When Sexuality Becomes Sex

In the 19th Century, sexuality was becoming a secret we all carry – a secret, like all secrets, with an intended and interested audience. This secret found its place in depth, becoming the core of our being, the function of our species, the stuff of our dreams. Sexuality became a fact, a truth, an analysis. But like all ideologies must find a signification somewhere, sexuality found the homosexual. Found the homosexual in the West and since they didn’t find it/him in the East, declared us perverse. Civilisation AKA modernity itself has since been confirmed only by the presence and, after colonial modernity, the thriving of homosexuals.

If something must be found, we must know it, we should be able to point at it, from far, it should bring itself into light, into presence. Sometimes we mistake other objects for what we are looking for, sometimes those other objects become what we were looking for, sometimes we make do with those objects when we can’t find what we were looking for. How do you find sexuality in the homosexual to find the homosexual?

From the flaring of the anus to unresolved mommy issues, various theories and sciences have sought to produce the homosexual definitively. The homosexual was the very being of sexuality is why each time the homosexual is caused, he is by a philosophy of sexuality. Take for instance medicine that has an imagined balance the body is in as tabula rasa. There is a minimum and an optimum. Some mix of anatomical unity, hormones and secretions, and (later) chromosomes reveal to the specialist who we are. Any incoherence only involves the restoration of this balance. The homosexual, for the longest time, could be found and cured in the same way since sexuality itself accrued from the alignment of these things that could be seen and extracted by magnifying glasses, needles, and tubes.

The history of jurisprudence on the homosexual in India has relied on a similar technology of finding the homosexual through signs that belong to a philosophy of the body and psyche. There is enough work on the history of cases in courts where section 377 of the Indian Penal Code (that criminalises carnal intercourse against the order of nature) has been applied to reveal the real work of evidence is in finding the evidence of homosexuality itself. Often in the anus. But also in the behaviour, mannerisms, and clothes of the subject brought to law. Judgments that condemn people under this law are replete with details about how some subjects walk, or that they were found in ambiguous clothing, or display other transgressions from their assumed gender. This has been the social understanding of the homosexual. You are only found to be a faggot or a dyke when you don’t do your gender like how everyone else does. The straight acting homosexual doesn’t exist simply because his sexuality cannot be found – he is like everyone else.

By advising reservations in education and employment the NALSA judgment that recognized the rights of trans people (“the third gender” in its vocabulary) threw the trans movement into anxiety over who can avail these provisions which translated into who can be trans (even as the movement resists the setting up of screening committees to decide on this matter). With Koushal still looming while it seems trans folks have recognition, it seemed obvious for the Mr. Mukul Rohatgi representing Navtej Johar and other accomplished gays in the hearings that began in the Supreme Court on Tuesday to say that Section 377 affects gay men and that it is not about gender. Let aside the history of the law’s prejudice against trans, kinnar, kothi and many gender non-conforming persons and communities beside the hetero binary, Mr. Rohatgi forgot his own client, accomplished lesbian Ritu Dalmia. In the fight between the rights proper to the trans folks and community and those that accrue to the homosexual without gender, many kinds of folks will disappear from rights, disenfranchised, and enter the anxious domains of illegality and prejudice. Say, what happens to the effeminate gay boy? The married-to-opposite-gender kothi? These are not minorities that will now appear to the law but those the social life of the law has always had at its heart – those most often shoo-ed from streets at night, picked up, assaulted, violated, threatened, blackmailed.

Moreover, where will the right to choose one’s partner, that which Justice Chandrachud agreed is everyone’s right, accrue constitutionally from? The right to equality? The right to life? In which case the Court will have to read sexuality into the category of sex, the only category in the constitution that could hold this frame (the others being religion, race, caste, and place of birth). The category of sex under Article 15 has hitherto been applied to judgments against discrimination between men and women, the dominant frame of which has been to address spaces that worked on the principle of M>F. The constitutional category of sex requires that discrimination should accrue naturally from sex, i.e., only in cases where the discrimination between men and women could be seen to naturally follow from sex alone could the courts offer any remedy. The courts have never found the category sufficient for any social understanding of gender, say the social position of women or the imposition of public morality. Sex, constitutionally, cannot hold what we feminists call gender and it is precisely for this reason that reservations for trans people could only be given under the OBC category and not sex. (Though one should be grateful to the courts for not scraping down legislation for women under such an idea of equal treatment.)

It is no surprise that one of the judges on the bench intervened not only that homosexuality was natural but found in other species. The only way that sexuality could enter the constitutionally category of sex was if it could be first naturalized. Where does the social life of sexuality and what it does to us go? Where will the public life of hurt and loneliness go in the private times of jouissance? What will the battle in court be when we come to it with our stories of discrimination too messy for constitutional categories?

Sex in the constitution would now jostle the M/F binary and this naturalized sexuality. In it gender will not be sexuality and sexuality will not have a gender. One or both may apply to a case but always as discrete identities. And some of us will be left in between – ambiguous, too much, not enough – constantly sorting ourselves for the law. And for some nothing would have changed. There will be no relief, no end to persecution, no law that calls out our name. We will be how we always were – the illegitimate subjects of the law’s desire for justice, the unattended violence of its best intentions.

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Vqueeram used to teach gender and now betrays it in his poetry. He is preparing to be a waitress ever since he came to know Julia Roberts was one. For now he doesn’t even have her luck with men!

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