Introduction and Important Terms
LGBTQIA – Lesbian, Gay, Bisexual, Transgender, Queer, Intersexual, Asexual – is the current initialism which represents members of these communities who identify themselves on the basis of variations in sexuality and gender. It is an adaptation from the LGB-T, which replaced the term gay in public references during the mid-1980s. All divisions are based on the two criteria of sexuality and gender.
Sexuality refers to choice and preference of sexual partners and personal sexual expression. It is not limited to one specific action, and can be expressed in outward non-sexual forms, for example, through clothing and Style.
Gender on the other hand, is a social construction and refers to the conditioned understanding of how different genders (gendered roles are mostly restricted to masculinity and femininity) play specific normative roles.
Some important terms directly related to rights issues of LGBTQIA community are:
Gay and Lesbian – most basic classification on the basis of same sex-attraction; gay for men, lesbian for women.
Bisexual & Pansexual – someone who is attracted to people of their gender or other gender identities is bisexual. It is considered restrictive since only the twin sexualities of men and women are included. Instead, the term pansexual is used to denote someone who is attracted to people of all gender identities.
Asexual – someone who experiences little to no sexual attraction
Intersex – individuals born with a combination of biological sex characteristics (including chromosomes, gonads, sex hormones or genitals) which do not fit the typical definition of male and female bodies.
Transgender – someone whose gender identity or expression is different from that of their biological sex. Someone born as a man (with male genitalia) who self-identifies as a woman, or vice versa is a transgender person.
Non-Binary – someone who experiences a gender identity that is neither exclusively male nor female or is in between, or beyond both genders. They can be gender fluid (shifting between male and female), agender (without gender), third gender, or something else entirely.
International Position on LGBTQIA
UN Initiatives to Protect LGBTQIA Rights
In 2012, the U.N. General Assembly (UNGA) passed a resolution on extrajudicial killings that included crimes motivated by the victim’s sexual orientation and gender identity.
In July 2013, the U.N. High Commissioner for Human Rights launched the U.N.’s Free & Equal campaign to promote understanding of the human rights of LGBTQ people.
The UN has also acknowledged persecution of LGBT and violation of their human rights under the ISIS.
The U.N. refugee agency has played a crucial role in assisting LGBTQ people in fleeing violence and persecution, and in helping them resettle in countries that are more welcoming to LGBTQ people.
The Sustainable Development Goals (SDGs) released in 2015 argued for ‘Leave No One Behind’, and highlight the need for improvement of all marginalized communities, including the LGBTQIA.
In September 2016, an independent post of Expert on Sexual Orientation and Gender Identity was created to reduce violence and discrimination against LGBTQ people and improve their situation in all U.N. member states.
The U.N. has published several groundbreaking reports covering “discrimination and violence against individuals based on their sexual orientation and gender identity,” including guidelines and recommendations for national governments.
n 2011, U.N. Human Rights Council passed a wide-ranging resolution on human rights, sexual orientation and gender identity, expressing concern about violence towards LGBTQ people and commissioned the first-ever U.N. study focused on LGBTQ issues.
Different Countries on LGBTQIA
Netherlands became the first country to legalize same-sex marriage in December 2000 when the Dutch parliament passed a landmark bill allowing same-sex couples to marry, divorce, and adopt children.
Mexico allows same-sex marriages in some jurisdictions – Mexico City, Quintana Roo, and Coahuila.
Going against its earlier position, the United States State Department under the Trump administration has worked closely with anti-L.G.B.T.Q. organizations and has systematically opposed the use of words like “gender” in United Nations resolutions.
Anti discrimination laws exist in the countries of Andorra, Cape Verde, Kiribati, Mauritius, Micronesia, Saint Lucia, Samoa, San Marino, Seychelles, Tonga, Tuvalu.
Same-sex relations are illegal in much of Middle East and North Africa. They are punishable by death in Iran, Saudi Arabia, and Yemen. Israel however, recognizes same-sex marriages performed in other countries. Same-sex couples enjoy civil benefits, including residency permits for the partners of Israeli citizens.
Same-sex relations are illegal in much of South and Central Asia, including in Bangladesh and Pakistan. Nepal has enacted some protections against discrimination based on sexual orientation, and in 2015 a government-appointed panel recommended that lawmakers legalize same-sex marriage. Bangladesh, India, Nepal, and Pakistan allow people to register as a third gender in official documents.
At present 30 countries across the world have legalized same-sex marriages. Of these 17 are in Europe, 5 in South America, and 3 in North America, 1 in Central America (Costa Rica) 1 in Africa (South Africa), 1 in Asia (Taiwan), New Zealand, and Australia.
Challenges Faced by the LGBTQIA
Social Stigma and ostracization
Right to live with human dignity
Right to equality
Freedom of Religion
Right to privacy
Right to educational facilities
Right to life and personal liberty
Right to live with family
Right to profession and business
Right to livelihood
Discrimination at workplace
Equal pay for equal work
Right to speech and expression
Issues of Representation
LGBTQIA+ in India
Kinnar, or hijra as the third gender in India have been acknowledged and accepted by the society. Their presence is noted in ancient texts of Ramayana, Mahabharata, and the Kama Sutra. They often held important political positions in court, as well as part of the entourage of kings and queens during the Mughal period.
India also had a more open attitude to homosexuality before the Raj and there is ample evidence of it in medieval history, mythology and architecture.
Criminalization of homosexuality, as well as the degeneration of the social position of kinnars can be traced to the British imperial rule. Modeled on the Buggery Act of 1533, Section 377 of the IPC was introduced in India in 1861, which made sexual activities "against the order of nature" illegal.
As per section 377 it was a punishable act to have intercourse with any man, woman or animals against the order of nature – homosexuality and bisexuality were both outlawed.
LGBTQIA in India Today
India has an estimated 25 lakh gay population and about 7% (1.75 lakh) of them have HIV.
The Times of India reported on 29 September 2016 that police in various states and Union Territories had arrested 1,491 people under section 377 during 2015, including 207 minors and 16 women. In 814 of these cases, the recorded offences had been committed against children.
A 2012 report by the Special Rapporteur on the Situation of Human Rights Defenders noted that ‘Defenders engaged in promoting and defending the rights of lesbian, gay, bisexual and transgender (LGBT) persons face discrimination, stigmatization and threats reportedly from many parts of society, especially in rural areas. On some occasions, the police attacked LGBT activists for raising issues pertaining to the situation of the LGBT community.
Legislation and Affirmative Action
Current Indian Law
The Preamble to the Indian Constitution mandates justice -- social, economic, and political equality of status – for all.
The right of equality before law and equal protection under the law is guaranteed in Articles 14 and 21 of the Constitution.
The 2018 five-judge bench SC Judgment scrapped Section 377 of IPC in a historic unanimous verdict. It recognized sexual orientation as a natural and inherent biological phenomenon and decriminalized adult consensual same-sex relationships.
While it scrapped 377 – consensual sexual acts of adults such as oral and anal sex in private – on the grounds of being “irrational, arbitrary, and manifestly unconstitutional”, it retained intercourse with children and animals as a punishable criminal offence.
Parliament passed the Transgender Persons (Protection of Rights) Act, 2019
The government published the Draft Transgender Persons (Protection of Rights) Rules, 2020.
Timeline of Developments towards LGBTQIA Rights in India
Section 377 was introduced in 1861 by the British.
AIDS Bhedbhav Virodhi Andolan (ABVA), an NGO filed petition in Delhi High Court in 1994, seeking repeal of Section 377, but it failed to follow through.
In 2001, Naz Foundation – another NGO – filed petition against Section 377 in Delhi High Court. The plea was dismissed in 2003, against which Naz Foundation filed an appeal. The SC directed the HC to reconsider the case.
The Delhi High Court decriminalized homosexuality in July 2009 on the grounds that Section 377 violated Articles 14, 15 and 21 of the Constitution.
The SC overturned the High Court Judgment in December 2013. It however said that the centre was free to amend the law.
In April 2014, the Supreme Court of India ruled in National Legal Services Authority (NALSA) vs. Union of India that transgenders were the ‘third gender’ and the fundamental rights granted under the Constitution are equally applicable to them.
A Private Member’s Bill to decriminalize homosexuality proposed by MP Shashi Tharoor was rejected in the Lok Sabha in 2015.
In June 2016, five well-known LGBTQ activists filed a review petition in the SC over section 377.
In August 2017, the SC held Right to Privacy as a fundamental right. It also observed that “sexual orientation is an essential attribute of privacy”.
In September 2018, the Supreme Court also decriminalized adult consensual same-sex relationships in the Section 377 judgment review.
Key Features of Transgenders Act, 2019
Definition of transgender – The Bill defines a transgender person as one whose gender does not match the gender assigned at birth. It includes transmen and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra.
The Act prohibits discrimination against a transgender person in relation to:
access to, or enjoyment of goods, facilities, opportunities available to the public;
right to movement
right to reside, rent, or otherwise occupy property
opportunity to hold public or private office
access to a government or private establishment
The Act contains special imperatives on behalf of the government to ensure proper health care facilities, employment and education opportunities for transgenders, and their right to reside and be included in their households.
The Act states that the relevant government will take measures to ensure the full inclusion and participation of transgender persons in society. It must also take steps for their rescue and rehabilitation, vocational training and self-employment, create schemes that are transgender sensitive, and promote their participation in cultural activities.
It calls for the creation of a National Council for Transgender persons (NCT) to advise the central government as well as monitor the impact of policies, legislation and projects with respect to transgender persons.
The Act recognizes the following offences against transgender persons, and penalties for them vary between 6 months – 2 years, and a fine:
Forced or bonded labour (excluding compulsory government service for public purposes)
Denial of use of public places
Removal from household, and village
Physical, sexual, verbal, emotional or economic abuse.
Issues with Transgenders Act
The process by which a transgender certificate may be obtained is dubious and cumbersome. It also gives ultimate authority of issuing certification to the District Magistrate, without any specific guidelines. It does not recognize the right to self-identify one’s gender.
It does not explicitly define what constitutes discrimination in the context of the transgender community. It also fails to specify punishment for those who discriminate against transgender persons.
There is no mention of reservation in education and employment for the transgender community.
It does not provide any means to improve the conditions related to begging.
It does not mention any punishments for rape or sexual assault of transgender persons.
Draft Rules, 2020
The centre released Draft Rules for Transgenders which specify the process of application and the manner of issuing identity certificate will be issued to them.
Some key issues in the rules are problematic:
The role of a clinical psychologist in the process of certification
The mandatory 1 year residence period before application for certification
Purpose for collection and sharing of certain data not specified
Absence of specific welfare measures
Recommendations for better Transgender Rights
The Transgenders Act, 2019 must be amended to make it more rational, inclusive and effective.
Need for a multi pronged approach to deal with issue of prejudice and discrimination prevalent in society against them. Social sensitization forms the basis of an overhaul in perception of LGBTQIA+ persons.
Initiatives like transgender bands, transgender police officers, and others should be encouraged as they can help in changing the approach of people /society. Increased visibility in the mainstream will also result in normalization of relations and higher acceptance.
Need of sensitization of government bodies, especially related to Health, and Law and Order and increase awareness about the changed position of law among the masses.
Need for a detailed anti-discrimination law that empowers the community.
Indian Parliament should conduct a wide-ranging review of existing legal frameworks, repeal discriminatory laws, and address other gaps in the law that prevent LGBT persons from fully exercising their rights.