LGBT- RIGHTS AND PROTECTION

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A section of society that is mostly sidelined and unheard is the LGBT section. LGBT people are a minority but have equal constitutional rights. However, their right to equality and equal treatment in society is violated on a regular basis. Not only does society as a whole treats them differently, but so does the state machinery. They are frequent victims of human rights violations. They have made serious strides for their acceptance [13]. The previous decade was the decade of LGBT rights. Around the world, LGBT human rights are coming into mainstream focus. Many were visible in public and in law courts demanding their rights [8]. As a result, various advances are made in many countries regarding this. When it comes to India LGBT rights have been a contentious issue for many years. After the landmark judgment of 2018 by the supreme court, the sexual minorities are finally a step closer to living a dignified life in society. Even though the ruling has been in effect for three years, they continue to fight for their rights. Before proceeding with the rights and protections available for LGBT, let’s define who they are and what are their problems in our society.

What is LGBT?

 The initialism for Lesbian, Gay, Bisexual, and Transgender is LGBT. Activists began to use this initial in the US from 1988. Sometimes it’s also said to be LGBTQ for which Q stands for those who are identified as Queer or are questioning their identity. These initials are combined to form LGBTIQ (7) or LGBT+ [1]. The LGBTQ are distinct groups of gay culture. These people are usually underrepresented or are left out in various researches.[2]

Condition in Indian society

Referring to Hindu mythology we can see the mentioning and practicing of transgenderism. This indicates that there was no stigma about this during those days. In their feminine side, Lord Shiva and Vishnu are shown in communion. Ancient texts, Kamasutra, Mahabharata, and many more have accepted homosexuality practices and have encouraged it [13]. The Rigveda recognizes homosexual aspects of human life in its text named “Vikriti Evam Prakriti” meaning “what seems unnatural is natural”. But in recent times people hesitate to accept them. The community has been marginalizing them. The awareness and acceptance of LGBT rights are more prevalent in urban places and have a more positive outlook comparing to the rural places where people indulge in activities like honor killing, rapes, physical abusing, etc. The media has also become more accepting of a wide range of sexual orientations than in the past. Social media, interviews, pride parades, etc. has provided the LGBT community to raise their voice and spread awareness about their culture [14]. The majority of English-language media supports a progressive agenda on the issue of LGBT equality rights [13].

 Society accepts only heterosexuality and disregards homosexuality as abnormal and unnatural. This creates innumerable difficulties for LGBT to live in society. The state has failed to create special legislation to protect LGBT rights. In our society, they are subjected to a variety of traumas and stigmas. They face intolerance, threat to violence, inequality, mockery, and many more. People try to make them realize that they are different. They cannot enjoy social protection, health care, and pension schemes. Many legal provisions were deprived from them including then recognition of same sex-marriages. In the fear of losing their jobs LGBT people usually hide their identity. Revealing their identity can risk their job and working life [6].

Harassment and ragging in educational institutions lead young LGBT people to depression and drop-outs. They develop low self-esteem and low confidence and this gradually isolates themselves from family and friends. Family conflicts are very often due to lack of communication between LGBT child and their parents [6]. LGBT teens have high risk of health and mental problem. In order to release problems these people mostly get addicted to drugs and tobacco. They also become victims of hate crimes. Many a time they attempt suicide due to high rejection, discrimination, abasement, and torture. Politics and decision making is out of their reach making it difficult for them to exercise their basic civil rights [11].

Is homosexuality a crime in India?

Homosexuality is the sexual or emotional attraction towards the same-sex person [15]. An ancient diplomatic material – Arthasastra – does not sanction homosexual intercourse. It was treated as an awful minor offense. Within Manusmriti lesbianism was a serious offence and had severe punishments. The Shariat law of Muslims also treats homosexualism as a serious offense. History says that it was the 18th century British rule that criminalized and prohibited homosexual relations in India under section 377 of IPC saying that it’s against the order of nature [6].

The section states that:

  • Unnatural offenses: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with 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.” [13]

The despotic law not only targeted homosexuals, but also all other forms of non-traditional sexual intercourse, including heterosexual unions [3]. This led to a fast decline in the acceptance of this group. It was an offense for voluntarily having “carnal intercourse” against the nature’s order. This section criminalized all sort of non-procreative sexual intercourses [6].

 An explicit mention of homosexuality or homophilia is not there in any books of Indian statute. For being homosexual, a person cannot be punished but a sexual act of sodomy is a criminal offense. The provision under ‘moral turpitude’ in Labor laws is anti-homosexual. An employee’s mere claim can become the reason for job dismissal. A relation other than blood relation or marital relation are no entitled to several benefits coming under Employee Provident Fund Act, Pension Act, Insurance Act, Workmen Compensation Act, etc. [7]

Effects of criminalization

The criminalization of homosexuality leads to discrimination. LGBTQ people have limited access to health care. It creates barriers to access HIV prevention, testing, and treatment. Public health evidence shows that their non-acceptance in society leads them to substance abuse, violence, isolation, and mental health problems.

There are several arguments raised against IPC Section 377. These arguments state that the section abridges human dignity. The constitution of India makes it mandatory to provide equality to all and so it is the right of everyone including the LGBT to express their views, wishes, and choices. The section fueled the issue of non-acceptance of the LGBT people which was prevalent since long. It creates a barrier to the community’s development and country’s economic growth [9].

Criminalization violates the basic fundamental rights of LGBT people as a citizen who is abiding by the Indian constitution.

  • Article 14 provides the right to equality. It states that no one should be denied equality before the law and equal protection of law/
  • Article 15(1) and 20 prohibits discrimination of a person on any grounds like sex, religion, race, caste, or place of birth. It is the discrimination on the basis of sex that the LGBT section lacks educational and job facilities and is denied equal pay for equal work [6]. The Indian constitution states that although the term ‘sex’ refers to male and female, it is broad enough for sexual orientations to include in it [7].
  • Article 19 allows this freedom of speech and expression to all the citizens
  • Article 21 provides the right to life and private liberty which encompasses the right to privacy. The Indian Constitution does not expressly grant the right to privacy as a fundamental right, but it has been emphasized from time to time by the Supreme Court in some cases, so it is considered to be in the vicinity of fundamental rights. As a result, the state’s right to privacy must not be infringed upon [6].

Section 377 seems to abridge these rights of the LGBT section and therefore was mandatory to decriminalize homosexuality so that the LGBT people can lead a life with dignity and respect.

Stepping towards a dignified life

Earlier Indian policy only recognized males and females. This deprived the third genders from many rights like the right to vote, own property, marry, education, employment, etc. [18]. There is no legislation approving the registration of same sex couples as a domestic partnership or civic contract unions [7]. The state failed in creating legislation for protecting LGBT minorities and to provide justice to them [6].

The Law Commission of India’s 172nd report in 2000 recommended the deletion of IPC Section 377 saying that it has a direct impact on homosexual’s life and is harmful to the public. It also stated that if homophilic relations are banned then it can generate an illegal ways of same sex practices in private. In 2003, a study on transgender (Kothi and Hijra sex workers of Bangalore) by the Public Union for Civil Liberties concluded stating the urgent needs of LGBT rights protection laws as there is high violation of their human right all over. A research in 2006 found that 20% to 40% of homeless youth are LGBT youths due to society’s negative approach towards them. In 2008 Suicide Prevention Resource Centre conducted a research and noticed that the reasons behind LGBT’s suicidal behavior are discrimination, isolation, mental illness etc. They advised that supporting LGBT and empowering them can remove this behavior from among the community. A research in 2009 conducted by Gentle warriors found that due to less protection, discrimination, and criminalization, sexual violence against LGBT is at its peak [6]. The Naz foundation V Government of NCT Delhi, popularly known as the Naz judgment of 2009 by Delhi high court, was the first time when a court in India declared section 377 as unconstitutional. This case was filed as a PIL by a Delhi based NGO. The declaration was on the basis that the section is violative of Articles 14, 15, and 16 of the Indian constitution [8]. This decision was challenged at the supreme court in the case of Suresh Kumar Kaushal V Union of India in the year 2013.The high court decision was overruled by the apex court and homosexuality was recriminalized once again holding that the IPC Section 377 was not violating any articles said in the earlier high court judgment. The court also held that the parliament has the duty to amend the section or to repeal it [6].

For the first time in history, in April 2014 in the NALSA judgment held by the supreme court transgenders were given recognition as a citizen. All fundamental rights and the identity of the third gender were extended to them [5]. The order to treat transgenders as educationally and the socially backward class was passed by the supreme court. In order to help them gain dignity and get their rights assured, the government was directed to provide them job and educational benefits and incentives. The supreme court in 2016 cleared the clarifications raised on whether Lesbians, Gays, and Bisexuals are qualified as ‘third gender’ by stating that only transgenders would qualify as ‘third gender’ [12]. Justice(retd.) KS Puttaswamy V Union of India, popularly known as the integral judgment in 2017 held that the right to privacy is integral. Article 21 that grants the right to life and liberty was expanded to include right to privacy irrespective of gender and sex. The Supreme Court ruled that bodily autonomy was an essential component of the right to privacy and this bodily autonomy includes an individual’s sexual orientation. This right to LGBT inalienable and it granted them autonomy and protection from state action while choosing their partners [8].

 The seminal judgment that decriminalized homosexuality in India, Navtej Singh Johar V Union of India was passed in 2018. The decision was the result of many PILs from the various LGBTQ communities and was based in large part on an individual’s autonomous right to choose their own partner, regardless of sex. The rule dismissed the supreme court’s stand on the Suresh Kumar case and section 377 of IPC was slashed down stating that Section 377 is violative of Article 14, 15, 16, and 19(1) of the Indian constitution. The Uttarakhand high court in 2018 directed to provide transgender people with reservation in educational institutions. In the case Arun Kumar V Inspector General of Registration 2019, Tamil Nadu, Madras high court lights into the category of transwomen to be included as brides. The definition of marriage only included men and women under the Hindu Marriage Act, 1955. This judgment expanded to include transgenders to be identified as women to be brides. The judgment took the clause of self-identification given in NALSA judgment as per which a person can identify as any gender without anybody to verify it and so transgenders have the constitutional right to get identified as transwomen if they wish to [8]. On12th June 2020, an acknowledgment was passed by Uttarakhand high court that protection is granted for couples cohabiting in live in relationship even though the concept of same-sex has no legal recognition [17].

Impact of decriminalization

 Decriminalization of homosexuality opens a window of acceptance and achievement for the LGBT sections. It enabled them with access to many things which they were deprived of earlier. They are now able to come out and open up with their sexual preferences. There is a reduction in discrimination and harassment faced by them in society. They can now come up with more progressive demands like the right to form partnership, employment equality, inheritance, Gay Marriage laws, etc., and can claim their rights. Self-acceptance, as well as psychological and emotional security of the community, was also associated with the landmark judgment of the supreme court of India. The decision has created grey areas, and guidelines will be required to deal with cases in which, for example, a gay individual withdraws “consent” and files a complaint against the partner. The laws in India on sexual assault do not recognize men as rape victims [10]. The historic judgment puts India amongst countries with legal homosexual activities [16].

The Transgender Persons (Protection of Rights)2019

After a great struggle, the parliament in 2019 passed the “The Transgender Persons (Protection of Rights) Act “which protects transgender rights and aims at their social welfare. The Ministry of Social Justice and Empowerment had introduced the act to the Lok Sabha to intending to provide protection of rights, welfare, and other matters. The statutory provisions prohibited unfair discrimination of transgender people and give them equality of rights. This act also ensures equality for all transgender people in areas where they have previously been harassed to the extreme. They are treated equally in the labor market, education, housing, healthcare, and other services, among other things. The bill describes a transgender as a person whose gender does not match the one assigned to them at the time of birth. They can apply to the district magistrate for a transgender person certificate. Transgenders have the right to change their name on the birth certificate and get all their documents updated. After getting their sex reassignment done, a transgender can apply to the district magistrate for revised certificates in order to get identified as male or female. The bill states that people are accepted and treated as transgender only if they provide the ‘Gender change certificate’ issued by the district magistrate as a document of proof. The act protects transgender children and provides the state to come up with efficient welfare ensuring policies for them. By court order, a transgender child can be separated from family in view of protecting and taking care of them [19][20].

Crimes against transgender are punished under the act with imprisonment for not less than six months and can be extended to two years in addition to a fine. Section 18 of the Act makes sexual offenses against transgenders punishable. A complaint against sexual harassment can also be filed by the transgender sunder 354(a) of IPC. LGBT people were subjected to societal harassment to the point where they were forced to beg and serve people in inefficient ways in order to earn a living. The bill prohibits and considers begging as a crime and is punished for more than six months with a fine. The constitution of the National Council for Transgender Persons is also provided by the act [19][20]. The act is sometimes regarded as very problematic as it does not allow self-determination of transgender status. Any public employment and educational reservations are not allowed in the act. A 360-degree protection is not ensured to transgenders through the act. Many people have criticized the Act because of various flaws in it and was also challenged in the supreme court [4].

On 18th April 2020, in the exercise of its power under the statute of 2019 published the Draft Transgender Persons (Protection of Rights) Rules 2020 seeking comments and suggestions from the public for the same. The rule bridges the gap between the act and NALSA judgment directions. For the purpose of protecting transgender rights and interests and to facilitate them with access to schemes and welfare measures, the government was directed the constitution of a welfare board, formulate schemes and measures and review the existing ones, take adequate measures for the prohibition of discrimination, create facilities referred to in section 12(3) of the act, carry out awareness campaigns and more [21].

Also read: Right to Vaccines

Future prospects

There is an urgent need to modify the LGBT rights because it is critical to determine whether their rights are being followed and whether they are allowing them to live freely or not.  Despite the fact that homosexuality is no longer a crime, the LGBT community continues to face prejudice and neglect [3]. Legal changes are critical. Although the country interpreted Article 15 of the Constitution to prohibit any form of discrimination against homosexuals, many other legal provisions, including same-sex marriage, have not been provided for. The rights of a same-sex married couple living together in India are denied because the Constitution does not even recognize their marriage [17]. Implementation of more policies, schemes, and measures for the safety and protection of the group should be initiated.  However, much more is required to change society’s perception of LGBT people. Society is unable to freely accept and discuss taboo topics such as homosexuality. Sex education should be given effect in order to understand sexual orientation and gender change. Knowledge about LGBT, their lifestyle, sexual needs, and so on should be taught to all including school children and elders so that a LGBT child can discuss their issues with their parents and teachers without hesitation and be guided in the right direction. LGBT section should be provided with the same value and respect as others in the society. Sensitization of law enforcement agencies is also required so that they could appreciate the genuine concerns of LGBT people. Initiatives to make the workplace and workplace culture more supportive and inclusive of LGBT groups should be taken by the governments. More opportunities should be provided to them in social and economic activities. Organizing workshops and seminars on homosexuality, LGBT, sexual orientations, etc. can help in normalizing their situation in society. Oversight of policies being amended and followed should be made mandatory. Strict actions on violence against the LGBTQ section can alleviate their difficulties to an extent. Free legal assistance is another option to improve their social life. Social media and film fraternity should be more considerate dealing with LGBT issues while depicting them on screen. The visual media can play a significant role in imparting knowledge and disseminating factual information about them, their choices so that society can get a true picture of their situation and condition living in our society [13].

Conclusion

We live in a progressive world. It’s about time for civilization to shed societal taboos and become more realistic. LGBT persons should be granted all of the rights and respect that they are entitled to as human beings and citizens. People should be educated about the varied sexual orientations and the needs they have. The world has been harsh on them for reasons that are not their fault. They have been subjected to violence, disrespect, suffering, and discrimination as a result of society’s treatment of them. It is past time for society to start smiling at them with respect, love, and protection. LGBT individuals are also Indian citizens who follow the Indian constitution. Every right enshrined in the constitution binds them as well. They have the right to the same rights as other citizens. Nonetheless, many of these are denied to them. They have the right to a secure and dignified existence as well. It is vital to remove the blinders that have been placed over the eyes of society in order for them to know that being LGBT is neither a sin nor a crime, nor is it unnatural. Instead, being a homosexual is considered normal. They are one of you and should be treated as such. The legal system and society should make an effort to comprehend their sexual demands and relationship preferences. Everyone has the freedom to pick their life partner, including LGBT people. As a result, not making their weddings lawful is a big partiality towards them. Their lives still require further standards before they can be considered normal. More provisions initiatives should be implemented to improve their situation. To smooth the path to becoming a developed country, all parts of society in the country should be equally empowered and uplifted. Educating the minority can boost the country’s abilities and strengths. So, it is critical to enhance LGBT people’s lives and empower them.

Reference

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 https://en.wikipedia.org/wiki/LGBT (last visited 17 June 2021)

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https://www.ctclearinghouse.org/topics/lesbian-gay-bisexual-transgendered-and-questioning-lgbtq-individuals/

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https://www.business-standard.com/article/current-affairs/the-state-of-lgbtq-rights-india-does-not-have-anti-discrimination-code-120071200179_1.html

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https://www.in.undp.org/content/india/en/home/blog/lgbtequalityindia.html

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http://www.delhihighcourt.nic.in/library/articles/legal%20education/The%20law%20and%20homosexuality%20in%20India.pdf

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https://www.drishtiias.com/to-the-points/Paper2/to-the-point-paper-2-section-377-judgement

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https://www.jatinverma.org/rights-of-lgbt-community-in-india

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https://www.jagranjosh.com/current-affairs/sathiya-and-lgbt-rights-in-india-1488785988-1

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https://taxguru.in/corporate-law/transgender-persons-protection-rights-rules-2020.html

  • detailed case laws available at

https://indiankanoon.org/doc/193543132/

Author: Jyothsna Jyothi S; Sree Narayana Law College, Poothotta

Editor: Kanishka VaishSenior Editor, LexLife India.

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