By Ishika Garg and Sukrut Khandekar
The nail that sticks out gets hammered down. Fitting into the society’s traditional framework of the gender binary can lead to grave anxiety and distress amongst the LGTBQIA+ community. Moreover, gender non-conformists are usually ridiculed or discriminated against. In a recent effort to eliminate such prejudice, Japan’s Mie Prefecture promulgated an ordinance criminalising the act of ‘outing’ someone without their consent.[1] In a country like India, the need for a holistic legislative action to tackle this issue becomes clear when viewed against the backdrop of the deep-rooted biases that non-cishets face.[2] This blog-piece argues for the introduction of a legislation making outing a civil offense in India, accompanied by a policy to raise awareness regarding the act in order to effectively deter the same. To support this argument, the authors analyse the implications of outing on an individual’s fundamental rights such as their right to privacy and freedom of choice.
Understanding Outing and its Two Perspectives
Outing refers to the intentional act of unmasking an individual’s sexual orientation or gender identity without their express consent, or coercing them into revealing the same.[3] Broadly, outers can be segregated into two categories based on the difference in their motive.[4] Some engage in this act with the primary goal of ‘calling out’ individuals who do not conform to the ‘traditional’ sexual orientations and gender identities.[5] Thus, their main aim is to pathologise non-cishets in the eyes of the society.[6] On the contrary, the other group argues that it is necessary to come out of the metaphorical closet which has perpetuated the heteronormativity prescribed by our society.[7] In their opinion, public awareness about the existence of various sexual orientations, and gender identities beyond the binary will lubricate the glacial shift in their attitude towards the same.[8] Therefore, they bring an idealistic outlook to the table, hoping that this act would help in the realisation of their larger political goal of a more tolerant and unbiased society. However, the question that then arises is – whether this goal should be achieved at the cost of the discrimination and emotional trauma that the outee would have to face at the hands of the society?
Justice Indu Malhotra emphasised on the principle of personal autonomy in the Navtej Singh Johar judgment,[9] by postulating that an individual possesses complete autonomy when it comes to intimate choices concerning their personal life and the same must be protected under Article 21 of the Constitution. The notion of personal autonomy includes within its ambit, the negative right against external interference as well as the positive right to express oneself, as an exercise of one’s choice.[10]
No individual should be denied the unparalleled experience of stepping out of the closet, as a result of deep introspection. The fear of being outed should not prematurely catalyse this contemplative process. In a society where heterosexuality is the norm, non-cishets may experience guilt or shame.[11] For many such individuals, the closet serves the role of a ‘safe-space’ where they can overcome these feelings at their own pace, and construct a solid personal alternative to society’s mores.[12] Such an individual when outed before they are ready, at that terrible moment, is deprived of the very thing that makes coming out of the closet socially bearable: the dignity that is associated with having chosen to come out.[13]
Analysing Outing against the backdrop of Sexual Fluidity
While it is a common misconception that sexual orientation remains stable throughout one’s life, this is certainly not true. The possibility of variations and fluctuations in one’s sexual identity is reflected in Lisa M. Diamond’s concept of sexual fluidity.[14] This essentially means that just like any other social trait, sexual preferences, identity, behaviour and attitude can be flexible to a certain degree.[15] Thus, an individual may feel differently as they move from one point to another, along the spectrum that is sexuality.[16] Moreover, when individuals realise that they have moved along this spectrum, they may not want to express it outwardly.[17] When such an individual is outed, they may have to face the trauma of being assigned a sexual identity that they no longer identify as.[18] Therefore, outers risk prematurely pigeon-holing someone’s sexual orientation publicly, without giving them the chance to explore the malleability of their sexual identity.[19]
The Legal Argument against Outing
In K.S. Puttaswamy v. Union of India, the Supreme Court held that every individual possesses a fundamental right to privacy which is a concomitant of the right to life and personal liberty as guaranteed under Article 21 of the Constitution.[20] The court also recognised that the right to privacy is a condition precedent to the enjoyment of any of the rights enshrined under Part III of the Constitution.[21]
It was held that informational privacy is an intrinsic part of the right to privacy, and the same bars the unauthorised disclosure of any information that is personal to an individual.[22] The outers’ argument in response to this is in conformity with the privacy conundrum that Prof. Carl F. Stychin talks about in his work, ‘Law’s Desire: Sexuality and the Limits of Justice’.[23] He believes that the state tries to regulate the private sphere in order to ensure that it mirrors the societal values and norms that the public sphere represents.[24] At the same time, he stresses on the necessity of ‘coming out’ into the public sphere for the state to feel the need to recognise their right to equality and freedom from discrimination.[25] Outers believe that their non-consensual act can be justified in light of the ‘achievement’ of state-recognition of rights.[26] However, we argue that every individual possesses the right to control their life and themself paint the portrayal of their image in front of the world.[27] Therefore, the outers’ justification does not hold water and we must instead focus on the significance of consent, and the dignity that comes with it. This was reiterated by Justice R.F. Nariman in Navtej Singh Johar, where he emphasised on the inextricable relationship between choice and dignity.[28] Essentially, he stressed on the fact that if an individual’s right to freedom of choice is obstructed, then their dignity cannot be thought of in its sanctified completeness.[29] In a previous judgement, the Supreme court has held that the right to life was broad enough to include within its ambit “the right to live with dignity and all that goes with it.”[30] Because sans dignity, human life loses its essence.[31] Thus, by throwing the outees’ privacy and dignity in the way of peril, the outers are violating their right to life.
In Vishaka v. State of Rajasthan, the Supreme Court held that when the rights of one segment of the society are being violated by the conduct of another segment of the society and there exists a legislative vacuum against such conduct, it is the prerogative of the government to draft laws to fill this lacuna.[32] The need for policy action to tackle this issue is further underscored by the ‘Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity.’[33] Principle 6 of these guidelines requires states to ensure that every individual’s right to choose when, to whom and how to reveal information relating to their sexual orientation or gender identity is protected from unwanted revelation, or the threat of such disclosure by others. This principle explains the nuances of outing by highlighting the duty of the state to protect the right of individuals against the non-consensual revelation of their sexual orientation, as well as their right against being coerced into revealing the same. In NALSA, the Supreme Court observed that these 2007 principles must be applied as a matter of national law.[34] However, the current laws in our country do not address this issue at all, further exacerbating the call for legislative action.
It becomes clear now that the case against outing does not only rely on a moral high ground, but is also backed by the fact that the very act deprives the individual of their dignity, thus violating the most basic of all rights – the right to live a meaningful and dignified life.
The Way Forward
The Indian society seldom allows an individual to read beyond the script of heteronormativity, and those who dare to express themselves in their own words are often met with abject discrimination and stigma from the society.[35]In a survey conducted on sexual minorities, 75% of the respondents felt it necessary for their identity to remain a secret.[36] Thus, it would be unfair to let the outers forcefully subject individuals to the oppression that they have felt essential to escape.In order to tackle this issue, the authors believe that a law against outing would help the society edge closer towards the one envisioned by the Supreme Court in Navtej Singh Johar.[37] However, the authors acknowledge the fact that a legislation cannot be the sole measure to tackle such a complex issue.[38] Therefore, in addition to the legislation, the authors propose the introduction of a holistic policy in order to create public awareness regarding the trauma faced by the members of the LGBTQIA+ community, as a result of being outed.[39]
The proposed legislation should include a provision that empowers the courts to direct the defendant to pay compensation to the plaintiff for any impairment of dignity, pain and emotional or psychological suffering caused to them.[40] Thus, outing should be made a civil offence, where the outer would be liable to pay compensation to the outee for the damages caused by their act, irrespective of whether they intended to do so or not. The rationale behind such a provision is that outing injures an individual’s dignity and causes them emotional suffering which they should be compensated for, no matter the outer’s intent.[41]
In order to ensure the effective deterrence of this act, as was posited by Justice Nariman in Navtej Singh Johar, it is necessary for the government to educate the masses regarding concepts such as sexual orientations and gender identity.[42] This can be done through the introduction of a policy which will lay focus on sensitisation drives and public outreach campaigns aimed at enhancing awareness regarding the myriad consequences of outing someone.[43] The government can also conduct a survey regarding the instances of outing in India as the same can help people understand the grave and ubiquitous nature of this offence.
In a world where homophobia is prevalent on so many different levels, simply decriminalising homosexuality is not good enough.[44] Though the proposed changes would be a step in the right direction, a lot still needs to be done in order to tackle the multi-faceted manifestations of homophobia faced by our LGBTQIA+ citizens.
Conclusion
This decade has heralded a series of judicial decisions that were instrumental in bringing a much-needed transformation in the way the society views gender nonconformity. Right from NALSA[45] to Navtej Singh Johar,[46] the courts have allowed the hues of privacy and sexuality to merge together to paint the picture of life with the vibrant shade of dignity. However, the lack of legislative action to supplement these judicial pronouncements is disheartening. The society is turning a blind eye to the woes of individuals who are non-consensually pushed out of the closet, into a world which is still not comfortable with identities beyond the binary.
The race between society and law can be termed as a hare and tortoise race – as the society progresses, the law tries to keep pace. Though the law is a product of the society, it bears a responsibility to bring social change. Think of the closet as one that can be swung open anytime, by anyone outside, irrespective of whether or not the one inside is prepared for what lies outside. A legislation will put in place a lock, the key to which can only be used when the individual inside the closet is ready for it. Ultimately, being out is good, but coming out is better.
The authors, Ishika Garg and Sukrut Khandekar, are undergraduate law students at the National Academy of Legal Studies and Research (NALSAR), Hyderabad.
[1] Devrupa Rakshit, Japanese Region Mie Criminalizes Outing LGBTQIA+ People Without Consent, The Swaddle (10/06/2020), available at https://theswaddle.com/japanese-region-mie-criminalizes-outing-lgbtqia-people-without-consent/, last seen on 21/05/2021.
[2] Kristen Schilt & Laurel Westbrook, Doing Gender, Doing Heteronormativity: “Gender Normals,” Transgender People, and the Social Maintenance of Heterosexuality, 23 Gender & Society 440, 440-464 (2009).
[3] Katheleen Guzman, About Outing: Public Discourse, Private Lives, 73 Washington University Law Review 1531, 1531-1548 (1995).
[4] Jeremiah McCarthy, The Closet and the Ethics of Outing, 27 Journal of Homosexuality 27, 27-34 (1994).
[5] Larry Gross, Contested Closets: The Politics and Ethics of Outing, 117-189 (1993).
[6] Ibid.
[7] Gabriel Rotello, Sexual Ecology: AIDS and the Destiny of Gay Men, 63-71(1997).
[8] Michelangelo Signorile, Queer In America: Sex, Media and the Closets of Power, 203-237 (1993).
[9] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
[10] Anuj Garg and others v. Hotel Association of India, (1999) Civil Appeal no. 4692 of 1999.
[11] Marshall Kirk and Hunter Madsen, After the Ball: How America Will Conquer Its Fear and Hatred of Gays in the 90s, 23-37 (1989).
[12] Erin Folletto Casali, The Asymmetry of Safe Spaces, Intense Minimalism (08/08/2018), available at https://intenseminimalism.com/2018/the-asymmetry-of-safe-spaces/, last seen on 21/05/2021.
[13] Richard D. Mohr, Gay Ideas: Outing and Other Controversies,123-147 (1st ed., 1992).
[14] Lisa M. Diamond, Sexual Fluidity: Understanding Women’s Love and Desire, 3-12 (6th ed., 2008).
[15] Dylan Selterman, Explainer: what is sexual fluidity, The Conversation (23/01/2015), available at https://theconversation.com/explainer-what-is-sexual-fluidity-33120#:~:text=Sexual%2520fluidity%2520can%2520occur%2520in,a%2520new%2520and%2520exciting%2520way, last seen on 21/05/2021.
[16] Rich C. Savin Willimas, Sexual Orientation: Categories or Continuum?, 17 Journal of Psychology and Human Sexuality 37, 37-52(2016).
[17] Ibid.
[18] Holning Lau, Sexual Orientation and Gender Identity Discrimination, 2 Brill Research Perspectives in Comparative Discrimination Law 1, 1-23 (2018).
[19] Ibid.
[20] K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
[21] Ibid.
[22] Supra 20.
[23] Carl F. Stychin, Law’s Desire: Sexuality and The Limits of Justice, 11-37 (1995).
[24] Ibid.
[25] Supra 23.
[26] Mathiew J. Shapiro, When is a conflict really a conflict? Outing and the Law, 36 Boston College Law Review 587, 587- 618 (1995).
[27] NALSA v. Union of India, (2014) 5 SCC 438.
[28] Supra 9.
[29] Supra9.
[30] Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others, (1981) AIR 746.
[31] Maneka Gandhi v. Union of India, (1978) SCR 2 621.
[32] Vishaka v. State of Rajasthan, (1997) 6 SCC 241.
[33] International Commission of Jurists, Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (2007).
[34] Supra27.
[35] Anantha Raja, Interview with Megha Seth, Clinical Psychologist, The Humsafar Trust, The Hindu (06/03/2019), available at https://www.thehindu.com/news/cities/mumbai/fighting-the-heteronormative-society-is-a-challenge/article26441330.ece, last seen on 21/05/2021.
[36] Matthew J. Mimiaga et. al., Garnering an In-depth Understanding of Men Who Have Sex with Men in Chennai, India: A Qualitative Analysis of Sexual Minority Status and Psychological Distress, 44(7) Archives of Sexual Behavior(2014).
[37] Supra 9.
[38] Sumit Saurabh Srivastava, Discipling the ‘Desire’: ‘Straight’ State and LGBT Activism in India, 63 Sociological Bulletin 368, 368-385 (2014).
[39] Ibid.
[40] Ibid.
[41] Raja Halwani, Outing and Virtue Ethics, 19 Journal of Applied Philosophy 141, 141-154 (2002).
[42] Supra 9.
[43] Alvin Mitchell & Mary Fries, The Effect of Knowledge on Attitudes toward Homosexual Behavior, 23 Race, Gender & Class 183, 183-200 (2016).
[44] Geetanjali Misra, Decriminalising Homosexuality in India, 17 Reproductive Health Matters 20, 20-28 (2009).
[45] Supra 27.
[46] Supra 9.
The Journal of Indian Law and Society 