Open Access Research Article
LOVE KNOWS NO LABELS: NAVIGATING THE JOURNEY OF LGBTQIA+ COMMUNITY
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LOVE KNOWS
NO LABELS: NAVIGATING THE JOURNEY OF LGBTQIA+ COMMUNITY
AUTHORED BY
- AHANA DOKADIA
ABSTRACT
The recent Supreme Court judgement on
same sex marriage led by five judges bench, consisting of Justice D.Y.
Chandrachud, Justice S.K. Kaul, Justice Ravindra Bhat, Justice Hima Kohli, and
Justice P.S. Narasimha had stirred widespread disappointment among LGBTQIA+ community.
The judgement leaves queer people with long standing struggle ahead for
equality and is a huge legal setback to the queer community in the country.
This article aims to discuss recent Supreme court judgement on same sex
marriage and other Supreme court judgement on LGBTQIA+ community and make an
analysis on the background of article 377. The article also discusses the basic
rights of LGBTQIA+ community and the India’s socio-cultural belief and custom
regarding same sex relationships and how over a period of time it changed its
mindset.
INTRODUCTION
What do you mean by transgender
person
According to the Transgender Persons
(Protection of Rights) Bill, 2016, a transgender is a person whose gender
identity, gender expression or behavior does not conform to their biological
sex. The bill defines a transgender person as a male or a female partly, or a
combination of both, or neither male or female. In addition, as per the
transgender person act, 2019, a transgender person is a person whose gender
does not conform to the gender assigned at the time of birth and include
trans-men, trans-women, gender-queer person and a person with intersex
variation and person with socio-economic identities such as kinnar, hijra,
jogta, aravani. The constitution of India has provided them certain rights
however, the recent Supreme court judgement had led to widespread
disappointment. With growing times, the position of transgender persons are
improving.
What is LGBTQIA+
LGBTQIA+ is a short form for lesbian, gay,
bisexual, transgender, queer, intersex and asexual. The addition “+” stands for
all other identities not included in this abbreviation. It defines gender and
sexuality in others ways.
Background of article 377
Article 377 of Indian Penal Code is a
colonial era law. It is an act which criminalize homosexuality. It criminalized
all sexual acts ‘against the order of nature’. It was referred to as ‘unnatural
offence’ and this law prosecute people engaging in oral or anal sex along with
homosexuality activity. The constitution validity of section 377 of Indian
Penal Code was challenged in the case of Naz foundation, they filed a lawsuit
to allow homosexual relations between two consenting adults. However, Delhi
high court dismissed the petition.
Article 377 was modelled on buggery
act, this section of buggery act was drafted by Thomas Hacaulay. However,
Supreme court played an important role in decriminalizing section 377 of IPC in
2018 in the case of Navtej Singh Johar v. Union of India. The Supreme court in
this case allowed consensual adult gay sex saying sexual orientation is natural
and one has no control over it.
Section 377 of Indian Penal Code
says: whoever voluntarily has carnal intercourse against the order of nation
with any man, women or animal shall be imprisonment of either description for a
term which may extend to ten years and shall be liable for fine. Article 377
prohibited consensual sexual intercourse between same-sex people and
categorized it as an ‘unnatural offence’ which is ‘against the order of
nature’.
Transgender’s right
The Constitution of India under
article 14, 15 and 16 talks about right to equality as a fundamental right. These
community had always faced discrimination. The transgender person (Protection of
Rights) bill, 2019 was introduced in Lok Sabha by minister of social justice
and empowerment Mr. Thaawarchand Gehlot. The bill later became an act after
President’s assent.
The act prohibits discrimination against
transgender person, including denial of services and unfair treatment in
relation to – (1) Education (2) Employment (3) Healthcare (4) access to goods, facilities,
opportunities available to the public (5) Right to movement (6) Right to
reside, rent or otherwise occupy property (7) Opportunity to hold public or
private office (8) Access to govt. or private establishment in whose care and
custody a transgender person is.
Employment – The act protects the
transgender person against any discrimination in employment matters and held
that no government or private institutions can discriminate against a
transgender person in employment matters, including promotion.
Education – The act provides education
facilities to transgenders without discrimination.
Right to reside – The act also
protects their right to reside. It denies unfair treatment with regards to
right to movement.
Healthcare – The act obliges
government to take steps to provide healthcare facilities to transgender
persons including separate HIV surveillance centers and sex reassignment surgeries.
Despite all the rights, the recent
Supreme court judgement in the case of Supriyo v. Union of India had led to
widespread disappointment among the communities. The five judges bench of the
Supreme court announced a 3:2 verdict on petition seeking the right of the
LGBTQIA+ community to marry and choose family. The judgement does not legalize
same sex marriage, placing it upon the parliament and sate government to decide
if non – heterosexual union can be legally recognized.
PROBLEMS
AND ISSUE RAISED
In our society, homosexuality is not
considered normal, LGBTQIA+ community had faced many challenges throughout the
time. They face discrimination when it comes to education, employment,
healthcare facilities etc. They also faced a lot of harassment. However,
throughout the time Supreme court played an important role in providing them
their legal right. However, as earlier discussed the recent Supreme court
judgment in the case of Supriyo v. Union of India had broken hearts of many
people.
Supriyo v. Union of India
Two same-sex couple Supriyo
Chakraborty and Abhay Dand, as well as Parth Phiroze Merhotra and Uday Raj
Anand, filed a writ petition in Supreme court challenging the constitutional
validity of Special Marriage Act, 1954 which restrict marriage to a ‘male’ and
a ‘female’. Their arguments were firmly grounded in the belief that
non-inclusion of same-sex marriage infringes article 15 of our Indian
constitution, which is a fundamental right. In this case, the majority judge refused
to include same-sex marriage in Special Marriage Act, 1954. They held that
right to marry is not a fundamental right and they emphasized that it is upon
the parliament to make amendment in the Special Marriage Act,1954. According to
them, it is upon the parliament to make determination regarding legalization of
same-sex marriage. Justice D.Y. Chandrachud and Justice Hima Kohli held a
contrary viewpoint. They firmly asserted that right to marry is a fundamental
right.
Although the recent judgement of
Supreme court on same-sex marriage led to widespread disappointment, the courts
had been instrumental in upholding and even reshaping the rights of LGBTQIA+
community. Let us have a look on previous judgements of Indian courts on
transgender person.
Naz Foundation v. Union of India
Naz foundation filed a petition challenging
the constitution validity of Article 377 in Delhi high court. They filed a
lawsuit to allow homosexual relation between the two. Naz foundation asserted
that section 377 of Indian Penal Code violates article 14, article 15, article
19 and article 21 of our Indian constitution. Delhi high court ruled that
section 377 cannot be used to punish sex between two consenting adults as it
violates right to privacy and personal liberty guaranteed under article 21 of
Indian Constitution. It attempted to decriminalize homosexuality.
However, in the case of Suresh Kumar
Koushal v. Naz Foundation, the court upheld the constitutional validity of
section 377 of IPC that make homosexuality a punishable offence. The court
overruled its previous judgement and criminalized homosexuality.
National Legal Service Authority v.
Union of India
In this case, the court held that
basic fundamental rights are available to transgender persons as well and they
are protected under article 14, article 15, article 16 and article 21 of our
Indian constitution. In this case, the court attempted to recognize the identity
of transgender. The court opinioned that not identifying a person male or
female is not a social or medical problem.
Justice K.S. Puttaswamy (Retd.) and
Anr. vs. Union of India
The court unanimously recognized
right to privacy as a fundamental right. In this case, the court noted that
personal intimacies, including sexual orientation are a part of individual’s dignity.
Further, it held that discrimination on the basis of sexual orientation is
offensive to dignity and self-worth. It strikes down the decision held in
Suresh Kaushal v. Naz Foundation. The court held that right to privacy is a
fundamental right and is an intersection of article 15 and article 21 referring
its decision in NALSA which grants right to self-recognition of gender.
Navtej Singh Johar v. Union of India
This case played an important role in
decriminalization of section 377 of Indian Penal Code. In this case, five
individuals from LGBTQIA+ community (Navtej Singh Johar, Ayesha Kapur, Sunil
Mehra, Ritu Dalmia and Aman Nath) filed a writ petition challenging the
constitutional validity of section 377 of IPC which dealt with ‘unnatural
offence’ and criminalized ‘carnal intercourse against the order of nature’.
The main issue was whether section
377 of IPC violates article 14 as it creates discrimination on the basis of
sexual orientation, article 19(1)(a) which deals with right to expression and
article 21 as it penalizes private consensual act between same-sex person.
The five Judges bench of the Supreme
court overruled the Koushal decision. It strikes down section 377 of Indian
Penal Code and decriminalized same-sex relations between two consenting adults.
Its judgement holds immense persuasive value for other nation who continue to
criminalize homosexuality.
Arun Kumar v. Inspector General of
Registration
Arun Kumar got married to Srija, a
transwoman at a temple as per Hindu rites and customs under the Hindu marriage
act, 1955. Although the temple authorities permitted the performance of the
marriage they declined to vouch for it and when the parties submitted a
memorandum for registration of marriage to the joint register no. ? of
Tuticorin, the registrar refused to register the marriage. The petitioners
filed a writ petition in Madras high court to challenge the refusal to register
the marriage. The respondent argued that the term ‘bride’ as mentioned in
section 5 of Hindu marriage act meant only women and not transgender, given
that Srija is a transgender.
The court held that a marriage
solemnized between a male and a transwoman, both professing Hindu religion is a
valid marriage. The court further stated that transgender persons had the right
the right to decide their self-identified gender, as upheld by the Supreme
court in NALSA v. Union of India, which has been reiterated in Justice K.S.
Puttaswamy case and again in Navtej Singh Johar case. The court recognized transwoman
as a ‘bride’ within the meaning of Hindu marriage act, 1955.
RECOMMENDATION
/ SUGGESTION
There are several laws in place to
prevent discrimination on the basis of gender and sexual identities. However,
LGBTQIA+ community are not included in the society due to people’s backward
mindset. Here are some ways to include LGBTQIA+ community in society and change
people’s mindset towards these community.
1. Education and Awareness – Education plays
an important role in changing people’s mindset. Educational initiatives should
be implemented to increase understanding of diverse sexual orientation and
gender identities dispelling myths and stereotypes. Inclusive curriculum that
covers history, issue and perspective should also be implemented to create
awareness and understanding.
2. Workplace Inclusion – Establishing
and enforcing anti-discrimination policies, offering diversity training and providing
support network would help create inclusive work environment.
3. Media Representation – Encouraging
diversity, positive portrayals of LGBTQIA+ individuals and accurate
representation of these community in media challenges biases and stereotypes
and shape more inclusive perspective.
4. Community Support – Establish support
groups, counselling services, and a safe space to provide emotional support and
a sense of community for LGBTQIA+ individuals.
5. Personal Support and Open Dialogue – Sharing
personal stories and experiences to humanize the LGBTQIA+ community fosters
empathy and connection with people of all background. Facilitating open
conversation about LGBTQIA+ issue creates a safe space for questions and
discussion to address misconceptions.
6. Legal and Policy Advocacy – Advocating
for and supporting legislations and policies that protects the rights of
LGBTQIA+ individuals ensures equal treatment under the law in areas like
employment, housing and healthcare.
CONCLUSION
Discrimination against LGBTQIA+ community
is harmful as it leads you treat people differently, without giving them chance
to be their authentic selves. When people feel respected, psychologically safe
and valued their well-being tends to improve. Unfortunately, multiple research
studies have found that some medical professional holds an implicit bias
towards this group. This bias can lead to major LGBTQ health disparities. In
conclusion, the journey of the LGBTQIA+ community is a testament to resilience,
profess and the ongoing pursuit of equality. From the shadow of oppression to
the light of acceptance, each milestone reflects a collective determination to
break barriers and foster inclusivity. The trajectory of the LGBTQIA+ community
unveils a poignant narrative of courage and societal evolution.
Historical milestone such as the
decriminalization of homosexuality, recognition of same sex relationships and
increasing reputation in media underscore the progress made. However, it is
imperative to acknowledge that the journey is far from being complete.
Discrimination and marginalization persist, reminding us of the need of the
importance of continued advocacy and education to eradicate prejudices. By
fostering inclusivity and embracing diversity, society can contribute to a
future where everyone regardless of their sexual orientation or gender identity,
can live free from fear and prejudice. As we reflect the journey, it is evident
that there is still work to be done to ensure a world where love, acceptance
and equality prevail for all.
FREQUENTLY
ASKED QUESTIONS (FAQ)
Q.
What is writ petition?
Ans. Writs are written order from
Supreme court or a High court that commands constitutional remedies for Indian
citizens against the violation of their fundamental rights. Article 32 in the
Indian Constitution deals with constitutional remedies that an Indian citizen can
seek from the Supreme court against violation of his/her fundamental rights,
whereas the High court has the same power under article 226.
Q.
What are the provisions of Special Marriage Act,1954?
Ans. The marriage under Special
Marriage Act,1954 enables people from two distinct religious background to
unite in a marriage bound. Unlike personal laws, the Special Marriage Act is
applicable to all Indian citizen regardless of their religion.
Q. How many fundamental rights are there Indian
Constitution?
Ans. There are six fundamental rights
guaranteed under Indian constitution. They are (a) right to equality; (b) right
to freedom; (c) right against exploitation; (d) right to freedom of religion; (e)
cultural and educational rights.
REFERENCE
Article Information
LOVE KNOWS NO LABELS: NAVIGATING THE JOURNEY OF LGBTQIA+ COMMUNITY
Authors: AHANA DOKADIA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/09
- 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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