The idea of homosexuality has long been taboo in India. Even in the twenty-first century, members of the LGBTQ community are still fighting for equality and respect through basic rights. In Indian society, discrimination against the LGBTQ population is pervasive, with many people still considering “gay-sex” to be a taboo topic. LGBTQ people in India continue to face difficulties in getting acceptance in their families and homes, even though the younger generation may be more accepting of homosexuality and queer identities.
HISTORY OF LGBTQ+
The terms lesbian, gay, bisexual, transgender, queer, and intersex are collectively referred to as LGBTQ+. Those who identify as LGBTQI+ comprise a subgroup of the larger population of persons who identify as sexually and gender diverse. Globally, there is diversity in sexual orientation, gender identity, and expression (SOGIE) across cultural boundaries.
Among all the letters that make up the acronym LGBTQI, the L appeared first. The LGBTQ+ community has been there since the second century, but it didn’t really take off in society until the 17th century. Karl Heinrich Ulrichs, a German writer and jurist from the 19th century, was the first to attempt to speak for his group and may have been gay himself. The pink triangle and the rainbow flag are the two community icons that are known around the world.
WHAT IS LGBTQ+ ?
Those who identify as lesbian, gay, bisexual, transgender, queer, and others within the wide range of sexual orientations and gender identities are referred to as LGBTQ+ in India. Due to prevailing legal and social standards, the LGBTQ+ community in India has encountered particular difficulties. Until the Supreme Court’s historic decriminalisation of homosexuality in 2018, a lot of LGBTQ+ people had to deal with prejudice and discrimination. Even with advancements, social acceptance fluctuates, and certain groups in society still struggle with
recognising and appreciating the diversity of the LGBTQ+ community. In order to advance inclusivity and create a more equal environment for LGBTQ+ people in India, activists and advocates are essential.
PROVISIONS IN INDIA FOR LGBTQ+ COMMUNITY
The Ministry of Social Justice and Empowerment, through the Department of Social Justice and Empowerment, serves as the central authority overseeing the well-being of transgender individuals. They introduced the Transgender Persons (Protection of Rights) Act in 2019, with its provisions becoming effective on January 10, 2020. To ensure the effective implementation of the Act, the Ministry crafted “The Transgender Persons (Protection of Rights) Rules, 2020,” officially published in the Gazette of India on September 29, 2020. Additionally, adhering to the Act’s guidelines, the Ministry, via a notification on August 21, 2020, established the National Council for Transgender Persons.
Transgender Persons (Protection of Rights) Act, 2019
The law includes the following points:
1. Transgender individuals cannot face discrimination in places like schools, jobs, and healthcare.
2. Transgender people have the right to be recognized by their self-perceived gender identity.
3. They can live with their parents and immediate family members if they choose.
4. The government should create plans to support transgender individuals in education, social security, and health.
5. A National Council for Transgender Persons is set up to advise and ensure that rights are protected.
6. The Act holds everyone involved accountable, including the Central Government and State/Union Territory Administrations, for issues related to transgender persons
The Transgender Persons (Protection of Rights) Rules, 2020
The Ministry of Social Justice and Empowerment, on 25th September 2020, notified the Transgender Persons (Protection of Rights) Rules, 2020. The Rules were issued in exercise of its powers conferred under Section 22 of the Transgender Persons (Protection of Rights) Act 2019 (‘2019 Act’).
The Rules address the following points:
Certificate of Identity: Rule 3 prescribes that the application for obtaining a Certificate of Identity must be submitted, either by post or online, to the District Magistrate within whose jurisdiction the transgender person resides.
Welfare measures: Rule 10 provides that a Welfare Board be constituted to facilitate the access to schemes and welfare measures taken by the Government for the protection of transgender persons’ rights.
[11:26 am, 05/02/2024] Charu Shishodia: On September 25, 2020, the Ministry of Social Justice and Empowerment introduced the Transgender Persons (Protection of Rights) Rules, 2020, based on the powers granted by the Transgender Persons (Protection of Rights) Act 2019. These rules cover several aspects:
1. Certificate of Identity: Transgender individuals can apply for a Certificate of Identity by submitting an application either by post or online to the District Magistrate in their area.
2. Welfare Measures: A Welfare Board will be formed to help transgender persons access government schemes and welfare measures designed to protect their rights.
3. Non-Discrimination: Measures are in place to prevent discrimination against transgender individuals in public life. This includes establishing a Transgender Protection Cell to monitor and address offenses against them.
4. Equal Opportunity in Employment: Establishments are required to create a safe and inclusive environment for transgender persons, ensuring equal opportunities in recruitment, employment benefits, and promotions. Establishments must publish their Equal Opportunity policy.
5. Grievance Redressal: The government is mandated to establish a grievance redressal mechanism within a year, including a system to monitor and address complaints. Complaints will be investigated within 15 days, and grievance resolutions should occur within 30 days.
6. National Council: The National Institute of Social Defence will provide support to the National Council for Transgender Persons in carrying out its functions.
National Council for Transgender Persons
The Central Government, using the authority granted by the Transgender Persons (Protection of Rights) Act, 2019, set up a National Council for Transgender Persons on August 21, 2020. The Chairperson will be the Union Minister of Social Justice & Empowerment, and the Vice-Chairperson will be the Union Minister of State for Social Justice & Empowerment.
The National Council has these main roles:
1. Provide advice to the Central Government on creating policies, programs, laws, and projects for transgender persons.
2. Check how well policies and programs are working to ensure equality and active involvement of transgender persons.
3. Coordinate and review the activities of all government departments and other organizations dealing with transgender matters.
4. Address issues and concerns raised by transgender persons.
5. Carry out any other duties assigned by the Central Government.
Council members include representatives from different Ministries/Departments, five representatives from the transgender community, representatives from NHRC and NCW, representatives from State Governments and UTs, and experts from NGOs. Non-ex officio members serve a three-year term from their nomination date.
What is Section-377 & How’s it’s gone?
Section 377 of the Indian Penal Code (IPC) criminalized consensual sexual acts “against the order of nature.”
In Law: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1 [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine”
Historically, it was used to target and marginalize the LGBTQ+ community. However, a significant turning point occurred when the Supreme Court of India, in a landmark judgment in September 2018, decriminalized adult consensual same-sex relationships, effectively overturning Section 377. This decision marked a progressive step towards recognizing the rights and dignity of the LGBTQ+ community. Presently, the effects of the decriminalization have been notable, fostering a more inclusive environment and allowing individuals to openly express their sexual orientation without fear of legal repercussions. It has contributed to a broader societal shift towards acceptance and understanding, although challenges related to societal attitudes persist in certain segments.
A case which marked a pivotal moment in history for the community
Navtej Singh Johar v. Union of India
On September 6, 2018, became a crucial day for the LGBTQ community as the Supreme Court of India abolished Section 377. They declared that consensual activities between two people of the same sex would no longer be considered a crime
BACKGROUND : In April 2016, five people approached the Supreme Court, challenging the constitutionality of Section 377. They argued that their concerns differed from the 2013 Koushal v NAZ case, where the court upheld Section 377. This was the first case where all five petitioners directly claimed harm from the law, asserting it violated their fundamental rights. The case was presented to Justices S.A. Bobde and A.K. Bhushan in June 2016. On January 8, 2018, the Chief Justice’s bench scheduled the case for hearing by a constitution bench.
JUDGEMENT : On September 6, 2018, Chief Justice Dipak Misra, leading a five-judge bench, delivered a unanimous verdict, invalidating Section 377 of the Indian Penal Code. The Court stated that making consensual adult relationships a crime went against the right to equality. Justice Dipak Misra emphasized that any person of age with the ability to think independently has the right to choose their life partner. The ruling asserted that individuals have the right to form unions, not limited to marriage but also encompassing companionship in various aspects like physical, mental, sexual, or emotional connections, protected under Article 21.