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Posts for January, 2014

India’s Supreme Court Refuses to Reconsider Verdict Recriminalizing Homosexuality

Jim Burroway

January 28th, 2014

Last December, India’s Supreme Court reinstated a colonial-era sodomy law criminalizing same-sex relationships by overruling a High Court decision four years earlier which struck down the law as unconstitutional. Today, the Supreme Court turned back a request for it to reconsider its decision.

On Tuesday, a bench of Justices H.L. Dattu and S.J. Mukhopadhaya dismissed the review petitions observing that there are no grounds to interfere. In its review petition the Centre had assailed the December 11 judgment contending that law must reflect social change and the aspiration of the society and not operate on vacuum. The review petitions were dismissed in the chamber.

In view of the dismissal of review petitions the next option for the Centre and others is to file a curative petition, which will be heard by a minimum of four senior-most judges and a maximum of five judges.

India’s colonial-era law provides a maximum term of ten years’ imprisonment.

Indian Supreme Court to reconsider sodomy ruling

Timothy Kincaid

January 27th, 2014

In December, a two-judge panel of India’s Supreme Court ruled that the country’s Colonial Era law against sodomy, Section 377, was constitutionally permissible. The ruling was issued on the day one of the judges retired.

The government of India, along with many organizations, requested that the Court revisit that decision. Tomorrow they will decide whether to do so: (TimesofIndia)

The Supreme Court will tomorrow take up petitions filed by Centre and rights activists seeking review of its verdict declaring gay sex an offence punishable up to life imprisonment.

A bench of justices H L Dattu and S J Mukhopadhaya will take up the petition in chamber to decide whether the verdict needs to be re-looked or not.

Indian government requests court revisit sodomy law ruling

Timothy Kincaid

December 21st, 2013

From BBC

The Indian government has filed a petition in the Supreme Court asking it to review its decision to reinstate a 153-year-old law that criminalises homosexuality.

The government asked the court to review its order saying it believed it “violated the principle of equality”.

BJP supports reinstatement of India’s Section 377

Timothy Kincaid

December 13th, 2013

The leader of the center-right political party in India, Bharatiya Janata Party (BJP), has announced support for the newly-reinstated sodomy laws. (Telegraph of India)

BJP president Rajnath Singh today said his party “unambiguously” endorsed the re-criminalisation of gay sex — the first conclusive statement from the party that makes the legislative option difficult for the UPA.

“We will state (at an all-party meeting if it is called) that we support Section 377 because we believe that homosexuality is an unnatural act and cannot be supported,” Rajnath Singh told The Telegraph tonight.

The United Progressive Alliance (of which The Congress is the leading party) has about 261 of 543 seats in Parliament. National Democratic Alliance (of which BJP is the leading party) has about 151 seats. So any legislation may be determined by smaller parties.

India may not keep its sodomy laws

Timothy Kincaid

December 13th, 2013

Getty image from BBC

Indian gays are angry and dismayed over the Indian Supreme Court’s decision to reinstate sodomy laws and have taken to the streets. But there is another somewhat-unexpected group that also seems to feel betrayed and upset by the ruling: Indian politicians.

In July 2009, when the New Delhi Court ruled that the colonial era sodomy laws were a violation of the Constitution, there was little formal objection. In September of that year Prime Minister Manmohan Singh decided to let the decision apply to the rest of the nation and the government and the political parties heaved a huge sigh of relief. While they recognized that individual rights demanded that the laws be lifted, they also knew that doing so would anger various conservative or religious factions. So they stayed silent on the issue, did not appeal the decision, and were happy that the courts had taken it off their shoulders.

But a collective of religious groups appealed and, to the surprise of nearly everyone, the courts overturned the New Delhi decision, stating that the law was constitutional and that if it sodomy laws were to be abolished it would be up to the legislature.

So now legislators and politicians are back in an uncomfortable position. They are made even more so by the near-universal outcry of the nation’s newspapers. (Caveat: I’m judging this by English-language papers. While Hindi is the official language of India’s government, English is also has official status and is the language of business, journalism, and the judiciary and is the common language across India’s many regional dialects.)

Now it appears that the government may channel the outrage to try and reverse the high court’s decision – especially if they can do so without actually passing laws themselves.

From the Times of India (the world’s largest-selling English language newspaper)

“The government is considering all options to restore the (Delhi) high court verdict on (Section) 377 (of IPC). We must decriminalize adult consensual relationships,” law minister Kapil Sibal said.

Finance minister P Chidambaram said the Supreme Court ruling was “wrong” and all options would be looked at to set right the Supreme Court order.

Terming the judgment “disappointing”, he said the court should have applied “current social and moral values” in the case.

He said the government should file a review or curative petition and that the matter should be heard by a five-bench judge.

And the nation’s most influential politician is also on board.

Amid an uproar over the Supreme Court verdict on gay rights issue, Congress chief Sonia Gandhi on Thursday said she was disappointed that the apex court and hoped Parliament would address the matter.

“I hope that Parliament will address the issue and uphold the constitutional guarantee of life and liberty to all citizens of India, including those directly affected by the judgement,” the UPA Chairperson said.

It would be very difficult to get the law reversed in Parliament, but if the request for judicial review is not successful, it may be pursued. India is a significant player in the global marketplace and is determined to be a modern and progressive nation and while the culture is still largely homophobic, recent years have shown an increase in tolerance for homosexuality in India and the surrounding region.

Acceptance and Legality

Timothy Kincaid

December 11th, 2013

Georgetown University’s Eric Voeten looks at comparisons between social acceptance of homosexuality and legality. (WaPo)

Voeten’s interesting article discusses how international pressure impacts nations with low tolerance and how the decision by India’s courts could have challenging consequences.

“A Great Day for Prejudice and Inhumanity”

Jim Burroway

December 11th, 2013

So says the respected novelist, poet, and leading LGBT rights campaigner Vikram Seth to one of India’s leading commercial broadcasters:

Indian human rights advocates are calling today a “black day” following the country’s Supreme Court decision to reinstate the country’s colonial era sodomy law. In 2009, the Delhi High Court ruled that the 153-year-old law, known as Section 377, was unconstitutional, and for the next four years LGBT people in a country representing more than 17% of the world’s population were free from the threat of arrest and imprisonment for up to ten years. Today’s Supreme Court decision reinstates Section 377 and throws the whole issue to Parliament, and has shocked human rights advocates in India and around the world. Pink News has reaction:

“Such a decision was totally unexpected from the top court. It is a black day,” said Arvind Narrain, a lawyer for the Alternative Law Forum gay rights group.

“We are very angry about this regressive decision of the court.”

Ashok Row Kavi, of the activist group Humsafar Trust, said: “This is a very sad day for us, we are back to square one in our fight for the democratic rights of the gay community.”

…“One would never expect the supreme court of India to make such a retrograde order, that is so against the trend internationally,” said rights lawyer Colin Gonsalves.

“This takes us back to the dark ages. This is a day of mourning for us in India.”

Photo by Kabi

“Retrograde” seems to be the most common expression Indians are using to describe today’s decision. Protests have broken out in the financial capital of Mumbai. Observers doubt that India’s government will take up repeal of Section 377 anytime in the foreseeable future. Parliament is currently hopelessly deadlocked, much like our Congress. Elections are coming up in May, and the socially conservative Hindu nationalist Bharatiya Janata Party (BJP) are seeing gains in the polls as it is.

The Times of India has a good primer on the case and asks:

Here’s a pop quiz. Which century are we living in? 21st you say! But it seems the Supreme Court of India doesn’t agree with this logical fact. What else can explain the dogmatic and regressive verdict of the SC today in which they have upheld section 377 of the Indian Penal code that says that sexual relationship against the order of the nature is an offence. They also ruled that the courts should not intervene and that it was up to parliament to legislate on the issue. Wow, another wonderful responsibility on the able shoulders of our educated, socially sensitive and logical MPs-deciding how India’s citizen should lead their private lives!

The Times continues:

The verdict has been shocking on many levels.

Firstly, landing a major blow to India’s claim of being a country with a modern outlook, the fact a law made by Britishers in the 1860′s has been upheld in 2013 makes for a strange sentence.

Secondly, with many countries now equating gay equality with the rights for same-sex marriage, the Supreme Court ruling puts India back in the company of most nations in the Islamic world and many African countries which criminalise homosexuality. The only country in South Asia where gay sex is now legal is Nepal.

“It is highly embarrassing for the country because now we will be among the dirty dozens of the world,” said Narayan, the lawyer from the Alternative Law Forum.In most western countries, the debate about same-sex couples has shifted on to their rights to marry. More than a dozen countries now allow homosexuals to wed.

Thirdly, it is a blow to people’s right to equality. Just because gays have made a different lifestyle choice, they do not deserve to be put in jail. They are also entitled to their privacy and dignity. They do face widespread discrimination and ignorance from a largely homophobic Indian society. And with this verdict, the law has also deserted them.

Fourthly, by putting the ball in the Parliament’s court, the Supreme Court has now granted power to decide how India’s citizens should lead their private lives, in the hands of those MPs who are yet to become sensitive even to the gender equality issue.

Indian court reinstates colonial era sodomy law

Timothy Kincaid

December 11th, 2013

Belfast Telegraph

A colonial-era law criminalising homosexuality will remain in effect in India, a top court said, dealing a blow to gay activists who have argued for years for the chance to live openly in India’s deeply conservative society.

The Supreme Court threw out a 2009 New Delhi High Court decision that struck down the law as unconstitutional, saying it was for lawmakers – and not the courts – to decide the matter.

This is a serious set-back for rights in India.

India’s Supreme Court affirms decriminalization of homosexuality

Timothy Kincaid

February 16th, 2012

UPDATE: strike all below. They have not made a decision, this was just the direction of their questions.

There has been, for some years, increased tolerance and acceptance of sexual minorities in India. The largest break-through was in 2009 when the New Delhi High Court found that sodomy laws were unconstitutional and the government chose to apply that ruling to the nation as a whole.

In response some religious and other organizations and individuals petitioned the Supreme Court to overturn the ruling. Today the court confirmed the decision of the New Delhi High Court and officially ended the nation’s ban on homosexuality.

The justices took an interesting approach, pondering the meaning of Section 377 of the Indian penal Code which prohibits “carnal intercourse against the order of nature”. In an age of invitro fertilization and surrogacy, they decided that banning same-sex expression as being against the order of nature made little sense. And referring to sculptures of Khajuraho, they determined that gay sex was not originally an offense to Indians, but that the laws prohibiting it were colonial imports from Britain.

US Pushes Hard on LGBT Rights Around the World

Jim Burroway

December 6th, 2011

The Obama administration has issued a flurry of documents and Secretary of State Hillary Clinton gave a groundbreaking speech on the need for protecting the human rights of LGBT people around the world. It began this morning with the White House memorandum directing American international agencies to take action in countries where LGBT abuses are taking place. That was followed by fact sheets from the White House and the State Department outlining the new policies as well as past accomplishments. Of particular interest is the State Department’s description of its engagement in Uganda over concerns about the proposed Anti-Homosexuality Bill:

Alongside Ugandan civil society’s strong and sustained outreach to parliamentarians and the Uganda Human Rights Commission, and advocacy of other governments, U.S. Government advocacy against Uganda’s proposed Anti-Homosexuality Bill established a precedent for the United States, the international donor community and civil society to collaborate to counter efforts to criminalize same-sex conduct. [Emphasis mine]

While activities in Uganda are mentioned, Africa was not alone in receiving the State Department’s attention over the past few years. Also mentioned are Jamaica, Slovakia, Indonesia, Guinea, Serbia, and India. Meanwhile, Secretary Clinton gave what has been described as a groundbreaking speech in Geneva in advance of Human Rights Day this Saturday. I wasn’t able to see the speech and hope to have the transcript as soon as possible. (Update: It’s here, and it’s a doozy.)

It remains to be seen how the actions today will be reported in the popular media and what the response will be in countries which stand to be affected by today’s announcements. But past events does give us a clue as to how today’s developments are likely to be received in world capitals where LGBT persecution is either official policy or the social norm. Russia had earlier denounced American diplomatic protests over a proposed bill in St. Petersburg which would prohibit LGBT advocacy in public, and Deputy Prime Minister Dmitry Kozak followed that with a suggestion that the St. Petersburg proposal could be made a federal law. In Africa, following comments from British Prime Minister David Cameron warning that countries which prosecute LGBT people could see their foreign aid cut (a warning that was later modified to say that the aid would be redirected to NGO’s instead), African leaders, including those who oppose LGBT oppression, warned that the statement could backfire on efforts to head off legislation which would severely increase penalties against LGBT people. African LGBT advocates also warn that if changes in foreign funding force cutbacks in governmental services, the local LGBT communities would feel the brunt of the blame, making the work of LGBT advocacy much more difficult in countries where the prevailing belief is that homosexuality is a Western import.

None of that is to say that these pronouncements from the US and IK aren’t unwarranted or improper. But every action has an equal and opposite reaction, and as they say in Africa, when elephants fight, the grass suffers. Since Cameron’s announcement in October, there has been a measurable uptick on African newspaper articles mentioning homosexuality popping up through November and December in my Google Alerts for the continent, and those articles are rarely positive. The Ugandan Parliament revived the Anti-Homosexuality Bill by the end of October, and the Nigerian Senate greatly increased the penalties in a bill which makes same-sex unions a felony in November.

Now to be clear, neither action was a response to Britain’s announcement; both events almost certainly have occurred anyway. But if anyone had been inclined to speak out against those two bills before, the current politics now makes that all but impossible. No African politician has ever lost influence by standing up to “meddling” by foreign and (especially) colonial powers. And no politician anywhere in the world — east, west, north or south — has survived the taint of being accused of colluding with foreign governments, no  matter how manifestly untrue, unjust, or an irrelevant distraction those accusations may be.

In the short term, these announcements are likely to exacerbate the situation. That is just a simple fact of life, but pointing that out isn’t to say that this is not a good change in direction. It is merely to say that we will need to be forewarned and prepared for the inevitable reaction which will come of it. Fasten your seat belts.

Fire Kills 15 Transgender Indians in Delhi

Jim Burroway

November 23rd, 2011
YouTube Preview Image

A fire killed fifteen members of the hijra community in Delhi on Sunday during a gathering to observe the Transgender Day of Remembrance. According to The Hindu:

The fire blazed through a makeshift tent where a large number of hijras had gathered to honour deceased friends.

The incident created panic among community members who had gathered for the ceremony. Several others who tried to escape were also injured.

“We stand together with more than 50 seriously injured hijras, families of deceased hijras and with the hijra community as a whole in this moment of deep sorrow. From media reports it is very clear that fire safety measures and emergency evacuation facilities were not adequate in the Delhi Municipal Corporation’s community hall, where more than 1,000 members of the transgender community had gathered as part of its community congregation,” said a joint statement issued by executive director of Sangama Manohar Elavarthi and State coordinator of the forum Mahesh Patil.

India TV News has more details:

“Most of those who died were prominent gurus. When parents shut their doors to a hijra child born in the family, it is these gurus who adopt them. They are like our parents. Many in my community have been orphaned,” Laxmi Narayan Tripathi, a transgender who recently participated in the fifth season of TV reality show ‘Big Boss’, said.

She said she will soon be visiting the injured admitted in the Guru Tegh Bahadur Hospital here. The transgender-activist had said the purpose of her participation in the reality show was to highlight the cause of her community.

India’s increasing gay acceptance

Timothy Kincaid

June 30th, 2010

India, with a population of about 1.2 billion people, has in the past few decades been increasing its prominence on the world stage. It has aggressively sought market reforms that have resulted in dramatically increased standards of living and it has begun to liberalize its culture and adopt more modern social norms.

One of the significant changes has been India’s response to homosexuality and gay people. In 2009, the High Court of Delhi found that sodomy laws were unconstitutional, a decision that was accepted by the government to apply nationwide. Although some religious leaders objected, the decision seems to have have caused no upheaval.

There are still strong cultural traditions that frown on same-sex sexuality, but there are also demonstrations of positive movement. This may be greatly due to a fledgling pro-gay movement which does not seem to have much organized opposition. The dominant religions have not adopted homophobia as a central tenet of faith and there do not appear to be dominant political figures who are using bias and animus as a rallying point. (As best I can tell from California – but I’m open to correction).

Consequently, we see increased visibility of gay people in the Indian culture. In 2006, Manvendra Singh Gohil, a member of the royal family of an Indian state announced that he is gay. While it caused great consternation at the time – including a threatened disowning – recent news reports about Prince Manvendra seem unfazed by the prince’s sexuality and seem to view him as something of a cultural phenomenon.

The GLBT community also seems to taking heart from 2009′s decision. The end of criminalization resulted in an outpouring of jubilation which seems to have been channeled into the establishment of greater community stability and visibility.

And now a small news report illustrates how this increased openness is encouraging the birth of ventures targeting the community. (hindustan times)

India’s first online store selling gay literature has opened. Based in Malad, the store is called www.queer-ink.com and has been started by Fiji-Indian Shobhna Kumar, a self-professed lesbian.

She works within the city’s gay community, counselling people and their families, helping organise the queer rally and working in HIV prevention.

“I had a selfish reason for starting this, as I could not get access to these books,” she explains. “And Amazon would not deliver them. I think they wouldn’t get through customs as they offend Indian sensibilities. There are a few Indian online bookstores, but they take weeks to deliver. I figured other people must be in the same position.”

India’s GLBT community may be in some ways where Western gay communities were a few decades ago. But there seems to be a rapidity to their movement, a momentum. And absent an organized religious right, India may soon catch up – if not pass – some Western nations in its acceptance of its GLBT citizens.

India’s Reversal of Sodomy Laws to go Nationwide

Timothy Kincaid

September 2nd, 2009

In July, the Delhi High Court declared that India’s law which criminalizes sex between consenting adults of the same gender is a violation of fundamental human rights. Since that time, various factions have argued against the decision and there was some uncertainty as to whether this was binding only in the Capital.

It now appears that the government will allow the decision to apply to the entire nation. (AFP)

The July verdict by the Delhi High Court was non-binding outside the Indian capital, meaning the government had the choice to appeal to the Supreme Court or repeal the law nationwide.

A note from the cabinet, reproduced by the CNN-IBN television network, recommended that the government should accept the court ruling while letting the Supreme Court rule on appeals by some religious groups.

Prime Minister Manmohan Singh is expected to make a final decision this week, but CNN-IBN said he was in favour of following the advice in the cabinet note.

India’s Top Televangelist Also Claims Gay Cure

Timothy Kincaid

July 13th, 2009

Some things are the same the whole world over. And it seems that religious cures for homosexuality bring in the bucks no matter what television network you use to spout your dogma. (Dispatch Online)

India’s top television yoga expert has challenged a landmark court ruling legalising gay sex, claiming it is a “disease” that can be cured by yoga.

Swami Baba Ramdev filed the petition on the grounds that the Delhi High Court “erred” in decriminalising “unnatural sex acts” and that homosexuality was an illness which could be treated, according to the Indian Express newspaper.

“It can be treated like any other congenital defect. Such tendencies can be treated by yoga, pranayama (breathing exercises) and other meditation techniques,” he said.

I suspect that the Swami hasn’t been to a yoga class in Hollywood (or Seattle).

Not All Beauty Queens Are Anti-Gay

Jim Burroway

July 5th, 2009

Meet Celina Jaitley. She was Miss India in 2001 and became a Miss Universe runner-up that same year. She has since become a successful Bollywood actress. She also blogs for the Times of India, where she’s become a fierce advocate for LGBT rights.

I became a part of the world of glamour at the very young age of 16. And not only since then, but somehow from childhood I have had gay friends and have been a part of their agonies and ecstasies . It’s horrid… just like apartheid when your very existence is a crime and you are discriminated against just because of what you are.

Celina describes herself as “a straight woman with a whole lotta balls.” She also says, “If you don’t believe in gay relationships, don’t get into one.” I think I’m becoming a huge Celina fan.

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