In the past few years, several important policy changes regarding gender and sexuality have occurred in India. In the month of September 2018, two pivotal rulings were made by the Supreme Court of India. (1) On September 15, 2018, the Supreme Court overturned Section 377 of the Indian Penal Code (IPC), a relic of the British Penal Code that had outlawed sexual activities deemed to be "acts against the order of nature." Previously, this had ostensibly criminalized both homosexuality and gender nonconformity. (2) On September 26, 2018, the Supreme Court decriminalized adultery by overturning Section 497 of the IPC. (3) In July 2018, the Lok Sabha, the lower house of the Indian Parliament, passed the Trafficking of Persons bill. If passed in the Rajya Sabha, the upper house of the Indian Parliament, and signed into law, the bill would define new offenses under Section 31 of the IPC as "aggravated forms of trafficking," punishable with imprisonment for 10 years to life, plus fines of a minimum of 100,000 Rupees. (4) In August 2018, the Transgender Persons Bill passed in the Lok Sabha, but has not yet passed in the Rajya Sabha. This bill would introduce regulations where individuals would need to be medically screened in order to be legally recognized as a third gender person in India. In 2005, India created a new third gender designation (E), distinct from males (M) and females (F), opening the option for people to register under this designation on their passports, voting registration cards, and other legal documents. Taken together, these policy changes mark significant shifts to the ways in which the State in the Indian context regulates gender and sexuality. This paper seeks to review these current policy changes in light of the history of how sex work and gender nonconformity have been regulated in the historical periods before, during and following colonialism.
