Rights of Sexual Minorities in India (LGBTQ+ Rights): Status and Challenges – Explained, pointwise

Introduction

Two petitions have been filed in the Supreme Court to allow homosexual couples to solemnize their marriage under the Special Marriage Act (SMA), 1954. The Supreme Court has sought the response of the Union Government in this regard. On November 29, 2022, the US Senate passed the landmark Respect for Marriage Act (yet to be passed in the House of Representatives) which would require the States to recognize all legal marriages, including those in other States (although it doesn’t create on obligation on all States to legalize same-sex marriage). The US Supreme Court in Obergefell v Hodges (2015) had ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the US Constitution. Despite the progressive developments in recent times, a lot of rights of sexual minorities are still not recognized and they face considerable discrimination on a daily basis. In India, the reforms have been driven primarily by the Judiciary rather than the Parliament. This shows that considerable effort is required to change the perception regarding sexual minorities and ending the discrimination.

What are the various types of sexual orientation?

Sexual minorities are groups of people whose sexual orientation, gender identity, or sexual characteristics are different from the presumed majority of the population, which are heterosexual. Earlier ‘Gay’ was the broad term used to refer to sexual minorities but the terminology has been expanded to Lesbian, Gay, Bisexual, Trans, Queer, Intersex among others (LGBTQI+).

The distinctions are based on the differences in the construct of gender, sex and sexuality. An Indian Sociologist Anita Chettiar has noted that, “Sex is what you are born with, Gender is what you recognize and Sexuality is what you discover.”

Source: University of Colorado, Denver

What are the challenges faced by the Sexual Minorities (or the LGBT Community)?

Inequality and Violence: Members of the LGBT community are more vulnerable to intolerance, discrimination, harassment, and even violence because of their sexual orientation. They are denied access to healthcare and retirement benefits, among other forms of social protection, and are subjected to prejudice. In India, the ‘Hijra‘ community members are subjected to regular violence including by the police.

Lack of Social Acceptance: Sexual minorities fail to find acceptance even in their own families. They are often disowned or are isolated from others. They often end up in juvenile detention. Young people coming out as gay or lesbian are often pressurized to get married to ‘cure’ them. They are also forced to undergo Conversion Therapy to change their orientation.

Health Issues: Rejection and isolation can lead to mental health issues including stress, low self-esteem. This can lead to alcoholism and drug abuse. Lack of knowledge and access to healthcare often expose them to greater risk of sexually transmitted diseases like AIDS e.g., the Centre for Disease Control and Prevention (CSC, US) estimated that gay and bisexual men made up an estimated 2% of the U.S. population in 2013 but 55% of all PLWH (People Living With HIV/AIDS) in the US.

Political Under-Representation: Due to their low proportion, Sexual minorities feature low on the priority list of political parties. They have no political representation as they fail to get even the opportunity to contest due to social prejudice. This leads to absence of their perspective in legislation e.g., the Assisted Reproductive Technology (Regulation) Act, 2021 allows only heterosexual couples to use ARTs. Similarly Rights of Sexual Minorities are not covered under Maternity Benefits Act, 2017.

What are the Constitutional and Legal Safeguards for the Sexual Minorities?

Constitutional Safeguards

The Preamble: The Preamble to the Constitution of India provides for Justice (social, economic, and political) and  equality of status.

Fundamental Rights: Article 14 (Right to Equality) provides for equal status before the law and an equal protection of the laws. ‘Any Person’ means no discrimination on the basis of caste, creed, religion, sex, etc.

Article 15 and 16 (Right against Discrimination and Equality of Opportunity) prohibit discrimination against any citizen on certain enumerated grounds, include ‘sex’. Both the Articles prohibit all varieties of gender bias and gender-based discrimination.

Article 21 provides for Rights to Life and Personal Liberty.

Article 23 provides for Right against Exploitation and prohibits various inhuman acts like human trafficking and beggary.

Legal Safeguards

The Transgender Persons (Protection of Rights) Act, 2019 prohibits any person or organisation from discriminating against transgenders in matters of employment, recruitment, promotion and other related issues.

The Citizenship Act, 1955 provides for the acquisition and determination of Indian Citizenship. It doesn’t, expressly or impliedly, require a determinate sex or gender identity as a pre-condition for acquiring citizenship. For someone to be a voter (elector), the person needs to be a citizen of India. Transgenders persons can also enrol as electors.

The Registration of Births and Deaths Act, 1969 does not mention anything about “sex”/ “gender” of a person to be registered in case of birth or death. The Act is gender neutral.

The Immoral Traffic Prevention Act (ITPA), 1956 (amended in 1986) is the principal instrument which prevents the trafficking of women and children into prostitution. With the Amendment of 1986, the scope and ambit of the Act became applicable to both male and female sex workers and also to those whose gender identity was indeterminable.

The 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.

What are some of the Judgments related to the Rights of Sexual Minorities?

Naz Foundation Govt. v. NCT of Delhi (2009): The High Court of Delhi held that Section 377 of IPC (carnal inter­course against the order of nature) 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 Constitution of India.

Suresh Kumar Koushal vs Naz Foundation (2013): The Supreme Court (2-Judge Bench) overturned the judgment of the Delhi High Court and re-criminalised homosexuality. The Bench held that LGBT+ persons constituted a ‘minuscule minority’ and therefore did not deserve constitutional protection. It further observed that Section 377 of IPC did not suffer from the vice of unconstitutionality.

National Legal Services Authority v. Union of India (2014): The Judgment legally recognised non-binary gender identities and declared transgender people the ‘third gender’. The Judgment affirmed that the fundamental rights granted under the Constitution of India (including Articles 14, 15, 16, 19(1)(a) and 21) will be equally applicable to them, and gave them the right to self-identification of their gender as male, female or third gender. The Court also referred to core international human rights treaties and the Yogyakarta Principles to recognise transgender persons’ human rights.The judgement also directed Central and State governments to take proactive action in securing transgender persons’ rights.

K.S. Puttaswamy v Union of India (2017): The Supreme Court’s ruling on the Right to Privacy as an inherent fundamental right under Article 21 also referred to the Rights of Sexual Minorities. The SC noted that sexual orientation is an essential attribute of privacy and that discrimination based on sexual orientation is deeply offensive to the dignity and self worth of the individual. The protection of sexual orientation lie at the core of the fundamental rights guaranteed by Arts 14, 15 and 21.

Navtej Singh Johar V. Union of India (2018): A 5-Judge bench of the Supreme Court overruled the Suresh Kumar Koushal Judgment (2013). It unanimously held that Section 377 of the IPC was unconstitutional in so far as it criminalized consensual sexual conduct between adults of the same sex. The Court reasoned that discrimination on the basis of sexual orientation violated the right to equality. Criminalising consensual sex between adults in private violated the Right to Privacy. Sexual orientation is an intrinsic aspect of self-identity and that rejecting it would violate the Right to Life. Fundamental rights cannot be rejected on the grounds that they only affect a small percentage of the population.

Arun Kumar vs Inspector General of Registration (2019): The Madras High Court recognized a marriage solemnized between a male and a transwoman, and called it a valid marriage. The Court stated that transgender persons had the right to decide their self-identified gender, as held by the Supreme Court in NALSA v Union of India (2014). Under the Hindu Marriage Act, 1955 the definition of marriage only includes men and women. This judgement expands the category of women to include transgender people to identify as women to be brides as well.

What more should be done to protect Rights of Sexual Minorities?

Recognition of Fundamental Rights: LGBTQ rights should be recognised as part of human rights. Non Recognition of same-sex marriages, not allowing adoption, guardianship, surrogacy, IVF, not having  LGBT+ inclusive schools, colleges and workplaces are all violative of Article 14, 15, 19, 21. Similarly, the Army Act, Air Force Act etc. explicitly prohibit gay men from joining the Armed Forces. However a cautionary approach is advisable before adopting any change in the Armed Forces.

Required Government and Legislative Initiatives: The Government should take concrete steps to eliminate the stigma, discrimination and abuse surrounding the LGBTQIA+ community.

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.

Efforts should be directed to make gender-neutral harassment laws.

Legalised same-sex marriage: Knowing the demands of the LGBTQIA+ population, the government must widen marriage to cover all gender and sexual identities.

Anti-discrimination Policies: Both the public and private sector must frame anti-discrimination policies and undertake positive measures to eliminate prejudiced stereotypes rooted in homophobia.

Education and Sensitization: It is very important to educate people about LGBTQ Rights. Efforts must be directed to train school and university staff to provide them with the necessary skills and knowledge to encounter such abuse.

Conclusion

The sexual minorities have faced discrimination for long. Judicial interventions have progressively expanded the rights of sexual minorities. However, in the long term there is a need of sensitization and bring in a change in the social attitudes. Unless the social change happens, the judicial and legislative measures may remain ineffective.

Syllabus: GS II, Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these schemes; Mechanisms, laws, institutions and Bodies constituted for the protection and betterment of these vulnerable sections.

Source: The Hindu, The Hindu, Law Brigade Publishers