Author: Krishnapriya.P.D, II of B.B.A.,LL.B from Government Law College Thrissur.
Abstract
Supreme court transfers to itself the petitions pending in the high court regarding the same sex marriage. On November 14th 2022 the same sex couples filed writ petitions in the supreme court in order to seek legal recognition status for their marriage under the special marriage act 1954.The non-recognition of same sex marriage in India amount to discrimination that struck at the root of dignity and self-fulfillment of LGBTQ+ community.
What is LBBTQ+COMMUNITY?
The Senior advocate Saurab Kripal could be India’s first openly gay judge. Supreme court collegium finally recommended his name as judge of Delhi high court. The LGBTQ+ community which is known as the defined group of lesbians, gay, bisexual, transgender and other Que individuals. The status of this community is now facing a lot of challenges in our country.
The history of LGBTQ+ community in India
While injunctions on homosexuality’s morality are not explicitly measured in the religious texts of the largest religion in India Hinduism has taken various positions on the topic ranging from homosexual themes and characters. The first homosexuality study was published by Shakuntala Devi in 1977. In august 1922 the AIDS Anti-discrimination movement organized the first public protest against anti-sodomy laws in India. The report was called “Less than gay: A citizen report on the status of homosexuality in India "which publicly recognized the status of queer people and the discrimination they faced. It imposed a need to repeal section 377 and the Army, Navy, and Airforce act of 1950. The report was followed by public protest in New Delhi which is recognized as the first public demonstration against the anti-solo laws in India. 18 people were arrested at the Connaught palace as they were going to engage in homosexual acts. The first and oldest pride march in India and South Asia is the friendship walk which was organized on 2nd July 1999 in the city of Kolkata. Gay rights activists in India have started demanding political leaders their gay rights as a part of their election campaign. All these demands were ignored. Owais Khan first proposed the idea of a friendship walk.15 people from all across the country joined the pride march with the motto "Walk on the Rainbow". Hey met multiple NGOs, Human rights organizations, and AIDS prevention groups to spread their message. All the participants were interviewed by the media and the news spread across South Asia the pride march was met with strong support not only from India but people from Pakistan and Bangladesh as well. The 2009 Delhi High court struck down the decision in Naz Foundation vs Govt. Of NCT Delhi which found section 377 and other legal prohibitions against same-sex conduct to be a direct violation of the fundamental rights guaranteed under the constitution. Upon hearing a bunch of appeals filed against the decriminalization of gay sex, the supreme court observed that homosexuality should be seen in the context of changing society as many unacceptable things have become unacceptable over time. On 23rd February 2012, the union health ministry opposed the supreme court's decision stating that it is highly immoral to the society as India's moral values were completely different from other countries and the nation should be guided by those. However, on 28th February 2012, the Central government reversed its stand asserting that there was no error in decriminalizing gay sex. At last, in December 2013 however, India’s top court upheld the law that criminalizes gay sex in a landmark judgment in 2009 which decriminalized homosexual acts. In the national legal service authority vs Union of India 2014, the petitions revolved around gender identity and the protection of their rights and interests as themselves as the third gender. Whether a person who is born male but has a female orientation has the right to be identified as female. The petitioners voluntarily argued that the concept of binary genders strikes the core of equality, freedom of speech and expression as well as the right to personal liberty. The judgment was that the state and the Centre must grand transgender full recognition in the eyes of law. Hijras and Eunuchs should be treated as the third gender. The others landmark case was Navtej Singh vs Union of India which decriminalized same-sex relations between consenting adults. It applies to all citizens not just to the LGBT community. The transgender person's bill was introduced in 2019 which prohibits discrimination against a transgender person in educational institutions, employment, health care services, etc., recognition of identity as a transgender person, provision of the right to reside with family members, formation of welfare programs for their wellbeing and upliftment's and the provision of National council for transgender persons to advice, monitor and evaluate measures for the protection of their rights. The national medical commission NMC has written to all states that the medically banned conversion for any LGBTQ community is professional misconduct. Conversion or reparative theory is an intervention to change the sexual orientation or the gender identity of a person with the use of psychiatric treatment, drugs, exorcism, and even violence. The Madras high court urged the authorities to take legal action against those professionals who are involved in any former method of conversion therapy. The community will also be provided with legal assistance by the district legal service authority of India.
Recognition of same-sex unison in India
India does not recognize same-sex marriage but they can attain limited rights and benefits as a live-in couple. Since august 2022 the LGBT community can attain rights and benefits equal to the married couple. The supreme court's judgment in August 2022 gives equal rights and benefits to a married couple as a live-in couple. Couples who are living together as cohabitating couple comes under this category. A live-in relationship comes within the ambit of the right to life and personal liberty as guaranteed by article 21 of the constitution's supreme court also ruled out that a woman can choose whoever she wanted to live with. The woman in such kind of relationship is eligible to inherit the property of the deceased partner, and the children born within this relationship are not illegitimate.
Challenges faced by the LGBT community
The LGBTQ+ community continues to face discrimination in all spheres of society. They are marginalized and excluded from the social community. Hey have few resources available to them and often receive negative public attitudes which affect their self-confidence, self-esteem, and self-respect. They suffer from poverty, racism, and sexism which often leads to poor mental health. They are even excluded from their family and often denied education, medical facilities, justice, and legal service. They drop out of their jobs and roam around the streets homeless and isolated from the whole society. Fear of rejection and negative attitude from people haunts them. Family reactions will affect LGBT children. Most families tend to cut out connections of their children with other LGBT friends to change their children. But this will surely have a counterattack on them. Lack of communication and misunderstanding often leads to family conflicts as a result, they tend to commit suicide or slip into a high level of depression and find peace in drugs. Teenagers face harassment in schools. Rejection from their loved ones and religious group, bullying from schools and colleges, embarrassment in front of other people, and fear of discrimination and physical violence are the main challenges they face in today's world.
Way forward
The LGBTQ community requires anti-discrimination laws that empower them to build productive lives. You should be open add accept different genders and sexual orientations. Everyone should make an effort to learn about LGBTs through books, movies, and information on the web. The gained information should be shared among our families and friends. We should respect each other regardless of their gender. Accept the fact that every one is unique and stop making assumptions about one’s character just by their appearance. LGBT is not a choice that anyone can avoid.
AS MAHATMA GANDHI SAID,
“BE THE CHANGE THAT YOU WISH TO SEE IN THE WORLD”
REFERENCES
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