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Tussles and triumphs of LGBTQ+ community : a biographical exposition of gender laws in India

March 29, 2021
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LGBTQ+

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This article is written by Muskan Raj.

Introduction

In today’s world, almost every person is aware of the LGBTQ+ Community knowingly or unknowingly. In fact, many of the people seem to “deny” the fact that a community of other than straight people even exist!

Especially in a country like India, where there has been a recent change in the laws regarding the LGBTQ+ Community, it seems like a war between people rather than a step towards a better future. But we also have to see positive aspects of it. Without the first step, there cannot be a start of a journey. Even if that journey is filled with obstacles, we cannot give up just because there might be a negative response to it.

The fact that many people argue that “it is not natural” when it is actually a part of nature and natural processes is in itself quite laughable. Anyone claiming that only a man and a woman can be attracted to each other and can have a family surely has not stepped out of their unreasonable mindset. They don’t want change and there is any change, they refuse to accept it. But they always forget the fact that once there was a time that the most brilliant minds of the world thought that the Earth is flat. Now we all know how that turned out.

Science is the field which can give proper answers to the people who don’t accept the LGBTQ+ community. And, if they want to argue with the name of religion, then no religion has ever stated that only a “He” or a “She” has the right to pray. So, they themselves lose their unreasonable battle there.

Everything always has two aspects, positive as well as negative. If there are people ready to criticize the LGBTQ+ Community then there are also people who support them with their full potential. But the fight is not only among the Society. In a society, almost everyone is criticized for one thing or the other. It is an endless vicious cycle of blames among society. So, what we have to concentrate on is how the Laws in India has changed the perspective and how it has provided the much-needed Rights to the LGBTQ+ Community and how it still needs many amendments to actually provide equal rights to them. It may seem as if they have got all the Rights, but how much has it changed the situation from what it was earlier?

Who are the members of LGBTQ+ community?

LGBTQ+ Community is a term which is the acronym for lesbian, gay, bisexual, transgender and queer or questioning.

The “+” stands for pansexual, agender, gender queer, bigender, gender variant, pangender. For a simpler understanding, the “+” is added to widen the community and is taken as a symbol to represent self-identity which is not included in the LGBTQ as it is not really possible to give a definite acronym to a whole community.

Let us briefly understand each term for better understanding of who they are:

Lesbian is a term used for women who are attracted to other women. Lesbian is a homosexual woman, i.e., they are attracted to the same sex as their own.

Gay is a term that refers to a homosexual person, i.e., people who are attracted to the same sex as their own. Although, this term is generally used for homosexual men, it can be used for both a homosexual woman and man.

Bisexual generally refers to the people who are attracted to both male and female. Or, in other words, it is a term used for people who are attracted to more than one sex or gender.

Transgender is like an umbrella term which includes people whose gender identity is opposite of their assigned sex or the people who are not exclusively masculine or feminine. 

Queer is an umbrella term for all the people who are not heterosexual.

The questioning term is used for people who are unsure of their sexual identity and are still exploring.

History

The history of the LGBTQ+ community is important to know because it shows that it is not a new concept and shouldn’t be treated as a “disease” which emerged suddenly. The history will also let us know the evolution in the rights of this community, the hardships they went through and the support they gradually gained.

In 18th and 19th century, there weren’t people who talked about their sexuality openly, especially if they were attracted to the same sex. They themselves were not acceptable to them which was a huge hurdle as there was no way they would tell others until they accept them themselves.

But, by 20th Century, there came a wave of change in the social climate and feminist movements. This led to building of confidence and a movement of recognition of gays and lesbians. However, it wasn’t much widespread and there were much more criticisms than support.

Many historians agree that there was evidence of homosexuality or same-sex relationships even if they were accepted or prosecuted in the documented cultures. It is seen that it was not accepted in Israel, but flourished in Ancient Greece.

Although, in countries like India, it was never happily accepted and was even considered as a crime. This continued to be the case until very recently and this fact in itself shows how much struggle the LGBTQ+ has gone through.

The first study of homosexuality in India was done by a very renowned person, Shakuntala Devi[1] in 1977 in her work “The World of Homosexuals[2]”. This book consisted of many personal interviews which gave the idea of it first-hand and showed how normal it was. She gave a very positive and compassionate light to Homosexuals. This step by her surely helped to give a strong power to the Community.

LGBTQ Social Movements

There have been several social movements for the upliftment of the LGBTQ+ community in different parts of the world. We will discuss them briefly to understand the aspects of the World towards it:

The black civil rights movement in the early 1960s brought a great social change and with it came several other social movements such as Vietnam War protests, Women’s liberation, and the gay and lesbian liberation movement. All these movements were happening simultaneously and had a great impact on each other. They supported each other and became stronger with that unity. The members of one movement actively participated in other movements and the same was done by other members.

As we know that gay and lesbians were very much criticized and never supported and often treated as a disabled person or a person with disease. This perspective was especially changed by Feminists who strongly supported their movements and even initialized it.

In the 1950s and 1960s, the homosexuals did not accept themselves publicly as mostly every place held it to be illegal. They were labelled as criminals so there was no way to actually tell publicly that they were homosexuals. This led to a concept of “Gay Bars” where homosexuals gathered. These Gay bars were often raided by police and the ones caught were severely punished for it. This became like a business where there was just greed involved which gave a very negative effect on the Homosexual Community.

But later, very slowly, the demand for rights of gays and lesbians started to emerge in the United States which also affected other countries to raise their voices.

Since, the world already had a very negative perspective towards Homosexuals and often labelled as “bad people”, these movements also received much criticism. Even if the people who were not a part of the LGBTQ+ community wanted to support these movements, they were called “deviants” who were not conforming to the society.

In 1962, Illinois was the first state to have repealed the anti-gay laws and decriminalized it.

The Gay Liberation Movement continued for a long time and is still prevalent in many places in one or other. The most positive thing about this movement is that it not only concentrated on gay and lesbian rights but also raised voice for controversial topics such as AIDS.

The Kolkata Rainbow Pride Walk (KRPW) is one of the oldest pride-walk of India and even South Asia.

This walk is also known as The Friendship Walk. The main objective of this movement was to spread and make a political statement for equality, tolerance, love and solidarity. This message was to spread that the voice of equality should be given to everyone irrespective of their gender, religion, case, sexuality, etc. Everyone participates in this with solidarity for the rights of women, Dalits, differently-abled persons, homosexuals, and many others.

The first Walk was done on 2nd July, 1999 in Kolkata. Kolkata was chosen as the first host city because of its history of political movements for Rights. In the first ever march, merely 15 people joined but with the coming years, the number kept on increasing which showed the changing phase of the Indian Society. In the year 2018, it even crossed thousand numbers of people who participated in it.

It is performed every year with the same objective of spreading the political statement of the Rights.

From the year 2008, the Walk especially concentrated on the Rights of the LGBTQ+ community. After that, every year they have concentrated on this community and have participated majorly in spreading awareness about it.

Discrimination towards the LGBTQ+ Community in India

This is not a hidden fact that the concept of homosexuality has always been seen as a taboo and a deviant behavior in the Indian Society. The Indian parents often tell their children to “stay away” from people who belong to the third gender as if they are not human and some kind of animal.

They have always been treated in the worst way possible. Although now the conditions and situations have changed, there was a time when they thought that it was a curse that they were born this way. This is the reason why many of the movements for the LGBTQ+ community involved feminists as well, because earlier being a girl was also considered as a curse in India. Just like there have been extreme cases of killing of girl children, there were many cases where the parents themselves killed their child if they found out that their child belonged to the third-gender. In many cases, since it cannot be predicted from the childhood only, if the child themselves admitted to their family that they were homosexual, then either they were killed or abandoned. This continued to be the case and even still is.

This practice gave rise to a different kind of dark side of the society where these abandoned children were forced to do the lowest of works by some evils of the world such as begging and prostitution. They had no other option except for this because even the Law of their own Nation was nowhere protecting them. They were treated to the lowest and made fun of. This is not a topic that everyone likes to talk about since now they are gradually getting their Rights. But why this is important to talk about is because without knowing how much they have suffered; we can never know the importance of their Rights.

In India, it was and still is very normal in a family that if a member belonged to a third-gender, they immediately said that “you cannot do this” or “its just a phase” as if any of these made any sense. They are forcefully married to their opposite gender and asked to “act” as a heterosexual person. Is that even possible? What if a straight person is forced to marry and live with a person of their same-sex? Will that person be able to “act” as a homosexual person? Of course not! This whole thing is so absurd to think of but the saddest part is that it still happens. Even after all the laws made for them, it is still very much prevalent in India. One of the main reasons of this is Indian Laws itself, as in India, same-sex marriage is still prohibited. Even if a family wants to support a person of the LGBTQ+ community, they are not able to because there cannot be marriage between them. India is a very cultural place where even relationships of straight people are not accepted and it seems unimaginable that an Indian family would accept their child having a homosexual relationship easily.

What more is the biggest hurdle for them is the discrimination they have to suffer through at schools. Firstly, they are not given admission to many good schools. None of the schools would accept this, but they somehow prevent a third-gendered person from getting an admission if they get to know. Secondly, even if they get education and facing extreme bullies and taunts, they are not preferred for a job. It’s very rare for them to get selected for an interview like other straight people do. Even if they get an interview, they are rejected just on the basis of their gender. Thirdly, even if they get jobs, it’s mostly because they are shown as a showcase in their job. Many companies hire them just to show that they “gave them a chance”. These are obviously not the case for every third-gender person, but this is the case for the majority of them.

Their life was never easy on them and the main reason for that was the very low mentality many Indians held. They were so adamant to stick to their old concepts where humanity had no place that they forgot that everything a person is, is because of Nature. The argument that third-gender or same-sex intercourse are not “natural” was in itself a very contrary statement. And why isn’t it normal? Just because they are different? No, I don’t think so. Just because someone is different does not make it a crime. What a person is and what they want to become is totally a Human Right until it hurts someone. And the people making fun of the third-gender or using their gender as slangs should keep in mind that it’s them who are laughable for their pea-sized brain for thinking it’s cool to discriminate and bully.

The worst one can do to others is to disrespect them for being themselves and the worst one can do to themselves is to be that person.

Laws for the LGBTQ+ community

Indian Laws for the LGBTQ+ community

In India, the transgender and intersex persons are legally recognized as ‘Third Genders’ or the ‘Hijras’.

Before the passing of the Transgender Persons (Protection of Rights) Bill, 2019, there were three Bills prior to this which were rejected by the Parliament. Those Bills were the Rights of Transgender Persons Bill, 2014; the Transgender Persons (Protection of Rights) Bill, 2016; and the Transgender Persons (Protection of Rights) Bill, 2018.

The Transgender Persons (Protection of Rights) Bill, 2019 was passed on 26th November, 2019 by the Parliament of India.

Cases

Let us discuss some landmark cases that changed the perspective and laws for the rights of the LGBTQ+ community in India:

The Naz Foundation, a Non-Governmental organization questioned the constitutionality of S.377[4] of the Indian Penal Code, 1860[5]. They claimed that this Section was violative of Articles 14[6], 15[7] and 21[8] of the Indian Constitution[9] which provides the fundamental rights to the persons and citizens of India.

The contention given by the Naz Foundation was that the Section denies a person’s dignity and criminalizes his or her identity solely based on their sexuality.

The Delhi High Court declared S. 377 of Indian Penal Code to be violative of Articles 14, 15 and 21 of the Constitution of India. This led to the decriminalization of homosexuality in India for the first time.

In this case, the Judgement of the Naz Foundation was overruled and homosexuality was re-criminalized. The reasoning given by the Court was that carnal intercourse in ordinary course and against the order of nature are two different classes and people of the latter category cannot claim that S. 377 suffers from the vice of arbitrariness and irrational classification.

This led a dark phase in the LGBTQ+ community yet again and proved to be a bane for them.

This case was filed by the National Legal Services Authority for the legal recognition of third-gender for the persons who fall outside the category of male/female gender binary.

The Supreme Court gave the judgement in favor of the NALSA and for the first time, Transgender people were recognized as the citizens of India. They were given the fundamental rights and were recognized as the “third-gender”. Proper guidelines were given to every state for providing remedies for their marginalization.

This petition was filed by an Indian dancer Navtej Singh Johar, in which he challenged Section 377 of Indian Penal Code on the basis that it violated the constitutional rights to privacy, equality, human dignity, freedom of expression, and protection from discrimination.

It was again questioned that S. 377 of Indian Penal Code criminalized consensual sexual conduct between adults of the same sex on the reason that it was “against the conduct of natural being” which was clearly not fair in nature.

The case was decided on 6th September, 2018 and proved to be a step towards the future. The judgement of Supreme Court of this case became a revolutionary and a landmark judgement as it finally decriminalized consensual sex between adults of same sex on the reasoning that it clearly violated their right of privacy and therefore was unacceptable.

This case proved to be a very important step for the LGBTQ+ community as it finally provided them the much-needed right. After this case, many of the people started coming forward and accepting their sexual identity as a part of the LGBTQ+ community.

Laws for the LGBTQ+ Community in other Countries

As of the year 2020, a total of 30 Countries recognize and legalize same-sex marriage which does not include India. On the other hand, one Country, i.e., Iran imposes death penalty on consensual same-sex sexual acts.

In 1990, the World Health Organization had removed homosexuality from the Classification of Diseases and Related Health Problems. The same day, that is, 17th May is celebrated as the International Day against Homophobia, Transphobia, and Biphobia.

In 1974, the Netherlands was the first country to allow transgender people into the military. The Netherlands was also the first country to recognize same-sex marriage in the year 2001.

Israel is a country which does not recognize same-sex marriage but does allow same-sex couples to adopt.

In Asia, Tawain very recently, that is, in May 2019 became the first country to recognize same-sex marriage. Asia is very slowly making progress in recognizing and legalizing homosexuality as well as same-sex marriage. It is believed that with the coming years, a positive side can be seen for the Rights of the LGBTQ+ Community.

Although, in Countries like Russia and Africa, the situation is getting worse. They not only illegalize homosexuality, but they are also making anti-gay laws and even punish people for standing up and voicing for transgender rights.

Human Rights and LGBTQ+ Rights

The one thing in question in today’s world is that whether the LGBTQ+ Rights are Human Rights.

Under the Charter of United Nations[13], it is given that respect should be given to all human rights for fundamental freedoms for all without distinction. This encourages the linkage between gay rights and human rights.

Also, in the Universal Declaration of Human Rights[14], it is stated that “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind”. This further cements the relationship of human rights and rights of the LGBTQ+ Community.

Although, a very small percentage of the Member States legalize same-sex marriage who have sworn to protect human rights of their citizens.

What are exactly Human Rights? They are basically the moral principles and norms that describe certain standards of human behavior and are regularly protected in municipal and international law. They are the rights every human being should have to exist. These human rights are not something given to us by a State, they are inherent to us all without any kind of discrimination on the grounds of nationality, color, religion, gender, sex, status, etc.

So, why LGBTQ+ Rights cannot be recognized or considered as Human Rights? Everything in this world is protected, there are human rights for human beings, there are animal rights for animals, there are even property rights for properties. So, how are transgenders different? They are human beings. And therefore, they have every right of existing as a human being, this includes all the human rights as well.

We can think of this from a different perspective. Let us change the roles. Let us think of a World where the homosexuality is normal and being a straight person is criticized. Wouldn’t it be normal for every straight person to ask for Human Rights? Wouldn’t it be normal for every straight person to have a legitimate expectancy to be treated the same way the homosexuals are treated? So why is it any different in a world where heterosexuality is “normal”?

What every person who treat a homosexual differently forgets or seize to see is that every person’s gender is their own choice. Whether they acquire it naturally or by surgery, it’s their Right and no other person can deny them that. Any contrary statement to this is a statement against Nature and Human existence.

Same-sex marriage in India

Same-sex Marriage is prohibited in India.

After the landmark judgement of the Navtej Singh Johar case, this question started arising in the whole of the Country. Does only decriminalizing consensual sex between the same gender enough? Not at all.

India is a Country of Culture. Every relation here is considered “pure” only after the proceedings of Marriage between the couples. Even if that wasn’t the case, marriage is a part of life of a Human Being. If two adults with their consent want to get married and live together, then why should they be denied that?

The same argument was given in a Public Interest Litigation (PIL) in the High Court of Delhi asking for declaration of gay marriage to be legal in India. It was contended that under the S. 5[15] of the Hindu Marriage Act, 1955[16] which gives provision for conditions for solemnization of Hindu Marriage, there has nowhere been given that the marriage can only be considered legal if it is between a man and a woman. But, even after this, gay-couples are not allowed to get married and registered under the Hindu Marriage Act, 1955.

In India, the members of the LGBTQ+ Community are only seen as “individuals” and not “couples”. But, is this reasonable? Couples can have a relationship but not get married, how can that be considered reasonable?

If we look at it on the basis of Fundamental Rights given under the Constitution of India, depriving members of LGBTQ+ community from getting married is clearly a violation of Art. 14[17] and Art. 15(1)[18] as it is discrimination only on the ground of sex without any reasonable classification as there is clearly class legislation.

Even after giving a verdict in favor of the LGBTQ+ Community in 2018, it seems as if the Union Government is nowhere ready to get free from the clutches of orthodoxy and conservatism. They are giving the contention that same-sex marriage is “anti-social” in nature. But isn’t not getting married and having a sexual relationship the most frowned upon in our Country? Isn’t living in a relationship still considered taboo in India? So how is wanting to get married “anti-social” and not a “norm”? The whole situation is quite laughable if seen from a bird-view. But if we look at it closely, we can see how decriminalization of S. 377 of IPC is just a hoax in disguise for the LGBTQ+ Community. It’s like they are asked to be satisfied from what little is given to them.

It is a high time now that India recognizes same-sex marriage. It is not just a question of rights but a question of humanity.

How far is it accepted in India?

Anyone who just noticed the changes without the effects and reactions on those changes can only see the technicality of the situation. But it is very important to know what were the reactions of people living in that society to understand any social change.

In this case, after the Navtej Singh Landmark Judgement, the reactions were very mixed. On the one hand, many people were extremely proud and supportive while on the other hand, many people openly criticized it and called it something “against the society”.

Although, it was quite predictable that many people would criticize it since before the judgement, there has not been much positive light shed on the LGBTQ+ Community.

If we talk about the current situation in India, after two years since the judgement, and one year since the Act, there has been a great positive change so far. Many of the people have started talking about it publicly without hesitation as it should be. Instead of making it a taboo, many of the people have started normalizing it. This change can be seen from a single person from a family influencing other family members as well. The best thing is that people have started speaking up, for themselves as well for others which is a huge change in a country like India. Even if we get the Right of Speech, it is not an unknown fact that if a person speaks what is not generally accepted in the society then they are stopped in one way or another.

In my view, social media has been one of the most influencing platforms in this matter. The older age people are in majority for not accepting homosexuality, but social media has been a place which changed their perspectives as well. There have been many influencers who supported it, they started making videos about it, giving the right information about it. Social media is also a platform where transgenders took part in to express themselves. Many of them were uncomfortable initially to accept in public that they belong to the third gender, but by seeing other people collect that confidence, they started expressing themselves as well. This was the much-needed step towards the future. Even after hundreds of laws are made, if they themselves would not accept themselves then everyone else will continue to suffocate them.

It cannot be said that everything has become perfect for the third-gender, but it can be seen that India is moving forward in a positive way.

Conclusion

Being from an Indian middle-class family and born in the early 2000s, I was very small when there wasn’t even any awareness about the LGBTQ+ Community. In fact, people didn’t even know that there were such people who were not heterosexual and that it was quite normal. When I was about 5 years old, I remember travelling through trains and seeing people who came and clapped their hands. Some people would give some money to them and then they used to give blessings to the whole family. I always wondered at that time why they were treated differently though. Sure, I observed that they looked different from everyone else. But later while growing up I realized why they looked different. It wasn’t because they belonged to a different gender, it was because they were forced to act and present themselves differently. They were so poorly treated that there was no way for them to get any education, any job, or any respect. They had to act that certain way to earn a minimum amount for their living.

Now that I see all the changes there has been, I cannot help but feel proud for every member of the LGBTQ+ Community. They have seen a lot of struggle in their lives and this fact cannot be denied. There wouldn’t be a single person in India who is a member of LGBTQ+ community who will say that they were happily accepted by everyone in their life. This fact alone is in itself very disturbing. Not being accepted by your own family, by friends, and on top of that being made fun of is not something anyone in this world deserves.

But one cannot survive by looking at all the negative aspects. There are positive changes coming as well which cannot be ignored. The good thing is, at least the world is changing. Every step now holds its own importance and with each step, if there’s a progress, then that is enough.

References

  1. Bonnie J. Morris, History of Lesbian, Gay, Bisexual and Transgender Social Movements (2009)
  2. Priyanka Chakrabarty, 5 Judgements that Paved the Way for LGBT Rights in India (2020)
  3. Tina Gianoulis, Gay Liberation Movement (Nov. 31 2020)
  4. Moksha Sanghvi, History of the pride movement in India (Jun. 26 2019)
  5. Canada: Immigration and Refugee Board of Canada, India: Treatment of sexual minorities, including legislation, state protection, and support services, including in Mumbai, Kolkata and Delhi, IND105380.E (Dec. 24 2015)
  6. Aayushi Kiran, All about Transgender Persons (Protection of Rights) Act, 2019 (Sep. 26 2020)
  7. Shayanne Gal and Ashley Collman, 10 maps showing how different LGBTQ rights are around the world (May 17 2020)
  8. Emine Saner, Gay rights around the world: the best and worst countries for equality (Jul. 30 2013)
  9. Juneau Gary and Neal S. Rubin, Are LGBT rights human rights? Recent developments at the United Nations (June 2012)
  10. Paras Sharma, The Unanswered Question of Same-Sex Marriages in India (Oct. 9 2020)


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