Human rights for all is the most raised issue around the world to enclose the
human dignity. Anything undermining the dignity is a violation of the principle
of equality and thus engraving discrimination. In Constitution of India, the
Rights and Fundamental Rights are cores to provide people their rights
irrespective of gender, caste, religion or creed, which were developed between
1947 and 1949 by the Constitution of India. Article 14 reads that the state
shall not deny any person equality before the law and equal protection of the
laws within the territory of India and Article 21 of the Indian Constitution
reads the protection of life and personal liberty which also includes right to
marriage and live without any obligations.
Insight: Challenges facing LGBT
Lesbian, gay, bisexual and transgender youth have a bleak picture in India due
to harassment, bullying and to avoid all they often damage their social and
academics so as to avoid the misogynist crowd altogether. Most elders and
leaders such as teachers and youth icons meant for educating the youth the sense
of unity often participate in the harassment or they aren’t trained to deal with
Turning out the best and accepting to live by being true to self while dealing
with people’s perceptions can be hard for anyone and they are more depressing
for lesbians, gay, bisexual or transgender and the situation is quite unique for
them in mental issues due to pressure of discrimination from family, friends in
whole society pose a great chance of anxiety, abuse and substance of suicide.
Earlier back in 2014, Supreme Court of India ruled that the rights and freedoms
of transgender people in India were protected under the Constitution. Also
recent on September 6th, 2020 marked anniversary of historic judgement of
decriminalizing same sex consensual relationships but a long way to go for true
There are probably more open conversations among and about the queer community
that are happening now. But still least in observed when it comes to social
acceptance and rights and privileges this community has. The police hasn’t been
sensitized and government still needs to provide more advantages and safety.
Many doctors recognize this as a disease. More conversation is needed to make
their community known to the whole world and what their lives actually like.
What is LGBT?
LGBT is an acronym and abbreviation for lesbian, gay, bisexual, transgender and
queer or questioning. Lots of people fantasy people of the same-sex, find
themselves being attracted to someone of the same sex is common, makes you feel
who you are. Some of them might take some time to make sure about how they feel,
to be sure of their sexual orientation.
Lesbian: It is used for women who are romantically and sexually attracted to other
girls or women. Some get to know from a young age but some are unable to
make sure of it until they grow up and think of starting a relationship and
some after being with opposite sex realize that they prefer to be with the
same sex which is completely normal.
Gay: It is used for all men who are romantically and sexually attracted to other
men and it is sometimes used to denote lesbian women. Some get to know from
a young age but some are unable to make sure of it until they grow up and
think of starting a relationship and some after being with opposite sex
realize that they prefer to be with the same sex which is completely normal.
Bisexual: A person having capacity to have an enduring physical, emotional, romantic
attractions with the same gender or those of opposite gender and this can be
in different ways and degrees within their lifespan. Bisexual people need
not have a specific experience to be bisexual rather any sexual experience
to explore themselves. It doesn’t mean to get involved with both sex t the
same time mentally and romantically.
Transgender: Transgender people come from every region around the world, from every
racial background. They are the people whose gender identity is different
from the others since birth and the innate knowledge of who they really are
is different of what is expected out of them. A transgender woman lives as
woman even they were to be a male when born. There are even more people who
aren’t entirely male or female.
Transgender people face social stigma, discrimination and harassment when they
come out in the crowd even though they close people might be accepting and
welcoming but there is fear of isolation. Apart from these risks, opening gender
identity, and living the life that is safe and truly authentic and can be
Evolution of LGBT rights in India
People among are exposed to torture for loving whoever they like. LGBT are given
various rights in clusters along with the challenges to go through and many
where no rights are provided. In India, in 19th century the term homosexuality
was considered as a forbidden sexual passion between the same-sex, thus being
unnatural. In temples it has been depicted through images, sculptures and even
in the ancient books and sacred narratives. After many petitions and cases, apex
court decriminalized section 377 of Indian Penal Code violating the freedom
rights of this community.
What is 377 Section of Indian Penal Code?
The Section 377 of the Indian Penal Code (IPC) was an act introduced by the
British Rule of India in the year 1861criminalising homosexuality referring it
as ‘unnatural offences’ which was punishable if anyone having carnal intercourse
against the order of nature with any man, woman and animal with imprisonment of
Although the Act did not involve any consensual intercourse specifying the ‘gay
sex’ rather it was based on any intercourse other than the heterosexual sex
considered against the order of the nature and thus was criminalized.
Section 377 Verdict
The criminal code in India has been based since the India got independence from
British in 1947 based on the attitudes different and against the homosexuality
that is immoral. In 2001, the Naz Foundation, a non-governmental organization
approached the Delhi High Court demanding the decriminalization the portions of
Section 377 of IPC making the homosexuality illegal.
Delhi High Court judgement in 2009, declared 377 violating the fundamental
rights by the Constitution “insofar as it criminalized consensual sexual acts of
adults in private.”
This was objected by many religious and other primarily
groups seeking the restoration of Section 377 following which Supreme Court of
India overruled the Delhi High Court decision stating it was on Parliament to
take call on the matter, rather than the courts. Soon after the apex court
lifted ban on the long colonial era ban on gay sex on September 8th, 2018.
A constitutional bench of five judges headed by Dipak Misra handed victory to 34
people challenging the Section 377 across India. The judgement said in Section
377 the consensual homosexual sex aspect went contradictory to the Constitution
in consequence the court read out all forms of consensual sex without any
coercion to be legal. The court clarified that Article 14 and Article 19(1) (a)
provides equality for every citizen of India and the section was an unreasonable
restriction for which public decency and morality cannot be taken as an anvil to
curb the rights of the LGBT community as the consensual carnal intercourse in
private does not in any way harm the public peace.
Does it provide all rights as ordinary citizen to the LGBT community? Does all
those convicted under Section 377 will be freed from jails?
Members of the community are entitled to every right as a citizen of India, to
the full range of constitutional rights and liberties protected by the
Constitution. However, this will take a leap of time to be embedded with all the
rights and their phase of denial by the society. Many laws consider this as a
norm when it comes to rights to marriage, inheritance and adoption rights. But
the judgment did open a door of hope to push the state to amend the laws for
recognition of their rights.
All the cases already settled are decided not to be opened but a judiciary is
advised by the court to take into consideration the judgment in all pending
cases even if the trail has begun.
According to Justice Indu Malhotra, the
history owes an apology to the LGBT community:
“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. The members of this community were
compelled to live a life full of fear of reprisal and persecution. This was on
account of the ignorance of the majority to recognize that homosexuality is a
completely natural condition, part of a range of human sexuality.”
Impact of Section 377 on Indian Family Law
LGBT community obtained dignity in the society from the scrapping of Section 377
IPC but still there are laws having cascading effect on the rights such as
Family Law. The main problem to deal was to interpret the terms ‘husband’ and
‘wife’ in the Indian Family laws.
Hindu Marriage Act, 1955
Though the judgement was in favor of the LGBT community but it did bring out the
major hurdle of interpretation of the term ‘husband’ and ‘wife’ which causes
ambiguity in understanding of law, as until now it was a normally understood
that male is husband and wife is a female as in case of homosexual marriages
no specific law is governing the marriages. In Section 5 of this act states
that the marriage can be performed between two Hindus and does not
specifically mentions the gender which provokes the right to same-sex to
marry under the act following the Section 13(2) mentions the grounds on
which a wife a take divorce from her husband but in case of gay marriage
there will be ambiguity in interpretation of law.
Same-sex Marriage in India
Recently, Solicitor General of India Tushar Mehta has opposed a plea filed in
Delhi High Court seeking the same-sex marriage under this act. He stated that
this is not recognized in both culture and law. Since the codified statutory
provisions of any country cannot be altered by the court, the relief cannot be
granted for the same. Though the bench comprising of Chief Justice D.N. Patel
and Justice Prateek Jalan acknowledged that the law position should be adaptive
to the changes in the world with more open mind. The petitioners were advised by
the court who were activists and members of the LGBT community, could try
getting their marriage registered and if denied they can approach the court for
grievances. The judgement did nothing more or less rather decriminalized
consensual homosexual activities.
The petitioners asserted that the Hindu Marriage Act, 1955 allows marriage
between any two Hindus as per Section 5 where it is nowhere mentioned that the
two Hindus are required to be opposite sex. In this issue, it was prayed despite
of the scrapping down of Section 377 IPC it is not possible for gay couples to
get their marriages registered thus rights for marriage be recognized by the
court. According to Article 21 of the Indian Constitution, denying the equality
of particular community is a violation of Right to Equality and right to choose
sexual identity as a fundamental right forming the right to privacy provided by
the court in 2018 judgement. It is also stated that the legalizing homosexual
marriages will not affect the basics of marriage and thus will reduce the rates
of psychological disorders in this community.
Adoption and Maintenance
Not a law in India allows a gay or LGBT couple or a person to adopt. Though
changes in legal provisions for same-sex marriage will require amendments in the
laws which seem quite unlikely. At first the fight was for identity and after
having achieved it, the fight is for the rights which they should like every
other citizen of the country.
Central Adoption Resource Authority (CARA) is a statutory body of Ministry of
Women and Child Development, Government of India which functions as a nodal body
for adoption of Indian children and it mandated to monitor and regulate in
country and inter country adoptions. The CARA guideline prevents foreigners in
same-sex relationships from adopting children in India. Many LGBT persons have
adopted in same-sex relationship but without having granted any legal rights
over the child.
None of the conditions in CARA mentions the adoption for LGBT community. Rather
there is nothing wrong demanding the normal life where raising and rearing a
child like a normal couple under best conditions possible should be made
rightfully legal. Bringing this amendment in the CARA will bring a radical
change for the whole community to get them in the nerve of the mainstream
Thus it essential for legal bodies to provide the required amendments
for the rights and privileges even though they are still cannot legally adopt
and stay as a couple.
Law is considered to change according to the demands and pace of life and time
being it dynamic. With changes and positive approaches towards bringing legal
changes according to the changing demands and need of the society, India has now
been witnessing positive achievements but even today it hasn’t been able to
change the mindset and approach to dive out the negative thought process leaving
the LGBT community to suffer.
Healthcare and Legal Aid to Queer Citizens
The landmark judgement of toning down of years old Section 377 IPC acknowledged
the denying equal citizenship and existence followed by the discrimination and
violence to non-heteronormative citizens of India with respect to accessing
healthcare. CJI Dipak Misra held that role of courts are important when there is
violation of rights subject to historical discrimination. To curb the
restrictions and fear of accessing right to health inclusive of mental and
sexual health services. A queer-friendly health and legal services locator was
launched in India in June 2018 by Varta Trust, Kolkata in collaboration with
Grindr for Equality, Los Angeles and SAATHII, Chennai.
This locator is an effort to address the numerous queries on health concerns and
complaints of rights violations which the “Varta
” webzine has been receiving
from its readers since its start in 2013. Even the community is expanding every
coming year getting the rights more than before still there is a hole in the
overall system. To be real, Indian hospitals aren’t LGBT-friendly. Layers of
discrimination such as being judged to straightforward denial of treatment while
there is already sex or gender related diseases in India.
Some of the very common problems faced by LGBT people in hospitals are:
- For third gender people whose orientation is visible are denied at
the entrance and even threatened for physical violence, this may be due
to lack of addressing in forms and lack of knowledge and pronouns to
- Stalling the process of admission and treatment, which ward to allot
even in case of emergency.
- In case of psychiatrists, many tend to try and convince their
clients how homosexuality is a disorder and can be cured with
medications and therapies, instead of focusing on the main issue.
- Even couples of same-sex find difficulty in explaining their sexual
life because of ignorance and fear of negligency as doctors are not trained to
understand and train to address the problems of the community which leads to
mistreatment, misguidance and misdirection. Physiological diseases like HIV, HPV,
hepatitis mostly in men having sexual intercourse with men and OB-GYN issues in
trans-women, lesbian or bisexual women needs acknowledging their gender and
Reforms required in India
Patriarchy and Homophobia
Since the youth is less exposed to the normalization of LGBT community when
only there arises physical problems, mental issues due to non-binary nature of
the people towards homosexuality. In India, not a proper study regarding the
LGBT population, which hinders any medical research that might help them to
connect to end this vicious cycle.
Survey reveals that the young Indians are homophobic, misogynist and orthodox
which reveals the conservative patriarchal thoughts in the youth. It is shown
that one out of three including women think right for a woman to work after
marriage while 16% of the youth think it is not okay for a woman to work after
marriage where males are considered as good leaders than women which somewhat
agrees to the status. Age is a major factor when it comes to accepting the fact
prevailing in the world regarding the acceptance of third gender.
Interestingly, urban youth fare worse than non-urban youth when it comes to
accepting homosexuality but age does play a huge factor in this regard. More
than half of India considers dating, live-in relationship (67%) and inter caste
marriage(53%) to be a great wrong. Multiple reports of LGBT suicides due to
harassment, bullying, conversion therapy and sexual abuse have come forward and
it is seen that youth almost five times likely to commit suicide than
Due to negligence, abuse and family rejection becomes a major reason for
depression, isolation and homelessness amount LGBT people according to the
Suicide Risk and Prevention for Lesbian, Gay, Bisexual and Transgender Youth. In
an official statement issued on 21 May, the Indian Association of Clinical
Psychologists (IACP) called ‘Conversion Therapy’ a ‘dangerously harmful,’
‘discredited,’ and ‘painful and traumatizing unprofessional practice.’
Even the judgement on Section 377 in 2018 states, “Counselling practices will have to
focus on providing support to homosexual clients to become comfortable with whom
they are and get on with their lives, rather than motivating them for a change.
Instead of trying to cure something that isn’t even a disease or illness, the
counsellors have to adopt a more progressive view that reflects the changed
There is need for greater hand for better communication and resources to help
LGBT teens facing the fear of coming out in the crowd. Psychological and health
aids in India need to have a training to address and spread the sense of
acceptance while remaining less expensive and accessible for most people which
could help them to have a sense that they are not on their own to deal with
societal and mental health they are already facing.
The lack of any legal provisions for this and complete silence from government
bodies on these increasing deaths mean that LGBT individuals have nowhere to go
or report to in case of any violence or abuse. Queer people still can’t reach
courts against discrimination. Mere symbolic decriminalization does nothing to
help LGBT people when there aren’t measures in place to protect their dignity
Global Status Quo
LGBT people face abuse and negligence in almost every corner of the world. About
80 countries still criminalize LGBT relationships and many laws denying the
basic rights and dignity to the community mainly to third gender. Since the
legal rights are important for any freedom and life with freedom, it is only the
measure and talks of social acceptance and acknowledge the way they are meant to
be in an any country to normalize the treatment towards this community.
In the history of U.S., the Obama Administration leveraged diplomatic and
embassies worldwide to curb widespread violence and abuse towards the LGBT
people. Following which the administration issued a Presidential Memorandum to
Advance the Human Rights of LGBT Persons in December 2011 which outlines White
House federal agencies aimed with international programs and responsibilities to
address the rights of LGBT people, and to update the President on annual basis.
Then-Secretary of State Hillary Clinton in his landmark speech at United Nations
on Human Rights Day underlined the America’s journey in recognizing the rights
of LGBT where he announced formation of Global Equality Fund, a pooled fund with
contributions from governments to bring equality which is administered by the
- Where homosexuality is illegal = Total 73 countries mostly in
Middle East, Africa and Asia where homosexuality between consenting
adults is considered illegal. Some only criminalize sexual
intercourse between men but a there has been expansion in laws to
include bisexual and lesbian women. While in some nations it has
been decriminalized but still they have to face the wall of
violence, arbitrary arrest, imprisonment and torture, in some cases
by the family members thus degrading the mental health.
- Where Death Penalty is risked by LGBT people = There are total 8 countries
where homosexuality is punishable by death namely Iran, Sudan, Saudi Arabia and
- Where same-sex marriage is approved = A research showed 18
countries in Central and Eastern Europe opposed same-sex marriage
where 5% of Russians and 9% of Ukrainians were in favor. Australia
is the 26th country to legalize same-sex marriage in December 2017
following which Germany also amended laws to approve same-sex
marriage as did Malta, Bermuda and Finland. In 2015 the US Supreme
Court ruled that same-sex couples can marry pertaining to
constitutional rights thus bringing change in 50 states.
Out and Proud: Need of the hour
Hate crime against this community remains a persistent problem in this
persisting world. Part of the problem is that everyone is presumed to be
heterosexual/straight- and as a society it is assumed everyone in a society fits
into a male or female gender category. With recent survey it is revealed 49% of
people aged between 18 and 24 identify as something other than 100%
heterosexual. Though rise is seen in the identification other than heterosexual
due to potential hostility faced by LGBT as coming out is not one time event.
Coming out as a true self and identity about sexual orientation and gender
identity do makes a huge difference to LGBT persons to lead a happy and
fulfilling life. It brings self esteem and confidence which enables better
relationships, improves employment satisfaction and increases well-being and
On the other side the negative impacts where they cannot open about their sexual
orientation or trans identity and silencing can cause isolation, suicide and
depression and neglect threat among LGBT people. The researchers found that 25%
of people did not ask for help when they were suicidal because they were hiding
their sexual orientation and/or gender identity. Because with more increase in
the LGBT people coming out of their hide can in some point of the future to
celebrate this as a normal and natural.
A Queer vision of Love
Some heart warming stories of Indians who went against all, odds for the one
they love despite of the negatives looming over their head.
Ihsar and Oorza- Stronger and Better Together
Two strangers, two broken hearts met for a beautiful journey together at Delhi
Queer Pride Parade. Both stood secretly eyeing on each other when one of them
was good enough to start a conversation. They laughed, danced their heart out
probably enjoying the warmth and vibe they shared. Little did they know anything
and everything that happened be it from stalking to talking they found their
void to fill in each other.
How a person helps you to grow and nourish within
effortlessly is probably what love makes you feel. The sense of passion,
obsession, someone you can’t live without is what you are going to end up with.
If you fall in love with the journey, you are destined to love forever as shown
by these two brave souls irrespective of hates and societal hate crime. It’s
been months of dating and eternal of love making.
Asif Khan and Sanjiv Sha- Wedding in Nepal
The first Indian gay weeding in Nepal in 2010, Asif and Sanjiv’s ceremony was
attended by the LGBT community from Kathmandu in large numbers. Though being
Hindu-Muslim, it made sense and determination to tie a knot for long-time lovers
to go miles together.
Amit Gokhale and Sameer Samudra – Maharashtra love in U.S.
A Maharashtrian couple by origin, Amit and Sameer observed the traditional
Marathi customs for their wedding, minus the bride. The couple found each other
online on a Gay Bombay mailing list. Amit proposed marriage to Sameer on his
birthday, on April 21, 2009. While it took some time to convince the families,
the couple pulled through and wedded legally in US this year.
Human sexuality is complex and diverse filled with all complex attitude and
personality characteristics and environmental influences combine to produce
identity and orientation. The shift from considering the homosexuality from sin
to normality has arrived in the 20th century. Maybe it is accepted by more
people than before but within the family and closed ones constant struggle
remains for acceptance and freedom to express their sexuality and gender
In urban India, LGBT voices are heard through online through social
handles even pride parade, meet ups Twitter heated discussions playing an
important role in activism though scene looks more upbeat for gay men,
transgender people and lesbian women.
According to studies stigmatization in LGBT people due to hate crime, family and
parental reaction towards homosexuality where in some cases they are accepted
when they agree to behave like heterosexuals. In a society bound by social and
cultural norms of education, career and marriage, lack of support is a big blow
to the mental and physical health of LGBT people. The LGBT community is seeking
companionship in every sense and as long as it is supportive and consensual free
from deceit, force which should not violate their fundamental rights and human
freedom and rights.
Award Winning Article Is Written By: Ms.Pravanshi Yadav
Authentication No: OT31372346409-4-1020