New Delhi, Dec. 11: The Supreme Court order upholding a 153-year-old law that effectively criminalises gay sex has ignored scientific evidence that homosexuality is not deviant in any sense, but merely a variation in human sexual behaviour, experts and lawyers have said.
The court has virtually “brushed aside” submissions by medical experts that homosexuality is not a mental health disorder and should not be viewed as a criminal activity, said lawyers campaigning against Section 377 of the Indian Penal Code that criminalises gay sex.
“The Supreme Court has ignored these submissions,” said Arvind Narain, a lawyer with Voices Against 377, an NGO campaigning for the rights of gay people.
The ruling rejects a Delhi High Court order of July 2009 that had decriminalised sex between two consenting adults.
Mental health professionals assert that sexual orientation occurs as a continuum — from exclusive attraction to the opposite sex to exclusive attraction to the same sex — and patterns of emotional and romantic sexual attraction may emerge without any prior sexual experience.
“I’m dismayed that medical opinion has not been considered,” said Alok Sarin, a senior consultant psychiatrist in Delhi, who was among a group of mental health experts who had helped prepare submissions to the Supreme Court.
Gay sex, he said, is neither abnormal nor is it considered a symptom of a mental health disorder. “Therefore it seems inappropriate to consider it a criminal offence. This ruling is likely to lead to harassment of people who should not be harassed because of their sexual orientation.”
The American Psychological Association in a document on sexual orientation has said while several studies have examined possible genetic, hormonal, developmental, social and cultural influences on sexual orientation, scientists have not yet pinned down specific sets of factors.
“Many think nature and nurture both play complex roles, most people experience little or no sense of choice about their sexual orientation,” the Association has said.
While precise figures for the numbers of homosexual people in various populations are unavailable, public health experts say studies suggest that the proportion of adult men who have had sex with men ranges from 2 per cent in South Asia up to about 20 per cent in Latin America.
An Indian study from Guntur, Andhra Pradesh, in 2008 that surveyed some 12,000 people had found that about 2 per cent of adult men had reported having had sex with a man at some point in their lives, while 0.8 per cent reported homosexual contact in the six months before they joined the study. Public health experts say even if 1 per cent of men are homosexual, India’s population of homosexual men would be about six million, or more than 15 times the number of inmates in Indian jails.
“Section 377 is a primitive colonial idea — not consistent with science,” said Lalit Dandona, a research professor at the Public Health Foundation of India, New Delhi, who had led the study that investigated the prevalence of homosexuality in Guntur.
Dandona and other public health specialists have cautioned that today’s ruling could reverse gains made by India in curbing the spread of the human immunodeficiency virus (HIV) in recent years by reaching out and encouraging safe sex among homosexual men.
“This is an enormous setback to the HIV prevention efforts,” said James Robertson, a public health specialist and executive director of India HIV/AIDS Alliance, a non-government group that has been supporting community-based HIV prevention programmes among high-risk populations in India.
India’s health ministry and the National AIDS Control Organisation have said they would support the repeal of Section 377 which is widely viewed as a barrier to HIV prevention efforts. Health experts fear criminalisation of homosexuality will drive gay people underground and make it difficult for them to legitimately access HIV prevention and treatment services.
While several countries have decriminalised gay sex, mental health professionals point out that prejudice against people with certain sexual orientations persists even in societies where laws have changed to allow gay marriages.
The American Psychological Association points out that discrimination against gay and bisexual people in employment and housing appears to remain widespread. “Something different or something unknown can evoke fear,” said Ayesha Kapur, a clinical psychologist in Delhi. “But it’s strange that it should happen in India where we have so much diversity otherwise.”