“History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries,”
– Justice Indu Malhotra
Introduction
LGBT is the term used for defining people who are lesbians, gay, bisexuals, and transgender. The process is as universal as it gets: when a baby is born, a doctor, parent, or birth attendant announces the arrival of a “girl” or “boy.” That split-second assignment dictates multiple aspects of our lives. It is also something that most of us never question. But some people do. Their gender evolves differently from their girl/boy birth assignment and might not fit rigid traditional notions of female or male. Gender development should have no bearing on whether someone can enjoy fundamental rights, like the ability to be recognized by their government or to access health care, education, or employment. But for queer people, especially transgenders, it does—to a humiliating, violent, and sometimes lethal degree[1].
Mental health challenges are an important concern for many lesbian, gay, bisexual, transgender (LGBT) individuals in India. In September 2018, the community in India celebrated after the case of Navtej Singh Johar v Union of India[2], where the Supreme Court struck down the colonial ban on gay sex. It was an important movement for the LGBT community and was accorded all the protection of the constitution. Section 377 included any private consensual same-sex conduct within the scope of itself. This came in as a huge relief for the LGBT community who desired a life similar to other heterosexuals. Before the judgment, the status of the homosexuals in the country was as of criminals that they were left with no option but to change their orientation and change their way of living. However, even after the judgment, LGBT people in India continue to face persecution and discrimination. People are still being abused through arbitrary arrests and unfair trials. The community still lacks the rights for marriage and adoption.
This chapter investigates and considers how homo-bi-transphobia is represented and reflected in Indian social, political, and legal structures – including the healthcare system. Moreover, homo-bi-transphobia intersects with discrimination on the basis of different categories of to create deeply personalised and complex experiences. Thus any consideration or discussion about how to improve LGBT rights access to equality must be done within an anti-racist and anti-oppressive framework that acknowledges the intersectional nature of the identities of many queer individuals.
Global Advocacy on LGBTQ Rights
Around 80 counties in the world still criminalize LGBT relationships in some way and many other types of law deny even the basic rights and dignity to the community. The countries that allow same sex marriages have not addressed all rights based concerns. Voices have been raised globally by the community to acquire their basic rights such as marriage and adoption. In the lead-up to the 2014 Winter Olympics in Sochi, LGBTQ rights be came a central theme in Western media proclamations of a new Cold War.1 The focus on Russia’s anti-gay politics was subsequently overshadowed by the crisis 95 between Russia and Ukraine, which has dramatically altered Russia’s image on the world stage and ended the “reset” era of Russian relations[3].
The conceptual frame of “homonationalism” for understanding the complexities of how “acceptance” and “tolerance” for gay and lesbian subjects have become a barometer by which the right to and capacity for national sovereignty is evaluated[4]. The language of homonationalism is appearing in academic and activist projects across North America, Europe, and now India. For example, a Paris- based group called “No to Homonationalism” has contested for the campaign proposed for Gay pride in Paris because of its taking up of the national symbol of the white rooster. A 2011 conference on sexual democracy in Rome took issue with the placement of World Pride in the area of the city housing the highest percentage of migrants and staked a claim to a secular queer politics that challenges the Vatican as well as the anti-migrant stance of European organizing entities[5].
One of the first opportunities for global engagement on sexuality was the 1975 UN Conference in Mexico to mark International Women’s Year. This pivotal moment brought together lesbians from the North and South, who engaged with the feminist movement on sexuality and fostered development of networks that were to play a key role throughout the UN International Women’s Decade to follow. Around the same time (1978), the European-based International Gay Association (now known as the International Lesbian, Gay, Bisexual, Trans and Intersex Association, or ILGA) was founded. One of its aims was to maximize the effectiveness of gay organizations by coordinating political action on an international level, in particular applying concerted pressure on governments and international institutions Sexual and gender minorities have increasingly sought to organize in important regional politics sites as well[6].
International LGBT advocacy organizations and programs are increasing in number and influence. Though financially small, the global LGBT rights movement has the potential to increase its impact in the coming years. This impact could be even greater and positive changes could happen faster, if funders could make key investments in supporting collaborative work among organizations and programs, building research, data and information for the field and helping organizations and programs connect with other funders and capacity building resources. This groundwork is seen as a crucial step in the fight to secure LGBT rights and equality around the world.
Marriage Rights and LGBTQ Youth
In terms of anthropological theory, sexual prejudice constitutes a form of structural violence that impugns human dignity and development. The dilemma of an young person is unexplainable who is attracted to the same gender but who, in the course of growing up, was told by her family, science, and religion that homosexuality is abnormal. She was likely to perceive herself unfit for any of the normative functions of her gender, social class, ethnic or religious community resulting in psychological distress, depression or worse. India is a country where straight sex is seen more as a blessing whereas gay sex is viewed as a sin. There is a generational split in India between younger and older people with a majority of younger people supporting the notion of “gay” marriage or marriage rights for gay, lesbian, and bisexual couples. This enhanced support paradoxically comes in light of increasingly restrictive state-based marriage laws[7].
In this milieu, the most satisfactory course would be the recognition of same-sex marriages under Indian personal marriage laws. In India, Christians, Muslims and Hindus have different laws in relation to marriage, succession etc. The Hindu Marriage Act that governs Hindus, Sikhs, Jains and Buddhists states that a marriage may be solemnised between any two Hindus[8]. It also specifically provides that the bridegroom should have attained the age of twenty one and the bride eighteen[9]. The Christian Marriage Act provides that the age of the man shall be twenty one and the age of the woman eighteen[10]. Since Muslim marriages are not governed by a statute, there is no statutory definition of ‘marriage’, but they are normally considered to be a contract for the purpose of procreation[11]. Thus, all Indian personal laws appear to envisage marriage as only a heterosexual union.
There are two aspects of marriage in India, one is the social aspect of two consenting adults decide to go through a ritual in the presence of friends and family and treat his or her partner as a spouse in India. However, there is a legal aspect of marriage that bestows rights and responsibilities on two people which include property inheritance, maintenance of the spouse and so on. While in heterosexual marriages, such rights and responsibilities comes in a package, for the queer people such a law isn’t there in India. The Special marriage act is only meant for heterosexual couples and doesn’t even take into account transgender people. The strong opposition that a vocal section of Indian society has against the aspirations of LGBT community cannot be gainsaid. In India, along with rapid modernization, there has been growth of conservative and revivalist ideas, this opposition in the name of tradition, religion and culture however misguided will be strong and will act as an impediment to liberal legislation[12].
Many same sex same sex couples wish to marry simply because they are part of a culture in which marriage has long been represented as the ideal institution of connection and commitment and this belief transcends the bounds of sexual orientation. They also believe that the choice of marital partner is an important personal decision, over which particularly the state, should have no control[13]. Thus the straightforward argument in legalizing the same sex marriage is that if two people want to make a commitment of marriage, they should be given the liberty to do so and excluding one class of citizens from the benefits and dignity of that commitment demeans them and insults their dignity[14]. Many homosexual individuals might have the dream of being a part of the social structure by entering into wedlock. In a democratic country like India, where the constitution guaranteed the right to equality and life, discriminating a minority group and denying them the rights is completely contradictory to the laws of the land. The law should not be discriminatory towards genders. It should treat every individual equally as same sex and heterosexual relationships do not differ in their psychological dimensions[15].
Legal Rights for the Community
After the Central Adoption Resource Authority (CARA) issued guidelines for adoption, same sex couples, single persons and unmarried couples have found it increasingly difficult to adopt[16]. Based on sexuality alone, many citizens of India have been denied equality in various aspects of their lives. This can be seen in the struggles for marriage equality, adoption rights, the opportunity to serve openly in the military, and many other struggles to end sexual orientation-based discrimination.
A crucial point in the discussion on the politics of liberation is the gay and lesbian assertion on their rights – “to be treated equally, fairly, and equitably as citizens of India; that respect should be given to who they are, what they are; the right to choose, the right to be unmarried and the right to their own sexual orientation”. The demand for freedom and equality of gays and lesbians in India was first put forth in an organized manner in the end of 1991. The Charter of Demands which contains 19 elements was published in the last chapter of the report Less than Gay. The significant elements include: Repeal of all discriminatory legislation including Section 377 of IPC and relevant sections of Army, Navy and Air Force Act: enactment of Civil Rights legislation; amend the Constitution to include equality before law on the basis of sex and sexual orientation; establish a commission to deal with human rights violations; amend the Special Marriage Act to allow same sex marriages[17].
Till date, only the first cause, i.e., repealing of the discriminatory section in the IPC have been addressed and other demands have been left untouched. Lesbians and gays are increasingly seeking to form families through the adoption of children. However, same-sex couples face substantial difficulty in attaining equitable treatment from the courts in adoption proceedings. An examination of judicial opinions reveals that courts routinely discount empirical evidence and disregard the specific facts of a case in denying adoption to lesbians and gays. The family arena is one in which it has been particularly difficult for lesbians and gay men to gain equal footing with heterosexuals[18]. Proponents of same-sex adoption contend that “discrimination against homosexuals is prevalent in the family law context where judges and agencies are able to exercise broad discretion”[19]. Lesbians and gay men who wish to raise children often confront prejudice and misconceptions about their sexual orientation that “turn judges, legislators, professionals, and the public against them, frequently resulting in negative outcomes such as loss of physical custody.
The idea of human rights rests on the central premise that all humans are equal. It follows that all humans have dignity and all humans should be treated as equal. Anything that undermines that dignity is a violation, for it violates the principle of equality and paves the way for discrimination. The human rights of lesbian, gay, bisexual, transgender and intersex people (LGBTI) are coming into sharper focus around the world, with important advances in many countries in recent years, including the adoption of new legal protections. The legal protection should include the protection of law regarding job opportunities, marriage and adoption which would place the community in par with the heterosexuals.
Conclusion
For many years homosexuality had been considered to occur in an individual due to being a part of wrong environmental influences. There also was a point in time when homosexuality was considered to be a mental illness/disease even by the American Psychiatric Association, but sometime in 1973 they removed homosexuality from the diagnostic and statistical manual of mental illnesses. But many people till date live with the impression that homosexuality is an illness. In the recent past we have witnessed many ministers and government officials who wish to open rehabs for homosexuals, so as to “fix” their “problem” for the “betterment” of society.
A person’s choice of partner should not be restricted because of his or her sexual orientation. It not only restricts their basic fundamental rights of equality and privacy but it also takes away their right to live with dignity enshrined within the right to life and liberty. In India, just because a person is born out the two major genders they are ostracized and are they rejected on the grounds that they belong to a third gender. In order to create better-living place for LGBT community, the Home Department of the Government of India must take initiative and work in coordination with the State Governments for sensitizing the law enforcement agencies and by involving all the stakeholders to identify the measures and to implement the constitutional goal of social justice and the rule of law. There are no laws protecting gays and lesbians from discrimination at the workplace or laws that allow them to marry their partner of choice.
The emerging gay and lesbian movement offers not just alternate identities but prospects for social reconstruction. In spite of its marginality, the movement rejects the monolith and the mass. It is a reminder that if forced conformity is to be resisted it must be by representing human lives as multiple; selfhood as several; communities as voluntary and various. A new definition of political pluralism would be one that judges a society not only by the plurality of groups it tolerates, but also by the plurality of identities it allows individuals to assume. There are still places in India where people haven’t even heard about the LGBT and still think homosexuals and trans people should be ostracized from the society. However the Researcher strongly feels that India can be considered free only when society no longer differentiates in its treatment of people who may be lesbian, gay, bisexual, transgender, cisgender or straight.
References:
[1] Neela Ghoshal and Kyle Knight, Rights in Transition: Making Legal Recognition for Transgender People a Global Priority, Bristol University Press, Policy Press. (2016).
[2] Navtej Singh Johar v Union of India, AIR 2018 SC 4321
[3] Michele Rivkin-Fish and Cassandra Hartblay, When Global LGBTQ Advocacy Became Entangled with New Cold War Sentiment: A Call for Examining Russian Queer Experience, The Brown Journal of World Affairs, Vol. 21, No. 1 (Fall/Winter 2014), pp. 95-111.
[4] Jasbir Puar, Terrorist Assemblages: Homonationalism in Queer Times (Durham, N.C.: Duke University Press, 2007).
[5] Jasbir Puar, Rethinking Homonationalism, International Journal of Middle East Studies, Vol. 45, No. 2, SPECIAL ISSUE: Queer Affects (May 2013), pp. 336-339.
[6] Kim Vance, Nick J. Mulé, Maryam Khan and Cameron McKenzie, The rise of SOGI: human rights for LGBT people at the United Nations, University of London Press, Institute of Commonwealth Studies. (2018).
[7] Michelle A. Marzullo and Gilbert Herdt, Marriage Rights and LGBTQ Youth: The Present and Future Impact of Sexuality Policy Changes, Ethos, Vol. 39, No. 4, Psychological Anthropology and Adolescent Well-Being: Steps Toward Bridging Research, Practice, and Policy (December 2011), pp. 526-552.
[8] Hindu Marriage Act, 1955, S. 5.
[9] Id.
[10] Christian Marriage Act, 1872, S. 60.
[11] Siddharth Narrain & Birsha Ohdedar, A legal perspective on Same-Sex Marriage and other Queer relationships in India, Orinam, http://orinam.net/resources-for/law-and-enforcement/same-sex-marriage-in-india (last visited March 31, 2020).
[12] Vikram Raghavan, Taking Sexuality seriously, The Supreme Court and the Kaushal case, Law and other things, (December 2016, 2013), http://lawandotherthings.blogspot.in/2013/12/taking-sexuality-seriously
[13] Mary. L. Bonauto, Goodridge in Context, 40 Harv. C.R.- C.L.L, Rev. I (2005).
[14] Martha Nussbaum, A right to Marry? Same sex marriages and Constitutional Law, Dissent Magazine (2009).
[15] Gregory.M.Herek, Legal Recognition of Same Sex Realtionships in the United States: A social Science Perspective,61(6) Amer Psycho. 607-621 (2006).
[16] Siddharth Narrain & Birsha Ohdedar, supra note 11.
[17] Sherry Joseph, Gay and Lesbian Movement in India, Economic and Political Weekly, Vol. 31, No. 33 (Aug. 17, 1996), pp. 2228-2233.
[18] Hollandsworth, Gay Men Creating Families Through Surro-Gay Arrangements: A Paradigm for Reproductive Freedom, 3 Am. U. J. Gender & L. 183, 184-85 (1995).
[19] Rhonda R. Rivera, Legal Issues in Gay and Lesbian Parenting, 199 Frederick W. Bozett ed., 1987.
