LGBTQIA+ RIGHTS

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Context:

Recently a Finance Ministry advisory and a Reserve Bank of India (RBI) circular allowed individuals from the LGBTQIA+ community and those in queer relationships to open joint bank accounts and nominate their partners as beneficiaries.

Details

LGBTQIA+ community face numerous challenges due to the lack of legal recognition for same-sex relationships, despite the government's efforts to ease some difficulties, significant issues remain unresolved.

Background

• Homosexuality was criminalized under Section 377 of the Indian Penal Code (IPC) 1860.
• In September 2018, the Supreme Court in the Navtej Singh Johar v/s Union of India case decriminalised homosexuality and declared Section 377 unconstitutional.
  • • It decriminalized consensual same-sex relationships, but it did not address broader rights like marriage and adoption.

Key Issues Facing LGBTQIA+ Community

• India does not legally recognize same-sex marriages, leaving LGBTQIA+ couples without the legal rights associated with marriage, such as inheritance and joint adoption.
• They face harassment, bias, or job loss due to their sexual orientation or gender identity. There are limited legal protections in most sectors.
• They face discrimination in accessing healthcare services, especially for gender-affirming procedures and mental health care.
  • • Transgender individuals face hurdles in obtaining hormone therapy or surgery, with many healthcare providers lacking understanding or empathy.
• Prejudice, homophobia, and transphobia persist across many parts of India, with LGBTQIA+ individuals often ostracized by families, communities, and workplaces.
  • • Societal stigma leads to social isolation, mental health challenges, and difficulty in accessing services, particularly in rural or conservative areas.
• LGBTQIA+ couples are not legally permitted to adopt children jointly. Single LGBTQIA+ individuals can adopt, but the law is silent on parenting rights for same-sex couples.
  • • The Juvenile Justice Act allows single individuals to adopt, but there are no provisions for same-sex couples to jointly adopt or claim parenting rights in India.
• The Transgender Persons (Protection of Rights) Act 2019 implementation remains weak, and transgender individuals struggle to access their legal rights.
  • • Many transgender persons face bureaucratic hurdles in obtaining gender identity documents and lack access to government welfare schemes meant for their support.
• They are frequently subjected to harassment, and violence by law enforcement authorities due to their sexual orientation or gender identity.
• LGBTQIA+ students often face bullying, discrimination, and exclusion in schools and universities, with little institutional support or inclusive policies.
  • • Studies show high rates of bullying and harassment faced by LGBTQIA+ students leading to mental health issues and high dropout rates among the community.

Important Cases Related to the LGBTQIA+ Rights

Naz Foundation v/s Govt. of NCT of Delhi 2009

• It challenged Section 377 of the Indian Penal Code (IPC) which criminalized consensual same-sex relations.
• The Delhi High Court decriminalized consensual same-sex relations stating that Section 377 violated Articles 14, 15, and 21 of the Indian Constitution.
• This was the first major victory for LGBTQIA+ rights in India, but it was overturned by the Supreme Court in 2013.

Suresh Kumar Koushal v/s Naz Foundation 2013

• The Supreme Court reversed the Delhi High Court's ruling, upholding the criminalization of homosexuality under Section 377.
• This judgment was seen as a major setback for LGBTQIA+ rights as it re-criminalized same-sex relations.

National Legal Services Authority v/s Union of India (NALSA) 2014

• The Supreme Court recognized transgender persons as a "third gender" and affirmed their right to self-identify their gender.
• This judgment was a landmark for the transgender community ensuring their fundamental rights and directing the government to provide affirmative action.

Navtej Singh Johar v/s Union of India 2018

• The Supreme Court decriminalized consensual same-sex relationships declaring Section 377 unconstitutional.
• This judgment was a historic victory for LGBTQIA+ rights, effectively legalizing homosexuality in India and ensuring equality under the Constitution.

Shafin Jahan v/s Asokan K.M. (Hadiya Case) 2018

• The Supreme Court upheld an individual's right to marry or choose their partner under Article 21 of the constitution.
• While this case was not directly about LGBTQIA+ rights, it reaffirmed the right to choose one's partner, supporting individual autonomy.

Arun Kumar v/s Inspector General of Registration 2019

• The Madras High Court ruled that a marriage between a man and a transgender woman is valid under the Hindu Marriage Act 1955.
• This judgment extended marriage rights to transgender individuals.

Steps Taken for the Welfare of the LGBTQIA+ Community

• The Transgender Persons (Protection of Rights) Act 2019 provides for the protection of the rights of transgender persons, including the right to self-identify their gender and protection from discrimination.
  • • It legally recognizes transgender persons as a third gender, ensures their right to education, healthcare, and employment, and prohibits discrimination.
• The National Council for Transgender Persons (2020) was established by the Ministry of Social Justice and Empowerment to monitor and evaluate the welfare schemes and programs for transgender persons.
• Garima Greh Scheme aims to provide shelter homes for transgender persons who are homeless or in vulnerable situations, along with skill development programs for livelihood.
• Some states like Tamil Nadu have introduced reservations for transgender persons in education and public employment to ensure greater inclusion.
• National Portal for Transgender Persons to apply for certificates of identity, which are required for accessing benefits under various welfare schemes.
• The National AIDS Control Organization (NACO) runs targeted interventions for LGBTQIA+
• Mental Health Care Act (2017) prohibits discrimination in access to mental healthcare based on sexual orientation or gender identity and emphasizes equal rights to mental healthcare.

Way Forward for the Welfare of the LGBTQIA+ Community

• Introduce legislation to recognize same-sex marriages, ensuring equal rights in areas like inheritance, adoption, and healthcare.
• Amend adoption laws to allow same-sex couples to jointly adopt children, ensuring that LGBTQIA+ families are recognized and protected under the law.
• Design specific anti-discrimination laws to protect LGBTQIA+ individuals from harassment and discrimination in hiring, promotion, and workplace culture.
• Create comprehensive healthcare policies that include LGBTQIA+ sensitization for healthcare providers, ensuring inclusive access to gender-affirming treatments and mental health care.
• Introduce LGBTQIA+ sensitization programs in schools, workplaces, and communities to promote inclusivity, reduce stigma, and educate the public about LGBTQIA+ rights.
  • • Increased awareness and education will develop a more accepting society, especially among younger generations, reducing societal stigma and homophobia.
• Ensure LGBTQIA+ persons are included in social welfare schemes such as housing, healthcare, and employment benefits by modifying eligibility criteria.
• Implement stringent laws specifically targeting hate crimes against LGBTQIA+ individuals, ensuring swift justice and greater accountability for offenders.
• Encourage and support political participation by LGBTQIA+ individuals through affirmative action or reserved seats in local governance bodies.
  • • Increased political representation will ensure that LGBTQIA+ concerns are addressed in policy-making, leading to more inclusive laws and governance practices.
• Expand mental health support systems tailored for LGBTQIA+ individuals, including accessible counselling, helplines, and community support networks.

Must Read Articles:

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Source:

The Hindu

BBC

Wikipedia