Anushka Mehta Co-Founder, Rightantra While same-sex intercourse has been legally recognized only a couple of years ago, the right of persons to be recognized as transgenders was upheld in 2014, by the apex court in National Legal Services Authority (NALSA) v. Union of India. These judgements drew support from International Law, especially the International Covenant on Civil and Political Rights, the International Covenant on Economic Social and Cultural Rights, and complementary standards such as the Yogyakarta Principles, so as to enlarge the meaning of fundamental rights provided in the Indian Constitution.
Rights of the LGBTQ+ community The Supreme Court in its NALSA judgement held that the rights guaranteed in Articles 14 (equal protection of the law), 15 (non-discrimination based on sex), 16 (equality of opportunity), 19 (privacy, self-identity, autonomy and personal integrity) and 21 (the right to life with dignity) apply without exception to transgender persons. It was also stipulated that government should make proper policies for the transgender community in the light of Articles 15(2) and 16(4) to ensure equality of opportunity in education and employment. This has bolstered young members of the LGBTQ community to come to terms with their sexuality without any gender restrictions, while simultaneously encouraging acceptance amongst their peers, right from their school days. As per the judgement, the third gender would be categorised as other backward classes (OBC) to confer them the benefit of reservation in relation to government jobs and educational institutions. Although the K. S Puttaswamy judgement did not delve into the rights of the LGBTQ community, one of the most important rights, i.e., the right of determining one’s sexual orientation was upheld as being an inherent part of the fundamental right to privacy. This judgement busted the minimis hypothesis, whereby the size or minority of the LGBTQ community cannot be a ground to deny them their fundamental rights. Therefore, even children cannot be denied their right to decide their sexual orientation. Further, the Navtej Singh judgement recognised sexual orientation as an inherent part of self-identity, which could not be denied under Article 21 as part of the right to life. Further as a result of this judgement, with the decriminalising section 377 of the IPC, the right of same-sex couples to partake in consensual sexual acts in private was granted. Recent headways made Things have started looking up for the LGBTQ+ community post the 2018 Navtej Singh verdict, with higher recognition of rights and greater empathy towards the plight faced by the community although with no specific focus on children and adolescents. One of the most notable steps forward for those identifying as transgender has been the enactment of the Transgender Persons (Protection of Rights) Act, 2019 (“Act”), supplemented by the Transgender Persons (Protection of Rights) Rules, 2020. It contains provisions against discrimination of transgenders, their identification, and creates obligations for welfare, education, social protection and health measures. However, this Act has been criticised by the transgender community as restricting the NALSA judgement, which recognised the principle of ‘self-declaration’ for gender identification, but the Act with its requirement of application of a ‘Transgender Certificate’ to be granted by the District Magistrate causes submission of proof. The Act also punishes the abuse of transgender persons, however, the term of imprisonment provided is much less when compared to that provided for cisgender women, showing inequality. Further, in February 2019, a transgender woman filed a public interest litigation seeking application of reservations in admissions into educational institutions and public appointment to transgender persons in Tamil Nadu. In April 2019, the High Court of Madras recognized the right of transgender women to be married under the Hindu Marriage Act, 1956. Additionally, in a petition for same-sex marriage filed by mental health professionals, Kavita Arora and Ankita Khanna, who have been in a relationship for years, the High Court of Delhi opined that laws are gender neutral and that marriage is not defined under either the Special Marriage Act or Foreign Marriage Act, but the concept emanates and is interpreted under customary laws which do not recognise same-sex marriages. However, the last matter is still pending a final verdict. Most recently, Justice N. Anand Venkatesh of the Madras High Court vide order dated June 07, 2021, laid down guidelines for the proper recognition of the rights of the LGBTQIA+ community and to ensure their safety and security to lead a life chosen by them. Further, he, himself, undertook counselling to obtain a deeper understanding of the LGBTQIA+ community and its struggles. The directions/guidelines were as follows,
Persistent Roadblocks One of the major hurdles in recognition of the rights of the LGBTQ community is the partial decriminalisation of same-sex intercourse, i.e., only for civilians. The Army Act, 1950 penalises any person found guilty of unbecoming or disgraceful conduct of a ‘cruel, indecent or unnatural kind’ with imprisoned for up to seven years, under section 46. Although, this explicitly does not include sexual activities between same-sex couples, however, General Bipin Rawat, ex-chief of Army Staff was reported to have said gay sex offenders would be dealt with under the Army Act despite section 377 being decriminalised. Another blow to the community exists in the lack of legal recognition of same-sex marriages in India. No personal or civil law makes provisions for the legalisation of marriages amongst members of the LGBTQ community. In September 2020, a petition was filed by activist Abhijeet Iyer Mitra and others belonging to the community, before the Delhi High Court which seeks recognition of the right of same-sex couples to get married under the Hindu Marriage Act, 1955. Further, same-sex couples are generally not permitted to adopt children, with regulation 5(3) of the Adoption Regulation Act, 2017 citing that a couple is only eligible to adopt a child following two years of a stable, marital relationship. Lastly, same-sex couples are not permitted to parent children through surrogacy. The recently introduced Surrogacy Regulation Bill, 2020 outlines that only Indian citizens who have been married for at least 5 years are eligible to parent a child through surrogacy. One cannot of course forget, the bullying and discrimination faced by the LGBTQ community, especially the youth who face barriers such as gender-specific school uniforms, lack of access to toilets, and difficulties in obtaining accurate identity documents. Way forward The need of the hour for the LGBTQ community is recognition of same-sex marriages as well as adoption rights. In particular, for the younger generation, a comprehensive anti-discrimination legislation is the only answer to actualise their rights, which currently exist mainly on paper. Along with this, sensitisation and the creation of awareness about the community are essential since surveys show that people are still not accepting of LGBTQ persons. It is only the combined efforts of citizens and the government that can ensure that what once was a pipe dream for the LGBTQ community can turn into a harmonious reality, giving today’s young generations true hope for an inclusive future. Resources for further reading: Living with Dignity, June 2019 report by International Commission of Jurists - https://www.icj.org/wp-content/uploads/2019/06/India-Living-with-dignity-Publications-Reports-thematic-report-2019-ENG.pdf. UK’s Country Policy and Information Note on India: Sexual orientation and gender identity and expression - https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/976210/India_-_SOGIE_-_CPIN_-_V4.0_-_April_2021_ext.pdf. Evaluating the Transgender Persons Act, 2019 - https://www.orfonline.org/expert-speak/pride-month-2020-68965/.
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