Rights of LGBTQs In India – An Analysis

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INTRODUCTION

India is a country where human rights are based on the central idea that all humans are equal. Anything that undermines this is a violation that leads to discrimination. LGBTQ people are individuals whose gender identity or gender expression is different from the typical expectations of the gender they were assigned at birth. The scuffle of the LGBTQ+ for equal rights has taken the spotlight. These people are fighting for their rights in courtrooms on the streets. Well, known celebrities are openly discussing their sexual orientation in public, which is an excellent step for alleviating discrimination from society. Gays and lesbians are featured in movies not just as characters but as members of society. Despite such advances, the LGBTQ+ community continues to face inequality and discrimination in all walks of life. No law in the country prevents an employer from firing an employee based on sexual orientation.

A lot of parents lose their children’s custody because they belong to the LGBTQ+ community. Many students who are part of the LGBTQ+ community feel embarrassed to go to school, leading to depression, anxiety, and a sense of social withdrawal, which sometimes leads to suicide. The stigma and discrimination often leave the LGBTQ+ community in poverty and render them vulnerable to violence. The LGBTQ+ community has been deprived of many rights that every citizen of this country is entitled to, like the right to life, freedom of speech, and other rights. The LGBTQ+ community may have won its battle when section 377 was decriminalized. Still, victory may gather the real meaning only when the LGBTQ community secures the right to marry, the right to adoption, and surrogacy. The most heartbreaking part is that the LGBTQ+ community doesn’t have proper laws to protect them from a heinous crime like rape.

 In many countries, being transgender subjects them to daily discrimination, humiliation, bullying, and name-calling. The LGBTQ+ community had to always fight for their legal rights, equality, and respect. Until the landmark judgment of Navtej Singh Johar vs. union of India, where the supreme court decided to decriminalize section 377, the LGBT t never had any legal rights to back them up. The struggle to decriminalize 377 had started almost two decades ago, and ever since then, this was the community’s first victory. For the first time in decades, they could look at themselves in the mirror without feeling like a criminal.  In some countries, these people aren’t just discriminated against but are also heavily punished for being transgender. It is very daunting to see that these transgender people, who are human beings and citizens of the same country, are denied their fundamental legal rights. Around 80 countries still consider having physical relations with the same sex as illegal despite thinking of themselves as modern and progressive.  In my opinion, these people deserve to be treated equally, with respect and need to be accepted in society. Some transgender people still feel ashamed of telling people because society yet looks down on them. We need a world where everyone can feel comfortable with that they are born with and not feel discriminated against. The world discriminates with them and we should make sure that such a thing doesn’t exist in the society. We have a world with equal values and hence this should be the ritual of the society. Discriminating someone because they are different than us is sheer horridness and we should keep away from them because such a thing spreads negativity in the surrounding.

A] PROBLEMS FACED BY LGBTQ COMMUNITY

1)Discrimination meted out to the LGBTQ community.

The LGBTQ Community is an integral part of the Indian society and despite this they have been facing severe discrimination and inequality on all fronts. Until 2013 the transgenders were not recognized as a citizen of the country until the revolutionary judgement of National Legal Service Authority vs Union of India or famously called the NALSA judgement. It was in this judgment that the transgenders were recognized as citizens of the country, extending all the fundamental rights to them and giving them the identity of the third gender. It took India so long to just recognize them as a citizen of the country before this they were not even considered a Despite this their fundamental rights have been violated on all fronts. Many schools have denied admission to children belonging to the LGBTQ community. In schools, colleges, and other public places this community of people face insult, humiliation and they have to feel ashamed of something which is not incorrect in the first place.  In many families the children who are identified as part of this community are thrown out of their houses are subjected to abuse, plenty of restrictions and many of them are disowned by their family. After the people come to know about their sexual orientation, they start looking at them with a different perspective and many of friends of the same gender as the LGBT started maintaining distance with them in the fear of having feelings for them. This discrimination and inequality is a violation of fundamental rights under article 14,15,21. Their right to equality, right to life is being violated.

2) Problems of equality

In India the LGBTQ community  are never treated as equals neither in the society nor in the eyes of law. In India in the case of Tushar Nayar vs the union of india where the supreme court dismissed the petition seeking civil rights to homosexuals. Civil rights include same sex marriage, abortion, surrogacy. All of the above have been denied to the LGBTQ community. This is a grave violation of article 14,15,19,21. Article 14 stands for equality before the eyes of law, and denying civil rights to the LGBTQ is meting out inequal treatment. Article 19 that talks about freedom of expression also includes  the right to freely express yourself including your sexual orientation. Every citizen in this country should be treated equally and they should get equal opportunities. They LGBTQ community should not be deprived of their rights and their opportunities just because they have a different sexual orientation.

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2) Health problems

Many of the transgender people are prone to diseases because of high level of inequality, discrimination, and social stigma and because of this they are less accessible to services which include hospitals and healthcare facilities which damages their well being and therefore puts them at a further risk of HIV and other diseases like cancer, high diabetes. Due to the above health problems policy issuers like LIC refuse to give out policies to them assuming that they are infected with HIV. Their situation is really sad and horrifying and such treatment should not be meted out to criminals also.

3) Denied job opportunities

The denial of jobs to LGBTQ community is not just popular in India but also in other parts of the world. There are no substantial laws in India that protect the LGBTQ community from being removed from a job due to its sexual orientation. The only reason why a person should be removed from office should be based on his performance and nothing else. Having a different sexual orientation than normal people doesn’t make them criminals. Due to this many LGBTQ  are facing monetary problems and are having survival questions due to lack of opportunities given to them. The attempt of this community to lead a normal life has never been supported by the society or the government. In the case of  TerVeer v. Billington, in the US the district judge ruled that the LGBQ cannot be removed from their work place due to their sexual orientation. This revolutionary judgement has changed many lives in the US. We can only hope that this kind of a judgement be ruled in India as well.

4) housing problems

 LGBTQ community have been facing severe housing problems. Sometimes when the owners of the house find out about the sexual orientation they either ask them for double rent or evict them from their houses without any notice. This is highly unfair. Just because someone is not like others or doesn’t fall into the normal category it doesn’t mean that they are wrong and deserve to be treated this way. Many of the LGBTQ people do not get appropriate jobs and on top of that they face severe discrimination and are treated as tough they are criminals. The people of the country and the government need to look into this and make this country LGBTQ friendly.

5) problems of depression and suicide

Many of the LGBTQ  community  face grave abuses, bullying, social intolerance and inequality. This lowers their self esteem and their self confidence which gives rise to social withdrawal, anxiety, depression and tendencies of suicide. A horrifying incidence in a school took place  in Chennai where a 19 year old boy committed suicide because he was constantly a target of bullying and homophobia which means dislike or prejudice against gay was severely practised. This is only one case of suicide but there are so many of the LGBTQ who have committed suicide because of intolerance and the fear of constantly proving the others that although they might differ sexually they are not different in any other way.

B] PROGRESS OF THE LGBTQ COMMUNITY OVER THE YEARS

The fight of the LGBTQ community to get its rights has been going on for the past two decades. And despite many failures the community has never given up and always fought for its rights. The word homosexuality is surprisingly as old as the vedas. At that time the homosexuals were referred as the tritiya prakriti which means the thirds kind.

The transgender community dates back to the third centuary where the kovagam festival is celebrated when Krishna had dressed up as a women to marry Aravan. This festival is still celebrated in the Madurai. Then in 1862 section 377 was introduced by Thomas Macaulay which mentioned that homosexuality was against the order of the nature and hence criminalized this section. Even the great father of our nation Mahatma Gandhi was against same sex marriage and he has said it is the most dangerous doctrine to preach anywhere. Then in the year 2009 in the case of Naz foundation vs government of Dehli (NCT) which de- criminalized  section 377. It was a revolutionary day for all the LGBTQ community as it was the day they had been fighting for long. But this happiness did not last for too long as in 2013 in the landmark judgement of Suresh Kumar Koushal vs union of india section 377 was re-crimanalized. This was a very dark day for all the LGBTQ community. Then during the dark days a ray of sunshine came in. It was the Justice K.S  putaaswamy  vs union of india popularly called as the   Puttaswamy judgement  which made right to privacy an integral part of right to life under article 21. This extended to everyone without discriminating between genders and a special mention to the LGBTQ community. Then finally on the 6th of September 2018 in the historical judgement of Navtej singh Johar vs Union of India Section 377 was de-crimalized. This was a huge day for the LGBTQ community although it received many negative comments from various people. This has so far been the history of the battle the LGBTQ have fought to reach where they are today.

C] RIGHTS OF THE LGBTQ COMMUNITY

 There are many rights protecting the LGBTQ community

  • The transgender persons ( protection of rights) act, 2019

In this the fundamental rights of the LGBTQ community are protected and they can approach the court if any of their rights are violated.

  • Article 14, 15,19,21,29

These rights include right to equality, right to freedom of speech and expression, right to privacy included in right to life and right to protect the minorities.

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  • The LGBTQ is still not given civil rights [3]

There are many other rights given to the LGBTQ but the civil rights including right to have same marriage, abortion, surrogacy are still not available to them.

  D] LAWS OF INDIA NOT ENOUGH TO PROTECT THE LGBTQ COMMUNITY

 There are many rights given to all citizens of the country including the LGBTQ Community. But these laws are not enough to protect the community. The laws in our country are not meant for everyone. For instance the rape laws in the country only mention women and do not take into consideration the third gender. Hence if a transwomen get raped there are no laws to protect her. This happened in a recent case. Recently in Bengluru two transwomen got raped and there was nothing they could do. In an interview they said that the police first mocked them and the doctor questioned  how could they be raped. Even civil rights are not given to the LGBTQ community. There should be laws that protect the LGBTQ from being pray to such crimes where the culprit can go scott free because there are no laws protecting the community. There are no laws that protect the LGBTQ from being removed from the job because of gender discrimination.

 E] VIEWS OF VARIOUS COUNTRIES REGARDING LGBTQ COMMUNITY

In countries like Qatar, Nigeria, Saudi Arabia , Afghanistan, Sudan  homosexuality is punished with death and consider it illegal. In countries like USA, India where same sex intercourse is legally allowed and followed in the country. India has still not allowed same sex marriage but the USA has permitted its citizen to indulge in same sex marriage. There are about 80 countries in the world where same sex intercourse and marriage is punishable by death legally. The awareness regarding the LGBTQ community is only observed in a few countries where other wise it is treated as if it is a crime.

E] FUTURE OF THE LGBTQ COMMUNITY                 

The future of the LGBTQ community in India is taking place gradually and people have slowly started recognizing them at as an important part of the society. Gradually the LGBTQ community is also progressing. Recently in the case of Anjali Sanjana Jaan vs State of Maharashtra the Bombay Hight court allowed the transwomen to contest for the elections. These small but effective steps are slowly shaping the society to  encourage and help this community progress in life . Many Indian celebrities like Karan Johar, chef Vikas Khanna have openly accepted to being part of the LGBTQ community. In the movies the  LGBTQ members are not just portrayed as characters but as members of the society. These gradual changes in the society portray that soon the LGBTQ community will be completed accepted in the society without any discrimination. An article in theprint.in talks about the readiness of the Indian constitution in including same sex marriages but the problem is the readiness of the society and if the courts would be able to handle the issues regarding same sex marriages. According to me the society is comparatively changing and in the coming years it will be able to show further progress and accept the community as its own in a few years.

CONCLUSION AND SUGGESTIONS

The LGBTQ Community has always been subject to discrimination and inequality. They have been excluded from the society just because they have a different sexual orientation than normal people. The LGBTQ community needs to be protected and for that more laws need to be introduced. The government and the constitution need to add laws that protect all aspect of the LGBTQ community and they do not feel discriminated and inequal. Stricter laws and implementation needs to be there. The laws would include imprisonment of atleast a year to show discrimination to LGBTQ. There are no laws that protect the LGBTQ from being raped. The rape laws only include the word women but does not include transwomen or transgender. These laws are hugely discriminating and they should be changed or modified for the betterment of the community. According to me more awareness about this community needs to spread to people and they should be informed that the LGBTQ are not people who you should discriminate as they are also human but they just have a different sexual orientation. And not just India many countries all over the world show huge discrimination to this community and this can be very toxic for the coming generations. It is absolutely imperative that every human being’s freedom and human rights are respected, all over the world.”– Jóhanna Sigurðardóttir ( former Iceland president)

BIBLIOGRAPHY

  1. What is LGBT discrimination – healthy talbot
  2. How India’s laws fail the LGBTQ – Asia and pacific policy society
  3. How Many Of These 93 Things Do You Know About India’s LGBTQ Movement? – https://www.youthkiawaaz
  4. Bengaluru: Three men gang-rape two Manipuri transgender students- newsbyte ( Siddhant pandey)
  5. Need to look forward to the future of LGBTQ community- The Indian express 08th September 2018 04:00 AM 

[1] National legal service authority vs union of India-  Writ Petition (Civil) No. 400 of 2012

Tushar Nayar vs the union of india – Writ Petition(s)(Criminal)      No(s).    176/2018

” Terveer v. Billington, 34 F. Supp. 3d 100, 111 (D.D.C. 2014)

[2] Naz foundation vs government of Dehli (NCT)- WP(C) No.7455/2001

   Suresh Kumar Koushal vs union of india- – WP(C) No.7455/2001

Justice K.S  putaaswamy  vs union of india- (2017) 10 SCC 1

Navtej singh Johar vs Union of India- (2018) 10 SCC 1

Anjali Sanjana Jaan vs State of Maharashtra

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Author: Dhwisha Bhatt, Symbiosis Law School, Hyderabad

Editor: Kanishka VaishSenior Editor, LexLife India.

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