Let’s Talk Of Constitutional And Legal Rights Of The LGBTQIA+ Community In India

Recently the LGBTQIA+ community has started to gain more support, respect and acceptance in large urban areas. Yet these are not enough.

Many individuals are still living in fear of hatred, violence, and the matter of socio-economic acceptance. Also it is evident that people still live closeted due to the fear of being discriminated against, and being shamed by society/family/friends.

The community experiences untold stories of violence and discrimination which are more in rural areas. Individuals are denied from making their own choices and are forced into conversion therapies, forced into opposite sex marriages, being abused by own family members, and even killed to meet the level of being called ‘normal’.

In India we can still find people who are homophobic, transphobic, and queerphobic. People are the same everywhere no matter what. And its time to stop labeling individuals and spreading hate in our society. The community will continue to face lot of violence and discrimination without the intervention of law. Every citizen in our country must be equally protected by our laws. Each and every one of us strive for a happy, peaceful and comfortable life. Law is the only thing which keeps us and reminds us to do the right thing. From our history it is evident that every individuals experience different kind of treatment depending on race, religion, sex, age, place, language, opinions, etc.,

Article 14

Article 14 guarantees all person equality before law and the legal protection of the laws.

Equality before law prohibits all kind of discrimination.

A person goes through discrimination when they are treated less favorably than another person in a similar situation. Article 14 ensures that every Indian, no matter who they are, should enjoy the same rights and should have equal access to those rights.

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Article 15

Article 15 strictly prohibits all kind of discrimination an individual would face based on the grounds of race, caste, sex, religion, origin or birth place.

The Supreme court extends Article 15 to prohibiting the discrimination which occurs based on gender identity and ‘character’. Additionally, legislative law enacts a ban on discrimination against a person based on sexual orientation in employment.

Article 15 only extends to discrimination from the state or government bodies. However, in February 4, 2021, the Allahabad high court ruled that firing and discriminating against a person in employment on the basis of sexual orientation is a violation, hence extends the anti-discriminatory provisions to employment everywhere.

Article 19

Article 19 provides all the citizens the right to freedom of speech and expression, right to assemble peacefully and without arms, right to form associations or unions, right to move freely throughout India, right to reside and settle in any part of India, right to practice any profession or to carry on any occupation, trade or business.

Article 21

Article 21 secures an individual’s right to life and right to personal liberty.

Article 21 secures both citizens and non-citizens as well. It includes the

• right to live with human dignity,
• right to a decent environment against hazardous industries,
• right to livelihood,
• right to privacy,
• right to shelter,
• right to health,
• right to free legal aid,
• right against solitary confinement,
• right to free education up to 14 years of age,
• right to speedy trial,
• right against handcuffing,
• right against inhuman treatment and delayed execution of justice,
• right to travel abroad,
• right against bonded labor,
• right against custodial harassment,
• right to emergency medical aid,
• right of access to timely medical treatment,
• right not to be driven out of a state,
• right to a fair trial,
• right of prisoner to have necessities of life,
• right of women to be treated with decency and dignity,
• right against public hanging,
• right to a hearing,
• right to information,
• right to reputation,
• right of appeal from a judgment or conviction,
• right to social security and protection of family,
• right to social and economic justice and empowerment,
• right against bar fetters,
• right to appropriate life insurance policy,
• right to sleep,
• right to freedom from noise pollution, right to access to electricity.

Articles 14, 19, and 21 form what is called the ‘Golden Triangle of Constitutional Rights’.

Section 377

Section 377 of Indian Penal Code was introduced in 1861, modelled on the Buggery Act of 1553, under British-ruled India. It states that “all sexual activities against order of nature is illegal.” According to Section 377, homosexuality, sex with minors, non-consensual sexual acts and bestiality are illegal.

In 2018, the Supreme court effectively decriminalized homosexuality after decades of grassroots activism. Additionally, the Supreme court stated that consensual sexual acts between adults cannot be a crime.

However, section 377 of IPC excludes transgender/third gender. It completely discriminates against an individual based on their gender identity, which is deeply offensive to their dignity and self-worth. Section 377 was also against the mandate of Articles 14, 15, and 21 of the Indian Constitution, which was a point used by the Honorable Supreme Court.

Recently, news about a lesbian couple from Kerala went viral over news and social media. When the couples came out to their parents about their relationship, the parents of both the adults forcefully separated them. They were emotionally tortured and even sustained some injuries. Initially, the Calicut police refused to file a complaint, stating that “it’s an internal family issue.” One of the couple took the issue to social media in a desperate attempt to bring the truth out in light. Finally, with the help of a Kozhikode based NGO and Kerala High Court, the couple are reunited. All adults in India have the right to choose who they want to live with.

Transgender Persons Bill, 2019

The Transgender Persons Bill was put in effect on Jan 10 2020. The bill was originally introduced in Lok Sabha on 19th July, 2019. As per the bill states, a transgender person as one whose gender does not match the sex assigned at birth.

The Transgender Persons Bill of 2019 prohibits all kind of discrimination against a transgender person which includes denial of service or unfair treatment in relation to education, employment, healthcare, access to opportunities available to public, right to movement, right to housing and property, opportunity to hold public or private office, access to government or private establishment.

According to the bill, forced or bonded labour, denial to use of public places, removal from household and abuse (physical, verbal, economic, emotional, sexual), are all an offence against a transgender person. The bill allows individuals to identify their gender identity, but it is mandate that each person would be recognized as ‘transgender’ on the basis of a certificate of identity issued by district magistrate, something that trans people have been protesting. 

A shocking incident took place in Tirunelveli District on March 24th 2022. Udhaya, a Dalit trans woman and a folk artist by profession, was kidnapped by her boyfriend’s family members. Udhaya’s partner belonged to an upper caste. His family members kidnapped her and physically, verbally and mentally abused her, and even tried to stab her. When Udhaya lost consciousness she was taken and dropped off on the road.

A case has been registered with the police against five individuals, and a special team has been assembled to nab the absconded members. The term transphobia does not limit only to gender identity but in this society where caste discrimination still exists, the kind of oppression Dalit trans woman faced is horrifying.

Just having a law isn’t enough

Research from all over the world shows that these individuals go through a lot of suffering in terms of mental health and are depressed, and in some cases unable to handle it, they have attempted suicide.

The government has to collaborate with the community in order to protect and empower the community. Individuals of the community are more likely to face unemployment, lower annual income, lack of money for housing, lack of money and access to healthcare, lack of money for food, struggles for quality education and job security.

The government has to bring in more initiative in order to make society more inclusive. It is important to

• recognize complex identities,
• celebrate openness,
• have better allyship visibility,
• normalize pronouns,
• make same sex marriage legal,
• have new, inclusive rules in terms of child adoption,
• include sex education into our education system,
• ban conversion therapy,
• and proactively update India’s medical curriculum by removing discriminatory and unscientific portrayals of LGBTQIA people.

Can we hope for a better future?

Image source: a still from the film Badhaai Do

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