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

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

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. When I ask my students to define sex they all laugh nervously. What does sex mean? I suggest that there are three classic definitions.

1. CHROMOSOMAL IDENTITY

The first refers to one’s chromosomal identity.18 Most individuals are either XX (female) or XY (male). Some variance does exist in chromosomal identity but those are the most common genetic representations. Those people who do not self-identify as male or female may classify themselves as a third sex.19 But again, why does the classification matter? Even parenthood is possible for any pair (or group) of adults in the modern era, via artificial

8 reproductive technology and surrogacy, or adoption. Chromosomal sex just does not matter for the enjoyment of basic human rights.

a. Education and Sex (Not Sex Education)

Or does chromosomal sex matter? Take another example. Arguably, chromosomal sex does not matter for the exercise of the right to an education. While education is not a fundamental right in the U.S.,20 it is a constitutional right in India.21 The letter from the Indian Grants Commission confirmed that trans status or a minority sexual identity does not matter in in the pursuit of an education. In fact, that letter evidences an attempt to recover from prior discrimination because of perceived or self-identified sex. If people had not labeled or (mis)identified students and then discriminated on the basis of sex, the problem that the Indian Grants Commission was addressing would not exist. A sentence in the letter from the Indian Grants Commission suggests why, however, sexual identity may matter to some people. In the letter, the Secretary wrote, “I believe that you have spared no efforts to create TG-friendly infrastructure like washrooms, restrooms etc. in your university.”22 Doesn’t this statement make you wonder what a TG-friendly washroom is? Does it have special fixtures? Sensor motion detectors that announce, “Welcome!” Or does the Secretary refer to a door label change from “Men” to “SLGBTI”23 or “Trans”? And would such changes “go a long way in acclimatizing TG students without facing [sic] any fear, stigma or shame.”24 In all seriousness, most people will agree that all students should feel safe and welcomed at school. One can also be troubled, however, by the emphasis on washrooms.

b. Academic and Public Washrooms

This topic of washrooms once came up in a law school course that I teach. A student, who happened to be Black, suggested that she would not be comfortable using the same washroom with a trans peer. She asserted that she thought it was just not “right” for trans students to use the women’s restrooms. Another (white) student who had never spoken in this large lecture class raised her hand. She said, “I am embarrassed to admit this, but I’m from a small town in northern Indiana. I had never gone to school with Black students before I came here to this law school and I was afraid to use the bathroom with my Black classmates. I now realize how prejudiced I was.” I asked the first speaker, “Do you see the connection between trans students using the law school bathrooms and Blacks using drinking fountains [a reference to the days of segregation based on race in the U.S.].” She replied, “No, not at all. The two are completely different.” Most other students, who had realized the import of this exchange, looked incredulous. This story captures the absurdity of the washroom dilemma. Easy to erect stalls and doors provide the privacy that people seek. Certainly, a particular facility might have security issues. Historically, public toilet facilities have not existed just for women in India. For example, security has been an issue in one neighborhood of Delhi. There, women band together in groups to use the communal facilities because young girls reportedly have been kidnapped and raped.25 However, in most schools and offices, patrons are not worried (thankfully) about illegal peeping or sexual

10 violence. Washroom panic serves as a symbol that reminds many people of American segregation and South African apartheid. There are very few instances in life when one truly knows chromosomal sex. So, a government mandate of its declaration for most purposes seems unnecessary. One might argue that one needs to know chromosomal sex to marry. However, I would ask why? If you love and know the person you are with, do their chromosomes change that love? One might suggest that knowledge of sex is necessary to judge whether together, you and your spouse, can procreate and have a family. However, fertility is not typically required for a marriage license. A marriage requires a man and woman only if their religion mandates such a pairing. Government need not do so and violate a personal right of privacy in the process.

2. GENDER AS AN EXPRESSION OF SEX

The second definition of sex relates to gender. Many jurists use gender to refer to chromosomal sex. I use the term gender to refer to femininity, masculinity and other proxies for sexual and chromosomal identity.26 Gender, as a term of description, carries individual and social constructions and stereotypes that people often associate with biological sex.27 A stereotypical association of sex and gender matches female with feminine and male with masculine. However, most of us know men who present in stereotypical “feminine” ways and women who appear “masculine.” One might describe these people as culturally or gender nonconforming. Arguably, gender is the expression of sexual self-identity. For that reason, gender should be protected—not only by the right to privacy and the protection of human dignity, but also by the right

11 to free expression. The U.S.28 and India29 protect free expression. Again, sex (or more precisely gender) is irrelevant to the exercise of basic human rights. Finally, while gender is irrelevant to the exercise of fundamental rights, chromosomal sex is critical to the interpretation of gender. How can people assert that I am gender nonconforming when I wear masculine trousers if they do not know my chromosomal identity? If I exercise my right of privacy and refuse to self-identify, people can only assume my sex based on perceived physical appearance (that is easily manipulated). They cannot know my chromosomes, and why should they?

3. SEXUAL ACTIVITY AS RELATED TO CHROMOSOMAL SEX

The third way to define sex is the way most people do when they hear the word; they think of copulation or some other form of sexual activity.30 Many people, however, are reluctant to speak explicitly about this sex in public. That reluctance creates problems. First, shyness about sex perpetuates shame regarding a completely natural human behavior. Second, it leads to confusion regarding the implementation of laws designed to prohibit discrimination because of sex. With regard to the exercise or protection of basic human rights, one need not engage in particular sexual behaviors to secure those rights. Arguably, people must refrain from particular sexual behavior in order to preserve privileged status and access to basic human rights. Admittedly, some sexual acts are illegal and convicted felons enjoy limited constitutional rights in some jurisdictions. However, even convicted felons enjoy the most basic

12 human rights. Moreover, the criminalization of certain sexual conduct typically relates to the prohibition of violence or to the protection of vulnerable populations – and so relates to the public safety exception that I noted earlier. One might also point out that homosexual sexual behaviors are criminal acts in some jurisdictions. Note, however, that homosexuality can be prosecuted only if the government knows the partners’ chromosomal sex. Sexual orientation does not exist minus the identification of the chromosomal sex of the parties. If a privacy right exists with respect to chromosomal identity, then one might argue that the crime of homosexual sodomy, for example, ceases to exist. Some heterosexuals engage in the same behavior. If freedom of expression protects gender and expressed manifestations of chromosomal sex, then consensual adult sexual conduct should also be protected. The engagement in certain acts associated with homosexuality by some individuals, whose chromosomal identity is unknown, is no different than the same conduct perpetrated by so- called heterosexuals whose chromosomal identity is similarly unknown.31

4. CONCLUSIONS ABOUT PRIVACY AND SEXUAL IDENTITY

The concept is so simple: a privacy right in one’s body and identity. If governments focus on chromosomal sex, gender, and sexual orientation, they risk violations of personal privacy, dignity, and free expression. One might analogize to a government declaring one day that only individuals with blood type “A” enjoy constitutional rights. However, blood type is rarely, if ever, associated with the exercise of basic human rights. Moreover,

13 identification of all those type B and O folks, to deny them their rights, would be irrationally invasive. Most people understand the blood type example. Introduce the word sex, however, and some folks have a harder time seeing the point. Sometimes, the simplest ideas are the most difficult to accept.

B. Personal Privacy and Marriage

Many people are beginning to accept that women and sexual minorities deserve rights equal to those exercised by heterosexual men, as courts recognize the fundamental rights of women and LGBTI persons. One arena of change involves a right already mentioned, the right to marry. Across the world people consider this a fundamental right and one involving, liberty, privacy, and self- expression.

1. THE RIGHT TO MARRY IN THE U.S.

In June 2015, the Court confirmed in Obergefell v. Hodges that the U.S. Constitution protects marriage as a fundamental right under the Substantive Due Process Clause, liberty guarantee, of the Fourteenth Amendment discussed in section II above. Additionally, the Fourteenth Amendment Equal Protection Clause guarantees equal protection to persons who wish to marry their same-sex partners.32 In the introduction to the majority’s Obergefell opinion, Justice Kennedy wrote, “The Constitution promises liberty . . . , a liberty that includes certain specific rights that allow persons . . . to define and express their identity.”33 This passage, reminiscent of

Justice Kennedy’s introduction in Lawrence v. Texas, and the Court’s Obergefell resolution clearly mark marriage as a fundamental liberty right. The holding also emphasizes the equal status of sexual minorities and heterosexual persons. Because of this Obergefell decision, the United States are once more united, in celebrating marriage for all eligible adults.

2. THE INDIAN RIGHT TO MARRY

India has entered a new era in the recognition of basic civil rights. A few obstacles, including misguided and antiquated attitudes, prevent immediate progress. In Unni Krishnan v. State of Andhra Pradesh (1993), reviewed above, the Indian Supreme Court found a right of privacy embedded in the Indian Constitution.34 Sadly, the Indian Constitution is internally inconsistent as applied and interpreted. For example, Indian Penal Code §377, an 1890 criminal law promulgated under British colonial rule, bans “intercourse against the order of nature with any man, woman or animal . . . .”35 This prohibition includes private, adult, consensual, noncommercial same-sex intercourse and also child abuse. However, it was rarely enforced against adults.36 In Naz Foundation v. Gov’t of NCT of Delhi (2009), the Delhi High Court found this law unconstitutional as it pertained to consenting adults.37 In particular, it violates Articles 14. Equality before law, 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, and 21. Protection of life and personal liberty.38 Unfortunately, the Indian Supreme Court reversed the Delhi High Court.39 It explained, “[W]e hold that Section 377 does not suffer from . . . unconstitutionality and the declaration made by the

Division Bench of the High Court is legally unsustainable.”40 The Court reaffirmed the ban and reasoned, “Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes . . . .”41 As the Court labeled a separate class of Indians, the Court guaranteed its unequal treatment with the resurrection of § 377. Apparently, the Supreme Court finds that it is just not “right” for gays and lesbians to do what some heterosexual people do. Even if the right to equal treatment does not protect sexual minorities, and I assert that it does, then Article 15’s protection from discrimination should arguably protect this group. Surely, the right of privacy interpreted from Article 21, the right simply to be left alone, protects consensual, adult homosexual and other similar intimate sexual conduct. However, because same-sex sexual behavior is still illegal in India, the law also continues to bar LGBTI persons from the celebration of marriage with their same-sex partners. Many Indians, who support marriage rights for all, believe that the Indian Supreme Court or Parliament will eventually find such a right supported in Articles 14, 15, and 21, just as the U.S. Supreme Court found such a right in the Fourth Amendment’s Equal Protection and Substantive Due Process—Liberty Clauses. However the recognition of marriage as a liberty right is not the only approach to the celebration of marriage by all committed adults.

IV. PANSEXUALITY, MARRIAGE, AND OTHER CIVIL RIGHTS

Another avenue for protecting LGBTI persons who wish to marry and form families begins with the notion that we are all pansexual.

A. Pansexuality

Many years ago, I introduced the idea of pansexuality as a tool that “deconstructs the stereotypical interrelation [of] biological sex and sexual behavior.”42 I suggested, “Pansexuality encompasses all kinds of sexuality. Pansexuality includes heterosexuality, homosexuality, bisexuality, and sexual behavior that does not necessarily involve a coupling. It includes, for example, masturbation, celibacy, fetishism, and fantasy.” Pansexuality also includes sexual aggression, sometimes mislabeled as horseplay, as well as true heteroerotic and homoerotic play.43 I reason that all people are all pansexual, whether or not they act out in diverse ways. For example, a priest may be celibate but fantasize about sexual activity. He is therefore pansexual. I use the term pansexuality because pan refers to “all” and sexuality is “associated with sex or the sexes.”44 While some people might feel uncomfortable being classified with a less-favored subgroup, this perspective fosters equality and highlights certain traditional pigeonholes and the resulting status hierarchies and prejudices. If we are all pansexual, then we are the true siblings of our trans, gay, and otherwise unidentified human family members. Thus, while people might not

17 mind being identified with celibates and fantasizers, they may face their biases as they consider their commonality with fetishists and transgender persons in the greater pansexual community. A pansexual perspective is one that attempts to unveil stereotypical interconnections that hinder us in exploring biological sex, gender, and sexuality.45 This perspective also facilitates the deconstruction of the stereotypical interrelation of sex, gender, sexual behavior and political power or worth. The pansexual perspective emphasizes the panorama of human potential. In the political arena, it encourages an approach to privacy, equality, and other constitutionally protected rights that steps beyond traditional bright-line demarcations based on antiquated notions of chromosomal sex, gender, and sexual behavior. Assume for a moment that we are all pansexual, individually, and as a collective.46 Assume further that each individual has the ability to manifest more than one form of sexuality. Because pansexuality includes sexual fantasizing and masturbation, as well as heterosexual or homosexual coupling activity, many individuals who formerly might have fallen into one category now fit into two or more categories. Consider, for example, a woman who regularly has sexual relations with her husband and also occasionally fantasizes about women when she has sex with her husband or when she masturbates. Or, consider a man who formerly had sex only with women and has had only male partners for the last ten years, but still occasionally fantasizes about women. These examples, I believe, describe many people in the U.S. and India.

Commercial advertising patterns and the Internet both support the notion that we are individually and collectively pansexual. Glamorous women sell women everything, from clothing to cars. It is possible that those sexy Victoria’s Secret47 spokeswomen, who do very little speaking, are simply modeling luxurious underwear. It is also possible that they are “seducing” women into a purchase. Same-sex encounters, threesomes, and other sexual behaviors, in television shows such as Orange is the new Black and House of Cards sell Netflix subscriptions to heterosexual men and women.48 HBO’s Game of Thrones provides more exotic fare.49 Androgynous nudes sell perfume to men and women.50 In addition, by offering the option of anonymity, cyberspace liberates shy pansexuals and allows them to explore, via the Internet, their own sexuality. A Google search of the word “pansexual” currently produces “[a]bout 5,850,000 results (0.46 seconds).”51 Some individuals, who engage sexually with only one other person, may never fantasize or masturbate. Even those persons, however, may be pansexuals with moral codes that tolerate only one type of expression or behavior. The priest mentioned earlier might once have been a heterosexual man who fantasized and masturbated. Even in choosing a life of celibacy, that priest is still a pansexual whose vows constrain his sexual expression. This example highlights that individual sexuality, like religious conviction and practice, can change and evolve.

B. Marriage and Other Civil Rights

The beauty of pansexuality is that everyone is a member of the pansexual community with a position and dignity equal to that of all other people. When we agree that we are all pansexual, the modifiers for marriage, such as same-sex marriage, opposite-sex marriage, etc. become irrelevant. Marriage is just a civil union of two adult human beings who also happen to be pansexual. If we are all pansexual, then other debates, minor and great, also become less important or irrelevant. Washrooms are for pansexuals, as are locker rooms. Civic obligations, such as military service, universally apply to all citizens according to their physical and intellectual abilities, not according to their chromosomal sex, gender, or sexual orientation. Civil rights and protective laws protect all pansexual persons.

1. INDIAN SEXUAL HARASSMENT LAW

A pansexual perspective could change the enforcement of civil rights laws and other constitutional protections, including the Indian prohibition on sexual harassment. In 2012, Jyoti Singh was brutally raped on a moving Indian bus by six men who attacked both her and her male companion. She fought her attackers who then, in essence, eviscerated her. She later died from those injuries after a great deal of suffering. At the time, Indian criminal and constitutional law protected her from such an attack. However, Ms. Singh’s attack became the symbol of the lack of enforcement of these laws and the too common Indian male attitudes about women.52

In 2013, the Indian government passed the Indian Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (ISHA), one of many reforms arguably buoyed by the outcry over Ms. Singh’s brutal attack and subsequent death.53 The preamble of the ISHA announces, “An Act to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto.”54 The ISHA builds upon a definition of sexual harassment previously established by the Supreme Court of India in Vishaka v. State of Rajasthan (1997).55 Vishaka involved a class action suit against the state and the union for enforcement of Articles 14 (right to equality), 15 (prohibiting discrimination), 19(1)(g) (right to practice any profession) and 21 (protection of life and liberty) of the Indian Constitution. The complainants filed suit after the gang rape of a Rajasthani social worker who had attempted to stop a child marriage.56 The ISHA tracks Vishaka and refers to the specific provisions of the Indian Constitution that guarantee the rights of all Indians, presumably including women, sexual minorities, and gender nonconforming people. However, the ISHA relates the constitutional protections only to women.57 If it was not clear before, and one might argue that it was, Indian law clearly prohibits discrimination against women. It now specifically prohibits their sexual harassment. However an obvious problem with the ISHA (other than its arguably poor implementation in a country where some people treat women as

21 chattel or as less than full citizens) is that it does not prohibit the sexual harassment of men, particularly gender nonconforming men, and men who fail to meet other sex-based stereotypes. It also fails to protect people who do not identify as male or female. The ISHA it itself is discriminatory, against men and persons unidentified. As interpreted, it may also fail to protect many women from violent or hostile but not sexual harassment. A pansexual approach would necessitate the reform of ISHA. If India accepted the perspective that we are all pansexual, then the prohibition against sexual harassment would proscribe the maltreatment of any pansexual person based upon stereotyped notions of chromosomal sex, gender, and behavior. If the U.S. joined India, then we might see an end to other debates, or at least the beginning of new conversations.

2. U.S. AND INDIAN, AND CONSTITUTIONAL LAW

If the U.S.’s Fourteenth Amendment Equal Protection Clause and India’s Articles 14 (equality) and 15 (prohibition of discrimination) apply only to chromosomal sex, then they become almost inutile. How does a judge know, for example, if a particular claimant is really female? No state, that I know of, requires a blood test to confirm chromosomal sex before allowing a claimant to pursue a sexual harassment or sex discrimination suit. We all rely on perceived cues, biological and cultural, to serve as a proxy for chromosomal sex. Additionally, if these constitutional guarantees of equality apply only with respect to biological sex, these laws fail to address the culturally enforced stereotypes that lead to oppression and abuse. When jurists conflate feminine and female, they leave

“butch,” “aggressive,” or more “masculine” women without protection. Similarly, people make stereotypical assumptions about sexual activity. A traditional perspective might interrelate chromosomal sex, gender, and activity. One might say, “Real men are masculine and have intercourse with women.” This stereotyped notion leaves “feminine” men, gay men, lesbians, and many others without legal protection. By teasing apart the full meaning of the word sex, jurists can begin to understand how rationally expansive constitutional and statutory protections in India and the U.S. might be.

3. INDIAN CONTRACT LAW

One final example of how a pansexual perspective might alter current debates relates to a simple contract clause that I encountered in New Delhi. When I booked a stay at a New Delhi Radisson Blu hotel at the end of my Fulbright stay, the Goibibo online booking confirmation read, “Most hotels do not allow unmarried / unrelated couples to check-in. This is at full discretion of hotel management. No refund would be applicable in case the hotel denies check-in under such circumstances ..[sic]”58 This particular provision did not apply to me, a solo traveler. However, I wondered what an Indian hotel would do if Mother Teresa and Jesus Christ attempted to check-in. One would think it would be bad business for a hotel to turn away Mother Teresa and Jesus Christ, no matter what one’s religious commitment was. Of course, folks might argue that, as a nun, Mother Teresa was a “bride of Christ” and, therefore, she and

Christ could have avoided the restriction. While that title was symbolic, one might change the hypothetical. Suppose that Buddha and Ananda, a same-sex and unrelated couple, tried to check-in. As unmarried and unrelated couples, Buddha and Ananda, and Teresa and Jesus might be barred from check-in, at least in India. Why? One commentator suggested that the ban relates to the desire to avoid police raids and the accusation of illegal activity or that the establishment is actually a brothel.59 Either way, it seems a shame to refuse entry to Buddha and Ananda, and Christ and Mother Teresa. In a pansexual world, it would not matter if two people wanted to sleep in the same room. (Sex in exchange for money is another debate that is beyond the scope of this Essay.) With a pansexual perspective, one would not assume that Mother Teresa and Jesus were lovers, heterosexual, or even affiliated with particular chromosomal groups. The same would be true for Buddha and Ananda.

V. CONCLUSION

Anyone who follows the news can find stories from India and the U.S. that describe how women, gender nonconforming people, and sexual minorities face discrimination and harassment in a vast array of forms. This Essay has suggested two additional tools for addressing discrimination and fostering equality. First, people might assert their constitutional right to privacy about their sex (chromosomal, gender, and sexual behavior) when exercising other legally protected rights. Second, if people embraced the notion that

24 we are all pansexual, distinctions based on sex would become almost irrelevant. One might argue that drafters never intended U.S. or Indian constitutional and statutory law to protect on the basis of gender and sexual identity, as well as biological sex. However, people do not come in only two cookie-cutter biological forms, with matching gender, to engage in assigned types of sexual behavior. Additionally, one might argue that sexual harassment law should address only sexual advances made to women. Such arguments belie that harassers target only XX individuals, and only by requesting favors or engaging in violent sexual assaults. As soon as jurists quit essentializing their peers, all people can benefit from constitutional and statutory guarantees. Two inspirational thinkers have offered their respective advice regarding the pursuit of equality and the end of discrimination. India’s Mahatma Gandhi suggested, “The only difference between man and man all the world over is one of degree, and not of kind, even as there is between trees of the same species. Wherein is the cause for anger, envy, or discrimination?” In sum, we are all human beings. I would add that we are all pansexual human beings. From the U.S., Martin Luther King, Jr. recognized, “Injustice anywhere is a threat to justice everywhere.” Until we all enjoy equal treatment, free from discrimination, violence, and harassment, we face a risk that the plague of oppression might grow more robust and spread. What is the solution? One answer comes again from Mahatma Gandhi who wrote, “The aim of university education should be to turn out true servants of the people who will live and

25 die for the country’s freedom.” Education serves as a powerful tool in the struggle against discrimination, prejudice, and oppression. Let’s educate and remind our jurists and political leaders at every opportunity that “We, the People”60 expect protection for all pansexual persons, including women and our LGBTI peers.

ENDNOTES

1 Letter of Prof. Dr. Jaspal Sandhu, January 29, 2015, to The

Rajiv Gandhi National University of Law (scanned copy on file with author).

2 See, e.g., Oren Dorell, Meet Randy Berry, The First U.S.

Diplomat for LGBT Rights, HUFF. POST, April 29, 2015, available at http://www.huffingtonpost.com/2015/04/29/randy-berry-lgbt- rights-diplomat_n_7173328.html (last accessed Dec. 12, 2016).

3 U.S. CONST. amend. XIV.

4 Carey v. Population Servs., Int’l, 431 U.S. 678, 684,

(1977) (quoting Roe v. Wade, 410 U.S. 113, 152 (1973)).

5 Id. at 685 (citing Loving v. Virginia, 388 U.S. 1, 12

(1967)).

6 Id. (citing Skinner v. Oklahoma ex rel. Williamson, 316

U.S. 535, 541-542 (1942)).

7 Carey, 431 U.S. at 685 (citing Eisenstadt v. Baird, 405

U.S. 438, 453-454 (1972); id., at 460, 463-465 (White, J., concurring in result)).

8 Id. (citing Prince v. Massachusetts, 321 U.S. 158, 166

(1944)).

9 Id. (citing Pierce v. Society of Sisters, 268 U.S. 510, 535

(1925) and Meyer v. Nebraska, 262 U.S. 390, 399 (1923)).

10 Id. (quoting Roe v. Wade, 410 U.S. at 152-153).

11 Lawrence v. Texas, 539 U.S. 558, 562 (2003).

12 Id. (italics added).

13 Samuel Warren & Louis Brandeis, The Right to Privacy, 4

HARVARD L. REV. 193 (1890).

14 THE CONST. OF INDIA art. 21 (1949) available at http://lawmin.nic.in/olwing/coi/coi-english/coi-indexenglish.htm

(last accessed Dec. 12, 2016).

15 Unni Krishnan v. State of Andhra Pradesh ¶33, 1993 AIR

2178, 1993 SCR (1) 594, 700-701 (1993), available at http://indiankanoon.org/doc/1775396/ (last accessed January 14,

2016) (referring to Griswold v. Connecticut, 381 U.S. 479 (1965)).

16 Griswold v. Connecticut, 381 U.S. 479, 484 (1965). The

Griswold Court explained, “The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. . . . Various guarantees create zones of privacy.” Id.

17 Council of Europe, EUROPEAN CONVENTION FOR THE

PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS, AS

AMENDED BY PROTOCOLS NOS. 11 AND 14, November 4, 1950, ETS

5, available at http://www.refworld.org/docid/3ae6b3b04.html (last accessed Dec. 12, 2016).

rd 18 sex, n.1 OED ONLINE (OED 3 ed., December 2008) http://www.oed.com.proxy.ulib.uits.iu.edu/view/Entry/176989?rske y=l7seiC&result=1&isAdvanced=false (last accessed Dec. 12,

2016) (defining sex as “a. Either of the two main categories (male and female) into which humans and many other living things are divided on the basis of their reproductive functions”).

19 Id. (defining sex as “b. In extended use, esp. as the third sex. A (notional) third division of humanity regarded as analogous to, or as falling between, the male and female sexes; spec. that consisting of: (a) eunuchs or transsexuals”).

20 Plyler v. Doe, 457 U.S. 202, 221 (1982). The Plyler Court explained:

Public education is not a “right” granted to

individuals by the Constitution. San Antonio

Independent School Dist. v. Rodriguez, 411 U.S.

1 . . . (1973). But neither is it merely some

governmental “benefit” indistinguishable from other

forms of social welfare legislation. Both the

importance of education in maintaining our basic

institutions, and the lasting impact of its deprivation

on the life of the child, mark the distinction.

Id.

21 THE CONST. OF INDIA art. 21A (2010) available at http://lawmin.nic.in/olwing/coi/coi-english/coi-indexenglish.htm

(last accessed Dec. 12, 2016).

22 Letter of Prof. Dr. Jaspal Sandhu, supra note 1.

23 Straight, Lesbian, Gay, Bisexual,

Transsexual/Transgender, Intersexual.

24 Letter of Prof. Dr. Jaspal Sandhu, supra note 1.

25 Sheila Jeffreys, The politics of the toilet: A feminist response to the campaign to ‘degender’ a women's space, 45

WOMEN’S STUD. INT’L. FORUM 42, 47 (2014) (citing Joanna Sugden,

Why women go to the toilet in groups, THE WALL STREET JOURNAL,

INDIA REAL TIME, Nov. 19, 2013, available at

http://blogs.wsj.com/indiarealtime/2013/11/19/why-women-go-to- the-toilet-in-groups/ (last accessed Dec. 12, 2016).

rd 26 sex, n.2 OED ONLINE (OED 3 ed., December 2008) http://www.oed.com.proxy.ulib.uits.iu.edu/view/Entry/176989?rske y=l7seiC&result=1&isAdvanced=false (last accessed Dec. 12,

2016) (defining sex as:

2. Quality in respect of being male or female, or an

instance of this; the state or fact of belonging to a

particular sex; possession or membership of a sex.

a. With regard to persons or animals.

Since the 1960s increasingly replaced by gender

(see gender n. 3b) when the referent is human,

perhaps originally as a euphemism to distinguish

this sense from sense 4b. The word sex tends now to

refer to biological differences, while gender often

refers to cultural or social ones.

Id. (italics in original).

27 See, e.g., J.E.B. v. Alabama, 511 U.S. 127, 157 n.1 (1994)

(Scalia, J., dissenting) (acknowledging that “[t]he word ‘gender’ has acquired the new and useful connotation of cultural or attitudinal

characteristics (as opposed to physical characteristics) distinctive to the sexes”); Ronald Turner, Same-Sex Sexual Harassment: A Call

For Conduct-Based and Gender-Based Applications of Title VII, 5

VA. J. SOC. POL’Y & L. 151, 194-95 (1997) (distinguishing biological sex from “cultural and attitudinal gender” and arguing against conflation of the two concepts); Anita Barnes, Note, The

Sexual Continuum: Transsexual Prisoners, 24 NEW ENG. J. ON

CRIM. & CIV. CONFINEMENT 599, 600-03 (1998) (defining gender to include “self-image,” “stereotypes surrounding sex” and “the social construction of sex”).

28 U.S. CONST. amend. I.

29 THE CONST. OF INDIA art. 19(1)(a), available at http://lawmin.nic.in/olwing/coi/coi-english/coi-indexenglish.htm

(last accessed January 14, 2016).

30 sex, n.4 OED ONLINE, December 2014, http://www.oed.com.proxy.ulib.uits.iu.edu/view/Entry/176989?rske y=l7seiC&result=1&isAdvanced=false (last accessed January 14,

2016) (defining sex as “b. Physical contact between individuals involving sexual stimulation; sexual activity or behaviour, spec.

sexual intercourse, copulation. to have sex (with): to engage in sexual intercourse (with).”).

31 This reasoning found support in recent American jurisprudence. In Lawrence v. Texas (2003), discussed above, the

Court invalidated a Texas criminal sodomy statute violated by two

(presumed) men. The Court stated, “It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons.” Lawrence, 539 U.S. at 567.

The Lawrence Court relied on reasoning from a 1992 abortion rights case, Planned Parenthood of Southeastern Pa. v.

Casey. 505 U.S. 833 (1992). In Casey, the Court held, “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth

Amendment. Id. at 851. To this determination, the Lawrence Court added, “Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Lawrence, 539

U.S. at 574.

32 576 U.S. -- , 135 S.Ct. 2584 (2015).

33 Id. at 2593 (italics added).

34 Unni Krishnan, supra note 15.

35 Indian Penal Code § 377. The law states in full:

377. Unnatural offences.—Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

Id.

36 Yuvraj Joshi, A New Law for India’s Sexual Minorities,

THE GUARDIAN, July 21, 2009, available at http://www.theguardian.com/commentisfree/2009/jul/21/india-gay- rights-law (last accessed Dec. 12, 2016).

37 Naz Foundation v. Govt. of NCT of Delhi, 160 Delhi Law

Times 277 (Delhi High Court 2009), available at https://www.escr- net.org/sites/default/files/Court_decision.pdf (last accessed Dec. 12,

2016).

38 THE CONST. OF INDIA arts. 14, 15, 21, available at http://lawmin.nic.in/olwing/coi/coi-english/coi-indexenglish.htm

(last accessed Dec. 12, 2016).

39 Vikram Doctor, SC ruling on homosexuality: Curious case that sets India back to Victorian days, THE ECONOMIC TIMES, Dec.

12, 2013, available at http://articles.economictimes.indiatimes.com/2013-12-

12/news/45123284_1_delhi-high-court-lgbt-lesbians (last accessed

Dec. 12, 2016).

40 Koushal v. Naz Foundation ¶54 (2013) at p. 97, available at http://judis.nic.in/supremecourt/imgs1.aspx?filename=41070 (last accessed Dec. 12, 2016).

41 Id. at ¶42, p. 82 (italics added); see also J. Venkatesan

Supreme Court sets aside Delhi HC verdict decriminalising gay sex,

THE HINDU, Dec. 11, 2013, available at http://www.thehindu.com/news/national/supreme-court-sets-aside- delhi-hc-verdict-decriminalising-gay-sex/article5446939.ece (last accessed Dec. 12, 2016).

42 Jennifer Ann Drobac, Pansexuality and the Law, WM. &

MARY J. WOMEN & L., 297, 298 (1999).

43 Id. at 300–01.

44 The Merriam-Webster Dictionary defines pan- as “1: all

: completely.” Merriam Webster Dictionary, http://www.merriam- webster.com/dictionary/pan (last accessed Dec. 12, 2016). It defines sexual as “1: of, relating to, or associated with sex or the sexes.” Id., http://www.merriam-webster.com/dictionary/sexual (last accessed

Dec. 12, 2016). Logically, it defines pansexual as “: exhibiting or implying many forms of sexual expression.” Id., http://www.merriam-webster.com/dictionary/pansexual (last accessed Dec. 12, 2016).

45 See, e.g., Jennifer A. Drobac, The Oncale Opinion: A

Pansexual Response, 30 MCGEORGE L. REV. 1269, 1272 (1999).

46 The following discussion is based on my original work on pansexuality. Drobac, supra note 42, at 301-302.

47 Victoria’s Secret is a chain of lingerie stores.

48 One can find these shows at http://www.netflix.com/browse (last accessed Dec. 12, 2016).

49 Information on Game of Thrones is available at http://www.hbo.com/game-of-thrones (last accessed Dec. 12, 2016).

50 See, e.g., Marion Braizaz, CK One: androgyny a hymn to equality, Womenology.com available at http://www.womenology.com/sectors/beauty-toiletries/ck-one- androgyny-a-hymn-to-equality/ (last accessed Dec. 12, 2016).

51 The reference begins at https://www.google.com/#q=pansexual (last accessed Dec. 12,

2016).

52 See, e.g., India’s Daughter (a BBC film directed by Leslee

Udwin 2015). A. P. Singh, a defense lawyer in the case, asserted in the documentary:

If my daughter or sister engaged in pre-marital

activities and disgraced herself and allowed herself

to lose face and character by doing such things, I

would most certainly take this sort of sister or

daughter to my farmhouse, and in front of my entire

family, I would put petrol on her and set her alight.

Id.

He insisted later that he stood by this comment. Adam

Withnall, India’s Daughter: How India tried to suppress the BBC

Delhi gang-rape documentary, THE INDEPENDENT, March 5, 2015,

available at http://www.independent.co.uk/news/world/asia/indias- daughter-how-india-tried-to-suppress-the-bbc-delhi-gangrape- documentary-10088890.html (last accessed Dec. 12, 2016). Would he have had this attitude had Ms. Singh been a man? Unlikely. This case highlights that stereotypical interconnections of chromosomal sex, gender, and behavior disadvantage women as well as sexual minorities.

53 See The Sexual Harassment of Women at Workplace

(Prevention, Prohibition and Redressal) Act, 2013 (ISHA), THE

GAZETTE OF INDIA, April 23, 2013, available at http://www.iitbbs.ac.in/notice/sexual-harrassment-of-women-act- and-rules-2013.pdf (last accessed Dec. 12, 2016).

54 Id., Preamble. It reads:

Whereas sexual harassment results in violation of the fundamental rights of a woman to equality under articles 14 and 15 of the Constitution of India and her right to life and to live with dignity under article 21 of the Constitution and right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment . . . .

Id. (italics added).

55 Vishaka v. State of Rajasthan, Aug. 13, 1997, available at http://indiankanoon.org/doc/1031794/ (last accessed Dec. 12, 2016).

56 Id.

57 See ISHA, Preamble.

58 Email from Goibibo, India to author (March 14, 2015,

11:23 a.m. IST) (on file with the author).

59 Diniel Patel, Why don’t hotels in India allow unmarried adult couples to stay together?, QUORA, Jan. 29, 2015, available at https://www.quora.com/Why-dont-hotels-in-India-allow-unmarried- adult-couples-to-stay-together (last accessed Dec. 12, 2016)

60 U.S. Const., Preamble; The Const. of India, Preamble.