There are two specific strategies at work in India's queer-rights movement. On the one hand is an attempt to create and increase the social and cultural visibility of queer people; on the other is the legal challenge to the Indian Penal Code's archaic Section 377, which criminalises all forms of non-procreative sex. This latter campaign is being promoted on the grounds of the right to privacy. While these two strategies have closely interconnected objectives, each has also been fraught with tension.
The need for creating visibility for queer people arises from an 'invisibility' that has been imposed on these communities by the larger society, which contributes to their exclusion from a whole range of human-rights guarantees. The demand for privacy, in turn, is meant to emphasise that what people do in private spaces – for instance, with whom they have sex – is not the business of the state, and cannot be the basis of discrimination. As such, it cannot be grounds for criminalising either the private acts or the persons engaging in them. It was on the basis of the right to privacy that the United Nations Human Rights Committee, in the historic 1994 case of Toonen v Australia, declared that anti-sodomy laws infringe upon human rights. Privacy was also the basis for challenging the controversial 1993 'Don't ask, don't tell' policy utilised by the armed forces in the United States, as well as for demanding the repeal of Sec 377 in the Indian courts.
At the heart of the visibility-privacy strategies is the understanding of how the law and conservative sexual morality create a distinction between 'good' and 'bad' sex. Good sex – heterosexual, monogamous and marital – is located in private realms (of family and marriage), and thus is seen to deserve state protection. Bad sex – all forms of non-heterosexual sex – is perforce made public through the operation of criminal law. Sec 377 criminalises all forms of sex that are not specifically for the purpose of making a baby; although this theoretically includes certain forms of heterosexual sex, the law only ever gets used in the case of homosexuals.
It is the rigid boundary between the public and the private that the visibility-privacy strategy attempts to challenge. While on the one hand visibility can be looked at as having the potential to bust the legally enforced public-private divide, it is not necessarily the all-encompassing solution that it is often purported to be. The first task is to weigh the potential political ability of visibility to confront the accepted norm of heterosexuality. The second is to measure the costs of this visibility, and in so doing, ask a series of questions: Who is benefiting from this process of increased visibility, and who is losing out? What price does visibility incur? Perhaps most importantly, does visibility really enhance the potential of gaining equality? Furthermore, we need to question whether the claims for visibility and privacy could ultimately work to counter each other, in effect derailing the very objective of rights and recognition for queer people.