LGBTQ COMMUNITY IN INDIA
INTRODUCTION:-
Lesbian, gay, bisexual, transgender, and queer or questioning are all acronyms for LGBTQ respectively. These phrases refer to a person's gender identification or sexual orientation. The following are the definitions for the above acronyms:-
Lesbian - A woman who can physically, intimately, emotionally be drawn to another woman. Few lesbians prefer to call themselves homosexual or gay women.
·Gay - The word used to characterize persons who are attracted to members of the same sex on a physical, romantic, or emotional level. Lesbian is a term used by some women to describe themselves.
·Bisexual - The person who can create long-term romantic, and emotional, physical bonds to people of similar gender or people of different genders. Throughout a person's life, they may encounter this attraction in a variety of ways and to varying degrees. To be bisexual, people don’t require to have a particular type of sexual experience at all to be identified and be called bisexual.
·Transgender - Gender identity and gender expression of a person which deviates from what is generally associated with the gender they were born during birth are referred to as transgender. People who fall within the transgender group can use any of several labels to define themselves, including transgender. Doctors provide hormones to many transgender persons to help them match their bodies with their gender identification. Surgical procedures are also carried out on some of the patients.
·Queer - Some individuals who are not solely heterosexual use this term. Lesbian, gay, and bisexual is sometimes seen as excessively restricting and/or loaded with cultural connotations that do not apply to persons who identify as queer.[1]
EVOLUTION OF LGBTQ COMMUNITY IN INDIA
September 6th of 2018 was a special day. On that day, something significant happened that “blew a life of “constitutionality” in the deceased people of the LGBTQ community, who had been going through mind-numbing discrimination and problems for decades. The Supreme Court of India handed a landmark judgment decriminalizing homosexuality by vaguely nullify Section 377 of the Indian Penal Code, making the day memorable for the LGBT+ community. However, it took nearly 70 years and nearly two decades of court battles to overturn an antiquated statute that was used to harass and abuse anybody who didn't fit into the typical sexual and gender binary. But first, let's look at how India's present laws, even after Section 377 was repealed, are insufficient in protecting the LGBT+ community's basic human rights. Though the LGBT rights movement began in the early 1990s, all of the important changes that have occurred since then may be examined in the context of the following significant judgments:-
· Naz Foundation Govt. v. NCT of Delhi [2] - Lucknow police invaded a park in July 2001, ready to bring charges that come under Section 377 of the Indian Penal Code, and arrested a few guys suspecting them of being homosexuals. The police also arrested nine members of the " Bharosa Trust," an NGO dedicated to raising public awareness about safe sexual practices and STDs. These individuals were then charged with conducting a prostitution racket and refused bail. Following the event in Lucknow, the Naz Foundation and Lawyers Collective petitioned the Delhi High Court in 2001, contesting the constitutional soundness of Section 377 of the IPC. The High Court of Delhi realized in the case of Naz Foundation Govt. v. NCT of Delhi which took place in 2009 that Section 377 of the Indian Penal Code carried a limitation of two adults engaging in agreed intercourse held in private. As a result, it was a clear violation of their core fundamental rights, which are contained in the Indian Constitution's Articles 14,15,19, and 21.
· Suresh Kumar Koushal vs Naz Foundation [3] - In view of India's rich and multi-dimensional history of morals and customs, few individuals and ethic-based organizations passionately opposed the concept of decriminalizing gay relationships. They also petitioned the Supreme Court of India to have Section 377's legality reviewed. On December 11, 2013, just when the LGBT community was breathing a sigh of relief following an eight-year fight, the Supreme Court overruled the Delhi High Court's decision and re-criminalized homosexuality. A court bench led by Justice GS Singhvi and Justice SJ Mukhopadhaya found that LGBT+ people were a "minuscule minority" who did not warrant legal protection and that Section 377 of the IPC did not suffer from the sin of unconstitutionality. The Supreme Court's controversial decision, which stripped gays of their basic fundamental rights, drew widespread condemnation. As a result, India's public dialogue on LGBT rights has exploded.
· National Legal Services Authority v. Union of India [4] - The Supreme Court had to rule in National Legal Services Authority v Union of India whether it was necessary to recognize the group of hijras and transgender's population as a 3rd gender for the reasons of education, public health, reservation, employment, and other welfare programs. In a momentous decision, the Supreme Court granted hijras (transgender people) the status of "third gender." Previously, transgender persons were constrained to identify as either female or male, but following the ruling, they could boldly identify themselves as transgender. Transgender persons can now alter their gender without having to undergo sex reassignment surgery as a result of this ruling. They also have a constitutional right to self-identify and get registered as the 3rd gender. Aside from that, different state governments have taken tiny efforts to help the transgender community by enacting health and housing legislation.
· K.S. Puttaswamy v Union of India [5]- When the case of Naz Foundation contended before the Supreme Court that Section 377 of the Indian Penal Code infringed the right to privacy, then the Supreme Court went into great depth on constitutional philosophy and the growth of the right to privacy in the Suresh Kumar Koushal V. Naz Foundation case. The court, however, undervalued the right to the privacy statement in the context of 377 after confirming its critical importance. Although there have been cases of Section 377 which was being misused and violated against the LGBTQ community where their privacy and integrity were put at risk under the concept of harassment, or torture, blackmail and in general, the court also recognized and realized that there had been continuous cases of violation of Section 377 against the LGBTQ community, putting their privacy and integrity at risk. The Supreme Court's decision under Article 21 of the Indian Constitution that the right to privacy is an inherent basic right spurred optimism among the LGBTQ community that Section 377 will be repealed soon.
· Navtej Singh Johar V. Union of India [6] - Homosexuals were once again regarded criminals after the Delhi High Court decision was overturned in 2013. When prominent figures such as Keshav Suri, Ritu Dalmia, and dancer Navtej Singh Johar, among others, filed a case with the Supreme Court challenging the constitutional validity of Section 377 of the Indian Penal Code, the number of LGBT rights rallies in India increased significantly. The Supreme Court decided to send the case to a bigger bench and heard a number of petitions in the process. The government has said that it would not intervene and would allow the case to be settled by the court's wisdom. The constitutional rights to privacy, freedom of speech, equality, human dignity, and protection from discrimination were all argued to be breached by section 377. Section 377 is illegal because it violates the basic rights to intimacy, autonomy, and identity, according to the court. It exempted consensual relations between adults of the same sex/gender from Section 377, decriminalizing homosexuality. The court reasoned that Section 377 is unclear and does not distinguish between what is "natural" and what is "unnatural." It also restricts the ability to express one's sexual identity, as guaranteed by Article 19 of the Indian constitution. The Koushal decision was also strongly criticized by the court, which described it as illogical, capricious, and unlawful. It was also stressed that discrimination based on sexual orientation is unlawful because it is a natural phenomenon, as scientific and biological evidence shows. The Supreme Court also ordered the government to raise public awareness about LGBT rights and to eradicate the stigma associated with them. The judges went on to discuss mental health, dignity, privacy, the right to self-determination, and transgender people.
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STATISTICS OF LGBTQ IN INDIA
Around 2.5 million LGBT persons have reported their sexual orientation to the health ministry, according to estimates. Although there are no official statistics on India's LGBT population, the government believes that there are 2.5 million homosexual persons, based on those who have revealed their sexual orientation to the health ministry. In an interview, it was discovered that LGBT persons reveal their sexual orientation to their families in order to avoid being ostracised by the cost of hiding their sexual orientation due to fear of social rejection, isolation, and high vulnerability to police brutality and sexual assault. This community lacks legal resources to defend itself against discrimination.
DISCRIMINATION AND CONSEQUENCES FACED BY LGBTQ COMMUNITY IN INDIA
It's not simply about sexuality whether you're heterosexual, gay, bisexual, or transgender. It's about complicated lifestyles that affect all parts of a person's life that includes their social, emotional, physical, and professional lives. As a result, because they are human, persons in the LGBT community should have these rights and freedoms as well. However, it is frequently seen that LGBT people are afraid of being tortured, imprisoned, or denied their fundamental rights. Even though there are health disparities between non-transgender and transgender people, it should be understood that being gay, lesbian, transgender, or bisexual has no stigma. Puranas, Vedas, Religious literature and other ancient texts have references to homosexuality. Hinduism holds contrasting views on homosexuality, believing that passionate love can only exist between a man and a woman, and that sex between two men or two women is based on desire, which is forbidden. As a result, homosexuality is seen as a major criminal offense. Although homosexuality has existed in India from time immemorial, it was not until the late 1980s that the first gay magazine, Bombay Dost, and a lesbian collective from Delhi, Sakhi, defined the issue in public as a violation of human rights problem. Because of defamation and the way parents respond to being a homosexual, LGBTQ people are scared to come out and admit it. A large number of LGBTQ people are only accepted by their respective families and other important people only on one condition which is that they have to behave like normal heterosexuals. Their mental and physical health is being put at risk as a result of the absence of support from family and others, and the pressure to accept their conditions often leads to depression, thoughts of committing suicide, and mental ailments/problems. The majority of Indians, it turns out, still live in the 18th century. According to a weird poll performed in India by Edelweiss Tokio Life Insurance in 2019, 56 percent of Indians would refuse an organ from a gay person, while 54 percent say that LGBTQ people should not be permitted to donate organs at all. In a 2009 study, gay, lesbian, and bisexual young adults who had been rejected by their families were compared. They were eight times more likely to have attempted suicide, six times more likely to have had severe depression, and three times more likely to have used illicit substances. Since of society, homophobic landlords refuse to lease their homes to gay and lesbian couples and warn their children not to go because they would be converted into homosexuals. Another serious issue in today's world is transphobia. In research conducted by Stanford in partnership with the Civilian Welfare Foundation, a non-profit in Kolkata, 300 doctors were interviewed to determine their prejudices. It was discovered that ‘doctors' find it difficult to accept that transgender people are raped and refuse to provide anti-HIV medicine to them (even though they are a high-risk category for HIV infection). According to various polls, LGBT employees face a high percentage of prejudice. They are dismissed from their jobs when the company learns of their sexual orientation, they are denied jobs because they are homosexual, or if they are working, they are not promoted and are often paid less than their co-workers. According to a poll, roughly 44% of LGB employees were dismissed once their employer learned of their sexual orientation; however, this percentage was much higher for transgender employees, at 67 percent. Around 11% of lesbian, gay, bisexual, and transgender people were denied jobs, while 46% of lesbians and 30% of transgender people were not promoted at work.
FUNDAMENTAL RIGHTS AND CONSTITUTIONAL REMEDIES FOR LGBTQ COMMUNITY IN INDIA
The Indian Constitution has several sections that prohibit discrimination for a variety of reasons and against different people. Article 14 establishes the Right to Equality, which asserts that everyone, regardless of country, has a right to equality. Discrimination that is completely based on religion, caste, gender, ethnicity, or place of birth is strictly prohibited under Article 15. Citizens have the right to freedom of express themselves and speech under Article 19(a). It implies that every citizen has the right to freely express his or her thoughts and ideas. The Right to Life and Personal Liberty are both mentioned in Article 21 of the Constitution. This article gives every citizen the freedom to live the life of his desires without the need for outside help. The judges stated that the LGBTQ community would have greater meaningful access to the ability to vote, own property, marry, and establish a legal identity. Various aspects of international law support fundamental human rights for everyone on the planet. When the Court recognized the third gender, it determined that basic rights will be available and affordable to the 3rd gender in a similar way as they are to any other man or female. Furthermore, it is unfair to transgender persons that the third gender is not recognized under both civil and criminal legislation such as that which are dealing which adoptions, divorce , marriage and etc .[7] The Centre and State Governments have been directed to adopt adequate measures for transgender people's medical care in hospitals, including providing separate public bathrooms and other amenities. The federal government and state governments have been asked to support the community with a variety of social welfare programs and to recognize the group as socially and economically backward. In terms of how the actual recognition method will work, the Court simply stated that they prefer to follow the person's psychology and employ the "Psychological Test" rather than the "Biological Test." They further state that forcing a person to undergo Sex Reassignment Surgery (SRS) to alter their gender is prohibited.
CONTENT WRITER:
NAME: S . CHINMAYEE
COLLEGE: SYMBIOSIS LAW SCHOOL, HYDERABAD
[1] WHAT IS LGBTQ? , The lesbian , gay , bisexual , transgender Community center , https://gaycenter.org/about/lgbtq/#lesbian [2] Naz Foundation v. NCT of Delhi and Others , (2016) 15 SCC 619 [3] Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1 [4] National Legal Services Authority vs Union of India , (2014) 5 SCC 438 [5]K.S. Puttaswamy v Union of India , (2017) 10 SCC 1 [6] Navtej Singh Johar v Union of India , (2018)1 SCC 791 [7] Rachit Garg , Legal status of transgender people , March 31,2021, iPleaders , https://blog.ipleaders.in/legal-status-transgender-people/
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