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Towrads Equality from declassification to decriminalization, LGBT

This article aims to throw light upon the prevailing discrimination against the people belonging to a lesbian, gay, bisexual, transgender or a queer community and mind set of the society perceived from the pre-colonial period onwards which needs to be liberated so as to have progressive laws for a better India.

Towards Equality-from declassification to decriminalization, LGBT

This article aims to throw light upon the prevailing discrimination against the people belonging to a lesbian, gay, bisexual, transgender or a queer community and mind set of the society perceived from the pre-colonial period onwards which needs to be liberated so as to have progressive laws for a better India. It also deals how the perceived outlook of a society make the law discriminatory against this community by taking away the fundamental rights of an individual with respective to their sexual preference or orientation which is solely their personal right by virtue of article 21 of the constitution. The article also throws light upon the current ruling and reasons to repeal Section 377 of the Indian Penal Code, 1860 which is dubious to the interest of this community.

"WE, THE PEOPLE of INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY, of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
-Preamble to the Constitution of India

Towards Equality-

From Declassification to Decriminalization of LGBT Rights.

1. Introduction
Transgender people are defined according to their gender identity and presentation. This group encompasses individuals whose gender identity differs from the sex originally assigned to them by birth or whose gender expression varies significantly from what is traditionally imputed within or typical for that sex i.e., people identified as male at birth who subsequently identify as female, and people identified as female at birth who later identify themselves as male, as well as other individuals who vary from the traditional cultural conceptualizations of gender in terms of the male and female dichotomy. The transgender population is diverse in gender identity, expression, and sexual orientation. These people can be heterosexual, homosexual, or bisexual in their sexual orientation. Some lesbians, gay men, and bisexuals are transgender; most are not. Male-to-female transgender people are known as MtF, transgender females, or trans women, while female-to-male transgender people are known as FTM, transgender males, or transmen. Some transgender people do not fit into either of these binary categories, there are health differences between transgender and non-transgender people, as well as between transgender females and transgender males. There is no shame in being a gay, lesbian, bisexual or a transgender, but a homophobe or a transphobe. Just because heterosexuality is common does not make it a custom or, a rule embedded in law which homosexuals do violate. India does not give them a right to get married or engage in sexual activities in inclination to their sexual orientation as Section 377 criminalizes homosexuality. Their rights like an ordinary citizen should be sacred as they are at the end of the day, citizens of the country and humans of the same planet. Therefore such provisions which violate their fundamental rights and abuse their dignity, liberty and freedom should be abolished.

2. Concept of LGBT

LGBT an initialism that stands for Lesbian, Gay, Bisexual and Transgender is intended to emphasize a diversity of sexuality and gender identity-based cultures or encompass the spectrums of sexuality and gender. They are defined according to their sexual orientation, which is archetypically conceptualized in phrase of sexual attraction, unwonted behavior, distinct identity, or a combination of these dimensions. They share the fact that their sexual orientation is not exclusively heterosexual. Yet this queer of "non-heterosexuals" includes men and women; homosexual and bisexual individuals; people who label themselves as gay, lesbian, or bisexual, among other terms; and people who do not adopt such labels but nevertheless experience same-sex attraction or engage in ‘same-sex’ sexual behavior. The community encapsulated by the acronym LGBT, highlights various populations represented by "L," "G," "B," and "T" as distinct groups each with its own sphere with respect to race, ethnicity, socioeconomic status, geographic location, and age. The transgender population is diverse in gender identity, expression, and sexual orientation. Transgender people can be heterosexual, homosexual, or bisexual in their sexual orientation. Some lesbians, gay men, and bisexuals are transgender; most are not. To understand the very nature of the clan we need to understand their proclivities.

Transgender: It means someone whose gender differs from the one they were born with. Transgender people may identify as male or female or neither of the label fits to them. These people’s internal feelings and labels may be male, female or transgender.

Sexual orientation: this term used to describe patterns of emotional, romantic, and sexual attraction and sense of personal and social identity based on those attractions. Sexual orientation exists with exclusive attraction to the opposite or the same sex. When a person’s sexual and emotional attraction is towards the people of the same gender, it is called homosexual orientation and if attraction is towards the opposite sex it is called heterosexual orientation and if the attraction is towards both the gender it is called bisexual orientation of people.

Gender identity: refers to a person’s articulation of self-expression in relation to the social constructions of masculinity or femininity (gender). A person may have a male or female gender identity, with the physiological characteristics of the opposite sex.

Sexual identity is used to refer to sexual orientation and/or gender identity.

3. History of Discrimination Against Transgenders

Discrimination against an individual on the basis of sexual orientation is deeply offensive to his and self-worth.We do not live in an idealized world, nay the one which is schizophrenic at one end and at the same time civilized at another. Although sexual minorities have always existed in India sometimes in various forms like culturally sanctioned (such as the hijra) and at other times in invisibility and silence, their issues have never seriously been articulated. The references of homosexuality can be traced back to the pre-colonial period where it was treated as heinous offence and punishment for such offence duly prescribed. The Indian culture is a mixture of sects, cults and doctrines which have a profound effect on the traditions followed by our society. In spite of the diversity that our culture articulates, there are few aspects of it which do really not rely in some ways or the other on the authority of Indian Religious Literature- the Vedas, Epics, Parganas, Purans, etc. In the Manusmriti Lesbianism (Trithya prakriti-non normative) was treated as serious offence and more serious punishment was there. In Islamic period, the Muslim Shariat law treats homosexual conduct as a serious offence. Therefore in different religion different punishments were provided to homosexual offences in India. Codification of laws started during British period first enactment took place for uniform criminal laws in India in 1860. Under the Indian Penal Code uniform prescription of homosexual behavior in the form of unnatural offences its nature and punishment has been prescribed.

Before 19th century these issues were only limited to the society but in 19th century the rights of LGBT minorities raised their issues relating to violation of their human rights. These serious issues came forward through various civil society organizations in India, like the first gay magazine Bombay Dost[1]in the late 1980’s and the starting of a lesbian collective in Delhi called Sakhiyani[2], lesbian, gay and bisexual issues were first articulated in a public forum. Since this Magazine LGBT minority movement has been increased in India. It is only in the final decade of the 20th century that the gay/ lesbian/ bisexual/ transgender movement brought to the fore the rights of those discriminated against because of their sexuality.

In the mid 1990’s, the Human Rights Committee held that the anti sodomy law violated the right to privacy and the right to non-discrimination guaranteed to all persons under the International Covenant on Civil and Political Rights. In Scandinavia, the provision of equal rights for sexuality minorities, including marriage rights, was an important. The other major development has been the South African Constitution, which for the first time expressly prohibited discrimination on grounds of sexual orientation. But while the scope of human rights has been extended to include hitherto marginalized communities at the global level, a similar movement is yet to take place in India.

3.1 Present Scenario
In short lesbians, gay men, bisexual individuals, and transgender people have not been understood and accepted as part of the normal spectrum of the human condition. Instead, they have been stereotyped as deviants. They have been suffering from marginalized social status relative to society's cultural norm of the exclusively heterosexual individual who conforms to traditional gender roles and expectations, by and large these groups share the common status of "other" because of their members' departures from heterosexuality and gender norms. Their "otherness" is the basis for stigma and its attendant prejudice, discrimination, and violence, which underlie society's general lack of attention to their health needs and many of the health disparities discussed in this report. For some, this "otherness" may be complicated by additional dimensions of inequality such as race, ethnicity, and socioeconomic status, resulting in stigma at multiple levels. In this world, a host of issues would threaten the health of LGBT individuals: major chronic and communicable diseases; mental disorders; environmental hazards; the threat of violence and terrorism; and the many other factors that jeopardize human "physical, mental and social well-being."[3]

3.1.1 Discrimination on the ground of sex
The fundamental right under the Constitution of India prohibits discrimination on the ground of sex. Therefore it is violation of fundamental rights of LGBT Minority people as under.
·Lack of educational facilities.
·Right to life and personal liberty[4]
·Right to live with family[5]
·Right to livelihood[6]
·Right to speech and expression[7]
·Right to profession and business[8]
·Equal pay for equal work[9]
·Freedom of Religion[10]
·Right to live with human dignity[11]
·Right to equality[12]

3.2 Legal discrimination against sexual minorities in India
Legal discrimination against sexuality minorities operates through the criminal and civil law systems. The regime of discrimination can be analyzed under the following heads:

3.2.1 Prevention of unnatural offences under Indian Penal Code-Legal Discrimination against the sexuality minorities takes many forms, the most notorious being Section 377 of the Indian Penal Code (IPC), a British colonial legislation criminalizing homosexual behavior, that continues to be in the Indian statute book although it has long since been removed from the British statute book. This section says that, "Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished with imprisonment of either description for a term which may extend to 10 years and also be liable to fine." The unnatural offences under IPC are sodomy or bestiality. The parties involved in this offence active and passive both are liable for punishment as per the above section. Therefore e this section clearly shows that sodomy is prohibited in India.

3.2.2 Right to privacy of LGBT minority People-The right to life and personal liberty includes right to privacy. The Constitution of India does not directly provide the right to privacy as a part of the fundamental right but it has been emphasized time to time by the Supreme Court in in some cases therefore it is considered as a part of fundamentals rights. Hence right to privacy should not be violated by the state under any circumstances.
Issues of LGBT minority Communities in India within the Scope of the Section 377 of IPC is Ambiguous- Under section 377 of IPC scope of unnatural offences is an ambiguous because there is no clear distinction between consenting and coercive sex, against the order of nature etc.[13]

3.3 Consequence of Discrimination
Family issues Lack of communication and misunderstanding between parents and their LGBT children increases family conflict. These problems with communication and lack of understanding about sexual orientation and gender identity can lead to fighting and family disruption that can result in an LGBT adolescent being removed from or forced out of the home. Due to loneliness LGBT people becomes drug addict and turn toward alcohol, tobacco and other drugs than the general population. These LGBT minority people become victims of violence and crime. However, LGBT individuals ‘experiences of violence and discrimination differ depending on a number of factors including race, gender, income, immigration, status and language barriers. LGBT immigrants are more likely to face violence based on race and ethnicity and/or sexual identity and/or gender identity. In Muslim Countries, homosexuality is heinous crime and for it fine, imprisonment and capital punishment has been imposed on LGBT minority people.[14]

Discrimination at workplace-Discrimination of LGBT persons at workplace is a significant factor in the differences in socioeconomic status for LGBT persons. Gay and transgender individuals suffer from socioeconomic inequalities in large part due to discrimination in the workplace. Discrimination directly causes on their job, stability and it result in unemployment and poverty.

Injustice on LGBT minority

Human rights and fundamental rights are applicable to all persons but state has failed to create special legislation which protects rights of LGBT minority community and to provide real justice to them. They are also human being and such treatment should be provided by the state to these people. In many instances LGBT individuals are not legally protected from abusive and discriminatory actions.

Following are recommendations
The State has to protect their fundamental rights without any discrimination and for that special laws should be enacted and they shall be provided with the opportunities in social and economic activities. There is a need to protect human rights, need to take preventive measures in family, public and prevent domestic violence. Government should take initiatives to support employers in making workplace and the culture more supportive and inclusive of LGBT people. Also there is a need to change social attitude toward LGBT Minority people. Free health facilities should be provided by the states to them. Need to propagate their rights.

4. Need To Decriminalize LGBT

Constitutional dimensions of importance are ingrained in the challenge against Section 377, which criminalizes homosexuality. Homosexuality is a person’s preference and not a malady or a disorder. Just because heterosexuality is common does not make it a custom or, a rule embedded in law which homosexuals do violate. There is no shame in being a gay, lesbian, bisexual or a transgender, but a homophobe, a transphobe or a bigot[15]. People have gone out to explore other worlds and civilizations without having being explored their own labyrinth of dark passages and secret chambers and finding what lies behind the doorways that he himself has sealed. We engross ourselves in a religion which was blindly bred up by our forefathers and condemn everything beside it as erroneous.People often term homosexuality as against their religious scriptures and as a sin but the religious orthodoxies fail to see that there is consent involved. Raping is a sin as the perpetrator does not take the consent of the victim before raping. Homosexuality is not a sin as there are two adults engaging in sexual activities with each other’s consent. How and why should anybody be punished for something they are born with? It is not a choice, it is innate. Why should a human be stripped of his/her rights?

Legal aspects
Section 377 reads as follow-
"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."[16]

For the purpose of this section, penetration is sufficient to constitute carnal intercourse. The section also has various implications for heterosexuals. It can be divided into following three parts-
1.Criminalises homosexuality;
2.Criminalises certain acts between heterosexuals.
3.Criminalises sexual activities between humans and animals.

According to the meaning of the section if a man and a woman engage in sexual activities which are against the order of nature they will be punished with imprisonment for life and/or fines. This means that anal sex and oral sex are against the order of nature as they do not contribute to the process of reproduction (mere penetration amounts to carnal intercourse). However, a lot of people engage in anal and oral sex within the four walls of their homes and yet they go unpunished. No case for the same so far has been registered against any heterosexual for engaging in sexual activities against the order of nature.Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the mainstream. Yet in a greatest democracy their rights are as sacred as those conferred on other citizens. The rights of LGBT community are not a charity. Their rights are not trivial but are real rights founded on sound constitutional doctrine. They are adjunct to their fundamental right to life and dwell in privacy and dignity. Their harnessed suburbs should permeate the essence of liberty and freedom.

"Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution," Justice Dhananjay Y Chandrachud, who authored the lead judgment holding privacy to be a fundamental right, said.[17]The section was decriminalised by the High Court in 2009 if people engaging in sexual acts were adults and did so with consent. But the judgment was overturned by the Supreme Court on 11 December 2013[18]which met with heavy criticism. Consequently in February a curative petition is filed by Naz Foundation[19]and the Chief Justice of India, T.S.Thakur decided that the petitions will be reviewed by the Constitutional bench consisting of 5 members as it was decided that the homosexuality is a subject that should be left to be decide by the legislature. As the Supreme Court’s ruling posed a setback to their dignity and the basic right to privacy and non-discrimination.

5. Current Ruling
The nine-judge bench's order will considerably reduce the previous judgment's affrighting effect on LGBT rights. It scythed through the logic in the 2014 judgment in the Suresh Kumar Koushal vs Naz Foundation case[20]saying it was in conflict with the LGBT community's claim based on right to privacy, entrenched in right to life guaranteed under Article 21 of the Constitution. This will go a long way in protecting sexual minorities from the impositions of popular or legislative majorities.

On 18 December 2015,Shashi Tharoor, a member of the Indian National Congress party, introduced a bill for the repeal of Section 377, but it was rejected in the House by a vote of 71-24. However, Shashi Tharoor is planning to re-introduce the bill.

On 2 February 2016, the Supreme Court decided to review the criminalisation of homosexual activity. In August 2017, the Supreme Court unanimously ruled that the right to individual privacy is an intrinsic and fundamental right under the Indian Constitution, giving hopes to LGBT activists that the Court would soon strike down Section 377. The Court also ruled that a person's sexual orientation is a privacy issue. In January 2018, the Supreme Court agreed to refer the question of the validity of Section 377 to a large bench for examination before October 2018[21].

Views of Supreme Court
The transgender people have the right to self-identify as male, female, or third gender; that the government should ensure their fundamental rights without discrimination; and that they should receive special benefits in education and employment. The new report[22]addresses these concerns, and also notes the bill’s failure to properly define discrimination, its silence on penalties for those who violate transgender rights, and the absence of an option for transgender people to bring a complaint if they are mistreated or abused. The report also notes that the various drafted laws fail to properly protect transgender people from rape and sexual assault. Significantly, it points out that they remain at risk of arrest and prosecution because section 377of the Indian Penal Code criminalizes same-sex sexual relations.

The report slams the definition of transgender people inTransgender Persons (Protection of Rights) Bill introduced in parliament in August last year– as "neither wholly female nor wholly male," "a combination of female or male," and "neither female nor male," – as "unscientific and primitive," and one which "completely misunderstands trans identities" and severely restricts their right to self-identify. The Indian government should amend the transgender rights bill to ensure that transgender people can self-identify their legal gender without unwanted intervention from committees or experts, be they medical, psychological, or anyone else. And this alone should form the basis for their access to all rights, social security measures, benefits, and entitlements. Only then can the law support the communities it seeks to protect and empower. The parliamentary committee, headed by Bais, has made a great start in backing trans rights in India. Now it’s up to the government to not only enact a good law, but repeal the colonial legacy of section 377 as well.[23]

6. Conclusion
Therefore a person’s proclivity towards the same sex is not questionable as the orientation of a person is his personal right which is embedded as a right to privacy enshrined by virtue of Article 21 of the constitution of India. If discrimination is done on this ground of sexual preference it is violative of Article 14 of the Indian Constitution which guarantees equality before law to all individuals. What use isthe anti- discrimination bill introduced by Dr. Shashi Tharur in the Lok Sabha, if people are being discriminated against on the basis of their sexual preference? Further it also violates Article 15 of the Indian constitution which ensures that no person shall be discriminated against on the basis of caste, gender, creed etc and simultaneously Article 21 of the Indian constitution that ensures the right of life and liberty to all the citizens of the country.

The most common argument against homosexuality is that it is against religious scriptures and is detrimental to the culture of the Indian society. However, people fail to consider that Hinduism (the most practiced religion in India) depicts in sculptures and scriptures people of the same sex engaging in sexual activities. If it is depicted in the sculptures of temples it means it was practiced before and was not condemned. If India fails to repeal the section then India would be moving backwards and not be progressing. Progressive laws are what the nation needs to emerge out of the cave of darkness that the nation is stuck into at the moment.
The LGBT community (lesbian, gay, bisexual, transgender) is no more a minority community. A lot of people hailing from different backgrounds identify themselves as LGBTQ. Just because they are gay, India does not give them a right to get married or engage in sexual activities as Section 377 criminalises homosexuality. It is no more about a couple of people struggling for their rights, the broad-minded joined hands to protect the interests of the homosexuals, who are at the end of the day, citizens of the country and humans of the planet.

It’s time for the liberation of this stereotyping, stigmatic and prejudicial society from the shackles of orthodoxy and bridge a huge gap between the community and embrace the progressive laws. Else it will remain a taboo as long as people are willing to prod it under the carpet of oblivion.

[1]See Row Kavi,The Bombay Dostavailable at seen on 05/01/2018
[2]See Giti Thadani,Lesbian Desire in Ancient and Modern India,Sakhiyani available at seen on 05/01/2018
[3] A Report of PUCL-Karnataka (February, 2001) is available at
[4]See Article 21, The Constitution of India
[5] seen 12/02/2018
[6]Supra 4
[7]Article 19(1)(a), The Constitution of India
[8]Article 19(1)(g), The Constitution of India
[9]Article 39(d), The Constitution of India
[10]Article 25-28, The Constitution of India also see
[11]SeeNazFoundation v. Government of NCT and others, Court observed that, "the Constitutional protection of human dignity requires us to acknowledge the value and worth of all individuals as members of our society" Also SinceManeka Gandhi’s case the Supreme Court interpreted article 21of Constitution has ushered a new era of expansion of the horizons of right to life. Traditionally right to life was called as natural right of the people. Right to life is one of the important fundamental rights of the citizen of India and aliens of India.
[12]Article 14, the Constitution of India also see ibid at 2
[13]for more detail see sec. 377 of the Indian Penal Code, 1860
[15], last seen on 08/01/2018
[16]See section 377, Indian Penal Code, 1860
[18]On 11 December 2013, the Supreme Court set aside the 2009 Delhi High Court order decriminalising consensual homosexual activity within its jurisdiction. JusticesG.S. SinghviandS.J. Mukhopadhaya, however, noted that Parliament should debate and decide on the matter.
[19]In 2009, the Delhi High Court decision inNaz Foundation v. Govt. of NCT of Delhifound Section 377 and other legal prohibitions against private, adult, consensual, and non-commercial same-sex conduct to be in direct violation of fundamental rights provided by the Indian Constitution
[20] seen on 21/07/2017
[21], last seen n 8/01/2018
[22]Committee of Social Justice and Empowerment, Parliament of India,Reporton transgender rights, available at seen on 22/07/2017
[23],last seen on 31/07/2017

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