LGBTQ – A part of our society

Context: Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) Pride Month is currently celebrated each year in the month of June to honor the 1969 Stonewall Uprising in Manhattan.
Who are Transgenders?

• The term ‘Transgender’ refers to those who don’t identify themselves completely with either of the dichotomous genders – male/female.
• The American Psychological Association and World Professional Association for Transgender Health define them as ‘people whose gender identity (sense of themselves as man or woman) or gender expression differs from that usually associated with their birth sex.
• This grouping constitutes a significant minority, estimated to be around 25 crores globally in number.
• They are non-heterosexual individuals.

What is the difference between Sex and Gender?

• The World Health Organization (WHO) has clearly demarcated the difference between these often interchangeably used terms.
• According to WHO, Sex refers to the biological and physiological characteristics that define men and women while Gender refers to the socially constructed roles, behavior, activities and attributes that a given society considers appropriate for men and women.

Notable events in the world

• Stonewall Uprising: The Stonewall Uprising was a tipping point for the Gay Liberation Movement in the United States – which was a series of spontaneous demonstrations by members of the gay community in response to a police raid that began at the Stonewall Inn in New York City in 1969. Patrons of the Stonewall, other Village lesbian and gay bars, and neighborhood street people fought back when the police became violent. The riots are widely considered a watershed event that transformed the gay liberation movement and the twentieth-century fight for LGBT rights in the United States.
• Dr. Frank Kameny (1925-2011), an American astronomer, veteran, and gay rights activist in the early 1970s, ‘successfully challenged the American Psychiatric Association’s classification of homosexuality as a mental disorder’.

Indian Constitution- Launch pad for jurisprudence

• The Constitution was conceived by India’s founding fathers as a beacon of fundamental rights, leading once enslaved Indians to the promised land of life and freedom.
• The Constitution was conceived by India’s founding fathers as a beacon of fundamental rights, leading once enslaved Indians to the promised land of life and freedom.
• In a retrograde step, the Supreme Court, in Suresh Kumar Koushal vs Naz Foundation (2013), reinstated Section 377 to the IPC which criminalizes homosexuality.
• The Supreme Court of India’s ruling in Navtej Singh Johar & Ors. vs Union of India (2018) has provided a launch pad for the LGBTQ+ jurisprudence and queer liberation movement in India.
• The Delhi High Court’s verdict in Naz Foundation vs Government of NCT of Delhi (2009) was also a major landmark in the law of sexuality and equality jurisprudence in India as the SC held that Section 377 offended the guarantee of equality enshrined in Article 14 of the Constitution.
• Despite the judgments of the Supreme Court, full equality is still something to be realised for the queer community in India. In matters of employment, health and personal relationship, there is still a lot of discrimination against sexual minorities.

Issues faced by LGBTQ+ in India

• Social discrimination, deprivation of liberty, lack of employment and educational opportunities, limited access to health care etc.
• Forced or bonded labour, denial of use of a public place, denial of residence in household, village
• Physical, sexual, verbal, emotional and economic abuse
• They live under constant fear and psychological stress

Navtej Singh Johar & Others v. Union of India

• In 2018, in the Navtej Singh Johar & Others v. Union of India, the Constitution Bench of the Supreme Court struck down a part of Section 377 of the Indian Penal Code as unconstitutional as it offended right to privacy.
• As noted in K.S. Puttaswamy case, privacy has been treated as a fundamental right and a premise for this upliftment was that the privacy of the individual is an essential aspect of dignity.
• The Court held that Section 377 of the IPC insofar as it criminalizes consensual sexual acts between adults of whatever sexual orientation is an anathema to a constitutional order in which liberty must trump over stereotypes and prevail over the mainstreaming of culture.
• For two decades, the battle for LGBT rights in India coalesced around Section 377, which was seen as the root issue for a series of problems – violent “therapy” to cure homosexuality, forced marriages, violence by police or state, lack of access to health care or education.
• The judgment encouraged a clutch of LGBT persons to approach lower courts to demand police protection from their families or demand constitutional rights.

Essential ingredients of Navtej Singh Johar Verdict

• The basic principle of the dignity and freedom of the individual is an attribute of natural law, which is manifested as basic or fundamental rights of all individuals in a constitutional democracy.

Dignity has a central normative role as well as constitutional value. This normative role is performed in three ways:

1. First, it becomes basis for constitutional rights;
2. Second, it serves as an interpretative principle for determining the scope of constitutional rights;
3. Third, it determines the proportionality of a statute limiting a constitutional right.
4. Thus, if an enactment puts a limitation on a constitutional right, and such a limitation is disproportionate, such a statute can be held to be unconstitutional by applying the doctrine of proportionality.

SC upheld the rights of the minority over the opinion of the majority. SC noted that under the constitutional scheme no minority group must suffer deprivation of a constitutional right because they do not adhere to majoritarian views.

• SC noted the importance of individual liberty over community preferences. SC said that “Denial of self-expression is like death”.
• SC has noted that modern psychiatric studies and legislation recognizes that gay persons and transgenders are not the person suffering from mental disorder and therefore cannot be penalized.
• SC noted that decriminalization of homosexuality was necessary to bury the stigma related to sexual orientation of individual in society.
• SC has noted that homosexuality is documented in 1,500 species and is not unique to humans hence it dispel the prejudice that it is against the order of nature.

Constitutional morality triumphs over societal morality

• SC judgment laid emphasis on “transformative constitutionalism”, that is, treating the Constitution as a dynamic document that progressively realizes various rights.
• The judgment said that “Constitutional morality is not confined to the literal text of the Constitution, rather, it must seek to usher in a pluralistic and inclusive society.”
• It also mentioned that Constitutional morality triumphs over social morality and personal freedom and the idea of individual rights are free from the pressure of public opinion.
• The doctrine of non-retrogression, which means that once a right is recognized, it cannot be reversed was emphasized.
• It also emphasized that “unbridgeable divide” between the moral values on which Section 377 is based and the values of the Constitution.

Legal sanction opposed

• The Union of India has recently opposed any move to accord legal sanction to same-sex marriages in India stating that the decriminalisation of Section 377 of the Indian Penal Code does not automatically translate into a fundamental right for same sex couples to marry.
• This was stated in response to the Delhi High Court notice to a plea by LGBTQ+ activists and couples who sought recognition of same-sex marriages.
• The Delhi High Court issued notice to the Centre on a petition seeking a direction to the government to recognise same-sex marriages under the Hindu Marriage Act (HMA) and the Special Marriage Act (SMA).
• It added that there was nothing in the HMA that mandated that marriage should take place only between a Hindu man and a Hindu woman.

A case to Amend Article 15

• In 1996, South Africa became the first country to constitutionally prohibit discrimination based on sexual orientation and in India we already have Article 15 secures the citizens from every sort of discrimination by the state, on the grounds of religion, race, caste, sex or place of birth or any of them – sexual orientation however is missing in our Article 15.

Major Initiatives Related to Transgenders in India
Transgender Persons (Protection of Rights) Act

• 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.
• According to the Act, a Certificate of identity for Transgender persons can be obtained by the transgender person by making an application to the District Magistrate for a certificate of identity, indicating the gender as ‘transgender’.

The Bill prohibits discrimination against a transgender person, including denial of service or unfair treatment in relation to:

• Education, employment, healthcare.
• 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 in whose care or custody a transgender person is.

The Bill also seeks to provide rights of health facilities to transgender persons including separate HIV surveillance centers, and sex reassignment surgeries.

• It also states that the government shall review medical curriculum to address health issues of transgender persons, and provide comprehensive medical insurance schemes for them.
• It calls for establishing a National Council for Transgender persons (NCT).
• It states that the offences against transgender persons will attract imprisonment between six months and two years, in addition to a fine.

National Council for Transgender Persons

• The National Council for Transgender Persons is India’s First and is a Statutory Body since it is formed under Transgender Persons (Protection of Rights) Act, 2019.
• It is constituted by the Ministry of Social Justice and Empowerment.
• The main aim of the National Council for Transgender Persons is to mainstream the transgender community’s concerns, focusing on livelihood issues as well as to raise awareness about the trans community, so that transgender persons are accepted within families and in the larger society.
• Another aim is to ensure that transgender welfare boards are set up in all States and essential needs of the transgender community, like housing, food, healthcare and education are met.

Functions of the National Council for Transgender Persons are:

• Advising the Central government on the formulation of policies, programmes, legislation and projects with respect to transgender persons.
• Monitoring and evaluating the impact of policies and programmes designed for achieving equality and full participation of transgender persons.
• Reviewing and coordinating the activities of all the departments.
• Redressing grievances of transgender persons.
• Performing such other functions as prescribed by the Centre.

Road Ahead

• The LGTBQ community needs an anti-discrimination law that empowers them to build productive lives and relationships irrespective of gender identity or sexual orientation and place the onus to change on state and society and not the individual.
• Government bodies, especially related to Health, and Law and Order need to be sensitised and made aware about the changed position of law to ensure that the LGBTQ community is not denied public services or harassed for their sexual orientation.
• Justice Rohinton F. Nariman had directed in Navtej Singh Johar & Ors., the Government to sensitise the general public and officials, including police officials, to reduce and finally eliminate the stigma associated with LGBTQ+ community through the mass media and the official channels. But the Government has simply disregarded this obligation.
• School and university students too should be sensitised about the diversity of sexuality to deconstruct the myth of heteronormativity. Heteronormativity is the root cause of hetero-sexism and homophobia.
• As of 2021, same-sex marriage is legally performed and recognised in 29 countries. Indian society and the state should synchronise themselves with changing trends.
• The issues like gay marriages, adoption and ancillary civil rights of the LGBTQ community are yet to be recognized, which are now left for parliament. It is advised that Parliament should step in making society at large inclusive and progressive.