Recent times have seen rising concerns regarding the equality and rights of the communities whose sexual orientation does not fall into the conventional definition of sex. Gender being an exclusively biological term divides humans into two genders, broadly male or female. However, in the landmark judgement of NALSA v. Union of India, the supreme court recognized the third gender too. The only limitation to it is that it merely included transgender people under the said category. The major issue lies in defining these two very broad terms i.e., sex and gender. Where gender is a completely biological term, sexual preference is a pretty diverse area to be just constituted under one umbrella tag of the third gender. The sexual preference of a person can be purely independent of his biology as it is more psychological than biological. The lack of definition and inclusiveness of these sexes is one of the major reasons which has resulted in prevalent inequalities and social hatred against these communities.
EVOLUTION AND HISTORY
Indian scriptures and credible sources and biographies show evidence of India being culturally and social tolerable towards LGBTQI+ communities. The mythological and political texts show that from time to time these communities and queer attractions have manifested themselves in our society and have been accepted. For example, Babur’s biography ‘Baburnama’ gives evidence of him being sexually attracted to a male. However, it was only after the colonization and creation of Portuguese and British colonies in India that ‘homosexuality’ or ‘homosexual conduct’ was criminalized by the introduction of section 377 in the Indian penal code in 1861. It was majorly done in line with the Christian beliefs which considered homosexuality as incest. Since then, these communities have faced discrimination in social as well as legal terms. The long fight for the decriminalization of section 377 even after the independence explains the plight of these communities and highlights the major concern and question, finding the answer to which is the need of the hour: are we providing these communities with the equality that our founding fathers visualized for all? Or is it just a long-lost dream for these communities?
LGBTQI+ COMMUNITIES AND THE CURRENT SCENARIO OF THEIR RIGHTS
On September 6, 2018, when the honourable Supreme Court of India decriminalized homosexuality in its landmark judgment of Navtej Singh Johar & Ors v. Union of India stating that it was discriminatory and undermined the equality of homosexual people, it created a more open and safer environment for further deliberation and discussion regarding the rights of these communities which till now had been looming into the fringes and shadows of the mainstream society. Though two years since that judgement has been passed, we witness that there has not been much change regarding their status in society except for the fact that they can indulge in sexual activity without being prosecuted for it. Though the judgment pave way for equality, we can still see people of LGBTQI+ communities being discriminated against at workplaces. Though promulgation of the Transgender act prohibits employment discrimination against these communities, it does not outline any penalty for non-compliance with these labour laws which more or less makes these provisions toothless and less efficient and also contradicts the maxi of ‘ubi jus ibiremedium’ which translates to, “where there is right there is a remedy”. Lack of formulation of proper guidelines unlike in the case of Vishaka v. State of Rajasthan facilitates and aggravates their job insecurity as the data shows, of many being fired homosexuals, form a considerable number, in many cases their sexuality being the major reason for it. Although article 16 United Nations’ Universal Declaration of Human Rights identifies the right of males and females of full age to have the right to marry, the Supreme court of India from time to time has interpreted the wide ambit of Article 21 of the Indian constitution as inclusive of marital and adoption rights, yet equality of LGBTQI+ communities in these spheres seem far from attained and practised. Even though the sexual involvement of these communities is now being seen as rightful and legal, they do not have access to equal marital rights as straight individuals which in the first place makes them stand at a lower pedestal in terms of so-called ‘equal rights for all. The second and even more debatable right that they are denied is the right to make and live in a family and continue their lineage. Despite being recognized as the third gender they are denied the right to parenthood and adoption. Although the Supreme Court in past judgements has interpreted the scope of article 21 of the constitution – the right to personal life and liberty- to include the right to motherhood and the right to reproductive autonomy, this does not seem to apply to same-sex equality.
Even though our society has been evolving and being more tolerant and accepting of the idea of LGBTQI+ communities being integrated into mainstream society, even more, there has been limited growth in their social and equality status. Many rights are still denied to them just based on their sexual preferences. Be it the public sphere such as employment or private aspect of their lives such as marriage or adoption, we witness inequality in the amount of freedom and ease with which they can practice their rights. The state has been working hard enough to provide integrate them into the social fabric, however, it can only be possible through a grant of more holistically equal rights and recognizing and entrusting them with legal identities as that of a “socially normal” male or female. Formulation of defined guidelines and strict legal action against non-compliance with the same can ensure a certain level of economic and societal security for these communities. Also, as the constitution of India grants, the applicability of personal rights and the right to parenthood should be granted based on factors like economic capability etc. rather than their sexual orientation. If we are to create a sustainable society where every citizen is a stakeholder, our first and foremost aim should be that of integrating people belonging to societal fringes into the fabric of the society and granting them equal rights will be the first toward the miles-long journey which lay ahead of us, which’s idea has been set and outlined by the United Nations 17 SDGs. Granting equal rights to LGBTQI+ communities will help us to work together in creating a safer environment for all the citizens and reduce the inequality which plagues us right now. It is high time that we address the idea and accepts the fact that social integration will only follow if we will provide legal protection to disadvantaged groups. Hence, if we wish to see our posterity flourish then we should indeed start pondering over the idea of greater and more equitable rights for these communities more critically now.
Author(s) Name: Rakshita Singh (Institute of Law, Nirma University)
NALSA v. Union of India a Writ Petition (civil) No. 604
§377, Indian Penal Code 1861
Navtej Singh Johar v. Union of India  10 SCC 1
The Transgender Persons (Protection of Rights) Act 2019
Vishaka and Ors. v. State of Rajasthan and Ors  SC 3011
Constitution of India, art. 21