The LGBTQ community and their rights

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LGBTQ stands for lesbian, gay, bisexual, transgender, and queer or questioning. These phrases are used to define a person’s sexual orientation or gender identity.

  • LESBIAN– A woman who has a strong physical, romantic, and/or emotional attraction to other women.” Some lesbians may opt to identify as homosexual or as gay women.
  • GAY– An adjective used to characterise persons who have strong physical, romantic, and/or emotional feelings for people of the same gender. Lesbian is sometimes used to refer to women.
  • BISEXUAL– A person who has the ability to create long-lasting physical, romantic, and/or emotional attachments to others of the same or different genders. Over the course of a person’s life, they may experience this attraction in many ways and to varying degrees. Bisexual persons do not need to have had specific sexual experiences to be bisexual; in fact, they do not need to have had any sexual experience at all to identify as bisexual.
  • TRANSGENDER– An umbrella word for persons whose gender identity and/or gender expression varies from what is traditionally associated with the sex they were given at birth. People who fall within the transgender umbrella may refer to themselves using one or more of a wide range of terminology, including transgender. Many transgender persons are administered hormones by their doctors in order to bring their body into line with their gender identification. Some people also have surgery. However, not all transgender persons can or will take such measures, and a transgender identity is not reliant on physical appearance or medical treatments.
  • QUEER-  An adjective used by certain persons whose sexual orientation is not solely heterosexual. Typically, for persons who identify as queer, the categories lesbian, gay, and bisexual are thought to be excessively restricting and/or loaded with cultural connotations that they believe do not apply to them. Some people use the term queer, or gender queer, to describe their gender identity and/or gender expression. Queer, formerly considered a derogatory term, has been reclaimed by some LGBTQ persons to define themselves; nonetheless, it is not a generally acceptable term, even within the LGBTQ community.
  • QUESTIONING- When the Q is present at the end of LGBT, it may also imply questioning. This word refers to someone who is unsure about their sexual orientation or gender identity.”[1]

“LGBT activists and sociologists regard LGBT community-building as a counterpoint to the greater society’s heterosexism, homophobia, biphobia, transphobia, sexualism, and conformism. The phrase pride, or occasionally gay pride, represents the identity and collective power of the LGBT community.”[2]

Same Sex Marriage

“Same sex marriage is the practise of marrying two men or two women.” Although same-sex marriage has been governed by law, religion, and tradition in most nations across the world, legal and societal responses have ranged from celebration to punishment.

Some researchers, most notably Yale professor and historian John Boswell (1947–94), have maintained that same-sex partnerships were acknowledged by the Roman Catholic Church in mediaeval Europe, however this claim has been challenged by others. During the late twentieth century, when views about homosexuality and regulations governing gay behaviour were liberalised, notably in Western Europe and the United States, scholars and the general public grew increasingly interested in the topic.

The question of same-sex marriage regularly caused emotional and political squabbles between proponents and detractors. By the early twenty-first century, several jurisdictions, both national and subnational, had legalised same-sex marriage; in other jurisdictions, constitutional measures were enacted to prevent same-sex marriages from being sanctioned, or laws were enacted refusing to recognise such marriages performed elsewhere. The fact that the same conduct was rated so differently by different groups underlines its significance as a societal issue in the early twenty-first century; it also demonstrates the extent to which cultural variety remained both within and across countries. For same-sex marriage tables from across the world, including the United States and Australia.

In a variety of ways, societies have addressed the interrelated concerns of sexuality, reproduction, and marriage. Their perspectives on the morality, attractiveness, and administrative advantages of same-sex relationships have been as divergent. Notably, by the beginning of the twenty-first century, most countries had chosen one of just three legal answers to these intersecting problems: ignore same-sex relationships, punish them, or offer them a status equivalent to or equal to heterosexual marriage. Many countries have yet to come to an agreement on these concerns.

As previously stated, many communities have typically chosen to overlook the problem of same-sex marriage by classifying same-sex intimacy as a taboo matter. Many of these countries, as well as those that actively outlaw same-sex marriage, argued that homosexuality and lesbianism are mental diseases, and they based their public policies on this basis. By classifying same-sex desire as a mental disorder, the se cultures shifted same-sex relationships and marriage from the jurisdiction of civil laws (contract law) to the area of public safety (the domain of criminal law). In such communities, the threat of prosecution or institutionalisation strengthened taboos around same-sex relationships and talks about it, thereby driving such acts underground.”[3]

 

·        “Obergefell v. Kasich

A male couple, a widower, and a funeral director were all engaged in the case. Following the judgement in United States v. Windsor by the United States Supreme Court in June 2013, James “Jim” Obergefell and John Arthur chose to marry in order to get legal recognition of their relationship. On July 11, they married in Maryland. After learning that their home state of Ohio would not recognise their marriage, they filed a lawsuit, Obergefell v. Kasich, on July 19, 2013, in the United States District Court for the Southern District of Ohio (Western Division, Cincinnati), alleging that the state discriminates against same-sex couples who married lawfully out-of-state. Ohio Governor John Kasich was the main defendant. Because one of the partners, John Arthur, was terminally sick with amyotrophic lateral sclerosis (ALS), they requested that the Ohio Registrar name the other partner, James Obergefell, as his surviving spouse on his death certificate, based on their marriage in Maryland. Even after the local Ohio Registrar decided that discrimination against same-sex married couples was unlawful, the state attorney general’s office declared intentions to defend Ohio’s same-sex marriage prohibition.

As the case continued, District Judge Timothy S. Black granted the couple’s request on July 22, temporarily prohibiting the Ohio Registrar from recognising any death certificate unless it stated the deceased’s marital status at death as “married” and his partner as “surviving spouse.” “Throughout Ohio’s history, Ohio law has been clear: a marriage solemnised outside of Ohio is legitimate in Ohio if it is valid where solemnised,” Black said, noting that some weddings involving relatives or children, while illegal in Ohio, are recognised by the state if lawful in other jurisdictions. The preliminary ruling was not appealed by Ohio Attorney General Mike DeWine. On August 13, Black extended the temporary restraining order until the end of December and scheduled oral arguments on injunctive relief, which is permanent, for December 18.

Meanwhile, David Michener married William Herbert Ives in Delaware on July 22, 2013. They were the parents of three adoptees. William Ives died suddenly on August 27 in Cincinnati, Ohio. His remains were being kept in a Cincinnati funeral home pending the receipt of a death certificate, which is necessary before the deceased’s preferred funeral rite of cremation. Because surviving spouse David Michener’s name could not appear on the death certificate due to Ohio law, he sought legal recourse and was joined as a plaintiff in the lawsuit on September 3.

On September 25, Black granted the plaintiffs’ motion to dismiss the governor and the state attorney general as defendants, and to add funeral director Robert Grunn to the lawsuit so that he could obtain clarification of his legal obligations under Ohio law when serving clients with same-sex spouses, such as his client James Obergefell. Obergefell v. Wymyslo was renamed because Ohio Health Department Director Theodore Wymyslo was replaced as the principal defendant. Plaintiff John Arthur died on October 22. The state defendants asked for the matter to be dismissed as moot. In a ruling dated November 1, Judge Black refused the move to dismiss. On December 23, Judge Black decided that Ohio’s reluctance to accept same-sex marriages from other jurisdictions was discriminatory and ordered Ohio to acknowledge same-sex marriages from other jurisdictions on death certificates. “When a state essentially ends the marriage of a same-sex couple married in another jurisdiction, it intrudes into the area of private marital, family, and personal connections particularly protected by the Supreme Court,” he said.

·        Love v. Beshear

Love v. Beshear, the second Kentucky case, included two male spouses. On June 3, 2006, Maurice Blanchard and Dominique James were married in a religious ceremony. Kentucky county clerks routinely rejected them marriage licences. Timothy Love and Lawrence Ysunza had been living together as a couple for thirty years when they were denied a marriage certificate at the Jefferson County Clerk’s office on February 13, 2014. The couples filed a request to join Bourke v. Beshear the next day, on February 14.

The couples filed a request to join Bourke v. Beshear the next day, on February 14, contesting the state’s prohibition on same-sex marriage. On February 27, the request was granted, and the matter was divided, with the immediate action renamed Love v. Beshear on February 28. On July 1, 2014, Judge Heyburn gave his decision.

He determined that “gay individuals represent a quasi-suspect class” and ruled that Kentucky’s laws prohibiting same-sex marriage “violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and are invalid and unenforceable.” “These arguments are not those of serious people,” he said while examining the state’s grounds for the prohibitions.

·        Henry v. Wymyslo

In the second instance from Ohio, four spouses, a kid, and an adoption agency were involved. Georgia Nicole Yorksmith and Pamela Yorksmith married on October 14, 2008, in California. They had a kid in 2010 and were expecting a second in 2011. Kelly Noe and Kelly McCraken married in Massachusetts in 2011. They were expecting their first kid. On September 20, 2011, Joseph J. Vitale and Robert Talmas married in New York. They sought the services of Adoption S.T.A.R. in 2013, eventually adopting a boy on January 17, 2014, the same day Brittani Henry and Brittni Rogers married in New York. They were also expecting a boy. The three female spouses were residing in Ohio, each expecting a kid later in 2014.

Vitale and Talmas lived in New York with their adopted son, Child Doe, who was born in Ohio in 2013 and was also a plaintiff via his parents. On February 10, 2014, the four lawfully married couples filed a case, Henry v. Wymyslo, in the United States District Court for the Southern District of Ohio (Western Division, Cincinnati), requesting that the state include both parents on their children’s birth certificates. Adoption S.T.A.R., an adoption agency, filed a lawsuit because of the additional and insufficient services that Ohio law required it to give to same-sex parents adopting in the state. The chief defendant, Theodore Wymyslo, was the head of the Ohio Department of Health at the time.

As the lawsuit progressed, the plaintiffs updated their complaint to petition the court to declare Ohio’s restriction on same-sex marriage recognition illegal. By declaring on April 4 that he would issue an order ordering Ohio to recognise same-sex weddings from other jurisdictions on April 14, Judge Black gave the state time to prepare its appeal of his ruling. Lance Himes became temporary director after the principal defendant, Ohio’s director of health, Ted Wymyslo, resigned for reasons unconnected to the case, and the case was renamed Henry v. Himes. On April 14, Black ordered that Ohio must recognise same-sex marriages from other jurisdictions, then on April 16, he postponed implementation of his judgement, save for the plaintiffs’ birth certificates.”[5]

Adoption rights

“Adoption is the legal and social process of establishing a parent-child bond. It is a method outlined in Section 2(2) of the Juvenile Justice (Care and Protection of Children) Act of 2015 in which a biological child of one set of parents becomes the child of another set of parents or a single parent. Adoption policies in India have been tainted by societal biases and a lack of concern for child care. Legislation, such as the Juvenile Justice Act of 20000, has been altered to incorporate the notion of secularity, allowing adoptions regardless of the child’s and parents’ communal and religious beliefs.

However, the Act fell short of achieving equality for adopted and biological children. This statutory weakness was remedied by the Juvenile Justice (Care and Protection of Children Act) of 2006, which permitted an adopted kid to be considered as the parents’ genuine biological child, with all the rights, benefits, and ties that entail. The legislature, on the other hand, has ignored the civil rights of same-sex couples who wish to start a family by adopting children.

Adoption rights for same-sex couples are still denied in a number of overseas nations. Adoption laws in India, such as the HAMA and JJ Act, enable a single person to adopt a child regardless of sexual orientation or gender.

However, the legislation discriminates against same-sex couples by denying them the ability to adapt. However, certain liberal countries in the European Union, the United States, and South Africa have implemented progressive legislation protecting the rights of same-sex couples. In contrast to their Indian counterparts, the United Kingdom, which had adopted legislation criminalizing homosexuality in India, has permitted joint adoption by same-sex couples.       

·        Arun Kumar Sreeja v. Inspector General of Registration (2019)

In the Navtej Johar verdict, the judiciary decriminalised homophobic laws and recognised the rights of same-sex couples under Indian law. However, the social stigma of persons continues to be a substantial impediment to the enjoyment of some rights by same-sex couples. Even if these rights are acknowledged, they cannot be exercised. While the Supreme Court dismissed a petition seeking recognition of civil rights such as adoption and marriage for members of the heterosexual community, the Madras High Court took a different stance in the case of Arun Kumar Sreeja v. Inspector General of Registration (2019), in which Arun Kumar married Sreeja, a transwoman, on October 31, 2018, at a temple in Tuticorin, according to Hindu rites and customs.

When they filed a marriage registration memorandum to Tuticorin’s Joint Registrar No. II, the Registrar refused to register it. The petitioners appealed this judgement before the Tuticorin District Registrar in proceedings on November 16, 2018, who confirmed the Joint Registrar’s ruling on December 28, 2018. The judgement was appealed to the Madras High Court.

Issue- The issue was whether the term “bride,” as defined in Section 5 of the Hindu Marriage Act (HMA), applied solely to women or also to transgender people, given that Sreeja was a transwoman.

 Decision- The Court ruled that a marriage between a male and a transwoman, both of whom practised Hinduism, was a legitimate marriage. The Court said that transgender people have the freedom to choose their gender identity, as recognised by the Supreme Court in NALSA v Union of India (2014), and as underlined in Justice K. Puttaswamy v Union of India (2018) and Navtej Singh Johar v Union of India.

·        Laxmi Kant Pandey v. Union of India (1984).

The Court explicitly said in this instance that “every kid has the right to a family.” This right may be construed to include the right to be adopted. Furthermore, Article 39(f) compels the government to adopt measures to guarantee that children have the chances and resources they need to grow up healthy, free, and dignified. Forcing a kid to live in an institution and depriving them of their right to family is consequently equal to denying them of their freedom and dignity in life, and so breaches our national policy standards. Furthermore, in the case of the Indian Hotel and Catering Association and Anr. vs. State of Maharashtra (2019), individuals argue that the nation cannot force its own moral ideals on society. Depriving a child to be adopted by the LGBTQ+ community is equivalent to the application by the state of its stereotypical morality.”[6]

.


[1] Defining LGBTQ, The Lesbian, Gay, Bisexual & Transgender Community Center, available at: https://gaycenter.org/about/lgbtq/ (last visited Feb 20, 2022).

[2] LGBT community – Wikipedia, En.wikipedia.org,  available at: https://en.wikipedia.org/wiki/LGBT_community  (last modified Feb 16, 2022).

[3] same-sex marriage – Same-sex marriage and the law, Encyclopedia Britannica, available at: https://www.britannica.com/topic/same-sex-marriage/Same-sex-marriage-and-the-law  (last visited Feb 20, 2022).

[4] Marriage in India is still a ‘heterosexual privilege’ 3 years after Section 377 ruling, available at: https://theprint.in/campus-voice/marriage-in-india-is-still-a-heterosexual-privilege-3-years-after-section-377-ruling/760976/  (last visited Feb 20, 2022).

[5] Obergefell v. Hodges – Wikipedia, En.wikipedia.org, available at: https://en.wikipedia.org/wiki/Obergefell_v._Hodges  (last edited Jan 25, 2022).

[6] https://blog.ipleaders.in/adoption-rights-of-same-sex-couples/ Adoption rights of same-sex couples – iPleaders, iPleaders, available at: https://blog.ipleaders.in/adoption-rights-of-same-sex-couples/ (last visited Feb 20, 2022).

Author: Mehwish Siddiqui, Symbiosis Law School of NOIDA

Editor: Kanishka VaishSenior Editor, LexLife India

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