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In the Closet: The Underground LGBT Community

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 anti-LGBT.

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 inclusivity.

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 life-affirming.

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 life.

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 society.

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 address them.
     
  • 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 sexuality.


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 heterosexuals.

Family Violence

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 medical position.”

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 and personhood.

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 State Department.
  • 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 Northern Nigeria.
     
  • 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 psychological health.

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.

Conclusion
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 choices.

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.

End Notes:

  1. http://www.saathii.org/programs/lgbt-community-development
  2. https://blog.justcling.com/2018/08/30/healthcare-services-for-lgbt-people-in-india/
  3. https://metro.co.uk/2019/07/21/two-women-who-fought-against-lgbt-laws-in-india-just-came-out-as-a-couple-10434554/
  4. https://www.pewresearch.org/global/2020/06/25/global-divide-on-homosexuality-persists/
  5. https://www.cbsnews.com/news/the-difference-between-sexual-orientation-and-gender-identity/
  6. https://www.livemint.com/mostpopular
  7. https://theconversation.com/why-its-often-still-so-difficult-to-be-out-and-proud-66655
  8. https://www.jatinverma.org/rights-of-lgbt-community-in-india

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