Author: Ayushi Singh, II Year of BBA.,LL.B(Hons) from ICFAI Law School.
Author: Sachi Srivastava, II Year of B.A.,LL.B(Hons) from ICFAI Law School.
Abstract
This research paper primarily focuses on the LGBTQ community, that how people approach and interact with them or what issues faced by LGBTQ community. Also addresses the various legal issues raised in favour of LGBTQ for evolution.
All members of these groupings are subjected to prejudices based on sexuality and gender ideas and practices. As members of a social minority group, LGBTQ persons face a variety of economical and cultural injustices. LGBTQ people's ability to fully access and enjoy their rights as citizens is hampered by a lack of social acknowledgment. Because of their sexual orientation, they are more likely to face intolerance, discrimination, harassment, and the threat of violence than individuals who identify as heterosexual.
The goal of this study is to influence people's minds about LGBTQ issues. To make people aware that how they should treat LGBTQ groups, whether for the better or for the worse. Alternatively, to improve people's knowledge of gender equality. The law plays an important role in the lives of lesbian, gay, bisexual, transgender, and queer (LGBTQ) persons, and the continued control and policing of sexuality and gender is a heavy burden for many LGBTQ people.
In other part, the paper deals with some steps taken for the betterment of LGBTQ and termed as judicial struggle which raise issues about Unnatural Offences, Identification as third gender, Right to privacy, etc. As a result of this study, researchers hope that attitudes towards LGBTQ people are clearly understood by the reader.
Overall the study has already attained what it wants. The perception of people differs from how they see LGBTQ people. As a result, negative sentiments such as sympathy, tolerance, and revulsion still exist, but the majority of them are positive. As a result, their attitudes toward LGBTQ persons are shaped by their beliefs.
“If we wait for someone else to validate my existence, it will mean that I'm short changing myself.” - Zanele Muholi
LGBTQ Initialism
The concept of having a separate sexual identity did not exist prior to the late nineteenth century, however people in the past lived lives that were equivalent to our modern idea of what it means to be LGBTQ. Gay identity did not completely emerge as a personal and political term until the mid-twentieth century. The terminology used to describe sexuality and gender in the past was frequently lacking in the clarity that exists today.
The term "gay," introduced by Hungarian doctor Karoly Maria Benkert in 1869, wasn't gaining popularity until the early twentieth century. Homophile was a more neutral and acceptable name for homosexual activists in the mid-twentieth century, Because it removed the word "sexual" while acknowledging same-gender attraction, it was considered as a more neutral and acceptable choice.
In the early twentieth century, the term "gay" was coined as a code word and became popular in the 1960s. Though “gay” is now commonly used to refer to men who are attracted to other men, it was utilized as an expansive term that included the aggregate of modern LGBTQ initialism. For example, activists Sylvia Rivera and Marsha P. Johnson used the terms "gay rights" and "gay power" to describe their freedom as black street queens in the 1970s (who today we would refer to as transgender). As a strategy to mobilise homeless trans street youths, the two created STAR (Street Transvestite Action Revolutionaries.
Rivera explained, “STAR was for the street LGBT people, the street homeless people, and anyone who needed support at the time.”
The name "Lesbian" is derived from the Greek island of Lesbos, which is linked to the poet Sappho, whose surviving works beautifully express passionate love and attraction between women. Betty Friedan, the first president of the National Organization for Women (NOW), famously referred to lesbians as "the Lavender Menace," implying that their presence would obstruct the organization's goals by reinforcing the stereotype that all feminists are man-hating homosexuals.
Until the 1990s, the term "Gay" was commonly used to refer to a wide range of sexual and gender minorities. With the advent of bisexual, transgender, and queer groups, this usage altered, giving rise to the four-letter LGBT initialism, which was considered as more inclusive than just calling the community "gay."
Activists coined the term "Transgender" to describe a group of people who did not fit neatly into gender boundaries or who went against gender norms and expectations.
Due to its relationship with surgical transition across the gender binary, “transgender” was also used by those who did not identify with the older name “transsexual.”
The letter "Q" was sometimes appended to the initialism, referring to "Queer" as an alternative. The term "queer" can refer to a recovered identity (literally meaning "strange" or "quaint"), an identity that displays a more radical, militant, or confrontational attitude to identity politics, or an umbrella term that encompasses anyone or everything outside of gender and sexuality norms.
Though it may be more convenient to refer to the LGBTQ community as "the queer community," the term "queer" is disputed and objectionable to some. “Queer” might trigger sentiments of trauma and exclusion depending on one's age, location of birth, or homophobia experience.
Sexual orientation and gender identity
Biological orientation - traditionally, one’s assigned sex at its birth is the biological sex which completely depends on the sex chromosomes. The x chromosomes along with y chromosomes along with y chromosomes are considered to be males. Similarly, the x chromosomes are designated as female sex.
This is the way to derive someone’s biological sex’s.
However , things aren't that simple. A person could carry y chromosomes but lack the genes encode specific male characteristics. So even though having y chromosomes they aren't only males, they appear what we stereotypically call a female. Some genes get expressed at high levels while some at low levels. A person may have genes which express high levels of testosterone but little or no amount of estrogen. These hormones have to be binded through receptors. Receptors also vary from person to person, some might have a lot of receptors which make the process of binding easier while some might have few receptors which makes the process difficult. Therefore, there are individuals who are intersex whose bodies don’t fit the standard definition of male / female. The bottom line is that, “Biology is messy and just like alot of things biological sex exists a spectrum.”
Gender identity and gender expression -
Segregated from the biological sex and constructed sex is gender identity and gender expression.
Gender identity - gender identity refers to an individual's own sense of gender.
Gender expression - gender expression refers to an individual's presentation to the world.
Most people identify themselves as either male or female but there are also various other types of non-binary genders and gender identities that lie outside of the man woman dichotomy. Someone could identify themselves as neither man nor woman. While someone could say that they are transgender. Gender identity is disconnected from sex designed at birth. Some would like the idea of identifying with no specific gender at all. Neither biological sex nor gender determines an individual’s sexual orientation.
Sexual orientation -This specifies what gender / genders an individual is sexually or romantically attracted to. An individual can be heterosexual which means they are attracted to opposite gender or homosexuals, if they are attracted to same genders specifically gay if they are males and lesbians if they are females. An individual can be bisexual which means they are attracted to two or more genders or pan sexual that means they are attracted to any gender. Some people might also call themselves asexual as they might not experience sexual attraction to anyone. Terminology could continue to change and evolve.
Pronouns - depending upon the gender identity any person can choose the pronouns that suit them at best. Oftenly, any person can affirm themselves as preferred pronouns such as he/him/his or she/her/hers or they/them/theirs which are more gender neutral. They/them is most suited to individuals whose gender is not known. Many individuals have to face a daily struggle of being referred to by the wrong pronoun. This is known as being misgendered. Imagine a scenario where a transgender young woman named Albert is in a waiting room and the clinician calls out, “Mr. Albert Kim, please follow me.'' Being referred to as the wrong gender can cause a deep sense of shame, loss of self-esteem leading to harassment and discrimination even from healthcare staff.
That woman might not come back to the clinic or might even feel unsafe as now others know that she’s a transgender.
Therefore, it’s extremely important to collect the SOGI data and know about a person’s assigned sex at birth, gender identity, preferred pronouns without making assumptions based on their name, appearance or behavior.
Chronological Development Of LGBTQ community
If we talk about India, India itself has a long and complicated history as lots of different people came here and settled from all across the globe. The most recent ones were the Britishers, they ruled us for over 200 years and left in 1947. The British crown criminalized homosexual activities stating these acts are “against the order of nature” and thus leaving us behind with sec 377 IPC in 1861.
There are many such practices from 1861 which no longer exist like sati,, child labor, etc. but why did homosexuality had to be a crime for more than 180 years!
Many believed homosexuality is a western import. It’s not! In an actual sense, homophobia is a western import. India has a valuable history. Same-sex practices have been India’s culture since time memorial. The shreds of evidence can be proven by our archaeological temples where pictures, sculptures, etc. show same-sex practices. The homophobic section 377 was introduced to us by the Britishers, which suggests that this law was never made by Indians.
Fate Of LGBTQ Community After Independence:
If we look at Indian history, what happened to LGBTQ laws in India after the Britishers left us!
In 1977, Shakuntala Devi, a mathematician published her first study of homosexuality naming it “the world of homosexuals”. It called for complete acceptance not tolerance and sympathy for homosexuals. Although the book went unnoticed. In 1981, the all India hijra conference took place in Agra, over 50000 members of the community attended it from all over India. In 1994, Hijra communities were granted voting rights as third genders. The development of decriminalization of sec 377 was first seen when a petition was filed in 1944 by AIDS bhed bhav virodhi Andolan. Though this petition was dismissed, it paved the way for more such petitions. In 1999, Kolkata was the first in South Asia to organize a pride march. Naaz foundation was next to file a PIL challenging constitutionality of sec 377 in Delhi High Court in the year 2001. Delhi High court in 2009, found sec 377 violative of fundamental rights of the constitution.
This was an amazing judgment in the fate of the LGBTQ community but it did not last long. In December 2013, the supreme court set the 2009 judgment by the Delhi High Court aside stating that the parliament should debate and decide the matter. In January 2014, Supreme court in the case of “suresh kumar kaushal vs. naaz foundation”, dismissed the review petition filed by the central government saying that a minuscule fraction of the country’s population constitutes LGBTQ people. The very same year Indian Psychiatric society released a statement - “homosexuality is not a disease and that it did not recognize it as one”.
Later in 2014, in the case of National legal services authority vs union of India, the supreme court of India ruled that transgender people should be treated as a third category of gender. This judgment gave a liberal identity to transgenders. In December 2015, a bill for decriminalizing sec 377 was introduced in the parliament but was rejected by a majority vote. And by the same time in 2015, UK had passed a law allowing same-sex marriages. The irony is that the country which gave us sec 377 had then made the same legal in its own country but in our country, it was still illegal. In 2016 the supreme court decided to review the criminalization of sec 377.
Later in 2017 august, the supreme court gave the LGBTQ community the freedom to safely express their sexual orientation. However, it didn't turn any law criminalizing same-sex relationships. This was complicated as the LGBTQ people were given the freedom to express their sexual orientation but homosexual acts were still an offense under sec 377 in IPC. It was only in 2019 that section 377 was repealed by supreme court in navtej singh johar case.
LGBTQ’s Struggle with Rights
Same sex marriages
Even in 2021, people from the LGBTQ community feel rejected. The reason behind it isn't that they are unable to fit in but because they are not granted the simple rights that society enjoys. Rights as to marry someone of their choice, to adopt as per their preference, right of inheritance, surrogacy rights. They are tormented to believe that they do not deserve to enjoy these rights because of their sexual orientation.
Right to marry and right to have a family is not expressly stated in our constitution but from the case of lata singh vs. state of uttar pradesh the supreme court interpreted that it is a part of article 21 of indian constitution. Also, the right to marry and have a family is basically a human right. But the question here is whether same sex mariage inclusive enough.
Indian society is still conservative regarding same sex marriages which is the biggest hurdle for LGBTQ community to marry of their preferences. Though there have been few instances where same sex marriages have been effectively recognised after sec 377 IPC being scrapped off.
Marriages in India are governed under either personal laws or secular laws like special marriage act etc. personal laws are applicable to parties of same religion and secular laws are applicable when parties are of different religion.
Surrogacy
Single people and LGBTQIA+ couples are prohibited from bringing their own children through surrogacy as per new surrogacy bills passed in parliament. Whereas the bill was passed with the motive of prohibiting the commercialization of surrogacy and exploitation of mother and child .
Judicial struggles for equality, recognition and identity
If there is one constitutional doctrine that can be claimed to be underlying the indian constitution’s theme, it is “inclusiveness”. Indian courts have faith that inclusiveness is the core part of Indian constitution and the basic right of every citizen but still LGBTQ community has failed to receive it.
Decriminalization of sec 377
Naz Foundation vs. Government of NCT of Delhi
In this case, the High Court of Delhi held that Section 377 of IPC imposed an unreasonable restriction over two adults engaging in consensual intercourse in private.
Thus, it was in direct violation of their basic fundamental rights enshrined under Articles 14, 15, 19 and 21 of the Indian Constitution.
The high court stated that, we declare that section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By 'adult' we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act. Secondly, we clarify that our judgment will not result in the reopening of criminal cases involving section 377 IPC that have already attained finality.
Identification as third gender
National Legal Service Authority vs. UOI
Third Gender" status was created by the Supreme Court for transgender.
The non-recognition of their identities was held to be violative of Articles 14, 15, 16 and 21 and the Central Government was also directed to treat the members of the "third gender" as an economically and socially backward class.
The court held that, the grievances of the members of Transgender Community (for short ‘TG community’) who seek a legal declaration of their gender identity than the one assigned to them, male or female, at the time of birth and their prayer is that non-recognition of their gender identity violates Articles 14 and 21 of the Constitution of India. Hijras/Eunuchs, who also fall in that group, claim legal status as a third gender with all legal and constitutional protection.
Right to Privacy
K.S. Puttaswamy vs. UOI
Justice Chandrachud observed that sexual orientation also falls within the wide ambit of right to privacy. Suresh Kumar Koushal judgement was criticized and it was stated that the 'minuscule population' of LGBT+ cannot be the ground to deprive them of the basic fundamental rights.
The Court held that privacy is an attribute of human dignity. The right to privacy safeguards one’s freedom to make personal choices and control significant aspects of their life. In addition, it noted that personal intimacies (marriage, procreation and family), including sexual orientation, are at the core of an individual’s dignity.
Constitutional Validity to Homosexuality
Navtej Singh Johar vs. UOI
Section 377 was held unconstitutional as it infringes the fundamental rights of intimacy, autonomy and identity. Homosexuality was decriminalized.
It was held that Section 377 is vague and does not create intelligible differentia between what is "natural" and what is "unnatural". Discrimination on the basis of sexual orientation is unconstitutional.
The court stated that History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality. The mis-application of this provision denied them the Fundamental Right to equality guaranteed by article 14. It infringed the Fundamental Right to non-discrimination under article 15, and the Fundamental Right to live a life of dignity and privacy guaranteed by Article
Transwomen to be included as bride
Arunkumar vs. Inspector general of Registration (Tamil Nadu) 2019
The court stated that, a marriage solemnized between a male and a transwoman, both professing Hindu religion, is a valid marriage in terms of sec 5 of the Hindu Marriage Act, 1955 and the Registrar of Marriages is bound to register the same. By holding so, this Court is not breaking any new ground. It is merely stating the obvious.
If a transwoman considers herself as a woman, the term "bride" encompasses her. According to Section 5 of the Hindu Marriage Act, a marriage solemnized between a Hindu male and a Hindu transwoman is a legal Hindu marriage.
Transgender persons (Protection of Rights) Act, 2019
After the struggle faced by transgender people, an act was introduced by the parliament in 2019 which protects the rights of all the Transgender people and aims at their social welfare and exchange in the society. This act was introduced by Lok Sabha in 2019 by the Ministry of Social Justice and Empowerment. This act recovers the flaws of 2016 and 2018 bill and eliminated the protest against all the theorists and criticism which rise against the transgender in India.
These people face the harassment of the society in such a way that they have to beg and serve the people in the wrong way to beg and serve the people in the wrong way to earn for their living. They were considered as ‘Hijras’ in the society who were meant to entertain to the fullest and demand nothing. This overruled the concept of 2018 Bill and amended a new version of it in 2019 Act which will diminish all the inequalities prevailing already. This act provides equality to all the transgender people in the places where they have been already harassed to the extreme. They have to be treated equally in the employment sector, education, housing, 7/healthcare and other services etc.
Conclusion
It is indisputable that LGBTQ individuals have faced a lot of discrimination and exclusion from society because of their sexual orientation. This exclusion has created endless hurdles in their daily lives, basic dignity, simplest relationships and healthy being.
Today many LGBTQ activists have faught for providing them freedom of expression and mandatory rights they are ought to receive. The oppression they have faced is age long and it's still not seen to end. Homophobia is outrageously seen in india. India is the largest democracy consisting of various communities. Different communities have to face different struggles but the trans community is one such community which has faced a torturous amount of struggle just to express themselves. Gender identity is the right granted from the birth of an individual, no one can take that right away. They have struggled to explain people the way they look, live, like and love which is not necessary to be explained. It's our responsibility to understand one's expression. Society should be made aware about what lgbtq stands for and promote their safety.
For the change we require social groups and media to come forward and play a responsible role by reporting LGBTQ issues, their discrimination and oppression and promote a culture of tolerance. Workplaces should be made trans culture friendly so they feel accepted and live a life without being in fear. They are not wrong in expressing themselves, the way they want to live their lives is their choice.
We have to accept them as normal humans by broadening our perspectives Government have to focus on arranging orientations regarding transgender so that people gets aware of the third gender community in the world.they have come a long way of being discriminated from the society, they have faced harassment from their own family, they have been mocked for being themselves by their friends, they have gone through tremendous hurdles just to be included as normal humans in society. We need a nationwide campaign to be arranged among the people to create a scope of awareness for tolerance and acceptance. People should open their hearts and minds to accept these beautiful creations as humans in the world.