LGBT RIGHTS – ENSURING EQUALITY – VIOLATIONS AND ROLE OF JUDICIARY
LGBT RIGHTS/ THELEGALLOCK.
WHAT IS LGBT COMMUNITY AND LGBT RIGHTS?
LGBTQ is an acronym for lesbian, gay, bisexual, transgender and queer or questioning. These terms are used to describe a person’s sexual orientation or gender identity.
LESBIAN: A woman whose enduring physical, romantic, and/or emotional attraction is to
other women. Some lesbians may prefer to identify as gay or as gay women.
BISEXUAL: A person who can form enduring physical, romantic, and/or emotional
attractions to those of the same gender or those of another gender. People may experience this attraction in differing ways and degrees over their lifetime. Bisexual people need not have had specific sexual experiences to be bisexual; in fact, they need not have had any sexual experience at all to identify as bisexual.
TRANSGENDER: An umbrella term for people whose gender identity and/or gender expression differs from what is typically associated with the sex they were assigned at birth. People under the transgender umbrella may describe themselves using one or more of a wide variety of terms— including transgender. Many transgender people are prescribed hormones by their doctors to align their bodies with their gender identity.
Some undergo surgery as well. But not all transgender people can or will take those steps, and a transgender identity is not dependent upon physical appearance or medical procedures.
QUEER: An adjective used by some people whose sexual orientation is not exclusively heterosexual. Typically, for those who identify as queer, the terms lesbian, gay, and bisexual
are perceived to be too limiting and/or fraught with cultural connotations they feel don’t
apply to them. Some people may use queer, or genderqueer, to describe their gender identity and/or gender expression. Once considered a pejorative term, queer has been reclaimed by some LGBTQ people to describe themselves; however, it is not a universally accepted term even within the LGBTQ community.
STRIKING DOWN OF SECTION 377, LGBT RIGHTS
6th of September 2018 was not an ordinary day. Something momentous happened on
the day that “blew a life of “constitutionality” in the dead members of the LGBTQIA+ community, who have been subjected to centuries of mind-numbing toil. What marked
the day special for the LGBT+ community was that the Supreme Court of India delivered a historical verdict decriminalising homosexuality by partially striking down Section 377 of IPC. The LGBT community (LGBT RIGHTS) all across the country erupted in the jubilant
celebration enjoying their victory against the 200-year-old British-era law, that criminalised same-sex relationship.
The significance of this whole judgement can be surmised in the light of the statement
made by Justice Indu Malhotra while reading her 50-page verdict that “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”.
Despite homosexuality been decriminalised, the laws in India remain hostile and prejudicial towards the LGBT community in several ways. The reason behind this is that there exists an enormous gap between the legislative and the judicial development of LGBT laws in India.
Transgender Persons (Protection of Rights) Bill, 2019, LGBT RIGHTS
Transgender Persons (Protection of Rights) Bill, 2019 was enacted to protect the LGBT
Rights of the Transgender Community by prohibiting discrimination against them with
regards to employment, education. healthcare, access to government or private establishments. But in the name of empowering the community, the bill further exposes
them to institutional oppression and dehumanises their body and identity.
HOW THIS BILL VIOLATES THE LGBT RIGHTS?
The trans community in India has vehemently rejected the bill citing the following provisions
of the bill as they infringe their fundamental rights and do not comply with the NALSA judgement.
- The bill snatches from an individual the right to determine his/her sexual orientation
which is an integral component of the right to privacy as pronounced in the NALSA judgement. As per the bill, the change of gender identity in documents can only be done after proof of sex reassignment surgery which must be certified by the District Magistrate. This takes away from the Trans community the basic human right of autonomy and privacy and further exposes them to harassment at the hands of authorities.
- Another discriminatory aspect of the bill is that the punishment prescribed in the case of ‘Sexual abuse against Transgender’ is only two years while a similar kind of offence if, happened against women attracts a serious punishment extending up to 7 years. Thus, stipulating different levels of punishments for the same nature of crime only based on gender identity is inherently discriminatory, arbitrary and against the equal protection clause.
- The bill is also worthy to be criticized as the bill erroneously neglects the viciousness and atrocities that transgenders encounter within their own family. The law disentitles them from leaving their families and joining the trans-community thus infringing their right to be a part of any association and right to movement. The only recourse available to the trans community in case of family violence is the rehabilitation centers.
- Although the bill seeks to provide “inclusive education and opportunities” to the transgender community but fails to lay down any concrete plan to achieve the same. There are no provisions about providing any scholarships, reservation, changing the curriculum to make it LGBT+ inclusive or ensuring safe inclusive schools and workplaces for the trans-community.
COURT STEPS TO PROTECT LGBT RIGHTS
Therefore, it can be concluded that on one hand where the courts are taking progressive steps to empower and uphold the rights of the LGBTQIA+ community, on the other hand, the legislature is invalidating the same rights. It is high time that the government should acknowledge and frame laws by the landmark judgement else the LGBTQ community will continue to face setbacks in their struggle to have the same rights as those available to heterosexual people.