INTRODUCTION

The fight for queer rights spans continents and cultures, reflecting both progress and persistent challenges. From legal victories recognizing diverse gender and sexual identities to ongoing struggles against discrimination and marginalisation, the global landscape of queer rights is dynamic and complex. 

Meaning

LGBTQIA+ is an acronym that brings together many different gender and sexual identities that often face marginalisation across society. The acronym stands for lesbian, gay, bisexual, transgender, queer, questioning, intersex, asexual, and the + holds space for the expanding and new understanding of different parts of the very diverse gender and sexual identities. Essentially, if someone identifies as queer, it typically means they are part of the LGBTQIA+ community.

Important Judgements

• Naz Foundation v. Govt. of NCT of Delhi (2009) : The Delhi High Court ruling first decriminalised homosexuality.

• Suresh Kumar Koushal vs. Naz Foundation (2013): A 2 judge Supreme Court bench in 2013 overturned the Delhi High Court case Naz Foundation v. Govt. of NCT of Delhi and reinstated Section 377 of the Indian Penal Code.

• National Legal Services Authority vs Union of India (2014): The Supreme Court of India recognized transgender individuals as the 'third gender', affirming their fundamental rights under the Constitution and granting them the right to self-identify their gender as male, female, or third gender.

• Navtej Singh Johar vs Union of India (2018):The SC overturned its 2013 judgement that upheld Section 377 of the IPC, under which gay sex was categorised as an “unnatural offence”.

• Supriya Chakraborty vs Union of India (2023): The five-judge bench upheld the validity of the Special Marriage Act, 1954, and held that the right to marry is not a fundamental right for queer persons.

Situation in india

• Homosexuality: Homosexuality is legal in India after the Supreme Court overturned Section 377 of the Indian Penal Code in the Navtej Singh Johar v. Union of India case, decriminalizing consensual sexual acts between adults.

• Cohabitation: Unregistered cohabitation is permitted in India, affirmed by the Supreme Court in the case of Supriya Chakraborty v. Union of India. The court ruled that LGBTQ+ individuals have the right to choose a partner, cohabit, and enjoy physical and mental intimacy without fear of threat or coercion, with the state obligated to safeguard these rights.

• Marriage rights: On October 17, 2023, in Supriyo v Union of India, a 5-judge bench of the Supreme Court had refused to grant legal recognition for same-sex marriages observing that it was a matter for the Parliament to decide.

• Adoption rights: In 2022, CARA(Central Adoption Resource Authority ) Regulations mandated a two-year stable marital relationship for adoption eligibility, rendering queer couples ineligible, further exacerbated by a circular banning adoption for individuals in live-in relationships.

• Military Recruitment: Currently, the Armed Forces do not accept transgender individuals or those identifying as homosexuals. In 2017, the Indian Navy discharged Sabi Giri, formerly Manish Kumar Giri, after undergoing sex reassignment surgery at a private facility.

• Blood donation: India has prohibited blood donations from transgender individuals, citing Clause 51 of the Guidelines on Blood Donor Selection and Referral(2017) by the National Blood Transfusion Council and the National AIDS Control Organization.

The Transgender Persons (Protection of Rights) Act 2019

• Rights

• Against discrimination: The Act prohibits discrimination against transgender individuals,including denial of service or unfair treatment in education, employment, healthcare, and housing.

• Penalties: Penalties under the Act include imprisonment ranging from six months to two years for offences against transgender individuals.Begging will no longer be penalised.

• Residence: The Act enforces a minor's right of residence, mandating transgender individuals below 18 years to reside with their natal family.

• Criticisms

• Burdensome Process: The Act mandates a complex process for legal gender recognition, including a Transgender Certificate and, after surgical transition, a revised certificate by the District Magistrate, contradicting the right of "self-declaration" upheld by the NALSA judgement.

• Unequal Punishment:The Act stipulates lesser punishment, ranging from six months to two years imprisonment, for abusing transgender individuals. In contrast, the same crime against a cisgender woman carries a punishment of life imprisonment or even the death penalty.

• Lack of clarity: The Act lacks clarity on welfare benefits and civil rights for transgender individuals, failing to align with the NALSA judgement's call for affirmative action in education, healthcare, employment, marriage, adoption etc.

• Judicial Support: Rights include being recognized as family for ration cards, setting up joint bank accounts, jail visitation, being deemed "next of kin" by medical practitioners, and accessing the deceased partner's body for final rites.

Challenges

• Discrimination:Queer individuals may face denial of housing, employment, education or healthcare services based on their identity, leading to economic instability, academic issues and health disparities.

• Bureaucratic red tapism: Transgender individuals often encounter bureaucratic hurdles when seeking identity certificates, facing intrusive questioning and refusals from District Magistrates, hindering their access to essential documentation.

• Mild penalties: The current penalty for discrimination against transgender individuals in India, ranging from six months to two years imprisonment, is the same regardless of the severity of the offence. This fails to address the prevalence of unreported and under-reported cases of violence, including murders and rapes.

• Ayushmann Transgender Health Card: Coming under the National Institute Of Social Defence (NISD), aimed to offer up to Rs 1 lakh for Sex Reassignment Surgery (SRS), but remains unrealized due to lack of financial support for its implementation.

• Lack of Sero-surveillance Centres: Only Kerala has established 'HIV Sero-Surveillance centres' under The Transgender Persons (Protection of Rights) Act to combat HIV transmission among transgender individuals, with no similar initiatives by central or state governments elsewhere.

• Complex Discussions : Engaging with diverse stakeholders, including the queer community, religious representatives, governments, and legal experts, to navigate the complexities of reconciling religious personal laws with the marriage rights of queer individuals is intricate and time-consuming.

• Scarcity of job opportunities: This perpetuates economic insecurity and hampers social mobility, exacerbating inequalities and hindering community development. They often resort to informal work like begging and sex work despite the criminalization of such activities.

• Example: A study conducted by the National Human Rights Commission revealed that in 2017, only 6 percent of transgender people were formally employed.

• Lack of Legislation: Queer rights legislation often falls short of addressing the real experiences of queer individuals, highlighting a gap between policy and reality. 

• Example: Despite a Pew Research survey conducted between June 2022 and September 2023 revealing 53% of adults supporting same-sex marriage legalization, this sentiment isn't reflected in legislation.

Way forward 

• Sensitisation: The government should prioritise normalising the existence of the transgender community through widespread sensitization programs and educating the public about transgender issues and promoting a message of non-discrimination.

• Shelter Homes: Increased resources and funding are essential to establish additional shelter homes for the transgender community, providing them with safe spaces to rebuild their lives and regain dignity. 

• Example: Garima Greh which is a shelter home for Transgender Persons works in collaboration with Lakshya Trust And aims to provide shelter, food, medical care, and recreational facilities for transgender individuals.

• Political discourse:  This is highlighted by proposals for legal recognition of queer rights in election manifestos, signalling a shift towards inclusivity in governance agendas.

• Example: This year's election manifestos show promising steps forward in LGBTQIA+ rights, with mentions of laws recognizing same-sex partnerships and protection for these relationships.

• Legislative measures: Closing this divide requires legislative efforts to better reflect and meet the diverse needs of the queer community.

• Example: The Transgender Persons (Protection of Rights) Act, passed in 2019, legally recognizes transgender individuals as a third gender and upholds their right to self-identification. It prohibits discrimination in education, employment, and healthcare services, ensuring fair treatment for transgender persons.

• Enhance Efficiency: Efficient procedures optimise workflows, reducing bureaucratic hurdles and ensuring timely outcomes, leading to improved service delivery and stakeholder satisfaction.

• Example: The National Portal for Transgender Persons enables digital application for certificates and identity cards nationwide, eliminating the need for physical visits. Applicants can track their application status, submit grievances, and authorities can monitor and expedite processing.

• Accessible Education: Education empowers queer individuals with knowledge, skills, and resources to advocate for their rights, access opportunities, and challenge systemic barriers. 

• Example:Maharashtra has passed a Government Resolution, ensuring free higher education for transgender students in public universities and affiliated colleges, covering diploma and technical courses.

• Employment: Expanding employment opportunities involves creating inclusive workplaces, fostering diversity, and implementing policies that combat discrimination, thereby promoting economic empowerment and social equality for all.

• Example:  i)The Chhattisgarh Police have recruited around 13 transgender persons as constables.

• ii) Inclusion of trangender category in various state PSCs

• Horizontal Reservation: Activists advocate for horizontal reservation, ensuring separate reservation within each category, to address the employment needs of the transgender community. Disabled persons are guaranteed horizontal reservation in all the general and reserved (vertical) alike, by the Central government.

• Example:  After Sangama v State of Karnataka, Karnataka became the first and only state to offer one per cent horizontal reservation to transgender persons in 2021.

• Stringent Penalties: Stringent penalties against discrimination promote accountability and deterrence, safeguarding LGBTQIA+ individuals from prejudice and ensuring their equal treatment.

• Improving healthcare: It involves training healthcare providers, implementing non-discriminatory policies, and offering specialised services tailored to the needs of queer people. 

• Example: i) The Kerala government introduces a "Queer-friendly hospital initiative" to ensure equitable healthcare services across the state. Initially launched in four districts, the initiative aims to eliminate discrimination, with plans to expand statewide.

• ii) The Mitr clinic in Telangana, initiated by 'Safe Zindagi', collaborates with 'Programme ACCELERATE' and the National AIDS Control Organisation to raise HIV-AIDS awareness and provide healthcare services.

• iii) The All India Institute of Medical Sciences (AIIMS) Delhi has announced that it would set up a dedicated Centre of Excellence for transgender healthcare on the campus. 

Recent global examples: Positive and Negative

Positive

• Thailand: Thailand's lower house passes a same-sex marriage bill, awaiting approval from the upper house, which would make Thailand the first in Southeast Asia and second in Asia (after Taiwan) to recognize same-sex relationships. 

• Germany: Germany's parliament passed a groundbreaking law in April 2024, enabling transgender and non-binary individuals to change their legal documents to match their gender identity through a simplified administrative process based on self-identification.

• Mauritius: The Supreme Court of Mauritius has overturned the provision in the Criminal Code criminalising consensual sex between men, citing it as a discriminatory colonial relic. 

Negative

• USA: US laws restrict access to gender-affirming care and bar transgender youth from participating in school sports or using bathrooms aligning with their gender identity. Additionally, laws banning books and prohibiting classroom instruction on sexual orientation or gender identity are of concern.

• Uganda: Uganda's Constitutional Court upheld the radical provisions of the 2023 Anti-Homosexuality Act.The ruling, including the death penalty in some cases, reflects a stance of hate and discrimination, undermining fundamental rights.

• Belarus: Belarus redefines pornography to include same-sex relationships and transgender individuals, equating them with necrophilia and pedophilia, escalating discrimination against the LGBTQ+ community. 

• Russia: Russian courts issue extremism convictions under a 2023 ruling labelling the "international LGBT movement" as extremist, with penalties for displaying the rainbow flag, exemplified by recent cases of detention, fines, and administrative penalties.

CONCLUSION

In conclusion, while significant strides have been made in advancing queer rights globally, the journey towards full equality remains ongoing. It is imperative for governments, institutions, and societies to continue advocating for inclusive policies, fos

Tags:
Polity

Keywords:
LGBTQ Inclusivity Queer Rights