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Exigency of Laws For Protection of The LGBTQ Community in India




The Transgender Persons (Protection of Rights) Bill[1] 2019 passed by the Parliament of India is an important legislation towards gender equality and the rights of LGBTQ community as it has given legal recognition to the identity of Transgender persons and conferred them the right to self-perceived gender identity. However, the bill failed to provide complete justice to them as it lacked laws for their upliftment and protection of their human rights moreover it didn’t talk about other genders of the LGBTQ community.


In India, NALSA judgement[2] was the first step towards the rights of the LGBTQ community and gender equality as it not only gave transgenders legal recognition but also laid down guidelines for improving their lives. Furthermore, this judgement widened the scope of discrimination based on sex or gender by including any exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws.[3] However, it created a big loophole in the legal system because existing laws were applied to male and female genders only. Before this judgement, a person was seen according to the gender assigned to him at birth, therefore, other genders could claim somewhat legal protection from these laws, however, as now they are perceived as a separate gender they are left with no such protection.


The decriminalising of consensual sexual conduct between adults of the same sex[4] was another landmark decision in 2018 for LGBT rights in India. As it showed the exigency of gender-neutral laws in India especially for Rape i.e. any form of non-consensual forcible penetration in any orifice of the body and hence genders other than women can also be its victim, however, they will not h any legal protection against this crime because of gender-biased law. In August 2017, a court allowed four men accused of raping a 19-year-old trans woman to let out on bail, as the sections which dealt with rape explicitly stated that a man can commit the crime of rape only against a woman and did not mention about people of other genders.[5]

In India, though the transgenders are now legally recognised as a third gender their basic human rights are still violated. According to a study by National Human Rights Commission(NHRC) in India around 92% of transgenders are deprived of the right to participate in any form of economic activity, forcing the majority of transgenders to resort to sex work and begging and those who do get jobs face a high degree of regular sexual abuse. The study also found out that only 2% transgenders live with their families and also suffer verbal and corporal abuses at the hands of their family members. Moreover, they don’t enjoy any legal right in the property as according to the Succession Act, only male and female genders are considered as legal heir.

Though the harassment they are facing is in contravention to basic principles of human rights as laid out by Indian Constitution and Universal Declaration of Human Rights still the government hasn’t provided them any specific laws for their protection in the new bill and has miserably failed to implement the Court’s guidelines laid down in NALSA judgement to improve their lives and create laws for them.

India and The Global Fights for LGBT Rights


LGBT people in India celebrated in September 2018, after a colonial-era ban on gay sex was unanimously struck down by the Supreme Court of India. It was a significant moment for LGBT rights that not only overturned a legacy of British injustice but required all the guarantees of their constitution to be extended to LGBT Indians too. It was a welcome win, but it doesn’t automatically mean that LGBT people in India are truly free or regarded as fair by their fellow citizens – and it highlights how much research needs to be done in the rest of the world to abolish antiquated and discriminatory anti-gay legislation.


It makes it illegal to be LGBT to criminalize same-sex relations. The country Uganda, still has similar laws in books to those struck down in India — and Uganda’s LGBT people continue to face persecution and discrimination. People live in fear of being harassed and prosecuted for being who they are. As the Indian Supreme Court specifically stated, criminalizing same-sex marriage carries guilt and rejection with it. LGBT individuals are slowly becoming felons and pariahs who are not apprehended.


The most remarkable part of the Indian court’s decision is that it not only used a universal human rights standard to decriminalize homosexuality; it also acknowledged the State’s responsibility to help end the stigma attached to LGBT status. The court should have gone even further and emphasized that measures should be put in place by the Indian government to allow for the reconciliation of shunned LGBT children and their parents. It will also help to end the disturbing “corrective rape” custom, where families expose their LGBT children to non-consensual sex.


India also needs to help reconcile LGBT Indians with their different religious communities; many conservative Catholic, Muslim, and Hindu politicians, frequently at loggerheads, denounced the ruling as shameful and vowed to appeal it, following the court’s decision. Such a reconciliation will correct a monumental error. It was not local religious leaders who introduced these barbaric laws to India but British colonialists. Before the British Enacted Section 377 of the Indian Penal Code in the 1860s, Hinduism, which is the dominant religion in India, was quite acceptable to LGBT men, imposing stringent punishments on those with “carnal intercourse against the order of nature.” The provision was then spread throughout the British Empire from India. It’s the reason why most former British colonies are still not only hostile to, but also actively opposed to, same-sex love, to this day. The provision was then spread throughout the British Empire from India. It’s the reason why most former British colonies are still not only hostile to, but also actively opposed to, same-sex love, to this day.


Uganda has similar legislation dating back to the colonial period — and those legislations have long been used by arbitrary arrests and unfair trials to violate the rights of LGBT people. We can’t hold public or private events and trainings without the authorities seeking to arrest us. We have been unable to stage a pride parade for the last two years; when we attempted in 2016, the Ugandan police brutally arrested us. Additionally, anti-gay laws promote gang violence, forced evictions and social isolation.


Until then, even as we celebrate the success of India, the LGBT community in Uganda will have no chance of enjoying the sweet taste of equality.[6]



Conclusion


In India the condition of other genders especially the transgenders is very saddening as they have to face social rejection, harassment and abuse on many occasions besides they are socially and educationally backward class.


Government should make provisions for their upliftment as constitution authorizes the government to make laws for any socially and educationally backward class. As law is a tool of social engineering and can enable change of beliefs hence laws should be made for their upliftment in society and for protecting their human rights, like right to life and right to equal protection before the law. Moreover, Gender-neutral laws should be introduced for protecting them against sexual offences like assault, harassment and rape i.e. offences affecting more than one gender.


[1] Transgender Persons (Protection of Rights) Bill 2019 Passed by Parliament, https://pib.gov.in/newsite/PrintRelease.aspx?relid=195089 (last visited May 13, 2020).

[2] National Legal Ser.Auth vs Union Of India & Ors on 15 April, 2014, https://indiankanoon.org/doc/193543132/ (last visited May 13, 2020).

[3] Constitutional Law Prof Blog, https://lawprofessors.typepad.com/conlaw/sexual_orientation/page/4/ (last visited May 13th, 2020).

[4] Navtej Singh Johar vs UOI Ministry of Law and… on 6th September, 2018, https://indiankanoon.org/doc/168671544/ (last visited May 13, 2020).

[5] ‘Equal to killing us’: Why India’s transgender community is rejecting the Trans Bill, The News Minute (2018), https://www.thenewsminute.com/article/equal-killing-us-why-indias-transgender-community-rejecting-trans-bill-93579 (last visited May 13, 2020).

[6] Frank Mugisha, India and the Global Fight for LGBT Rights Foreign Policy (2019), https://foreignpolicy.com/gt-essay/india-and-the-global-fight-for-lgbt-rights/ (last visited May 14, 2020).


Author Details: Ayush Garg (Gujarat National Law University)

The views of the author are personal only. (if any)


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