Written by Jyotsna Iyer, a second-year undergraduate student.
Trigger Warning: The article includes mentions of sexuality and sexual conduct. NOT for kids under 15…
India has come a long way with respect to LGBTQIA+ rights in the past decade, and it has a long way to go further. LGBTQIA+ is an abbreviation for Lesbian, Gay, Bisexual, Transgender, Queer, Intersex, Asexual and others who identify with any gender or sexuality other than a cisgender heterosexual. A cisgender heterosexual is a person who identifies with the same sex that was assigned to them at birth and is attracted to the ‘opposite’ gender. In India, the legal conversations mostly use the term ‘LGBT’ and not ‘LGBTQIA+.’
History of LGBTQIA+ rights in India
One of the most important landmark legal moves in India was the partial scrapping of Section 377 of the Indian Penal Code (IPC). The IPC is the criminal code of India, and it lists the details of crime and punishment. This legal document was formulated by the British government during colonial rule and has continued to be an important part of the legal system in independent India as well. Section 377 of the IPC criminalised physical, sexual and romantic conduct that was “against the order of nature.” This was interpreted to imply that all non-heterosexual physical, romantic and sexual conduct was a crime, treating LGBT persons as criminals. Hence, the scraping of section 377 led to the decriminalization of LGBT gender identity in India.
Besides this, there have been other influential judgements in the past few years in the high courts of India. Justice Venkatesh of the Madras high court made strong points for LGBT rights in a judgement he passed on 7th June, 2021. The judgement called for strong action against medical practitioners who claim to ‘cure’ homosexuality, a ban on conversion therapy, training for police and other government officials in order to prevent harassment of LGBT persons, and highlighted that ignorance isn’t a justification for mistreating any section of the population. The suggestion also called for better infrastructure including gender-neutral restrooms in educational institutions and workspaces, and separate housing of transgender prisoners to protect them from sexual harassment and assault. However, the high court alone cannot implement these suggestions.
The Allahabad high court, in a judgement it passed on 2nd February 2021, called for the reinstation of a security guard who was fired for identifying as a homosexual. The court, in this judgement, made it clear that no person could be fired because of their gender identity or sexuality.
Do LGBTQIA+ persons have access to equal civil rights at present?
Apart from the scraping of IPC section 377 and the few court judgements, there are numerous rights that the LGBT community in India is deprived of. This includes the right to have a legally recognized marriage. The right to legally marry, which is seen as a very basic right for the cisgender heterosexual population, is still debated when speaking of the LGBT community. The central government currently in power is one of the parties who have argued in court against providing this right to LGBT persons. In an appeal submitted to the supreme court, the centre claimed that if same-sex marriage were to be recognized, it would create ‘havoc’ with ‘personal laws.’ The centre also made a distinction between ‘decriminalising’ homosexuality and ‘legitimizing’ homosexuality, claiming that the latter goes against ‘Indian culture’. Most of this opposition is based on conservative societal norms, stereotypes and outdated interpretations of religious ideas.
The necessity for equal civil rights
In a society where marriage is considered as the most socially accepted and recognised relationship between two persons, legally depriving LGBT persons of this right can be seen as keeping the social stigma intact. Moreover, deprivation of the right to enter into a legally recognized marriage is essentially the deprivation of numerous important civil rights. Almost all the family laws in India revolve around marriage and married couples. These include adoption laws, inheritance laws, access to joint loans and other financial services and even insurances. Apart from these, not being legally recognised as spouses is a matter of grave issue in cases where one of the partners is subject to a medical emergency, and the other partner is not allowed to take control over decisions as they are neither a blood relative nor a ‘legal spouse’.
Those advocating for equal civil rights for the LGBT population in India often cite article 15 and article 21 of the Indian constitution. Article 15 prohibits any discrimination based on the grounds of sex (which in these cases is seen as being inclusive of gender identity). Depriving LGBT persons of the civil rights available to the cis-het population is considered by many as a violation of this constitutional right against discrimination. Article 21 provides all citizens of India with the right to life and personal liberty, which is widely accepted to include the right to choose one’s gender identity, sexuality and partner.
After decades of struggle for equality, and three years after the landmark ruling about Section 377, LGBTQIA+ persons are still highly discriminated in India and the stigma around them persists. In order to eradicate social discrimination, it is of utmost priority to provide them with non-discriminatory legal rights. In this case, ‘decriminalising’ was just the first step. In order to achieve equality, the LGBTQIA+ population must be legally provided with all the civil rights that their cisgender heterosexual People or things that are a lot like other people or things.... More hold.
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