LGBTQ Rights In India
Author: Deeksha S
Designation: Student, St. Joseph’s College of Law
LGBTQIA+ represents diverse groups who differ with respect to their sexual orientations as well as gender identities. Lesbians, gay men as well as bisexual men, and women share the fact that their sexual orientation is not exclusively heterosexual in nature while trans genders are those individuals whose gender identities differ from what was originally assigned to them at birth. Queer refers to individuals who do not want to be labeled and asexual individuals are those who do not identify with any sexual orientation. Intersex individuals are those born with variations in sex characteristics that do not conform to the typical definitions of a male or female body. The plus represents possibilities of different identities that are left for the generations to come so that they can discover who they are and how they want to identify themselves. The plus upholds inclusivity.
The long history of the LGBTQ community dates back to the year 1861 in British India where homosexuality was criminalized under section 377 of the Indian Penal Code. This section severely restricted the way of life for the homosexual community and paved its way to Independent India. On the 26th of November 1914, even though the right to equality was given force under Article 14, homosexual individuals were still treated as criminals.
Several years later, August 11th 1992, was the first time there was a protest demanding gay rights in India, but all in vain. No good came of it. The city of Kolkata hosted the first-ever pride parade in India on 2nd July 1999. It was a parade of hope, to remind the world of the principles of equality, love, and tolerance. It gave voice to those who remained in the closet about their sexuality or gender identity to fight for their rights. Initially, there were only 15 participants in the pride parade but the strength gradually increased with the years to come.
On the second of July 2009, in a landmark decision in
the Delhi High Court held that homosexual activity between two consenting adults was a violation of fundamental rights. Hence, this decision by the Delhi High Court resulted in the decriminalization of Homosexual activities between consenting adults throughout India. At last, when it felt as though the voices of the suppressed were heard after many years, it did not last for long.
In Suresh Kumar Koushal vs. Naz Foundation, the Supreme Court of India later overturned this decision and reinstituted section 377 of the India Penal Code. Later on, in the year 2018, a landmark decision by the Supreme Court in Navtej Singh Johar vs. Union of India decriminalized homosexuality again.
Even though the judgment made by the Supreme Court has gone a long way in recognizing the rights of the LGBTQIA+ community in India, homosexual individuals in India are still deprived of marriage rights. Although the Hindu Marriage Act of 1955 allows marriage between two Hindus irrespective of their sexual orientation, homosexual couples still cannot marry In India.
Even after the abrogation of section 377 of the Indian Penal Code, homophobia is a sad reality in the majority of Indian society. Homosexual relationships are still treated as taboo. Homosexual relationships are not considered ‘normal’ in society. Queerphobia, homophobia, biphobia, and transphobia are still a reality. Homosexuals are treated as a disease and are looked down upon by a majority of the Indian population. They rarely receive any support from their families and communities because of which they tend to remain in the closet about their sexuality. Freely expressing themselves and acceptance of their sexuality remains a persistent struggle for them.
In 2018, the Indian Psychiatric Society stated that homosexuality is not a disease and must not be treated as one. All kinds of therapy to reverse sexual orientation come from baseless premises. Homosexuality is a normal variant much like heterosexuality. There is no scientific evidence to prove that any such treatment and such can alter the sexual orientation of an Individual. Such attempts may lead to low self-esteem and stigmatization of that Individual. In the NALSA judgment delivered by the Supreme Court of India, it was held that, each person’s self defined sexual orientation and gender identity is one of the most basic forms of freedom, dignity and self determination. Thus, there is nothing to fix in a person’s gender identity or sexual orientation.
Even then, people continue to mock them for who they are. Compared to the general population, suicidal tendencies and suicide rates among the transgender community are high. The suicide rate among transgender individuals in India is around 31 percent and 50 percent of the transgender population attempt suicide at least once before their 20th birthdays.
The prevalence of suicidal tendencies among transgender persons is mainly influenced by the lack of social support and the prevalent societal stigma. Due to the discrimination they face, they are restricted from obtaining an education, housing, and earning a livelihood because of which they resort to begging and they eventually live in slums.
Every human deserves to be treated with dignity and respect irrespective of their gender identity or sexual orientation. Homosexual and transgender Individuals are as normal as their heterosexual counterparts.