Is sex at birth fixed by God, or God’s will? It seems no
On Tuesday last the Supreme Court of India upheld a colonial-era law making homosexuality a crime (punishable by up to 10 years in prison) by reversing a 2009 Delhi High Court order which had decriminalised homosexual acts, and which had come after years of campaigning by gay rights activists.
My interest was aroused in the very lively debates that have been aired in the Indian media since. I must express my admiration for the thoroughness and professionalism of the anchors conducting these discussions, who had thoroughly researched the subject, and brought on their platforms very focused and committed stakeholders representing a diversity of opinions.
Under Section 377 of the Indian Penal Code, same-sex relationships are considered ‘an unnatural offence’. The law dates back to the 1860s, when Britain ruled over South Asia, and states that ‘whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal’ can be punished by up to 10 years in prison. (italics added).
The judgement has dealt a blow to gay rights activists across the country. The 2009 New Delhi High Court ruling, which said the law violated fundamental human rights, was welcomed by India’s gay community but infuriated conservatives and religious groups who said homosexuality represents a threat to traditional Indian culture. In the Supreme Court ruling, judges said only lawmakers and not the courts could change the law as it was Parliament’s role to legislate.
I was led to certain reflections about this complex matter, the starting point being medical. We encounter issues of what I would call sex ambiguity during our gynaecology course, referring to babies born with anomalies of the genital organs. This gives rise to difficulty in deciding whether they are male or female, and some special tests have to be carried out to establish that. Then arises the question of how to correct these anomalies where this is thought needed, which is usually done by means of surgery.
We also have to study some other aspects of the problem, such as transvestism, in our medical jurisprudence course. That was as far as we went by the time I qualified as a doctor in 1971; we learnt about the anatomy and physiology of the reproductive organs, which included knowing about the sexual act, but we did not actually study human sexuality or sexology.
Around that time, the book Human Sexual Response by the Americans Masters and Johnson became available and subsequently served, along with their other book Human Sexual Inadequacy, as reference works. It was based on their pioneering laboratory studies that considered the structure, psychology and physiology of sexual behaviour.
Previously, sexuality was a largely neglected area of study due to the restrictive social conventions of the time, with prostitution as a notable exception. Before Masters and Johnson’s work, there had been the Kinsey Reports, which in contrast to the former’s studies, had mainly investigated the frequency with which certain behaviours occurred in the population and was based on personal interviews, not on laboratory observation.
Much water has flown under the bridge since then, so that today issues of gender/transgender, homosexuality, feminism, women’s liberation, etc., have built up into the larger LGBT movement which militates, among other things, for the rights of that ‘community’ (Lesbians, Gays, Bisexuals and Transgenders).
They were massively present in the demonstrations that followed the Supreme Court’s ruling, crying and kissing and hugging to console each other, even as the NAZ foundation, an advocacy group, vowed to use all legal means to have that decision reversed.
Some of the issues and views that have been ventilated are:
• Section 377 was unjust, repressive and archaic/antediluvian, and needs to be scrapped.
• Opinion was divided, even among reputed legal personalities, about whether the apex court should have sent the matter back to Parliament.
• No court had the right to decide what happens in the privacy of their bedroom between two consenting adults. Personal morality was not the same as ‘Constitutional’ morality.
• The SC’s ruling was anti-Constitutional as it discriminated against a group of citizens. Why did the apex court defer to Parliament where human rights were concerned? After all, it was the SC which was responsible for ensuring that these rights were respected.
• Author Vikram Seth, of ‘A suitable boy’ fame said the judges had taken away ‘the rights, the prerogatives, and the dignity’ of millions of Indians; adding ‘Today is great day for prejudice and inhumanity and a bad day for law and love. Law develops and love is resilient and prejudice and inhumanity will be beaten back.’
• Love between two individuals even if they are of the same sex cannot be a crime.
• Criminalising same-sex relationships will send the homosexual community underground and reverse the gains made in the struggle against the HIV-AIDS epidemic.
• God has sent man for a purpose on earth and he has to fulfil that purpose, that is, sex is only for procreation and not for pleasure. Thus, homosexual sex goes against nature, against God’s purpose.
People who talk about the order of nature forget that we also, human beings, are part of nature. It follows that any of our behaviours may be looked upon as abnormal but cannot by definition be against nature or unnatural. And, in any case, what is that order of nature and who are those who really know what happens in the whole of nature?
In fact, scientists have found that homosexual behaviour is pretty widespread in nature from the lowest to the highest creatures. And by now all educated laypersons know that we share almost 99% of our genes with chimpanzees. The latest issue of the French magazine Le Point has a feature section on this very topic, of the similarities between animal and human behaviour. There is a whole spectrum of behaviours and relationships that exist across nature, and as human beings forming part of nature why does it surprise that we exhibit them as well?
Those who refer to the order of nature had better revisit their copy and go look for information about nature in the right places, among the genuine researchers who explore it without blinkers and prejudices. But even if one goes by the belief that it is God who created everything, then it automatically follows that he also created all those people who have a different sexual orientation. And the question may also be asked: why does he create humans with altered genital organs? What is his purpose in doing so?
Is sex at birth fixed by God, or God’s will? It seems no. Biologists have shown experimentally that by altering the ambient temperature the sex of tadpoles can be altered. I presume that God also created tadpoles? As the British philosopher Bertrand Russell asked: Did God also create the lowly centipede? And I ask myself, for what purpose? To bite humans?
And what shall we say about in-vitro fertilization and test-tube babies? Are these also against nature? After all, they are the result of the application of man’s intelligence, God-given and therefore natural isn’t it?
We cannot have an objective debate about this highly emotive issue unless we are prepared to shed our favourite prejudices and allow facts and empirical evidence to flow in. The relationship between biology and sexual orientation is a subject of much research. In fact, ‘a simple and singular determinant for sexual orientation has not been conclusively demonstrated – various studies point to different, even conflicting positions – but scientists hypothesize that a combination of genetic, hormonal and social factors determine sexual orientation.
Biological theories for explaining the causes of sexual orientation are more popular, and biological factors may involve a complex interplay of genetic factors and the early uterine environment. These factors, which may be related to the development of a heterosexual, homosexual, bisexual or asexual orientation, include genes, prenatal hormones, and brain structure.
The evidence therefore is that there is an innate tendency, derived from a complex interplay of factors, that determines our physical structure as well as our sexual behavioural orientation. And these two may not always go together, leading to a transgender state of the individual, wherein one’s gender identity (self-identification as woman, man, neither or both) does not match one’s assigned sex (identification by others as male, female or intersex based on physical/genetic sex). Transgender people may identify as heterosexual, homosexual, bisexual, pansexual, polysexual, or asexual; some may consider conventional sexual orientation labels inadequate or inapplicable to them.
Another category is transexual people, who identify as a member of the sex opposite to that assigned at birth, and desire to live and be accepted as such for which many are prepared to have ‘sex reassignment surgery.’ Thailand is reputed as the country where the largest number of such operations takes place.
It will be interesting to follow up on the aftermath of this judgement by India’s Supreme Court, but reason and biological evidence rather than rigid dogmas should be the guides towards a solution.
* Published in print edition on 13 December 2013