Legal Issues faced by LGBTs in India and A Realistic Approach to Address the Issue

Till a few months ago, India was one of those countries in the world, which still criminalised homosexual acts. And that had been the case for the last 150 years or so. When the law was drafted and implemented in India, the country, like many other parts of the world, was under British rule. Since then, India has undergone several changes regarding her socio-political stances on many matters.

However, the unjustness or immorality of Section 377 is something that was never altered or even talked about, till a few years back. In 1830, the drafter of the act, Thomas Macauley called homosexual acts to be “odious” and “revolting”. In 2013, when Supreme Court reversed the Delhi HC decision of decriminalising homosexuality, the verdict was, “We hold that Section 377 of IPC does not suffer from the vice of unconstitutionality… in last more than 150 years, less than 200 persons have been prosecuted for committing offence under Section 377.”

In September, 2018, the five-judge bench that finally struck down the draconian law accepted the presented estimates that 8% of India’s population, which is around 104 million people, might belong to LGBT community, which is one of the largest in the world.

Clearly, the number of people who went to the court for violating the law is not a clear indicator of whether or not Section 377 oppressed an entire community.

But Legal Challenges Still Persist…

One of the things that any minority group has to hear all the time is “How much more rights do you want?” LGBT community is not an exception. The answer is, “As much as you.” And unfortunately, that is not the case. While it is true that striking off homosexuality as a criminal act is a huge stepping stone towards many legal changes, they are yet to happen.

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To begin with, homosexual couples do not have the right to get married or enter into any civil partnership bound by law yet. This means they do not get the legal rights or benefits of a spouse in a marriage, which includes financial support, adoption of the other partner’s kids and/or child maintenance, right to residence and other properties. Adoption is also not yet allowed for same-sex couples, which means they cannot have a legal next-of-kin.

But that is just the tip of the iceberg.

There aren’t any laws in place to protect homosexual people against violence or harassment, to make sure they get the right medical help, to ensure that they get to exercise the Privacy to Rights that is now extended to gender and sexuality, to prevent their unemployment or disowning from family solely because of their gender or sexuality.

Transgender, Intersex and other communities under LGBTQIA+

Coming to the transgender and intersex community, who constitute of a large part of the Indian LGBT population that has been accounted for, the famous NALSA judgement of 2012 offered a ray of hope that things might just change from now on. The judgement was in favour of equal rights and legal recognition of transgender people as the third gender.

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Needless to say, after this one can only expect the horizon to broaden, not go back in its progression. However, the recently passed Transgender Persons (Protection of Rights) Bill, 2016 by Lok Sabha, does not seem to be so. Eminent diplomat, author and politician, and a current Opposition MP Shashi Tharoor, explained in a series of tweets why this bill is ‘flawed’ in its concepts. Several other activists and the entire transgender community have also been speaking up against the bill’s provisions ever since it was made public in 2016.

Among the many defects, a very prominent one is the screening process. As per the amendments of the bill, any transgender individual would have to go through ta District Magistrate and receive a certificate to approve their gender identity, which is a direct clash to the right to gender self-identification right provided by NALSA judgement. As per the previous ruling, a trans-person could identify themselves as a man, woman or third gender but in this case, to be identified as a male or female, one has to undergo a sex-reassignment surgery, or else their legal identity will be of third gender, whether or not they identify with it.

Protests have also been rightly made against making traditional transgender professions like begging and sex worker a criminal offence, but there has been no step taken to create alternative professions for them. No reservation system s been introduced, which would ensure their inclusion in academics and employment.

What can be changed?

  • Acknowledging same-sex couple partnerships/marriages at par with opposite-sex ones.
  • Allowing every gender to identify as who they are simply by their own choice
  • Understanding and acknowledging by law that third gender should not include only transgender people, but agender, gender-fluid, non-binary and other identities as well.
  • Implementing strict laws against physical or mental abuse, harassment and violence against the LGBT community. Since the nature of harassment differs for them, there should be separate laws in place for that as well.
  • Introducing systematic inclusion of LGBT community in different sectors, not just urban corporate workplaces.
  • Rights to healthcare under all circumstances.

To conclude

People who do not have to see the problems from the side of the minorities, or they are too privileged to bother, often assume that the problems do not exist at all because they have never faced them. Education, employment, healthcare have always been easily accessible; their identities were never questioned; they did not have to go undergo forced surgeries and screenings by other people to say who they are.

The problem is, after the striking down of 377, there aren’t many laws which explicitly rob the LGBT community off their rights. But there aren’t many which implement the rights either. And if a constitution does not recognise how catastrophic that can be for marginal communities, it is of not much help.

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