This article is written by Tushar of Shree Guru Gobind Singh Tricentenary, Gurgaon, an intern under Legal Vidhiya
ABSTRACT
India has a complex history with same sex relationships. While ancient texts suggest a more accepting society, British rule introduced Section 377 of Indian Penal Code, criminalizing homosexuality. The 21st century saw a rise in activism mirroring global movements, culminating in Supreme Court’s landmark Navtej Johar decision decriminalizing same-sex relationships. The along with the privacy judgement, provided a legal foundation for LGBTQ rights. However, challenges remain. Legislation opposition continues, as evidenced by a case before the Delhi High Court regarding same sex marriage.
Keywords
same-sex, India, privacy, Navtej Johar, LGBTQ rights.
INTRODUCTION
LGBTQ Stands for a diverse group of those people whose gender identify or sexual orientation falls outside the traditional categories of male or female and heterosexual. it includes lesbians, gay, bisexual, transgender people and those who identify with a broader spectrum of identities. They are term as the “queer” encompasses this broader spectrum.
Globally, LGBTQ Acceptance is growing but India’s journey has been long and difficult. British colonial law criminalised homosexuality under Section 377 of the Indian Penal Code. This low forecasted fear, oppression and the violation against the LGBTQ people. Thankfully, the Supreme Court decision to reappeal the Section 377 was a major step towards the normalcy for the LGBTQ Indians. Additionally, transgender peoples gained some recognition with the establishment of the 3rd gender category although related legal framework remains imperfect.
Despite these advancements, social acceptance the legal rights are still lacking. Discrimination is widespread with transgender people facing exclusion from the social circles and employment opportunities. Same-sex couple have no legal right to marry, reproduce and adopt the children. The fights for the marriage right in currently ongoing in Indian Courts representing a crucial next step towards the equality for the LGBTQ community. However, the government opposition is making this a significant challenge.
INTERNATIONAL PERSPECTIVE
While individual nations hold most of the power when it comes to LGBTQ rights, the United Nations isn’t sitting on the sidelines. The organization can’t create a specific law, but it does push for change through campaigns like Free & Equal, which advocates for global equality and fair treatment for LGBTQ people. This gets complicated because different countries have vastly different views on the community. In some places, same-sex relationships are illegal and harshly punished, even with life imprisonment or the death penalty. To address these issues, a significant meeting took place in Yogyakarta, Indonesia in 2006. Here, leading NGOs, activists, and academics came together to draft the Yogyakarta Principles. This historic document outlines human rights principles related to sexual orientation, gender identity, and expression. It doesn’t just grant rights to the LGBTQ community. it also puts responsibility on governments to enforce them. Building on this foundation, the Yogyakarta Plus 10 document was created in 2017, adding new rights and state obligations to help ensure LGBTQ people are free from discrimination and treated with dignity and respect.
THE INDIAN EXPERIENCE
India is conservative nation at its heart also offers religious freedom. This creates a complex situation for same sex relationships and historically, accepted but criminalised by the British Raj through Section 377 of the Indian Penal Code. This discriminatory law remained even after independence until a long fight led to decriminalisation in 2018 (Navtej Johor Case).
In Ancient India, however, it presented a different picture. Reference of same sex relationship in the transgender people abound in the Hindu scriptures, art and architectures. The Ramayana, Ellora caves and the Kama sutra all depict Society comfortable with gender fluidity and same sex intimacy. These prominent and the respected place of the worship openly displayed such relationships.
In the Islamic Literature also contains some examples, like Baburnama and work of Sufi poets. But British rule brought a shift. Imposing western, Church-influenced ideas, the British criminalized homosexuality through section 377. Their legal sanction fueled societal disapproval, linking homosexuality to immorality and denying it any social acceptance. Even after independency India restrained the colonial law. Ironically, Britain itself repealed such law in 1967 leaving India to fight its own battle for decades.
LGBTQ AND SAME-SEX COUPLE PARENTS AND FAMILIES
LGBTQ individuals and same sex couples can become parents in various ways estimates suggest that a significant portion around 37% of LGBTQ people have parents in children this translates to millions of US children having at least one LGBTQ parent while some children erased by same sex couples many have single LGBTQ parents were erased by different sex couples where one parent is bisexual studies show bisexual individuals often have children from previous relationships with a different sex partner data on the origins of these families is limited but evidence suggests most children with same sex couples were likely born in prior heterosexual relationships adoption and fostering are becoming more common but still represent a minority interestingly LGBTQ people tend to have children at a younger age than their non LGBTQ counterparts possibly due to social pressures in their youth there are also racial and socio economic disparities LGBTQ minorities and those in conservative areas are more likely to have children often from earlier heterosexual relationships which may contribute to their lower overall income and higher poverty rates compared to non LGBTQ family this is surprising considering the typically higher education levels among same sex companies however couples with children tend to have low education attainment and higher unemployment compared to childless same sex couples or different sex couples with children finally the percentage of same sex couples raising children has dint since 2000 and six this could be due to increased social acceptance allowing LGBTQ people to come out earlier and potentially avoid relationships with different sex partners that might lead to children from those relationships today roughly 1 in 5 same sex couples raise minor children with similar rates among married and the married couples and a similar percentage of single LGBTQ individuals also have children.
CHILD HEALTH AND WELL-BEING
This disagreement among experts about the well-being of children raised by same sex couples. here’s why
An expert witness Lauren marks criticises research by the American Psychological Association Harper claiming no of disadvantages for such children, and he argues the studies have limitations small sample sizes lack of diversity mostly well-educated high-income lesbian couples and short-term follow-up
The American Sociological Association Acer disagrees they point to numerous large credible studies showing same-sex parented children for equally well as those with opposite-sex parents in various aspects like academic performance mental health and substance abuse. they see the absence of negative findings as evidence of no harm.
The debate gets more complex with the new studies that mark Regnerus’s study suggests young adults raised by same-sex parents have poorer health and well-being compared to those with different-sex biological parents.
Another study by Douglas Allen and colleagues challenges Michael Rosenfeld’s research. they argue Rosenfeld’s exclusion of children who lived less than five years with same sex couples skewed the results and there are no officials showed educational disadvantages for such children so the consensus on child outcomes in same sex parented families depends on how strict the criteria if you’re considering a steady event more research is likely needed to settle the debate.
JUDICIAL REVIEW OF LGBTQ RIGHTS IN INDIA
India’s courts have been pushing for LGBTQ rights in recent years, making up for a lack of action by the legislature. The Supreme Court’s judgement over the last decade have been particularly important paving the way for basic rights for this marginalized group. This progressive judicial activism stands in contrast to the conservative nature of India’s Parliament, which has been slow to address these issues.
Naz Foundation vs. Government of NCT Delhi
In a major victory for LGBTQ rights, the Delhi High Court ruled a key British-era law (Section 377 of the IPC) unconstitutional. This decision came in response to a lawsuit by an NGO and argued that the law violated the fundamental rights to equality enshrined in India’s Constitution. This landmark case paved the way for further legal challenges to the discriminatory law.
NALSA vs Union of India
Following a controversial judgement that recriminalized homosexuality a new legal battle emerged in India the National Legal Services Authority championed the rights of the transgender community leading to a landmark Supreme Court decision this judgement recognised transgender people is a distinct 3rd gender and established guidelines to protect their freedoms further legal developments culminated in the transgender persons protection of rights act of 2019 while this law offers necessary protections it has a critical flaw the act requires transgender individuals to obtain a certificate from a district magistrate to gain official recognition this bureaucratic hurdle raises concerns due to the sensitive nature of gender identity.
Navtej Singh Johar vs Union of India
In a landmark decision this judgement decriminalized homosexuality in India. it specifically struck down a part of section 377 that criminalised consensual sex between consenting adults the court ruled that this section violated several fundamental rights enshrined in the Indian Constitution including the writer equality the right to live with dignity and the freedom to make personal choices this judgement through inspiration from the Puttaswamy judgement which recognised the right to privacy.
Abhijit Iyer Mitra case
This case centres on whether same-sex marriage should be recognized in India under Hindu and Special Marriage Acts. Petitioners argue that decriminalising same sex relationships requires the state to allow same sex marriage aligning with international standards India upholds however the solicitor general disagrees stating that Hindu law defines spouse as male or female and judicial intervention would disrupt personal laws the government adds the decriminalisation doesn’t automatically grant marriage rights they argue that marriage in India is based on tradition social values and spirituality making it a legislative issue not a judicial one.
THE PATH FORWARD
A clear law is urgently needed to address the legal rights of the LGBTQ Community in India this law should include the right to marry under the special Marriage Act and draw inspiration from international human rights principles like the Yogi Carta principles open discussions about sex and sexuality within families and communities are crucial for progress LGBTQ participation in mainstream society must be encouraged and their privacy respected their sexual orientation is a natural aspect of who they are not a choice and deserves equal protection under the law training and awareness programmes are essential to combat misconceptions such as the belief that sexual orientation is a choice education about LGBTQ issues starting with factual sex education in schools is needed at all levels additionally police and law enforcement requires sensitivity training to prevent abuse against the LGBTQ community.
CONCLUSION
We need to recognise the LGBTQ Plus community as an integral part of society. understanding that sexual orientation is just one facet of their identity they deserve the same respect and inclusion as anyone else social efforts should focus on breaking down the barriers and creating a more accepting environment shame surrounding the LGBTQ Plus issues needs to be eliminated a clear law can be a powerful tool it would not only establish consistent legal protections for their social economic and cultural rights but also empower them to fight against abuse violence and discrimination a legal voice is crucial for the LGBTQ Plus community.
With same sex marriage legalised in the US, the hearted debates around it seems to be calming down. Public opinion has shifted towards acceptance of Same-Sex marriage and parenting. Research on LGBTQ+ parenting has historically been conducted in a tense political climate, leading to intense scrutiny. For instance, a controversial study sparked legal action from LGBTQ+ advocates. This article argues that the research on LGBTQ+ parenting can offer valuable insights not just on the challenges they face due to discrimination, but also on family dynamic in general. While strong political debates are important for social progress, they can make objective academic research difficult. Hopefully, with less tension around LGBTQ + rights, scholars can now explore family formation and parenting within the LGBTQ+ Community in a more neutral environment.
REFERENCES
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