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A STUDY ON THE LGBTQ+ COMMUNITY IN INDIA: LEGAL AND SOCIAL ASPECTS
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A STUDY ON THE LGBTQ+ COMMUNITY IN
INDIA: LEGAL
AND SOCIAL ASPECTS
AUTHORED BY - SHEBA LIZ ULLAS
3RD YEAR, SCHOOL OF LAW,
CHRIST (DEEMED TO BE UNIVERSITY)
ABSTRACT
LQBTQ+ community are considered as a
weaker section of the society and they are vulnerable to exploitations.
Government has been taking steps to eradicate the discrimination and make their
lives better. The research paper focuses on determining the social and legal
callenges face by the community as they strive forward. Acceptance of these
gender by the society and their difficulty for job security and reservations
are dealt below.
Section 377 was decriminalized
recognizing the LGBTQ+ community. Marriage and adoption have not yet been
discussed in the law. Law does not have a provision that neither deals with
homosexual marriage nor adoption in any aspect. As far as this issue is
concerned, the researcher feels that there needs for an existence of new legislation
for the community regarding their life, job, adoption, marriage, acceptance
etc. Along with proper protection of their rights against violations.
Keywords: LQBTQ+
community, discrimination, Marriage, Adoption, homosexual
INTRODUCTION
The LGBTQ+ populace and their lawful entitlements have been a
persistent issue, particularly in a country like India where Section 377 of the
IPC was in force until September 2018. There has been a huge commotion in
behalf of the community and the support for its members, notably in the last
decades including the landmark judgement of Navtej Singh v. Union of India in
2018. [1] The notion of human rights hinges on the core premise that
all persons are equal. Consequently, every individual possesses worth and must
receive identical treatment. Any action that undermines this worth constitutes
an infringement, as it opposes the principle of parity and establishes a basis
for bias. Furthermore, such bias contravenes the fundamental essence of the
introduction of the Indian Constitution, which mandates impartiality and
uniformity of status for all individuals, regardless of their social, economic
or political standing.
RESEARCH OBJECTIVES
1) To understand the socio-legal
consequences faced by the LGBTQ+ society
2) To examine the aspects on job
security and reservations available
3) To ascertain whether there require a
necessity to amend or make new law for their protection.
RESEARCH METHODOLOGY
Research undertaken is purely
doctrinal and the data collected is primary source which includes statutes,
legislations, case-Laws etc. Secondary source includes books, journals,
articles etc.
RESEARCH PROBLEM
LGBTQ+ was recognized in the year
2018 through the case of Navjet Singh v Union of India. Even
though the law has recognized the community and decriminalized it, society is
not yet ready to adopt the change. This is one of the social issues faced by
the community as they still hold on to their customs and beliefs. Homosexual
marriage is considered against their customs. Now, considering the legal
problems, one of the major issues is that of adoption. The existing legislation
on adoption does not recognize the right of a homosexual couple to adopt a
child nor marriage of this community.
This section of people are not
provided a suitable environment for living with other sections of the society,
and Job security and reservation are not provided to them. This section of
society is completely neglected, and their basic human rights are also not protected.
RESEARCH QUESTION
1) What are the social and legal
consequences faced by the community?
2) Whether the LGBTQ+ community is provided with proper job security and
reservation?
3) Whether the existing law are
sufficient for the community as of now?
HOMOSEXUALITY
Homosexuality denotes sexual choice or behavior directed
closer to folks of one’s personal intercourse or gender i.e., while someone is
drawn in the direction of the equal gender to which he belongs, he's stated to
be Homosexual. It isn't always a brand new notion, it's been not unusual place
in India from a totally lengthy time.
Homosexuality is considered by many
as a societal concern. As such, there has been significant interest in
clarifying the roots of homosexuality among numerous experts, from
anthropologists to zoologists and psychologists, to theologians. Research has
indicated that people who believe sexual orientation is inborn are more likely
to have accepting attitudes toward homosexual men and lesbians, whereas those
who feel it is a choice have less forgiving attitudes. In most circumstances,
the folks who are knowledgeable of human rights and psychologists can grasp the
mental condition and behaviours of homosexuals. Society still feels that it’s a
mental condition or some say that it’s an obsession with sexual performances.
Again, some individuals say that it originates owing to a lack of sufficient
education during infancy.[2]
CHALLENGES FACED BY THE
COMMUNITY
Despite
considering ourselves as modern and forward-thinking individuals, it is
disheartening to witness the atrocities faced by individuals who identify as
LGBTQ+ in various locations and environments. The researcher in this study will
be seeking to throw a spotlight on the social and legal implications suffered
by the community.[3]
More Indian
youths than ever before may accept homosexuality and queer identities today,
but within the confines of family, home, and school, acceptance of their
sexuality and freedom to openly express their gender choices still remain a
constant struggle for LGBTQ+ (lesbian, gay, bisexual, and transgender) people.
The LGBTQ+ community is battling for recognition and equal rights. Finding
acceptance is extremely tough for transgender folks. The LGBTQ+ community is
generally perceived unfavourably. The prevalence of discrimination towards the
LGBTQ+ population makes this a severe concern. People’s perceptions compel
people to assume that LGBTQ+ folks are weird and significantly different.[4]
India is a
place where Heterosexuals are common, yet it becomes a great matter to embrace
gays. There is always a shock aspect or prejudice among majority of the LGBTQ+
community members which leads to mental health concerns, putting them in
embarrassing circumstances. Homosexuals face frequent reactions from the public
as if these persons are having unique ailments and normally are made to feel
trapped or they have a negative past.
What led the LGBTQ+ community to
separate from mainstream society and create their own community?
The answer lies in the fact that they can live
their lives on their own terms without the fear of being judged. They come
together to celebrate pride months, socialize, and discuss anything they want
without worrying about societal norms. Despite the Hon’ble Supreme Court of
India decriminalizing section 377 of IPC, society has not fully accepted the
LGBTQ+ community. While the legalization of section 377 is a positive step
towards a healthier and happier existence for the LGBTQ+ community, they still
face various challenges in their daily lives.
The lack of awareness among other members of society gives
rise to several issues that the LGBTQ+ community experiences. Insufficient
understanding and comprehension contribute to the concerns and challenges faced
by LGBTQ+. Despite the legalisation of section 377, society's attitudes and
actions have not changed, possibly due to the psycho-social conditioning they
receive from infancy. It is an arduous task for the LGBTQ+ community to
confront such views in their daily lives. Transgender individuals often
encounter the society's double standards mentality. For instance, while they
are considered fortunate for newborn babies and are invited to auspicious
occasions like weddings and newborn functions, they are ridiculed and judged on
ordinary days. The absence of suitable regulations and enforcement of
protocols, if any, is also a major obstacle for the LGBTQ+ community to sustain
a peaceful existence. Lack of standards leads in the non-acceptance of LGBTQ+
identification and violation of Human rights. The social stigma attached to any
non-heterosexual relationship or community results into the social exclusion of
LGBTQ+, unjust behavior towards LGBTQ+ is because of the stigma that is going
on in our society, and its high time to think about wiping off these stigmas
from society so that we can help them to build their life the way they want.[5]
SOCIAL ISSUES FACED BY THE COMMUNITY
General
acceptability by society is the number one difficulty the community encounters.
Even if the legislation has acknowledged the LGBTQ+ group, the same is still an
out-of-tradition concept for the society at large. According to UNESCO Report
of 2018, LGBTQ+ Children encounter a lot of bullying in schools, colleges etc.
and are also prejudiced. This act of bullying and prejudice creates a lifelong
scar in their life and it frequently takes them years to come out of it.
(UNESCO Report, 2018). This might rob them from their future and endevours. If
a person announce himself or is determined to be belonging to LGBTQ+ Community
then normally a bounty is placed for their Secret Honour Killings. Recently,
many people have been victim to such honour killings. Women suffer the most for
belonging to LGBTQ+ Community as when a woman declare herself as a lesbian or a
bisexual, then the family generally suggests them to go for sanctioned
corrective rapes in which a woman has sexual intercourse with a man without her
will to treat the ‘Disease of Homosexuality’. LGBTQ+ People not only face
discrimination in schools and colleges but this menace does not end even after
the completion of their education, they are also Discriminated while getting
jobs as no employer wants to hire a person with a different sexual preference
as that idea does not go well with the society and is often questioned by other
employees. Thus, they are unable to find better paid employment and are caught
in the vicious loop of poverty.
Non-acceptability
of LGBTQ+ is not only prevalent in rural areas but also in urban families as
the families in urban areas are more concerned about their status in the
society that they tend to forget their duties towards their children and often
throw them out of the houses in order to prevent their social status when they
find out that their child belong to LGBTQ+ Community.
LGBTQ+ persons
are routinely sent to punishment facilities where they are offered psychotic
medicines as part of ‘corrective therapy for Homosexuality’. They grow so
hooked to these drugs that even after coming out from the torment of detention
institutions, they take consolation in narcotics and other psychotropic
substances and therefore, get addicted to it. People belonging to LGBTQ+
Community are generally Isolated from everyone, which drives them into despair.
As the word itself suggests, economic
activity influences social processes economic status is directly related to the
availability of source of income, yet LGBTQ+ are prejudiced at the workplace
which works as a barrier to apply for a job and earn. There are many
businesses, who are hiring them now, and there are jobs that are open for them,
but the insensitive character of our society does not enable LGBTQ+ to come out
and work for their interest. Socio-economic status is connected to the rights,
quality of life and well-being of LGBTQ+. Lack of acceptance and fear of
harassment can force many LGBTQ+ adolescents to leave their homes and live in
transitional housing or on the streets, homelessness of youth have numerous
repercussions for socio-economic status.
Marginalization
involves considering a person as peripheral. Sometimes, society refuses to
accept them such that it becomes impossible for them to live as an individual.
They are ostracised and obtain bad sentiments from society. They wish to
contribute in every sector of society, but they are not permitted to engage
equally because they are marginalised. We might define it as the societal
marginalisation of homosexuals. Marginalization of LGBTQ+ individuals
frequently starts from the family where they are born.[6]
LGBTQ+ adolescents may need to leave their homes for a multitude of reasons, including because of violence or neglect inflicted by their relatives. These adolescents, especially particularly transgender youth, are more prone to suffer from abuse and neglect compared to normal youth.
RESERVATION IN JOBS
Observing that the concept of
"proportional equality" expects the States to take affirmative action
in favour of disadvantaged sections of the society within the legal framework
of liberal democracy, the Bench stated that the petitioner, being a
transgender, was entitled to proportional equality because the State is
expected to take affirmative action in favour of disadvantaged sections of the
society, and transgenders are cursed by everyone; living in distressed
condition and being discriminated against.
Given that the Supreme Court's directive in NALSA v. Union of India (2014)[7] is sufficient to offer reservation in circumstances of admission to educational institutions and public employment, the Bench declined to issue any direction to the State to provide reservations to transgender people. However, the State was directed to investigate the participation of transgenders in public employment, their number in the State, benefits granted to them without discrimination against men and women, and to make appropriate reservations if they are not sufficiently represented in public employment.
Furthermore, because the minimum marks were set based
on socioeconomic status, namely their backwardness and lack of representation
in public employment, the Bench refused to give a directive to the respondents
for the selection of the petitioner as Stipendiary Cadet Trainee Sub-Inspector.[8] As a result, the
petition was denied.
LEGISTATIONS FOR THE PROTECTION
Members
of the community do not currently have any unique legal privileges. They are
solely "permitted" by legal regulations to participate in voluntary
sexual activities as making it a criminal offense would infringe upon their
Fundamental Rights. Consequently, their rights are limited to the same
Fundamental Rights granted to individuals in this country. However, civil
rights are still not accessible to individuals belonging to this community.
They are not legally allowed to register their weddings, therefore their union
is not recognised by Indian law. The bills aimed to address the issue of crimes
committed against community members, including domestic violence and sexual
harassment, which are unfortunately prevalent. However, reporting such crimes
remains challenging and, in some instances, impossible due to the lack of legal
protection for transgender individuals and men who may also be affected. The
Protection of Women from Domestic Violence Act of 2005, for example, only
applies to women and children, leaving out males, transgender individuals, and
those who identify as gender-neutral.
The Transgender (Protection of Rights) Bills of 2016 and 2018
sought to address these gaps by providing specific legal rights to transgender
individuals based on their unique needs. However, the Bills were met with
strong opposition, particularly from members of the community. Some of the
provisions just did not meet the community's demands. Although much has been
done to improve the LGBTQ++ community's social position, their legal rights
still require significant attention, particularly because the present legal
framework does not give the specialised protection that they demand.[9]
Since its adoption as
law in 1862, Section 377 of the Indian Penal Code, a colonial statute, has
criminalised unnatural sexual conduct. Such activities include homosexuality
and may result in penal measures.
IPC Section 377 not only pertains to individuals of same-sex
orientation but also penalizes heterosexual pairs who participate in sodomy. To
illustrate, in the event that a wedded couple engages in 'Anal Intercourse'
instead of 'Normal Intercourse,' both the husband and wife will be deemed
culpable. If the wife gave her approval for anal intercourse, both partners
will be held accountable. However, if she did not, then only the husband will
be held responsible under Section 377 IPC.
The Indian courts was critical in the decriminalisation of
Section 377 of the Indian Penal Code. However, it should be noted that Section
377 as a whole is not decriminalised. There have been numerous landmark rulings
issued by several High Courts and the Supreme Court that have clearly
established gay behaviour as a natural one rather than as an offence. The
so-called sodomy statute, Section 377, which punishes carnal intercourse with
life imprisonment, has finally been repealed.[10]
As
per the ruling of the Court, the discrimination against the homosexual
community through Section 377 violated Article 14 of the Indian Constitution,
which guarantees the Right to Equality. A portion of the Section was
invalidated, making it legal for adults to engage in private, consenting sexual
activity. The judgement also indicated that it would be in effect until the
Parliament changed.
Since Section 377 covers a variety
of "carnal intercourse"-related topics, it was not entirely
invalidated in this case. Unfortunately, a two-judge bench of the Supreme Court
of India quickly overturned the verdict.[11]
II. NATIONAL LEGAL SERVICE AUTHORITY V. UNION OF INDIA
The Supreme Court ruled in this case
that third-gender individuals had an equal right to protection under the Indian
Constitution. The court further declared that psychological sex, not biological
sex, must be used to determine gender identity.
The NALSA case verdict resulted in
the Supreme Court of India recognising transgender individuals as the
"third gender," maintaining the fundamental rights guaranteed by the
Indian Constitution. Thanks to this, they will be treated equally and have the
option to self-identify as male, female, or third gender.[12]
III. PUTTASWAMY JUDGEMENT, 2017
The Puttaswamy judgement, also known
as the Justice (Retd), K S Puttaswamy v. Union of India decision, is considered
essential since it upheld the right to privacy as an intrinsic right. The right
to privacy is now a part of Article 21 of the Indian Constitution, which also
guarantees our rights to life and liberty.
Every person, regardless of gender
or sex, was likewise given the right to privacy. Members of the LGBTQIA+
community are given autonomy and safety from government intervention while
exercising their freedom to select their partner thanks to the recognition of
privacy as an intrinsic right. Consequently, this decision, coupled with the
NALSA decision, served as the foundation for the reading down of Section 377 in
2018.[13]
IV. NAVTEJ SINGH
JOHAR V. UNION OF INDIA AIR 2018 SC 4321
Five persons filed a fresh writ suit
asking the Supreme Court to dismiss claims that Section 377 of the Indian Penal
Code is unconstitutional. The petitioners asserted that the concerns they
brought up in their petition were many and distinct from those in the Koushal
v. Naz case, a curative petition that was filed in 2013 and is still pending.
In this case, the petitioners made the first claim that Section 377 directly
violated their fundamental rights and caused them all to be directly harmed.
The court determined that the right
to equality given by the Indian Constitution was infringed by the
criminalisation of sexual activity between consenting adults. The court
determined that Indians who identify as LGBTQ+ are entitled to all
constitutional rights, including the freedoms guaranteed by the Indian
Constitution. The court ruled that "the constitutional protection of
sexual orientation is inherent to the freedom to choose one's partners, to have
fulfilment in sexual intimacy, and to be free from harassment and
discrimination.[14]
VALIDY OF CURRENT
LAWS
There exist several
regulations that protect the privileges of minority groups, females, and any
other community that has faced oppression in any way. Several legislation
enacted to defend women's rights are comparable to the rights that the LGBTQ+
community is presently seeking. The debate here is whether current laws should
be amended or new laws enacted to particularly safeguard community rights.
There are three approaches to take. The first step is to recognise the
community as a minority group and create legislation to meet their special
requirements. Another approach is acknowledging that individuals go through
situations like domestic violence and sexual offenses irrespective of their
gender or sexual orientation, and that the current laws should expand their coverage
to be gender-neutral. Gender-neutral statutes will have the ability to shield
all people while maintaining the essential principle of equal treatment under
the law. A victim is a victim and should not face discrimination in the eyes of
the law. The offender must be penalized, regardless of the victim's gender. The
third strategy involves blending the first two methods by gender-neutralizing
current laws and introducing a separate provision for specific community rights
based on their needs, as demonstrated by the Transgender (Protection and
Rights) Bill 2019.
After 150 years this
component no longer exists without any legitimate foundation. No one may punish
people who belong to LGBTQ+ community under section 377 of IPC. Social impact:
they live with dignity, respect, freedom as normal as the other gender lives in
a society. Educational impact: they can accept higher education, schools and
jobs as normal as that. Personal impact: they are free to chose their partners
too and live in calm surroundings. Global impact: they may also take part to
serve the nation and their efforts towards the nation valuable for emerging
countries. This restricted free life enhances their capacity to learn, study
and apply to attain their aims and desired objectives.[15]
ADOPTION AND MARRIAGE RIGHTS
The ultimate goal, as numerous members of the
society have emphasized, is to tackle civil liberties such as the entitlement
to wed, take in children, utilize surrogacy, and undergo IVF, among other
entitlements. While the decriminalization of homosexuality represents a
significant advancement in Indian customs, the society is yet to be completely
embraced. The society will require more time to bring up concerns regarding
these rights and anticipate favorable outcomes.
Despite the fact mentioned earlier, a petition was
submitted to the Kerala High Court in January 2020, asking for the registration
of marriage between an LGBTQ+ couple, and the Hon’ble Court has decided to
investigate the matter. This gives hope that the fundamental rights of citizens
will be granted in the near future. The suggestion is to either introduce a new
law or amend the Special Marriage Act, 1954 to legalize marriages within the
community. The case before the Kerala High Court argues that although the Act does
not prohibit the union of community members, the language used implies a
heterosexual bias, suggesting that marriage can only occur between a man and a
woman. These clauses need to be revised to make them gender-neutral.[16]
FURTHER SUGGESTIONS
The goal is to raise awareness
about all gender identities and sexual orientations, and to celebrate the
uniqueness of each individual regardless of their gender. It is important to
educate people that one's gender identity or sexual orientation is not a
choice, but a natural and biological reality. In order to achieve this,
workshops will be organized with the active participation of the LGBTQ+
community to better understand their challenges and obstacles in daily life.
The involvement of the LGBTQ+ community is crucial in establishing policies and
strategies that promote their well-being and create a safe and inclusive
environment. Integrating LGBTQ+ issues into school curriculums will help future
generations understand the biological diversity of gender and sexuality from an
early age, and prevent discrimination and prejudice. Workshops will also be
conducted to help people understand the difference between gender identity and
sexual orientation, which is based solely on biological factors. It is
important to support family members in accepting and embracing their children's
unique gender identity or sexual orientation without shame or judgment. Lastly,
it is crucial to empower LGBTQ+ individuals to embrace their true selves with
confidence and without succumbing to negative societal pressures.
Following an extensive discussion on the evolution
of LGBTQ+ rights movement in India and a thorough understanding of the
significance of various legal decisions, we are now equipped to explore how
these verdicts will shape the future of the movement. It is important to note
that the impact of the NALSA ruling and Navtej Singh Johar judgement extends
beyond the recognition of third gender identity and the decriminalization of
homosexuality. These progressive rulings not only address the issue at hand but
also establish the groundwork for a range of civil rights previously
unavailable to the LGBTQ+ community, which are otherwise enjoyed by
heterosexual and cisgender individuals. These civil rights include the right to
marriage, adoption, surrogacy, protection against discrimination, and freedom
from sexual assault.
CONCLUSION
While choosing the topic “Problem and
challenges of LGBT: Social Work Perspective”, With the aim of ensuring clarity
and comprehensibility for readers, I selected this topic because it is
imperative to put an end to the ridicule and discrimination faced by the LGBT
community, and instead address the real-life problems and challenges they
encounter. Sadly, LGBT individuals are often excluded from social gatherings,
activities, and even events or workshops designed to enhance societal progress.
As a social worker, it is our responsibility to take the lead in assisting
these individuals to take an active role in every social function, which will
not only boost their self-esteem but also enable them to feel more comfortable
interacting with people outside their community. To this end, we can arrange
workshops that involve direct participation from the LGBT community, where we
can discuss their issues with them directly and solicit suggestions on how to
create a safe and comfortable environment for them. After all, as members of
the LGBT community, they possess a better understanding of themselves than we
ever could, regardless of whether we grasp the fundamentals or not.
Despite numerous advancements, the
LGBTQ+ community is still fighting for societal recognition. While a Supreme
Court ruling can provide a resolution, it is the responsibility of society to
avoid discrimination against LGBTQ+ individuals and make them feel accepted.
Legalizing same-sex sexual acts alone will not provide equal protection, as the
future of same-sex marriage, adoption rights, and protection against
persecution remain uncertain and require continued advocacy. The struggle is
far from over, and much work remains to make India truly inclusive.
, Blog ipleaders (10.11.22, 15:30), https://blog.ipleaders.in/lgbtq-community-legal-rights-social-discourse/
[2] Jane P. Sheldon
phd,
Beliefs About the Etiology of Homosexuality and About the Ramifications of
Discovering Its Possible Genetic Origin, Vol. 52 Iss 3-4; Journal of
Homosexuality 111, 111-150 (2008).
[3] RACHIT
SHARMA, Rights of LGBTQ in India and the Struggle for Societal Acceptance, Vol.
4 Iss 3; IJLMH 18, 18-32 (2021).
[4]
Aashank Dwivedi Problems Encountered by LGBT Youth in India, Times of India
(10.11.22, 15:30), https://timesofindia.indiatimes.com/readersblog/aashank-dwivedi/problems-encountered-by-LGBT+-youth-in-india-44851/
.
[6] P.
Sheldon, supra note 2.
[7] NALSA
v. Union of India, (2014) 5 SCC 438
[9] Ghosh , supra note 1.
[10] P.
Sheldon, supra note 2.
[11] Naz
Foundation v. Government of NCT of Delhi, WP(C) No.7455/2001, DELHI HIGH COURT;
[12] National
Legal Services Authority vs. Union of India, (2014) 5 SCC 438
[13]
Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors ,(2017)
10 SCC 1
[14] Navtej Singh
Johar v. Union of India, AIR 2018 SC 4321
[15]
Vineeta, LGBT Rights in India, Legal Service India (10.11.22,15:30), https://www.legalserviceindia.com/legal/article-7932-LGBTQ+-rights-in-india.html .
[16] Ghosh
, supra note 1
Article Information
A STUDY ON THE LGBTQ+ COMMUNITY IN INDIA: LEGAL AND SOCIAL ASPECTS
Authors: SHEBA LIZ ULLAS
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/26
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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