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LGBTQ- Lesbian, Gay, Bisexual, Transgender and Queer

Updated: Aug 2


Abstract


A long way since the fight for the LGBT community started. A ray of hope was raised after the 2014 Supreme Court Judgment when recognition was given to transgender as the ‘third gender’. The transgender were given the opportunity to mark themselves as third gender other than the only options available earlier as male or female. This was followed by the judgment of Supreme Court in 2018, when section 377 was struck down and the LGBT community was set free. The court allowed the consensual same gender sex in private added that it is the fundamental right i.e. right to privacy. As every other individual the LGBT community also has a right to live their life according to their conditions. This blog is an effort to highlight the problems still faced by the LGBTQ community. I have tried to focus on the fundamental rights which the LGBTQ community is still unable to enjoy and how the fight still continues socially.


Introduction


The rights of the LGBTQ community people are being violated since a long time now under Article 14 and Article 21 of the Constitution which talks about the right to equality before law and equal protection under law. The human rights we talk about is the basic fundamental right of a person, every person should be treated equally. Under law the relations between the same sex was treated as crime but after the 2018 judgment it has been legalized but the question is have society accepted it in the same way? No, the fight for the equality still continues socially.

ACTIVIST: LGBTQ+ Community


Best known for his novel ‘A Suitable Boy’, Vikram Seth has been a renowned face in the literary circles for more than three decades and is regarded as one of the most influential writers of the modern era. Son of Prem Seth and Leila Seth, who was the first woman Chief Justice of a High Court in India, Seth studied at some of the best schools in the country before going to England for higher studies. One of the openly gay personalities in India, the 61-year-old Padma Shri recipient has penned down a heartfelt poem expressing his anguish over the recent verdict of criminalizing gay sex titled ‘Through love’s great power’. His mother, Justice Leila has been openly supportive of him and has been a strong supporter of the gay rights movement. Her disapproval of Section 377 is known to the world.


Section 377and the Pride Movement


Section 377 of IPC was firstly introduced in 1861 during British colonial rule in India & modeled on England’s Buggery Act 1533. Section 377 was hence used to criminalize any and all sexual activities “against the order of nature,” that is, any kind of sex that wasn’t penile-vaginal. This law essentially outlawed LGBTQIA+ basic rights to equality, privacy, freedom and choice. It stratified Indian community into two distinct demographic straight, norm-abiding citizens- and criminals.

India’s fight to decriminalize the LGBTQIA+ community began in 1991 when a movement to repeal Section 377 was initiated by AIDS Bhedbhav Virodhi Andolan. Throughout the years , many activist groups , such as Naz Foundation (India) Trust and Voices Against 377 demanded that Section 377 be read down. In 2009, the Delhi High Court delivered a momentous judgment overturning the archaic law, but an assortment of appeals was filed with the Supreme Court, challenging this judgment.

As the fight continues, Lok Sabha member Shashi Tharoor introduced a private member’s bill to replace Section 377 in December 2015 but was voted down. Though the bill was introduced to the floor a second time, it was yet again heard down. In August 2017, the Supreme Court upheld India’s Right to Privacy and made special mention of how this right affects Section 377, officially deeming it unconstitutional. However, the Court decided to wait for an appropriate proceeding in order to verify its constitutional validity.

On 6th September 2018, the law was deemed unconstitutional, “irrational, indefensible, and manifestly arbitrary.” As the fight for equality ended, the freedom to simply be who you are and love who you please was finally recognized.


Legal Battles -Future


The pride movement is just a baby step into the fight for equality; there is still a long way to go. Here are some fundamental rights which are violated for the LGBT+ community:


Same-sex marriage (Right to marry): In India, the marriage between same sexes is not yet legalized. As the marriage of different sexes is a right to privacy, there must be right to marry between same sexes too.

Right to adapt: The right to adoption is closed off to same-sex couples. The Hindu Adoptions and Maintenance Act, 1956 states that while "unmarried" females can adopt, males only fulfill the prerequisite "if he has a wife living". A marriage if somehow is done like we saw in the case of Nikesh Usha Pushkaran and Sonu MS, they were the first gay couple from Kerela to have an open marriage but they cannot adapt a child. This is a bitter fact that after their families have accepted them, they are married but they still cannot have a happy family. They have filed a petition for marriage equality in the Kerela High court; let’s hope that we will be introducing an amendment in law so that every individual is treated equally in every aspect.

Right to Surrogacy: In 2019, Surrogacy Regulation Bill was passed by the Lok Sabha banning the unmarried couples, same-sex couples, single parents, divorced or widowed persons, live in partners and transgender persons to get a child with the help of surrogate mother. In the rule of law, surrogacy remains at a far off distance.


Conclusion


There is also a failure on the part of the government that it has not brought amendments to the existing laws related to marriage, adoption, inheritance etc to give equal rights and status to LGBTQ community people. Hence only striking down one section won’t be of any help as there are lot of more rights of the LGBTQ+ Community which are being violated.


By Shibani Agarwal,

Indian Institute of Legal Studies,

5 Year B.B.A.LLB 


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