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LAWS REGULATING LGTBQ+ RIGHTS: A COMPARATIVE ANALYSIS BETWEEN USA AND INDIA
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LAWS REGULATING LGTBQ+
RIGHTS: A COMPARATIVE ANALYSIS BETWEEN USA AND INDIA
Authored by - Ekta M. Khatri[1]
I.
ABSTRACT
The Indian constitution guarantees
that no individual living in India will be discriminated against on the basis
of their age, gender, sex, caste, creed, religion, place of birth, or any other
factor. This protection extends to every citizen of India. On the other hand,
there is a significant portion of the population that is regularly and
frequently throughout the course of a day susceptible to discrimination due to
the fact that they are "gay," "lesbian,"
"Transgender," etc. 0Homosexuality is one of the most contentious issues in the world today,
the question on humanitarian law. People around the globe are becoming the prey
of terror of discriminatory practices based exclusively on who they love and
how they appear The year 2018 ushered a glimmer of optimism for the LGBT
community, which has been fighting for their rights for a long time rights, and
finally, homosexuality is decriminalized in the judgement of the Navtej Singh
Johar case. Regardless of the fact
that it is crucial to comprehend that representatives of the LGBT community
should not feel pressured to conform to what is perceived as normal by the
majority of society, since doing so frequently results in them being subjected
to prejudice and condemnation for their differences such as Post-traumatic
stress disorder, anxiety, depression and other similar factors. But slowly and surely, we are endeavoring to advance towards providing a
secure atmosphere and equal rights to all. It is necessary to acknowledge that the
LGBT community is entitled to the same rights as other people, including marriage
equality, a safe environment, a comfortable workplace to live in, and the
ability to adopt children. Although this research paper primarily focuses on the
United States of America and the situational analysis in India, there is a dire
need for the evolution of LGBT rights for a healthier and tranquil standard of
living. This paper discusses
the evolution of LGBT rights in a form of a comparative analysis of the
provisions of the United States of America and India, with their relevant and
significant cases.
The paper progressively discusses
different issues such as marriage, discrimination, and humanitarian violation
of LGBT rights.
Keywords:
Human rights, Homosexuality, India, USA, Gay, Queer, Decriminalization,
Section 377, LGBTQ+
II.
INTRODUCTION
The
abbreviation LGBTQIA stands for, “Gay, Lesbian, Bisexual, Transgender, Queer,
Intersex and Asexual”. All the above mentioned terms denote either identifying
oneself gender or preferring a sexual orientation over the other.
For
the longest time since time immemorial perhaps, Being part of The GBTQ+
community has been considered taboo, some of these misconceptions myths, and prejudice
actually are repercussions being “too religious” or “too spiritual”, in the Simple
sense, most human beings of every given religion or caste have a prejudice
lodged in their minds that, following the school of natural law, that “we,
human beings are creature of gods, and we should accept the ‘gender identity
perhaps, ‘sexual orientation’ which is given to us”.
In
many ways, religions, mythology, are to be blamed for the members of LGTBQ+
community to feel so closeted and different from the rest of the society. In
the eyes of law, everyone is equal and they should all be treated equally with
fair means, rights and privileges.
Once,
the idea of equality settles in the minds of society as a whole., then they
must realize that members belonging to different communities, for instance LGBT
community, they are deserving to be treated with respect as any other human
being, adoration to choose a different path, facing numerous adversities,
endeavor to fight for their basic human rights, such as right to vote, right to
marry anyone of their choosing, right to adoption and maintenance and so on and
so forth.
In
the hope of providing equal opportunities to all individuals, people have been
debating and fighting for LGBT rights for the better part of the last century.
Although LGBT relationships and sentiments have been acknowledged as far back
in history as the seventh century BC, actual significant activism has only
risen from the beginning of the 20th century.
The
concepts of sex, sexuality, and gender are frequently confused with one another
and used interchangeably.
A
gender identity is believed to be a natural component of an individual, the
removal of which may or may not need surgical or hormonal intervention
treatment or occupational therapy. It
has also come to people's attention that the sexual qualities that make up a
person might differ in essence and all folks must be able to formulate their
judgments concerning their own body Authenticity and control over one's own
body
A
fresh tide of consciousness has recently swept across our planet as a direct
result of the proliferation of the internet. Even if this has helped the queer
community become more visible, the most important question that needs to be
answered is whether or not the increased visibility is credible.
In
the 21st century, queer rights have been the focus of intense attention from
researchers all around the world. From a global viewpoint, the rights of LGBT
people have not yet been established in their entirety, and the objective of
making the society a slightly better place is still quite a way off from where
we are right now.
As
more time has elapsed, LGBT rights have evolved into a topic of widespread
concern in a number of different nations. In countries all throughout the world
and in every region, people who identify as gay face violations of their human
rights. They are subjected to a variety of human rights crimes, including
murder, as well as incarceration, torture, and atrocities that are directed
explicitly at sexual minorities, such as activities that try to change their
sexual orientation through coercion.
It is of extreme importance that the queer
community feel safe at every corner of the world, and are not subjected to
cruel atrocities.
III.
HISTORY
OF LGBTQ rights in the USA and INDIA.
A.
GAY
RIGHTS IN USA.
Even
though the United States Supreme Court has already ruled on the matter,
homosexual marriage continues to be one of the most contentious constitutional
issues in the country, right up there with abortion. The question has not been
determined by the Supreme Court. The federal government of the United States recognizes
marriages between people of the same gender, and these unions have been made
lawful in 36 of the country's 50 states.
However,
the states of Mississippi, Missouri, Arkansas, South Dakota, Nebraska, and Texas
continue to refuse to recognize marriages between people of the same sexual
orientation. These states have either amended their constitutions or enacted
legislation that stipulates that marriage can only take place between a man and
a woman[2].
In
the United States, judicial opinions on gay marriage are inconsistent, despite
the trend toward supporting homosexual people's other rights. Because the
clause on equal protection offers no additional protections for LGBT persons,
the emphasis in American trials is placed more on individuals' rights to
privacy. Indeed, in the United States, the substantive due process case known
as Lawrence v. Texas
was the most important win for LGBT rights won by the Supreme Court.
The
Supreme Court concluded in Bowers
v. Hardwick[3]
in 1986 that gay sodomy violated no constitutionally protected rights. Justice
Byron White wrote the majority judgement, which stated that "a basic right
to engage in gay sodomy" was not guaranteed by the Constitution. Chief
Justice Warren E. Burger, writing in a dissenting opinion, referenced the
"historic origins" of restrictions against gay intercourse by
paraphrasing William Blackstone's assessment of homosexual sex as a
"infamous crime against nature," worse than rape, and "a crime
not fit to be named."
In
Romer v. Evans[4],
decided in 1996, the Court invalidated a Colorado initiative that would have
preempted any municipal or state legislation protecting homosexual individuals.
Justice Anthony Kennedy said that the referendum was a per se violation of the
constitution because it showed bias towards the LGBT community and denied them
equal protection under the law against discrimination. There wasn't "a
reasonable link to legitimate state interests," as the Romer majority put
it. The logical grounds test was not met by the proposed change to the state
constitution. Justice Antonin Scalia wrote a dissenting opinion, arguing that
it was reasonable to strip legal protections from the group that engages in gay
sodomy if it were possible to prohibit homosexual sodomy.
In
Lawrence v. Texas[5],
Lawrence, written by Kennedy in 2003, disregarded Bowers. With a 6-3 vote, the
Supreme Court overturned a Texas statute criminalising same-sex sexual
practices and, by implication, 13 other states' sodomy laws, effectively making
same-sex consensual sex lawful in every state and territory in the United
States.
Kennedy underscored the
decision’s focus on consensual adult sexual conduct in a private setting:
“The present case does not
involve minors. It does not involve persons who might be injured or coerced or
who are situated in relationships where consent might not easily be refused. It
does not involve public conduct or prostitution. It does not involve whether
the government must give formal recognition to any relationship that homosexual
persons seek to enter.”[6]
The Massachusetts case of Goodridge v. Dept. of Public Health[7]is considered a seminal
state appellate court decision on the topic of same-sex marriage in that state.
This historic judgement, handed out on November 18, 2003, was the first time a
state supreme court in the United States upheld the legality of marriage
between people of the same sex. According to the ruling, it is unconstitutional
to deny someone the rights, privileges, and responsibilities that come with
legal marriage because they want to wed someone of the same sex.
The harmful assumption that
same-sex partnerships are inherently unstable and inferior to opposite-sex
relationships and are unworthy of respect is given governmental stamp of
approval by the common misunderstanding that "'marriage is
procreation." Denying marriage licenses to one group of people has no
effect on the marriage rates of another group, and the idea that marriage
between a man and a woman is the "ideal environment for child
raising" is meaningless[8].
B.
GAY
RIGHTS IN INDIA
India
is a South Asian nation with a lengthy and intricate history that has seen
several visitors from around the globe settle there. Only in 1947 did the
British Empire, who were in India for more than 200 years, make it illegal to
engage in gay acts under Section 377[9] of the Indian
Penal Code. The British were there for more than 200 years.
Contrary
to popular belief, homosexuality has little cultural significance in the West.
Since
section 377 was Introduced, it has become clear that homophobia is a Western
import, not just in India but also in a number of other former British
territories. The Indian and Malaysian criminal codes' section 377's ban of
homophobia is just as same in Singapore, Pakistan, Bangladesh, Jamaica, the
Maldives, and Myanmar.
Various
pieces of evidence from the past reveal that mediaeval India recognized and
welcomed members of the trans and intersex community, as well as celebrated all
types of romantic love. Harbans Mukhia, a renowned historian, claims that in
order to understand why the British made homosexual activity illegal in India,
one must have knowledge of India's history.
In
India, the British introduced their own legal framework, which included Section
377, which criminalized homosexuality and rendered it a criminal offence. They
were the ones who upheld this law, despite the fact that it was not in line
with India's perspective toward the practice of homosexuality. It was more
related to the Christian belief systems that they had "he explains.
He
adds that the verdict of the court has restored India to its traditional ways
(BBC India, 2018)
The
Indian Penal Code, Section 377, was adopted in 1860, while India was still
under British rule. Punishable by up to 10 years in jail or a fine, section 377
made it illegal to knowingly engage in carnal intercourse "outside the
order of nature" with a human or animal[10].
In
India, the British introduced their own legal framework, which included Section
377, which criminalized homosexuality and rendered it a criminal offence. They
were the ones who upheld this law, despite the fact that it was not in line
with India's perspective toward the practice of homosexuality. It was more
related to the Christian belief systems that they had.
This
provision appears to be nondiscriminatory because it criminalizes only specific
sexual activities and not specific persons.
It
has been utilized against homosexuals, but never against consenting
heterosexuals. The provisional law's main flaw is that it does not take into
account the age of the parties involved or their ability to give informed
consent. Consensual same-sex actions between adults are therefore made illegal.
Since 2001, opponents of Section 377 have been battling it out in the courts.
First, Naz Foundation filed a petition with the High Court of Delhi.
In
1977, Shakuntala Devi, an
outstanding mathematician, released "the world of homosexuals”[11]
which is considered to be the first research paper on homosexuality in India.
It
advocated for the legalization of the behavior in question as well as
"full and total approval" rather than tolerance and compassion.
AIDS BedhBhav Virodhi Andola
was the organization that submitted the initial appeal in 1994 contesting
Section 377. In point of fact, the petition wasn't granted.
1999
marked the year when Kolkata played home to the very first Pride March that was
ever organized anywhere in South Asia[12].
In
2001, the NAZ foundation for the public interest litigation filed a petition in
the Delhi High Court against Section 377. The Delhi High Court ruled in 2009
that Section 377 and other legal provisions against private, adult, consensual
and non-commercial same-sex conduct were in direct violation of fundamental
rights guaranteed by the Indian Constitution. This ruling came in the case of NAZ Foundation vs. government of NCT of
Delhi[13].
In
the Constitution, Article 15 makes it illegal to discriminate on the basis of
certain traits, one of which is gender. The Court decided that the term
"sex" encompasses not only a person's biological sex but also their
sexual orientation; hence, discrimination based on a person's sexual
orientation is not permitted.
Article
15 of the Constitution, The Court also took note of the fact that Article 21
protects a person's right to life, which includes the right to health, and came
to the According to conclusion that Section 377 is a barrier to public health
since it interferes with attempts to prevent the spread of HIV.
The
entirety of Section 377 was not overturned by the Supreme Court. It was
determined that the provision violates the Constitution because it makes sexual
conduct between consenting adults that take place in private illegal. The court
came to the following conclusions:
“Section
377 criminalizes the acts of sexual minorities, particularly men who have sex
with men. It disproportionately affects them solely on the basis of their
sexual orientation. The provision runs counter to the constitutional values and
the notion of human dignity which is considered to be the cornerstone of our
Constitution”.
The
ruling of the Delhi High Court from 2009 that decriminalized gay behavior with
consent was overturned by the Supreme Court in December of 2013. The judge's
bench stated that the issue should be discussed in Parliament, which should
then make a decision.
In Suresh Kumar Koushal v. NAZ Foundation[14], the Supreme Court
overturned the ruling of the Delhi High Court and concluded that Section 377
did not violate the constitution and is, as a result, lawful. This decision was
the result of the case. The decision of the Supreme Court was based on a number
of different factors.
The Supreme Court rejected this line of
reasoning and decided that the Sexual Offenses Definition Act (S.377) solely
addresses sexual conduct and says nothing about sexual orientation or gender
identity. Because of this, even straight people who engage in sexual behaviors
that are illegal under S.377 would be subject to the law's repercussions. As a
result, the part does not target members of the LGBT community as a group[15].
In addition, the Supreme Court reached
the conclusion that the Delhi High Court improperly relied on cases from other
nations in its haste to protect what it saw to be the rights of LGBT
individuals. They hold the view that precedents established in other nations
cannot properly be applied to the situation that exists in India. In reviewing
the reading down of the Section 377 by the High Court, the Supreme Court stated
that the High Court had overlooked the fact that “a miniscule fraction of the
country’s population constitute lesbians, gays, bisexuals or transgender” and
that over the last 150 years, fewer than 200 persons had been prosecuted under
Section 377, concluding from this that “this cannot be made sound basis for
declaring that section ultra vires the provisions of Articles 14, 15 and 21 of
the Constitution.” In light of the above factors considered, the Supreme Court
reversed the decision of the Delhi High Court and upheld section 377.
It concluded that “Section 377 does not
suffer from the vice of unconstitutionality” with no further elaboration.
In, Navtej
Singh Johar V. Union of India[16]
Following the decision of the Delhi High Court in 2013 to overturn an earlier
order, gays are once again regarded to be criminals.
When
some elevated individuals in India, such as hotelier Keshav Suri, Ritu Dalmia,
and dancer Navtej Singh Johar, amongst many others, came forward and filed the
petition before the Supreme Court trying to challenge the constitutional
provisions of Section 377 of the Indian Penal Code, India witnessed an increase
in the number of demonstrations for LGBT rights.
As
it violates people's right to privacy, choice, and the ability to express who
they are, the court has unanimously found that Section 377 is unconstitutional.
It reinterpreted Section 377 to no longer criminalise homosexuality when practiced
by consenting individuals of the same sex or gender.
The
court reasoned that Section 377 is ambiguous since it fails to clearly define
"natural" and "unnatural." It also restricts the freedom of
speech and expression, which is guaranteed by Article 19 of the Indian
constitution, which includes the liberty to express one's gender orientation.
They
are a tiny minority, but the court ruled that shouldn't be used against them
when upholding their claim to equal protection under the law.
The
court also ordered the government to eradicate discrimination against LGBT
individuals and raise public awareness of their rights. The judges provided
further details on the concerns of transgender rights, cognitive functioning,
morality, secrecy, and the right to self-determination.
In
the same vein, the
Indian Psychiatric Society issued a statement in February
2014 declaring that homosexuality is not an illness and that the society does
not recognize it as such[17].
In
the case of National
legal service authority vs. Union of India[18],
which took place in April 2014, the Supreme Court of India decided that persons
who identify as transgender should be considered as a third gender category.
In
December of 2015, a measure seeking to decriminalize section 377 was presented
to Parliament; however, it was defeated by a vote of a majority of the members
present. On the other hand, at the same time, legislation to legalize marriage
between people of the same gender had already been enacted in the United
Kingdom.
Paradoxically,
the country that gave us Section 377, a legislation that criminalizes
homosexuality, has now made it legal for persons of the same sexual inclination
to marry each other in marriage.
Since
1967, it has been established that homosexuality does not constitute a crime in
and of itself in the United Kingdom.
The
Supreme Court of the India made the decision in February 2016 to reconsider the
criminalization of homosexual engagement.
Namma Pride
was the first March in India to be made accessible for people with
disabilities, and it took place in November of 2016. Roughly thirty-five
individuals living with disabilities took part in the March and the associated
events[19].
The
country's LGBT community now has the right to safely express their sexual
orientation after the Supreme Court of India issued a ruling on August 24,
2017, allowing them to do so. According to the verdict, "discrimination
against an individual on the basis of sexual orientation is fundamentally
repugnant to the dignity and sense of self-worth of an individual."
The
court held that held that privacy and protection of sexual orientation lie at
the core of the fundamental rights under Article 14, 15 and 21. The verdict
comes as a redemption for the LGBT community which has fought a long legal
battle to protect their privacy, sexual orientation and be protected from
social stigma and legal action[20].
Under
the legislation of this nation, a person's right to privacy is upheld
regardless of their sexual orientation. However, the Supreme Court did not
specifically strike down any laws that criminalize relationships between people
of the same sexual orientation.
LGBT
community members are permitted to declare their sexual orientation, yet the
Indian Penal Code still considers homosexual activities to be illegal. At this
moment, the legislative posture is in a perplexing paradox.
The
advancement of LGBT rights in India has been a sluggish process.
IV.
DISCRIMINATION
Adverse
consequences on LGBT people's ability to contribute to and benefit from the
changes might be expected when their human rights are violated via
discrimination and other forms of exclusion. LGBT persons are often subject to impoverishment,
prejudice, and brutality because of these factors. The probability of losing
one's job, home, education, and access to health care increases significantly
if one is openly gay, lesbian, bisexual, or transgender (LGBT), or is merely
considered to be (Ball 2010)[21].
LGBT people must be acknowledged as rights
holders and sellers who have an inalienable right to have their voices heard in
matters that directly affect them and the larger community. Discrimination
occurs at an early age and spreads across several industries. They also don't
have any close relatives who can help them. (Ball, 2010, Rosa, Fullerton, and
Keller, 2015). Because of their identities, origins and backgrounds these
individuals are frequently the targets of hostility.
In
the working world, LGBT persons also face discrimination and abuse in all
regions and in all stages of the employment cycle: hiring, advancement,
training, compensation and termination, and in the implementation of benefits
throughout. As a result, LGBT people are forced to conceal their sexual
orientation and gender identity, which can lead to considerable anxiety and
loss of productivity[22].
LGBT
people also face discrimination in access to housing. In addition, exclusion
from homes and communities leads to a disproportionate representation of LGBT
people among the homeless. They also face discrimination in accessing shelters,
and further exclusion, criminalization and stigma because they are homeless[23].
V.
STATUS
OF SAME-SEX MARRIAGE
Although,
there is not a lot of information about same-sex marriage because statistically
not many states have adopted same-sex marriages, but there are some states who
have enacted legislative provisions to allow same-sex marriages within their
countries. Although international human rights law has not yet been interpreted
to require States to ensure marriage equality, a small number of cases before
the United Nations and regional human rights bodies have begun to flesh out the
underlying principles. However, these bodies appear reluctant to recognize
marriage equality as a fundamental right unless and until this becomes the
cultural and legal norm. The Human Rights Committee, in its sole decision
regarding same-sex marriage, upheld the State’s right to refuse to provide gay
couples with the right to marry[24].
The
LGBT community is only now beginning to receive the attention it deserves in
India, which has only recently begun to go in that direction. The LGBT community
in India faces a lengthy and arduous fight to get marriage rights, depriving
them of daily access to fundamental civic rights.
Due
to the biased and orthodox view of Indian culture that deems "Homosexual
Relationships" to be "Morally reprehensible and against their
respective Cultures and Religions," it has been a fiercely discussed
subject and has sparked many religious conflicts.
The LGBT community in India is still far from
receiving all the liberties, entitlement and privilege that the country's
heterosexual community does, despite the decriminalization of Section 377 of
the Indian Penal Code in 2018. India is still a considerable distance from
recognizing same-sex relationships, legalizing same-sex unions, allowing
same-sex couples to adopt children together, or even implementing anti-discrimination
legislation.
Only
Kerala and Tamil Nadu in India have legalized transgender adoption, permitted
it, and granted members of the LGBT community the ability to change their
gender marker.
In
2009, the European Court of Human Rights first addressed the right of same-sex
couples to marry. he applicants in the case claimed that the Austrian law
limiting marriage to heterosexual couples violated Article 12 (the right to
marry and found a family) and Article 14 (freedom from discrimination) taken together
with Article 8 (right to private and family life). The Court found that “States
are still free, under Article 12 of the Convention as well as under Article 14
taken in conjunction with Article 8, to restrict access to marriage to
different-sex couples.”[25]
VI.
CONCLUSION
Most
Indians or people in general belonging to any religion, caste, race or creed
have heard about gays; therefore, they aren't in denial about them.
But
the Indian people’s political traditional stigma against homosexuality and
their own cultural perspective on the matter persist.
Young
people nowadays are more attuned to the feelings of LGBT people than they are
to those of the traditional ancient human beings. Homosexuals and their
lifestyle are often labelled as abnormal and dangerous. Just because
homosexuality is not as common as it formerly was in India does not imply it
does not exist there. normal.
If
something is out of the ordinary, that's no longer a reason to criticize it.
The country of India is an expanding nation, and what will further expand and
enrich the nation is the arrival of ground-breaking regulatory policies. As
long as society as a whole is ready to see homosexuality as taboo, to sweep it
under the rug of insignificance, despite the fact that they account for a
significant 10% of our population, it is imperative that the state provide them
with equal human and other rights.
Hence
there is a dire need to accept homosexuality as a part of “nature’s element”,
and help the LGBT Community to fight for their humanitarian rights, so that the
need for discrimination, elimination would not be “normal”
[2] Siddharth Dalabehera, “Gay Rights:
A comparative Study” (2015) < https://www.lawctopus.com/academike/gay-rights-comparative-study/> Accessed on 1 October 2022
[6] Lawrence v. Texas, 539 U.S. 558
(2003) [577] [578] [579]
[12] Suyashi Smridhi, “22 Years On,
AIDS Bhedbhav Virodhi Andolan: The Struggle Continues” (2020) < https://feminisminindia.com/2020/03/05/20-years-aids-bhedbhav-virodhi-andolan-struggle-continues/> Accessed on 30 September 2022
[17] Malathy Iyer, “Homosexuality is not a disease, psychiatrists says,” (2014) < https://timesofindia.indiatimes.com/> Accessed 30 September 2022
[19] Rajani, Ritesh and Madhumitha
Venkataraman “The making of India’s first disability-accessible Pride: Namma
Pride, Bengaluru, 2016” (2017). <http://orinam.net/making-of-indias-first-disability-accessible-pride-bengaluru-2016> Accessed on 1 October 2022
[21] Ball, Carlos A. (2010). “From the
Closet to the Courtroom: Five LGBT Rights Lawsuits That Have Changed Our Nation”.
Beacon Press.
[22] United nations,
“Effective inclusion of LGBT persons” < https://www.ohchr.org/>
Accessed on 1 October 2022
[23] United
nations, “Effective inclusion of LGBT persons” < https://www.ohchr.org/>
Accessed on 1 October 2022
[24] Human Rights Committee, Joslin
v New Zealand, Communication No. 902/1999,
UN Doc CCPR/C/75/D/902/1999
[25] Schalk and kopft v. Austria [2010], 107.
Article Information
LAWS REGULATING LGTBQ+ RIGHTS: A COMPARATIVE ANALYSIS BETWEEN USA AND INDIA
Authors: Ekta M. Khatri
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/07/11
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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