Rights Of LGBT People

Written By: Meghna Prusty

Introduction

Individualism has spread like wildfire over the world, emphasizing human rights, equality, and freedom of speech and expression, among other things. Lesbian, homosexual, bisexual, transgender, and questioning (LGBTQ) people’s human rights are important problem that has gotten a lot of attention thanks to this movement.

Human rights are based on the assumption that all people are created equal. It is based on the notion that all humans have dignity, and that anything that infringes on that dignity is a breach of humanity’s core principles. The concept of fundamental rights, which protect equality, freedom, and personal liberty, is recognized by most constitutions around the world. In democracies like the United States and India, such rights have been successfully implemented. Despite this, many societies around the world still harbor prejudices towards LGBTQ individuals, subjecting them to severe discrimination and unfairness.

Background

Gender fluidity and same-sex relationships have long been depicted in ancient Indian writings and sculptures. The British colonial rulers formally introduced the law criminalizing homosexuality to India in 1862, when they listed it under “unnatural offenses” in section 377 of the Indian Penal Code. Even in the twenty-first century, this legislation, which punishes anyone who freely engages in “carnal intercourse against the order of nature” with any man or woman, remained the most significant hindrance to LGBTQs’ full expression of sexuality and personality in India.

National Legal Services Authority v. Union of India, 2014 (1)

Only in 2014, when the Supreme Court in National Legal Services Authority v. Union of India recognized transgender individuals as the “third gender,” did India take a big step toward acknowledging the rights of LGBTQ people. Transgender people who had been forced to identify as “male” or “female” could now legally identify as transgender or “third gender” as a result of this ruling. This decision also established that they were entitled to all of the rights enshrined in Part III of the Indian Constitution as Fundamental Rights.

Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors., 2017 (2)

The Supreme Court’s decision in K.S. Puttaswamy v. Union of India, 2017, in which it was held that the right to privacy is protected as a fundamental right under Articles 14, 19, and 21 of the Indian Constitution, was the second significant step toward recognizing the rights of LGBTQ people in India. This decision also overturned the Supreme Court’s decision in Suresh Kumar Kaushal v. Naz Foundation, which concluded that LGBTQ people were a “minuscule minority” who did not need constitutional protection.

The Supreme Court rejected the “minuscule minority” theory in the K.S. Puttaswamy’s decision, stating that the minuscule population of LGBTQ people cannot be used to deny them their fundamental rights and that such restrictions cannot be justified even when only a few, rather than a large number of people, are subjected to hostile treatment. This decision also acknowledged that a person’s sexual orientation falls within the scope of their right to privacy, removing any legal barriers to the LGBTQ community’s rights and laying the way for the landmark Navtej Singh Johar v. Union of India decision.

Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice, 2018 (3)

Finally, on September 6, 2018, the Supreme Court in Navtej Singh Johar v. Union of India struck down a section of the Indian Penal Code (IPC) that criminalized “consensual sexual conduct between adults of the same sex,” effectively legalizing consensual sex between persons of the same gender. This was the outcome of a long legal battle that began in 2001, when a writ petition was filed in the Delhi High Court challenging the constitutionality of section 377 of the Indian Penal Code on the grounds that it violated the rights to equality, freedom of expression, and life and personal liberty, including the right to privacy, dignity, and health.

Enactments

While the Supreme Court’s decisions in 2014, 2017, and 2018 are considered historic in terms of their expansive interpretations of constitutional rights and empowerment of LGBTQ people, their reach of application was still limited.

The legislature has the power to make laws in India’s constitutional system. The legislature’s passage of the Transgender Persons (Protection of Rights) Act, 2019, was designed to protect transgender people’s rights by outlawing discrimination in employment, education, healthcare, and access to government and private businesses.

The Trans community, on the other hand, rejected it because it contained several clauses that were detrimental to their Fundamental Rights, such as the requirement that a district magistrate issue a certificate of identity recognizing them as “transgender” only after they had sex reassignment surgery. Furthermore, as directed by the Supreme Court in National Legal Services Authority v. Union of India, the Act had no provisions to assure equality of opportunity in education and employment.

In the absence of comprehensive anti-discrimination laws, LGBTQ people in India are still a long way from being accepted as equals and free individuals in society, despite huge gains in the legal war. The country’s religious, linguistic, and cultural diversity, as well as a lack of literacy and understanding among the general public, provide a significant barrier to LGBTQ acceptance and visibility. Only intelligent legislation will be able to overcome these obstacles.

International Status

The world had advanced by the time India decriminalized homosexuality in 2018. Denmark was the first country in the world to pass registered partnership rules for same-sex couples in 1989, giving them nearly equal rights to marriage. By 1993, Norway had legalized gay couples’ civil unions. The following are some of the most significant developments:

At the turn of the century, the Netherlands became the first country in the world to recognize same-sex marriage and allow joint adoption, making it one of the most momentous breakthroughs on the worldwide stage.

In 2008, California became the first state in the United States to allow same-sex marriage, and in 2015, the United States Supreme Court expanded this privilege to other states by deciding that same-sex couples have a constitutional right to marry. In 2011, the Human Rights Council of the United Nations issued the first resolution recognizing LGBT rights. The WHO reclassified “gender incongruence” under “conditions related to sexual health” rather than “mental, behavioral, and neurodevelopmental disorders,” which it was previously included under.

The Sydney Harbour Bridge was lit up with rainbow pyrotechnics to commemorate the beginning of same-sex marriages in Australia at the start of 2018. The European Court of Justice has issued a landmark judgment granting same-sex spouses of European Union citizens the same residency rights as heterosexual spouses. The Supreme Court of India decriminalized homosexuality this year.

Same-sex marriage was legal in 29 countries as of January 2021.

In some countries, however, like Iran, Afghanistan, Nigeria, Saudi Arabia, and the United Arab Emirates, homosexuality is still punishable by death.

Conclusion

A close examination of the political and legal landscapes of progressive and developed countries reveals that India still has a long way to go in ensuring the LGBTQ community’s right to equality, life, and personal liberty. Indian society lacks the education and understanding necessary to foster an accepting attitude toward members of this community. The Supreme Court’s Navtej Singh Johar decision in 2018 was hampered by a lack of effective legislation and anti-discrimination regulations.