Legal

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This Blog is written by Soujanya Boxy from National Law University, Odisha. Edited by Ravikiran Shukre.

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INTRODUCTION:

Laws relating to sexual orientation and gender identity have changed a lot. Several laws that prohibited same-sex intimacy and the expression of various gender identities have been repealed by different jurisdictions in the world. Further, a rising number of jurisdictions are amending their laws for the protection of lesbian, gay, bisexual, and transgender (LGBT) people against any discrimination. Legal authorities at different levels (international, national, regional, and subnational) have considered SOGI discrimination impermissible, with regard to housing to marriage or employment. [1]

Issues relating to sexual orientation and gender identity are often discussed together, given the fact that both of these are distinguishable. It is because someone, who is straight, gay, lesbian, or bisexual has no relation to someone, who is cisgender or transgender. Sexual orientation is described as “relationship the sex of the object(s)of one’s sexual desire bears to one’s own sex, i.e., whether the object(s)of one’s desire is of the same or of a different sex than oneself.” Sexual orientation considers a person’s sex and the sex of the person he is attracted to. No matter how different the two concepts (sexual orientation and gender identity) are, they are conflated in politics and culture as they originate from the same root, i.e. the social policing of gender norms.

Orientation is inherently a part of someone’s identity and is incidental to sexual attraction. The relationship between sexual orientation and law has originally been linked to criminalization by the way of anti-buggery laws. [2] Apart from this, the relationship becomes more significant in relation to other civil rights, which were previously not accessible to them because of criminalization. These rights include the freedom from sexual assault, right against discrimination, adoption, marriage, etc.

SIGNIFICANCE OF THE DEVELOPMENT:

A well-established constitutional framework is present in India. With the decision in the case of Naz Foundation v. NCT Delhi, there is a precedent for discerning transgender rights that are being acknowledged by the constitution. India has been brought into conformity with international legal provisions by the Naz decision, as it decriminalizes all consensual same-sex activity that took place between adults. The Naz decision holds significance because the existing constitutional framework of rights has been given a novel interpretation by it. Before this decision, the four most important provisions of the Constitution (Articles 14, 15, 19, 21) were not applicable for LGT people. The decision also found Section 377 of Indian Penal Code (that criminalized consensual sexual intercourse between homosexuals and considered it unconstitutional) as violative to Article 15 of the Indian constitution, which says “there shall be no discrimination against any citizen on the basis of only religion, caste, race, place of birth, sex, or any of them”. [3]

The legal commentators had found a far-reaching consequence of this aspect of the Naz decision as it was implied that non-discrimination provision shall have to be read for involving sexual orientation and thereby safeguarding LGPT people. The decision includes the broader understanding of sexuality, i.e., involves LGBT people. This is indeed historic as the inclusive term LGBT has never been applied by any court of any other part of the world.

Further, the National Legal Services Authority has been driven to deal with different concerns of transgender people through the initiation of judicial sensitization programs on the issues faced by transgender people in various states. There are many other significant judgments that took place for providing a safe place for this community. The struggle of this community has been recognized through various cases like Naz Foundation v. NCT Delhi (2001), National Legal Services Authority v. Union of India (2014), K.S. Puttaswamy v. Union of India (2017), Navtej Singh Johar v. Union of India (2018).

The two most recent significant changes that happened could be seen through the case of Navtej Singh Johar vs. Union of India (2018) and the Transgender Persons (Protection of Rights) Bill, 2019. Finally, Section 377 of Indian Penal Code (IPC) was scrapped by the court in the case of Navtej Singh Johar v. Union of India. This added a feather in the transgender’s cap. Additionally, the Transgender Persons (Protection of Rights) Bill, 2019 prohibits any discrimination against them in relation to education, employment, access to private or government establishments, and healthcare. Such provisions will ensure their well-being and foster their growth in the country.

IMPACT OF RECENT DEVELOPMENTS:

As the Transgender Persons (Protection of Rights) Bill, 2019 aims to protect transgenders’ from any discrimination, there exists now a specific prohibition against the discrimination of transgenders’. However, there are a few shortcomings of this bill. The bill has not specified any penalty for those who discriminate against transgenders’. The person who faces discrimination is not even entitled to any monetary compensation. Since there is the absence of any relief that could be availed by the affected person, the protection claimed to be given, in a real sense, will be ineffective. [4]

Additionally, Transgenders’ can apply for a certificate of identification (Certificate). If a transgender’s gender changes from male to female, this Certificate can be modified accordingly. Such a process of applying for a certificate and acting according to a certain set of rules go against the essence of the judgment, which recognizes personal integrity, privacy, and self-identity as basic rights of transgender people. Another drawback of this bill is that it does not deal with some significant aspects like procedure to be followed before issuance of the certificate, if a transgender can appeal if the certificate is denied to him, if there is any requirement to explain for the refusal of the certificate, etc.

In 2018, when Section 377 of IPC was scrapped, the decision marked an end of an era of suffering and abuse. This law that had divided the society into two halves; normal and abnormal, kept this community at the margin of the society. Their sexual preferences and conduct were not shared with their families and friends because of the fear of prosecution or blackmail.[5] Hence, this law will no longer be existing for abusing or fostering an atmosphere for violating the rights of humans of a certain kind, thereby ending discrimination that millions of transgenders’ might have faced for their sexual orientation or identity for a long time.[6] This decision of the Supreme Court will not only benefit India but will also inspire many other countries to take steps against such discrimination.

STATUTORY PROVISIONS

The four most important provisions for the rights of the LGBT community:

• Article 14 [7], which says that “the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

• Article 15 [8], which says that “the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex place of birth or any of them.”

• Article 19 [9], which says that “all citizens shall have the right to freedom of speech and expression; to assemble peaceably and without arms; to form associations or unions; to move freely throughout the territory of India; to reside and settle in any part of the territory of India; and to practice any profession, or to carry on any occupation trade or business.”

• Article 21 [10] says that “no person shall be deprived of his life or personal liberty except according to procedure established by law.”

CASE LAWS:

Navtej Singh Johar v. Union of India [11]

Finally, the court gave its verdict in favor of the LGBT community on 6^th September 2018. It was ruled unanimously by the court that section 377 of IPC is unconstitutional because it violates the fundamental rights of autonomy, identity, and intimacy, and homosexuality was decriminalized by reading down section 377 for excluding consensual sexual intercourse between homosexuals. It called Section 377 vague and claimed it to be violative of Article 19, i.e. freedom of expression. Further, the court claimed that sexual orientation is an intrinsic part of self-identity. Hence, invalidating the same will lead to denial of the right to life. It was also asserted that discrimination because of sexual orientation is unconstitutional. The government is also directed to create public awareness regarding the rights of the LGBT community and to eradicate the stigma that has been persisting in society for so long.

ANALYSIS:

The country has been progressing with a new mindset that accepts the LGBT community as a part of society. With several cases relating to the rights of LGBT people, the country tried to analyze the issue. While we have so many provisions in our constitution to take care of our basic necessities, the same has never been applied to these people. After years of struggles, the final judgment in Navtej Singh Johar v. Union of India brought a ray of hope in the lives of LGBT people. Not just that, the Transgender Persons (Protection of Rights) Bill, 2019 was also enacted to foster their rights. However, it falls short because of the unclarity of the penalty for discriminating and no procedure has been provided for receiving the certificate and certain provisions actually go against the spirit of the fundamental right.

CONCLUSION:

No doubt, laws have been made and changed for the advancement of the LGBT community, but there are some shortcomings of such laws that need to be considered, and hence, we are required to think of a new way to eliminate discrimination against this community. LGBT people are still not recognized as equal. The Transgender Persons (Protection of Rights) Bill, 2019 has to be clearer to effectively protect the rights of these people. Law is for everyone and its purpose is to ensure the safety and well-being of society. Thus, there should be laws for homosexuals for the protection of their rights.

However, what is more, important is to educate and to make the public aware of LGBT rights. They too are humans and hence human rights apply to them as well. Human rights are unalienable, unbreakable rights that are bestowed upon everyone from the moment they are born. Thus, they equally deserve to be valued and protected by having these rights.

REFERENCES:

[1] Holning Lau, ‘Sexual Orientation And Gender Identity Discrimination’ https://brill.com/view/journals/rpcd/2/2/article-p1_1.xml?language=en accessed 11 June 2021.

[2] Akshat Agarwal, Diksha Sanyal and Namrata Mukherjee Queering the Law: Making Indian Laws LGBT+ inclusive https://vidhilegalpolicy.in/wp-content/uploads/2020/06/Queering-the-Law_Introduction.pdf accessed 11 June 2021.

[3] Venkatesan Chakrapni and Arvind Narrain, ‘Legal Recognition Of Gender Identity Of Transgender People In India: Current Situation And Potential Options’ (UNDP) https://www.in.undp.org/content/india/en/home/library/poverty/legal-recognition-of-gender-identity-of-transgender-people-in-in.html accessed 11 June 2021.

[4] Aman Gera, ‘India: Analysis – Transgender Persons (Protection Of The Rights) Bill, 2019’ https://www.mondaq.com/india/employee-rights-labour-relations/851520/analysis-transgender-persons-protection-of-the-rights-bill-2019 accessed 11 June 2021.

[5] Geetanjali Misra, ‘Decriminalising Homosexuality In India’ (2009) 17 JSTOR https://www.jstor.org/stable/40647442?seq=1#metadata_info_tab_contents accessed 11 June 2021.

[6] THE TIMES OF INDIA, ‘Section 377: Impact Will Be Felt Beyond India’ (2018) https://timesofindia.indiatimes.com/india/section-377-impact-will-be-felt-beyond-india/articleshow/65712471.cms accessed 11 June 2021.

[7] Constitution of India, 14.

[8] Constitution of India, Art. 15.

[9] Constitution of India, Art. 19.

[10] Constitution of India, Art. 21.

[11] Navtej Singh Johar v. Union of India [AIR (2018) SC 4321].