the Bible, according to Scanzoni and Molenkott, is the
argument that the story of creation establishes male/female sex as the only acceptable type of
sexual expression. However, they argue that the core concern in Genesis 12 is to tell us how we
got here (hence, the allusion to procreation) not to indicate that this is the only valid type of
sexual expression. To say that procreative sex is the only morally legitimate form would not only
condemn same-sex sex but also any opposite-sex sex from which procreation is known ahead of
time not to be a possibility (81).
Daniel A. Helminiak. What the Bible Really Says About Homosexuality. San Francisco:
Alamo Square Press, 1994.
Daniel Helminiak argues that we must not draw strong conclusions about the applicability of
biblical texts to present-day issues when we do not have adequate historical background to
determine what the texts meant to their writers and first readers (32). This uncertainty applies to
all the small handful of biblical texts that appear to address issues of same-sex sexuality.
As well, Helminiak argues, from what we can tell about the biblical teachings concerning same-sex
sexuality, it appears clear that the Bible was not addressing the same types of relations that are
under scrutiny in todays context. The Bible did not know of homosexuality as a sexual orientation;
only of homogenital acts. Hence, it gives no answer about spontaneous affection for people of the
same sex and about the ethical possibility of expressing that affection in loving, sexual
relationships (33).
In Helminiaks view, an action is not wrong simply because a Bible verse seems to label it as such.
A thing is wrong for a reason. If the reason no longer holds and no other reason is given, how can
a thing still be judged wrong (33)?
Genesis 19, the story of the judgment of Sodom, tells of a violation of hospitality expectations not
of a society that is judged because of its tolerance of loving same-sex intimacy (40). The second
Old Testament passage commonly referred to in discussions of sexuality, Leviticuss double
mention of the prohibition of men laying with men as with women (18:23; 20:10), stemmed from
concerns about idolatry not from scruples about sex per se (45).

The prohibitions in the Holiness Code include a wide variety of actions with the common theme of
being actions that were characteristic of those outside of Israel. Many of these actions were not
understood to be wrong in and of themselves, but because they were connected with Gentile, and
not Jewish, identity. Hence, Helminiak asserts, no thought is given [in Leviticus] to whether the
sex in itself is right or wrong (46-47).
Male/male sex is called an abomination in Leviticus 20:13. By abomination is meant impurity,
Helminiak argues, or the violation of a taboo. It is not called something wrong in itself, a sin. It is
a ritual violation (52). Helminiak concludes that the focus in Leviticus is on practical, historicallyparticular concerns. The prohibition against male/male sex here must not be seen as a timeless,
absolute prohibition. Rather, it is time and context bound.
Helminiak argues that Pauls concern in Romans one centered on people engaging in sexual
practices of the type that was not normal for them that is, people who normally were
heterosexually oriented having sex with people of their own sex. He refers to Pauls use of against
nature in Romans 11:24 (cf. it is against nature for Gentile branches to be grafted on to the
tree of Israel) to support the argument that when Paul uses that phrase in Romans one he has in
mind simply that which is unexpected (65).
In Romans 1:27, Paul is concerned not with same-sex sex as the key issue but with idolatry, people
worshiping that which is not God. Paul is making a point about various idolatrous practices among
Gentiles, including people having unexpected sex sex of a sort that they do not normally
practice (77). If this is an accurate reading of Pauls intent, then the thrust of Romans one is not to
provide a basis for present-day rejection of the moral legitimacy of loving, mutual, committed
same-sex intimate relationships. Rather, Pauls words apply more to people engaging in sexual
practices that are obsessive, out-of-control, promiscuous, and directly refuting godly values of
commitment, mutuality, and respect.
Helminiak understands the other brief references to same-sex sexuality in Pauls writings (1 Cor.
6:9 and 1 Tim. 1:10) to be similar in meaning. The key term, used in both verses, is the Greek
word arsenokoitai. According to Helminiak, Paul uses this term (translated sodomites in the
NRSV) to indicate a type of male/male sexual activity that is wanton, lewd, and irresponsible.
Paul is not meaning to focus on the fact that this activity happens between people of the same sex
so much as on its nature as exploitative and obsessive (85). That is, Paul is concerned about the
harm done to people when they are out of control sexually, not about mutually edifying intimate
relationships.
Martti Nissinen. Homoeroticism in the Biblical World. Minneapolis: Fortress Press, 1998.
Martti Nissinen argues that the Levitical Holiness Code reflects a perspective on sexual activity that
understood regulations in terms of strengthening the identity of society, its integrity and growth.
For the ancient Israelites, social cohesion was linked with strong sex roles and protection of family
relationships. Anything that challenged sex roles or family relationships would have been seen as
a terrible threat to the viability of the Israelite community. Taboos related to sex roles and sexual
expression arose to protect this identity (41-42). The regulations on sexuality, including the
prohibitions of male/male sex, must be understood in light of this quest of community survival.

Nissinen links sex roles with the prohibition of male/male sex. The Code focuses exclusively on
males because it would have been impossible for female/female sex to challenge male domination
(the domination being symbolized by the active, penetrating role males played in sex). What made
male/male sex an abomination was one of the males taking the female role (being penetrated),
thereby transgressing sex boundaries and confusing sex roles (43-44).
The Holiness Code prohibits such sexual activity because of a desire to maintain clearly distinct sex
roles and because of a specific concern about rejecting non-Israelite religious practices. Neither of
these concerns applies to modern-day Christians; hence, the prohibition has no direct application
for us.
In Genesis 19, the story of Sodom is basically a story of inhospitality, not a story of sexual
behavior. The story makes this point by presenting two positive examples of hospitality, Abraham
(18:1-5) and Lot (19:1-3), that contrast with the inhospitality of the Sodomites.
The story of the murdered concubine in Judges 19 parallels the Sodom story in important respects
and reinforces the point that the mobs concern was the expression of dominance and inhospitality,
not same-sex sexual desire (51).
Ninissen calls the relationship David and Jonathan had homosocial (a close friendship between
men that may or may not have erotic expressions, 17). He suggests that their kind of friendship,
based as it as on love and equality, may be more comparable with modern homosexual peoples
experiences of themselves than those texts that explicitly speak of homosexual acts that are
aggressive, violent expressions of domination and subjugation (56).
In addressing Pauls writings, Nissinen states initially that in the Hellenistic world of Pauls day,
same-sex sex was considered against nature for two reasons. First, it did not lead to procreation,
and, second, it signaled a violation of sex roles wherein the male always was active and the
female always passive (88).
Paul himself uses the phrase against nature several times in his letters as a matter of the
common order of things as Paul had learned it. Unnatural or against nature means, for Paul,
something beyond normal experience good or bad. When he uses the term in Romans 1:19-32,
he is not using it as a technical term with specifically Christian content. Against nature here
simply means unusual or not what one would expect (105). Paul does not have the created
order in mind when he uses against nature. He is not alluding to Genesis 13. He is simply
reflecting the Hellenistic sense that these people hes speaking of in Romans one are not practicing
the kind of sex one would expect (106-107).
Pauls central concern in Romans one is not sexuality at all. Paul uses the references to idolatrous
sexual activity in order to raise the ire of his readers and to gain their approval of his condemnation
of what his readers would have seen as typical Gentile sinfulness. Paul does this, though, not in
order to add to the sense of righteousness that his readers may have had in reading these words,

but actually to turn the tables. Pauls use of Romans 1:18-32, as it turns out, is to drive home his
point about the problematic self-righteousness of his readers. Paul, in the end, is challenging his
readers not to be judgmental (111).
The specific meaning of the terms used in 1 Corinthians 6:9 and 1 Timothy 1:10 that are often
translated as referring to same-sex sexuality is actually quite obscure. In both passages, though,
the context makes it clear that both arsenokoites and malakos are examples, along with numerous
other terms used in these verses, of the exploitation of persons. Paul is concerned with the wrong
that people do to others, not with non-harmful intimate relationships (118).
David G. Myers and Letha Dawson Scanzoni. What God Has Joined Together? A Christian
Case for Gay Marriage. HarperSanFrancisco, 2005.
David Myers and Letha Scanzoni address, as their fundamental concern, the issue of marriage
among gay and lesbian Christians. Human beings thrive best in life-giving intimate relationships,
as our most basic human drive is for loving connections with other people (11). Human happiness
tends to be linked with the possibilities of covenanted attachments in marriage partnerships.
Married people tend to be happier than unmarried people (16-17).
Myers and Scanzoni assert that we do not yet know why people end up attracted to others of their
same sex; we do know, though, that for some people this attraction is irreversibly fixed. Hence, to
forbid people with such attraction to enter into possibility of marriage is highly problematic. In
doing so, we may be consigning a significant number to people to lives that will be less fulfilling
and fruitful than they could be. We face, in the authors perspective, a major benefit of the doubt
against so limiting the options of our gay and lesbian brothers and sisters.
So, Myers and Scanzoni ask, do we have clear bases in Scripture for taking a stance that seems, in
face of the life-enhancing possibilities of marriage, to be morally problematic? They do not think
so. The Bible does not use the actual word homosexuality. The few references to same-sex
sexual acts all seem to have in mind other kinds of problems as well e.g., idolatry, violent rape,
lust, exploitation, promiscuity. The Bible seems to have no awareness of our contemporary
understandings of homosexual orientation or the possibility of covenanted same-sex partnerships
(84-85).
In regard to the New Testament, Myers and Scanzoni point to the story in the book of Acts about
how Peter gave up his long-held assumptions and came to a more open view concerning Gentiles.
Peters change of heart stemmed in part from his personal contact with Cornelius and recognition
that Cornelius truly was a person of faith. Peter ultimately stated, I truly understand that God
shows no partiality, but in every nation anyone who fears him and does what is right is acceptable
to him (Acts 10:34-35). This experience of Peters sheds light on how Christians today might
approach issues related to homosexuality. As heterosexual people get to know devout gay and
lesbian people of faith, they may well be forced to reconsider long-held assumptions and
interpretations of Scripture and come to see God as showing no partiality (102-103).

Jesus himself did not directly speak to homosexuality. However, Myers and Scanzoni believe that
Jesus general orientation of compassion and care should mark the churches approach to same-sex
relationships(103-104).
They reject the argument that Jesus established an exclusive norm for heterosexual marriage in his
comments about marriage in Mark 10:6-9. He was responding to a direct question about the
permanence of marriage, not making a philosophical statement about sexual differences and about
the idea that human wholeness requires the merging of two incomplete halves. As did Paul, Jesus
spoke positively about singleness with no hint that single people were not whole human beings
(109).
The notion of innate sexual differences and the need for heterosexual marriage to provide the
context for a needed complementarity that uniquely allows for human wholeness in practice
ends of foster a continued attitude of the dependence of women on men for their completeness.
According to Myers and Scanzoni, such an approach hinders everyones call to be whole persons
who can develop both their active and affective sides (111).
They cite Hosea 2 characterization of the marriage covenant as including justice, fairness, love,
kindness, faithfulness, and a revelation of Gods personhood, asserting that these characteristics
can just as likely be part of a same-sex marriage as a heterosexual marriage (113).
Jack Rogers. Jesus, The Bible, and Homosexuality: Explode the Myths, Heal the
Church. Westminster John Knox, 2006.
Jack Rogers starts with an affirmation that discriminating unjustly against anyone in the church is a
terrible problem (x). He develops the argument that discrimination against gays and lesbians in
the churches is an important example of such unjust discrimination.
Rogers links the present-day movement to secure full inclusion of gay and lesbian Christians in the
churches with earlier movements in which the church, guided by the Holy Spirit in understanding
the Scriptures, came to affirm the full inclusion, including ordination, of African Americans,
women, and divorced and remarried Christians. In each case, he argues, Christians moved from a
more literalistic reading of the Bible to one that centered on the life and teaching of Jesus (15-16).
Following the way of Jesus should empower Christians to show love for all, including especially the
outcasts of society. Rogers believes it is unthinkable that Jesus would turn away people who had
been treated harshly by society, including those whose treatment had pushed them to attempt
suicide. (56-57)
If we read the Bible in light of Jesus compassion toward those labeled as outside of the boundary
lines of pure religion, we will seriously question the applicability of biblical statements that in
their context spoke against same-sex sexual behavior as expressions of idolatry and unbridled lust
to present-day instances of monogamous, covenanted intimate partnerships among Christians
whose lives reflect fruitful relationships with God. That is to say, the plain sense of the anti-gay

texts requires consideration of the contexts of those texts and such consideration will make it
clear how different the biblical contexts are from the present context of 21 st-century North
American churches (58).
According to Rogers, the Bibles condemnation of sexual contact between two men reflects cultural
assumptions that saw such conduct as a confusion of sex roles assumptions totally ignorant of
what we understand today to be the innate sexual orientation of many who are attracted to those
of the their same sex (65). The cultural embeddedness of these assumptions renders them nonnormative for present-day Christian ethical discernment.
The Bibles strongest anti-male/male sexual relationship statements are found in the book of
Leviticus. The cultural context for those statements is the need Israelites felt for strong
cohesiveness as a means of sustaining their identity as a people in relation to the Egyptians and
Canaanites. A key aspect of maintaining this separation was to avoid mixing in any way with
Canaanites and their social and religious practices. This priority on the avoidance of mixing
came to apply to a wide range of behaviors, not having more than one kind of seed in a field and
not having more than one kind of fabric in ones clothing. For two men to have sex would be to
mix sex roles, one taking on the role of a woman, thus crossing a cultural boundary in intolerable
ways (72). Thus, the condemnation of male/male sex in Leviticus applied to a specific cultural
context. It was not a timeless, absolute directive.
Rogers also does not believe that the texts in Pauls writings that are often cited actually support
exclusionary approaches to gays and lesbians in the church. Partly, this view is based on his
understanding of the meaning of the words Paul uses, arsenokoitai andmalakos. He concludes
that arsenokoites is best understood as alluding to economic exploitation, likely related to sexual
activity not as a general condemnation of all same-sex sexual intimacy (73-74). Malakos likely
refers to effeminacy and/or general lack of self-control (74). In both cases, to accurately
understand Pauls meaning, we must think much more in terms of specific cultural contexts and not
general, meant-for-all-time ethical prescriptions (75).
In discussing Romans 1:18-32, Rogers again emphasizes reading the text in its cultural context,
arguing once more that the meaning of the text when read thus does not have direct relevance to
present-day same-sex intimate partnerships. Pauls main concerns here are with idolatry as
expressed in excessive, lustful sexual behavior. When Paul uses the idea of the behavior he is
referring to being unnatural, he is not speaking about homosexuality versus heterosexuality.
Rather, he means to be saying that the excessive, lustful aspects of the behavior are unnatural
(that is, unconventional, out of the ordinary, contrary to social expectations). Hence, his point does
not speak same sex relationships per se (77-78).
Finally, Rogers also rejects the argument that the biblical understanding of creation (male and
female as the exclusive norm for covenanted partnerships) provides a basis for discriminating
against gay and lesbians in the churches. He points out that nowhere in the Bible is creation used
as a supporting motif in the formulation of norms for sexual relations and marriage. Genesis 12

are not about homosexuality or marriage; that passage is not intended to speak to present-day
questions concerning homosexuality (85).
What Are the Key Issues?
My concern in this essay has been simply to summarize diverse theological and biblical
perspectives on the issues related to homosexuality. In conclusion, I will simply identify some of
the key questions that arise from our comparative report.
Applicability of biblical materials
Our two groups seem clearly to differ on how we should apply biblical materials, though not
necessarily on the authority of the Bible per se. One of the basic issues here is how clear do we
understand the Bible to be? Is it possible categorically to equate the biblical teaching with a
certain present-day position? One side seems fairly comfortable with such an equation, the other
seems more to be saying that when studied carefully, the Bible does not yield a clear position.
These latter writers do not dismiss the Bible out of hand but rather come to a different
understanding from what is found in the Bible.
Another issue concerning the applicability of the biblical materials may be framed as a question of
how directly these materials should be applied to the present day. How seriously must we take the
great distance in time, geography, language, and culture between the Bible times and ours? What
are the implications of this distance?
One crucial text where this issue is central is the one direct biblical prohibition of male/male sex,
the Holiness Code in Leviticus. One side understands that, even carefully considering the distance,
the Levitical prohibition does provide us with a clear and directly applicable directive; the other
side tends to understand Leviticus as part of an entirely foreign context that at most
has general relevance for Christians.
Meaning of core references
The handful of biblical texts that speak directly of same-sex sex lend themselves to a variety of
interpretations. A central difference can be seen in responses whether or not these texts are
referring to relationships that are in any relevant way analogous to present-day same-sex intimate
relationships. The differences in relation to this question may be the most substantial in this
controversy certainly at least among the writers I have summarized here.
For progress toward rapprochement in the controversy, focusing some serious energy on this issue
of the extent that legitimate analogies may be drawn between the biblical cases and present-day
cases is crucial. I actually believe that some progress could be made, but that this would require
careful work in constructing criteria for what would constitute legitimate analogies followed by
applying those analogies to the biblical materials.
Differences related to specific texts are also obvious. Four of my restrictive writers do not draw
upon the Sodom story in Genesis 19 as central to their arguments, though certainly others do,
including Robert Gagnon.[iii] The inclusive writers all reject such an application.

The three texts whose interpretations are the most conflicted are Leviticus 1820, Romans 1, and 1
Corinthians 6. Is Leviticus reflecting an underlying, universal, creation-based principle as the basis
for the prohibition of male/male sex, or is it reflecting instead time-bound contextual concerns that
no longer are directly relevant for Christians? Is Romans one relevant to all same-sex relationships
or only same-sex sex that is practiced by people who are heterosexual in orientation? Does the
critique of the sex in Romans one as against nature rest on an understanding of a God-ordained
created order in which male/female sex is the exclusive norm or does it rest on a more practical
view that this is sexual activity that is unexpected? How certain may we be about the meaning
of the Greek terms in I Corinthians 6:9 that have in recent years been translated in English as
homosexuals and similar terms? Are these terms referring to same-sex sex per se or rather to
exploitation and moral laxity?
Creation and marriage
The restrictive writers understand the creation account of Genesis 12 and its later use by Jesus
as crucial to establishing the exclusive normativeness of male/female marital sex. People on the
other side reject that interpretation and application.
What is the significance of human beings being portrayed and male and female? Is this simply a
descriptive statement centered on saying that we come from procreative sex without the
implication that such sex is the only morally legitimate type? Or is it more a normative statement
meant to establish that male/female marital sex is all that God endorses?
How should we apply Jesus use of the creation story in a passage such as Matthew 19? Is he
echoing a normative portrayal of the only appropriate type of sexual intimacy? Or is he merely
focusing on male and female relations because that was specific concern he was addressing in
speaking on divorce?
Even if one understands the Bible to affirm the centrality of male/female marriage to human
community lived before God, does it follow that same-sex intimate relationships must be rejected
as morally inappropriate? Does seeing male/female marriage as the norm mean that any
alternative to that is a threat to the norm? Or are these actually two separate issues, with a small
minority of Christians living in same-sex intimate relationships no more a threat to male/female
marriage and procreation than are singleness and childless male/female marriages?
Sin and purity
The basic question under the rubric of sin is how one interprets the basic biblical moral thrust.
Are the sins that Christians should be most concerned about threats to the purity of the community
and direct violations of biblical law codes? Or is the sin problem understood to be centered on
mistreatment of marginalized and vulnerable people? That is, should the church be focused on the
sin of the alleged misbehavior of homosexual people or should the church be focused on the
sin of the alleged misbehavior toward homosexual people?
Concluding thoughts

To the extent that the controversy over sexuality lends itself to rational resolution, we would do
well to devote more energy to trying to find common ground in relation to biblical interpretation. I
do not believe the differences are so much based on different understandings of biblical authority
as they are simply on different people finding different meanings in the texts. Hence, in theory we
should be able to progress toward some common ground.

To do so, we need to take each others good faith attempts to grapple with the Bible seriously.
Perhaps our biggest challenge is to make the effort to understand one another before launching
into our critique. Rather than treating this controversy as an argument to win or lose, we would do
much better to think more in terms of a puzzle to solve and that we all have a contribution to
make to such a solution. No one is benefiting from the acrimony of the current impasses in which

Debating Homosexuality
Understanding Two Views
the churches find themselves.

By Peter Sprigg Senior Fellow for Policy Studies

The "gay identity" paradigm includes the belief that being gay is an innate characteristic which cannot change. Yet the
empirical case for the "gay identity" paradigm is weak-science has not found that homosexuality is determined by
biological or genetic factors, and there is an abundance of evidence that sexual orientation can change.
Of the three aspects of "sexual orientation"-attractions, conduct, and self-identification-social conservatives view
homosexual conduct as the most important, and thus operate from a "homosexual conduct" paradigm. We
believehomosexual conduct is harmful, and therefore oppose demands that homosexual
conduct and relationships be protected, affirmed, and celebrated. The harms associated with homosexuality include
serious physical and mental health problems.
Pro-homosexual activists have begun to demand that no debate on the issue of homosexuality be permitted. Yet there
are legitimate grounds for debate on the origin, nature, and consequences of homosexuality. That debate should
continue, with a respect for honest research and for freedom of thought, speech, and religion.

.
Here are four ways many American Christians are getting this whole thing wrong.
1. Equating being gay with having sex.
If an unmarried person tells you theyre straight, would you assume that theyre
having sex? Probably not. Most straight adults are having sex, but not all of them are.
The same is true for gay adults. In his coming out article, Jason doesnt say anything
about his sexual beliefs or practices; he says only that hes single. Why, then, does
this suddenly become a debate about the morality of gay sex, with comparisons to
sexual behaviors like fornication and adultery?

I grew up in a Southern Baptist church with strict beliefs that people shouldnt have
sex outside of marriage. When I finally, tearfully admitted (after years of trying to
avoid it) that I was attracted to guys instead of girls, I found myself on the receiving
end of lecture after lecture about how being gay was a sin just like adultery or
premarital sex. But I wasnt having any kind of sex at all. Being gay isnt like adultery
or premarital sex, because being gay isnt a sex act. Even if I never have sex, Im still
gay.
2. Using that (assumed) sex act to define us as people.
Its one thing to believe gay sex is sinful, but its quite another to define gay people
and our lives by that one act. This is where that devious word lifestyle creeps in.
(Ive written in the past about why I hate that word.) Even if Jason Collins is having
sex, that doesnt mean hes living a particular kind of lifestyle. Do all sexually active
straight people live the same lifestyle? Was Billy Grahams lifestyle the same as
Howard Sterns?
Typically, the phrase gay lifestyle is just a euphemism for having gay sex. But by
using the word lifestyle, you end up defining gay peoples lives entirely in terms of
that sex. Notice how Broussard stumbled when he tried to apply the same
terminology to his other examples: I dont believe that you can live an openly
homosexual lifestyle or an openly like premarital sex between heterosexuals. Its
as if he started to say an openly premarital sex lifestyle and then realized that
made no sense. Because if two straight people have sex before marriage, Christians
might call that sinful, but no one would refer to that as their premarital sex lifestyle.
We view it as one particular act, not a definition of the entirety of their lives.
3. Treating gay people as symbols of a culture war instead of as human beings.
Jason Collins is a person. By his own admission, hes been through a lot of struggles
in figuring out who he is and whether to talk about it publicly. But it often feels that
when someone like this comes out, many people view them as just a symbol for us to
celebrate or bemoan, so that we all must rush to express approval or disapproval.
I wish, instead, that Christians first reaction to news like this were to want to
understand, to ask questions like Why would a Christian in a decidedly anti-gay field
feel the need to publicly identify himself as gay? What brought him to this point?
What obstacles did he overcome? What has his experience been like? These are
the questions of a compassionate person, one who is willing to put the other persons
humanity first. Unfortunately, it often seems that when you come out, you cease to
be someones friend and become only a representation of an issue.

4. Assuming that being gay is a choice.

Whom you date, marry or have sex with is a choice. Whom you are attracted to isnt.
Being gay only refers to whom Im attracted. Its not something I chose, and its
something many of us were, frankly, afraid of when we first realized it about
ourselves.
Perhaps if more Christians understood this, they wouldnt say things like
thecommenter who wrote that living as an open homosexual is open rebellion to
God. Think about that for a moment. If living as an open homosexual is rebellion
against God, what choices do I have? Im already gay; I cant change that. I could
choose to lie and not to be open about it, but I dont believe in dishonesty. Other
than that, the only way I could avoid living as an open homosexual would be to stop
living. I dont have to tell you where that kind of thinking leads.
Is that what the commenter intended? Of course not. But thats how the message
comes across, day after day, to gay people across the country and around the world.
Let me be clear: I think everyone has a right to their moral views, even when they
disagree with mine. But this isnt just about a moral disagreement; its about how we
treat one another and how we talk about one another.
If we Christians cant show more love and willingness to listen, it wont change one
person from gay to straight, but it will turn a lot of people against Christianity.
Chapter XVI, Section 377 of the Indian Penal Code dating back to 1860,[1] introduced during the British rule of India,
criminalises sexual activities "against the order of nature", arguably including homosexual acts.
The section was decriminalized with respect to sex between consenting adults by the High Court of Delhi on 2 July
2009. That judgement was overturned by the Supreme Court of India on 12 December 2013, with the Court holding that
amending or repealing Section 377 should be a matter left to Parliament, not the judiciary.
On 2 February 2016, the final hearing of the curative petition submitted by the Naz Foundation and others came for
hearing in the Supreme Court. The three-member bench headed by the Chief Justice of India T. S. Thakur said that all
the 8 curative petitions submitted will be reviewed afresh by a five-member constitutional bench. [2]

Text.
377. Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman
or animal shall be punished with imprisonment for life, or with imprisonment of either description for term which may
extend to ten years, and shall also be liable to fine.
Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this
section.[3][4]

The ambit of Section 377, extends to any sexual union involving penile insertion. Thus, even consensual sexual acts
such as fellatio and anal penetration may be punishable under this law.

Public perception

Support
In 2008 Additional Solicitor General PP Malhotra said:
Homosexuality is a social vice and the state has the power to contain it. [Decriminalising homosexuality] may create [a]
breach of peace. If it is allowed then [the] evil of AIDS and HIV would further spread and harm the people. It would lead
to a big health hazard and degrade moral values of society." A view similarly shared by theHome Ministry.[5]
The 11 December 2013 judgement of the Supreme Court, upholding Section 377 was met with support from religious
leaders. The Daily News and Analysis called it "the univocal unity of religious leaders in expressing their homophobic
attitude. Usually divisive and almost always seen tearing down each others religious beliefs, leaders across sections
came forward in decrying homosexuality and expressing their solidarity with the judgment." [6]
The article added that Baba Ramdev, India's well-known yoga guru, after praying that journalists not "turn homosexual",
stated he could cure homosexuality through yoga and called it "a bad addiction. The Vishwa Hindu Parishad's vicepresident Om Prakash Singhal said, This is a right decision, we welcome it. Homosexuality is against Indian culture,
against nature and against science. We are regressing, going back to when we were almost like animals. The SC had
protected our culture. The article states that Singhal further went to dismiss HIV/AIDS concerns within the LGBT
community as, It is understood that when you try to suppress one anomaly, there will be a break-out of a few more.
(Traditionally, Indian culture, or at least Hinduism, has been more ambivalent about homosexuality than Singhal
suggests.)
Maulana Madni of the Jamiat Ulema echoes this in the article, stating that Homosexuality is a crime according to
scriptures and is unnatural. People cannot consider themselves to be exclusive of a society... In a society, a family is
made up of a man and a woman, not a woman and a woman, or a man and a man. Rabbi Ezekiel Issac Malekar,
honorary secretary of the Judah Hyam Synagogue, in upholding the judgment was also quoted as saying In Judaism,
our scriptures do not permit homosexuality." Reverend Paul Swarup of the Cathedral Church of the Redemption in Delhi
in stating his views on what he believes to be the unnaturalness of homosexuality, stated Spiritually, human sexual
relations are identified as those shared by a man and a woman. The Supreme Courts view is an endorsement of our
scriptures.

Opposition and criticism[edit]

Convictions are extremely rare, and in the last twenty years there have been no convictions for homosexual relations in
India. However, Human Rights Watch argues that the law has been used to harass HIV/AIDS prevention efforts, as well
as sex workers, homosexuals, and other groups at risk of the disease,[7] even though those found guilty of extortion in
relation to accusations that relate to Section 377 may face a life sentence under a special provision of Section 389 of
the IPC.[8] The People's Union for Civil Liberties has published two reports of the rights violations faced by sexual
minorities[9] and, in particular, transsexuals in India.[10]

In 2006 it came under criticism from 100 Indian literary figures, [11] most prominently Vikram Seth. The law subsequently
came in for criticism from several ministers, most prominently Anbumani Ramadoss[12] and Oscar Fernandes.[13] In 2008,
a judge of the Bombay High Court also called for the scrapping of the law.[14]

Legal battle[edit]

The judgement of the High Court of Delhi of 2 July 2009 declared portions of section 377 unconstitutional w.r.t consensual sex among
adults

Main article: Naz Foundation v. Govt. of NCT of Delhi

The movement to repeal Section 377 was initiated by AIDS Bhedbhav Virodhi Andolan in 1991. Their historic
publication Less than Gay: A Citizen's Report, spelled out the problems with 377 and asked for its repeal. A 1996 article
in Economic and Political Weekly by Vimal Balasubrahmanyan titled 'Gay Rights In India' chronicles this early history. As
the case prolonged over the years, it was revived in the next decade, led by the Naz Foundation (India) Trust, an activist
group, which filed a public interest litigation in the Delhi High Court in 2001, seeking legalisation of homosexual
intercourse between consenting adults.[15] The Naz Foundation worked with a legal team from the Lawyers Collectiveto
engage in court.[16] In 2003, the Delhi High Court refused to consider a petition regarding the legality of the law, saying
that the petitioners, had no locus standi in the matter. Since nobody had been prosecuted in the recent past under this
section it seemed unlikely that the section would be struck down as illegal by the Delhi High Court in the absence of a
petitioner with standing. Naz Foundation appealed to the Supreme Court against the decision of the High Court to
dismiss the petition on technical grounds. The Supreme Court decided that Naz Foundation had the standing to file a
PIL in this case and sent the case back to the Delhi High Court to reconsider it on merit. [17] Subsequently, there was a
significant intervention in the case by a Delhi-based coalition of LGBT, women's and human rights activists called
'Voices Against 377', which supported the demand to 'read down' section 377 to exclude adult consensual sex from
within its purview.[18] The Indian author Rajesh Talwar wrote a satirical play on Section 377 titled 'Inside Gayland' where a
young lawyer visits a planet where homosexuality is the norm and heterosexuality is criminalised. [19]
In May 2008, the case came up for hearing in the Delhi High Court, but the Government was undecided on its position,
with The Ministry of Home Affairs maintaining a contradictory position to that of The Ministry of Health on the issue of
enforcement of Section 377 with respect to homosexuality.[20] On 7 November 2008, the seven-year-old petition finished
hearings. The Indian Health Ministry supported this petition, while the Home Ministry opposed such a move. [21] On 12
June 2009, India's new law minister Veerappa Moily agreed that Section 377 might be outdated. [22]
Eventually, in a historic judgement delivered on 2 Jul 2009, Delhi High Court overturned the 150-year-old section,
[23]

legalising consensual homosexual activities between adults.[24] The essence of the section goes against the

fundamental right of human citizens, stated the high court while striking it down. In a 105-page judgement, a bench of
Chief Justice Ajit Prakash Shah and Justice S Muralidhar said that if not amended, section 377 of the IPC would violate
Article 14 of the Indian constitution, which states that every citizen has equal opportunity of life and is equal before law.
The two judge bench went on to hold that:

If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitut

Where society can display inclusiveness and understanding, such persons can be assured of a l

The court stated that the judgement would hold until Parliament chose to amend the law. However, the judgement keeps
intact the provisions of Section 377 insofar as it applies to non-consensual non-vaginal intercourse and intercourse with
minors.[23]
A batch of appeals were filed with the Supreme Court, challenging the Delhi High Court judgment. On 27 March 2012,
the Supreme Court reserved verdict on these.[26] After initially opposing the judgment, the Attorney General G. E.
Vahanvati decided not to file any appeal against the Delhi High Court's verdict, stating, "insofar as [Section 377 of the
Indian Penal Code] criminalises consensual sexual acts of adults in private [before it was struck down by the High
Court] was imposed upon Indian society due to the moral views of the British rulers." [26]

2013 Judgement

The judgement of theSupreme Court of India of 11 December 2013 did not find enough reason for portions of section 377 to be declared
unconstitutional and overturned the Delhi High Court judgement

On 11 December 2013, the Supreme Court of India set aside the 2009 judgement given by the Delhi High Court stating
that judicial intervention was not required in this issue. This in effect recriminalized sexual intercourse "against the order
of nature". In its judgment the Supreme court bench of justices G. S. Singhvi and S. J. Mukhopadhaya stated
"In view of the above discussion, we hold that Section 377 IPC does not suffer from the vice of unconstitutionality and
the declaration made by the Division Bench of the High court is legally unsustainable." [27]
The full decision can be found here.
The bench of justices G. S. Singhvi and S. J. Mukhopadhaya however noted that the Parliaments should debate and
decide on the matter. A bench of justices upheld the constitutional validity of Section 377 of Indian Penal Code that
makes anal sex a punishable offense.[28] The central government has filed a review petition on 21 December 2013. In its
review petition the Centre said: The judgment suffers from errors apparent on the face of the record, and is contrary to
well-established principles of law laid down by the apex Court enunciating the width and ambit of Fundamental Rights
under Articles 14, 15 and 21 of the Constitution. The IPC, when enacted in 1860, was justified; but with the passage of
time it had become arbitrary and unreasonable, the petition added. [29] Naz Foundation has also filed a review petition
against the Supreme Court order on Section 377.[30] On January 28, 2014 Supreme Court dismissed the review Petition
filed by Central Government, NGO Naz Foundation and several others, against its December 11 verdict on Section 377
of IPC.[31][32]

Responses
Days later and influenced by the Devyani Khobragade incident, former Finance Minister Yashwant Sinha called for the
arrest of same-sex companions of US diplomats, citing the Supreme Court of India's recent upholding of Section 377 of
the Indian Penal Code.[33][34] The recriminalization of gay sex comes under fire from World leaders. The United Nations
human rights chief Navi Pillay[35] voiced her disappointment at the re-criminalization of consensual same-sex
relationships in India, calling it a significant step backwards for the country.In the wake of Indian Supreme Court's
ruling that gay sex is illegal, UN chief Ban Ki-moon[36] stressed on the need for equality and opposed any discrimination
against lesbians, gays and bisexuals.[37]

Soon after the judgement, Sonia Gandhi, President of the then ruling Congress party, asked Parliament to do away with
section 377. Her son and Congress Party vice-President,Rahul Gandhi also wanted section-377 to go and supported
gay rights.[38] In July 2014, Minister of State for Home Kiren Rijiju in the BJP led Central government told the Lok Sabha
in a written reply that a decision regarding Section 377 of IPC can be taken only after pronouncement of judgement by
the Supreme Court.[39] However, on 13 January 2015, BJP spokesperson Shaina NC, appearing on NDTV, stated, "We
[BJP] are for decriminalizing homosexuality. That is the progressive way forward." [40]

Protest on social media

Actor Imran Khan took action in order to disabuse homophobic people from their mistaken notions of homosexuality in a
satire video.[41] Many Mumbai film industry personalities such as Aamir Khan, Celina Jaitley, Twinkle Khanna, John
Abraham, Karan Johar, Farhan Akhtar, Riteish Deshmukh,[42] Shruti Haasan, Sonam Kapoor, Anushka Sharma,Amitabh
Bachchan,[43] commented against the ruling. Many other well known persons, including Nobel Laureate Amartya Sen,
and writer Vikram Seth, protested against the supreme court ruling.[44]
In 2013, Delhi-based author Akhil Katyal published a poem "Girl, when you" satirizing Section 377 and how it implicates
heterosexual acts as well.[45]

The Wrong Burrow, a short story satirizing the judgment of the Supreme Court, was published in the January 2015
edition of an Indian e-zine, Spark.[47]
In September 2015, first time author Manish Jani launched a fiction book titled 377 that revolves around four youngsters
finding themselves in a unique situation where they are compelled to raise their voices against Section 377 of Indian
Penal Code.[48]

2016 judgement
On 2 February 2016, the final hearing of the curative petition submitted by the Naz Foundation and others came for
hearing in the Supreme Court. The three-member bench headed by the Chief Justice of India T. S. Thakur said that all
the 8 curative petitions submitted will be reviewed afresh by a five-member constitutional bench. [2]

Legislative action
On 18 December 2015, Lok Sabha member Shashi Tharoor of the Indian National Congress, whose leaders Sonia
Gandhi and Rahul Gandhi had earlier expressed support for LGBT Rights[49] , introduced a private member's bill to
replace Section 377 in the Indian Penal Code and decriminalize consensual same-sex relations. The bill was defeated
in first reading, 71-24.[50] On his part, Tharoor expressed surprise at the bills rejection at this early stage. He said that he
did not have time to rally support and that he will attempt to reintroduce the bill. [51]
On March 11 2016, Shashi Tharoor tried to reintroduce the private member's bill to decriminalize homosexuality but it
was voted down for the second time.

[52]

While talking about legitimating same sex marriage, I am reminded of a story of a washer man and his donkey. The donkey
refused to move with the heavy bundle of clothes on his back from his house to the pond. The washer man nailed a carrot to a
stick, which was tied in front of the animal's mouth. The donkey kept on moving with a view to cat the priced vegetable - the ass
goes on and the carrot is un-reached. In the field of jurisprudence this shows how some laws the proverbial ass, pursue,
perpetually, the carrot of the moral ideal. Is it not time we woke up to the reality, that homosexuals are as normal as you and
me. According to some study, about at least 5-10% of population is gay. You can calculate and see what the figure is for India.
Even if it is not that high a figure, we know that it is a quite common phenomenon. Its not good in the Indian society but its is a
psychological phenomenon, you can not help it. An increasing number of gay groups through out the country and serious
thinking among them is seen in India in the last few years. Whether same sex marriage should be legalized is more of a
religious debate then a political one. While I believe that marriage is a sacred union between man and woman, I also believe
that our country was founded on the principle that everybody has the right to the pursuit of happiness. And if a man marrying a
man or a woman marrying a woman makes them happy then I think it's okay. I do not believe it affects anyone negatively.
History:
Homosexuality has an ancient history in India. Ancient texts like Rig-Veda which dates back around 1500 BC and sculptures
and vestiges depict sexual acts between women as revelations of a feminine world where sexuality was based on pleasure and
fertility . The description of homosexual acts in the Kamasutra, the Harems of young boys kept by Muslim Nawabs and Hindu
Aristocrats, male homosexuality in the Medieval Muslim history, evidences of sodomy in the Tantric rituals are some historical
evidences of same-sex relationships.
However, these experiences started losing their significance with the advent of Vedic Brahmanism and, later on, of British
Colonialism. Giti claims that Aryan invasion dating to 1500 B.C began to suppress homosexuality through the emerging
dominance of patriarchy . In the Manusmriti there are references to punishments like loss of caste, heavy monetary fines and
strokes of the whip for gay and lesbian behavior. In the case of married women, it is mentioned that 'luring of maids' is to be
punished by shaving the women bald, cutting of two fingers and then parading her on a donkey. Manu's specifications of more
severe punishments for married women can suggest either a wide prevalence of such relationships among married women or a
greater acceptance of these practices among unmarried women. In either cases, these references point to the tensions in the
norms of compulsory heterosexuality prescribed by Brahmanical0 partite. Both sexual systems coexisted, despite fluctuations
in relative repression and freedom, until British Colonialism when the destruction of images of homosexual expression and
sexual expression in general became more systematic and blatant.
The homophobic and Victorian puritanical values regarded the display of explicit sexual images as 'pornographic and evil'. The
Western view, since the time of Colonial expansion, has been strongly influenced by reproductive assumption about sexuality.
These puritanical values and attitudes were in turn mapped into the interpretation of sexual activity among colonial people
which is evident from the responses to all forms of 'unnatural' sexual practices. The Indian psyche accepted the Western 'moral
and psychological' idea of sexuality being 'pathological' rather than the natural expression of desire, which once used to be part
of Indian culture.
The last century witnessed major changes in the conception of homosexuality. Since 1974, homosexuality ceased to be
considered an abnormal behaviour and was removed from the classification of mental disorder. It was also de-criminalized in
different countries. Since then various states across the globe enacted anti-discriminatory or equal opportunity laws and
policies to protect the rights of gays and lesbians. In 1994, South Africa became the first nation to constitutionally safeguard the
rights of lesbians and gays. Canada, France, Luxembourg, Holland, Slovenia, Spain, Norway, Denmark, Sweden and New
Zealand also have similar laws. In 1996, the US Supreme Court ordered that no state could pass legislation that discriminated
against homosexuals. In India, so far no such progressive changes have taken place and the homosexuals remain victims of
violence in different forms
supported by the state and society.
The issue of homosexual conduct has come to this fore in recent legal and political debates for three main reasons:
(I). Liberalization of the law (in the U.K., by the Sexual Offences Act 1967 as amended in 2000 and some other countries by a

similar legislation) has brought with it a change in social attitudes, so that the stigma attached to the homosexuality has to a
greater extent disappeared.
(II). Campaigns for lesbian and gay rights especially in the U.S. have taken on an increasingly radical character, arguing for an
end to all forms of discrimination against homosexuality, and even for the legalization of same sex marriages.
(III). The outbreak of HIV/AIDS which has been spread in western countries to a great extent by homosexual activity between
males, has led to accusations and counter-accusations, often of a bitter kind. Spain, Belgium and the Netherlands, as well as
Canada in allowing same-sex marriages. Same-sex acts are punishable by death in nine countries around the world.
Arguments by those who don't want it to be legalized:
This is more of a religious debate then a political one. Large number of people specially in India are opposing it, as they say it is
unnatural, uncouth and immoral. Prime Minister Mr. Manmohan Singh on asking what did he think about the Canadian law of
homosexual marriages he replied it is not appreciated. Those people who are opposing it their arguments are based on
religious and natural law belief. Some people don't consider them as natural because they do not produce kids. Is it sacred if
gay marriage is allowed God created Adam and Eve, we never find statements in Genesis about Adam and Steve. Why break
God's law by allowing gay marriage If nature wanted same-sex people to live together, there would only be one sex rather than
different sexes. Our society is based on opposite sex marriage. If gay marriage is OK, then why can't I marry my cousin, or my
sister, or my cat. Don't I have the same rights as gays or are they now above the rest of us. Don't forget that the law is specific
on this. It was created to keep the fabric of society together. It goes against the laws of the land that have been used for
hundreds of years and were based on the basis of the commandments.
How Law Deals With It In India:
There is no explicit mention of homosexuality or hemophilia in any of the statute books of India. A person cannot be prosecuted
for being a homosexual or hemophilic. But the sexual act of sodomy is a criminal offence. The major provisions of
criminalisation of same-sex acts if found in the Section 377 of the Indian Penal Code (IPC) of 1860.
Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with
imprisonment of either description for a term which may extend to ten years and should also be liable to fine.
The offence of homosexuality is read under this section as an Unnatural Offence. The term Carnal Intercourse used in this
section refers to sexual intercourse between men or in other words, homosexual relationships. Section 377 of the Indian Penal
Code, was enacted by the British in 1860.
The Indian law against homosexuality seems to be too harsh. The Constitutional validity of section-377 of IPC was challenged
in the Delhi High Court as being violative of fundamental rights guaranteed under the Indian Constitution. Here it may be noted
that, in practically all crimes against human body listed under the Indian Penal Code, some sort of physical violence or coercion
is an essential element of crime. The only exception is in the favour of section-377, which criminalizes sexual activity that
leaves no victims. In the history of the statute from, 1860 in 1992 there was only 30 cases in the High Courts and Supreme
Court . " The small number of cases filed under this section shows that this section is redundant and outdated and needs to be
repealed.
The Central Government has informed the Delhi High Court that homosexuality cannot be legalized in India as the Indian
society is intolerant to the practice of homosexuality/lesbianism. To paraphrase, three things can be said about the
government's stance:
[a] the state has not just a function to, but actually a duty to stop unnatural sex, or else the social order would break down, law
loose its legitimacy et al;
[b] that our society does not tolerate homosexuality, and notwithstanding the universality of human rights or the universal
applicability of our fundamental rights and freedoms, its criminalization is therefore justified; and
[c] that it is really not our thing, its something that happens out there in the west, we do not have to copy that. In other words
the three pillars of the classic culture arguments to criminalize the likes of us.
Why Should Be Legalized:
Arguments in favour of Decriminalizing Homosexuality: Gay and lesbian rights activists from various parts of the countries were
protesting for their rights and for decriminalizing the homosexual conduct. There is a big debate in our country too- whether it
should be legalized or not. I am giving some of the arguments in favour of decriminalizing it, specifically in Indian context- in
view of Section-377 of the Indian Penal Code.

(1) It violates right to liberty guaranteed under Article-21 of the Indian

Constitution
which covers private consensual sexual relations. The fundamental right to liberty (under Article-21) prohibits the state from
interfering with the private personal activities of the individual. The concept of privacy is so broad that no comprehensive and all
encompassing definition of the term can be given. In the case National Coalition for Gay and Lesbian equality V. Ministry of
Justice , the South African court held that, Privacy recognizes that we all have a right to a sphere of private intimacy and
autonomy which allows us to establish and nurture human relationships without interference from the outside community. Even
at the international level, the right to privacy has been recognized in the favour of lesbians and gay man.

(2) Criminalization of homosexual conduct is unreasonable and arbitrary:

Infringement of, the right to equal protection before law requires the determination of whether there is a rational and objective
basis to the classification introduced. There should be a just and reasonable nexus between the classification and the object
sought to be achieved by the legislation. Section-377 of IPC, its legislative objective is to criminalize all the sexual activities

which are against the order of nature, thus punishing the unnatural sex. Section-377 assumes that natural sexual act is that
which is performed for procreation. Hence, it thereby labels all forms of non-procreative sexual act as unnatural. This gives a
very narrow view to the distinction between the procreative and non-procreative sexual act. Hence, the legislative intent of
creating a public code of sexual morality has no rational nexus with the classification created. Further the very object of the
section is vague, unreasonable, arbitrary and based up on the stereotyped notion that sex is only for procreation. Now if this
presumption is accepted is correct then, what justifies the policies of family planning and the use of the contraceptive devices

(3) Section-377 discriminates on the basis of sexual orientation:

forbidden under Article-15 of the Constitution. Article-15 prohibits discrimination on several grounds, which includes Sex. By
prohibiting discrimination on the basis of sex, article-15 establishes that there is no standard behavioral pattern attached to the
gender. The prohibition on non-procreative sexual acts imposed by section-377 prescribes traditional sexual relations upon men
and women. In so doing the provision discriminates against the homosexuals on the basis of their sexuality and therefore
constitutes discrimination on the basis of sexual orientation.
(4). Section-377 violates the enjoyment of civil laws and gay men and lesbians and leads to other adverse
effects: Section-292 of IPC punishes Obscenity; the current definition of obscenity can lead it to incriminate the gay and
lesbian writings. As male homosexuality is a criminal offence, the presumption is that it is something depraved and can corrupt
the minds and bodies of the persons. In the prevailing atmosphere any writing about the lesbians and the gay men can be
criminalized, as homosexuality is treated as something immoral or depraved. The workman's Compensation Act, 1923provides that in case of death caused by injury at the work place, the dependents of the employee are entitled to receive the
compensation from the employer, the dependents will include a widow, minor legitimate son, unmarried daughter, widowed
mother and an infirm son or daughter.
Thus a gay or a lesbian couple cannot claim the benefits under this section. This is not an isolated example and there are other
such Acts that are discriminatory towards homosexuals. The Provident Fund Scheme, 1952 and the Payment Of Gratuity Act,
1972 define family in such away that a lesbian or gay couple. I end this issue with a quote ?There are several sections in the
Indian Penal Code which are anachronistic in a changed world. Section 377 is a prime example. As a matter of fact, Section
377 as it stands, would have made what Clinton did to Monica Lewinsky or rather what Monica Lewinsky provided to Clinton,
an offence. I am being discreet, because after all, some things can only be dealt with orally and cannot be put down on paper!
The crucial words are "against the order of nature." The possibilities are immense and the imagination can well run riot.
Perhaps the way out is now to argue that nature and its various orders have themselves changed.
Why There Is Need For Legal Recognition:
A recent study of sexual practices in rural India by the United Nations Population Fund (UNFPA) found that `male-to-male sex is
not uncommon. In fact a higher percentage of men in the study reported having male-to-male sex than sex with sex workers.
This was true of both married as well as unmarried men. Close to 10 per cent unmarried men and 3 per cent married men
reported having had sexual intercourse with other men in the past 12 months." The survey covered 50 villages in five districts of
five states with feedback on sexual practices from close to 3,000 respondents and in- depth interviews on intimate habits from
250 people. The data is indicative of a reality the government is either unable or unwilling to see.
Love is love. The real threat to marriage is the alarmingly high divorce rate. Marriage is also a legal joining of two individuals.
People who are not religious choose to get married in a registry office and not in church. Marriage shows the strongest
commitment you can make to one another. Gay men and lesbians are just as human and have the same needs and desires as
heterosexual human beings. I fail to see what God has to do with this Marriage in this instance is not religious, but a legal
joining. Getting married is the ultimate way of showing your love and commitment to your partner, so why should gay people be
deprived of this right. Who are we to sit and judge anyway. Same sex marriages should be legalized. If people find gay
relationships contrary to their religion, it is up to them to refrain. Those who do not share their religious opinions should be free
to make their own choice on this as on other issues. Gay men and lesbians are just as human and have the same needs and
desires as heterosexual human beings.
The argument that same sex marriages should not be made legal "because they do not produce kids" is ridiculous. Should
heterosexual couples over 50 not be allowed to marry as they cannot produce kids either? If two people love each other and
want to unite their destinies, then it is a beautiful thing which should be celebrated. Whether it is called "marriage" or "life pact"
does not matter. Same-sex unions harm no one; one's support or opposition to this is a matter of personal belief and morality,
with which the government has no business to interfere.

The universality of Human rights demands that prevailing and dominant cultural and social norms cannot be invoked in a
manner as to circumvent or restrain fundamental and constitutional rights. If we were to accept the government's arguments in
the Delhi high court case, then many of the progressive legislations in my country would never have been enacted. For
example, even today there are many men who think that tradition gives them a right to beat up their wives, or that they deserve
to get a very fat dowry just because they were born with a penis. If we give in to these cultural beliefs, then there is nothing to
turn round the legislations that we have made to stop violence against women or dowry and dowry related deaths.
Conclusion
On the basis of the whole discussion on the aspect of same sex marriage that is Should it be legalized or not. This is more of a
religious debate then a political one. In which I have given my arguments in favour of decriminalizing it, I finally conclude by
saying that homosexuality is not an offence, it is just a way of pursuit of happiness, a way to achieve sexual happiness or
desire. I can see absolutely no reason, apart from blind prejudice, which prevents two gay people going through a civil
ceremony which will give them the rights and securities which heterosexual couples enjoy. Marriage is a sign of commitment
and love. If two men or two women want to show that commitment, how does that destroy or damage the ideals of marriage. In
my view, it clearly demonstrates it. Aren't we living in an age which respects the individual's right to choose Isn't India supposed
to be the land of the free In our society people have branded homosexuals as queer. Yet homosexuality is not new nor is it
against the Indian culture, it has always existed and with much lesser prosecution, that under Section-377 of the IPC, which is
based on British Offences against the Persons Act.
What should be the right approach to deal with same sex marriages, the issues are quite vast and complex. However, the
desirability and feasibility of such an approach remain to be ascertained. In any event there is a growing conviction that our
present method of criminalizing the same sex sexual activity neither helps the homosexuals nor protects the society in general.
We thus need to legitimate same sex marriages in order to move forward in the direction of human rights.

POLITICS

In a historic judgment delivered on June 26, 2015, the US Supreme Court ruled in
favour of making the United States of America the 23rd country that allowed samesex marriages. In India, a few years back, the Delhi High Court had struck down the
150-year-old Section 377 of the Indian Penal Code, thus legalising consensual
homosexual activities between adults. However, to the dismay of many, the Indian
Supreme Court, which has had a distinguished record in recent times of ensuring
fundamental rights and liberty are not taken away by the state, overturned the Delhi
HC decision. While the matter is expected to come up for hearing once again before
the Supreme Court, the issue of "gay rights" seems to have divided the nation.
Those opposing the decriminalisation of same-sex relationships among consenting
adults include a number of "conservative Indians" led by various religious heads who
call this sexual choice "unnatural". One of the most vocal opponents of the gay
movement is Baba Ramdev, a friend and supporter of Prime Minister Narendra
Modi, who has an opinion on every issue, from calling actresses promiscuous, to
saying homosexuality is a disease that can be cured. Unfortunately for those with
different sexual choices, this issue seems to unite priests, babas and maulanas from

different faiths, who never seem to agree on anything except this one topic. And one
often finds them in television studios, giving sound bites on how homosexuality is
against the "great Indian culture".
Indian mythology has several stories of alternate sexual choices or even of men
turning into women or vice-versa. Shiva bathes in the Yamuna and becomes a gopi so
that he can participate in raas-leela with Krishna. Another tale is that of Aravan, the
son of Arjuna and Ulupi, who had to be sacrificed to ensure the Pandavas' victory in
the war. However, Aravan did not want to die unmarried. As no woman wanted to
marry a man who would die the next day, Krishna took his female form, Mohini,
became Aravan's wife, spent the night with him and then mourned for him next
morning - as his widow - when he was killed.
Mohini, the female avatar of Lord Vishnu, is worshipped throughout Indian culture.
Amongst her other stories in the Puranas is how Shiva and his wife Parvati
visit Vishnu's home, where Shiva asks Vishnu to take on the Mohini form so he can
see the actual transformation for himself. Vishnu smiles and takes the form of the
gorgeous Mohini. Overcome by lust, Shiva chases Mohini as Parvati hangs her head
in envy. From their coupling is born the god Maha-Sastha. Then there is another
story of Vishnu who takes the form of Mohini to save Shiva's life from a demon that
was chasing him. Mohini enchanted the demon Bhasmasura and made him touch his
own head, thus reducing him to ashes, saving Shiva's life. In Shiva Purana, the birth
of Hanuman is attributed to the union between Shiva and Mohini. The Mahabharata
also has, in one of its stories, the episode when the great archer Arjuna goes to visit
his father, god Indra, in Amravati while in exile. There he spurns the advances of
Urvashi who, at being rejected, curses him to become a eunuch. His father - the king
of Devas - modifies the curse, so Arjuna loses his manhood just for a year, and
advises him to live the curse in the 13th year of exile when the Pandavas are expected
to be in hiding.
Another chapter from the Mahabharata is the story of Budh (the planet Mercury),
which is neither male nor female. Brihaspati (the planet Jupiter) discovers that his
wife Tara (the goddess of stars) is pregnant with the child of her lover, Chandra (the
moon god). He therefore curses the unborn child. The neuter Budh (Mercury) later
marries Ila, a man who becomes a woman when he accidentally trespasses into a
forest. In the Ramayana, two widows who want to give birth drink a magic potion
and make love to each other. In Valmiki Ramayana, in order to taste Ravana,
Rakshasa women kiss other women on their lips.
There is also the story of Narada, who desires to understand Lord Vishnu's Maya.
The lord asks him to bathe in a lotus pond. As soon as he enters the pond, he
transforms into a female form and forgets his earlier identity. He then gets married
to a king, lives the life of a queen and even has children. The gender and sexual

divide was often diminished by Indian writers. So today when Babas or other
religious heads preach to us or PM Modi's government votes (against the benefits for
same-sex couples working at the UN) with Russia, Pakistan and Iran to curtail the
rights of those who have an alternate sexual orientation under the garb of "Indian
culture", I have my doubts whether they have actually studied what Indian
spirituality is all about.
In this great land, it is the soul that is important. The body is just temporary. As lord
Krishna teaches us, the true meaning of enlightenment is to go beyond all things
worldly, and to achieve this we as people, must start accepting the infinite
possibilities that the universe throws up. So let us accept it, celebrate it, and
empathise with those whose choices may differ from ours. Because we can only
achieve the higher level when we destroy all the lines that we, ourselves, have
created.