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The Battle For Identity - LGBTQ

LGBTQ ( lesbian, gay, bisexual, transgender, queer)

Lesbian:
It is derived from the name of the Greek island Lesbos. It means a homosexual woman, having same sex attraction.

Gay:
These are male homosexuals, whose sexual identity and sexual behaviour is predominantly directly towards other men.

Bisexual – these people have sexual attraction, or sexual behaviour towards both males and females or to more than one sex or gender.

Transgender
These people have a gender identity or gender expression that differs from the sex that they were assigned at birth.

Queer:
It is an umbrella term for sexual and gender minorities who are not heterosexual or one whose gender identity doesn’t matches with their sex assigned at birth.

The LGBTQ community also referred to as the gay community, is a loosely defined grouping of lesbian, gay, bisexual, transgender, LGBT organizations, and subcultures, united by a common culture and social movements. These communities generally celebrate pride, diversity, individually, and sexuality.

The term pride or something gay pride is used to express the LGBTQ community’s identity and collective strength; pride parades provide both a primes parades provide both a primes example of the use and a demonstration of the general meaning of the term. The LGBT community is diverse in political affiliation.

The Challenges and Controversy
Controversy and Transgenders exist parallelly. Since time immemorial there has been acceptance and disapproval of this group of people. Society in general has a dichotomous perspective of the genders. To most people the two genders that exist are male and female and the existence of a third gender is not acceptable. The controversy is also about whether transgenders are born or made.

They have existed irrespective of Class, Race and Culture since the time Human being came into existence. The transsexuals and transgenders across the world have been marginalized and have remained in the periphery. They have been neglected by their family as well as society resulting in low level of education, lack of social skills, deprivation of employment and social recognition.

Concerns of Transsexuals and transgenders can be understood holistically by discerning the mythological, historical and contemporary world view.

Mythological perspective throws light on the myths existing in different cultures about the transgenders.

Historical perspective will help in understanding the life of Transgenders during various periods.

Contemporary Perspective opens us to realities of Transgenders and Transsexuals across cultures.

Gender Identity

Gender identity refers to a person’s internal sense of being male, female, definite other or fluid and conflicting identity. Gender is expressed by person’s communication, display of the identity through attire, voice, bodily characteristics, and performing the gender roles. However, Sometimes this gender expression can go against social desirability which may not be appropriate with outward physical self. Transgender is an umbrella term and transsexuals are one of the sub categories.

Transsexuals are gender variants conflicted with the biological self as striving to become the gender of their choice. When they are looked from heteronoramative and pathological approaches understanding is narrow and incomplete. Understanding them from medical model will discount the life and uniqueness of their adjustment made in the society and at the individual level. The transsexuals have a unique identity and historical background.

These are individuals who are trying to establish their gender identity. Complex identification issues triggered early in their life are not addressed in their critical stage of life like childhood, and adolescence, further as adults they lack of acceptance in society. They have been victims of violence of various types like verbal, physical, emotional and sexual. The perpetrators are older boys, teachers, neighbours, domestic partners, police men, strangers, sexual deviants and family members. They don’t have adequate health and social services.

In India they are recognized as Hijras who are male to female Transsexuals and Kothis the Homosexual men. Hijra is a Urdu word. Most Hijras are castrated males who dress as females. Hijras from Calcutta are classified as NakliHjras, also called mangas generally recognized as those who have not undergone castration.

Hijra Community in the Epic Ramayana and Mahabharata:

According to an incident in Ramayana written by Valmiki, Lord Rama went into exile for fourteen years. Many people of Lord Rama’s kingdom followed him out of love and respect. But when Lord Rama found out about this, he ordered all the men and women to return their homes. Lord Rama, on his way home from exile, saw that the Hijras had been sitting in that particular place for fourteen years. Pleased with the devotion of the Hijras, Lord Rama blessed them and said that they would bless people on various auspicious occasions like childbirth and marriage.

Discussion about the Hijra community can also be found in the epic Mahabharata. According to an incident in the Mahabharata, one of its characters, Arjuna, went to exile, and there he once assumed the identity of a Hijra, which is known as Brihannala. Arjuna also performed ceremonial functions with the identity of a Hijra.

Evolution of legal rights

  1. Naz foundation vs Nct of Delhi

    The delhi high court declared section 377 as direct violation of article 14, 15, 19 and 21.
    • Section 377 of Indian Penal Code ; Unnatural offences.—Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life], or with impris­onment of either description for a term which may extend to ten years, and shall also be liable to fine.

      Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
    • Delhi HC says- We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.

      By 'adult' we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act.

  2. Nalsa (national legal service authority of India) vs Union Of India

    The Supreme Court in this landmark judgement created the ‘third gender’ status for hijras or transgenders. As earlier, the transgender people were forced to describe themselves as either male or female, but after the judgement, they could proudly identify themselves as transgender.
    • The court held that the non-recognition of transgender identities was in violation of Article 14,15,16 and 21 of the Constitution of India.
    • The court directed the Government of India to treat the members of Third Gender as an economically and socially backward class.
    • The court also took cognizance that a conflict between one’s birth gender and identity is not essentially a pathological condition. So, rather than adopting a treatment of the abnormality, the focus should be on  resolving distress over a mismatch.

  3. KS Puttamswamy vs Union Of India

    The Supreme Court of India holds that the right to privacy is protected as a fundamental constitutional right under Articles 21 of the Constitution of India and as a part of the freedoms guaranteed by Part III of the Constitution.

    Also, Justice Chandrachud observed that sexual orientation also falls within the wide ambit of right to privacy.

  4. Navtej Singh Johar vs Union Of India

    On 6 September 2018, the court delivered its unanimous verdict, declaring portions of the law relating to consensual sexual acts between adults unconstitutional .The Supreme court unanimously ruled that Section 377 is unconstitutional as it infringes the fundamental rights of intimacy, autonomy and identity. and decriminalised homosexuality by reading down Section 377 to exclude consensual intercourse between adults of the same sex/gender.
    • The court rationalised that the Section 377 is vague and does not create intelligible differentia between what is natural and what is unnatural. It also curbs freedom of expressing one’s sexual identity, ie. right to freedom of expression as enshrined under Article 19 of the Indian constitution.

    • The court further opined that the sexual orientation is an inherent part of self-identity and invalidating the same is denying the right to life and the fact that they constitute a minuscule section of the population cannot be a valid justification to deny them this right.

      it also directed the government to create public awareness regarding LGBT rights and to eliminate the stigma surrounding the LGBT people. The judges further elaborated upon the issues surrounding mental health, dignity, privacy, right to self-determination and transgenders.

      Justice Indu Malhotra in her 50 pages verdict said:
      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 recognise that homosexuality is a completely natural condition, part of a range of human sexuality.

  5. The Transgender persons (protection of rights) bill 2019

    The Act was enacted with an objective to protect the rights of the Transgender Community by prohibiting discrimination against them with regards to employment, education. healthcare, access to government or private establishments. But in the name of empowering the community, the bill further exposes them to institutional oppression and dehumanises their body and identity.

But there are several contentions of the Act, these are as follows:

  1. The certification process:

    The act provides for certificate of identity to be obtained by transgender person applied to and issued by the district magistrate as a proof of identity and the act also states that a transgender person shall have a right of ‘self- perceived’ gender identity certification is mandatory then the intention of stating a ‘self- perceived’ identity defeats the intention expressed in the NALSA judgement. The act further fails to provide any appeal/review provision if the said certificate is denied to the transgender person.

  2. Penalties for violation of law:

    The act views crime against transgender persons as less violent and only grants penalty of imprisonment from six months to two year, whether its sexual assault, harassment or abuse. transgender persons face transmisogynistic violence simply for being transgender and the act is ignorant on the nature of transmisogyny.

  3. No provisions related to reservation:

    There are no provisions in the act to allow reservation for trans persons, as mandated by the NALSA judgement, where the judgement clearly laid the onus on the govt to recognize them as a socially and educationally backward class.

The act has systemically eroded their fundamental and legal rights, placing conditions on them to be placing conditions on them to be recognized as worthy of having right to identify with the gender of their choice, and views them as inferior, dehumanizing their identities by not taking transmisogynistic violence against the transgender community seriously thus denying them the protection which they are entitled to under the constitution.

Conclusion
It is submitted that although the landmark 2018 court ruling and 2014 NALSA judgment were a huge leap in the advancement of LGBT+ rights movements in India. But still, the LGBT people in India are not considered equal and don’t have the same rights as those available to a heterosexual person.

It is essential that people take note of the fact that homosexuals are not sin, they are not sick, they are not aliens, their sexual orientation is in tune with the dictate of nature. Although the Apex Court gave legal recognition to the transgender community and also considered them within the category of the other backward classes.

The legal reforms and efforts for the mainstreaming of the sexual minorities are largely inclined towards the transgender community. There are lesser no. of convictions based on consensual same-sex behaviour and the major cause of discrimination and non-acceptance of the LGBT community is ‘social inclusion’. Social inclusion of the sexual minorities cannot be achieved only with the help of law reforms but through other tools such as awareness programmes and sex education in educational institutions.

LGBTQ rights should be recognised as part of human rights. Non Recognition of same-sex marriages, not allowing adoption, guardianship, not having access to safe and LGBT+ inclusive schools, colleges and workplaces are all violative of Article 14, 15, 19, 21, 29.

If we start justifying everything on the basis of culture, society and public policy then there would have been no progressive legislation enacted in our country. It is high time the government should form new laws or amend existing laws on institution of marriage, adoption, guardianship, inheritance, employment, healthcare services etc for education, social security and health of LGBT+ people with special focus to Transgender Persons.

we should accept them as they are. they are as normal as us. We should respect there uniqueness and identity.

Written by: Hemlata Singh - Law student at University School of Law and Legal Studies.

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