LGBTQ ( lesbian, gay, bisexual, transgender, queer)
It is derived from the name of the Greek island Lesbos. It means a homosexual
woman, having same sex attraction.
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.
These people have a gender identity or gender expression that differs from the
sex that they were assigned at birth.
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
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
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
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
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
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
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.
Nalsa (national legal service authority of India) vs Union Of IndiaThe 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.
KS Puttamswamy vs Union Of IndiaThe 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.
Navtej Singh Johar vs Union Of IndiaOn 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.
The Transgender persons (protection of rights) bill 2019The 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:
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
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.
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
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.
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
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