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LGBTQIA+: A community or a Phobia

Homosexual, according to Oxford dictionary the one who is sexually attracted to people of the same sex. In today's world it is known as a community named LGBTQIA+. But the debate arises as soon as one terms it as a disease or says it has not been part of the society. It is not considered to be a normal phenomenon where people are not able to accept the fact that homosexuality exists.

Some are phobic to the homosexuals because they consider that it is not a part of our society and the culture does not accept the acts of homosexual. But this is also a fact that it had existed in the society since time immemorial. However people could not normalise it's existence and such people are phobic towards the entire community.

Homosexuality is the most debated topics in India. Some consider it a taboo, some consider it a disease and some even say it has evolved. But it has enlisted in the society since time immemorial. It has been a part of many ancient societies. Not only is it debated in India but also in many parts of the world. Although a major part of the debate revolves around whether it is a disease? The answer seems to be a "NO"! This has been corroborated by some scientific research as well.

A brief history of homosexuality and the definition of the terms could show the existence of homosexuality in the ancient world.

If we talk about India, homosexuality had been banned since 1861, as per Section 377 of IPC. It was finally struck down in the year 2018 by the historic judgement of the Supreme Court Navtez Singh Johar v. Union of India. Whereby Justice Malhotra stated, "history owes an apology to the members of the LGBT community And their families for the delay in providing redressal for the 'ignominy' and 'ostracism' they have faced through centuries."

We are very familiar with the word LGBTQIA+ now-a-days. But it has a brief history of how it got its name as it is now.

In history as well, we have an exemplary example of homosexuality that it persisted in India since a long time. Khajuraho temples in India is famous for the sculptures that contain various homosexual activities. Scholars have generally explained this as an acknowledgement that people engaged in homosexual acts.

Through all these instances we can say that it is not something that has evolved overtime, it has been in the history of the world.

The letter 'L', that stands for "Lesbians". It originated in the 17th CE. It is basically associated with the work of Sappho, an ancient Greek woman (from the island of Lesbos) who wrote poems about same gender passion. The term gay was introduced during a time when it was mocked around by the people.

It was introduced by Alfred A. Gross in 1950. Karoly Maria Kertbeny, an Autro-Hungarian journalist, coined the word "homosexuality" and "bi-sexual" in response to the Prussian government in response to a proposed law that contemplated adding language that forbade male same gender sexual activity to the constitution. Subsequently, the term Transgender was also introduced into the community in the 1990's. It was popularized by a trans feminine activists like Virginia Price, who argued that sex and gender are separate entities.

In a nutshell, it can be said that it is a wide term that includes many marginalised group of people who have been mocked. During the liberation and activism the same had been given a proper shape.

Gender Identity versus Sexual Orientation

To begin with, we should first be well versed with the terms i.e. gender identity and sexual orientation. So, gender identity refers to how one describes oneself. For
example, a person (biologically male) identifies or sees himself as a female. This also means that he may possess traits of a female. Like they may use pronouns that are preferably used for females and many more.

People in such a case may want to undergo surgery to express their gender identity. And such people are normally referred as "transgender".
Coming up to the next term i.e., "sexual identity". It basically refers to the type of people one is sexually attracted towards. Thus it should be noted that people who are transgender can experience diverse range of sexual orientation.

Understanding Homosexuality

To understand homosexuality, we can rely on the words of Sigmund Freud, who was an Austrian physician and the founder of psychoanalysis. He believed that humans are born with unfocused sexual libidinal drives and therefore argued that homosexuality might be a deviation from sexual drives. It basically means that he believed that all people are bisexual. Initially Freud believed that there can be conversion therapies that can be performed to correct homosexuality. He believed that there can be success in incorporating the heterosexual feelings, however, the homosexual feelings cannot be eliminated by itself.

In the year 1935, the letter written by Freud to a mother got famous whereby he mentioned "homosexuality is not a disease".

Simon Le Vay was another neuroscientist at Stalk Institute in San Diego. He conducted a brain research whereby he said biological difference can be a reason. He said it is due to a difference in the anterior hypothalamus. It is basically a brain region that governs the sexual behaviour of an individual which is found in women rather in heterosexual male.
In his second report he said there is a difference between the brains of heterosexual and homosexuals i.e again a difference in the brain of hypothalamus which is known to be the source of sexual urges. Although he said there is no direct evidence denoting the same that it is the hypothalamus that regulates the sexual behaviour among the heterosexuals and homosexual.

Is Homosexuality a Disease?

Owing to many religious beliefs there had been many experiments that had been performed to cure homosexuality. However, no positive outcome has been seen in such cases. One of the famous experiments on homosexuality that had been performed in Britain lands us to the conclusion that homosexuality cannot be treated.

There were 31 people who received treatment to change their sexual orientation. Most of the people were distressed by their attraction towards same sex, while many participants found happiness in same sex relationships after their treatment, most were left feeling emotionally distressed to some degree. Hence, the definition of same sex attraction as an illness and the development of treatments to eradicate such attraction have had a negative long term impact on individuals.

In 1992, homosexuality was removed from the ICD-10 (International Classification of Disease- 10th revision). It was the scientific analysis which brought the world to a conclusion that it is not a disease.

Judicial Position
According to Section 377 of the Indian Penal Code, engaging in a carnal intercourse with a man, woman, or animal outside the natural order of things is an unnatural carnal intercourse, which is an offense. therefore, penetration is adequate for carnal intercourse, which is required for the herein described offense.

Naz Foundation v. Govt. Of NCT of Delhi (2009)

  • An NGO that aimed to distribute information about HIV/AIDS intervention was the Naz Foundation. It submitted a petition for Section 377 decriminalization to the Delhi High Court. However, the HC rejected it for lack of a valid reason.
  • The issue was then brought to the SC, which ruled that no course of action or financial assistance was necessary.
  • NGO claimed that this contributed to a rise in HIV/AIDS infections. This is because members of the LGBTQ group stopped using the wing protection device out of fear of this regulation. Their efforts were ineffective as a result, which increased the spread of sickness.
  • In this regard, NACO and the Ministry of Health backed it and declared that it is opposed to Articles 14, 15, and 21. As the notion of intelligible differentia was not observed, it violated Article 14, achieving the classification's connection to the desired object. Its nature was also arbitrary. Next, because it discriminated against two groups of individuals, it was also related to Article 15 of the constitution.
  • It also violated the constitution's Article 19(1)(a)-(d). Their freedom of expression, assembly, association, and mobility were all limited.
  • Finally, it violated Article 21 since it infringed on their right to life and liberty. It claimed that it had breached Article 21 of the Constitution, which protects their private, consenting relationships.
  • The petitioner was awarded a judgment in its favour. S. 377 was found to be unconstitutional. Citing the UDHR (Universal Declaration of Human Rights) and the European Court, the court concluded that it had breached the right to dignity and privacy. Human rights as well as the Francis Coralie Hullin case, in which the Indian Constitution Court upheld the requirement for appropriate habitation, sustenance, clothing, and social freedom.
  • Furthermore, it violated Article 12 of the ICESCER (International Covenant on Economic, Social and Cultural Rights) and Article 21 of the Indian Constitution, which both prohibit "right to access of the higher attainable standard of health." By isolating homosexuals, it prevented them from receiving the necessary knowledge for HIV/AIDS prophylaxis.
  • The section was deemed unlawful and also against the petitioners' right by the court after it examined several treaties.

Suresh Km. Kaushal & anr v. NAZ Foundation & ors. (2014)

The judgment's legitimacy was subsequently determined. in Suresh Km Kaushal v. NAZ Foundation pursued. The Supreme Court overturned the decision in the case and ruled that only Parliament could decriminalize a particular clause. It further argued that only specific acts committed by people are criminalized, not entire classes of people. The final count said that it made reference to the extremely small number of individuals and that only a small portion of them had been charged under section S 377.

Navtez Singh Johar v. Union of India (2018)

In this instance, a five-judge bench partially dismantled the S. 377. Same-sex relationships between consenting adults were decriminalized, and "LGBT individuals are now legally allowed to engage in consensual intercourse." Non-consensual or sexual acts on animals are still illegal.

Furthermore, it was claimed that because it discriminates against people based on their sexual orientation, it violates Articles 14 and 15. It denied persons their right to personal autonomy under Article 21 and also violated Art. 19 (1)(a) by limiting their ability to recognize their identify (as part of their freedom of speech and expression).

Four alternative viewpoints on the bench was considered.

  • CJI Dipak Mishra: Supported Section 377's partial striking. It is against Article 21 in its entirety, he claimed. Self-determination is a right that cannot be taken away.
  • Justice Chandrachud argued that the law was anachronistic and mocked a number of members of the community. Due to the lack of a right to self-determination, he also discussed privacy (which was recognized in the Puttuswamy case).
  • In his discussion of the 2017 Mental Health Care Act, Justice Nariman noted that it was stated that homosexuality is not a sickness. Since these tendencies were natural, they shouldn't be treated as crimes.
  • According to Justice Indu Malhotra, Article 21 was violated because the right to health was being denied. S. 377 should be repealed as a result.

Homosexuality was labeled as a disease earlier. However, the today's world position is different. The ICD-10 (International Classification of Disease- 10th revision) also removed homosexuality from the list that classified it as a disease.
The position in India is also different. Earlier it was criminalized. But now the after the pronouncements of various judgments it has been decriminalized.
The sole reason of decriminalization was that it interfered with the personal liberty. Not only this but also it was a blatant mistake.
To love or be loved is an aspect of being an individual and it's the right of every human being. Further, it should also be understood that we can not question the practices done by one person in his or her personal lives. Henceforth, the question of culture and the aspect of society should not interrupt in an individual's personal life.

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