The term LGBT refers to a broad category of people, including those who identify as lesbian, gay, bisexual, or transgender. LGBT rights are the legal rights of lesbian, gay, bisexual, and transgender individuals. These rights aim to ensure that LGBT people are treated with dignity, respect, and equality under the law so that they are free from discrimination and persecution based on their sexual orientation, gender identity, or gender expression.
In India, the issue of LGBT rights is one of the most controversial due to their non-acceptance by some parts of society. In the last two decades, there has been significant legal development regarding the recognition of LGBT rights.
Legal Framework
Section 377 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) criminalized unnatural offenses, including same-sex relationships. It provided that whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal shall be punished. This provision was used to persecute and discriminate against LGBT individuals. However, this provision has now been deleted from the Bharatiya Nyaya Sanhita, 2023.
In order to protect transgender people from being discriminated against, the Transgender Persons (Protection of Rights) Act, 2019 was passed by the Parliament. The Act aims to solve the issue of discrimination faced by transgender people. The Act protects them from various kinds of discrimination. Section 3 of the Act provides that discrimination against transgender persons is prohibited on certain grounds including denial of education, employment, public facilities, healthcare facilities, etc.
Judicial Pronouncements
In the landmark judgment of the Delhi High Court in Naz Foundation v. Union of India, the Court decriminalized consensual homosexual acts between adults. This judgment affirmed that Section 377 violated fundamental rights, including the right to privacy and equality. However, in Suresh Kumar Koushal v. Naz Foundation, the Supreme Court of India overturned the Naz Foundation judgment, recriminalizing consensual same-sex relationships under Section 377. This decision sparked nationwide protests and renewed the debate on LGBT rights.
In National Legal Service Authority v. Union of India, the Supreme Court affirmed the fundamental rights of transgender persons under Articles 14, 15, 19, and 21 of the Constitution. The Court upheld the right of transgender persons to decide their gender and directed the Centre and state governments to grant legal recognition to their gender identity, such as male, female, or the third gender. It was held that Article 14 of the Constitution does not restrict the word “person” only to male or female. The transgender community falls within the purview of the Constitution and thereby they are entitled to all rights, including employment, healthcare, education, civil, and citizenship rights.
In Navtej Singh Johar v. Union of India, the Supreme Court struck down Section 377 of the Indian Penal Code, thus decriminalizing consensual same-sex relations among adults. The Court recognized that the LGBT community enjoys the same fundamental rights as any other citizen.
LGBT Rights and Challenges
Article 14 of the Constitution provides an equal status before the law and equal protection of laws within the territory of India. “Any person” in Article 14 means every individual, without discrimination based on caste, creed, religion, sex, etc. LGBT individuals have the right to privacy regarding their sexual orientation, gender identity, or relationships. Transgender individuals have the right to live according to their gender identity and expression.
This includes access to gender-affirming healthcare, legal recognition of their gender identity, and protection from discrimination. Further, LGBT individuals should have access to healthcare services that are inclusive and sensitive to their unique needs, including gender-affirming care and mental health support.
Essential Issues
India lacks comprehensive anti-discrimination laws that specifically protect LGBT individuals in various aspects of life, including employment, housing, and healthcare. While the Transgender Persons (Protection of Rights) Act, 2019, recognizes transgender rights, concerns remain about its implementation and the protection of transgender individuals from discrimination and violence. LGBT individuals still face obstacles in accessing inclusive and non-discriminatory healthcare services. There is a need for increased awareness and education about LGBT issues to combat stereotypes and discrimination effectively.
Conclusion
LGBT rights are human rights, and the global movement for LGBT equality seeks to ensure that all individuals, regardless of their sexual orientation or gender identity, are treated with dignity, respect, and equality under the law. These rights are recognized and protected to varying degrees in different countries, and progress in securing LGBT rights continues to evolve worldwide.
The journey of LGBT rights in India has seen both progress and setbacks. Legal developments, such as the decriminalization of consensual same-sex relations, represent significant steps towards equality. However, challenges persist in areas like non-discrimination legislation, transgender rights, and societal attitudes.
Award-Winning Article Written By: Mr.Shailendra Yadav
