LGBT AND UNIVERSAL ENJOYMENT OF HUMAN RIGHTS

AUTHOR:

Steffi Felix

6th sem BA LLB

Kerala Law Academy Law College

Peroorkada,TVM

E-mail : [email protected]

Mob :9496622506

INTRODUCTION

Lesbian,Gay ,Bisexual and Transgender(LGBT) individuals are an important group in our

society.If not identifying ourselves in this group it is likely that someone among our
parents,children,friends or colleagues are persons whom secretly or openly identify themselves
as homosexual,bisexual or transgender.Yet there are still several states where homosexuality is
illegal and states where death penalty is imposed for same sex partners engaging in sodomy.The
legal progress and understanding of LGBT rights is something that affect us all,no matter of our
own sexual orientation or gender identity.LGBT is a vulnerable group carrying a risk of being
subjected to discrimination and physical violence.Furthermore,LGBT individuals are all over the
world being denied their human rights and not only by states considered as conservative regimes
by the human rights society,but also by modern democracies.Such an example is right to marry,a
human right which in many states is not accessible for LGBT individuals.Where is the
universality when it comes to human rights of LGBT individuals?
UNIVERSALITY OF HUMAN RIGHTS AND LGBT PERSPECTIVE

Human rights are obtained by the fact that one is a human.There is no other requirement than
being born as a human for obtaining human rights.One is or is not a human is equal to one has or
has not human rights.The equality of all human beings should reflect in all individuals right to
protection against discrimination.1

Regarding LGBT individuals they must be seen as equal to any other human being considering
the statement that human rights are universal.During the history,LGT individuals have often been
subjected to non-sanctioned discrimination and violence.This behavior can be seen as a dominant
social group i.e the heterosexuals targeting a group which they consider “less human”.This
behavior from a dominating group is not exclusive for LGBT discrimination.There are the same
type of discrimination of other vulnerable groups.The discrimination against homosexual
individuals is very often characterisd by the opinion that homosexuality is unnatural and
therefore considered immoral.The same condescending arguments are also heard about
trangenderism.There are multiple studies and evidences claiming that homosexuality and
transgenderism are very old types of human orientation.However,those evidences are not
necessary when it comes to the enjoyment of Human Rights,since there is no hierarchy between
humans.The enjoyment of human right is not depend upon the behavior of human,meaning that
even if homosexuality is considered immoral a homosexual person have exactly the same human
rights as a person considered living a moral life.Therefore,discrimination of individual’s human
rights based on their sexual orientation or gender identity results in those individuals being seen
as “less human” by the rest of the society.2

WHO ARE LGBT INDIVIDUALS

LGBT is shorthand for lesbian, gay, bisexual and transgender. The “LGB” in this term refers to
sexual orientation. Sexual orientation is defined as an often enduring pattern of emotional,
romantic and/or sexual attractions of men to women or women to men (heterosexual), of women
1
Donnelly,Jack”Non-Discrimination and Sexual Orientation:Making a place for Sexual
Minorities in the Global Human Rights Regime”,Reprinted publication in Hayden”The
Philosophy of Human Rights”at 548550
2
Ibid at 553-557
to women or men to men (homosexual), or by men or women to both sexes (bisexual)3. It also
refers to an individual’s sense of personal and social identity based on those attractions, related
behaviors and membership in a community of others who share those attractions and behaviors.
Some people who have same-sex attractions or relationships may identify as “queer,” or, for a
range of personal, social or political reasons, may choose not to self-identify with these or any
labels4. The "T" in LGBT stands for transgender or gender non-conforming, and is an umbrella
term for people whose gender identity or gender expression does not conform to that typically
associated with the sex to which they were assigned at birth. Some who do not identify as either
male or female prefer the term “gender queer.”

PROBLEMS OF LGBT COMMUNITY

Constitution had a plethora of sound laws and policies to assist different dimensions of Human
rights.The issues of individual’s rights and duties have remained the subject of discussion in
every society in all periods of history and in all civilizations.Unfortunately,we have no
legislation in this country dealing with the rights of LGBT community.In case of transgender
they were recognized as third gender by the Supreme Court but they are also facing
discrimination in the society5.Particularly vulnerable are young LGBT people who experience
estrangement from family and friendship networks,harrassement at school and invisibility,which
can lead in some cases to underachievement at school,school drop-out,mental ill-health and
homelessness.LGBT is one of the vulnerable groups who are at the risks of becoming socially
excluded.They experience multiple form of marginalization such as –
racism,sexism,poverty,unemployment and other factors-alongside homophobia and transphobia

3
Cochran, S.D. Mays& Vickie “Lifetime Prevalence of Suicide Symptoms and Affective
Disorders Among Men Reporting Same-Sex Sexual Partners: Results From NHANES III”,
American Journal of Public Health, Vol. 90, No. 4, 573-578.
4
ibid
5
William L. Maurice& Marjorie A. Bowman,”Sexual medicine in primary care, Mosby Year
Book”, 1999, ISBN 978-0-8151-2797-0
that negatively impact mental health across the world6.This stigma is attached to sexual
orientation and gender identity or expression that fall outside the expected heterosexual,non-
transgender norm as they are neglected from mainstream society7.

The problems faced by the Transgender community in India includes -

1.Discrimination:

Discrimination is the major problem of Transgender. They are discriminated in terms of

education, employment, entertainment, justice etc.

2.Disrespect:

They are disrespected in each and every aspect of life except in few cases like after the birth of a
child for their blessings or to bless the newly wedded couple.

3.Downtrodden:

These people are treated badly or oppressed by people in power. They are prone to struggle for
social justice because of their identity as Transgender.

4.Child Nabbing:

This community always searches for those babies/ infants/ children who are born with this
feature of Transgender. Once they come to know, they try to nab the child from their parents.

5.Prostitution:

They are forced to enter the profession of prostitutions by their community, friends or relatives.
Even, in some cases, it is seen that their parents are involved in it.

6
Aragon& Angela Pattatuchi” Challenging Lesbian Norms: Intersex, Transgender,
Intersectional, and Queer Perspectives. Haworth Press”,2006. ISBN 978-1-56023-645-0.
7
Asmy ,V.S. Shinu& Nagaraj Dr. P “Preliminary problems faced in educating the third gender
community”,
Asia Pacific Journal of Research Vol: I. Issue XXVII, May 2015 at 20-24.
6.Forced to leave parental home:

Once their identity is identified, they are forced and pressurize to leave the parental home by the
society as they can’t be a part and parcel of normal community and class.

7.Unwanted attention:

People give unwanted attention to the Transgender in public. They try to create the scene by
insulting, punishing, abusing or cursing them.

8.Rejection of entry:

They are rejected to get enter in religious places, public places like hotels, restaurants, theaters,
parks etc.

9.Rape and verbal and physical abuse:

This is the most common people Transgender people face. They are prone to face rape followed
by physical and verbal abuse.

10.Lack of educational facilities

Like normal people, they are not entitled to take education in schools and colleges. Even in
terms of education, they are treated differently.

11.STI and HIVAIDS problems:

The term “MSM‟ stands for Men who have sex with Men. Because of this, Transgender are
likely to have problems like STI and HIV AIDS.Most of the Transgender belongs to lower
socioeconomic status and have low literacy level. It seeks to have improper health care.

12.Human trafficking:

Transgender belongs to the most neglected group.That’s why, they are prone to face the problem
of human trafficking also.

13.Social Exclusion:
The major problem in the whole process is that they are socially excluded from the society.
They are excluded from participating in social, cultural and economic life. In brief, they are
excluded from

 Economy, employment and livelihood opportunities

 Excluded from society and family
 Lack of protection from violence
 Restricted access to education, health care and personal care
 Limited access to public spaces
 Limited access to collectivization
 Rights of Citizenship
 Excluded from decision-making
 Lack of social security

POSITION IN INDIA
With the advent of the contemporary epoch, the movement against the repressive and
oppressive nature of Section 377 grew exponentially and reached its culmination in Naz
Foundation v. Government of NCT of Delhi8, wherein the Delhi High Court recognized
the anachronism associated with Section 377 and interpreted it to exclude sexual acts
between consenting adults, thus decriminalising homosexuality. Although the
ramifications are limited and may be quelled by an act of Parliament, the judgment is a
landmark in civil liberties’ litigation and may be regarded as one of the stepping stones to
the emancipation of the sexual minorities in India from tyranny and coercion at the hands
of the law. In this case the Delhi High Court passed a judgment in favor of the LGBTs
declaring Section 377 of the Indian Penal Code which criminalizes homosexuality in
India to be unconstitutional and violative of Articles 14, 15 and 21 and read down the
section, allowing consensual sexual activity between two homosexuals above 18 years of
age.

8
Naz Foundation v. Government of NCT of Delhi 2010 CrLJ 94(Del)
 The matter went to appeal to the Supreme Court of India in Suresh Kumar Koushal and
another v NAZ Foundation and Others9 where the Supreme Court struck down the
decision by the High Court in the NAZ Foundation Case stating that judicial intervention
was not required in this issue. This in effect recriminalized sexual intercourse "against the
order of nature". In its judgment the Supreme court bench of justices G. S. Singhvi and S.
J. Mukhopadhaya stated —
"In view of the above discussion, we hold that Section 377 IPC does not suffer from the
vice of unconstitutionality and the declaration made by the Division Bench of the High
court is legally unsustainable."10 On 18 December 2015, Lok Sabha member Shashi
Tharoor of the Indian National Congress, whose leaders Sonia Gandhi and Rahul Gandhi
had earlier expressed support for LGBT Rights11 ,introduced a private member's bill to
replace Section 377 in the Indian Penal Code and decriminalize consensual same-sex
relations. The bill was defeated in first reading.12 For his part, Tharoor expressed surprise
at the bill's rejection at this early stage. He said that he did not have time to rally support
and that he will attempt to reintroduce the bill.13In March 2016, Tharoor tried to
reintroduce the private member's bill to decriminalize homosexuality, but was voted
down for the second time.14 On 24 August 2017, the Supreme Court of India in Justice K.

9
Suresh Kumar Koushal and another v NAZ Foundation and Others
(2013)SC 1096
10
Vikram Seth, "Homosexuality is criminal offense: Supreme court". The Economic Times. 11
December 2013.
11
DNA Web Team "Statements of Sonia, Rahul Gandhi and Kapil Sibal on Section 377 exposes
character of Congress leaders: Baba Ramdev". DNAIndia.com. 13 December 2013
12
"Shashi Tharoor's bill to decriminalise homosexuality defeated in Lok Sabha".
IndianExpress.com. 18 December 2015
13
ibid
14
"BJP thwarting Bill on gays: Tharoor". The Hindu. 11 March 2016.
 15
S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors held that the Right to
Privacy is a fundamental right protected under Article 21 and Part III of the Indian
Constitution. The judgement mentioned Section 377 as a "discordant note which directly
bears upon the evolution of the constitutional jurisprudence on the right to privacy." In
the judgement it was held that the rationale behind the Suresh Koushal (2013) Judgement
is incorrect, and the judges clearly expressed their disagreement with it. Justice Kaul
agreed with Justice Chandrachud's view that the right of privacy cannot be denied, even if
there is a minuscule fraction of the population which is affected. 15th April 2014 was not
an ordinary day. Something exceptional happened on the summer of 15th of April that
‘blown life in the“constitutionality” dead members of the sexual minority of India’. It
was that day which brought light and euphoria to the life of ‘Hijras’. For the first time in
the history of India, ‘Third Genders’ was given recognition and was officially recognized
as another gender as male and female. The Hon’ble Supreme Court of India in the case of
National Legal Services Authority v. Union of India16 in its landmark judgment in 2013
created the ‘third gender’ status for hijras or transgenders. Earlier, while writing their
gender, they were forced to write male and female, but now after this judgment, they can
proudly describe themselves as ‘third gender’.The Government of India has been directed
by the Supreme Court for treating the members of ‘Third Gender’ as socially and
economically backward. The Supreme Court further opined that absence of law
recognizing hijras as the third gender could not be continued as a ground to discriminate
them in availing equal opportunities in education and education and employment. The
third gender would be categorized as Other Backward Classes [OBC] which will help
them to avail the opportunities of reservations in educational institutions and government
jobs. The ideals enshrined in the constitution of India by our founding fathers are
defended by the Supreme Court’s judgment. The verdict though pertains to only eunuchs
or transgender people; it is indeed a ray of wisdom that at last penetrated into the dark
chambers of the mystery of human sexuality to illuminate the dark age reason. Navtej

15
Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors ,WRIT PETITION
(CIVIL) NO 494 OF 2012
16
National Legal Services Authority (NALSA) v. Union of India ,(2014) 5 SCC 438
 17
Singh Johar & Ors. v. Union of India is a landmark decision of the Supreme Court of
India in 2018 that decriminalised all consensual sex among adults in private, including
homosexual sex, a the 158-year-old colonial law .This decision overturns the 2013 ruling
in Suresh Kumar Koushal v. Naz Foundation18 in which the court upheld the law.
However, other portions of Section 377 relating to sex with minors, non-consensual
sexual acts, and bestiality remain in force19.The court found that the criminalisation of
sexual acts between consenting adults violated the right to equality guaranteed by the
Constitution of India. While reading the judgment, Chief Justice Misra pronounced that
the court found "criminalising carnal intercourse" to be "irrational, arbitrary and
manifestly unconstitutional"20 The court ruled that LGBT people in India are entitled to
all constitutional rights, including the liberties protected by the Constitution of India. It
held that "the choice of whom to partner, the ability to find fulfilment in sexual
intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to
the constitutional protection of sexual orientation"21 The judgement also made note that
LGBT community is entitled to equal citizenship and protection under law, without
discrimination.22 Given the court’s sweeping and principled assertion that fundamental
rights apply to all Indians, regardless of sexual orientation, activists have made clear their
intention to push for the other rights they are denied, including to marry, adopt children,
be protected from hate speech and inherit their partner’s wealth. As Ms. Guruswamy told
an interviewer at The Caravan magazine: “But you create constitutional principle. And
then you build on it.”23India’s Supreme Court laid that foundation, and has offered

17
Navtej Singh Johar & Ors. v. Union of India, W. P. (Crl.) No. 76 of 2016 (Supreme Court of
India).
18
Supra n.9
19
Pundir& Pallavi. "I Am What I Am. Take Me as I Am"
20
"Historic India ruling legalises gay sex". BBC News. 6 September 2018.
21
Supra n.17
22
ibid
23
“A Win for L.G.B.T. Rights in India”,New York times, on Sept. 21, 2018 at A26
renewed hope in the power of democratic institutions to ensure that all people enjoy equal
protection under the law.

INTERNATIONAL LEGAL POSITION ON HOMOSEXUALITY AND INDIA’S

STAND IN UN RESOLUTION
Views on homosexuality are divided in the world. It is thought-provoking to see how
religious teachings influence attitude towards“natural sex tendencies of a human being”.
About 81 countries have criminalized homosexuality including India and Pakistan. The
scenario in Europe is somewhat different from third world countries. Right to have sex is
a fundamental right which is part of Right to Life. Denying people of sexual rights is
regarded as an act od cruelty and so no legislature, no country should try to abolish the
right to sex. LGBT rights are human rights.The stand taken by United Nations
Organisation regarding LGBT rights is always progressive. A resolution supporting
LGBT rights was first moved at General Assembly by French/Dutch representatives in
2008. It included condemnation of harassment, violence,discrimination, and prejudice
based upon gender identity and sexual orientation which undermine dignity.India has
been holding on to its traditional stand on the sensitive issue of LGBT rights. India did
not become a signatory to resolutions concerning LGBT rights only to confirm its
conservatism and insensitivity against homosexuality. The European Parliament strongly
opposed the moves of criminalizing LGBT people in India, Uganda, and Nigeria in the
resolution adopted on 16th January 2014.The United Nation Human Rights passed a
strange resolution on 26th June 2014 on “protection of family”. This Resolution called
upon the High Commissioner for Human Rights for drafting a report on the status of the
‘family’ asking for a panel discussion on the issue of protecting the family. But the
resolution does not define ‘family’, the implication to a singular family could be used as
a criterion to oppose rights for homosexual couples, single parents and other types of
families in future UN negotiations. The concept of the family should not be limited only
to the heterosexual families. There are families of homosexuals, families of homosexuals
and their adopted child/children and families of a single parent. Due to lack of clear-cut
definition of ‘family’ in the resolution, there are high chances that it would be directly
used to violate the rights of LGBT Community who are willing to have a family of their
 own. India, by becoming a signatory to this resolution, multiplied the plight of LGBT
community that already existed. The hostile stand taken against the LGBT community by
Indian Diplomats representing Government of India at UN Human Rights Council is
stigmatic to its international image as world’s progressive constitutional democracy.

TRANSGENDER RIGHTS IN INDIA

India has traditionally recognised a third gender population, considered by society as

neither male or female. Hijras were legally granted voting rights as a third sex in
199424.Due to alleged legal ambiguity of the procedure, Indian transgender individuals
have difficulties accessing safe medical facilities for surgery25 .On 15 April 2014, the
Supreme Court of India declared transgender people a socially and economically
backward class entitled to reservations in education and jobs, and also directed union and
state governments to frame welfare schemes for them26. The Court ruled that transgender
people have a fundamental constitutional right to change their gender without any sort of
surgery, and called on the Government to ensure equal treatment for transgender people.
The Court also ruled that the Indian Constitution mandates the recognition of a third
gender on official documents, and that Article 15 bans discrimination based on gender
identity27. In light of the ruling, government documents, such as voter ID cards, passports
and bank forms, have started providing a third gender option alongside male (M) and
female (F), usually designated "other" (O), "third gender" (TG) or "transgender" (T)28.

24
Shackle& Samira. "Politicians of the third gender: the "shemale" candidates of Pakistan". New
Statesman, 11 May 2013.
25
"Crystallising Queer Politics-The Naz Foundation Case and Its Implications For India's
Transgender Communities" (PDF). NUJS Law Review. 2009.
26
"Supreme Court's Third Gender Status to Transgenders is a landmark". IANS.
news.biharprabha.com.,15 April 2014.
27
"Transgender rights in India". iasscore.in.
28
"Transgenders protest demanding name change in certificates - The Times of India". The
Times Of India.
 The Transgender Persons (Protection of Rights) Bill, 2016, which was initially
introduced to Parliament in August 2016, was re-introduced to Parliament in late 2017.
Some transgender activists have opposed the bill because it does not address issues such
as marriage, adoption and divorce for transgender people.The bill passed the Lok Sabha
on 17 December 2018 with 27 amendments, including a controversial clause prohibiting
transgender people from begging29.While same-sex marriage is not illegal in India, there
are certain legal implications that come into play. Section 377 of The Indian Penal Code,
1860 is presently in force in India by virtue of the Supreme Court decision in Suresh
Kumar Koushal v. Union of India30 that overturned the Delhi High Court decision in
NAZ Foundation v. NCT of Delhi31. Section 377 was fully re-instated by the Supreme
Court in 2013, and it criminalizes and punishes all penile non-vaginal sexual
acts.”Therefore it is a criminal offence for two consenting adult gay, bisexual and
transgender persons to have sex in India. Lesbian women are not criminalized under Sec.
377 as it criminalizes only ‘penile non-vaginal sex’. However, lesbian women are
frequently persecuted and prosecuted under false cases of kidnapping and/or theft
offences, when partners elope. A gay, bisexual or trans person solemnizing a same-sex
marriage in India may be interpreted as ‘intending’ to violate the law under Sec. 377, as
‘consummation of marriage’ by sexual relations is intrinsic to a marriage, as per both
social and legal norms. Further, all statutory laws relating to solemnization and
registration of marriages in India, whether codified or customary laws relating to Hindus,
Muslim, Parsi or Christians or the civil marriage law, only legally recognize heterosexual
marriages. The laws provide for marriage between ‘husband’ and ‘wife’, ‘man and
‘woman’ or ‘bride’ and ‘bride-groom’.Despite the Supreme Court decision in National
Legal Services Authority (NALSA) v. Union of India32, which requires Central and State
governments to amend laws to provide ‘right to marry’ for transgender persons, among
other rights, it is still an open question whether the un-amended marriage laws in their
present state legally permit solemnization and registration of a marriage involving a

29
Supra n.25
30
Supra n.9
31
Supra n.8
32
Supra n.16
 transgender spouse.” While gay marriages don’t have legal sanction they are not a
criminal offence. You cannot be prosecuted and sentenced to prison, or even fined, for
solemnizing a same-sex marriage per se, as the law is simply silent on the subject in
India. To put it simply, same-sex marriage per se is not ‘illegal’ or ‘legal’ in India. No
penalties or adverse consequences in law flow from merely solemnizing a same-sex
marriage.

CONCLUSION

Homosexuality is not a mental disease. It is as natural as heterosexual. The human mind has no
control of it. The situation of LGBT community is worst in India. They are subjected to
harassment, violence, and mockery. European countries have protected the sexual rights of the
members of the LGBT community. The resolution passed by UN have created a positive impact
all over the world. Stand of India at UN regarding LGBT issues has been so far very
disappointing as India have been stigmatizing its own image as a democratic republic by
persistently opposing LGBT rights at international level. It is very important to make people
aware of the presence of LGBT community. Human rights are natural rights which are
indestructible and inalienable that are conferred upon man since birth. Homosexuals are not
aliens, they are not sick, their sexual behavior is perfectly in tune with the dictate of nature. The
Government of India should wipe away its conservative nature and take concrete steps for the
welfare of sexual minority. Re-criminalisation of sexual activities between homosexuals was the
“biggest setback to the movement of LGBT rights”. A single judgment severely affected the
rights of the entire community causing immense damage to self-esteem and self-respect of the
LGBT community. Just and fair struggle for social recognition by LGBT will go on. The world
will evolve and one day, it would illuminate the dark age of reasoning.