Recognition of LGBTQIA+ Rights in India | 02 Apr 2024

Source: TH

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.

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.