This article is written by Yatin Gaur, a student, pursuing B.A.LL.B. from Hidayatullah National Law University. In this article, the author comprehensively discusses the evolution of LGBT Rights in India in the backdrop of various landmark judgements. Further, this article highlights the need to make the laws on marriage, adoption, surrogacy, guardianship, inheritance, employment and education inclusive for the LGBTQIA+ community.
Table of Contents
6th of September 2018 was not an ordinary day. Something momentous happened on the day that “blew a life of “constitutionality” in the dead members of the LGBTQIA+ community, who have been subjected to centuries of mind-numbing toil. What marked the day special for the LGBT+ community was that the Supreme Court of India delivered a historical verdict decriminalising homosexuality by partially striking down Section 377 of IPC.
The LGBT community all across the country erupted in the jubilant celebration enjoying their victory against the 200-year-old British-era law, that criminalised same-sex relationship. The significance of this whole judgement can be surmised in the light of the statement made by Justice Indu Malhotra while reading her 50-page verdict 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”.
However, this landmark event should not be construed as the culmination of more than two decades of a legal fight against the draconian law but rather should be understood as a beginning of a new era in the fight for LGBT Rights. It would not be wrong to say that the repealing of the colonial law was merely a tip of the iceberg and the LGBT community in India has a much larger and bigger struggle ahead of them.
Despite homosexuality been decriminalised, the laws in India still remain hostile and prejudicial towards the LGBT community in several ways.The reason behind this is that there exists an enormous gap between the legislative and the judicial development of LGBT laws in India. So, though the Supreme Court of India through the landmark judgements of National Legal Services Authority v. Union of India, Navtej Singh johar v. UOI, and Justice K.S.Puttaswamy v. Union of India (Puttaswamy) has laid the groundwork to confer upon the queer and non-binary community a bundle of basic human rights, but the legislature has failed to keep up with the recent developments.
So essentially speaking, the same-sex couples now have the legal right to cohabit and conduct their personal affairs without any fear of persecution but are still denied equality of treatment in various aspects. Thus, it is imperative to take the conversation forward and talk about the various laws that continue to discriminate against the LGBT+ persons. It includes anti-discriminatory laws such as no recognition of same-sex marriages, no rights for adoption, surrogacy etc.
So, the fight for equality continues as there is a long battle waiting ahead, swarmed with numerous difficulties given that the LGBTQ+ community remains closed off to civil rights.
Evolution of LGBT Rights
Section 377 of IPC which criminalised all kinds of non-procreative sexual intercourse was enacted in the pre-independence era by the British colonial Government. The despotic law was not only directed against the homosexuals but also covered all other forms of non-traditional sexual intercourse even in the course of heterosexual union. So this law was nothing but a residue of the orthodox Victorian morality which had no place in a democratic country like India.
However, it took more than 70 years and almost 2 decades of the long legal battle to scrape down this old age law that had become a weapon to harass and exploit all those who didn’t conform with the traditional binary of sexuality and gender. But before proceeding to understand how the current laws in India, even after the scrapping of Section 377, are insufficient in securing basic human rights to the LGBT+ community in India. Let us first trace back the history of the LGBT rights movement in India, discussing some landmark Judgements and their impact on the LGBT Rights movement to have a comprehensive discussion further.
Though the beginning of the LGBT rights movement can be traced back to the early 1990s but all the major developments that happened since then can be discussed in the reference of the following key judgements and their aftermath.
Naz Foundation Govt. v. NCT of Delhi
Background: In July 2001, eager to press charges under Section 377 of IPC, Lucknow police raided a park and detained a few men on the suspicion of them being homosexuals.
The police also arrested nine more men associated with “ Bharosa Trust”, an NGO which was working to create awareness amongst people about safe sexual practices and STD’s. These people were then accused of running a sex racket and were denied bail. It was then that The Lawyers Collective, a legal aid organisation, came forward and established that the charges pressed against these people were false and finally they were released.
After the Lucknow incident, an NGO Naz Foundation along with Lawyers Collective went ahead and filed a petition before the Delhi High Court in 2001 challenging the constitutional validity of Section 377 of IPC.
Arguments: The petitioner argued that Section 377 of IPC violated the fundamental right to life and liberty, right to privacy and dignity, right to health, right to equality and freedom of expression. It was also submitted that the law undermined the public health efforts that aimed at reducing the risk of transmission of HIV/AIDS, as the fear of prosecution under the Section prevented people from talking openly about sexuality and lifestyle.
Judgement: Finally, In 2009 in the case of Naz Foundation Govt. v. NCT of Delhi, 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.
Suresh Kumar Koushal vs Naz Foundation
Background: Various Individuals and faith-based groups vehemently rejected the idea of decriminalizing homosexual relationships, in light of India’s rich history bathed in ethics and tradition. They further appealed before the Supreme Court of India to reconsider the constitutionality of Section 377.
Judgment: When the community, after eight years of a long battle, was just letting out a sigh of relief, the Supreme Court on 11th December 2013, overturned the judgment of the Delhi High Court and re-criminalised homosexuality. A bench of Justice GS Singhvi and Justice SJ Mukhopadhaya Court held that LGBT+ persons constituted a ‘minuscule minority’ and therefore did not deserve constitutional protection and further observed that Section 377 of IPC did not suffer from the vice of unconstitutionality.
Aftermath: But the silver lining was that the Suresh Kumar Koushal V. Naz Foundation judgement, instead of putting a halt on the LGBT movement has rather rekindled a new wave of activism in India. The Supreme Court’s iconoclastic judgement faced immense criticism from every nook and corner for erasing basic human rights of homosexuals. The result was that public discourse about LGBT rights witnessed an upsurge in India.
National Legal Services Authority v. Union of India
Background: The transgender community in India has been the worst sufferer of exploitation amongst the whole LGBT+ community due to their degraded social, educational and economical status. These people have never been considered as a part of society and have always been subjected to exploitation, ostracisation, humiliation and violence either in the hands of society or the authorities in power. The constant rejection and not having access to resources, these people often resort to beggary or prostitution, making them more vulnerable to discrimination, STD’s and crimes such as human trafficking.
But the 2014 Judgement of the Supreme Court brought in a new ray of hope and euphoria for these transgender people as for the first time in the history, they were recognised as the third gender.
Issue: In National Legal Services Authority v Union of India, the Supreme Court had to decide upon the question of whether there was a need to recognise the hijra and transgender community as a third gender for the purposes of public health, education, employment, reservation and other welfare schemes.
Judgement: The Supreme Court in its landmark judgement created the ‘third gender’ status for hijras or transgenders. As earlier, the transgender people were forced to describe themselves as either male or female, but after the judgement, they could proudly identify themselves as transgender. But apart from this, what made this judgement so special was that it laid down the framework to guarantee the transgender community a whole spectrum of basic human rights which can be surmised as follows:
- The court held that the non-recognition of their identities was in violation of Article 14,15,16 and 21 of the Constitution of India.
- The Supreme court further directed the Government of India to treat the members of “Third Gender” as an economically and socially backward class.
- It was also stipulated that government should make proper policies for the transgender community in the light of Articles 15(2) and 16(4) to ensure equality of opportunity in education and employment As per the judgement, the third gender would be categorised as other backward classes [OBC] to confer them the benefit of reservation in relation to government jobs and educational institutions.
- The court also took cognizance that a conflict between one’s birth gender and identity is not essentially a pathological condition. So, rather than adopting a “treatment of the abnormality”, the focus should be on “ resolving distress over a mismatch”.
In simple words, it means that the court recognised the difference between both the gender and biological components of sex. The court defined biological characteristics to include genital, secondary sexual features, chromosomes etc. but defined gender attributes as one’s self-image i.e. an individual’s deep emotional or psychological sense of sexual identity and character which is not restricted to the binary sense of male and female but can lie on a broad spectrum.
Aftermath: After this judgement, transgender people now can change their gender without undergoing a sex reassignment surgery Additionally, they have a constitutional right to identify and register themselves as the third gender. Apart from this, various state government took small steps to benefit the transgender population by making policies of health and housing. However, a major blow to this judgement came after the passing of Transgender Persons Bill, 2018 the various intricacies of which will be dealt with later in this article.
K.S. Puttaswamy v Union of India (2017)
Background: In the Suresh Kumar Koushal V. Naz Foundation judgement when the Naz Foundation argued before the Supreme court that Section 377 of IPC violated the right to privacy, the Supreme court went on length giving a detailed account of constitutional jurisprudence and the evolution of the right to privacy. However, after establishing the vital significance of this right, the court underestimated the right to privacy argument in the context of 377. The court recogonised that although there have been cases of misuse of Section 377 against the LGBT+ community putting their privacy and integrity at stake on the pretext of blackmailing, harassing or torture, and in general. But the same has never been the objective of the section as the section itself neither authorises nor condones such treatment and thus is not reflective of the fact that such law is beyond the vires of constitution.
Judgment: However in K Puttaswamy V. Union of India case, (popularly called as Aadhar judgement) Justice Chandrachud’s opinion featured a section titled “discordant notes.” It basically dealt with two Supreme court judgements. The first was about the infamous case of Additional District Magistrate, Jabalpur v S.S. Shukla which upheld the denial of basic fundamental rights while the second part referred to the Koushal case rejecting the rhetoric of the “so-called” rights of the LGBTQ+ community.
Justice Chandrachud observed that sexual orientation also falls within the wide ambit of right to privacy. Puttaswamy decision notes also registered the criticism about minimis hypothesis principle used in the Koushal judgement and stated that the minuscule population of LGBT+ cannot be the ground to deprive them of the basic fundamental rights and such curtailment of the fundamental right cannot be held tolerable even when a few, as opposed to a large number of people, are subjected to hostile treatment.
This acknowledgement is important because of the reasons:
- In Koushal judgment it was argued that only a few people were prosecuted under the offence of section 377 thus it does not have much significance. However, what was largely ignored was the fact that since consent does not play any significance in the prosecution of section 377, the numbers cannot be a valid proof of the extent of use of this section as they cannot indicate the instances of consensual sexual encounters.
- Another thing that this observation established is that the real impact of the law is not only restricted to the prosecution or punishment but even includes an indirect impact which even involves the creation of a hostile environment for LGBTQ+ community.
The Supreme Court’s ruling on the right to privacy as an inherent fundamental right under Article 21 in the Indian Constitution, sparked hopes amongst the queer community that the Court would soon strike down Section 377.
Navtej Singh Johar V. Union of India
Background: After the overruling of the Delhi High Court judgement in 2013, homosexuals were again considered as criminals.
India witnessed an increasing number of LGBT rights protests when some high profile names including hotelier Keshav Suri, Ritu Dalmia, dancer Navtej Singh Johar among many others came forward and filed the petition before the Supreme court challenging the constitutional validity of Section 377 of IPC.
Arguments: The Supreme court agreed to refer the issue to a larger bench and heard several petitions in relation to it. The Government further stated that it will not interfere and will leave the matter to be decided in accordance with the wisdom of the court. Arguments were advanced that section 377 violated the constitutional rights to privacy, freedom of expression, equality, human dignity and protection from discrimination.
Judgement: The Court finally gave its verdict on 6th September 2018 and it can be summarised as follows:
- The court unanimously ruled that Section 377 is unconstitutional as it infringes the fundamental rights of intimacy, autonomy and identity. and decriminalised homosexuality by reading down Section 377 to exclude consensual intercourse between adults of the same sex/gender.
- The court rationalised that the Section 377 is vague and does not create intelligible differentia between what is “natural” and what is “unnatural”. It also curbs freedom of expressing one’s sexual identity, ie. right to freedom of expression as enshrined under Article 19 of the Indian constitution.
- The court further opined that the sexual orientation is an inherent part of self-identity and invalidating the same is denying the right to life and the fact that they constitute a minuscule section of the population cannot be a valid justification to deny them this right.
- The court also heavily criticised the Koushal judgement and called it irrational, arbitrary and manifestly unconstitutional.
- It was also emphasised that discrimination on the basis of sexual orientation is unconstitutional considering it is a natural phenomenon as proven by scientific and biological facts.
- The Supreme court also directed the government to create public awareness regarding LGBT rights and to eliminate the stigma surrounding the LGBT people. The judges further elaborated upon the issues surrounding mental health, dignity, privacy, right to self-determination and transgenders.
Transgender Persons (Protection of Rights) Bill, 2019
Transgender Persons (Protection of Rights) Bill, 2019 was enacted with an objective to protect the rights of the Transgender Community by prohibiting discrimination against them with regards to employment, education. healthcare, access to government or private establishments. But in the name of empowering the community, the bill further exposes them to institutional oppression and dehumanises their body and identity.
The trans community in India has vehemently rejected the bill citing following provisions of the bill as they infringe their fundamental rights and do not comply with the NALSA judgement.
- The bill snatches from an individual the right to determine his/her sexual orientation which is an integral component of the right to privacy as pronounced in the NALSA judgement. As per the bill, the change of gender identity in documents can only be done after proof of sex reassignment surgery which must be certified by the District Magistrate. This takes away from the Trans community the basic human right of autonomy and privacy and further exposes them to harassment in the hands of authorities.
- Another discriminatory aspect of the bill is that the punishment prescribed in the case of ‘ Sexual abuse against Transgender’ is only of two years while a similar kind of offence if, happened against women attracts a serious punishment extending up to 7 years. Thus, stipulating different levels of punishments for the same nature of crime only on the basis of gender identity is inherently discriminatory, arbitrary and against the equal protection clause.
- The bill is also worthy to be criticised as the bill erroneously neglects the viciousness and atrocities that transgenders encounter within their own family. The law disentitles them from leaving their families and joining the trans-community thus infringing their right to be a part of any association and right to movement. The only recourse available to the trans community in case of family violence are the rehabilitation centres.
- Although the bill seeks to provide “inclusive education and opportunities” to the transgender community but fails to lay down any concrete plan to achieve the same. There are no provisions in relation to providing any scholarships, reservation, changing the curriculum to make it LGBT+ inclusive or ensuring safe inclusive schools and workplaces for the trans-community.
Therefore, it can be concluded that on one hand where the courts are taking progressive steps to empower and uphold the rights of LGBTQIA+ community, on the other hand, the legislature is invalidating the same rights. It is high time that the government should acknowledge and frame laws in accordance with the landmark judgement else the LGBTQ community will continue to face setbacks in their struggle to have the same rights as those available to heterosexual people.
The way forward
After having such a comprehensive discussion about the evolution of the LGBT rights movement in India and understanding the relevance of various judicial pronouncements, we are in a position to proceed towards the understanding of how these judgments will shape the future of the LGBT rights movement in India.
Therefore it becomes important to consider here that the significance of the NALSA judgement and Navtej Singh Johar judgement is not only limited to the recognition of third gender identity and decriminalisation homosexuality. But these judgements are also progressive because apart from deciding upon the issue in hand, they even laid down the basic groundwork to confer a host of other civil rights which were earlier not available to the LGBT community but are ordinarily enjoyed by the heterosexual persons and cisgender persons.
These civil rights include the right to marriage, right to adoption, right to surrogacy, right against discrimination, freedom from sexual assault etc.
Special Marriage Act of 1954 lays down provision for people of India and all Indian nationals in foreign countries allowing them to marry irrespective of their faith, caste and religion. So, while the marriage laws in India have evolved progressively with time but there is no such provision for the same-sex couples to marry, which seems reasonable also considering it’s only been two years when the Supreme court decriminalised homosexuality. However, sooner or later the legislature has to deal with these questions.
There are several petitions on same-sex marriages pending with the courts. So the next onus on the LGBT activists is to encourage and demand from the government to formulate legislation permitting LGBTQ couples to marry, adopt and inherit their spouse’s property. However, the fact is that although the Union government, in 2018 left it for the court to decide on the legality of section 377, but has also indicated that it is likely to oppose any petition for same-sex marriage.
But this seems to be contradictory in the light of the judicial pronouncements considering that if we really want to adhere to the principle of equality in the context of LGBT people then the right to marry, bequeath property, share insurance (medical and life) are all part of this. Therefore,denial of these basic rights only on the basis of sexual orientation is objectionable and unconstitutional violating the constitutional rights of right to equality (Article 14) and liberty (Article 19).
Relevance of marriage
Marriage has been one of the strongest and most important institutions of human society. With time it has evolved and changed its forms but what didn’t change is that marriage continues to be a universal fact. This has more relevance especially in the case of India, where the concept is so deeply entwined that everyone is expected to be a part of it.
In India, marriages and weddings are considered as a sacred thing. Marriage apart from regulating sex life is also a relationship grounded on economical and emotional interdependency. The religious ceremonies conducted are all considered an essential part of marriage. This perhaps explains why the LGBT community in India is so eager to get the legal right to marry or why there are so many instances of gay and lesbian marriages performed in India by the exchange of garlands in temples or quasi-legal friendship contracts in several reported cases.
The denial of marriage rights to LGBTQ+ people deprives same-sex couples of social and legal recognition as well as the state benefits that married persons enjoy. However, it is essential to point out that the institution of marriage since its inception has been exclusionary towards certain communities of people and whenever any group of people has been included or excluded from being able to marry, it has always been accompanied with a battle between public policy, religion, and social norms.
Is right to marry a legal right
Right to marry is not expressly mentioned in the constitution. But, in the landmark case of Lata Singh v. State of Uttar Pradesh AIR 2006 SC 2522 the supreme court interpreted it to be a part of Article 21 of the Indian constitution. The supreme court in this case of inter-caste marriage stated that after a person becomes major, he/she can marry whomsoever he/she likes. The court further opined that the maximum the parent can do is that they can cut all their ties from the children but can’t threaten or kill them.
Right to marriage is also recognised at International level in human rights charter under the heading of “right to have a family” and under various other covenants, but are these laws inclusive enough to include same-sex marriages is still a big question. Another very important thing that should be pointed out here is the fact that even when the corners of the whole world are expanding, Indian society is still conservative and people still don’t prefer or allow their children to marry inter-caste. Even today people are killed because of marrying in different caste and religion, then it seems reasonable that the idea of same-sex marriage is even more difficult to accept.
However, this reason cannot be a valid justification to deny the whole LGBT+ community the right to marry just because they have a different sexual orientation from others. Apart from this, it also raises another very pertinent question that whether the opinion of the majority holds more significance in the eyes of law that it can deprive an individual of the personal autonomy and basic right to his/her own life.
Instances of same-sex marriages
Despite there being no legislation in India governing same-sex couple marriages. LGBT people still marry and there have been instances when the courts have recognised these kinds of union.
After the decriminalisation of homosexuality in 2009, the Haryana court effectively recognised marriage between two lesbians. But a more significant judgement came in 2019 after the scrapping of Section 377 by the Supreme court. In 2019 a bench of Madras High court upheld the marriage between a biological man and a trans woman under the Hindu marriage act 1956 and the court further directed to register their marriage.
Some similar instances of acceptance of same-sex marriages can also be found at the community level. In 1988 two police women married each other in a Hindu ceremony Though not registered but their marriage was accepted and supported by their families and the community. Apart from this, similar kind of same-sex marriages have been happening in small village Angaar in Gujarat amongst the Kutchi for the past 150 years, where both the bride and bridegroom are men.
Further, it’s also very important to note that most such same-sex marriages, especially lesbian marriages, have largely happened between small-town, lower-middle-class or between non-English speaking women who are not even connected to the LGBT movement.
Personal Laws and Same-sex marriages
Family laws in India are categorised under two heads i.e. personal and secular laws:
- Secular laws are applied to all the citizens regardless of their faith, caste etc. ie. Special Marriage Act.
- Personal laws differ from religion to religion. There are primarily four personal laws governing marriages in India.
- Hindus, Sikhs, Buddhists and Jains are governed by the Hindu Marriage Act.
- Muslims are governed by Sharia law.
- Christians are governed by Christian marriage Act.
- Parsis are governed by the Parsi Marriage and Divorce Act, 1936.
On examining the religious standing of same-sex marriages in India it can be summarised as follows:
Hinduism: While the followers of Hinduism have different stances on homosexuality as a whole. However, there is enough literature available in Hinduism that speaks volume about same-sex relationships and as an extension to same-sex marriages.
There are temples carvings in India depicting same-sex relationships. Instances can also be found in various mythical stories such as God Ayappa being born out of Lord Shiva and Lord Vishnu. Story of Bhagiratha being born from two women who had sexual intercourse under divine blessings, description of homosexual acts in Kamasutra, a queer character ‘Sikhandi’ in Mahabharata and homosexual Tantric rituals are some historical evidences of same-sex relationships. However, in certain texts homosexuality is condemned but it is mainly on the premise that humans give unnecessary importance to sex.
Islam: Islamic Shariah law is extracted from the Quran and Muhammad’s Sunnah. It’s very clear in Islam that homosexuality is a punishable sin. This view remains the same in all four primary schools of Sunni jurisprudence. Further according to Islamic principles Muhammad stated that effeminate men and masculine women deserves to be cursed and should be thrown out of houses.
Christianity: The only confusion regarding homosexuality in Christianity is about the question that how should homosexuals be treated. Should they be considered as criminals or should their behaviour be rectified. In both cases, the position is clear that homosexuality is condemned in Christianity.
Parsis: In Zoroastrianism too, homosexuality is considered something evil and is strongly forbidden. However, there are certain followers who support LGBT+ people and consider the above interpretation as a distortion of the basic principle of “good thought, good word, good deed”.
Jainism and Buddhism: In Jains, the stance is very clear. They discourage all kinds of sexual activities that are not done for the purpose of reproduction which means apart from homosexuality, even premarital sex, heterosexual sex or sex for fun is also not allowed.
While Buddhists say that till the time any sexual activity is consensual and is out of affection it is permissible. Dalai Lama also has a similar stance that homosexual sex is allowed provided nobody is harmed and it’s completely consensual.
Sikhism: In Sikhism, since the religious texts remain silent on this aspect they don’t hold any same-sex marriages in their gurudwaras.
The significance of discussing the religious standing of same-sex marriages is an essential pre-requisite before drafting any policy or law on same-sex marriages. As essentially all the personal laws governing marriages are derived from the available religious literature itself.So bearing in mind that homosexuality is considered something as vile and unacceptable in most of the religions except Hinduism and Buddhism. Therefore, any amendments in the personal laws regarding LGBT+ cannot be a practical solution in the status quo.
Further, this also must be viewed in the light of the fact that a number of previous attempts to enact uniform civil code (UCC) were met with deep resistance in India as minorities fear that UCC will restrict their freedom of religion. This is primarily the reason why the law commission in August 2018 rejected the UCC as a recommendation.
In such a situation, the most viable manner of attaining legislative recognition of same-sex marriages would be an amendment of the Special Marriage Act which will be discussed later in this article.
In the Navtej Singh Johar judgement, Justice Chandrachud observed that the manner in which an individual wants to exercise intimacy is beyond the legitimate interest of the state. But despite granting everyone the right to intimacy the judgement did not direct the government to frame or amend laws to recognize such alternate forms of union or otherwise. As essentially speaking when Justice Misra recognised the right to the union under Article 21, the word “union” was used in the context of companionship and not in the reference to marriage.
It is also important to point out that the LGBT rights activists have suggested various reforms to the law commission to make the family laws inclusive for same-sex couples as well but the same has not received any due consideration from the law commission.
However, with the Supreme court decision in NALSA judgement and more recently in Navtej Singh Johar judgement, some of these restrictions can now be potentially challenged under the robust framework of equality and non-discrimination that has been recognised.
Making marriage laws inclusive of LGBT+ community
In order to recognize same-sex marriages, some new laws will have to drafted, modified or inserted, as the present laws cannot be applied in the case of LGBT marriages. There are 3 ways by which the marriage laws can be made LGBT+ inclusive.
- One view suggests that same-sex marriages can be permitted after reinterpreting, modifying or amending the existing laws or by making the language of the act gender-neutral.
- The second view suggests that same-sex marriages should be permitted after drafting a whole new Act by considering the LGBT+ as a separate community.
- The third view suggests that considering India is still not progressive enough and open to the idea of LGBT marriages, the legislature instead of legalising same-sex marriages can rather give them a different status such as that of a civil partnership, where they may not have all the rights of marriage but can still enjoy various other significant rights like sharing of insurance, filing joint tax returns etc. ie. it can be rather recognized as a relationship based on emotional and economical interdependency.
Exploring the options
Out of all these alternatives, the second option i.e. to draft a whole new law for the same-sex marriages keeping in mind the needs and vulnerabilities of LGBT+ people seems to be the most ideal way to ensure marriage equality. However, considering the nature of the Indian landscape where the notions of morality and traditions are deeply entrenched in society, drafting a separate law governing LGBT marriages is still very distant.
So, what can be a more practical solution in the status quo is to either amend, modify or make the language of the existing laws neutral to be inclusive of LGBT+marriage, or the second option is to legalise an alternative form of marriage. Therefore, in order to understand the practicability of this concept, let’s discuss what are the major problems that will arise in implementing these suggestions and what can be the possible solutions.
Amending, modifying or changing the language of the laws
There can be a number of problems that may arise in adopting this method which is discussed as follows:
Importance of defining the terms
i) ‘Husband’ and ‘wife’
Since it is a normal understanding that the husband is considered to be a male and the wife is considered to be a female. But in case of LGBT marriage since both the partners are of the same gender this definition cant be applied.
Further, If the meaning of the terms husband and wife are not properly interpreted then it will result in ambiguity with regards to the application of the law. For instance, Section 27(1-A) of the Special Marriage Act, 1954 provides the grounds on which a wife can take divorce but in case of LGBT marriages there is confusion regarding the term wife. Therefore, Section 3 of the Act i.e. definition clause can be reinterpreted to remove the ambiguity in LGBT marriages.
ii) Prohibited degree
As per the Special Marriage Act (also in the Hindu Marriage Act), there are certain prohibited degrees of relations between which the marriage can’t take place. However, the degree of these relationships varies in the case of both men and women. But since the LGBT marriages don’t happen between a male and female, thus these terms will need to be redefined.
In the case of the Special Marriage Act ( Hindu Marriage law and Parsi law as well), sodomy is a ground for divorce. But after striking down of Section 377, these terms need to be redefined.
iv)Grounds for divorce
Though grounds like adultery, desertion and cruelty are applicable to both the genders but their interpretation varies in case of men and women. Thus this power imbalance has to be clearly defined in the case of same-sex marriages.
Since consummation is an important prerequisite of a valid marriage. and absence of it can render a marriage voidable such as in case of impotency, thus it will have to be redefined in the case of homosexual marriages. As this concept of consummation is premised on cisgender male and cisgender female relationship, it can technically render every LGBT marriage null and void.
Implications of changing one’s gender identity
After the NALSA judgement, since each individual has the right to identify himself/ herself as the third gender and also can undergo sex reassignment, therefore, the gender assigned at birth is not permanent and can change afterwards in some cases. So, while making changes in the law, legal rights and obligations of people undergoing such transition also need to be defined.
Since heteronormative ideas are so deeply embedded in the institution of marriage, thus, there are suggestions according to which instead of adding or substracting in existing laws to make them inclusive of same-sex marriages, rather we need to reconsider our definition of family to include families of choice with greater levels of flexibility so those who opt out of traditional family structure may not be disadvantaged.
It basically implies that other forms of sexual intimacy based on economical and emotional interdependency should be legitimised such as a non-conjugal caregiving relationship in case of LGBT marriage.
It can be an arrangement of a civil union or civil partnership such as those recognised in Tasmania under Relationship Act, 2003, Civil Partnership Act, 2004 in the UK, where such unions allow the partners for joint tax returns, insurance, pension and other rights and obligations, but are more flexible than marriage. Similarly, same-sex marriages are also recognised in Canada since 2005 and South Africa since 2006.
These unions are basically registered significant partnerships based on care while other essentials of a marriage such as cohabitation are not integral. In France also under the system of Pacte civil de solidarite, two individuals can enter into a relationship of obligation and co-dependence and can decide the terms on their own.
Adoption, Guardianship and Surrogacy
In India, adoption is governed by both secular as well as religious laws. In the case of Hindus, it is governed by Hindu adoption and maintenance Act, 1956 while there are no personal laws regarding adoption in case of Muslims, Christians, Parsis etc.
But apart from this, there is another law i.e. Juvenile Justice care and protection of children Act, 2015 (JJ Act), read with the adoption regulations of 2017 framed by the Central Adoption Resource Agency (CARA). This act is secular and allows adoption regardless of the religion of the person.
Regulations on Adoption
Hindu Adoption and Maintenance Act, 2005
HAMA provides that a Hindu married man or woman can adopt a child with the consent of their partner. However, this permission will not be required in the case if the partner is of unsound mind, or has renounced the world or has changed his/her children. Similarly, this law also allows single men and women to adopt a child, provided they have attained the age of majority and are not of unsound mind.
The Adoption Regulation Act is much more stringent in terms of regulations than the HAMA. Similar to the case of HAMA, here also the single men and women can adopt as long as they are mentally, emotionally and financially stable and are not suffering from any life-threatening disease. Apart from this, the act does not allow a single man to adopt a girl child but a similar restriction does not apply to a woman and she can adopt a male child. This is different from HAMA where even a single male can also adopt a girl child provided there is an age gap of twenty years between the two.
Same-sex couples and transgender people
Although Section 377 of IPC has been decriminalised still the law debars LGBTQIA+ community from adopting children altogether. This demonstrates the homosexual couples are not equal before the law.
How the adoption laws discriminate the LGBTQIA+ couples
- According to regulation 5(3) of the Adoption Regulation Act, 2017, only a couple having a stable relationship of two years is eligible to adopt a child. Further, the section uses the words “husband” and “wife” which basically means that it does not recognize the right to adoption in case of same-sex couples.
- Since there is a different set of adoption rules applied in the case of men and women thus, the applicability of such laws with regards to trans-couples will lead to ambiguity.
- Further, in the light of NALSA judgement since people have the right to choose their gender and undergo sex reassignment surgery as well. Thus if in case a woman adopts a child but then undergoes sex change become male, so there is a very little clarity about the legal implications of the same.
There is no denying the fact that adoption is a complex issue and even heterosexual couples also have a hard time in adopting a child considering the anti-trafficking laws. But the fact is that at least a heterosexual couple can apply for adoption while the same-sex couples are not even allowed to adopt.
Inferior family argument
Another reasoning behind not allowing same-sex couples to adopt is that every child must be able to know the value of both a mother and a father. Thus same-sex couples should be denied the right to adopt as the child should not be raised in an “ inferior family”. However, what is ironical is the fact that law can abandon a child to be raised as an orphan without both the parents rather than being brought up by homosexual and trans couples.
Disturbingly the law continues to disentitle the LGBTQIA+ couples from adopting a child even when there are more than 20 million orphans and abandoned children in India, out of which most of them are living in abysmally poor conditions.
Same-sex marriages are not recognised
Another reason that since same-sex marriages are not legal in India, therefore homosexual couples are not allowed to adopt a child together.
Guardianship essentially refers to a set of rights and obligations that an adult has over the personhood and property of a minor. Guardianship and custody are very closely related. In India, guardianship in case of Hindus is governed by Hindu Minority Guardianship Act 1956 (HMGA) while the Guardianship and wards Act 1956(GWA) is a secular law that is applicable to all the citizens.
In India, traditionally only the father was considered as a natural guardian and had the sole right over the child. Further, as per Section 6 of the Hindu Marriage Act, the mother can have the guardianship right over the child only after the father.
This was reinterpreted in the case of Geeta Hariharan V. Reserve Bank of India, where the court pronounced that the expression “after the father” should not be construed that mother can have guardianship right after the death of the father but rather means that such right can be even exercised in the absence of a father. Such as in the case when the father is not providing for the child financially, emotionally or materially.
In 2010, the parliament amended the law to provide equal guardianship rights to both mother and father. In 2015, in the case of ABC V. NCT of Delhi, the court gave a very liberal judgement and recognised the guardianship rights of the unwed mother and further went on to stipulate that it’s not essential for the mother to disclose the name of the father.
Though the language of the act is gender-neutral, it is premised on the notions of the gender binary. Thus, the existence of LGBTQIA+ parents or transgender parents where the gender is not clear, the application of these laws will pose some problems, hence it is important to define such terms.
Best Interest of the child
The principle of “best interest of the child” is the main consideration behind granting anyone custody or guardianship. The court takes cognisance of the fact that custody of the child is given to the person who displays care, concern and can provide a familiar environment to the child. This principle is extremely flexible and can be incorporated into a variety of fact situations.
So, in order to bring a guardianship law inclusive of the LGBT+ community ie. in compliance with the NALSA and Navtej Singh Johar judgment, the language of the law should go beyond the binary so that such individuals regardless of gender, the structure of relationship or sexual orientation can become guardians. But essentially speaking, this will significantly depend upon how the term “ best interest of the child” shall be interpreted by the court of law in the context of LGBTQIA+ community.
According to the new surrogacy bill passed in the parliament, single people and LGBTQIA+ couples are prohibited to have their own children through surrogacy.
Although the bill has been passed with an aim to prohibit commercialisation of surrogacy and prevent exploitation of mother and child, instead of fulfilling the objective it has been reduced to an ”inflexible” piece of legislation that reiterates the notions of “archaic family system” which is not in sync with the present reality.
Restrictions and Regulations
The provisions of the bill passed are so stringent that even a heterosexual couple cannot easily satisfy the requirements of the law to be eligible for surrogacy. The bill inter-alia states that the surrogate mother must be a “close relative”, without defining the term, or the condition that the couples must have been married for the past five years without taking into account their age and how late they must have been married etc. Further, the law does not allow any unmarried men or women, or LGBTQIA+ couple to become parents through surrogacy.
Fails to establish nexus with the prime objective
As per the legislature, the sole intention of the bill is to protect the rights of surrogate mothers and to ban the commercial surrogacy in India. However, the provisions and the object of the bill appears to have no rational nexus with each other as if this would have been the prime objective of the legislature then more focus would have been given to rehabilitation and integration of the surrogate moms into our societal framework.
The bill is worthy to be criticised as it excludes a vast section of society from being eligible to have a child through surrogacy. The bill prohibits surrogacy only on the basis of the marital status or sexual orientation of an individual and also imposes extreme conditions even in the case of heterosexual couples. It suffers from various loopholes that are needed to be addressed as the present law is discriminatory against a lot of people.
LGBTQIA+ couples are most vulnerable in the group
Therefore, on analysing these conditions, thinking about granting the right to surrogacy to the LGBTIA+ community looks even a more distant dream. Another very important point that should be considered here is that the people other than belonging to the LGBT community, such as single women, single men etc. at least have the right to go for adoption or can become legal guardians while sadly LGBTQIA+ couples are not even allowed to adopt or become guardians also.
Inheritance and succession laws in India are governed by a mix of personal laws and secular laws. Hindus are governed by Hindu Succession Act, 1956, while Muslims and Parsis have their own customary laws and then there is an Indian succession Act, 1925 which after a series of amendments now applies to all the Indians who are married under Special Marriage Act, 1954.
Gender of the Intestate
The most significant difference between the Indian Succession Act 1925 and the other personal laws is with regards to the rights of women in the matters of inheritance. While in the case of personal laws, there is a different scheme of inheritance for males and females but no such differentiation exists in the Hindu Succession Act 1956. In the Indian Succession Act 1925, the law provides a uniform scheme regardless of the gender of the heir and the determining factor is the nearness in relation to the deceased. This implies that the surviving spouse and lineal descendants are made primary heirs, regardless of the gender.
Making the laws Gender Neutral
Similar to the other laws it is implicit that the word “ marriage “ in the inheritance laws is restricted only to the heterosexual marriages. So before this law can be applied in the case of LGBT+ couples it is essential the law recognises same-sex marriages. Apart from this, another point is to consider is that although the gender is irrelevant and the inheritance happens on the basis of nearness, yet it is essential that the language should be made completely neutral so that even transgender people or the person who undergoes sex change shall not be discriminated.
In 2016, Himachal Pradesh High Court in the case of Sweety(eunuch) V. General Public the court recognised the right of the appellant sweety “ guru” over her deceased chela’s property following the “guru-chela parampara” in the Hijra community. The court recognised the appellant as the family of the deceased and her legal heir. This was in line with the 1990 judgement of the Madhya Pradesh High court in the case of Ilyas Ors. V. Badshah where the court, despite knowing the religion of the deceased, held that as per the custom of the Hijra community the property shall not be willed away outside the Hijra community.
However, what is unfortunate that though there have been constant demands about the legal recognition of Hijra families especially after the NALSA judgement, the law continues to undermine the legal existence of such families firstly in the subsequent versions of the Private member bills in 2014 and then after the passing of the Transgender Persons (Protection of Rights) Bill, 2019.
Protection against discrimination at the workplace
LGBT workplace survey of 2016 showed that more than 40% of LGBT people in India have faced harassment at their workplace because of their gender/ sexual identity. Many LGBT people often have to hide their sexual identities because of the fear of potential discrimination or losing their jobs. Therefore the access to employment and discrimination at the workplace continues to pose a challenge for the LGBTQIA+ community.
Transgender people are the worst sufferers
i) Unorganised/ Informal Sector
This situation gets even more depressing in the case of transgender people who often have low levels of literacy, poor access to education and vocational training, and face a much more violent form of discrimination at the workplace. Thus having no other alternative the transgender people often resort to begging or sex work wherein they are disproportionately targeted by the enforcement agencies and are often booked under Immoral Trafficking Act (1956) and anti-beggary laws.
ii) Instances of workplace discrimination
There have been several instances of workplace discrimination against the transgender people all across the country. One of the publicised cases in this regard is the case of Manish Kumar Giri Alias Sabi Giri Vs Union Of India And Ors.
In the instant case, Sabi Giri, ( was earlier a boy named Manish Kumar Gir) who suffered from the Gender dysmorphia and when underwent a sex change operation was dismissed from the navy. Military in defence said that the present rules and regulations do not allow the sailor’s continued employment in the navy owing to his altered gender status.
The case was argued in Delhi High court wherein the court suggested the Navy find an alternative job for Giri. Thus despite having no proof of Sabi not being able to do her job after her sex reassignment surgery she was thrown out of her job and was rather offered a job as a data entry operator. Apart from this, the petitioner also testified against the discrimination meted out to her during the course of her employment, highlighting the dark truths about work-place discrimination and the lack of awareness on the issue of transgender rights.
However, it is also important to mention here that the Equal Remunerations Act, 1956 prohibits discrimination between men and women at the stage of recruitment but makes such exceptions in the case of military service where such discrimination is permitted but still the removal of the sailor only on the basis of gender identity is arbitrary, discriminatory and illegal.
Similarly, in the cases of Jacqueline Mary V. Superintendent of police, G.Nagalakshmi V. Director General of Police where the petitioners identifying as females were removed from their posts on the ground that upon medical examination it was found that they had intersex variations hence can’t hold the post that was reserved only for females.
Although the court ruled in favour of the petitioners in all the above-mentioned cases these incidents of discrimination reflects gross inequality and do not conform with the NALSA ruling. Therefore, it is submitted that this will keep on continuing until the employment laws are not amended to be inclusive of people falling outside the gender binary.
Transgender Persons (Protection of Rights) Bill 2019
The Transgender Persons (Protection of Rights) Bill 2019 as already discussed suffers from various loopholes especially concerning the fact that how it certifies one to be a transgender or not but what is worth considering is that the bill at least provides protection to the gender community in certain aspects of employment.
As according to sub-section(b) and subsection(c) of Section 3, the bill prohibits any person or organisation from discriminating against transgenders in matters of employment, recruitment, promotion and other related issues. But all these protections provided can’t be availed and utilised fully until and unless the government make amendments with regards to how the transgender must be certified and recognised by the law.
There is another very point to consider here, that the plight of the transgender people is not only restricted to discrimination at workplaces but also extends to the access to education, schooling and vocational training. Though essentially speaking Section 14 of the Bill facilitates the appropriate Government to formulate welfare schemes and programmes for livelihood of transgender persons including their vocational training and self-employment.
But considering the extreme social, economical and educational backwardness, all these objectives cannot be achieved till the time the transgender people will not be eligible for reservation as was also pronounced in the NALSA judgement.
Apart from facing regular discrimination and harassment at the workplace, there are some other reasons also to substantiate that the present employment laws are not inclusive of the LGBTQIA+ community.
As essentially employment and labour laws touch various aspects of employment such as employment benefits, terms and conditions, gratuity benefits, insurance, anti-discriminatory policies, maternity benefits etc, discussing each in detail is beyond the scope of the article. However, some of the points are discussed below:
No recognition of LGBTQIA+ families
i) Workmen’s Compensations Act, 1923
Although Section 2 of this act provides a comprehensive list of dependants, but all these terms are defined only in the reference with the heterosexual families.
Further, it’s very essential to define the “dependants” because dependants are entitled to the monetary benefit. Under the worker compensation insurance, it is mandatory for every employee to nominate at least one dependent. Therefore the term “dependants” must be redefined in the context of same-sex unions and LGBTQIA+ families to provide them equal incentives in employment as available to a heterosexual individual.
ii) Payment of Gratuity Act, 1972
The Payment of Gratuity Act, 1972 requires the employer to nominate people so that if in case the employer dies, then the gratuity benefits are conferred to the nominee. But for the purpose of this Section 2(h) of the act defines the term “ family” which includes spouse, children, dependent parents and any adopted child. Therefore, the current definition of “family” eliminates the possibility of recognising LGBTQIA+ family from its ambit.
iii)Factories Act, 1968
The Factories Act of 1968 is structured on a protectionist approach and lays down various restrictions concerning the employment of women such as regulations of limiting their work hours from six to seven among many others. So, the current rules and regulations fail to recognize people not fitting in traditional notions of the gender binary.
The provisions which are confined to the gender binary exist not only in these discussed laws but extend across a range of other employment and Labour laws as well.
At present Maternity Benefit Act of 1961 provides maternity leaves and benefits only to the cis-gendered women who give birth, adopt or rely on surrogacy to have a child. Essentially speaking there are two implications of this law.
- Firstly, it reiterates the same archaic ideas and notions that it is the sole responsibility of the mother to take care of and nurture the child while the father can be waived off this duty.
- Secondly, it does not take into cognizance the fact that there can be a possibility of alternate families such as the LGBTQIA+ families.
Therefore it is essential that the language of this law must be gender-neutral so that even LGBT+ families can also have access to parental benefits and further it can also serve as a progressive step in the direction to eliminate sexual biases reinforced by the maternity benefit legislation.
Protection against sexual harassment at workplace
The present law i.e. Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013 regarding the sexual harassment recognises only women as a victim and does not take into account the harassment can happen irrespective of the gender of the person. That is, the aggrieved party can even be a male, transgender or any person belonging to LGBTQIA+ community as well. Therefore what we rather need is gender-neutral laws in relation to harassment at workplaces.
But there is another very important argument that can be advanced here i.e. the “sexually coloured remarks” or “unwelcome behaviour” may have a different interpretation and scope in the case of LGBTQIA+ community. Thus, considering the rampant transphobia and homophobia, it is essential that the gender-neutral harassment laws must also be accompanied with strong anti-discriminatory policies to prevent misuse of such laws against the LGBTQIA+ community.
Organisations can formulate their own policies
Although the amendments in employment and labour laws to make them inclusive of LGBTQIA+ community is the need of the hour. However, a more structural and substantial change cannot be realised until and unless the private and public organisations are eager to shape policies and rules to make the workplaces LGBTQIA+ inclusive.
These may include making policies such as granting equal benefits to LGBT+ couples as those available to heterosexual partners, adopting comprehensive anti-discriminatory laws, supporting LGBT+ employee support groups, granting leaves for gender-conforming processes, and organising awareness and sensitisation programs.
Therefore it can be summarised that:
- Taking into consideration the inequality and harassment faced by the LGBT+community in employment it becomes essential for the government to make new laws or amend existing laws to make workplaces safe for LGBT+ people.
- Further what needs to be ensured is the fact that the future legislation on transgender rights must align with the NALSA judgement and provide reservations in public education and employment.
- The laws also need to be radically reimagined to confer all the employment benefits to the LGBT+ couples which are available to a heterosexual couple.
- While the efforts should be directed to make gender-neutral harassment laws but at the same time both the public and private sector, must also frame anti-discrimination policies and undertake positive measures to eliminate prejudiced stereotypes rooted in homophobia and transphobia.
Protection against bullying in Educational Institutions
In a survey conducted by the United Nations cultural Agency on the 400 LGBT+ youth in India, it was revealed that over 60% of LGBT+ youth faced bullying in middle school / high school, 43% reported incidents of being sexually harassed in school, with 70% suffering from anxiety and depression and shockingly 33% of them even drop out because of bullying altogether.
These statistics are enough to send chills down anyone’s spine as across the country the LGBT+ youth are subjected to extreme physical, mental and emotional abuse. This stands in clear violation of equal protection clause and violates Article 14 of the Constitution of India”, apart from denying these children protection against discrimination, right to life and right to education enshrined under Article 15, Article 21 and 21A respectively. Section 377 is history but young LGBT Indians need concrete policies to protect them from Bullying.
Discrimination against LGBT+ in schools
The stories are many and varied, as are the geographies. LGBT+ students are labelled, bullied and abused on a regular basis. There have been several instances of homophobia and blatant discrimination against young ‘queer’ students. This gets even worse in the case of transgender students.
In Chennai, the school bullies started by harassing and teasing a six-year-old boy for walking in a feminine way and then resorted to stone-throwing when the transgender girl – initially raised as a boy – started wearing girls’ uniform, aged 10. Similarly, in April 2018, a teenage student from a reputed girls’ school in Gopalapuram Chennai when confessed on a social media site that her first crush happened to be a girl classmate, was ridiculed by her teachers and school authorities to an extent that her principal even said that she should go and kill herself.
The stigma surrounding LGBT+ people is so much that threats of rape, incidents of hitting, groping and kicking, being locked in a room, having nasty rumours spread about them or having their belongings stolen are some of the things that LGBT students face regularly.
Consequences of bullying
Unfortunately, unable to cope up with this trauma, some drop out of school or develop deep psychological problems and some get so affected that they are driven to commit suicide as happened with a 15-year-old boy in Tiruchirapally. There are a number of cases of such homophobic and transphobic violence- often acutely reported, even when gets reported yet receives no due attention from the media, authorities, psychologists or the government combined with inadequate or non-existent support and redress systems.
Reasons for bullying
The common thread binding is that all these incidents are nothing but a manifestation of deep-rooted prejudice and discriminatory attitudes that continue to prevail in these institutions.
There are many instances when teachers have been known to publicly issue statements such as homosexuality being a disease, spread by the Internet and can be cured. This goes a long way in normalising the bullying and ragging culture against the LGBT students. Therefore, it is essential to sensitise school staff and students about the LGBT+ rights issue.
i) Sex Education
The need for sex education: It is unimaginable to think about shaping an open positive discourse about LGBT+ rights in the school setting, considering the historical attitude that Indian schools have displayed in relation to doing anything that is related to sex. Further, what should be noted is that discussions on sexual awareness and education among youth are not only avoided but rather often discouraged and receive a lot of backlash and criticism.
Adolescence Education Programme (AEP):
When, in 2007, the central government in collaboration with NCERT, NACO and UN agencies tried to introduce the Adolescence Education Programme (AEP) in all secondary and higher secondary schools aiming to educate children it was immediately banned by thirteen states. They submitted that the explicit content designed to impart comprehensive sexuality education under the AEP went against Indian culture and morality.
The sole step that the schools have taken so far is restricted only up to holding discussions on good touch and bad touch to prevent child sexual abuse. Thus in the status quo, school continues to consider homosexuality a disease and sexual relationship as “immoral” reiterating those same old age notions of prejudices and ignorance.
Need for sex education:
Various Researches have shown that Comprehensive Sexuality Education (CSE) that is scientifically correct, gender-sensitive and life skills-based, age and culture appropriate can provide young people with useful skills and knowledge about sexuality and lifestyle.
Therefore it becomes extremely important to design, formulate and implement a comprehensive sexual awareness programme which will not only educate the youth, about menstruation, sexual harassment and risk of STDs but will also be useful for addressing the concerns of same-sex relations and LGBTQIA+ community. This will make students better and responsible citizens by making them aware of the wide spectrum of gender-diverse identities around them.
Further efforts should be directed at updating the curriculum on health and gender to ensure that they must comply with the legal guidelines on transgender rights in NALSA Vs. Union of India, and on rights of LGBT persons in Navtej Johar Vs Union of India.
Therefore, CSE should be made compulsory at schools, as a part of academic requirement and not only a single class in a month.
Making anti-bullying laws
At present, there are no concrete anti-bullying legislation or rights-based policy regulating bullying and discrimination in India. The policy must address the homophobic and transphobic violence, including bullying which will also align with the mandate to ensure the right to quality education for all in learning environments that are non-violent, safe and inclusive.
i) Status quo
The only step that has been taken in this regard is that CBSE has issued certain guidelines to all its affiliated schools to follow
This includes forming a committee to deal with ragging and bullying and to punish the bullies with measures such as giving them a written warning and may also read to rustication. It also directs schools to form committee members including vice-principal, a senior teacher, counsellor, doctor, parent-teacher representative, legal representative, school management representative and peer educators.
But unfortunately, there exists a huge gap in the implementation of these guidelines. As most of the schools still don’t comply with all these norms and guidelines and further there is no stringent mechanism to ensure that schools follow these directives by CBSE.
However, what is praiseworthy is that the Directorate of Education (Lt Governor) in Delhi has notified the inclusion of a ‘transgender’ child within the meaning of ‘child belonging to the disadvantaged group’, as defined in S. 2(d) of the RTE Act. But in order to make schools a safe and inclusive space for LGBT+ people, it is essential that other states shall also take some such progressive steps.
ii) Cross-country narrative
Across Asia, there have been some encouraging advances to stop discrimination and bullying against the LGBT youth. For instance, in 2017, the Japanese government brought amendments to the national bullying prevention policy to specifically protect LGBTQIA+ youth. Similarly, in 2013 the Philippines drafted a law that instructs schools to address ragging and bullying in reference to gender identity and sexual orientation.
Therefore, it is submitted that it is essential to bring necessary amendments in the National Education Policy (NEP) to enumerate strict anti-bullying laws while identifying discrimination based on sexual orientations and gender identity. This apart from protecting vulnerable students can also be a significant step in acknowledging diversity as well. Further, efforts must be directed to train school staff to provide them with the necessary skills and knowledge to encounter such abuse.
Discrimination against LGBT+ in colleges and Higher Educational Institutions
The incidents of violence against LGBTQIA+ communities in colleges are also rampant. There are stories of LGBTQIA+ students being bullied, ragged, sexually harassed and abused. This induces queer students to quit studies as constant discrimination and harassment chips away at their self-worth.
However, what must be appreciated is that the University Grants Commission (UGC) has always been very prompt in taking actions against such complaints and has taken promising initiatives to stop homophobic and transphobic bullying. This is evident from the fact that UGC Anti-Ragging Regulations (2009) binds both public and private universities to take cognizance of complaints of homosexual assaults. Further, in 2016, UGC has also recognised gender identity and sexual orientation as the grounds for ragging and discrimination.
However, despite such guidelines and policies, most of the universities across the country have failed to take note and have done very little to check harassment of LGBT students. Therefore, it is essential that all universities incorporate anti-ragging policies in their prospectus with regards to the prohibition of discrimination based on sexual orientation or gender identity.
It is submitted that although the landmark 2018 court ruling and 2014 NALSA judgment were a huge leap in the advancement of LGBT+ rights movements in India. But still, the LGBT people in India are not equal and don’t have the same rights as those available to a heterosexual person. Further, they are still subjected to violence, discrimination in all spheres of life.
It is very important to educate people about LGBT rights. Human rights are natural rights which are inalienable, indestructible and are conferred upon everyone since birth. It is essential that people take note of the fact that homosexuals are not sick, they are not aliens, their sexual orientation is perfectly in tune with the dictate of nature.
LGBTQ rights should be recognised as part of human rights. Non Recognition of same-sex marriages, not allowing adoption, guardianship, surrogacy, IVF, not having access to safe and LGBT+ inclusive schools, colleges and workplaces are all violative of Article 14, 15, 19, 21, 29. Further, discrimination solely on the grounds of sexual orientation violates Article 14, 15, 21 in relation to Army, Navy, Air force Act.
The universal law of Human Rights states social norms, custom, culture or traditions can never be a valid justification to suppress another individual from asserting his/her fundamental and constitutional rights.
If we start justifying everything on the basis of cultural views, societal values and public policy then there would have been no progressive legislation enacted in our country and we would have never been able to eliminate the social evils of child marriage, Sati, dowry, and infanticide etc.
So, it is essential that the government must wipe away its conservative nature and should take concrete steps to eliminate the stigma, discrimination and abuse surrounding the LGBTQIA+ people. It is high time the government should formulate new laws or amend existing laws on marriage, adoption, guardianship, inheritance educational institutions, employment, healthcare services etc for education, social security and health of LGBT+ people with special focus to Transgender Persons.
It will lead to greater inclusiveness and will help in bringing the LGBTQIA+ into the mainstream of society and can go a long way in ‘transforming our nation sustainably into an equitable and vibrant knowledge society’
Lastly, I will conclude this article by saying that until and unless the government gives the LGBTQIA+ people in India an equal status, just and the fair struggle for social recognition by LGBT+ will go on.
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