WHAT IS LGBT COMMUNITY?
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 has the capacity to form enduring physical, romantic, and/or emotional attractions to those of the same gender or to 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 bring their bodies into alignment 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
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 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 still 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
Transgender Persons (Protection of Rights) Bill, 2019 was enacted with an objective to protect the 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.
The trans community in India has vehemently rejected the bill citing following provisions of the bill as they infringe their fundamental rights and do not comply with the NALSA judgement.
1. The bill snatches from an individual the right to determine his/her sexual orientation.
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 in the hands of authorities.
2. Punishment prescribed
Another discriminatory aspect of the bill is that the punishment prescribed in the case of ‘Sexual abuse against Transgender’ is only of 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 on the basis of gender identity is inherently discriminatory, arbitrary and against the equal protection clause.
3. Neglects the viciousness and atrocities that transgenders encounter within their own family
The bill is also worthy to be criticised 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 are the rehabilitation centres.
4. No provisions in relation to providing any scholarships
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 in relation to providing any scholarships, reservation, changing the curriculum to make it LGBT+ inclusive or ensuring safe inclusive schools and workplaces for the trans-community.
Therefore, it can be concluded that on one hand where the courts are taking progressive steps to empower and uphold the rights of 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 in accordance with 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.
SAME SEX-MARRIAGES
Special Marriage Act of 1954 lays down provision for people of India and all Indian nationals in foreign countries allowing them to marry irrespective of their faith, caste and religion. So, while the marriage laws in India have evolved progressively with time but there is no such provision for the same-sex couples to marry, which seems reasonable also considering it’s only been two years when the Supreme court decriminalised homosexuality. However, sooner or later the legislature has to deal with these questions
There are several petitions on same-sex marriages pending with the courts. So, the next onus on the LGBT activists is to encourage and demand from the government to formulate legislation permitting LGBTQ couples to marry, adopt and inherit their spouse’s property. However, the fact is that although the Union government, in 2018 left it for the court to decide on the legality of section 377, but has also indicated that it is likely to oppose any petition for same-sex marriage.
Criticism
But this seems to be contradictory in the light of the judicial pronouncements considering that if we really want to adhere to the principle of equality in the context of LGBT people then the right to marry, bequeath property, share insurance (medical and life) are all part of this. Therefore, denial of these basic rights only on the basis of sexual orientation is objectionable and unconstitutional violating the constitutional rights of right to equality (Article 14) and liberty (Article 19).
In India, marriages and weddings are considered as a sacred thing. Marriage has been one of the strongest and most important institutions of human society. With time it has evolved and changed its forms but what didn’t change is that marriage continues to be a universal fact. This has more relevance especially in the case of India, where the concept is so deeply entwined that everyone is expected to be a part of it.
The denial of marriage rights to LGBTQ+ people deprive same-sex couples of social and legal recognitions as well as the state benefits that married persons enjoy. However, it is essential to point out that the institution of marriage since its inception has been exclusionary towards certain communities of people and whenever any group of people has been included or excluded from being able to marry, it has always been accompanied with a battle between public policy, religion, and social norms.
Right to marry
Right to marry is not expressly mentioned in the constitution. But, in the landmark case of Lata Singh v. State of Uttar Pradesh AIR 2006 SC 2522 the supreme court interpreted it to be a part of Article 21 of the Indian constitution. The supreme court in this case of inter-caste marriage stated that after a person becomes major, he/she can marry whomsoever he/she likes.
The court further opined that the maximum the parent can do is that they can cut all their ties from the children but can’t threaten or kill them. Right to marriage is also recognised at international level in human rights charter under the heading of “right to have a family” and under various other covenants, but are these laws inclusive enough to include same-sex marriages is still a big question.
However, this reason cannot be a valid justification to deny the whole LGBT+ community the right to marry just because they have a different sexual orientation from others. Apart from this, it also raises another very pertinent question that whether the opinion of the majority holds more significance in the eyes of law that it can deprive an individual of the personal autonomy and basic right to his/her own life.
Lack of legislation
Despite there being no legislation in India governing same-sex couple marriages. LGBT people still marry and there have been instances when the courts have recognised these kinds of union.
After the decriminalisation of homosexuality in 2009, the Haryana court effectively recognised marriage between two lesbians. But a more significant judgement came in 2019 after the scrapping of Section 377 by the Supreme court. In 2019 a bench of Madras High court upheld the marriage between a biological man and a trans woman under the Hindu marriage act 1956 and the court further directed to register their marriage.
Some similar instances of acceptance of same-sex marriages can also be found at the community level. In 1988 two police women married each other in a Hindu ceremony Though not registered but their marriage was accepted and supported by their families and the community. Apart from this, similar kind of same-sex marriages have been happening in small village Angaar in Gujarat amongst the Kutchi for the past 150 years, where both the bride and bridegroom are men.
Further, it’s also very important to note that most such same-sex marriages, especially lesbian marriages, have largely happened between small-town, lower-middle-class or between non-English speaking women who are not even connected to the LGBT movement.
Navtej Singh Johar judgment
In the Navtej Singh Johar judgement, Justice Chandrachud observed that the manner in which an individual wants to exercise intimacy is beyond the legitimate interest of the state. But despite granting everyone the right to intimacy the judgement did not direct the government to frame or amend laws to recognize such alternate forms of union or otherwise. As essentially speaking when Justice Misra recognised the right to the union under Article 21, the word “union” was used in the context of companionship and not in the reference to marriage.
It is also important to point out that the LGBT rights activists have suggested various reforms to the law commission to make the family laws inclusive for same-sex couples as well but the same has not received any due consideration from the law commission.
However, with the Supreme court decision in NALSA judgement and more recently in Navtej Singh Johar judgement, some of these restrictions can now be potentially challenged under the robust framework of equality and non-discrimination that has been recognised.
MAKING MARRIAGE LAWS INCLUSIVE OF LGBT+ COMMUNITY
In order to recognize same-sex marriages, some new laws will have to drafted, modified or inserted, as the present laws cannot be applied in the case of LGBT marriages. There are 3 ways by which the marriage laws can be made LGBT+ inclusive.
1. One view suggests that same-sex marriages can be permitted after reinterpreting, modifying or amending the existing laws or by making the language of the act gender-neutral.
2. The second view suggests that same-sex marriages should be permitted after drafting a whole new Act by considering the LGBT+ as a separate community.
3. The third view suggests that considering India is still not progressive enough and open to the idea of LGBT marriages, the legislature instead of legalising same-sex marriages can rather give them a different status such as that of a civil partnership, where they may not have all the rights of marriage but can still enjoy various other significant rights like sharing of insurance, filing joint tax returns etc. i.e. it can be rather recognized as a relationship based on emotional and economical interdependency.
COUNTRIES WHERE SAME SEX-MARRIAGE IS LEGAL(TIMELINE)
A growing number of governments around the world are considering whether to grant legal recognition to same-sex marriages. So far, 30 countries and territories have enacted national laws allowing gays and lesbians to marry, mostly in Europe and the Americas. In Mexico, some jurisdictions allow same-sex couples to wed, while others do not.
Below is a list of countries that have legalized the practice, with the most recent countries to do so shown first.
Costa Rica (2020)
In May 2020, Costa Rica became the first Central American country to legalize same-sex marriage.
Northern Ireland (2019)
In October 2019, same-sex marriage became legal in Northern Ireland. Although Northern Island is a constituent of the United Kingdom, with its own parliament at Stormont, the change in its marriage laws ultimately came about due to action by the UK’s Parliament in London.
Ecuador (2019)
On June 12, Ecuador’s Constitutional Court ruled that that same-sex couples have a right to marry. The decision, which went into effect immediately, makes the Andean Mountain nation the fifth country in Latin America to allow gays and lesbians to wed.
Taiwan (2019)
On May 17, 2019, Taiwan’s legislature passed a bill legalizing same-sex marriage and making the island nation the first country in Asia to permit gays and lesbians to wed.
Austria (2019)
On Jan. 1, 2019, Austria joined the vast majority of Western European countries in legalizing same-sex marriage.
Australia (2017)
On Dec. 7, 2017, the Australian Parliament passed legislation allowing gay and lesbian couples to legally wed. Passage came just three weeks after Australians voted in favour of legalizing same-sex marriage, by a 62% to 38% margin, in a non-binding, nationwide referendum. Along with New Zealand, Australia became the second country in the Asia-Pacific region to make same-sex marriage legal.
Malta (2017)
Malta’s parliament almost unanimously voted to legalize same-sex marriage in July 2017, despite opposition from the Catholic Church on the small Mediterranean island.
Germany (2017)
On June 30, 2017, Germany became the 15th European country to enact legislation allowing same-sex couples to wed.
Colombia (2016)
On April 28, 2016, Colombia became the fourth country in Catholic-majority South America to legalize same-sex marriage, following Argentina, Uruguay and Brazil.
United States (2015)
Eleven years after same-sex marriage was first made legal in Massachusetts, the U.S. Supreme Court ruled that the Constitution guarantees it throughout the country.
Greenland (2015)
Greenland, an autonomous territory of Denmark, was not subject to Denmark’s same-sex marriage law, which was enacted in 2012. However, legislators in Greenland passed a bill in May 2015 to legalize same-sex marriage on the world’s biggest island.
Ireland (2015)
On May 22, 2015, Catholic-majority Ireland became the first country to legalize same-sex marriage through a popular referendum. More than six-in-ten Irish voters (62%) voted “yes” to amend the Constitution of Ireland to say that “marriage may be contracted in accordance with law by two persons without distinction as to their sex.”
Finland (2015)
Same-sex marriage became legal in Finland starting in 2017.
Luxembourg (2014)
On June 18, Luxembourg’s parliament, the Chamber of Deputies, overwhelmingly approved legislation to allow gay and lesbian couples to wed and to adopt children.
Scotland (2014)
On Feb. 4, 2014, the Scottish Parliament voted overwhelmingly to approve legislation legalizing same-sex marriage. In addition to allowing same-sex couples to wed, the measure gives churches and other religious groups the option of deciding whether or not they want to conduct such marriages.
England and Wales (2013)
On July 17, 2013, Queen Elizabeth II gave her “royal assent” to a bill legalizing same-sex marriage in England and Wales.
Brazil (2013)
On May 14, 2013, Brazil’s National Council of Justice ruled that same-sex couples should not be denied marriage licenses, allowing same-sex marriages to begin nationwide. (Previously, about half of Brazil’s 27 jurisdictions had allowed same-sex marriage.)
France (2013)
On May 18, French President Francois Hollande signed into law a measure legalizing same-sex marriage, making France the 14th country to grant gays and lesbians the right to wed.
FEW MORE COUNTRIES ARE;
NEW ZEALAND (2013), URUGUAY (2013), DENMARK (2012), ARGENTINA (2010), PORTUGAL (2010), ICELAND (2010), SWEDEN (2009), NORWAY (2008), SOUTHAFRICA (2006), SPAIN (2005), CANNADA (2005), BELGIUM (2003), THE NETHERLANDS (2000)
CONCLUSION
LGTBQ community needs an anti-discrimination law that empowers them to build productive lives and relationships irrespective of gender identity or sexual orientation and place the onus to change on state and society and not the individual. Once members of the LGBTQ community “are entitled to the full range of constitutional rights”, it is beyond doubt that the fundamental right to marry a person of one’s own choice has to be conferred on same sex couples intending to marry. More than two dozen countries have legalized same-sex marriage.