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ABSTRACT:

This paper studies the relationships of people in society who are bound to each other by certain relations. It discusses how these relationships evolved through history, and how the concept of LGBTQ arrived in this world. The objective of this paper is to make the society realize the importance of individual freedom and choice, the society through its customs and traditions cannot force an individual to live in a kind of relationship that society permits. For this purpose, various views of the public have been considered, views of teachers and professors have been taken into account, this paper also deals with the problems this community faced during its evolution. LGBT stands for Lesbian, Gay, Bisexual, and Transgender, these terms would be briefly dealt with in the introduction part. There are four questions that have been taken into account and these questions would be answered in detail, these questions are of immense importance considering the population of India with its rich growth of culture and diversity. As this is a vast topic which can never come to an end with its large discussion, the paper focuses on the questions involved and the importance of making people realize how important it is to provide individual’s with their freedom of choice. The society can nowhere affect the decisions of the people because of their culture and decisions as right to live with peace and dignity is a fundamental right which every individual in this society deserves. There are a lot of issues regarding the rights of LGBTQ whether talking about legalization of same-sex marriages or society accepting the actual identities of their family and friends, specially talking about India, there are a lot of people who don’t even know the actual full form of LGBTQ because they haven’t come across such situations where they have to deal with such terms, villages of India are still unaware about these scenarios and even in urban areas, LGBTQ community struggle a lot facing abuses and neglect of the society. There are a lot of ethical issues that have to be considered and given priority and we as the members of the society can contribute a lot to the betterment and welfare of everyone in the society. These issues are not just specific to one Country, these issues are of worldwide importance and have to be resolved as soon as possible so that every gender can live peacefully and with dignity without the interference of the government and the society. At the end of this paper, the author points out the solutions that could be taken into account according to the author’s opinion, this paper does not intend to hurt any gender’s sentiments or neither promote any violation of laws for promoting equal gender rights but to spread awareness and to make the lives of people worth living according to their own choices.

INTRODUCTION:

What does LGBTQ+ Community mean and what do these letters comprise – LGBTQ is a well-defined group of people who are united together by their thoughts, and common way of living, who share individuality and sexuality where :

  • L stands for lesbian - This term means when a woman has an attraction towards another woman or person of the same gender.
  • G stands for gay - It stands for any person who has an attraction towards another person of the same gender, it is generally associated with men but not mandatory.
  • B stands for bisexual - It denotes when a person has an attraction towards people of both gender or sex, maybe at different times or at the same time.
  • T stands for transgender - This term mentions the people who possess a different identity/gender from the gender that they were born with.
  • Q stands for queer - It stands for questioning the identity of the people who do not consider themselves as one of the above-mentioned categories of people.
  • The + sign is for the people of other different identities who do not find their position in the given acronym.

History of LGBTQ:

LGBTQ is not a new term that has emerged recently, it dates back to the nineteenth century when countries did not even recognized these people, these people have fought for their rights and are still struggling in some countries for their equal rights. The very famous protest that took place in New York was the Stonewall Era of 1966-1969, there was a famous gay bar in New York City called Stonewall Inn and this was not the only gay bar in the city but these bars were not allowed to function properly as the police raided these bars frequently, it was after a decade when people fought for their rights and same-sex relationships were legalized in New York after the judgment of New York vs Onofre.

There are many countries which acknowledged same-sex relationships from ancient times, countries like China and Japan and even talking about India, they all have recognized homosexuality in their historic times. China mentions male homosexuality in its literature and was very prevalent during the ancient times but with moving forward towards modernization male and female marriages were given more importance than the homosexual people and after some years homosexuality was curbed due to protests and movements and spreading of homophobia in China.

In Japan too, in their classic literature, there have been mentions of males having sex with other males and these were very prevalent in their classic images and even poetries. In India, the Hindu text and Vedas text depicts saints and demigods manifesting various same-sex relationships.

Many Mughal emperors and muslim emperors were involved in homosexual relationships, there have been images depicting homosexuality in temples situated in Khajuraho in India.

Image by Wikipedia 

Constitutional background of LGBTQ in India:

The topic of LGBTQ is not new to India, it was in existence even before the colonial rule of Britishers. The practice of homosexuality was very prevalent during the ancient and medieval times when Mughal emperors have been portrayed in literature books having sex with other men. The famous book of Kamasutra written by Vatsyayana also mentions about the details of homosexuality, men having sex with men, women having sex with women and also there is a mention of transgenders and intersex. This is of the time period of 400 BC, we can imagine how these sexualities are not unknown and they existed from the very past but some of them still don’t have any idea about these and they consider these people immoral or problematic to the other section of the society.

Therefore, the people must respect the members of the LGBTQ Community and support them in whichever way possible. Even in south Tamil texts, there are evidences that make it clear that homosexuality evolved in India for a very long time but there were also punishments mentioned for the people who engaged themselves in such activities like the Manusmriti mentions the punishments for women who engaged themselves in lesbian acts.

Now, we will have a look on the time of pre-independence era, when the Britishers were ruling India, the first time proper legislation was made which was Section 377 of IPC, the whole IPC was drafted by Thomas Babington Macaulay, Section 377 reads as follows:

“Whoever voluntarily has carnal inter¬course against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life], or with impris¬onment of either description for a term which may extend to ten years, and shall also be liable to fine.”

This gives us a clarification that homosexuality was not accepted during the time of the British regime, any person who involved himself in such activities could be landed in jail for a term of 10 years. Ismat Chugtai, one of the famous Indian Urdu novelists was charged with obscenity after her work ‘LIHAAF’ was released it was about a lesbian love story of a neglected wife, this book removed the bar on the sexual desires of individual and talks about the freedom that an individual has to give for their better living.

This fight and struggle of the LGBTQ Community continued for a very long time, even after Independence, these people were still struggling for their rights through various ways. During the time of 1990-1991, when India’s economy was decreasing and we started our race towards liberalisation and globalisation and due to these many western influences came to India, various western NGOs were protesting for the rights of transgenders. They wanted to decriminalise Section 377 of IPC as it was violating their freedom to choose their life partner and live according to their own sexual desires. This fight continued for a very long time and many came forward in these fights protesting for their rights. India, as a country realized it very late that the section 377 was actually violating an individual’s fundamental right but as it has rightly been said “ Better Late Than Never ”.

FINDINGS:

1) The struggle of the people started from a very long time when western influences arrived in India and they fought for equal rights of every gender, they wanted to decriminalise Section 377 of IPC which prohibited any sexual intercourse against the order of nature, prevented homosexuality and all such sexual intercourse. Thus, this section was taking away the human choices from them and forcing them to accept the vague laws which were made during British regime. Even after independence, these laws continued to exist and LGBT members started their legal battle to take their fundamental rights from the government by scrapping away the arbitrary laws but ultimately after 70 years, this law was scrapped which was a great step ahead in the victory of LGBT members.

The fight continued through various ways and the people started filing petitions, creating awareness, asking support from various legal aid organizations, the success that the members have received today is not just of one day but it took so many years for them to get justice and be treated equally like everyone else in the society.

2) The very first time this topic came into limelight was in the famous judgement of Naz Foundation Govt. v. NCT of Delhi, in this case some men were detained by the Lucknow police officers on the suspicion of them being homosexuals and the officers also arrested nine men who were associated with an NGO named “Bharosa Trust” as they were spreading awareness about healthy and safe practices to prevent STD’s. Later on, they were denied bail on being accused of working for a sex racket. This was the first incident when the constitutionality of Section 377 was challenged in the Delhi High Court in 2001. The judgement of Delhi High Court came in favour of the Naz foundation and the judgement clearly mentions that Section 377 puts an unreasonable restriction on the choices of the people who are engaged in sexual intercourse which is a clear violation of their fundamental rights enshrined in Part III of the Constitution under article 14, 15, 19 and 21.

Another case which opposed the Delhi High Court judgment was of Suresh Kumar Kaushal vs Naz Foundation, in this case an appeal was filed in the Supreme Court to reconsider the Delhi High Court judgment and to criminalise Section 377 again. Justice GS Singhvi and Justice SJ Mukhopadhaya said that as the LGBT+ persons are a minority in our country, therefore, they cannot be prvided wit h the constitutional protection and the judgment in this case again criminalised Section 377 of IPC as it does not violate any human rights.

This judgement was highly criticized by every section of the society as it considered homosexuals as minority and did not provide them with equal rights which was a huge discrimination towards LGBT persons. After this judgement, the movement and the protest by the LGBT persons increased and everyone started fighting for their rights and whole country began questioning the power of the judiciary and how they take away the basic fundamental rights of the people. This could not last very long and finally there was another landmark judgement about considering transgender as third gender.

  • NALSA v. UNION OF INDIA

Background - This judgement becomes very important and is a landmark judgement in the history of India as it talked about considering transgenders as a third gender, transgenders have always suffered from exploitation, discrimination, abuse and neglect of the society. These people have been left with no choices except begging and involving themselves in erroneous activities like prostitution and human trafficking. Due to such activities, they suffer from physical and mental torture and they are deprived of basic human resources due to economic deprivation.

Issue involved in this case - This case involved the issue of giving the transgender an equal right and whether they should be given a separate gender or not, to give these people equal right and opportunities whether in the field of education, public employment and services.

Judgement - The judgement came in favour of transgenders, the court gave them the equal status and a separate gender to them, after this judgement these people would not have to opt for either male or female, there would be a separate column for them where they could choose their gender. This was a great step ahead in moving forward towards a gender equal society. This judgement also gave proper guidelines about their rights and how in every aspect of life they would guarantee basic human rights to all the transgenders. These guildelines were:

  1. These people cannot be deprived of fundamental rights guaranteed under Article 14,15,16 and 21 and it would be a clear violation of basic human rights if they are deprived of them.
  2.  The court also directed the government of India to treat the third gender as an “economically and socially backward class”.
  3. The government should protect the rights of these people, to frame proper policies for them and to ensure that they get equal status of opportunity like other people whether talking about education or employment, there should be benefits of reservation provided to them as they are treated as an OBC category.

  • NAVTEJ SINGH JOHAR v. UNION OF INDIA

When the Delhi High court Judgement was overruled in 2013, there was a lot of hue and cry among the LGBT members, number of protests increased and famous people like Keshav Suri, Ritu Dalmia, Navtej Singh Johar were involved and they filed petition before the Supreme Court challenging the validity of Section 377 of IPC. They contended that this section was violative of their right to life, privacy, freedom to choose their identity, the government said that it would not interfere and would leave the matter on the decision of the judiciary . The final verdict came on 6th of September, 2018. The judgment came in favour of the petitioners and the court ruled out that Section 377 is unconstitutional as it violates fundamental rights of people. The judgement became a great success for the members of the LGBT as finally their rights were recognized.

The judgement also mentioned that the following section is arbitrary as it does not differentiate between what is natural and unnatural, this section also prevents a person to express their sexual identity, the court also declared the kaushal judgement arbitrary and vague. This is a natural process and we as citizens have no right to discriminate such persons and it is our duty to support them and let them enjoy their sexual identity the way they want.

The government also took initiative by enacting the “Transgender Persons (Protection of Rights) Bill, 2019 with an objective to protect the rights of transgender people and to stop any kind of discrimination against them and to provide them with proper education, healthcare and employment opportunities.

3) The current status of LGBT has not improved much even after the judgement, the members of the LGBT Community have still not acquired marriage rights, same-sex marriage is still not legalized in India. Marriage is one of the way where people feel that their relationship is safe, secure and nobody can question their relationship whether the law authorities or the society, living in a country like India it becomes important for the people to follow the norms and cultures of the society otherwise society does not approve their lifestyle and they are forced to face consequences. Therefore, the LGBT people are also fighting for their legal rights, many petitions have been filed in court for the legalization of same- sex marriages but the laws have not paid much attention to these issues till now. Its high time now that these people should also be given legal marriage rights, adoption and inheritance rights as they are also the equal members of the society and denying them these rights leads to the violation of their fundamental rights.

Even after there is no specific law related to the marriage of same-sex people, they are still marrying each other and the courts are accepting their relationship. There are various instances where it has been seen that courts are also giving importance to these people and accepting their sexual identity and their relationship. Madras High Court in 2019 asked to register a marriage which happened between a biological man and a trans woman and accepted their marriage under Hindu Marriage Act of 1956. There have also been same-sex marriages seen at the community level where families and society are readily accepting their marriages and these are happening in small towns of Gujarat as well between gay people and these people are not even members of the LGBT Community.

It is now the time that the legislature should think about enacting laws where LGBT people can also avail legal marriage rights and other basic rights. The existing marriage laws should either be amended or modified adding clauses for LGBT people as well or there should be new laws for these people. This step is not very easy for the legislature as well as many people of India are still not ready to accept their relationships due to their cultural and traditional mindset but there must be proper laws enacted for these people as they have already suffered a lot of discrimination and now it’s the time when they also enjoy all the rights like other people and be accepted by everyone in the society.

These people face discrimination not just in marriage rights but also in adoption, education and workplaces as well. LGBT people do not get proper education and are discriminated at workplaces, sexually assaulted and always treated with inferiority, this has led to a lot of problems in the lives of these people, the government should look into these matters and form proper guidelines to protect them and make this society a gender equal one.

4) In today’s time also, we see a lot of abuse and sexual harassment suffered by LGBT people in educational institutions in many ways like hitting and stealing their belongings, torturing them when they are alone in washrooms, posting their pictures online and writing obscene comments for them, causing annoyance to them while coming to institution or vice-versa. These people have to hide their actual identities and choose either to be male or female as the schools do not provide them with extra column to mention their own identity. There is no proper system for sex-education in schools and colleges which is very essential as then only people with start respecting each and every gender and this would also end the problems of teenagers having sex without knowing its consequences.

Due to these discrimination faced by the LGBT people, they suffer from a lot of physical and mental problems like stress, depression, anxiety, alcohol and drug abuse, low confidence and suicide.

This image shows a survey which was conducted by the UNESCO’s Delhi office with the assistance of a Sahodaran which is a male sexual health clinic, this was done with the aim to know how the bullying takes place in the state of Tamil Nadu with the LGBT students. This showed the harsh reality of India of how these people are sexually assaulted and physically tortured, these people find it better to leave the schools and dropout which badly affect their education skills and qualities.

The homosexuals and transgenders have faced a lot of mental health problems due to their neglect by the society and the discrimination faced by them, earlier homosexuality was classified as a mental problem during 1960’s around and it took more than two decades for WHO to remove this notion about homosexuals and treat them as normal but still the people and the society continued to treat them as someone who is not normal or has some sought of sexual problems. A survey project by Trevor revealed that the LGBT suffered with much more anxiety and stress as they are treated as minority and they live in vulnerable conditions, they suffer with 1.75 times more depression and stress than other people and are 2.5 time more vulnerable to anxiety. Even after various judgements, the society is not ready to accept the notion of same-sex relationships and even well-educated families ask their children to stay away from such people. We always come across transgender persons while waiting during traffic signals, in buses and trains asking money and giving blessings to people. Every individual needs to understand the concept of gender equality and promote it, due to this ruthly behaviour of people towards LGBT people, they are forced to indulge in unlawful activities for their survival because the society does not want them to work with everyone equally.

There are very famous LGBT rights activists in India who fought for these people through books and novels by spreading awareness among everyone, filing petitions, NGO’s who fight for these people. Some of them are Vikram Seth, Manvendra Singh Gohil, Gauri Sawant, Sonal Giani, Laxmi Narayan Tripathi and many more.

Image by Wikipedia

CONCLUSION:

In this paper, we saw the how the concept of LGBTQ is not unknown and strange to the world, it already existed from the very past in various countries and we also have their mention in our books, temples and literature. These people have struggled a lot and the activists supporting them have fought a lot for the rights of LGBT. This fight took a very long time to give them the status of equality like everyone else but still we need a lot more reforms in our existing laws and system for the LGBT people because there is still a lot of discrimination happening with them even now after various judgements of the courts as well.

We also need to change the thinking of the people of the world to treat everyone as equal and stop being rude to minority section of the society.

There have to be made various developments in the field of education, employment, health centers for these people where they can stand and survive like any other member of the society. India needs to modify or amend its existing laws so that LGBT people have all the legal rights with them and no one can question them on their acts or their sexual identity. Parents and families should teach their children the habit of treating every other person whatever the gender or their sexual identity maybe with respect and dignity. Schools and colleges need to promote the concept of gender equality and sex education for the better understanding of everyone in the country. All the prejudices and taboos need to be stopped then only India would be considered a true democratic country where every gender is respected and treated equally whether they are in majority or minority, no matter what their status, class or sexual identity is, they all deserve a dignified and a peaceful life. The crime rates against these people need to be stopped, the government should take the responsibility of protecting them, reducing the suicidal rates as well.

This all could be achieved by the proper framing of laws, their appropriate execution and by checks and balances by our judiciary. The taboos against these people can be stopped by promoting education, and spreading awareness in every corner of the world where no one is unaware of these people and everyone starts working for a gender-equal world.

The author of this paper hopes that at least after reading this paper, people become aware of these concepts of society and those who already know and still do not respect LGBT people start respecting them and treating with equality.

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