WHAT IS LGBTQ+?

The term LGBTQ+ incorporates the following:

• Lesbian: Refers to a woman who is romantically or sexually attracted to other women.

• Gay: Describes a man who is romantically or sexually attracted to other men.

• Bisexual: Denotes a person who is attracted to people of both genders, not necessarily equally or simultaneously.

• Transgender: Describes individuals whose gender identity differs from the sex assigned to them at birth.

• Queer: Encompasses sexual and gender identities outside the traditional heterosexual and cisgender norms. Queer can also refer to the larger LGBTQ+ community, embracing diverse gender expressions and sexual orientations beyond binary labels.

• ‘+’: Represents inclusivity beyond the listed identities, acknowledging that there are numerous other sexual orientations, gender identities, and expressions such as pansexual, asexual, intersex, and more.

Over the last decade, there has been a noticeable increase in tolerance and acceptance of Lesbian, Gay, Bisexual, Transgender+ individuals in India, particularly in urban centers. Despite this progress, many LGBTQ+ people in the country continue to conceal their sexual orientation or gender identity due to fears of discrimination, especially within their families who may view homosexuality as shameful. 

Discrimination remains a stark reality in rural areas, where LGBTQ+ individuals often experience rejection from their families and may be pressured into opposite-sex marriages against their will.

The fight for equal rights and acceptance is ongoing within the LGBTQ+ community in India, with individuals facing significant challenges in gaining societal acceptance. Prejudices persist, leading to stigmatization and discrimination against LGBTQ+ individuals, creating a hostile environment for many.

It is crucial to recognize that being part of the LGBTQ+ community is not a problem or a choice. It simply means having sexual preferences or gender identities that differ from societal norms. Labeling these preferences as wrong is, in itself, a misguided perspective.

Article 15 of the Indian Constitution, prohibits discrimination based on various grounds, including sex. Therefore, LGBTQ individuals have the same rights as any other citizen to live in society with dignity and respect. While cultural and religious beliefs may influence attitudes towards LGBTQ individuals, humanity should guide our actions towards inclusivity and acceptance.

Historically, there are instances of acceptance and recognition of gender diversity, such as the boon granted by Lord Rama to hijras in Hindu mythology, symbolizing loyalty and respect. These stories underscore the deep roots of diversity and acceptance within Indian culture, highlighting the need for contemporary society to uphold these values for all individuals, regardless of sexual orientation or gender identity.

LGBTQ+ History in india

The LGBTQ+ phenomenon is often viewed as a modern concept or an urban elitist idea; however, Indian history and mythology present a different narrative altogether. According to renowned mythologist Dr. Devdutt Pattanaik, ancient India had over fifty terms for non-heterosexual genders and sexualities in Sanskrit, Prakrit, and Tamil, such as napunsaka, kliba, kinnara, pedi, and pandaka. These references can be found in various ancient Indian texts, including the Vedas, Itihasas, Puranas, Kama-shastra, Natya-shastra, Ayurveda, as well as Jain Agamas and Buddhist Pitakas.

The Mahabharata, authored by Ved Vyas, mentions a significant character named Shikhandi, described as "neither a man nor a woman." Shikhandi, born with female genitalia but raised as a son by King Dhrupad, played a crucial role in the Pandavas' victory in the Mahabharata war. Other instances of gender fluidity and queerness in Indian epics include the stories of Brihannala (Arjun living as a eunuch dance teacher), Lord Shiva transforming into a Gopi to participate in a Raas-Leela with Lord Krishna, and the Puranic tale of Budh, the god of Mercury, who marries Ila, a man who becomes a woman.

Hinduism, being less monastic, historically accepted transgender individuals as part of society, though they were not mainstreamed. They often formed part of the entertainment community or served in temple collectives. While the Dharmashastras valued heterosexual marriage and procreation, they also acknowledged other forms of non-vaginal sex, including heterosexual and homosexual, albeit with restrictions and penalties.

The Kamasutra mentions "Swarinis" as lesbians who married each other and raised children together, and it also refers to "trittiya prakriti," individuals who cannot be classified as strictly male or female. Pali literature like the Vinaya Pitaka speaks of "pandakas," individuals who did not fit into traditional gender categories.

LGBTQ+ influence extended beyond texts and into temple art, as seen in erotic depictions in temples like Khajuraho, which scholars interpret as an acknowledgment of homosexual acts. In medieval times, transgender individuals were patronized by Muslim and Hindu rulers as singers, dancers, and musicians, often serving in women's quarters during weddings and childbirth ceremonies.

However, the advent of British colonial rule brought about significant changes. Transgender individuals and entertainers were classified as "Criminal Tribes," and Section 377 was introduced in the Indian Penal Code in 1860, punishing "carnal intercourse against the order of nature." This colonial law, influenced by Judeo-Christian beliefs, clashed with the more liberal attitudes towards sexuality found in Indian culture.

SOCIAL BARRIERS FACED BY LGBTQ+ COMMUNITY

1. LGBTQ youth face significant bullying and discrimination in educational institutions and other environments, as outlined in a 2018 UNESCO report. Recovering from such acts of prejudice can often take years due to the lasting impact it has on their lives.

2. There is often a reward offered for information leading to the secretive honor killings of individuals who identify as LGBTQ+, resulting in numerous tragic deaths.

3. Women within the LGBTQ+ community are particularly vulnerable, facing pressures such as forced corrective rapes when they come out as lesbian or bisexual, as their families attempt to "cure" their sexual orientation.

4. LGBTQ+ individuals continue to face discrimination beyond their educational years, with reluctance from companies to hire them due to societal discomfort and skepticism from fellow employees.

5. Exclusion from society is a common experience for LGBTQ+ individuals, contributing significantly to feelings of depression and isolation among this community.

HISTORICAL OVERVIEW OF LGBTQ+ RIGHTS

The journey of LGBTQ rights in India traces a varied and evolving path, shaped by legal, societal, and cultural changes. Here are significant milestones in this trajectory:

• 1861: British colonial authorities criminalized sexual activities "against the order of nature," including homosexuality, under Section 377 of the Indian Penal Code.

• 1977: Shakuntala Devi published "The World of Homosexuals," marking the first study of homosexuality in India.

• 1994: Legal recognition and voting rights were granted to transgender individuals as a third gender.

• 2014: The Supreme Court of India ruled that transgender people should be recognized as the third gender.

• 2017: The Supreme Court granted the LGBTQ+ community the freedom to express their sexual orientation without fear of persecution, citing the Right to Privacy.

• September 6, 2018: The Supreme Court struck down the portion of Section 377 that criminalized consensual homosexual activities, decriminalizing same-sex relations.

• 2019: Parliament passed the Transgender Persons (Protection of Rights) Act, aimed at safeguarding the rights, welfare, and well-being of transgender individuals.

SECTION 377 IPC

The colonial-era Section 377 of the Indian Penal Code, dating back to 1862, criminalized certain sexual acts deemed "against the order of nature," including homosexuality. The provision stated that individuals engaging in such acts, whether with a man, woman, or animal, could face punishment ranging from life imprisonment to up to 10 years of rigorous imprisonment.

Over time, courts interpreted "carnal intercourse against the order of nature" to include acts like anal sex, oral sex, and mutual masturbation, among others. This interpretation essentially equated sodomy with homosexuality, ignoring emotional attachments, fantasies, and other aspects of intimate relationships.

In the case of Fazal Rab Vs State of Bihar in 1983, the Supreme Court's application of Section 377 led to imprisoning individuals engaged in consensual homosexual acts, violating their fundamental rights to dignity and freedom of expression. Even consensual acts between heterosexual married couples, if considered "against the order of nature," could be punishable under this provision.

The controversy around Section 377 intensified in 1994 when concerns about HIV transmission in prisons led to debates about providing condoms. The reluctance to provide condoms highlighted the contradictory nature of the law, where addressing public health risks clashed with criminalizing consensual adult behavior.

As a result, organizations like AIDS Bhedbhav Virodhi Andolan challenged Section 377's constitutionality, arguing against its discriminatory and outdated nature, particularly regarding private, consensual sexual conduct.

DECRIMINALISATION OF SECTION 377 IPC

The legal journey regarding the decriminalization of homosexuality in India has been a complex and significant one.

In 2009, the Delhi High Court's decision in Naz Foundation vs NCT of Delhi marked a groundbreaking moment by declaring Section 377, which criminalized same-sex relationships, as unconstitutional. The court cited violations of the right to privacy, personal liberty (Article 21), equal treatment (Article 14), and discrimination prohibition (Article 15) under the Constitution. This ruling was a major victory for LGBT rights, although it faced challenges from anti-gay rights groups.

However, in 2013, the Supreme Court's decision in Suresh Koushal and Anr vs Naz Foundation and Others reversed the Delhi HC's ruling, stating that legislative action was necessary to address the issue. 

This led to widespread protests, prompting political parties like the Aam Aadmi Party, Indian National Congress, and Communist Party of India (Marxist) to include the decriminalization of homosexuality in their election manifestos.

Fast forward to 2018, and a five-judge Supreme Court bench, including then-Chief Justice Dipak Misra, delivered a historic verdict in a petition led by Navtej Singh Johar and others challenging the validity of Section 377.

The landmark decision in the case of Navtej Singh Johar v. Union of India AIR 2018 SC 4321, marked a significant milestone in the LGBTQ rights movement. The court partially decriminalized Section 377 of the Indian Penal Code, 1860. The provision which previously criminalized sexual intercourse between individuals of the same sex.

The judgment was celebrated as a crucial step towards achieving equal recognition and normalization of LGBTQ individuals in society. 

Building upon the precedent set in the KS Puttuswamy case, where the right to privacy was recognized as a fundamental right under Article 21 of the Constitution, the court held that the existence of Section 377 infringed upon this right to privacy. Consequently, the court deemed Section 377 unconstitutional, aligning its decision with the principles established in the Puttuswamy case.

Following the decriminalization of Section 377, petitions were filed in courts advocating for the recognition of same-sex marriages. The petitions seek to further advance the rights of LGBTQ individuals, including their right to marry and enjoy the legal benefits and protections afforded to married couples.

SUPREME COURT ON SAME-SEX MARRIAGES IN INDIA

On October 17, 2023, a landmark ruling was delivered by India's Constitution bench, led by Chief Justice DY Chandrachud and comprising Justices PS Narasimha, S Ravindra Bhat, Hima Kohli, and Sanjay Kishan Kaul in the case of Supriyo @ Supriya Chakraborty vs. Union of India. 

This ruling, awaited eagerly by many, tackled the issue of legal validation for same-sex marriages. The verdict, spanning four distinct opinions over 366 pages, revealed a split decision with a 3:2 majority stating that non-heterosexual couples do not possess an absolute right to marriage.

The unanimous agreement among all five judges that 'homosexuality is not urban or elite' represents a significant shift in acknowledging the diversity of sexual orientations without bias. However, the judges differed on whether to grant legal recognition as civil unions or as marriages to queer couples, indicating the complexity and depth of the issue at hand.

A critical aspect highlighted in the judgment is the judiciary's role vis-a-vis legislative action. The judges concurred that while the court interprets and enforces laws, the task of expanding marriage laws to include queer unions falls within the purview of Parliament. This distinction underscores the separation of powers and emphasizes the need for legislative updates to reflect societal evolution and inclusivity.

Overall, while the ruling did not grant immediate validation to same-sex marriages, it laid down fundamental principles recognizing the equality and rights of LGBTQ+ individuals, setting the stage for potential legislative reforms in the future.

EVOLUTION OF LGBTQ+ RIGHTS: IMPORTANT JUDGMENTS

1. Naz Foundation v. Government of India (2009)- The Supreme Court, in this case, declared that Section 377 of the Indian Penal Code,1860, places unjustifiable restrictions on consensual homosexual relations between adults, treating it as a criminal offense. This was seen as a direct infringement of the fundamental rights guaranteed to the LGBTQ community under Article 14, 15, 19, and 21 of the Indian Constitution. While the Court deemed Section 377 unconstitutional, it did not entirely strike down this section.

2. National Legal Services Authority vs. Union of India (2014)- The Supreme Court acknowledged the constitutional rights of transgender individuals to equality and protection against discrimination. It also affirmed the significance of transgender persons' right to marry. The NALSA judgment emphasized that by ignoring transgender identities, the State denied them social and cultural rights, leading to directions for the State to enable their rights.  The Court ruled that the failure to recognize the identity of the transgender community constitutes a violation of Article 14, 15, 16, and 21 of the Indian Constitution. Additionally, the Court established the legal recognition of a 'Third Gender' status for transgender individuals and directed the government to formulate policies for the welfare and protection of the transgender community in accordance with Article 15 and 16 of the Constitution.

3. Justice K.S. Puttaswamy (Retd.) and anr vs. Union of India and ors (2018)- In this case, the Supreme Court asserted that even if only a small percentage of the population is impacted, the right to privacy cannot be disregarded. The Court affirmed that the right to privacy encompasses not only personal autonomy but also extends to sexual orientation and gender identity.

4. Navtej Singh Johar v. Union of India (2018)- The Supreme Court determined that Section 377 of the Indian Penal Code, 1860, is unconstitutional as it infringes upon the Fundamental Rights protected under the Indian Constitution. As a result, the Court struck down Section 377 of the Indian Penal Code, 1860. While the decriminalization of Section 377 marks a significant step in recognizing the rights of the LGBTQ community in India, it is acknowledged that there is still a long journey ahead in securing full and equal rights for LGBTQ individuals.

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