Colouring a rainbow

It is true that the LGBTQ community does enjoy a tolerant society in Bhutan. It is however wrong to think they should be thankful for being tolerated. And you need not pat yourself on the shoulder for being tolerant too. “You should not be tolerating this. You should be respecting this. Tolerance is not a good thing. If you’re tolerating this, it means you think there is something wrong. You have to go beyond that,” says Dzongsar Jamyang Khyentse Rinpoche on our attitudes towards the LGBTQ community. Ever since I have heard Rinpoche say this, I have stopped taking pride in us being tolerant.

There are many of us who believe that having a non-straight sexual orientation is abnormal. A lot of us have not heard of people being lesbian, gay, bisexual, transgender, and queer; but not hearing about it does not make the LGBTQ community an aberrant. Buddhism does not condemn the queer. Many enlightened teachers have explained this eloquently including Dzongsar Jamyang Khyentse Rinpoche himself. Borrowing and building on the cheese allegory shared by Rinpoche at a public teaching in Thimphu, last year, when he spoke for the first time about the LGBTQ community: Just because we have never heard of Muenster- a type of cheese, it does not become a non-cheese. Rinpoche shared, “Some people like cottage cheese, and some like Swiss cheese,” and it is as simple as this. My queer friends don’t know why they are the way they are, they just are! I do not know why I am straight, I just am.

Actually, I do know. It is in our DNA. It is biological. Being gay, and being queer are not cultural choices. People are not being gay to be modishly Western. If our sexual orientations were really about choosing Option A- Gay one day, and Option B- Straight the next, why would the LGBTQ community stubbornly endure all the hatred, ostracisation, and other violence inflicted upon their beings? It is not for our entertainment. The last thing the community wants to be is a spectacle. Here’s perspective from a gay friend of mine: “Why would I suffer by choice? If I could just stop being gay, I would. But I can’t. I don’t willingly choose to suffer. I have to live with this. You do not have to live with being straight.”

Not a single person from the LGBTQ community has been arrested till date. But they live in prisons: Prisons of doubt, fear, self-loathing, shame, and hopelessness. Prisons built by society. Prisons built by you and I.

Our Constitution is inclusive. I have great respect for Clause 15 of Article 7 as it decrees: All persons are equal before the law and are entitled to equal and effective protection of the law and shall not be discriminated against on the grounds of race, sex, language, religion, politics or other status. But there is a small problem. Sex refers to biological and physical attributes. I hope even if it is semantically incorrect, that sex is being used interchangeably with gender. Otherwise, a transgender will never receive equal treatment in society if we limit ourselves to the binaries of male and female attributes. An intersex person (with both male and female reproductive organs) will never find a place in our society because the language describing life in Bhutan does not recognise them. Gender cannot be assigned to you at birth like your sex. Gender is the manner in which you express yourself in your lifelong interactions within societal and cultural structures. But our Penal Code inhibits such an expression. It criminalises homosexuality. The Marriage Act of Bhutan recognizes marriage between two genders only: Male and Female. But one can hope.

Of the 9,000 plus members of the LGBTQ community in Bhutan, about ten are visible in society. Where are the rest? Why are they invisible? Only when the questions cease will I stop making an issue of what many of you dismiss as a non-issue.

 

One thought on “Colouring a rainbow

  • Hi Namgay,
    The article you have brought is something very important as it raises an important issue in any society and Bhutan is no exception. I wanted give a short view of mine on this issue as reply to your article which might help to answer some of your queries with my limited knowledge on law.
    If you read Indian Constitution and Indian Penal Code on the same issue, they also have almost exactly the same legal provisions. With so much effort from LGBT Community and NGOs, few landmark judgments came in India on interpretation of those legal provisions.
    Your information, Article 15(1) of Indian Constitution 1949 reads “ the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them” which is very similar to Article 7(15) of our Constitution. And similarly Section of 377 of Penal Code of India 1860 reads Unnatural offences as “Whoever voluntarily has carnal inter¬course against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with impris¬onment of either description for a term which may extend to ten years, and shall also be liable to fine” which almost the same as Section 213 and 214 of Penal Code of Bhutan 2004.
    While interpreting the Article 15(1) of Indian Constitution in the case of National Legal Services Authority v. Union of India & Ors. the Indian Supreme Court expanded the scope of word “sex” and stated that the term sex also includes ‘psychological sex’ or ‘gender identity’ thus, no one can be discriminated against on the ground of sexual orientation.
    Justice Radhakrishnan then observes that “each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom.
    Therefore, one of the fastest, safest and best remedies for Bhutanese LGBT is to approach either High Court or Supreme Court under Article 7 (2) to interpret the Article 7(15) and also validity of Section 213 of the Penal Code of Bhutan. Should the Section 213 violates any Fundamental Rights provided under Article 7 of the Constitution, the section would automatically get void and this would also mean our personal laws on marriage could face the same test. But if not, the only way is propose the section for deletion or amendment as Penal Code is expected to be table in the Winter Session of the Parliament soon. So there is good opportunity for the LGBT Community to propose for amendment and we as society just need to support them.
    Once if that is done, then rest would follow as we go on. In fact, unlike many conservative neighbors around us, Bhutanese are far better in adaptation and acceptance to changes and hopefully, they should be able to unchain from present invisible and unfortunate prisons in due course of time.
    You can get the detailed judgments from a website http://indiankanoon.org/doc/193543132/ and another judgment is there known as Naz Foundation case, one of the most landmark judgment on LGBT in light of your issue.

    Sonam

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