Looking At Pride Month June 2020: Tracing the Journey of LGBTQ Community in India

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LBGTQ stands for Lesbians, Gays, Bisexuals Transgender, and Queer.  People who identify themselves as a part of the LGBTQ community are normal people. Yet, they face societal stigma at every step of their life. This is because heterosexuality is considered to be the only orientation.

India has an ancient history about the LGBTQ community. One of the earliest texts, the Rig Veda has depictions of sexual acts between females. These depictions are the revelations of the feminine world. Another book, the Kamasutra, the origins of which are historical also depicts homosexuality. 

Role of the Judiciary

Even though the world has progressed, there is a social stigma related to being LGBTQ. In India, members of the LGBTQ community are discriminated upon by the society. But, the society should not be given 100% of the blame. The legislature and the judiciary have been one of the causes of this discrimination.

The Supreme Court of India recognized rights of the LGBTQ community only in 2014. In April 2014, the Supreme Court stated in NALSA v Union of India that members of the LGBTQ community also have rights.

It took too many years to strike down parts of the draconian Section 377 from the IPC. Section 377 criminalized ‘unnatural’ sexual activities, which implied that members of the LGBTQ community could not be sexually active.

The stigma that LBGTQ community faces is not only from adults and adolescents. It also comes from kids who are taught by their homophobic and transphobic parents and relatives that being LGBTQ is wrong. This creates a very big issue for LGBTQ children. Since their childhood they are told by their peers and other children that they are abnormal. Being gay is used as an insult in many schools throughout the country. This leads to LGBTQ children fighting who they actually are.

Studies have shown that LGBTQ youths are at a higher risk for mental health issues. One of the reasons this issue is not nipped in the bud is the lack of training provided to teachers. In fact, some teachers are part of the problem. Instead of understanding the status quo and stopping bullying, they rather ignore it and sometimes partake in it.

Given the already abysmal level of sexual education in India, homosexuals are likely to indulge in disease threatening sexual behaviour. Luckily, this generation has internet which can explain and impart sexual knowledge. But, this does not allow the authorities to not impart any kind of sexual knowledge.

Landmark Judgements relating to LGBTQ

National Legal Service Authority v Union of India

The Indian judiciary, like the legislature was regressive in nature. But, in 2014, in the landmark judgment, National Legal Service Authority (NALSA) v Union of India allowed rights to Transgenders. The case concerned with legal gender recognition. This was a serious issue for Transgenders. As pre-existing law recognized only 2 binary genders, the rights of trans genders were compromised. They were also discriminated against by the society due to no legal rights.

The Court acknowledged that transgender people were stigmatized and discriminated against. This had been going on since the British Era and was fundamentally and morally wrong. They declared that the Government(s) need to take steps to rectify this error. 

Features of the Judgment
  1. The Court stated the need of gender identity as it was the basis of self-determination. Hence, the Court stated that sex reassignment surgery was not required or mandatory. It also stated the right to abstain from any medical procedure.
  2. The Court used International human rights conventions to interpret gender identity inequality. They used this to interpret the Constitution. It asked to follow the International Conventions ratified by India. Another request was to inculcate non-binding International. Conventions about providing rights to trans genders.
  3. The Court stated that the right to choose a gender identity is right to life under Article 21 of the Constitution.
  4. The Court also stated that Article 15 is gender neutral and hence applies to all persons, including trans genders.

This judgment is one of the most progressive judgments given by Supreme Court till date. It gave the trans people a right to live their lives with dignity and respect as everyone else. 

Navtej Singh Johar v Union of India

Post many protests throughout the country, the Supreme Court finally decriminalized certain provisions of Section 377 IPC. The petition was filed by the appellant who belongs to the LGBTQ community. He claims that the section violated the constitutional rights. It violated Article 14, 19 and 21. The Supreme Court had earlier overturned Naz Foundation v Govt of NCT of Delhi. The Delhi High Court had allowed consensual sex between two humans. It stated that the section violated certain rights of individuals. But, the Supreme Court overruled this judgment by the Delhi HC. But, in 5 years by a bigger bench the SC overruled its previous ruling and rectified its error. 

The Features of the judgment
  1. The case was filed for recognition of certain rights. Right to sexuality, right to choice of a sexual partner and right to part of life.
  2. It allowed sexual relations between consenting adults in private.
  3. The law must strive to achieve equal protection to the community.

The long awaited judgment a progressive one but should have also allowed the right to marry. As of now, homosexuals are not allowed to get married. The right to get married is limited only to straight people resulting in discrimination.

LGBT Discrimination in Workplace

The LGBTQ community has had to face social stigma and discrimination at all steps of life. They have been discriminated in the workplace about pay and opportunities. In India, the stigma is immense where in a LGBTQ person is denied jobs regularly. 

A healthy workplace needs to be set up. This would increase the productivity. There needs to be a place where the community feels safe and respected like fellow employees. Hence, proper sensitization training needs to be given to the employees and employers by the HR. 

India needs to progress and modernize itself at the pace of West. 77 countries in the world prohibit any form of discrimination due to sexual orientation. There are Fortune 500 countries that provide benefits to LGBTQ employees.

In the United States, while the societal stigma has reduced it still affects workplace environment. Harassment is common with the employees being subjected to ‘jokes’ that are in poor taste. There are approximately 46% of LGBTQ employees who prefer not to tell anyone at work about their sexual orientation. 

Trans people face worse issues as compared to the LGBTQ community as workplace is divided in binary genders. This becomes an issue as they are not allowed to use Men washrooms and face other issues.

Judgments Passed in USA about workplace harassment

The US Supreme Court, in its recent judgment, Bostock v Clayton County included sexual orientation and identity in Title VII. Title VII relates to discrimination of employees in workplace. Before the judgment, it did not include any prevention on discrimination about sexuality of a person. Hence, this judgment gives a big boost to the LGBTQ community. Justice Gorsuch wrote the judgment. 

United States has had a history with equality for LGBTQ in workplace. There was an Equality Bill that was introduced way back in 1974 but it was rejected by the review committee. Post that in 1994 the Employee Non Discrimination Act was proposed but rejected again. Finally, under the Obama presidency, the federal Employment Opportunity Commission was being drafted. It would have included no discrimination based on gender identity or sexual orientation. But, the Trump government edited and again removed those terms. Hence, this judgment was further needed and was the need of the hour.

Bostock v Clayton County is the second judgment in the last 6 years to promote LGBTQ community and give them the status as others. In 2015, the US Supreme Court allowed homosexuals to marry. This finally provides the LGBTQ community throughout USA to safely work without the fear of being fire over their sexuality.


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