Written by Saai Sudharsan Sathiyamoorthy for The New Indian Express

Over the decades, as our constitutional courts came to be confronted with matters relating to homosexuality and the rights of persons from the third gender, the language employed by these courts evolved from clinical or derogatory to one of acceptance and affirmation. During this period, the natural meaning of the word ‘queer’, once used as a pejorative, has transformed into an inclusive umbrella identity, having been reclaimed by the LGBTQIA+ communities.

Equally, the evolution of the word’s usage in today’s constitutional jurisprudence represents a remarkable transformation from colonial criminalisation to constitutional affirmation, though its direct usage in judicial opinions still remains denotative, lexical and surprisingly limited.   

From the early colonial period to the late 20th century, ‘queer’ was mostly restricted in usage in the context of ‘strange or odd’. That’s the sense in which it was used by the Madras High Court at one of the many proceedings related to the infamous liquidation of Travancore National and Quilon Bank (1941)—"it did strike him as queer”. One of the very first constitutional cases to employ the word was S B Trading Co (1951), where the Calcutta High Court observed about different classes of tenants, “[t]hey are not similarly circumstanced individuals and if the effects are queer as indeed they are, even they cannot be said to infringe the constitutional guarantee of equal protection”.

Decades later, when the Delhi High Court delivered the famous judgement in Naz Foundation (2009), ‘queer’ was employed once: “When everything associated with homosexuality is treated as bent, queer, repugnant, the whole gay and lesbian community is marked with deviate and perversity.” In its judgement on the appeal, the Supreme Court chose not to employ the word at all, except while extracting the high court’s judgement. 

Thereafter, the Supreme Court in Navtej Singh Johar (2018) showed a pronounced alteration in its jurisprudential stance, using the word to note that the “LGBTIQ movements focused on… the interplay of oppressions arising from being both queer and lower class”. It also quoted a judge of the High Court of Australia who found the word queer was being “sometimes used generically, usually by younger people, to include the members of all sexual minorities”. 

Thereafter, a significant change in attitude set in with the Supreme Court’s judgement in Supriyo (2023), where the word is used liberally. In one footnote, the court even notes that the term “once pejoratively used to demean persons who engaged in ‘deviant’ sexual behavior or gender expressions, has been reclaimed by activists as a way of expressing pride in their devalued and marginalised identities, challenging majoritarian hetero-normativity”. 

In a recent judgement, however, a division bench of the Madras High Court found the term discomforting. As the court correctly notes, dictionaries define queer as ‘strange or odd’ and the phrase ‘queering one’s pitch’ means spoiling something. From the bench’s standpoint, using terminology that inherently suggests abnormality to describe citizens seeking equal protection under law seems counterintuitive, even potentially harmful. This perspective reflects a broader judicial responsibility: ensuring that legal language affirms dignity rather than diminishing it. What the court’s analysis doesn’t capture is the powerful history of linguistic reclamation that has transformed ‘queer’ from a slur to a symbol of pride and resistance. 

Identity in gay and lesbian theory has always been fraught. In the wake of the Stonewall movement in New York, openly gay and lesbian perspectives reshaped political, philosophical and literary debates—initially through feminist critiques of patriarchy—before coalescing into queer theory by the late 1980s. 

Early essentialist models of lesbian and gay identity—defining sexuality by strict, supposedly universal traits—ended up excluding those who didn’t fit the mould, erasing intersecting factors like race and ethnicity, and treating identity categories as fixed rather than historically and socially constructed. 

Michel Foucault’s examination of the historical construction of ‘homosexuality’ played a significant role in changing this. He argued that sexual identity arises from medical, legal, and social practices, rather than reflecting an innate category. His work underscores that modern sexual classifications are contingent inventions shaped by specific historical forces. 

Queer theory contested the rigid definitions, showing how those supposed ‘essences’ excluded anyone whose experience—shaped by race, subcultural affiliation, or other differences—did not conform to the norm. It also challenged the idea that identity categories are timeless and immutable, instead highlighting the historical and social forces that morph them. By embracing ‘queer’ as an open-ended term—defined by its departure from whatever norm holds sway—queer theory and LGBTQIA+ communities have created room for a wide array of self-definitions. It reminds us that identity is something we construct, not something prescribed.

Thus, the court’s discomfort with ‘queer’ reflects a deeper discomfort with any language that suggests deviation from a norm. But perhaps that’s precisely why we should embrace it. It amounts to a rejection of the very concept of ‘normal’ and ‘strange’. The court’s approach should be celebrated—not as the final word, but as part of an ongoing conversation.

Saai Sudharsan Sathiyamoorthy | Advocate, Madras High Court

(Views are personal)

(saaisudharsans@gmail.com)