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LGBTQ+ – A PART OF OUR SOCIETY


Introduction


LGBTQ+ Community is a term which is the acronym for lesbian, gay, bisexual, transgender and queer or questioning.

The “+” stands for pansexual, agender, gender queer, bigender, gender variant, pangender. For a simpler understanding, the “+” is added to widen the community and is taken as a symbol to represent self-identity which is not included in the LGBTQ as it is not really possible to give a definite acronym to a whole community.


In a nutshell let us understand these terms


Lesbian

Lesbian is a term used for women who are attracted to other women. Lesbian is a homosexual woman


Gay

Gay is a term that refers to a homosexual person, i.e., people who are attracted to the same sex as their own. Although, this term is generally used for homosexual men, it can be used for both a homosexual woman and man.

Bisexual

Bisexual generally refers to the people who are attracted to both male and female.

Transgender

Transgender is like an umbrella term which includes people whose gender identity is opposite of their assigned sex or the people who are not exclusively masculine or feminine.

Queer

Queer is an umbrella term for all the people who are not heterosexual.

Questioning

The questioning term is used for people who are unsure of their sexual identity and are still exploring.

History

In eighteenth and nineteenth century, there weren't individuals who discussed their sexuality transparently, particularly in the event that they were drawn to a similar sex. They, when all is said and done, were not worthy to them which was a colossal obstacle as there was no chance they would tell others until they acknowledge them themselves.

By 20th Century a rapid social change occur which bring a sense of confidence among gays and lesbians to stand up for themselves. But due to social problems it become hindrance for them and it brings much more criticism than support.


The first study of homosexuality in India was done by a very renowned person, Shakuntala Devi in 1977 in her work “The World of Homosexuals”. She gave an exceptionally sure and caring light to Homosexuals. This progression by her certainly assisted with giving a solid capacity to the Community.


Problems Faced by LGBTQ Community


Growing up in a society where heterosexuality is typically promoted as the only acceptable orientation and homosexuality is considered as aberrant, lesbian, gay, bisexual, and transgender (LGBT) people confront enormous challenges. Throughout the world, they continue to experience discrimination and isolation in every aspect of existence. Homophobic violence and abuse against LGBT individuals are commonplace. Same-sex couples in most EU Member States do not have the same rights and protections as opposite-sex couples, and as a result, they face discrimination and disadvantage in accessing social protection programmes such as health insurance pensions and health care. Discrimination not only denies LGBT individuals equitable access to vital social goods like work and health care, but it also prevents them from achieving their full potential. It not only denies them access to school and housing, but it also places them on the margins of society, making them one of the most vulnerable populations who are on the verge of social exclusion I'm going to talk about some of the significant issues that LGBT people confront-:

  • Marginalization and Social Exclusion

  • Problems of Homelessness

  • Problems of Homophobia

  • Harassment of LGBT Students in Schools

  • Psychological Distress

  • Poor Economic Condition and Discrimination in the Workplace

  • Drug Addiction of LGBT people

  • .Victims of hate Crimes and Violence

  • Legal Injustice

  • Problems of Terminology

Laws for the LGBTQ+ community

Indian Laws for the LGBTQ+ community

In India, the transgender and intersex persons are legally recognized as ‘Third Genders’ or the ‘Hijras’.

Before the passing of the Transgender Persons (Protection of Rights) Bill, 2019, there were three Bills prior to this which were rejected by the Parliament. Those Bills were the Rights of Transgender Persons Bill, 2014; the Transgender Persons (Protection of Rights) Bill, 2016; and the Transgender Persons (Protection of Rights) Bill, 2018.

  • Transgender Persons (Protection of Rights) Act, 2019

The term "transgender" is defined in the bill as a person who has a gender identity that differs from the one assigned to them at birth, as well as all trans-man and trans-woman.

It essentially forbids any form of discrimination against them in the areas of work, education, housing, healthcare, and other fundamental human needs services.

This Bill made it mandatory that to be recognized as a ‘Transgender’, every person has to have a certificate of the identity issued by a district magistrate. But this proposition was amended and this clause was added in the Act as an option instead of making it a mandate.

If a person undergoes a surgery for the change in their Gender Identity to either a male or a female, then that person has to give an application along with a certificate issued by the Medical Superintendent or the Chief Medical Officer of the medical institution where the person went through the surgery to the District Magistrate. After this, if the District Magistrate is satisfied with all the documents, he/she may grant the certificate of their transgender identity.

This Act also prevents any parent or close relative from separating their child on the basis of their gender identity. In addition, any transgender family member must be treated the same as any other family member.

The National Council for Transgender People, or NCT, was established to advise the Central Government on policies and legislation affecting transgender people.

Any person who is found to have discriminated against and abused any transgender person, which is an offence under this Act, without any reasonable excuse and solely on the basis of their gender, will be punished, which may include imprisonment for up to two years and a fine, depending on the nature of their offence.

Cases

Let us discuss some landmark cases that changed the perspective and laws for the rights of the LGBTQ+ community in India:

Naz Foundation v. Government of NCT of Delhi and others, 2010 Cr LJ 94 (Del.)

The validity of S.377 of the Indian Penal Code, 1860 was questioned by the Naz Foundation, a non-governmental organisation. They contended that this section infringed on Articles 14[6], 15[7], and 218 of the Indian Constitution,which provide fundamental rights to Indian citizens.

The Naz Foundation said that the Section degrades a person's dignity and criminalises their identity purely because of their sexuality.

The Delhi High Court ruled that Section 377 of the Indian Penal Code is in violation of Articles 14, 15, and 21 of the Indian Constitution. This resulted in the first decriminalisation of homosexuality in India.

Suresh Kumar Koushal and another v. Naz Foundation and others, 2014 Cr LJ 784 (SC)

In this case, the Judgement of the Naz Foundation was overruled and homosexuality was re-criminalized. The reasoning given by the Court was that carnal intercourse in ordinary course and against the order of nature are two different classes and people of the latter category cannot claim that S. 377 suffers from the vice of arbitrariness and irrational classification.

This led a dark phase in the LGBTQ+ community yet again and proved to be a bane for them.

National Legal Services Authority v. Union of India, AIR 2014 SC 1863

The National Legal Services Authority filed this action to have third-gender recognised as a legal category for those who do not fit within the male/female gender binary.

The Supreme Court ruled in favour of the NALSA, and transgender individuals were granted citizenship for the first time in India. They were granted fundamental rights and labelled as "third-gender" people. Every state was given clear instructions on how to address their marginalisation.

Navtej Singh Johar v. Union of India Ministry of Law and Others, WP (Criminal) no. 76 of 2016

Navtej Singh Johar, an Indian dancer, brought this petition, alleging that Section 377 of the Indian Penal Code infringed his constitutional rights to privacy, equality, human dignity, freedom of speech, and protection from discrimination.

It was again questioned that S. 377 of Indian Penal Code criminalized consensual sexual conduct between adults of the same sex on the reason that it was “against the conduct of natural being” which was clearly not fair in nature.

The lawsuit was decided on September 6, 2018, and it proved to be a positive step forward. The Supreme Court's decision in this case was revolutionary and historic since it decriminalised consensual sex between adults of the same sex on the grounds that it obviously violated their right to privacy and was thus unacceptable.

This case proved to be a very important step for the LGBTQ+ community as it finally provided them the much-needed right. After this case, many of the people started coming forward and accepting their sexual identity as a part of the LGBTQ+ community.

Conclusion

It is clear that LGBT individuals who basically have different sexual orientation, face discrimination, exclusion from the society, thus quite often, meet with obstacles to satisfy their needs. This exclusion and ostracism could vary from the simplest personal relations to the most general social ignorance, exclusion, ostracism, working simultaneously together, and can even violate the rights of life. Lesbian, gay, bisexual and transgender people have long been involved in efforts for racial and economic justice. Today, LGBT organizers and groups are increasingly drawing connections between the movement for LGBT rights and the movement for economic and racial justice, noting that people have multiple, layered identities and are members of more than one community at the same time, simultaneously experiencing oppression and privilege.

There is no short cut solution that can address the problems facing many LGBT people in across the world. Therefore, in the light of the above mentioned discussion, following recommendation can be developed in recognizing the role that individuals as well as institution can take effectively.

1. Support the most marginalized of the LGBT community—people of color, low-income, young, elderly and transgender people.

2. Establish collaborations on cross-issue work that includes LGBT issues affecting low-income and people of color populations.

3. Engage foundation staff in public education around issues affecting LGBT low income people and LGBT people of color, especially as they relate to transgender issues.

4. Schools and teacher education programmes are crucial sites where LGBT issues and concerns need to be addressed. To help promote health and safety among LGBT youth, schools can implement the following policies and practices: i) Encourage respect for all students and prohibit bullying, harassment, and violence against all students. ii) Identify ―safe spaces,‖ such as counselors‘ offices, designated classrooms, or student organizations, where LGBTQ youth can receive support from administrators, teachers, or other school staff. iii) Encourage student-led and student-organized school clubs that promote a safe, welcoming, and accepting school environment (e.g., gay-straight alliances, which are school clubs open to youth of all sexual orientations). iv) Ensure that health curricula or educational materials include HIV, other STD, or pregnancy prevention information that is relevant to LGBTQ youth; such as, ensuring that curricula or materials use inclusive language or terminology. v) Encourage school district and school staff to develop and publicize trainings on how to create safe and supportive school environments for all students, regardless of sexual orientation or gender identity and encourage staff to attend these trainings. vi) Facilitate access to community-based providers who have experience providing health services, including HIV/STD testing and counseling, to LGBTQ youth. Facilitate access to community-based providers who have experience in providing social and psychological services to LGBTQ youth.

5. Consider LGBT issues as a central theme in all economic and racial justice work.

6. Advocate with philanthropic peers to support LGBT racial and economic justice work.

7. To change societal attitude media has to play a responsible role by reporting on LGBT issues and promoting a culture of tolerance and freedom for minorities.

8. Legal funds need to be created that can take on Public Interest Litigation on LGBT issues.

9. Training needs to be conducted for health professionals to increase their understanding of LGBT identity as potential risk factor for self-harm suicidal behavior and depression. Respective authorities should ensure that health, mental health and social care services are provided in a way that is accessible and appropriate to LGBT people.

10. National as well as state government should develop initiatives to support employers in making workplace and workplace culture more supportive and inclusive of LGBT people.

11. To check the violence that is perpetrated in the home as well as in the public sphere, the domestic violence law has to be expanded to include non-spousal and parental violence as well.

Finally, it should be noted that safeguarding LGBT people against violence and discrimination does not need the formation of new LGBT-specific rights or the introduction of new international human rights standards. n the basis of the Universal Declaration of Human Rights and later ratified international human rights treaties, States' legal obligations to protect the human rights of LGBT people are firmly established in international human rights law. All people, irrespective of sex, sexual orientation or gender identity, are entitled to enjoy the protections provided for by international human rights law, including in respect of rights to life, security of person and privacy, the right to be free from torture, arbitrary arrest and detention, the right to be free from discrimination and the right to freedom of expression, association and peaceful assembly.

The core legal obligations of States with respect to protecting the human rights of LGBT people include obligations to:

  • Protect individuals from homophobic and transphobic violence.

  • Prevent torture and cruel, inhuman and degrading treatment.

  • Repeal laws criminalizing homosexuality.

  • Prohibit discrimination based on sexual orientation and gender identity.

  • Safeguard freedom of expression, association and peaceful assembly for all LGBT people

References

  1. Bonnie J. Morris, History of Lesbian, Gay, Bisexual and Transgender Social Movements (2009)

  2. Priyanka Chakrabarty, 5 Judgements that Paved the Way for LGBT Rights in India (2020)

  3. Tina Gianoulis, Gay Liberation Movement (Nov. 31 2020)

  4. Moksha Sanghvi, History of the pride movement in India (Jun. 26 2019)

  5. Canada: Immigration and Refugee Board of Canada, India: Treatment of sexual minorities, including legislation, state protection, and support services, including in Mumbai, Kolkata and Delhi, IND105380.E (Dec. 24 2015)

  6. Aayushi Kiran, All about Transgender Persons (Protection of Rights) Act, 2019 (Sep. 26 2020)

  7. https://www.livemint.com/Sundayapp/sAYrieZdZKEybKzhP8FDbP/Being-LGBT-in-India-Some-home-truths.html.


Rudraa Porwal

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