A Lock, a Key, a Legislation: Making a Case against Outing

Outing refers to the non-consensual act of revealing an individual's sexual orientation or gender identity, or coercing them into revealing the same. Recently, a Japanese prefecture named Mie introduced a law to deal with the issue of outing. 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. This article argues for the introduction of a legislation to make outing a civil offence in India. To support this argument, we analyse the implications of outing on an individual’s fundamental rights such as their right to privacy and freedom of choice. The article traces various Supreme Court judgments in order to analyse this issue from a legal lens. Further, the authors shall discuss the concept of sexual fluidity and its link with the potentially harmful effects of the act of outing. To strengthen the demand for a legislative action, we provide data regarding the discrimination that victims of outing can face.

 

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 (Rakshit 2020). 

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.1 This article argues for the introduction of a legislation making outing a civil offence 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 plethora of social repercussions that follow an individual’s outing, and its implications 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 (Guzman 1995). 

Broadly, outers can be segregated into two categories based on the difference in their motive (McCarthy 1994). 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 (Gross 1993). Thus, their main aim is to pathologise non-cishets in the eyes of the society (Gross 1993). 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 (Rotello 1997). 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 (Signorile 1993). 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. 

Coming Out of the Closet: A Matter of ‘Choice’

Justice Indu Malhotra emphasised on the principle of personal autonomy in the Navtej Singh Johar v Union of India (2018) judgment, 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 (Anuj Garg and others v Hotel Association of India 1999).

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 (Kirk and Madsen 1989). 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 (Casali 2018). 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 (Mohr 1992). 

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 (Diamond 2008). This essentially means that just like any other social trait, sexual preferences, identity, behaviour and attitude can be flexible to a certain degree (Selterman 2015). Thus, an individual may feel differently as they move from one point to another, along the spectrum that is sexuality (Savin-Willimas 2016). Moreover, when individuals realise that they have moved along this spectrum, they may not want to express it outwardly (Savin-Willimas 2016). 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 (Lau 2018). Therefore, outers risk prematurely pigeon-holing someone’s sexual orientation publicly, without giving them the chance to explore the malleability of their sexual identity (Lau 2018).

Social Reality: What the Numbers Tell Us

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 (Raja 2019). The authors recognise that there is a paucity of reliable data regarding the instances of outing, given the nascent stage of this issue in India. However, this issue should be nipped in the bud, so as to avoid the adverse consequences that the outee may have to face. The first major incident of outing in India was the case of  Shrinivas Ramchandra Siras, a professor at Aligarh Muslim University, who was killed by suicide as a result of the discrimination and social isolation that followed his “outing” (Bhattacharjee 2016). LGBTQIA+ rights activist Urvashi Vaid argues that outing largely depends on homophobia for its “success” (Vaid 1995). This is made possible by the blatant heterosexism prevailing in the society which is mirrored in the bleak statistics available regarding the prejudiced treatment towards the members of the LGBTQIA+ community at every turn of life—right from getting bullied at school to losing out on opportunities at the workplace (Jung 1993).2 In a survey of students from the LGBTQIA+ community in Tamil Nadu, it was found that more than half of the participants skipped lectures to avoid bullying, while one-third of them decided to drop out of school altogether (UNESCO 2018). Although one may hope for the situation to get better with time, a 2018 survey regarding the general attitude towards the LGBTQIA+ community at the Indian workplace paints a grim picture (Ramesh and Sabharwal 2018). While 57% of the respondents said that their companies do not prefer openly recruiting LGBTQIA+ candidates, 55% admitted to experiencing bigotry by their co-workers due to their sexual orientation (Ramesh and Sabharwal 2018). Another hurdle in their path is getting access to housing facilities. Often, they are either refused accommodation altogether or made to feel unwelcome by their neighbours due to their sexual expression. According to a survey conducted on residents from India’s 18 largest states, 41% of the participants answered in the negative when asked if they would like to have a homosexual neighbour (Badgett 2014). The recent case of a genderqueer individual’s house being burned down by their neighbours after they were outed, indicates the veracity of these numbers (International Commission of Jurists 2019).

In another survey conducted on sexual minorities, 75% of the respondents felt it necessary for their identity to remain a secret (Mimiaga et al 2014). Thus, when the consequences of publicly being a sexual minority are so grave and pervasive, it would be unfair to let the outers forcefully subject individuals to the oppression that they have felt essential to escape.

The Legal Argument against Outing

In K S Puttaswamy v Union of India (2017), 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. 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 (K S Puttaswamy v Union of India 2017).

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 (K S Puttaswamy v Union of India 2017). The outers’ argument in response to this is in conformity with the privacy conundrum that Carl F Stychin talks about in his work, Law’s Desire: Sexuality and the Limits of Justice (Stychin 1995). 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 (Stychin 1995). 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 (Stychin 1995).

Outers believe that their non-consensual act can be justified in light of the “achievement” of state recognition of rights (Shapiro 1995). 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 (NALSA v Union of India 2014). 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. 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 (Navtej Singh Johar v Union of India 2018). In a previous judgment, the Supreme court 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” (Francis Coralie Mullin v Administrator, Union Territory of Delhi and others 1981). Because sans dignity, human life loses its essence (Maneka Gandhi v Union of India 1978). 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 (1997), 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. 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.”3

Principle 6 of these guidelines provides that the states shall,

Ensure the right of all persons ordinarily to choose when, to whom and how to disclose information pertaining to their sexual orientation or gender identity, and protect all persons from arbitrary or unwanted disclosure, or threat of disclosure of such information by others.

This principle succinctly 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 v Union of India (2014), the Supreme Court observed that these 2007 principles must be applied as a matter of national law. 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 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 (Malik and Raval 2009). The state has an obligation to take a proactive stance in the introduction of legislation that acts as an engine for social transformation  (Malik and Raval 2009). A law against outing would help the society edge closer towards the one envisioned by the Supreme Court in the Navtej Singh Johar case. However, the authors acknowledge the fact that legislation cannot be the sole measure to tackle such a complex issue (Srivastava 2014). 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 (Srivastava 2014).

Given the propensity of the state to regulate the private sphere, various biases might creep into any such legislation or policy which concerns the rights of the LGBTQIA+ community (Narrain 2004). Therefore, the authors propose that an expert committee comprising members from the LGBTQIA+ community, legal experts, and representatives from other non-partisan organisations which work towards championing the rights of the community must be assigned the task of drafting the policy and the legislation. Since the Transgender Persons (Protection of Rights) Act, 2019 was heavily critcised for turning a deaf ear to the concerns of the community, the recommendations of this committee should be made binding on the lawmakers (Gandhi and Ghia 2019).  

The legislation could be modelled after the Equality Bill, 2021 drafted by the Centre for Law and Policy Research, which aims at eliminating discrimination on the basis of one’s sexual orientation and gender identity, amongst other factors.4 This bill includes 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.4 Similarly, the authors argue that the proposed legislation should make outing 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 (Halwani 2002).

In order to ensure the effective deterrence of this act, as was posited by Justice Nariman in the Navtej Singh Johar case, it is necessary for the government to educate the masses regarding concepts such as sexual orientations and gender identity. 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 (Mitchell and Fries 2016). 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 (Misra 2009). Though the proposed changes would be a step in the right direction, a lot still needs to be done in order to tackle the multifaceted manifestations of homophobia faced by our LGBTQIA+ citizens (Rakshit 2020).

Conclusions

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 to the Navtej Singh Johar case, 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. 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. 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.

This article also appeared on the Journal of Indian Law and Society Blog.

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