DEVELOPMENT IN LEGAL RIGHTS OF LGBTQ+ COMMUNITY

The LGBTQ+ or LGBTQIA+ stands for the community of people who identify as lesbian, gay bisexual, transgender, queer/questioning, intersex, asexual and any of the others who are not heterosexual, for instance pansexual and non-binary individuals. It is now that the people have started to talk about the differences between gender and sex more openly than before. The people from this community face many problems because of a crucial part of their identity. They are not treated the same as heterosexuals and often face bias, harassment, etc. it could be from society or sometimes even from their families.


PROBLEMS FACED BY THE LGBTQ+ COMMUNITY

● Familial Rejection:

A major factor in sabotaging the LGBTQ+ people is the reaction of their families, especially their parents. Parents and family members refuse to accept and have a hard time coming to terms with their child’s sexual orientation. Coming out is a step that poses as a problem itself because of the psychological damage it causes. The rejection from family often comes in form of heavy emphasis on “correction therapy” or “conversion therapy” because they believe that their child is mentally-ill. Such “solutions” cause not only emotional and mental damage but also create mistrust in medical community. Support from parents is of significant value to the LGBTQ+ people.



● Homelessness:

This problem finds its roots in familial rejection. Before coming out people need to be aware of their realities and be financially prepared. Homelessness is just a furthering of non-acceptance from family. Some parents do not allow their LGBTQ+ teens to stay in their homes and banish them. Some parents even bar their child from going out and cut off their financial support.


● School:

LGBTQ+ people are often subject to bullying by their own peers because of their sexual orientation. They are called “unusual” because they do not conform to the “normal” and/or “usual”. Even the teachers and professors refrain from talking about this and educating the children about the community, sometimes going to the lengths of asking them to stay silent about their sexuality. It is well-known fact that students are led by their teachers’ examples. Therefore, other students ostracize the LGBTQ+ people.



● Denial to social participation:

Upon opening about their sexuality, the LGBTQ+ people have a hard time in social setups. They could feel estranged in social gatherings, could be asked to leave their jobs, etc. they could also be denied basic educational and career oriented jobs. The transgender community is an unfortunate example of this. They are not allowed to continue their education and grow up to be uneducated and unemployed. Thereby resorting to prostitution and begging.


● Legislations:

Despite the Courts’ judgements showing acceptance towards the sexual orientations other than heterosexuality but it does not seem to coincide with the legislations. The Transgender Person (Protection of Rights) Bill, 2019 completely forgoes the essence of National Legal Services Authority v. Union of India case judgement. The personal laws either remain silent on homosexuality or declare it a sin.



The Constitution of India promises to every citizen fundamental rights, irrespective of their caste, creed, colour, religion, sex, gender, domicile, etc. the following are some rights which contend for the rights of the LGBTQ+ community.


RIGHT TO EQUALITY

Article 14 of the Constitution provides equal standing before law and protection of laws in India. The words “any persons” here includes everyone irrespective of grounds like caste, creed, sex, religion, etc. it does not observe discrimination in any form. It was even cleared in the case of National Legal Services Authority v. Union of India wherein the extent of interpretations of the word “person” was widened and it was noted that it does not only include male or female. It was held that the transgender are also included in the term “persons”. It was thereby established that the transgender persons are also entitled to the protection of laws by the State just like any other person.



EQUALITY OF OPPORTUNITY and RIGHT AGAINST ALL FORMS OF DISCRIMINATION

The Articles 15 and 16 forbid any kind of bias against any citizen on the grounds itemised in the books of law. These articles forbid any and every type of gender-bias. Gender is different from sex. Sex is based off our biological traits like features, genitals, etc. but gender goes beyond biology and includes the personality, characteristics and a sense of identity in terms of sexuality. The constitution also provides for the provisions that the states decide to formulate especially for the vulnerable.


RIGHT TO LIFE AND PERSONAL LIBERTY

Right to life is one of the cardinal fundamental rights. Every individual has the right to live their life with dignity and Article 21 guarantees the same. It protects the personal liberties, choices and way of life of an individual unless of course it is detrimental to the nation and society.



RIGHT AGAINST EXPLOITATION

The people from the LGBTQ+ community, especially the transgender and inter-sex people, are often subjected to offences like trafficking, beggary, prostitution and violence. Transgender people are worst hit by this ill treatment because of their socio-economic status. Article 23 of the Constitution precludes any type of prejudices and immoral activities against the persons.

The other side of the legislature is section 377 of Indian Penal Code, 1860. It states the punishments for some sexual acts which appear to be unnatural and abnormal. It means to say that any type of sexual intercourse other than sexual intercourse between a man and a woman, is against the law of nature and is therefore punishable.



ROLE OF JUDICIARY

The judiciary has played an important role in recognising the rights and social status of the LGBTQ+ community. It has helped create sensitisation about this topic and now people are able to come out in a better environment than before the following judgements.

Naz Foundation vs Union of India: The bench found the contentions of Section 377 of Indian Penal Code, 1860 to be bad and held that homosexual behaviour between two consenting adults cannot be termed unnatural or be prohibited. The Section violates Articles 14 and 21. However, the judgement did not hold the section unconstitutional. This judgement of Delhi High Court was overturned by the Supreme Court in the case of Suresh Kumar vs. Naz Foundation.



National Legal Services Authority vs. Union of India: In this case the Supreme Court recognised transgender as the third gender. It also laid down a set of rules to be followed to guarantee the third gender its basic rights. The court directed the government to regard the third gender as socially and economically backward.

Navtej Singh Johar vs. Union of India: It was held by the Honourable Supreme Court of India that Section 377 does not accord with the Constitution as it infringes the autonomy to have an identity as sexual orientation is an important part of one’s identity. The Court decriminalised homosexuality by excluding sexual intercourse with free consent between adults of same sex, from the Section 377 of Indian Penal Code, 1860.



It is of extreme importance to bridge the gap between the respective standings of judiciary and legislature on the social upliftment of the LGBTQ+ community. Their struggles cannot always be termed as “issues”. They are just as human as the rest of society. Just because the fragments of our knowledge and experience failed to encompass the possibilities of love and affection, does not nullify the existence of the “strange”.



This article is written by Manu Mishra of Banasthali Vidyapith.

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