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LGBTQIA+ India: Pride But With Prejudice

Written by Anannya Garg

First Year student, BBA LLB Navrachana University School of Business and Law


Source: The BMJ



Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.


Equality means more than passing laws. The struggle is really won in the hearts and minds of the community, where it really counts.” – Barbara Gittings.


The LGBTQIA+ community is an umbrella term for individuals who do not identify themselves as cisgender or heterosexual. The acronym LGBTQIA+ stands for lesbian, gay, bisexual, transgender, queer, intersex, asexual & the "+" stands for other sexual identities including pansexual and two-spirit. Court of India for the case Navtej Singh Johar & Ors. vs. Union of India thr. Secretary Ministry of Law & Justice[1], decriminalizing homosexuality by partially striking down section 377 of IPC[2]. Section 377 was introduced in 1861 during the Colonial rule of India and held sexual activities "against the order of nature" illegal. The decriminalization of section 377 instilled a sense of recognition and acceptance for the LGBTQIA+ community amongst the people at large. But the social stigma still constricts the members of the community from freely expressing their true selves.


The objective of the article is to shed some light on the struggles and prejudices faced by an adult from the LGBTQIA+ community starting with self-acceptance, followed by acceptance from their peers and family. The obstructions faced by them to marry their partners legally and their options of starting a family through adoption.


Mental Health and Social Stigma


A few studies suggest that individuals of the LGBTQIA+ community suffer from psychiatric conditions like depression, trauma, dependence, anxiety, and other psychiatric conditions- interviews, with these individuals also experiencing internalized stigma, lack of acceptance, lack of support, coercion to marry, and forceful conversion, even from their close ones.[3]

The Indian laws haven’t yet been inclusive of the members of the LGBTQIA + community to be treated equally and prevent discrimination against them.

Even the Transgender Persons (Protection of Rights) Act, 2019[4], does not lay down or suggest any forms of discrimination that an individual may face in almost all realms of their lives,from their place of education, work, or even for that matter their own homes. Also, the Act does not suggest any measures taken against a violator.[5]


Religion, Marriage, and Adoption


Hindu texts like the Vedas have suggested the existence of people identifying to be homosexual or intersex persons. Islamic texts have also been inclusive of transgender individuals. There are shreds of evidence suggesting medieval India of being accepting and open to love and genders of all forms. It was only after colonization that these ideologies were transformed and were now a part of the Indian Penal Code, which made homosexuality illegal.[6]

The judicial decisions given by the Supreme Court of India have recognized marriage to be a fundamental right and considered it as an integral part of Article 21 of the Constitution.

The granting of legal recognition and rights to the LGBTQIA+ community has been in the spotlight and a topic for debate, for it is considered to be against the religious and orthodox beliefs of the Indian society.


There were three separate petitions filed in the year 2020 before the High Court of Delhi seeking the application of the Special Marriage Act, 1954 and Foreign Marriage Act, 1969 for the members of the community regardless of their gender identities and sexual orientation. The Centre has put forth its reply stating the roles of a husband(biological man) and a wife(biological woman) together constitute as marriage and anything that doesn’t have this constitution, it is not a part of the Indian Family concept. The Centre also raises the matter of legal recognition of marriage for same-sex couples as something to be decided upon by the legislature and not by judicial decree.[7]


A total of 27 countries have legalized joint adoption for the members of the LGBTQIA+ community; these include Countries like the USA, UK, and parts of Europe. India still falls behind and hasn’t taken any significant measures to be inclusive of the joint adoption for the community members. The Central Adoption Resource (CARA) laid down guidelines for adoption which were inclusive for heterosexual couples, a single female, and a single male. Hence, individuals in same-sex relationships have had to adopt children as single parents, which disables their partners to have legal liberty over the child.[8]


Conclusion


The members of the LGBTQIA+ have been given legal recognition by striking down Section 377 of IPC which is in the right direction, but still, individuals from this community face social stigma, prejudices, and lack of acceptance from society at large . They are deprived of their basic civil rights. and privileges recognized by married couples in India. They are discriminated against the name of religion, they are sent to conversion therapy stating that it is a mental disorder, people are ignorant towards the members of the community considering it to be a “western influence”.


The youth though is comparatively more receptive and accepting of the LGBTQIA+ community. India still has a long way to go in breaking down beliefs and barriers that have been instilled in the minds of people for years. A majority of Indians still believe homosexuality to be against the Indian culture and believe that relationships/marriage are something that constitutes a biological man and biological woman. However, the old Hindu texts suggest otherwise, the shreds of evidence of LGBTQIA+ individuals though weren’t as prevalent but weren’t something that was looked down on. It was the colonial rule that classified and established using Section 377 for homosexuality to be unnatural, and this Colonial idea has been ingrained as a core part of the Indian values. Thus, making it a topic of taboo.


Law is dynamic and must change according to the needs and demands of time. To conclude, if laws are supposed to represent socially acceptable do’s and don’ts or norms, then a new mindset is the need of the hour. Progress will be laying down laws to increase acceptance and provide recognition to safeguard the interest of the members of the LGBTQIA+ community.


[1] Navtej Singh Johar & Ors. vs. Union of India thr. Secretary Ministry of Law & Justice, (2018) A.I.R. 2018 S.C. 4321 (India). [2] Diva Rai, Evolution of LGBT Rights in India and taking the narrative forward: Living free and equal, IPLEADERS, (Jun. 21, 2020),https://blog.ipleaders.in/evolution-of-lgbt-rights-in-india-and-taking-the-narrative-forward-living-free-and-equal/#Introduction. [3] Jagruti R. Wandrekar, Advaita S. Nigudkar, What Do We Know About LGBTQIA+ Mental Health in India? A Review of Research From 2009 to 2019, SAGE JOURNALS (Apr. 24, 2020), https://journals.sagepub.com/doi/full/10.1177/2631831820918129. [4] Transgender Persons (Protection of Rights) Act, 2019, No. 40, Acts of Parliament, 2019 (India) [5] Dr. Sangeetha Sriraam, The Un-right Act for the Protection of the Rights of Transgenders in India, SSRN (Jan. 10, 2020),https://ssrn.com/abstract=3590327.

[6]Aishwarya Sinha & Manasi Prabhakaran, Comparative Study of the Progression of Queer Rights in India and the UK, with Special Emphasis on Intersex People, 1 IJPSL 1305, 1310-1311 (2021). [7] Soibam Rocky Singh, Same-sex marriages will cause havoc, Centre tells Delhi High court, THE HINDU, (Feb. 25, 2021, 23:37 IST), https://www.thehindu.com/news/national/same-sex-marriages-will-cause-havoc-says-govt/article33935252.ece. [8] Dhamini Ratnam, Adoption by same-sex couples may be barred, THE MINT, (Aug. 08, 2014), https://www.livemint.com/Politics/J3opALtv29XMrLV6keC2lO/Adoption-by-samesex-couples-may-be-barred.html.


BIBLIOGRAPHY


  1. Navtej Singh Johar & Ors. vs. Union of India thr. Secretary Ministry of Law & Justice, (2018) A.I.R. 2018 S.C. 4321 (India).

  2. Diva Rai, Evolution of LGBT Rights in India and taking the narrative forward: Living free and equal, IPLEADERS, (Jun. 21, 2020),https://blog.ipleaders.in/evolution-of-lgbt-rights-in-india-and-taking-the-narrative-forward-living-free-and-equal/#Introduction.

  3. Jagruti R. Wandrekar, Advaita S. Nigudkar, What Do We Know About LGBTQIA+ Mental Health in India? A Review of Research From 2009 to 2019, SAGE JOURNALS (Apr. 24, 2020), https://journals.sagepub.com/doi/full/10.1177/2631831820918129.

  4. Transgender Persons (Protection of Rights) Act, 2019, No. 40, Acts of Parliament, 2019 (India)

  5. Dr. Sangeetha Sriraam, The Un-right Act for the Protection of the Rights of Transgenders in India, SSRN (Jan. 10, 2020),https://ssrn.com/abstract=3590327.

  6. Aishwarya Sinha & Manasi Prabhakaran, Comparative Study of the Progression of Queer Rights in India and the UK, with Special Emphasis on Intersex People, 1 IJPSL 1305, 1310-1311 (2021).

  7. Soibam Rocky Singh, Same-sex marriages will cause havoc, Centre tells Delhi High court, THE HINDU, (Feb. 25, 2021, 23:37 IST), https://www.thehindu.com/news/national/same-sex-marriages-will-cause-havoc-says-govt/article33935252.ece.

  8. Dhamini Ratnam, Adoption by same-sex couples may be barred, THE MINT, (Aug. 08, 2014), https://www.livemint.com/Politics/J3opALtv29XMrLV6keC2lO/Adoption-by-samesex-couples-may-be-barred.html.

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