This article is written by Sharanya Ghosh of Symbiosis Law School, NOIDA. It explores the scope of the existing legal rights of the LGBTQ+ community in India and suggests major reforms required for the upliftment of the community in society.
Table of Contents
Introduction
The LGBT community and their legal rights have been an issue for a long period, especially in a country like India where Section 377 of the IPC had continued to operate until September of 2018. There has been a great uproar in favour of the community and the support for its members, especially in the past decades. The voices against them have unfortunately been just as loud. The September 2018 judgement of Navtej Singh v. Union of India was an important case in support of the community but not much else has been done to move towards a place where the community is provided with adequate legal support. This article aims to explore the existing legal rights of the community members and suggests some legal reforms and policy recommendations for their integration into society.
Scope of the community’s legal rights in India
As of today, community members do not enjoy any special legal rights. They are only “permitted” by law to engage in consensual sexual intercourse as criminalising it would be against their Fundamental Rights. The scope of their rights, thus, is limited to any basic Fundamental Rights that are enjoyed by individuals in this country. Civil rights, on the other hand, are not something that members of the community enjoy as yet. They are not legally permitted to register their marriages, which means that their marriage is not recognised by Indian laws. A couple in Kerala, both of whom belong to the LGBT community, got married and attempted to register their marriage under the Special Marriage Act, 1954 in January 2020. However, the District Administration denied permission to register the marriage stating that the law did not permit them to marry. Although the Special Marriage Act, 1954 does not explicitly deny permission to the registration of marriage of community members, it also does not explicitly mention the permission to do so. Thus, the scope of the civil rights of the community members has a long way to go in India.
The rights for protection against crimes, also, do not throw any light on specific crimes committed against the community members. Crimes, especially those of domestic violence and sexual harassment, which are unfortunately often faced by community members are not only difficult to report but also not possible to report in some case because the law is silent on extending the same rights to transgender persons and men, who may be affected as well. For instance, the Protection of Women from Domestic Violence Act, 2005 only focuses on women and minors and does not extend to men, transgendered persons, or persons who prefer to remain gender-neutral.
The Transgender (Protection of Rights) Bills of 2016 and 2018 was an attempt to provide transgender persons with specific legal rights depending on their needs. However, the Bills faced severe backlash, especially from people belonging to the community. Some of the provisions simply did not satisfy the needs of the community. There are provisions that already exist in the legal framework for the protection of rights of cisgender women, which provide a greater punishment than those suggested in the Bills, such as the punishment for sexual harassment. Questions were raised as to where the difference lay between the rape of any person of any gender. Several felt that the Bills were discriminatory and thus unconstitutional in nature. Following this, the Transgender (Protection of Rights) Act, 2019 was passed and came into effect in January 2020. Although much has been done to improve the social status of the LGBTQ+ community, their legal rights still need much attention especially since the current legal framework does not provide the specific protection that they require.
The international LGBT community world today
Internationally, there has been a huge wave of protests and changes in legal systems over the past decade. As of 2019, 30 countries and territories have created provisions and national laws that permit the marriage between the members of the LGBTQ+ community. Many of these countries lie in Europe and the Americas. There are countries where some jurisdictions permit such marriages while others do not.
Unfortunately, there are 73 jurisdictions that have criminalised private, consensual intercourse much like the case of Section 377 in India and most of these countries are those that had been colonised by European nations. There are also jurisdictions, exactly 45 across the globe that criminalise the sexual intercourse between women in particular. There are still 12 jurisdictions in the world today where capital punishment or the death penalty may be awarded in the case where persons engage in such sexual intercourse and as many as six countries have implemented this punishment. Lastly, there are 15 countries that criminalise the transgender identity and go as far as to book them under public order offences.
There is a lot that has been achieved in the past decade by the LGBTQ+ community across the globe. However, today, a person belonging to the community in one part of the world may be enjoying legal rights while another community member may be suffering just as much in a different scenario. This shows that although progress has been made, there is much that needs to be done to secure the basic human rights of the members of the LGBTQ+ community in the world.
Some of the countries that have recently permitted same-sex marriages and marriages between members of the LGBTQ+ community are Ecuador, Taiwan, Australia, and Germany among others. These are major achievements in the context of human rights and there is definitely hope that more will be and can be done for the community in the near future.
Section 377 and related cases
This part of the article focuses on the legal history of the LGBT community in India since before Independence. It mainly encompasses the recent judgements that led to the decriminalisation of Section 377 and the important pleas made before the courts in the past decade.
Section 377 of the Indian Penal Code essentially criminalises sexual intercourse between anything that is different from that between a cisgender man and a cisgender woman. This law is quite archaic, having been created at a time when the British in 1860 were still ruling over India. However, even after more than 70 years of Independence, there was no move to decriminalise the provision. This is where the issue originated. The LGBT community had remained closeted as a whole for a long period of time. It is not that their presence was not known or seen; it was simply ignored. In a way, it followed the concept of, “If you pretend that you do not see the problem, it will cease to exist.”
In the past decades, however, the community has been able to come forth, raise its voice and it has done so across the globe. In India, too, several activists came forward, support for the community slowly increased and it became difficult to simply avoid the “problem”. Of course, as society changes, the law changes with it.
First major victory
The first major victory of the community came with the Delhi High Court judgement of Naz Foundation vs Government of NCT of Delhi (2009). Naz Foundation is an NGO that filed a lawsuit before the Delhi High Court with the view to decriminalising Section 377 in the cases of consenting adults. However, the Delhi High Court had initially dismissed the petition on the ground that the NGO had no locus standi. However, the Supreme Court, after having heard Naz Foundation’s appeal in the same case, decided that the NGO could file public interest litigation before the High Court.
This case was filed before the Delhi High Court in 2001. Eight years later, on 2nd July 2009, the Delhi High Court gave its decision in the matter.
According to the Court, the Right to Equality under Article 14 of the Indian Constitution was not being upheld due to the provisions of Section 377 against homosexuals as a group. The Section was struck down partially: consensual intercourse between adults in private was no longer a criminal offence. The judgement also stated that it would be applicable until an amendment was made by the Parliament.
Here, Section 377 was not completely struck down, since it deals with various aspects of “carnal intercourse”. Unfortunately, not long after, the decision was struck down by a two-judge bench in the Supreme Court of India.
The setback of 2013
In December 2013, the Supreme Court overturned the decision made in Naz Foundation vs Government of NCT of Delhi by re-criminalizing Section 377 wholly.
This was done in the case of Suresh Kumar Kaushal vs Naz Foundation. The Court held that the High Court of Delhi in its judgement had erroneously depended on international movements and decisions and reasoned that only a minuscule percentage of the community was a part of the Indian population. The Court went on to say that there was no need for judicial intervention by the Delhi High Court in the matter and that the Section in itself was never unconstitutional. The Court, however, did note that the Parliament should look into the matter.
This was a major setback for the community and several voices rose against the decision of the Supreme Court. In 2017, there were several curative petitions filed against this judgement and the Supreme Court gave its final decision on September 6, 2018, which is a landmark judgement as of today.
The 2018 leap
Navtej Singh vs Union of India – A five-judge bench gave a unanimous decision on September 6, 2018, according to which Section 377 was declared unconstitutional in the eyes of the law. The Fundamental Rights under Articles 14, 15, 19, and 21 had all been violated by the existence of such a provision of law that criminalised consensual sexual intercourse between adults. The Court further went on to state that the community members are all entitled to all the rights as under the Constitution including equal citizenship and protection without discrimination.
It is important to note here that Section 377 continues to exist as it also addresses other aspects such as those of non-consensual sexual acts, sexual intercourse with minors, and bestiality.
These are the major cases that have helped in ascertaining and shaping the legal and social viewpoint towards the LGBT Community in the past years. Fortunately, the LGBT community has been promised the basic Fundamental Rights and protection under the Constitution. However, much needs to be done in order to improve the legal rights of the community members in both civil and criminal cases.
New legal petitions
There are two major legal petitions brought before the High Courts and Supreme Courts in India post the September 2018 Judgement of Navtej Singh vs Union of India.
Petition for civil rights
A petition was filed before the Supreme Court in 2019 seeking civil rights for members of the LGBT community. It was in the form of a review petition and sought to ask questions regarding the right to marriage, adoption, and other civil rights and their inclusion in the Navtej Singh vs Union of India judgement of 2018. The bench, however, said that they were not inclined to entertain the petition post the judgement of 2018.
The petition did raise a number of aspects and questions of law regarding the basic human rights of members of the LGBT community. However, these are complex issues and need to be dealt with in a sensitive manner. The Supreme Court dismissed the petition, leaving some dissatisfied. However, a number of activists and community members are looking forward to tackling such issues on a long term basis and will not let this dismissal hinder their dedication.
Petition for registration of marriage
In January 2020 a homosexual couple approached the Kerala High Court demanding the recognition of same-sex marriages.
According to the writ petition filed, some of the provisions of the Special Marriage Act 1954 pointed towards a situation in which only a bridegroom and bride may get married, thereby denying the right of marriage to homosexual couples and other members belonging to the LGBT community. The Act does not in any outright manner deny registration of same-sex marriages but there are undertones in the language of the Act that suggests a heterosexual union only. The couple that came forth with the writ petition had married in 2018 but were not permitted to register their marriage under the Special Marriage Act, 1954 which created several other problems for them, such as the creation of a joint bank account and in the filing of Government papers.
The plea further states that the non-recognition of same-sex marriage violates the principles of equality, individual dignity, and personal autonomy.
The judge in the case has notified the State and Central Government and has agreed to examine the plea of the couple. This is a major step forward in the legal process for the members of the LGBT community at large. Although same-sex marriage is recognised in several countries across the globe, Indian community members only view it as a distant dream. However, now there is a chance that this dream may turn into a reality sooner than later. Although the final decision of the Hon’ble High Court is yet to be given, one may hope for a positive outcome from the same.
Reforms and suggestions
Long term goals : adoption and marriage rights
The long-term goal, as many in the community have mentioned, is to address civil rights such as those of right to marriage, adoption, surrogacy, and IVF among other rights. The decriminalisation of homosexuality in itself is a major step forward in Indian society but the community has still not been fully accepted. It will take more time for the community to raise issues revolving such rights and expect returns.
Even so, as mentioned above, a petition was filed before the Kerala High Court seeking registration of marriage of an LGBT couple in January 2020 and the Hon’ble Court has even agreed to examine the same. Thus, there is definitely hope that these basic civil rights will be provided to the community sooner rather than later.
The suggestion here would be to incorporate a separate law or add a provision under the Special Marriage Act, 1954 that will legalise the marriage of community members. The plea before the Kerala High Court also suggests that although the Act itself does not exclude the union of community members, the language has a certain heterosexual undertone to it, suggesting that a marriage can take place only between males and females. These provisions should be amended to be gender-neutral.
Harassment in the workplace
Harassment in the workplace has been an issue that many oppressed communities across genders, economic groups, and races have suffered. The LGBT community is no different. Although it may seem absurd that the sexuality and sexual preference of a person affect their professional and work life, it is merely the truth. There have been instances, although not openly stated, where a person may not be hired based on their sexuality if it is known, say, on their social media platforms.
In recent times, with changes in the views of society and laws, companies and workplaces have come to accept these people into their office, but the behaviour of colleagues may remain hostile. Since the larger public is not fully aware of what the community is all about, they often label it as unnatural. Due to this, they immediately shun the idea of having to interact with members of the community and may even feel hatred towards them. This leads to harassment in the workplace and causes several issues to a person, especially emotionally and mentally.
Thus, it is important that certain rules or guidelines be implemented to ensure that there is no harassment of the community members in their workplaces. Another way of ensuring that people become more sensitive to those different from them is by educating them about why they are different. This may help many in realising their own ignorance and lead to wider acceptance of the community in the society.
The main focus, however, should be to reduce the kind of harassment that community members may face in getting employed and post-employment.
Sexual harassment
In cases of sexual harassment of members of the LGBT community, some people feel that by exerting their dominance on another, they can also change their way of thinking. Unfortunately, a lot of people even today believe that being a part of the community is a mental disease. They feel that once a person is shown the natural path, they may realise that their own thinking was wrong. This is often seen in cases where families force the marriage of their child belonging to the community to a heterosexual or straight person in order to prevent them from bringing shame to the family. These are just some of the situations that may lead to the sexual harassment of members of the LGBT community. It is a horrifying fact and much has to be done to change this.
One important way of bringing in such a change is to ensure that sexual crime laws are gender-neutral and not focused only on the protection of women. This is important not only for the community but also for men who may have been sexually assaulted but cannot report the crime. Thus, gender neutralisation of sexual crime laws will help in bringing forth such cases and punishing the ones responsible. It will also help transgender and non-binary persons to come forward who may not be able to do so with the current legal setup.
Another way of protecting the community from sexual crimes is by creating separate laws specifically for them and their protection. The Transgender (Protection of Rights) Act, 2019 is one such attempt at doing so. However, it is important that members of the community themselves are involved in the decision-making process to ensure that the laws are able to fulfil their true purpose.
Transgender (Protection and Rights) Act, 2019
Speaking of the Transgender (Protection and Rights) Act, 2019, there were certain aspects of it that were greatly opposed by the community of transgender persons.
An article published in September 2019, before the Bill became an Act, reads, “…violence, abuse, and rape against transgender people can be punishable with jail time from six months to two years, and a fine. Compare that with the punishment for rape of cis-gendered women, which can give the offender from seven years of jail time to even life sentence…”
The Act was passed with the same provision. This clearly shows that although attempts have been made by the Government to protect the rights of transgender persons, it is not sufficient. A crime is a crime. Why should the gender of the victim decide the punishment of the perpetrator? It should not matter who has committed it, they shall be punished for it.
Good law-making and implementation is difficult when the community members themselves are not satisfied with the laws that govern them. This Act is one example of just how necessary it is to consult the members of the community for whom these laws are being made. According to this Act, a transgender person is required to make an application to the District Magistrate for issuing a certificate of identity as a transgender person. Not only does this provision hinder self-determination, but it also neglects those persons who identify as non-binary or gender-neutral. There is also a lack of LGBTQ lawyers and judges who are aware of the issues faced by the community members which further harms the process and stands in the way of justice.
The transgender population of the country was gravely disappointed with these provisions of the Bill at the time, stating that it is discriminatory in nature. They have actively campaigned against the Act.
Again, one way of reforming this is to ensure that laws become gender-neutral. In case a particular section of society needs additional protection, such as women, new laws have been made to protect their interests. The LGBT community also requires upliftment. Thus, it is essential that new laws be made to protect their rights and they are made in accordance with the existing laws so that there is no unintentional discrimination between communities or groups.
Increasing awareness and greater acceptance
Section 377 had criminalised sodomy by terming it “carnal intercourse against the order of nature”. Even today, several people believe that homosexuality and the members of the LGBT community are unnatural. These people are either unaware of the community or they choose to ignore the explanations that come their way. There is not much that can be done for the latter. Their views may be changed in the long term. However, those who are unaware can be taught about the community. There are some questions that need to be focused on while educating them.
There are people who ask for scientific proof of the fact that people belonging to the community are no different from themselves. When shown such proof, they change their point of view to some other perspective such as that of religion to deny the existence of such individuals and declare community members as unnatural. Unfortunately, not much can be done to curb this thought process other than increased awareness.
The root of this problem can be found in our education system that has always brushed the existence of transgender and other community members under the carpet. Since these concepts were considered a social taboo, they were simply not mentioned. However, the world has changed drastically. It is thus important to educate students about the existence of the community and teach them the truth. Introducing stories of icons belonging to the community or allowing them to study the history of the community as well as its presence will help students to better understand the community. Students are often called the future of a nation and this is definitely a time in which they should be educated about such social issues and taught to be sensitive towards others.
Media and the community
In recent decades, especially after Ellen DeGeneres announced on her show that she was a part of the community, the representation of homosexuals began increasing in television shows and other forms of media. Often the representations were not correct, portraying characters as acting in a peculiar manner. Gay men were portrayed as feminine and several other stereotypes were born out of these shows. There was not much coverage by the journalism media around that time.
Recently, in the past decade, news agencies and entertainment media have taken measures to represent the LGBT community. Not only has the coverage increased, but several stereotypes that were set in entertainment media have also been broken by OTT media such as Netflix shows. These help in creating awareness among people and also acceptance. People often connect with others emotionally and are able to better understand them by interacting with them. A similar effect is seen between people and television characters. Thus, this emotional connection helps people in accepting another person despite their differences.
The suggestion under this heading pertains to social media. Although news media and entertainment media have grown to further help in the acceptance of the community, social media is a completely different sphere. Social media grants people anonymity which is often used for cyberbullying. There are cases where people who have declared themselves a part of the community publicly may be attacked or bullied. This kind of harassment troubles the community members and may deeply hurt their sentiments. Steps should be taken to ensure the reporting process of cyberbullying and harassment is simplified and in cases where it is possible, the responsible person should be held accountable for their wrongdoings. Homophobic behaviour towards an individual is recognised as discrimination as per the verdict of the Supreme Court in the Navtej Singh vs Union of India case. Thus, it is essential that such behaviour is not excused if it is taking place over a digital platform.
Setting up a national commission
There are several activists, LGBT community leaders, and groups that work together towards improving the social status of the community. Setting up a national commission for the LGBT community on the lines of the National Commission for Minorities or the National Commission for Women will help by enabling voicing issues through an official channel. The Commission may also participate in implementing some of the other suggestions as mentioned in this article, such as that of increasing awareness and encouraging changes in the education system with regards to the community.
A National Commission for the LGBT Community will be a huge step forward in the field of rights of the community members because it will be able to voice the community’s concerns and advise the Government on various aspects of the law. If rightly empowered, a National Commission can take the scope of legal rights for the LGBT community a very long way.
Bullying and ragging
Bullying and ragging are not uncommon in schools and colleges for all students. However, being a part of the community may result in homophobic and xenophobic comments that may truly hurt a person mentally. Although portals and rules are applicable in colleges and schools all over India, it is essential to ensure that such action does not take place in the first place, and if it does, the offender must be punished for their wrongdoings. Anonymous reporting should be made available in case the victim is uncomfortable with coming forward. The existing systems should also be strictly implemented.
Online portals
The LGBT community may have come a long way in the past few decades. The society at large clearly has not. There are cases of honour killings and situations where families marry off their child belonging to the community to a heterosexual person in order to avoid the shame of accepting their child’s identity. Another aspect is conversion therapy, which is still legal in India. Many LGBT community members are driven to commit suicide under such circumstances. In case a person is being subject to cruelty in their own homes or anywhere at all, it is important that they have someone that they can reach out to, especially for professional help. Online portals or helplines should be set up that may be accessed easily. They should provide anonymity to the community members to ensure that they feel safe and provide them with the help or advice that they seek. Professionals will have a better understanding of how to deal with such situations.
Domestic violence
As mentioned above, community members who are not accepted by their own families face a hard time within their own homes. Domestic violence is one such issue that needs to be dealt with. However, the law only recognises women and minors as victims of domestic violence. Thus, a transgender person, a male, or a non-binary person will not even qualify as a victim in the eyes of law. There is a need for provisions to be made under the existing law of Protection of Women from Domestic Violence Act, 2005 to include all persons. If this in any way affects the original purpose of the law, a separate law may be made for the abuse that is faced by the members of the community within their homes.
Such a law is essential to protect their Fundamental Right of Right to Life and as included within it, the right to live with dignity.
Amending existing laws or making new laws
There are several laws in existence that protect the rights of minority groups, women, and any other group that may have faced oppression in some way or the other. Several of the laws that have been framed for protecting the rights of women are similar to the rights that the LGBT community currently seeks. The question here is whether the existing laws should be modified or new laws be made to specifically protect the rights of the community.
There are three ways of going about it. One is identifying the community as a minority group and creating laws as per their specific needs.
Another is understanding that issues such as domestic violence and sexual crimes are suffered by people regardless of their gender and sexual identity and that the existing laws should broaden their horizons and be made gender-neutral. Gender-neutral laws will be able to provide protection to all persons and uphold the basic principle of equality before the law. A victim is a victim and should not be discriminated against in the eyes of the law. The offender should be punished regardless of the gender of the victim.
The third way of dealing with the issue is to combine the above two methods: having gender-neutralisation of existing laws and creating a separate provision for specific rights of the community based on their needs, as was attempted by the Transgender (Protection and Rights) Bill 2019.
Why laws should be gender-neutral
Although already mentioned above, there is a great importance of gender neutrality in the world today. The global society is moving forward from the concepts of the existence of two genders and each gender having fixed their own roles, or roles having been imposed on certain genders. Not only has the world begun moving towards accepting transgender persons, but gender-neutral terms are also being encouraged to ensure equality. The system of use of pronouns has also been adopted, especially by people on the Internet. Unfortunately, this is not very popular in India just yet. Most people are not aware of which terms to use while referring to non-binary or other members of the LGBT community, especially in languages other than English. Awareness is thus limited to urban English-speaking areas. The need has risen to make the existing laws in India gender-neutral. Women indeed face domestic violence, but so do men and transgender persons and persons who belong to the community. The same goes for crimes such as rape. The law should recognise a crime based on the crime committed, not on the gender of the victim.
Conclusion
The 2018 judgement of the Supreme Court is only the first step towards the integration of the LGBT community into society. No specific legal rights have been set up to protect them and a lot can be done and needs to be done to progress in this field. The suggestions mentioned in this article have been carefully thought of to create the best legal provisions for the community. However, a lot can be done on the social and business fronts by the society and the businesses by themselves. Although the process has been excruciatingly slow, the community is finally being recognised and integrated into society. The integration of the community will further improve when there is legal backing. Thus, providing them with certain legal rights should be the main aim of the activists and the lawyers working in this field. It can only be hoped that the Government and the legal system in India will provide support to the community and its members in protecting their rights.
References
- https://theleaflet.in/lgbtq-petition-for-marriage-equality-filed-in-kerala-high-court-2/
- https://www.hindustantimes.com/india-news/plea-in-kerala-hc-seeks-recognition-for-same-sex-marriages/story-usG9x12oM4urkZPQK99aHP.html
- https://www.deccanherald.com/specials/history-of-the-pride-movement-in-india-742950.html
- https://www.business-standard.com/article/pti-stories/sc-dismisses-plea-seeking-civil-rights-for-homosexuals-119041500965_1.html
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