The Struggle of LGBTQ Groups in India

The first thing that coursebooks teach a child is that there are two types of genders, i.e., male and female. This is where the roots of the problem lie. A child is taught since the beginning that there are only two genders, so when he/she grows up, it becomes really difficult to give up on an ideology on which the basis was formed.

The universal principle is we all are humans and all humans are equal. But an equally important section of the society, i.e., the LGBTQ+ community has been denied equal treatment for ages. There are many reforms and changes that have been introduced in the recent past but it is almost negligible in comparison to the underlying issues related to sexual minorities.

Background

The LQBTQ+ community has struggled for their identities for ages. In 2001, Naz Foundation filed a petition in the Delhi High Court against Sec. 377 of the Indian Penal Code, 1860. A part of Sec. 377 of the IPC was related to the criminalization of consensual gay sexual intercourse. In 2009, Delhi High Court gave a ruling and found Sec. 377 of IPC in violation of fundamental rights. This ruling, however, faced criticism and was challenged. Due to this, in 2013, the ruling got overturned. In 2016, a curative petition was filed by Naz Foundation. In 2014, the Supreme Court upheld the right of all persons to self-identify their genders in the case of NALSA v. Union of India[1]. A five-judge constitution bench headed by then Chief Justice Dipak Misra entertained fresh petitions seeking to decriminalize consensual gay sex. In the meantime, the right to privacy came into rule in the year 2017 and sexual orientation was considered an important part of identity[2]. In 2018, in the case of Navtej Singh Johar v. Union of India [3]the court struck down the part of Sec. 377 which criminalized consensual gay sex.

Constitutional Provisions

This is indisputable that article 14 of the Indian Constitution was violated by the criminalization of Sec. 377 as violated several rights such as the right to life and liberty, right to equality, freedom and speech and expression, etc. Additionally, Articles 15 and 16 of the Indian Constitution explicitly prohibit discrimination on grounds of sex which does not only include biological features but also includes one’s self-perception. There is an urgent need to address this issue about LGBT rights because even after getting constitutional recognition, there is a social stigma attached to this issue and a lot needs to be done. The decision of the Supreme Court about decriminalizing consensual gay sex is the first step towards the long journey of LGBT rights.

What Changed after the Ruling?

After the Supreme Court’s verdict, there were some visible changes in families. There were few families who welcomed the decision with open arms and accepted their child’s sexual preferences. Few families were seen to be supportive and people came out socially without hesitating about their identity. Some changes were seen in a few workplaces when they created a healthy environment for the third gender.

Even after these rulings, LGBT groups have been subjected to violence and discrimination in every sphere of life, from private to public life. Just being what they are made them vulnerable to threats, blackmail, violence, arrest, and imprisonment. LGBT groups are even discriminated against in access to health care and at workplaces. There are some rights which are crucial and fundamental to a person’s existence such as the rights related to adoption, surrogacy, housing, etc. which are still not granted to them.

The main concern lies in the social stigma attached to the sexual orientation of LGBT groups. There are still people who cannot understand the concept of ‘third gender’. There exists a section of society that still think of it as a ‘disease’. Young people often face harassment and discrimination at school or college.

All these factors impact a person’s psychological, social, and physical well-being. There have been numerous cases where social discrimination makes a person belonging to third gender fall prey to depression and anxiety.[4] Transgenders are victims of sexual violence but their voices are not being heard because of their sexual identity.

What is the Way Forward?

The first step towards this fight of equal rights and status should focus on education and sensitization. Making people aware about different genders and sensitizing them about the same will help in eradicating the social stigma attached to third genders. When people get aware of these concepts, only then they will be able to welcome and accept their kids, relatives, or any other person belonging to the third gender.

There also has to be a supportive legislature and government machinery to make a strong framework for coming challenges and making effective laws to recognize and protect the rights of the third gender. A separate social and welfare department can be made to address the issues of sexual minorities and represent them.

Young people are the medium of change so there has to be active participation from them in curbing out the problems faced by sexual minorities.

Conclusion

We now see a lot of people coming forward, accepting, and supporting the concept of different genders. There are many movements, campaigns, and groups which are working towards this matter. But a lot still has to be done.

The only way to realize how sensitive this issue is to think of tables getting turned and choices of straight people get criminalized. Then, we can realize what the LGBT groups have gone through for decades. The simple thought of criminalizing a person’s ‘normal’ gives goosebumps.  Social acceptance is an important element to fully enjoy life. The taboo related to sex education has to be kept aside. The concept of only two genders has to be changed from its roots. The right to love and choose a partner is a personal matter and not an affair of the society or state.


[1] WRIT PETITION (CIVIL) NO.604 OF 2013

[2] https://www.ndtv.com/india-news/section-377-case-timeline-verdict-in-supreme-court-on-gay-sex-criminalisation-1912138

[3] WRIT PETITION (Crl.) No. 76 of 2016 D. No. 14961/2016

[4] https://www.apa.org/monitor/2018/02/lgbt-stigma

Ayesha Gupta from Gitarattan International Business School

“Living on Earth is expensive, but it does include a free trip around the sun!

EDITOR: SANSKRITI SOOD

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