This article has been written by Deepanshi Jain & Ritika Gupta,
students of Indore Institute of Law.
Considered to be one of the most sensitive and embarrassing topics to discuss in today’s society, the LGBTQ community, comprising of lesbian, gay, bisexual, transgender and queer have been exposed to numerous forms of discrimination and torture – be it social, religious, emotional and yes of course Sexual. They have been pressured to live a life full of misfortunes, often looked and noticed as if they are aliens, not a part of this society.
They are many instances where they have been deprived to live a dignified life just because of a deep-rooted stigma – These people are a sheer blem to society, a black stain amidst the other elite class. Forced sterilization of transgender, rape of lesbian women, homophobic attitude and insufficient awareness of legal protection to these members have deprived them of their human rights and paved way to make them access the legal protection.
This area of law is growing towards the protection of LGBTQ Rights unfortunately the harsh reality is still they have been a neglected and most vulnerable class of the society.
The present blog contains the plight of the LGBTQ community and the injustice done to them.
KEYWORDS – Gender injustice, LGBTQ community, rights, harassment, inequality
People around the world face inequality and execution because of who they love, who they are, and how they look. People's behavior forces them to think they are very odd and different. “All humans are born free and equal in dignity and rights.” states article 1 of The Universal Declaration of human rights but we as humans do really follow this principle? When we see a newborn baby it's difficult to predict its gender at the first stance. Gradually as they grow, their dressing sense, their way of speaking, walking, talking make us conclude their gender as a boy or girl, but we often neglect that those who are a part of nature but society hesitate to consider them as their part – The LGBTQ Community – We ask our children and siblings to be away from them as if they are criminals who would do harm to them!
When there is any special occasion, we invite them to shower their blessings as their blessings count and on the other side we treat them as unprivileged. This dual aspect rightly makes a man hypocrite. Apart from the transgender community, GAY and LESBIANS are considered as a taboo that inflicts danger to the world. People have misconceptions about their feelings. They are the male and females who have sexual desire for same-sex. Bisexuals are those who are attracted to both men and women. Being in the category of LGBTQ is not evil it is just against the normal expected behavior of society. Recognition of the LGBTQ community is accepted and welcomed by the youths but within the set boundaries of families, their acceptance still remains a challenge.
The Indian constitution includes strong and explicit human rights protection, including equality before the law, equal protection of the law, right to life, and personal liberty. While article 15 prohibits discrimination on the basis of religion, race, caste, sex, and place of birth. The Supreme Court clearly affirmed that these non-discriminatory practices also apply in regard to LGBTQ Community but they still face challenges in the education sector, at the workplace, in public dominance, and for a better life.
In the pre-colonial period, LGBTQ people were considered to be a part of society. Their presence was viewed as auspicious. Even intercourse between them was not treated as immoral or sinful.
The evidence of this could be traced to the time of Mahabharata. The character of Shikhandni, who was born female later converted to a man and married a woman. When the colonial period started and invaded INDIA, they treated the group as backward, stated them as criminal tribes, mocked and ridiculed them.
From times, LGBTQ community has been prone to gender injustice, there family desert them for the so-called image in their society. They leave them on roads, footpaths, forest at the fate of their destiny. The somehow grow up at the mercy of some good-hearted spirits of the society but the tale does not end here. When the enter the education sector as students they are bulled, when the try to seek a job the employer make sure tat irrespective of their qualification, they do not get a job or provide them job which does not match with their qualifications. They face gender assault. All their life goes to fight for injustice but their lives end up bearing with these comments. House owners do not provide them with accommodation or ask high rental fee from them, neighbors behave with them immorally thus they are being forced to live life in slum lacking basic amenities, with no proper shelter, clothing and education. They fight for equality but their life ends up bearing the blunt of the so-called civilized society. All these violated the human rights of these communities.
NEED FOR EQUALITY ACT IN INDIA
The Equality Act is an act in the United States Congress, that, amend the Civil Rights Act to prohibit discrimination on the basis of sexual orientation and gender identity in every sector of public sphere be it employment, housing, public accommodations, public education, federal funding, credit, and the jury system. Do we need implementation of such laws in India as well?
In India there is no specific provision that deals with protection of rights of LGBTQ. If implemented it would protect the LGBTQ community and uplift their status.
LEGAL STATUS OF HOMOSEXUALITY
In 2001, an NGO name the Naaz Foundation filed the writ petition in Delhi High court for decriminalizing section 377 of the Indian penal code for the LGBTQ community if they adults indulge in private with consent. In 2009, Delhi High court decriminalized homosexuality but this decision was overruled by the apex court of India in 2013.
Years later, on the basis of a fresh writ petitions, constitutional bench of five judges was a setup to look in to this matter. And finally, after years of waiting and bearing the societies cruel comments a landmark judgement came in the case of Navtej Singh Jauhar vs. union of India[i] for decriminalizing the consensual intercourse between the LGBT community. Even the justice Indu Malhotra apologized for the injustice faced by the respective community over the years.
It was ruled out that this section violated their fundamental right under article 21 of the constitution which protects right to privacy[ii] and right to live with dignity. When lesbians and gay have intercourse consensually in private, then arresting done for going against nature is out of question, as these people are also a part of the society.
In the case of The National Service Legal Authority v. Union of India[iii], Supreme Court ruled out the identification of transgender as third gender saying that they have equal right and protection under the constitution of India. it was further explained as the transgender community is socially and economically backward hence reservation should be made for them under article 15 and 16 of the constitution in education, job etc. sectors.
Did everything become all right after decriminalizing section 377. According to the 2016 poll by the international lesbian, gay, bisexual, trans and intersect association, only 35% of the Indians were in favour of legalizing same-sex marriage. It means that the dissatisfaction among the general public is much more for the acceptance of LGBTQ community.
Society is the one who raise an individual, protect him from evil and develop good qualities within him. Basically, society develops its own perspective over the years. An individual also develops its perception according to his upbringing. Recent judgement of the Supreme Court won't be able to change the me mental state of the society very easily. It is very remorseful to say that a country which is touching a new horizon of success has its own roots of superstition.
Supreme Court allowed the LGBTQ to maintain relation together not their marriage. Although it would take a lot difficulty to convince the society to accept them. As we all know marriage is a sacred bond between two individuals. Legalization of their marriage will give them an assurance about their acceptance at least in the eyes of law if not in the society.
The above paragraph highlights the plight of the LGBTQ community. Since time immemorial there are instances where their rights were violated, it does not point ta Indian are unaware of the homosexual events, of their rights its just that their humanitarian aspect towards them has been shadowed by the old customary beliefs which are no good in todays society. A significant and historic step of the apex court in this field is the DECRIMINALIZATION OF SECTION 377 so far as it is consensual sexual conduct between adults of the same sex but merely because a legislation is enacted does not assure the upliftment of their status, the society needs to be educated and be sensitive towards their plight. Its high time for society to accept them as individuals who are not clumsy in looks but as a dignified being. the youth of today has a great role to assist the society in changing their mindset towards them.
We live in a society where a child only knows about two gender, boy and girl and later boy marry a girl. They don't know anything about third gender. But what if in their teenage they fee attraction towards same sex. At the time, they endure insecurity of their own identity, their own gender. This is something fear to share with anyone. Even if they would then either they become a source of humour or ask to stay quiet. All family numbers try to persuade him that all this is gibberish. A conflict arises between mind and society words which force them to find one question!
Change is the demand of time. Some old tradition or beliefs need to be annulled and new laws must be made. Hope that our new generation will bring new era where discrimination will not be there on the basis of gender or on any other thing. Everyone will be treated humanely.
Disclaimer: This article is an original submission of the Author.
NLR does not hold any liability arising out of this article.