Rights of LGBTQ+

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This article is written by Dhruv Sharma (Rights of LGBTQ+), Vivekananda Institute of Professional Studies, Delhi, an intern under legal vidhiya

ABSTRACT

The day of September 6, 2018, was out of the norm. The Supreme Court of India issued a landmark decision decriminalising homosexuality by partly repealing Section 377 of the IPC, making the day unique for the LGBT+ community. 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.

This article will go deeper into the laws for Rights of LGBTQ+, as well as the application, fundamental words and definitions. Rights of LGBTQ+, will be thoroughly examined in this research study, which intends to do so by examining its nature, components, applications, and other aspects. This page aims to advance knowledge of the Act and its usefulness in legal situations by an analysis of pertinent statutes, case law, and academic opinions.

MAIN TOPIC

The following subsets of persons are referred to as “LGBTQ+”

1. Lesbian: A lesbian is a woman who is attracted to other women sexually.

2. A homosexual person is a male who is attracted to another man sexually.

3. Bisexual: A bisexual individual is attracted to individuals of both sexes sexually.

4. The word “transgender” refers to persons whose gender orientation and gender expression differ from those typically associated with their biological sex.

5. Queer: The antithesis of transgender, queer refers to sexual and gender identities which are neither heterosexual nor cisgender. Since they frequently use pronouns instead than just He or She, the term “queer” itself refers to a group.

HISTORICAL ASPECT

The British colonial authority passed Section 377 of the Indian Penal Code (IPC) in the years before India gained independence, making all forms of non-procreative sexual activity illegal. The tyrannical rule not only targeted gays but also all other non-traditional types of sexual activity, including unions between heterosexuals.

However, it took over seventy years and over two decades of a protracted court struggle to bring down this antiquated rule, which had been used as a tool to harass and take advantage of anybody who didn’t fit the standard gender and sexuality binary.

Navtej Singh Johar V. Union of India

Numerous well-known people, including the hotel owner Keshav Suri, actress Ritu Dalmia, and dancer Navtej Singh Johar, among others, came out and asked the Supreme Court to dismiss a suit that questioned the constitutionality of Section 377 of the IPC. There have been claims that section 377 infringes on people’s constitutional rights to freedom of speech, equality, privacy, and immunity from discrimination.

The basic rights to intimacy, autonomy, and individuality are all violated by Section 377, the court decided in a unanimity. It decriminalised homosexuality by excluding consensual relations between adults who are the same sex or gender under Section 377.

Transgender Persons (Protection of Rights) Bill, 2019

In order to safeguard the rights of the transgender community, the Transgender Persons (Protection of Rights) Bill, 2019, was passed in 2019. It forbids discrimination against transgender people in work, education, healthcare, and access to public or private institutions.

However, the law further exposes people to institutional tyranny and dehumanises their physical appearance and identity in the guise of strengthening the community. The following elements of the bill have been severely criticised by the trans community throughout India because they violate their most fundamental liberties and do not reflect the NALSA ruling.
The measure robs a person of their freedom to choose their sexual orientation, which is a fundamental element of their right to private as stated in the NALSA ruling.

The fact that the sentence for “Sexual Abuse Against Transgender” is merely two years whereas a comparable offence committed against a woman would result in a heavy punishment lasting up to seven years is another discriminatory component of the bill.
The measure should also be critiqued for incorrectly excluding the violence and tragedies that transgender people experience inside their own families.

On the one hand, the courts are adopting progressive measures to strengthen and defend the rights of the LGBTQIA+ community, and on the other, the legislature is dismissing those same rights. LGBT people will continue to experience setbacks in their fight for the same privileges as those granted to heterosexual individuals unless the government recognises the landmark decision and adopts laws that comply with it.

Same-Sex Marriages

The courts are now hearing a number of petitions on same-sex unions. The next task for LGBT campaigners is to press the government to pass laws allowing LGBTQ couples to be married, have children, and inherit their spouse’s assets.

However, the reality is that while though the government of the Union left the constitutionality of section 377 up to the court in 2018, it has also made it clear that it will likely oppose any request for same-sex marriage. As a result, it is unacceptable and unlawful to deny these fundamental rights only on the grounds of sexual orientation, as this violates the constitutional rights to equality (Article 14) & freedom (Article 19).

Why are there so many examples of gay & lesbian weddings done in India by an exchange of garland in temple or quasi-legal relationship contracts in numerous documented cases? The LGBT population in India is extremely keen to have legal permission to marry. Same-sex couples are denied social and legal acceptance as well as the governmental advantages that married individuals receive when marriage rights for LGBTQ+ people are denied.
However, it is important to note that the law of marriage has historically excluded particular groups of people from participating in marriage. Whenever a group of people have been included or kept from participating in marriage, it has generally been accompanied by a conflict between social norms, religion, and public policy.

The constitution does not specifically mention the right to marry. However, the Supreme Court of India understood it to be a component of the Article 21 of the Indian Constitution in the landmark decision of Lata Singh vs. State of Uttar Pradesh (AIR 2006 SC 2522). In this inter-caste marriage case, the supreme court ruled that once a person reaches adulthood, they are free to marry whoever they choose. The court additionally said that the parent is only permitted to sever all contact with the children, but cannot threaten or harm them.

In India for now, same-sex unions are not recognised. Equality in marriage and the rights and advantages that go along with it, such inheritance rights, shared ownership of property, and adoption rights, are not recognised by the nation’s legal system.
The right of individuals who wish to marry because of their sexual preference to be denied, according to some who support legalising same-sex unions, is a breach of their basic freedoms and rights. They present a number of reasons in favour of the cause.

First, they contend that denying people the option to marry on the basis of their sexual preference is an infringement on their most fundamental liberties and rights and that everyone, irrespective of their sexual preference, should have the freedom to marry whomever they choose and be granted the same legal privileges and security as heterosexual couples.

The prohibition of same-sex marriage promotes prejudice towards the LGBTQ+ minority, which is already marginalised and confronts social and legal obstacles. Secondly, legalising it will encourage equality and inclusiveness in society. Equal liberties and safeguards for everyone, regardless of sexual orientation, would be provided by legalising same-sex marriage, which would also contribute to the development of a more just society.

Thirdly, those in favour of same-sex marriage contend that doing so would benefit society as a whole because it would improve both the mental and physical well-being of LGBTQ+ people, who today experience high rates of violence, harassment, and discrimination. Additionally, it would lessen the stigma and persecution that the LGBTQ+ population now experiences and contribute to the development of a more welcoming and tolerant society.

Despite the fact that same-sex couple marriages are not subject to any laws in India. LGBT persons still get married, and the courts have occasionally accepted these forms of unions.

LGBTQ+ in INDIAN LAWS

In India, family laws are divided into two categories: personal laws and secular laws.

All citizens are subject to secular legislation, such as the Special Marriage Act, regardless of their religion or social status.
Religions have different personal laws. such as the Hindu Marriage Act.

Hinduism: There is enough material regarding same-sex relationships and, by extension, same-sex weddings to fill a library. In India, sculptures on temples show same-sex partnerships. Various mythological myths, such as the one about God Ayappa being the offspring of Lord Shiva & Lord Vishnu, have examples as well. The legend of Bhagiratha, who was the offspring of two women who were having sexual relations with heavenly blessings, and the depiction of gay behaviour in the Kamasutra.

Islam: The Quran and Muhammad’s Sunnah serve as the foundation for Islamic Shariah law. Islam makes it quite clear that homosexual is a vice that is punished. Muhammad also said that, in accordance with Islamic teachings, effeminate men and women should be cursed and expelled from homes.

Christianity: The only area where Christians disagree on homosexuality is how homosexuals should be handled. Should their actions be changed or should they be classified as criminals. In all instances, it is stated unequivocally that Christianity forbids homosexuality.

So, keeping in mind that most religions, with the exception of Hinduism and Buddhism, view homosexuality as disgusting and undesirable. Therefore, any modifications to the current LGBT+ personal laws are not a workable answer. In such a case, amending the Special Marriage Act would be the most practical way to get legal recognition of same-sex unions.

The current laws can’t be applied to LGBT weddings, hence new legislation will need to be created, changed, or added in order to recognise same-sex unions. There are three approaches to make marriage laws more inclusive of LGBT+ people.

According to one viewpoint, same-sex unions can be legalised once the current laws are reinterpreted, modified, or amended, or by changing the act’s text gender neutral.
The second point of view contends that same-sex unions should be legalised following the creation of an entirely new Act that takes the LGBT+ community into account.
The third point of view contends that since India is still not forward-thinking enough to accept the concept of LGBT marriages, the government should instead grant same-sex couples a different status, such as the status of a civil partner, in which they would not have the benefits of marriage but would nonetheless be able to take advantage of a number of important rights like sharing insurance and filing joint tax returns, among other things. In other words, it is pretty obvious that the connection is one of economic and emotional interdependence.

SUMMARY

Therefore, it can be summarised that:

In light of the discrimination and harassment experienced by LGBT+ individuals in the workplace, it is critical for government authorities to enact new legislation or alter current regulations to ensure that LGBT+ employees may work without fear of harassment.
Additionally, it must be assured that any future transgender rights legislation complies with the NALSA ruling and includes provisions for accommodations in work and public education.
In order to grant LGBT+ couples the same work advantages as a heterosexual pair, the laws must be completely revised.
While efforts should be made to create legislation against gender-neutral harassment, the private and public sectors must also develop anti-discrimination policies and take proactive steps to get rid of biased preconceptions based on homophobia and transphobia.

Although the historic court decision from 2018 and the NALSA judgement from 2014 marked a significant milestone for the LGBT+ rights groups in India. Still, LGBT individuals in the nation are not treated equally and do not enjoy identical rights as heterosexuals. Additionally, they continue to experience violence and prejudice in many aspects of life.
Educating people about the rights of LGBT individuals is crucial. Human rights are unalienable, unalienable rights that are bestowed onto all people at birth.

Therefore, it is imperative that the government put aside its conservatism and take decisive action to end the stigma, prejudice, and abuse that surrounds LGBTQIA+ individuals. It is past time for the government to create new laws or change current ones governing marriage, adoption, guardianship, inheritance, college and university employment, healthcare services, etc. for the benefit of LGBT+ people’s education, social security, and health, with a specific focus on Transgender People.

CONCLUSION

Social norms, customs, cultures, or traditions cannot ever constitute a legal basis to prevent one person from exercising his or her fundamental rights under the constitution, according to the general principle of human rights.

It will promote more inclusivity, assist in integrating LGBTQIA+ people into mainstream society, and may significantly contribute to the sustainable transformation of our country into a just and thriving knowledge society.
Finally, I’ll state that the LGBT+ community in India will continue to fight justly and fairly for societal acceptance until the time comes when the government grants them equal status.

REFERENCE