CRITICAL EVALUATION ON THE RIGHTS OF LGBTQ IN INDIA

RIGHTS OF LGBTQ IN INDIA
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About the Author:

Lata Kumari is a law student in ICFAI Law School,  Dehradun.

INTRODUCTION

LGBTQ stands for Lesbian, Gay, Bisexual, Transgender, andQueer. This abbreviation usually covers the highlights of news journals, yet a few of us find ourselves willing to know moreabout the community and its rights. Before reflecting on the rights of the community, we need to familiarize ourselves with some synonymous, yet different terms.

The term “Lesbian” attributes to those females who are sexually attracted towards women and the “Gays” are those males who are sexually attracted towards other men. “Bisexuals” are those who find themselves attracted towards both the sexes; men as well as women. “Transgender” is those people whose sexual orientation is different from the gender they were thought to be at the time of birth. “Queer” refers to that group of people who belong to neither of the above-mentioned groups. They are mostly recognized as non-heterosexual or non-cisgender. It has to be noted that all gays, lesbians, and bisexuals are not transgender, they can be cisgender[i] too.

RIGHTS OF LGBTQ

“It is absolutely imperative that every human being’s freedom and human rights are respected, all over the world.” – Johanna Siguroardittir, a former Icelandic Prime Minister uttered these words during a speech at the 2014 Pride Festival.

There are number a of rights provided to the LGBTQ community in India and one would assert it as a positive point in favor of the community. While going through the laws that have been enacted in favor of the community over the years meticulously, will give one an overview of how rights provided are not at par with the present dynamic legal and constitutional environment being biased in one way or the other. Rights provided to the people belonging to the LGBTQ community are very limited in their scope in India and from a personal perspective; barely anyone belonging to the community enjoys their basic human rights to the fullest and with complete liberty.

Rights that have been provided to the LGBTQ community are as follows:-

The very first stride towards the protection of the interests of the community was taken in the year 2018, Section 377 of the Indian Penal Code was struck down which criminalized consensual intercourse with any man, woman, or animal which is against the ‘order of the nature by the Supreme Court in the landmark judgment of Navtej Singh Johar v Union of India[ii].

Now all people irrespective of their sexual orientation have the liberty to enjoy consensual sexual intercourse. However, the above-mentioned landmark judgment was limited in its scope as it only legalized cohabitation and live-in-relationships for gays and lesbians and not same-sex marriages. Several petitions have been filed in the courts for the legalization of same-sex marriages but the same have been quashed down affirming it as against the Indian culture. James Baldwin in his iconic novel Giovanni’s Room writes “Love him and let him love you. Do you think anything else under heaven really matters?”

Another remarkable step taken was the Transgender Persons (Protection of Rights) Bill, 2019[iii] which became an act of the Parliament in November 2019. The bill was initiated in 2014 and has finally got recognition as an Act in 2019 with several modifications. The bill came up with a large number of provisions and clauses which aimed to provide a mechanism for social, economic, and educational empowerment as well as for the protection of the rights of the transgender community in India.

The Act defines transgender as “one whose gender does not match the gender assigned at birth”. The definition includes trans-men, trans-women, people with intersex variations, gender-queers, and people with socio-cultural identities, such as hijra and kinnar.

Section 3 of the Act prohibits the discrimination, unfair treatment, and denial of services against a transgender person in the fields of:-

  1. Education
  2. Employment
  3. Healthcare
  4. Right to movement
  5. Right to reside and occupy a property
  6. Enjoyment of goods, facilities, opportunities in public
  7. Access to government and private establishment
  8. Opportunity to hold public and private offices.

One of the prominent clauses of the Act was the sexual orientation of a transgender person. According to Section 5 of the Act, transgender people have to make an application to the District Magistrate for a certificate that indicates the gender of the person as “transgender”. Under Section 6 the magistrate can issue a certificate for identity.

This is considered as one of the major drawbacks of the Act as for obtaining the identity card the transgender has to undergo biological verification which in itself is a violation of private rights and which will eventually lead to humiliation and harassment of the person. Also, the law should be equal for all; heterosexuals do not need any identity card as proof for their gender then why do the transgender require the same? This clause violates Article 14 of the Indian Constitution which states that every citizen should be treated equally before the law.

Moreover, Section 7(1) of the Act states that a revised certificate can also be obtained after the person has undergone the sex reassignment surgery, on the application along with a certificate giving effect to the same issued by the Medical Superintendent or Chief Medical Officer. The drawback of this clause is that for re-recognition as a male or female, the person must undergo sex reassignment surgery. It is claimed that recognition as male or female should be one’s own decision and the government has no right to limit the personal decisions of people whether they be cisgender or transgender.

Changing gender is one’s own choice and this should not require any official permission. These sections of the act go against the landmark NALSA judgment[iv] of the Supreme Court which recognized that the transgender has the right to self-determination i.e., they can give recognition to their gender themselves and are not required to move to the bureaucrats for sexual orientation. Zanele Muholi, a South African activist quotes- “If I wait for someone else to validate my existence, it will mean that I’m shortchanging myself.”

Section 12 of the Act provides that every transgender has a right to reside in their household. Moreover, if the person is below 18 years of age and has been debarred from their household, the person has to be placed in a rehabilitation center on the orders of any competent court.  On this, the transgender community retaliated and demanded that even people below 18 years of age should have the liberty to reside and live independently.

Further, it is stated in the Act that it would be the responsibility of the government to provide health care facilities which include the establishment of HIV surveillance centers and sex reassignment surgery[1] centers. For sex reassignment surgery, the identity certificate is necessary, which is a loophole in itself.

Section 18 of the Act recognizes the following actions against the transgender community as a punishable offense: –

  1. Forced and bonded labor
  2. Denial of use of public places
  3. Removal from household
  4. Physical, sexual, verbal, or emotional abuse.

The section fixes the penalties for these offenses including imprisonment for a minimum of six months and a maximum of two years along with a fine. There is a loophole in this section as well. For an offense against a cis-gender, the maximum punishment awarded to the offender is for seven years and is a non-bailable offense. The protection of the rights for a cis-gender and a transgender should be equal and non-discriminatory.

The LGBTQ community got the adoption right i.e. they can adopt a child or children; provided them being the single parent. Since same-sex marriages have not been legalized yet; same-sex couples have no right to adoption and they cannot be parents.

Transgender people begging on the roads or streets have been criminalized by the above-mentioned Act; also there have been no mentions about the “reservation” in education for them. ‘Reservation’ is one of the main demands of the community because people continue to discriminate against non-heterosexuals based on their gender.

CONCLUSION

The clauses of the Transgender Persons Bill, 2019 were severely opposed on various grounds by the LGBTQ community before the Bill turned into an Act. People belonging to the community were of the opinion that modifications in few clauses of the Bill are required before it is converted into an Act. Thus the Act failed to satisfy the LGBTQ community. Barbara Gittings, an American activist quotes- “Equality means more than just passing laws. The struggle is really won in the hearts and minds of the community, where it really counts.”

Although the LGBTQ community has been provided with plenty of rights along with their protection, there are several loopholes that are yet to be covered. The rights provided are not on the lines of equality and do not aim at doing justice with the community. The mentality of the people discriminating against the transgender cannot be changed but we can apply a brake on rampant discrimination by amending the above-mentioned laws along with imposing punishments. There are a lot of spheres where the government still has to work upon to ensure that every person belonging to the community is enjoying each of their rights to the fullest and are not being discriminated against.

Moreover, another issue that is being faced by the LGBTQ community is mental harassment. Eventually, many fear to recognize themselves as LGBTQ because they have to get humiliated either at home or at the workplace, or educational institutions. As a consequence of mental harassment, many people belonging to the community commit suicide. According to the reports, LGBTQ youths commit suicide at almost three times the rate of heterosexual youths. To lessen the rate, cost-free therapy should be provided to assist them.

Making laws is in the hands of the legislature and the authorities but framing a good society with equality and justice in its atmosphere is our duty. It is us who can support them mentally by making a chain for better rights and their protection to the LGBTQ community. It is our initiative that will help the people from the community to accept themselves and to voice out for their rights, as acceptance by them is the primary thing before asking for equality and justice. Harvey Milk, the first gay person elected to public office in California rightly said, “If you help elect more gay people, that gives green light to all who feel disenfranchised a green light to move forward.”

REFERENCES

LGBT rights in India – Wikipedia.

Facts About Suicide – The Trevor Project.


[1] It is a surgical procedure by which a transgender person’s physical appearance their functions are altered.


[i] Cisgender are those people whose sexual orientation matches the sex that they were assigned at the time of the birth.

[ii] AIR 2018 SC 4321; W.P. (Crl.) No. 76 of 2016; D No. 14961/2016.

[iii] http://socialjustice.nic.in/writereaddata/UploadFile/TG%20bill%20gazette.pdf.

[iv] National Legal Services Authority Vs. Union of India. (WP (Civil) No 400 of 2012).

2 thoughts on “CRITICAL EVALUATION ON THE RIGHTS OF LGBTQ IN INDIA”

  1. Pingback: An Analysis of Transgender Persons (Protection of Rights) Act, 2019. - Dream Legal

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