Their protest is different not just because of who they are — highly skilled engineers, scientists, filmmakers and others — but also because their petition to the court adds an economic layer to the usual humanitarian and social arguments for removing a law that stigmatizes minority groups. Criminalizing gay sex isn’t only unjust, they say, it also comes at a sizable financial cost to India’s developing economy.
A five-judge panel is expected to deliver a landmark verdict in the coming weeks that may legalize gay sex — and perhaps, some hope, expand gay rights well beyond that. After years of campaigning, activists in India and worldwide are likely to greet such a decision with vibrant celebrations.
Judges decided to review Section 377 of the Indian Penal Code, which outlaws “carnal intercourse against the order of nature,” after a recent ruling in an unrelated case that made privacy a constitutional right. The national government has said it will leave the decision to the “wisdom” of the court.
The IIT alumni argue in their petition that LGBTQ people have had to “forego better paying employment prospects, including employment under the State and instead choose employers who would be more accepting and accommodating of their identities.” Others, they said, were considering “settling abroad or have done so” because of “the sense of vulnerability and inability to lead a free existence, solely on account of their LGBTQ identity.”
“It’s causing a brain drain,” said Balachandran Ramaiah, one of the petitioners, referring to the gay sex ban. An entrepreneur who graduated from IIT Delhi in 1982, Ramaiah said two of his partners had left India for the United States, where they thought they could be more open about their sexuality.
Discrimination against LGBTQ people costs India0.1 percent to 1.4 percent of gross domestic product, said M.V. Lee Badgett, director of the Center for Public Policy and Administration at the University of Massachusetts at Amherst. Badgett, who said she derived her estimate from sources including health-care and workplace data, characterized that as a significant amount, especially for a country that needs rapid growth to support an exploding population.
“When a country loses that much GDP, normally we say that it’s had a recession,” she said.
Tanveen Kaur Randhawa, a 25-year-old bisexual woman who is studying for a PhD in ecology and the environment at the Indian Institute of Science Bangalore and is a petitioner in the case, said she has considered leaving India for “somewhere people at least know how to talk about us.”
In India, Randhawa said, being gay poses an existential threat. “A lot of people never come out because there is a risk to their safety. There are mob lynchings. People here think it’s wrong, like a crime.”
Said Ramaiah: “It’s not like there is no stigma” in other countries. “But at least there, there isn’t such a fear of blackmail, police brutality and that sort of thing.”
He said fear of homophobia had affected his early career choices, leading him to work for multinational firms rather than confront the conservative work culture in Indian companies. Gay friends of his had considered applying to India’s civil service but dismissed the idea, fearing reprisals if outed. Government employees are not allowed to be openly gay, he said.
“I’ve had to be extremely discreet,” Ramaiah said. “It’s affected me a lot emotionally.”
Badgett said that discrimination — and its sometimes dire effects on mental health — not only burdens the health-care system unnecessarily but also hurts productivity.
“Human resources of LGBTQ people — their skills and knowledge — are not being used if they face discrimination,” she said.
Section 377 of the penal code theoretically criminalizes oral and anal sex between any partners but in practice is used mainly against gay and transgender people. Delhi’s High Court briefly overturned the law in 2009, but a campaign led by Suresh Kumar Koushal, a retired government official-turned-astrologist, and his coalition of conservative Hindu, Christian and Muslim activists ended with a Supreme Court ruling reinstating the restrictions on gay sex in 2013.
In India, despite recognition for centuries of a “third gender,” LGBTQ people face bullying, police brutality and violent homophobia.
In 2010, a TV station filmed a professor at Aligarh Muslim University in Uttar Pradesh having sex with another man. When the video was circulated, the professor, Shrinivas Ramchandra Siras, who was in his early 60s, was publicly condemned and suspended from his job. Two months later, he was found dead in his apartment under mysterious circumstances.
Before he died, he told a journalist from the Indian Express, “I cannot be in that atmosphere. . . . America is the only place where I will be free to be gay.”
“This is not what equality is,” Randhawa said of the lives LGBTQ people are forced to lead in India. “Not what justice is.”