The Importance of Institutional and Legal Recognition for Societal Change

Heather Katharine Allansdottir

Human Rights & Constitutional Law Academician

Ms Heather is a Faculty Member of the Law and Social Sciences Department at Bifröst University and a researcher of constitutional law and human rights law. She has a doctorate from Oxford University in comparative constitutional law and an MA in human rights law from the University of Bologna and University of Sarajevo. She has worked as a journalist and a researcher of human rights in the Balkans, former Soviet Union, Middle East and Australia. She published a book on freedom of expression in 2013 and her books on polar law, and comparative constitutional law, are both forthcoming.


Photograph by Yana Paskova for New York Times

The struggle of marginalized, persecuted and discriminated peoples and communities, such as the LGBTIA+ community in India, is a mult-faceted one. Societal discrimination and stigma weaves its way through every part of a person’s life, from their physical safety to their freedom of movement to their employment opportunities, financial security and health and mental well-being. Sociologists and psychologists have extensively documented the extent to which being marginalized, persecuted, and facing societal discrimination affects the psyche, physical health, financial opportunities and overall wellbeing of an individual. It is an experience that no individual should suffer.

Academics, policy analysts and NGOs alike have all extensively documented the way in which sexual minorities face both legal and societal obstacles to being able to lead full lives free from fear and violence.

The question is therefore raised – how do we best tackle such discrimination and its tragic negative outcomes? As a human rights activist who has worked with organisations such as Amnesty International, when I raise this question with others who are concerned about the plight of those who are marginalised and face discrimination, they often reply – what we need is societal change, to change attitudes, and we do this through campaigning, protesting and combatting the stigmas, such as homophobia, transphobia and sexism, in daily life.

While this is undoubtedly important work, and the civil rights movements and protests of non-violent resistance in the 20th century show the importance of protest and mass movement, and my own doctoral work on the Egyptian revolution showed me first-hand the importance of mass protests and dissent against injustice, this is not the full picture.

What I have learned from my work as both an activist and academic of human rights law and as an academic of constitutional law, is – change must also be institutional, legal, constitutional and formalised. This does not in any way dismiss the important work of grassroots activists who work so bravely and tirelessly on the ground to improve the situation of those suffering discrimination, persecution and injustice.

The point is rather, that legal tools – such as constitutional recognition and legal activism that sets precedents enshrining the rights of persecuted groups – provide a much greater force to systematically improve the situation of marginalised, persecuted and discriminated people.

The tireless and commendable work of Indian LGBTIA+ activists has made great progress in the last decades, on both the level of national and state laws, and in beginning to combat entrenched social stigmas such as homophobia, transphobia and misogyny. After the enormous efforts of Indian LGBTIA+ activists, in 2018 the Supreme Court repealed the colonial-era Section 377 of the Indian penal code, which made same-sex intercourse a crime. This great victory, which is to be celebrated, does not, however, mean that the fight for justice is over. Colonial-era laws and societal norms still entrench discrimination in all spheres of public life.

A 2019 UNESCO report, and a report that came out in the same year by the non-governmental NGO the International Commission of Jurists, both outlined the way in which sexual minorities in India still suffer and face discrimination in all spheres of their lives, from school bullying and job discrimination to structural injustices such as housing and access to services. The UNESCO report detailed accounts of teachers beating male students for acting too ‘effeminately’ and forcing transgender students to sit apart from other students. There is clearly still much work to be done, despite the great progress in the Supreme Court in 2018, to secure the freedom and safety of sexual minorities in India.

Homophobia and persecution of sexual minorities in India can, as many academics have noted, be directly traced back to the colonial legacy and the damage of British imperialism, and it is a crucial part of India’s flourishing that this damaging legacy of the past be left behind. CARPAL will play a crucial, pivotal role in building upon and bringing together the work of human rights activists and campaigners for equal rights, and linking this to academic research on the issue of discrimination.

Organisations such as CARPAL as so important because they play this very unique, pivotal role, between grassroots activism, advocacy, and institutional change. They are our best hope for securing social justice and an end to discrimination because they tie these threads together: grassroots and societal-level change, advocacy, and institutional recognition. CARPAL is a particularly vital force for providing a space for research on the issues of LGBTIA+ people in India: without this research, we cannot make the appropriate choices to combat discrimination and injustice. Research of the lived experiences of sexual minorities helps us to more fully understand their current needs and the legal, structural, and social change that is required in order for them to be able to lead lives safe from violence. CARPAL will provide a hub for such research, to develop both best practices and methodological tools, to ensure that researchers, advocates and policy-makers alike have a rich resource of information and analysis available to them to make decisisons about how best to improve the lives of sexual minorities in India.

As noted above, the link between social activism and institutional change is complex and often fraught with difficulties – grassroots campaigners do great work that does not always yield the fruit it should in institutional and legal change. As such, whilst I fully acknowledge and defer to the expertise of Indian experts and activists working on this topic, I hope my contribution to this great initiative is to help this important work, of grassroots activism and research, ‘feed up’ into institutional change. One of the main focuses of my academic work at the moment is securing recognition of Aboriginal and Torres Strait Islander Australians in the Australian constitution. Working on this issue and talking with and working alongside Aboriginal activists has taught me that institutional recognition provides an important tool for marginalised and persecuted groups to advocate for their rights. CARPAL will provide a similarly vital force to the campaign for the rights of LGBTIA+ Indian communities, linking the struggle for justice with the quest for deep change.