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By - Vanshika Sahu
In India, lesbian, gay, bisexual, and transgender (LGBT) rights have progressed dramatically in recent years. However, Indian LGBT individuals continue to suffer societal and legal challenges that non-LGBT citizens do not encounter.
The LGBT community erupted in exuberant celebrations around the nation as they celebrated their win against the 200-year-old British statute that criminalised same-sex relationships. The significance of this entire ruling can be inferred from Justice Indu Malhotra's statement that ““History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries”.”
Let's understand LGBTQ in depth:
LTGQB are abbreviations for lesbian, gay, bisexual, transgender, and queer or questioning. These phrases refer to a person's gender identification or sexual orientation.
The initialism, as well as some of its frequent forms, has been in use since the 1990s as a catch-all phrase for sexuality and gender identity. Beginning in the mid-to-late 1980s, the word LGBT was adapted from the initialism LGB, which began to supplant the term gay in reference to the larger LGB population. When transgender persons are not included, the shorter term LGB is used instead of LGBT.
It can refer to anyone who is non-heterosexual or non-cisgender, rather than only lesbians, gays, bisexuals, or transgender persons. LGBTQ includes the letter Q for people who identify as queer or are questioning their sexual or gender identity[1] to highlight this inclusivity.
Evolution of LGBTQ rights in India
Recently, Indian government has removed colonial-era regulations that discriminated directly against homosexual and transgender identities, as well as specifically interpreting Article 15 of the Constitution to outlaw discrimination based on sexual orientation and gender identity. However, important legal safeguards, such as same-sex marriage[2], remain unaddressed.
The British colonial government created Section 377[3] of the Indian Penal Code in the pre-independence era, which criminalised all forms of non-procreative sexual relations. The tyrannical rule not only targeted gays, but also all other sorts of non-traditional sexual activity, including within heterosexual relationships. As a result, this rule was nothing more than a holdover from Victorian orthodoxy, which had no place in a democratic society like India.However, it took more than 70 years and nearly two decades of judicial battles to overturn this antiquated statute, which had become a tool for harassing and exploiting anybody who didn't fit into the standard binary of sexuality and gender.
Under laws implemented in 2019, transgender persons in India can alter their legal gender after undergoing sex reassignment surgery[4] and have the constitutional right to register as a third gender.
Furthermore, several states provide accommodation for hijras, a traditional third gender community in South Asia, as well as social benefits, pension systems, free procedures in government hospitals, and other programmes aimed at assisting them. According to the 2011 Census, India has roughly 480,000 transgender persons.
The Supreme Court of India decriminalised consensual gay intercourse in the landmark case of Navtej Singh Johar v. Union of India[5] in 2018, by reading down Section 377 of the Indian Penal Code and eliminating consenting homosexual sex between adults from its scope.Despite strong political efforts in favour of LGBT rights, there is still a substantial level of homophobia in India, with an opinion survey[6] estimating that one out of every four Indians opposes same-sex partnerships. LGBT persons in India received more tolerance and acceptance in the 2010s, particularly in big cities[7].
Transgender Persons (Protection of Rights) Bill, 2019[8]
The Transgender Persons (Protection of Rights) Bill, 2019, was passed with the goal of protecting transgender people's rights by preventing discrimination in employment, education, healthcare, and access to government and private businesses. However, in the guise of community empowerment, the law exposes individuals to more institutional tyranny and dehumanises their bodies and identities.
Discrimination against transgender people is prohibited by the bill, which includes denial of service or unfair treatment in the following areas:
education;
employment;
healthcare;
access to, or enjoyment of, goods, facilities, or opportunities available to the general public;
right to movement;
right to reside, rent, or otherwise occupy property;
opportunity to hold public or private office; and
access to a government facility
The measure takes away an individual's ability to choose his or her sexual orientation, which is a key component of the right to privacy established by the NALSA[9] decision. According to the bill, changing one's gender identification on official records is only possible after proof of sex reassignment surgery, which must be verified by a District Magistrate. This deprives the Trans community of their essential human right to autonomy and privacy, as well as exposing them to harassment by authorities.
Another discriminatory component of the measure is that the punishment for "sexual abuse against transgender[10] people" is merely two years, although a comparable offence committed against women can result in a harsh penalty of up to seven years.
As a result, imposing different degrees of punishment for the same type of conduct based only on gender identification is inherently discriminatory, arbitrary, and in violation of the equal protection principle.
The measure is also deserving of criticism since it incorrectly ignores the violence and tragedies that transgender people face inside their own families. The law makes it illegal for people to leave their families and join the trans-community, infringing on their right to join any group and their freedom of movement. In the event of familial abuse, the trans community's sole option is to go to a rehabilitation centre.
Despite the fact that the measure aims to give "inclusive education and opportunities" to the transgender population, it lacks a comprehensive strategy to do so. There are no provisions for scholarships, reservations, modifying the curriculum to make it LGBT+ inclusive, or guaranteeing safe inclusive schools and workplaces for transgender people.
As a result, it may be stated that although the courts are taking positive measures to strengthen and defend the LGBTQIA+ community's rights, the legislature is rejecting those same rights. It is past time for the government to recognise and enact legislation in conformity with the landmark decision, or the LGBTQ community will continue to endure setbacks in their fight for equal rights to those enjoyed by heterosexuals.
Re marriage
The Special Marriage Act of 1954[11] makes it possible for Indian citizens and Indian nationals living abroad to marry regardless of their creed, caste, or religion. So, while India's marriage rules have developed through time, there is now no provision for same-sex couples to marry[12], which seems sensible given that the Supreme Court just decriminalised homosexuality two years ago. However, the legislature will have to address these issues sooner or later.
Several legal cases involving same-sex weddings are currently pending. The next step for LGBT campaigners is to promote and demand that the government draught laws allowing LGBTQ couples to marry, adopt children, and inherit their spouse's assets. The reality is that, while the Union government left the constitutionality of section 377 to the courts in 2018, it has also signalled that it will likely oppose any petition for same-sex marriage.
However, in light of recent legal decisions, this appears to be paradoxical, given that if we truly wish to adhere to the concept of equality in the context of LGBT persons, then the ability to marry, inherit property, and share insurance (medical and life) must all be included. As a result, denying these fundamental rights solely on the basis of sexual orientation is unacceptable and unlawful, as it violates the constitutional rights to equality (Article 14) and liberty (Article 15). (Article 19).
Conclusion
Apart from everything, the reason LGBT people have so many difficulties is just because of their gender identification, including employment discrimination, physical and verbal abuse, and harassment that extends to higher education, K–12 institutions, and career training programmes.
LGBT community members do not need to defend themselves due of their gender inclinations because they are also human like everyone else. However, it is not a crime to be attracted to someone because of their inherent sexuality. It is all about natural factors that are still beyond human control if two people wish to live together happily with their permission and it is also medically established that it is not an illness.
Given the discrimination and harassment that LGBT+ individuals suffer in the workplace, it is critical for the government to pass new legislation or change current ones to make workplaces safer for LGBT+ people.
The rules must also be significantly rewritten to ensure that LGBT+ couples receive all of the employment perks that a heterosexual pair receives.
While efforts should be focused on enacting gender-neutral harassment legislation, both the public and private sectors must also develop anti-discrimination policies and take proactive steps to remove prejudiced perceptions founded in homophobia and transphobia.
Sources:
"Civilities, What does the acronym LGBTQ stand for?". The Washington Post. Archived from the original on 3 January 2020. Retrieved 19 February 2018.
In a first, Gurgaon court recognizes lesbian marriage - Times of India". The Times of India. Retrieved 31 January 2017.
"Politics and Society Between Elections" (PDF). Regional Political Democracy. 2 - Social Identity: 88–92. 2019.
"Hundreds of gay rights activists join pride march in Delhi". ABC. 12 November 2017. Archived from the original on 12 November 2017. Retrieved 10 May 2021.
"In a first, Gurgaon court recognizes lesbian marriage - Times of India". The Times of India. Retrieved 31 January 2017.
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