Equality, Dignity, . . . and Privacy: Indian and U.S. “Pansexual” (Human) Rights

EQUALITY, DIGNITY, . AND PRIVACY: INDIAN AND U.S. “PANSEXUAL” (HUMAN) RIGHTS Prof. Dr. Jennifer A. Drobac R. Bruce Townsend Professor of Law Indiana University Robert H. McKinney School of Law Visiting Fellow, Clare Hall, University of Cambridge ABSTRACT This Essay explores two concepts for the protection of human rights for women and sex-based minorities. First, it suggests that the right of privacy, when given full enforcement, safeguards all persons against violence and discrimination. Second, this Essay examines the notion of pansexuality and how all persons, in some way, fit under this umbrella term. With the idea that we are all pansexual, pigeonholing based on sex- based characteristics ceases. Government can then afford all pansexual human beings the full panoply of civil rights and protection. I. INTRODUCTION On January 29, 2015, Professor Dr. Jaspal Sandhu of the Indian University Grants Commission wrote to Indian university leaders, “I request that you do all it takes to ensure that affirmative actions . are initiated in your university so that human rights of TG [“Transgender Community”] students are safeguarded and their 2 mainstreaming is fast-tracked within university and society at large.”1 On April 29, 2015, newspapers announced that Randy Berry, “is the U.S. special envoy for the human rights of lesbians, gay men, bisexuals and transgender people, the first such post ever created by a nation, according to the State Department.” Berry is not new to human rights or diplomacy. According to this report, “Berry, a 22-year foreign service officer, has served in the Netherlands, New Zealand, Nepal, Uganda and South Africa, where he met his husband, Pravesh Singh.”2 These 2015 developments, a world apart in India and the U.S., indicate the spreading trend to recognize the basic civil rights of sexual minorities, women, and others. Many international, national, and state constitutions or charters recognize basic human rights, even if they are sometimes inadequately implemented and protected. Efforts to secure the equality and dignity of LGBTI (lesbian, gay, bisexual, transgender, and intersexual) persons under these laws must continue. Civil rights visionaries and friends must persevere. Governments must continue with efforts such as those highlighted above to secure equal rights for all persons. This Essay advocates for two additional approaches to protect human rights along with those efforts. First, this Essay suggests an additional initiative founded upon the right of privacy, the right simply to be left alone. Success in securing the right of privacy enhances legal and social reform efforts for LGBTI persons in some environments. Specifically, heterosexual persons do not have to self-identify to assert their basic civil rights. Given the right 3 to privacy that many nations afford, people who do not self-identify as strictly heterosexual, male or female, should not have to declare their orientation, identity, or status to enjoy their other constitutionally protected rights. Thus, enforcement of basic human rights should not mandate declaration of sexual orientation, gender identity, or other sex-based status. Second, this Essay proposes a change of perspective and the recognition that we are all pansexual. The notion that we are all pansexual fosters the understanding that discrimination against one is harmful to us all. Moreover, if we are all pansexual, there is no variant status, identity, or orientation to declare. Human rights mean just that: the rights of all pansexual human beings. This Essay presents a very cursory review of particular U.S. and Indian law. It offers a brief discussion of same-sex marriage law, and sexual harassment law and its implementation. The Essay’s goal is twofold. First, it gives examples of how current laws and constitutional provisions fall short of securing and protecting equality and safety for all persons. Second, it begins an academic conversation of how privacy protections and the recognition of pansexuality might assist in the protection of oppressed people. II. CONSTITUTIONAL LAW RELATING TO LIBERTY AND PRIVACY In the U.S. and India, constitutional law recognizes the liberty and privacy rights of citizens and residents. Neither the U.S. nor Indian Supreme Courts have given these provisions full potential effect and implementation, however. The constitutional 4 protections afforded by their respective constitutional documents might further safeguard the civil rights of LGBTI persons in both nations. A. U.S. Liberty and Privacy Law The Fourteenth Amendment of the U.S. Constitution states, “No state shall make or enforce any law which shall . deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”3 Both the Substantive Due Process Clause and the Equal Protection Clause serve to secure the equal rights of minority populations and women in the U.S. Nowhere does the U.S. Constitution mention privacy. However, the U.S. Supreme Court has interpreted that a right of privacy exists through several of the amendments to the Constitution, including the Fourteenth Amendment right of liberty. The Court explained, “Although ‘(t)he Constitution does not explicitly mention any right of privacy,’ the Court has recognized that one aspect of the ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment is ‘a right of personal privacy, or a guarantee of certain areas or zones of privacy.’”4 The Court further held, “While the outer limits of this aspect of privacy have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions “relating to marriage,5 procreation,6 contraception,7 family relationships,8 and child rearing and education.9”10 5 More recently, in Lawrence v. Texas, the Court examined the constitutionality of a criminal prohibition of same-sex sodomy. The Court elaborated on the outer limits of the privacy right, noting that liberty extends beyond “dwelling[s] or other private places.”11 It held, “Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”12 In this passage, the Court moved far beyond the simple “right to be let alone,” articulated by Samuel Warren and Louis Brandeis in 1890.13 It endorsed freedoms which surely include the right to self-identify as, for example, trans, gay, masculine, or all three. And, just as surely, U.S. law should protect the “right to be let alone” about that personal self-identification. B. Indian Constitutional Law With provisions similar to the U.S. Constitution’s Fourteenth Amendment, the Indian Constitution protects personal liberty. Indian Article 21. Protection of life and personal liberty. states, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”14 The Supreme Court of India has interpreted this guarantee to include a right of privacy. In Unni Krishnan v. State of A.P., the Court stated, “This Court has held that several unenumerated rights fall within Article 21 since personal liberty is of widest amplitude.” The Court continued by listing some of the unenumerated rights, including “2. The right to privacy Govinda v. State of U.P., [1975] 3 SCR 946 701. In this case [Govinda] reliance was placed on the American decision in Griswols [sic] v. Connecticut . .”15 6 In Unni Krishnan, the Indian Court relied on a rich tradition of supportive legal jurisprudence in its interpretation of India’s Constitition. In Griswold, the U.S. Supreme Court had found that a state ban on the use of contraceptives by married couples violated their right to privacy.16 The Griswold case was one of the first U.S. cases to recognize a right of privacy related to family life and sexuality. The Govinda case, relied upon in Unni Krishnan, discussed The European Convention on Human Rights. The Govinda Court quoted Article 8 (1) of that document for support. Article 8 (1) provides, “Everyone has the right to respect for his private and family life, his home and his correspondence.”17 Thus, the Indian and American jurisprudential interpretations of a right of privacy from a liberty interest are quite similar. The Indian association of this privacy interest with family life, broadly defined, is also consistent with European jurisprudence. For the Indian, U.S., and European legal communities, liberty means more than freedom from shackles. It includes personal sexual and familial privacy. III. PERSONAL PRIVACY, SELF-IDENTIFICATION, AND MARRIAGE Arguably, a right of privacy implies that one should not have to self-identify as male, female, or any other descriptor to secure basic human rights guaranteed to all people. If the police cannot search my home without a warrant, surely the government should not search my DNA and body for identifying characteristic information without similar probable cause and procedural due 7 process. One might suggest exceptions related to public safety or citizenship but those circumstances would not be the default and would still require due process. Basic human rights pertain to all human beings, not only some subset. But the reality is that the government usually does not check. When was the last time you had to prove that you were male or female, for example? An official might ask for a driver’s license or passport. However, one typically does not need a medical report to acquire those documents. You declare and go! People assume that I am female because my name is Jennifer but very few people actually know what my chromosomal identity is. Moreover, I cannot think of many situations in which my sex actually matters. A. The Irrelevance of Sexual Self-Identification in the Exercise of Basic Human Rights The notion that one must self-identify means that one must pinpoint the descriptor such as race, religion, or sex.

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