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The battle for gay rights in Burma

Loud dance music, strobe lights, vodka shots and cocktails: the fare at Rangoon’s Flamingo Club doesn’t stand out from what’s on offer at any number of nightlife spots around the city. But on the last Saturday of the month, things are slightly different.

As of this month, FAB, the “the first party for lesbians, gays and friends in Yangon,” will call Flamingo Club home. Since its inception in January, FAB has become a fixture on Rangoon’s burgeoning expat social calendar and a destination for well-heeled locals of all sexual preferences.

“For a long time we were discussing how frustrating it was that there were no open events for LGBT [lesbian, gay, bisexual, transgender] folk to attend,” an organizer told DVB. “At that time we were unaware that there were low-key events taking place around the country … but none that openly targeted the LGBT community. As three of us are expats, we decided to take the risk and see whether the authorities would intervene.”

It would have been unthinkable to throw a queer-friendly club night in Rangoon as little as two years ago. But its existence is largely a function of the Burma’s economic opening to the outside world, and does not reflect the reality for most of the country’s sexual minorities. There is no legal protection for LGBT people in Burma, who face widespread social discrimination and police persecution. Homosexuality is de facto outlawed under Section 377 of the country’s penal code, and LGBT individuals are routinely harassed by the police under other statutes.

Section 377 mandates punishments for anyone who “voluntarily has carnal intercourse against the order of nature with any man, woman or animal,” including fines and imprisonment for up to 10 years. It does not explicitly mention homosexuality, meaning that other “unnatural” acts, such as heterosexual anal and oral sex, also fall under its purview. Even though it has historically been employed against consenting, adult homosexuals, this has become exceedingly rare, with its main use today being to prosecute child molesters and rapists.

Like most of Burma’s criminal laws, it is a direct holdover from the Indian Penal Code of 1860. Roughly 80 countries still have similar laws on the books, and at least half of those – across Africa, the Caribbean, and Asia – are direct legacies of British rule.

The penalty for same sex activity is 10 years to life. Even if homosexual relations cannot be proved, a litany of other charges may be leveled at LGBT Burmese: negligently spreading sexual disease (Sections 269 and 270); committing a public nuisance (Section 290); or the vaguely worded Emergency Provisions Act (section 5j) which bans any activity that may “affect the morality” of an individual or society in a negative way.

The Myanmar LGBT Rights Network, a collection of individuals and activist groups, formed an alliance a year ago to push for the law’s elimination, but they have an uphill battle ahead of them. “Whenever we talk about abolishing 377, the response we get is, ‘we need to maintain the law, because condoning homosexuality is not a part of Burmese culture’,” said Hla Myat Tun, a program officer at activist group Colors Rainbow, which leads the network. As part of its outreach activities, Colors Rainbow publishes a Burmese-language LGBT-themed magazine, operates an online TV channel, and conducts outreach activities and trainings across the country. “But in reality, the law isn’t our law – it was imported from the British, and they don’t practice it in their law anymore.”

England and Wales did away with their sodomy laws in 1967, and India modified its Section 377 in 2009 to exclude sex between consenting adults, including homosexual activity. Its continued presence in Burma is curious, as “sodomy” in the colonial legal sense, has never been particularly taboo.

“[Section 377] comes from the European notion that sodomy is sin,” said David Gilbert, a PhD candidate at the Australian National University whose research looks at LGBT politics in Burma. “That played very messily on local queer cultures. It doesn’t fit very well, because in Burma there isn’t a clear sense that sodomy is sin.”

Gender roles and identity in Burma have been heavily influenced by Theravada Buddhism, whose cosmological hierarchy privileges gender-normative men. “A lot of the discrimination transgender people face follows similar patterns in the broader patriarchal culture within Burma, where women are also discriminated against,” Gilbert told DVB. “One area we can see this in is the Buddhist concept of karma and rebirth, where a transgender individual, a male born with a female consciousness, is explained as the result of past sins, such as adultery in a past life.”

There is little to no social stigma attached to being a “dominant” gay male, and female-female pairings tend to attract less negative attention than their male counterparts. But “feminine” men and transgender women are particularly singled out for abuse and discrimination.

In July, the arrest of 12 men and transgender women at a popular cruising spot near Mandalay Palace made national headlines. Media reports recounted the indignities they were subject to, including having to strip bare in front of the police and play leapfrog over one another. They were allegedly forced to sign statements promising not to dress like women, and steer clear of the area where they were arrested.

LGBT people mistreated by the police have few resources at their disposal to fight abuses. To combat this, EQUAL, a Rangoon-based advocacy and legal aid organisation, offers them free legal services, and works in the interests of intravenous drug users and sex workers as well. “The three populations we work with are very vulnerable in front of the law,” said Zar Li Aye, EQUAL’s only full-time lawyer. “MSM [men who have sex with men] people don’t have rights to a lawyer. Some MSM people have HIV, and need ART [anti-retroviral treatment], which they are not given access to in custody.”

“Whenever we talk about abolishing 377, the response we get is, ‘we need to maintain the law, because condoning homosexuality is not a part of Burmese culture’.”

One transwoman caught in the Mandalay dragnet was charged under Section 35C of the Police Act, another piece of colonial legislation dating to 1899, and sentenced to a week in prison. EQUAL has launched an appeal to have her retroactively pardoned, and are expecting a ruling next week. Section 35C and its counterpart in the Police Act that covers Rangoon, 30C, allow for the summary arrest of “any person found between sunset and sunrise having his face covered or otherwise disguised, who is unable to give a satisfactory account himself” – giving the police carte blanche to round up gay men and transwomen on the grounds that, by wearing women’s clothing, they are attempting to conceal their identity.

“A lot of the everyday persecution against sexual minorities, especially transwomen, falls under the Police Act,” said Lynette Chua, an assistant professor of Law at the National University of Singapore and an expert on LGBT issues and social change. “Police persecution is a particularly important issue, because it reflects the larger problems with law enforcement institutions.”

Despite its campaign to have it taken off the books, the Myanmar LGBT Rights Network is aware of only one individual currently incarcerated under Section 377 – a transwoman arrested on 20 December 2010, outside a public toilet near Theingyi Market in downtown Rangoon. In May 2011, she was sentenced to five years in prison by the East Yangon District Court.

One important avenue for the network’s activism is through the Myanmar National Human Rights Commission, a quasi-governmental body comprised of retired academics and bureaucrats. But while Hla Myat Tun claims his group has forged strong links with some of its members, there is no consensus among its members that LGBT rights need to be protected.

On November 18 this year, a same-sex wedding occurred in the town of Kyaiktiyo in Mon State. While it is not uncommon in Burma for same-sex couples to live openly as “husband” and “wife”, the ceremony attracted an unusual amount of media attention, owing to the fact that the couple chose to make it a public event. In response, Sit Myaing, the commissioner of the Myanmar Human Rights Commission, told reporters that same-sex marriage is against Burmese traditions, and is generally frowned upon internationally. While Burma is generally tolerant of same-sex couples, he claimed, the Kyaiktiyo pair had crossed a line. “The way people understand sexuality and gender identity is different in Burma,” Chua said, “in that they don’t necessarily think about those issues in relation to human rights.”

In a statement prepared for a UN-backed conference on HIV and AIDS in the Asia-Pacific last week, Aung San Suu Kyi called for an “Asia-Pacific community of compassion to end discrimination,” as the stigma surrounding homosexuality in Burma prevents men who have sex with men from seeking out prevention and treatment. But Suu Kyi’s spokesman, Nyan Win, told DVB that decriminalizing homosexuality is not part of the NLD’s official policy, and that the party has no immediate plans to address the issue.

Much like her deafening silence on the issue of abuse against Muslims in Burma, it’s likely that Suu Kyi is wary of speaking out too strongly in favour of LGBT rights before the 2015 elections. “The NLD is now in the [legislature], but there are very few of them,” said Zar Li Aye. “The NLD is an opposition party, and so they don’t want any negative feedback. Most people in Myanmar are very traditional, and don’t like same-sex relations.”

In India, the changes to Section 377 came about through repeated appeals to the Supreme Court. But Burma’s highest court of appeal still isn’t truly independent, making the justice system an unlikely avenue for pursuing change. “When they [activists] talk about legal reform, the judiciary is not really in their consciousness. They always talk about pursuing change through parliament,” said Chua. “It just shows how legal change has to be pursued based on the local context.”

Even though it’s rarely employed nowadays against consenting adults, the Myanmar LGBT Rights Network has decided to focus on repealing Section 377 because doing so would send a strong signal to the police and society at large that the discrimination and harassment facilitated by other laws would no longer be acceptable. While the barriers to ridding Burma of institutionalized homophobia are high, Hla Myat Tun is optimistic that it will eventually happen.

“It takes time, for sure, but according to our experiences after working in Burma for a year, it is very positive and people are very open-minded,” he said. “We have a lot of allies… and we can move really fast.”