LGBTQ is the initial of Lesbian Gay Bisexual Transgender Queer and they are the
people who do not relate their gender from their biological gender and end up
being a cliché. LGBTQ Community has existed in our society since the very
beginning. During early times, homosexual sex was considered revolting
society did not accept transgenders the way they were. The Britishers criticized
them and withdrew their civil rights and enforced an act against the
transgenders and called them a tribe
But during the Mughal period, the transgenders were given utmost respect and
were also included in the decision-making of the empire. Many problems are faced
by this community like discrimination, unemployment, depression, etc. Families
do not support their children once they start behaving like transgenders.
They were denied identification cards and were also denied to choose the gender
of their choice. Various reforms need to be enforced to improve the condition of
the LGBTQ Community in society. The Constitution of India provides various
provisions to prevent gender-based discrimination. Various provisions of the
Universal Declaration of Human Rights and International Covenant on Civil and
Political Rights is also considered to prevent any discrimination against the
While Decriminalizing Section 377 of the Indian Penal Code, the
court has directed the Centre and the State Governments to acknowledge legal
recognition of gender identity whether they are a male, female or third gender.
Protecting the rights of the community is not only the duty of the nation but
the citizens also.
LGBTQ is a phrase
that stands for Lesbian, gay, bisexual, transgender, and
queer. The transgenders are usually addressed by their chosen gender like
she/her/hers for a man turned into a woman and he/him/his for woman turned into
a man and those who do not wish to disclose their genders are addressed as XE / XEM / XYR
which is pronounced as kse, ksem/ ksire
. They are united by a common culture and
The most open-minded
community of people generally celebrates pride,
diversity, and sexuality. June is called the Pride Month in which people form
rallies to educate others on the impact of the LGBTQ Community in the world.
June is selected as the pride month to pay tribute to Stonewall riots, which
occurred at the end of June 1969. On 2nd July 1999, the first pride parade of
the country took place in Kolkata. Since then, pride parade is held in more than
21 Indian states at the present. Indian cities' pride parade is held according
to their interests. In New Delhi, the pride parade is held on the last Sunday of
The people of this community are those individuals who do not relate to their
gender from their biological gender and this is the reason why they are
different from men and women. Transgender does not include sexual orientation
but it is more of a clinical term. Thus, the LGBTQ community includes those
individuals whose identity and behavior do not cling to the stereotypical gender
LGBTQ community is in existence since the beginning of mankind and is very much
a part of our society. As part of our society, they can also enjoy the
fundamental rights that our constitution offers. The basic idea of establishing
fundamental rights is that every person has a basic right (also known as human
rights or natural rights or birthrights) which gives them a right to be treated
with dignity & honor and equally.
Anything that infringes this dignity & honor precedes the way for
discrimination and violates the law. Section 377 of the IPC 1860 was articulated
unconstitutional as The sexual orientation of an individual is natural and
discrimination on this basis is a violation of freedom of expression which is
mentioned in Article 19(a) of the Constitution of India.
Dating back to the 1800s, Thomas Macaulay, the drafter of the Indian Penal Code
stated homosexual sex as odious and revolting. Many courts in India, for a
hundred years, gave despicable names to the LGBTQ community and did not accept
them the way they were. They were rather prosecuted for their acts. LGBTQ
community has been a part of Indian society for centuries now. In the beginning
writings of ancient India, the third sex
has a shred of historical evidence
During the Mughal period, the transgenders (also known as the hijras)
were considered trustworthy, loyal, and intelligent and played a pivotal role in
the politics of building the empire. During the second half of the 19th century,
when colonial rule was in play, the transgender community was criminalized and
their civil rights were also withdrawn by the Britishers. The Europeans, when
they came to India, were disgusted by the fact that transgenders here are
regarded in the royal courts.
They were considered as a different tribe and so
in 1871, The Criminal Tribes Act came into a force whose purpose was to vanquish
hereditary criminals. Around 200 tribes were affected by the enforcement of this
Act. The Act was repealed in the year 1952, post-independence. Transgenders were
ill-famed after the colonization because they have been indulged in the
kidnapping and sterilizing of children and begged on the streets and dressed
Problems Faced By Transgender:
The main problems faced by the transgender community includes discrimination,
unemployment, lack of educational facilities, homelessness, lack of healthcare
facilities: like HIV care and hygiene, hormone pill abuse, and alcohol abuse,
penectomy, and problems related to marriage and adoption.
In 1994, although the transgenders were given voting rights, the task of
issuing voter identity cards to them got caught up in the gender question.
Several of them were denied cards after they specified their gender category.
The other fields where this community feels abandoned involve inheritance of
property or the adoption of a child. They are often pushed to the ambit as a
pariah and many may end up beseeching and tripping. This spell out human
trafficking. Sometimes after running out of all the alternatives to feed
themselves, they even engage themselves as sex workers for survival.
Transgenders are provided with limited employment opportunities. They barely
have any access to bathrooms/toilets and public spaces. The lack of access to
bathrooms and public spaces access is exemplifying the discrimination faced by
transgenders in availing each facility. They face corresponding issues in
prisons, hospitals, and schools.
Most families do not accept if their male child starts behaving in ways that
are considered feminine or inappropriate to the expected gender role.
Consequently, family members may threaten, scold, or even assault their
son/sibling from behaving or dressing up like a girl or woman. Some parents may
outright disown and evict their child for crossing the prescribed gender norms
of society and for not fulfilling the roles expected from a male child.
Parents may provide several reasons for doing so: bringing disgrace and shame to
the family; diminished chances of their child getting married to a woman in the
future and thus end of their generation (if they have only one male child); and
perceived inability on the part of their child to take care of the family. Thus,
later transgender women may find it difficult even to claim their share of the
property or inherit what would be lawfully theirs. Sometimes, the child or
teenager may decide to run away from the family not able to tolerate the
discrimination or not wanting to bring shame to one's family. Some of them may
eventually find their way to Hijra communities.
This means many Hijras are not educated or uneducated and consequently find it
difficult to get jobs. Moreover, it is hard to find people who employ Hijras/TG
people. Some members of society ridicule gender-variant people for being
'different' and they may even be hostile. Even from police, they face physical
and verbal abuse, forced sex, extortion of money and materials; and arrests on
false allegations. The absence of protection from police means ruffians find
Hijras/TG people as easy targets for extorting money and as sexual objects.
A 2007 study documented that in the past one year, the percentage of those MSM
and Hijras who reported: forced sex is 46%; physical abuse is 44%; verbal abuse
is 56%; blackmail for money is 31%, and the threat to life is 24%.
Hijras face discrimination even in healthcare facilities. Types of
discrimination reported by Hijras/Transgender communities in the healthcare
facilities comprise of intended use of male pronouns, enlisting them as 'males'
and admitting them in male wards, embarrassment faced in having to stand in the
male row, verbal harassment by the hospital staff and patients, and absence of
such healthcare providers who are sensitive to and trained on providing
treatment/care to transgender people and even denial of medical services.
Discrimination could be due to transgender status, sex work status or HIV status
or a combination of these.
Social welfare departments issue a diversification of their schemes for
socially and poor groups. However, so far, no scheme is available for Hijras
except for some golden cases where land was provided for of Aravanis in Tamil
Nadu. Lately, the state government of Andhra Pradesh has instructed the
Department of Minority Welfare to take into consideration 'Hijras' as a minority
and extend welfare schemes for them.
Rigorous and hefty procedures and requirements of address proof, identity proof,
and income certificate frustrate people, including those deserving of using
available schemes. Also, most Hijras/Transgender communities are unaware of the
social welfare schemes available for them. The Social Welfare Department in
Tamil Nadu has established the 'Aravanigal/Transgender Women Welfare Board' to
address the social welfare issues of its transgender population, being the first
state to take such action.
But now the time has changed and so is the status of the LGBTQ Community. They
are now happily accepted by society for who they are. The Transgender Person
(Protection of Rights) Act, 2019 came into force on 5th December 2019 to protect
the rights and welfare of transgender persons. This Act lays down a clear
distinction between identity-based recognition rights and the medical procedures
some transgender persons might want. The interests of transgender people are
promoted and they are given employment opportunities with Mahatma Gandhi
National Rural Employment Government Act (MGNREGA). Certain welfare policies
were also introduced keeping in mind the status of the LGBTQ Community in the
country such as Census, issuing of the citizenship ID Cards, issuing passports,
social-economic development, and constitutional safeguards.
Transgender people are individuals of any age or sex whose appearance, personal
characteristics or behaviors differ from stereotypes about how men and women are
‘supposed to be. Transgender people have existed in every culture, race, and
class since the story of human life has been recorded.
The contemporary term ‘transgender’ arose in the mid-1990s from the grassroots
community of gender-different people. In contemporary usage, transgender has
become an ‘umbrella’ term that is used to describe a wide range of identities
and experiences, including but not limited to transsexual people; male and
female cross-dressers (sometimes referred to as ‘transvestites,’ ‘drag queens’
or ‘drag kings’); inter-sexed individuals; and men and women, regardless of
sexual orientation, whose appearance or characteristics are perceived to be
gender atypical. In its broadest sense, transgender encompasses anyone whose
identity or behavior falls outside of stereotypical gender norms.
That includes people who do not self-identify as transgender, but who are
perceived as such by others and thus are subject to the same social oppressions
and physical violence as those who identify with any of these categories. Other
current synonyms for transgender include ‘gender variant,’ ‘gender different,’
and ‘gender non-conforming.’
In India, there is a host of socio-cultural groups of transgender people like
hijras/ kinnars, and other transgender identities like – Shiv-Shaktis, Jogtas,
Jogappas, Aradhis, Sakhi, etc. However, these socio-cultural groups are not the
only transgender people, but there may be those who do not belong to any of the
groups but are transgender persons individually.
Reforms Needed To Improve The Situation
- Every person must have the right to decide their gender expression and
identity, including transsexuals, transgenders, transvestites, and hijras.
They should also have the right to freely express their gender identity.
This includes the demand for hijras to be considered female as well as a
- There should be special legal protection against this form of
discrimination inflicted by both state and civil society which is very akin
to the offense of practicing untouchability.
- The Immoral Trafficking Prevention Act, 1956, as has been pointed out
earlier, is used less for preventing trafficking than for intimidating those
who are the most vulnerable i.e., the individual sex worker as opposed to
brothel keepers or pimps. This law needs to be reformed with a clear
understanding of how the the state is to deal with those engaged in sex
- Civil rights under the law such as the right to get a passport, ration
card, make a will, inherit property, and adopt children must be available to
all regardless of the change in gender/sex identities.
- The police administration should appoint a standing committee comprising
Station House Officers and human rights and social activists to promptly
investigate reports of gross abuses by the police against Kothi’s and hijras in
public areas and police stations, and the guilty policeman be immediately
- The police administration should adopt transparency in their dealings
with hijras and kothis; make available all information relating to procedures and
penalties used in detaining kothis and hijras in public places.
- Protection and safety should be ensured for hijras and kothis to prevent
rape in police custody and jail. Hijras should not be sent into male cells with
other men to prevent harassment, abuse, and rape.
- The police at all levels should undergo sensitization workshops by human
rights groups/queer groups to break down their social prejudices and to
train them to accord hijras and kothis the same courteous and humane treatment as they
should towards the general public.
- An the extensive sex-education program should be introduced as part of
the school curriculum that modifies the heterosexist biases in education and
provides judgment-free information and fosters a liberal outlook about
matters involving sexuality which includes orientation, identity, and
behavior of all sexualities. Vocational training centers must be entrenched
for providing the transgenders with new occupational opportunities.
- The Press Council of India and other ombudsman institutions of various
popular media (including film, video, and TV) must issue guidelines to
ensure sensitive and respectful treatment of these issues.
There are various provisions mentioned in The Constitution of India which
prevents discrimination on various grounds and persons. Article 14 provides the
Right to Equality and states that every person has a right to equality
irrespective of their nationality. Article 15 mentions the prohibition of
discrimination on the grounds of religion, race, caste, sex, or place of birth.
Article 19(a) bestows freedom of speech and expression to its citizens.
It means every citizen has a right to express their views and opinions without
any fear. Article 21 of the Constitution mentions the Right to Life and Personal
Liberty. This Article allows every citizen to live the life of his dreams
without any intervention from any person. Right to Life does not include a
mere human existence but a life of honor and dignity. The judges said that the
right to vote, right to own property, right to marry, and right to claim a
formal identity would be now more meaningfully available to LGBTQ Community.
Various provisions of the International Law promote basic human rights to all
the people of the world. Article 6 mentioned in the Universal Declaration of
Human Rights (UDHR) speaks that everyone has a right to be accepted as a person
universally, and Article 16 of the International Covenant on Civil and Political
Rights (ICCPR) speaks about the right to be recognized as a person before the
This law states that every person has a right to get recognition from the court,
as a human being/person. It allows everyone to get recognition irrespective of
their gender, nationality, caste, religion. In 2016, the UNHRC passed a
resolution to appoint an Independent Expert to find the reasons behind the
discrimination against people due to their gender or sexual orientation and then
discuss with the government how to protect those people from that
The Supreme Court Judgment On Transgender Rights:
This judgment comprises of people who want to identify with the third gender as
well as persons who want to switch from one identity (gender) to another. The
Court has directed the Centre and State Governments to grant legal recognition
of gender identity whether they are a male, female or third gender.
The main points include:
- Legal Recognition for the Third Gender:
In recognizing the third category,
the The court ruled out that fundamental rights will be available to the third
gender in the same way, as they are to any other male and female persons.
Additionally, non-recognition of the third gender in both criminal and civil
statutes such as those relating to marriage, adoption, divorce, etc. is unjust
to the transgenders.
- Legal Recognition for people transitioning within male/female binary:
how the actual procedure of recognition will happen, the Court merely states
that they prefer to follow the psyche of the person and use the ‘Psychological
Test’ as opposed to the ‘Biological Test’. They also declare that insisting on
Sex Reassignment Surgery (SRS) as a condition for changing one’s gender is
- Public Health and Sanitation:
Centre and State Governments have been directed
to take proper measures to provide medical care to Transgender people in the
hospitals and also provide them separate public toilets and other facilities.
- Socio-Economic Rights:
Centre and State Governments have been asked to
provide the community with various social welfare schemes and to treat the
community as socially and economically backward class.
- Stigma and Public Awareness:
These are the broadest directions – Centre and
state governments are asked to take steps to create public awareness so that
Transgender people will feel that they are also part and parcel of the social
life and not be treated as untouchables; take measures to regain their respect
and place in society.
- Challenging S.377:
The judgment contradicts the findings of the Supreme Court
in Suresh Kumar Koushal in various ways.
- The judgment notes that Section 377, though associated with specific
sexual acts, highlighted certain identities, including Hijras. It also
recognizes that Sec 377 of the Indian Penal Code, 1860 has been used as a tool
for harassing and physically abusing the Hijras and transgender community. The
judgment only expresses that this amounts to a misuse of the Section as opposed
to what it dictates, thus refusing to meaningfully apply a fundamental rights
analysis to it. Now we have a contradictory finding.
- It argues against Koushal’s infamous ‘minuscule minority’ argument
considering that Transgenders, even though insignificant in numbers, are still
human beings and therefore have every right to enjoy human rights.
The Government of India should eliminate the blot, discrimination, human rights
violation and provide their full support to the LGBTQ community. The members of
this community are the citizens of the country and should be treated equally as
others. The Government has taken the requisite measures and now it’s time for
the citizens of the country to support the LGBTQ Community. If all the citizens
of the country stand united in support of the community, then it would enlarge
the growth of the LGBTQ Community in the country.
Each person in this Universe is unique in its own way and is an integral
part of our society. It would, thus, be erroneous to judge and discriminate
against people who may be contrasting to the stereotype. It is high time and
people must understand that every individual of India has been provided with
equal rights and opportunities, and follow the policy of live and let live.
transgender community was given top position in the building of the empire
during Mughal times they faced many problems during the British colonial period.
But now to ensure the safety of the LGBTQ Community in the country, the
Government of India has taken an opportunity and introduced various welfare
policies and schemes keeping in mind the status of LGBTQ communities in the
country. These include census, issuing of the citizenship ID Cards, issuing
passports, social-economic development, constitutional safeguards, housing,
legal measures, police reforms to prevent the violation of human rights of the
LGBTQ Community and institutional mechanisms to address the concerns of
- Sqn.Ldr. (Retd). Navtej Singh vs Union Of India, Civil Appeal D.No.41636
- Suresh Kumar Koushal vs. Naz Foundation
- Sqn.Ldr. (Retd). Navtej Singh vs Union Of India, Civil Appeal D.No.41636