Recognition of LGBTQIA+ Rights in India | 02 Apr 2024
For Prelims: Supreme Court, LGBTQIA+, Section 377 Judgement, Navtej Singh Johar v. Union of India, Transgender Persons (Protection of Rights) Act 2019, Legality of same-sex marriage in India
For Mains: Major Challenges Faced by LGBTQIA+ in India, Recent Advancements and Ongoing Struggle Related to LGBTQIA+.
Why in News?
The Supreme Court(SC) recently warned judges against using court-ordered counseling to make LGBTQ+ individuals a way to turn them against their own identity and sexual orientation, especially when they are distressed or separated from partners by family members.
- SC noted that while understanding a person's desires is acceptable, trying to change their identity and sexual orientation through counseling is highly inappropriate.
What is the Status of LGBTQIA+ Rights and Recognition in India?
- About: LGBTQIA+ is an acronym that represents lesbian, gay, bisexual, transgender, queer, intersex, and asexual.
- The "+" represents the many other identities that are still being explored and understood. The acronym is constantly evolving and may include other terms like non-binary and pansexual.
- History of Recognition of LGBTQIA+ in India:
- Colonial Era and Stigma (Pre-1990s):
- 1861: Section 377 of the Indian Penal Code, criminalizing "carnal intercourse against the order of nature," is introduced under British rule. This law becomes a major hurdle for LGBTQIA+ rights in India.
- Early Recognition and Activism (1990s):
- 1981: The first All-India Hijra Conference took place in 1981.
- 1991: The AIDS Bhedbhav Virodhi Andolan (ABVA) publishes "Less Than Gay," the first public report on the status of LGBTQIA+ people in India, demanding legal changes.
- Landmark Cases and Setbacks (2000s):
- 2001: The Naz Foundation files a Public Interest Litigation (PIL) challenging Section 377.
- 2009: A landmark Delhi High Court ruling in Naz Foundatuon vs Govt of NCT of Delhi decriminalizes consensual homosexual acts, seen as a major victory for LGBTQIA+ rights.
- 2013: The Supreme Court, in a setback, overturns the Delhi High Court decision, upholding Section 377.
- Recent Advancements and Ongoing Struggle (2010s-Present):
- 2014: The Supreme Court recognizes transgender people as a "third gender." (National Legal Services Authority V/s Union of India popularly known as NALSA judgement)
- 2018: In a historic decision, the Supreme Court strikes down Section 377, decriminalizing same-sex relationships. (Navtej Singh Johar v. Union of India)
- 2019: The Transgender Persons (Protection of Rights) Act, 2019 was passed, granting legal recognition and prohibiting discrimination against transgender individuals.
- 2020: The Uttarakhand High Court acknowledges legal protection for live-in relationships of same-sex couples.
- 2021: In the case of Anjali Guru Sanjana Jaan v. State of Maharashtra & Ors. (2021), the Bombay High Court observed that for the Village Panchayat elections, the petitioner identified herself as a female while she was a transgender and her application was rejected.
- The court held that the petitioner had the right to self-identify her gender and accepted her application.
- 2022: In August 2022, the Supreme Court of India expanded the definition of family to include same-sex couples and queer relationships.
- 2023: In October 2023, A five-judge Constitution Bench of the Supreme court rejecting petitions to legalise same-sex marriage in India.
- SC ruled that it does not have the authority to modify the Special Marriage Act (SMA), 1954 by either removing or adding provisions to include same-sex individuals.
- It stated that the responsibility lies with Parliament and state legislatures to enact laws regarding this matter.
- Colonial Era and Stigma (Pre-1990s):
What are the Major Challenges Faced by LGBTQIA+ in India?
- Social Stigma: Deep-rooted societal attitudes and stigma against LGBTQIA+ individuals persist in many parts of India.
- This leads to prejudice, harassment, bullying, and violence in different social arenas like education and employment affecting the mental and emotional well-being of LGBTQIA+ individuals.
- Family Rejection: Many LGBTQIA+ individuals experience rejection and discrimination within their families, leading to strained relationships, homelessness, and a lack of support systems.
- Healthcare Access: They often encounter barriers to accessing healthcare services, including discrimination from healthcare providers, lack of LGBTQIA+-friendly healthcare facilities, and challenges in obtaining appropriate medical care related to sexual health.
- Inadequate Legal Recognition: While progress has been made in recognizing transgender rights, there is still a lack of legal recognition and protections for non-binary and gender non-conforming individuals.
- Legal challenges related to marriage, adoption, inheritance, and other civil rights persist for them.
- Intersectional Challenges: LGBTQIA+ individuals who belong to marginalized communities, such as Dalits, tribal communities, religious minorities, or those with disabilities, face compounded discrimination and marginalization based on their intersecting identities.
- Manipulative Counseling: Manipulative counseling practices, such as conversion therapy and pathologizing LGBTQIA+ identities, exacerbate the challenges faced by this community.
- These practices reinforce harmful stereotypes, deny authenticity, and contribute to internalized stigma and distress.
Way Forward
- Push for Legal Reforms: In 2023, the SC judgment on LGBTQIA+ marriages transferred the ball in the legislature’s court to make relevant laws for the community.
- Legislatures can pass a separate law altogether or make amendments in the existing laws to recognise their rights.
- For example, Tamil Nadu has already amended the Hindu Marriage Act in 1968 to allow self-respect or ‘Suyamariyathai’ marriages which allowed marriages to be declared in the presence of the couple’s friends or family or any other persons.
- Entrepreneurship and Economic Empowerment: Encouraging entrepreneurship and economic empowerment within the LGBTQIA+ community by providing them access to mentorship, funding, and resources for starting LGBTQIA+-owned businesses and ventures.
- Promote LGBTQIA+-friendly workplaces and businesses through certification programs.
- Healthcare Access: Ensuring access to LGBTQIA+-friendly healthcare services, including mental health support, gender-affirming care, HIV/AIDS prevention and treatment, and sexual and reproductive health services.
- Training healthcare providers to provide culturally competent and inclusive care to LGBTQIA+ patients.
- Sports as a Game Changer: Sports can be used as a platform for breaking stereotypes and fostering camaraderie.
- Creating sports leagues specifically designed for LGBTQIA+ individuals to promote physical health, mental well-being, and community bonding can be done in this regard.
Drishti Mains Question: 1. Evaluate the progress made in acknowledging LGBTQIA+ rights in India, with a specific emphasis on recent developments concerning same-sex marriages 2. What are the key challenges in achieving full equality for the LGBTQIA+ community in India, and what steps can be taken to address them effectively? |
UPSC Civil Services Examination, Previous Year Question (PYQ)
Q. Explain the constitutional perspectives of Gender Justice with the help of relevant Constitutional Provisions and case laws. (2023)