Recognition to LGBTQ+ in Indian society: how far effective for ensuring unity in gender-based diversity
Article by Janhavi Lakhmani
LGBTQ+ is the acronym used to represent people of Lesbian, Gay, Bisexual, Transgender, Queer community. The wider expression for the same is LGBTTTQQIAA which includes transsexual, two-spirit, queer, questioning, asexual and ally. Widely known as the ‘Queer community’ or the ‘Rainbow community’. ‘Transgender’ is extensively used as the umbrella term to represent this community. Their origin can be traced back to the Vedic Age. In conformity with the report published by the Gay and Lesbian Vaishnava Association (GALVA), homosexuality gained recognition as ‘Tritiya Prakriti’ or the third nature in 3102 B.C. approx.
On the dividers and doors of brilliantly designed temples such as in Puri, we discover an assortment of pictures: divine beings, goddesses, devils, fairies, sages, champions, ministers, beasts, monsters, plants and creatures. Among scenes from sagas and legends, one perpetually discovers suggestive pictures including those that advanced law considers unnatural and society thinks about it as indecent.
Introduced by the British in 1861, Section 377 of the Indian Penal Code criminalises homosexuality. The above section draws its substructure from Buggery Act 1553 which interdicts homosexuality in England. The raison d’etre was to protect soldiers and administrators of the colonies out of trepidation that these hombres who are sent far from home (also their wives) would turn into homosexuals.
Naz Foundation vs Government of NCT (2009), popularly known as the Naz Judgementdeclared Section 377 unconstitutional. The Public Interest Litigation (PIL) filed by the Delhi based NGO ‘Naz Foundation (India) Trust’ at the High Court of Delhi resulted in successful declaration that the Section 377 of the IPC violates Article 14, 15 and 16 of the Indian Constitution. In the case of Suresh Kumar Koushal vs UOI, the Supreme Court of India re-criminalised homosexuality.
The legal tussle began long ago remarking the era with some efficacious judgements like National Legal Services Authority vs UOI which gave transgender people the concession as ‘Third Gender’ citizens of India and extended the Fundamental Rights to them as well. The Hon’ble apex court pronounced that the rights of the transgender community need to be safeguarded and also divulged that Article 14 renders protection to ‘any person’ which includes the transgender forbye. It further interpreted that Article 14, 15, 16 and 19 aren’t granted to only those who recognise themselves as male or female but to those as well who don’t confirm to either. Navtej Singh Johar vs UOI decriminalised sex between two consenting adults but upheld the provision of criminalising non-consensual sex with children or animal. In Arun Kumar vs Inspector General of Registration, Tamil Nadu, the Madras High Court delivered a judgement that the category of ‘bride’ will be inclusive of trans women. Earlier, only women and men were recognised as bride and groom under the Hindu Marriage Act, 1955 respectively.
The reality differs from the paperwork. Despite of the rights being provided, transgender people face discrimination and abuse on a daily basis. The general public isn’t much amiable with the fact that humans who don’t recognise themselves as male or female co-exist in our society.
India accounts for a population 2.5 million gay people as of the reports published in 2012. The figure is indicative of only those who’ve had self-declared themselves as so to the Ministry of Health. There exist a hefty number of individuals who are not willing to come off as transgender due to the oppression and abuse that others face regularly.
Top-tier form of abuse sustained by the transgender comes to pass at their residence. They’re thrashed, beaten up and even thrown out of their house for liking or doing things that people of their gender aren’t ought to; for example, a boy wearing a lip colour, earrings or any other accessories associated with women and added taboos in relation to gender and sexuality. The abandoned children have to find employment at a very young age to support their life while some are sent to group of eunuch/hijrahs who perform at various ceremonies, believing it to be their actual and only place.
Our flawed education system teaches the adolescent how our body changes internally as well as externally in due time but hardly any initiatives are taken to counsel those who feel trapped in their body. Lack of know-how fabricates the substructure of bullying, where one human finds it toilsome to get to grips of what he sees and what he is feeling from within and the other bunch of humans who don’t know how to conduct oneself towards the former group. Such discrimination and beyond the pale undertaking leave them traumatised at a very young age and any sort of comfort and counselling seems to be far in sight.
A major problem faced by transgender people is ‘Gender Dysphoria’, whereby a person feels the discomfort arising due to gender identity crisis. Every transgender feels such malaise at one point in their life, arising due to the difference between sex assigned at birth and the sex related attributes that they feel. Such disorder affects the daily life of a person by making them feel trapped in their body, thus placing them at a high risk of suicide due to anxiety and depression.
Another transpiring issue that the transgender community face is prostitution. They’re made to satisfy lust of people behind the bushes, in deserted places like the sites under construction, cosy hotel rooms and other digs where lust overrules compunction. Amongst those who choose it as means of earning, some get regularly injected with injectable hormones to enhance their female attributes and lure costumer in order to earn more. Lack of awareness, orchestration and sharing same needle(s) raises the risk of HIV among them. Even the doctors show resistance in treating them because of their disparate hormonal structure.
Introduced by the Minister for Social Justice and Empowerment, the Transgender Persons (Protection of Rights) Bill, 2019 was passed by the Rajya Sabha on 26th November, 2019. The bill has designs on dispensing maximum services and grants the same rights that are enjoyed by other citizens of India. The bill proposes prohibition on any form of discrimination against transgender including health, education etc, their right to reside with natal family, gender identification, welfare measures, and punishment for various crimes and NCT specifically for a transgender person.
The intentions behind putting into effect the bill might be good but the same was done with a lack of germane particulars. The bill didn’t receive much appreciation from the transgender community and also from the people in support due to the following reasons:
- The definition of ‘transgender’ is vague as it does not differentiate between transgender, transsexuals, intersex persons and genderqueer.
- The bill gives freedom of self-perceived gender identity but if they need recognition as transgender in the eyes of law, they need a certificate issued by the District Magistrate.
- By exercising a minor’s right of residence, it compels any trans person to live with their natal family without considering the fact that some families are often a fountainhead of appalling violence.
- Sexual abuse against transgender people (components of which are not clearly defined in the bill) have been made punishable for not less than six months, extending to two years and fine. On contrary, if a cisgender woman’s rapist is convicted, he is sentenced to seven years that can further be extended into a life sentence.
- The provisions could speak volumes but in the absence of enforceability good conclusion cannot be evaluated.
The bill pretermitted various necessary and required provisions; therefore it leaves room for ambiguous interpretation. The arrangements are additionally in opposition to global principles for lawful sex acknowledgment. It might prove to be of great help in future if the required changes are made.
‘Our ability to reach unity in diversity will be the beauty and the test of our civilization” Mahatma Gandhi. Everybody takes birth with an alternate character at different levels. A girl and a boy are the most commonly known genders in the world, followed by the category of the transgender people. These people are no different from us and this is what the society needs to accept. We live in a democracy where people from all backgrounds are given a fair shake but a particular community is fighting against all odds to be heard and its place in the society. They aren’t humans who are willing to put the kibosh on; they’re the ones who’ve been living with us all throughout and despite being an indispensable part, they are made to validate their existence. They aren’t taking anything away from the system, all they want is equal status, acceptance, rights and freedoms enjoyed by any other citizen of the nation.
 Unnatural offences.—Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[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.
 160 Delhi Law Times 277
 2014 (84) ACC 774
 AIR 2014 SC 1863
 WRIT PETITION (CRIMINAL) NO. 76 OF 2016
 W.P. (MD) NO. 4125 OF 2019 AND W.M.P. (MD) NO. 3220 OF 2019
 Bill No. 169 of 2019
Categories: PCGT Conclave