LGBTQ Community Rights and Sexual Diversity

Author: Sunil Kumar Sharma, Rabindranath Tagore University, Bhopal


Title of research paper – In today’s time (LGBTQ) lesbian, bisexual, transgender, and queer are a topic of much discussion, even in the Supreme Court, this topic remains a topic of discussion, a few days ago, the honorable Supreme Court, citing these communities, said that these communities have also been given full right to live their life and at the same time they also have the right to choose their life partner, but the right to marry is not a fundamental right, although the Supreme Court has given a decision by banning some rights, on 17th October 2023, this constitutional bench along with Justice DY CHANDRACHUD also includes Justice Sanjeev Khanna, Justice Hima Kohli, Justice BV Nagaratna and Justice PS Narasimha, in its decision, it refused to give legal recognition to gay marriage, but gave the right to adopt a child, because this recognition can be passed only by the Parliament because it is a matter of Parliament’s jurisdiction, It is very important to study about these communities because people from these communities are viewed with great ambiguity by the general public. The rights of these communities and the recognition of sexual diversity have become important issues in the global human rights and social justice debate in recent years. Historically marginalized, persons from the LGBTQ community have faced discrimination, social exclusion and violence due to their sexual identity or gender expression. In many countries, homosexuality has been criminalized and non-traditional sexual expression is being stigmatized, thereby violating basic human rights. Recently, there has been a significant movement towards legal and social recognition of LGBTQ rights. This paper examines the evolving legal framework and social perspectives on LGBTQ rights, particularly focusing on the rights to equality, freedom of expression, and discrimination. This paper analyzes the intersection of LGBTQ rights with other socio-political factors, such as race, gender, and class, and shows how these factors contribute to the struggles faced by these communities.


Research Paper Summary – In this paper, we will learn about all the rights related to the LGBTQ community which are given to them, as well as discuss the reservation given to these communities by the government, and we will also discuss how the diversity of these communities is reflected in society today, and what is their role in India.


Key Words – What are the rights of LGBTQ communities, gender discrimination against LGBTQ communities, social discrimination against people of LGBTQ communities.


Content Writing
Introduction – In this research paper, first of all we need to understand what is there in this word that people do not connect with much, LGBTQ community refers to groups of people who are different on the basis of their gender and sexuality, this can make it difficult for them to be open and live safely. Due to discrimination, there can be a situation of lack of employment opportunities for them and they can move towards poverty and lack of needs. The biggest reason for this is that if a person understands himself in this way and he is not able to tell his things to any other person, or he is not accepted by that society or he is used some bad words, due to which he is not able to present himself properly, if we try to understand the full meaning of these words then we can understand it like this.


L – Lesbian (lesbian women)
G – Gay (gay men)
B – Bisexual (people who are attracted to both sexes)
T – Transgender (people who identify as the opposite of the sex they were given at birth)
Q – Queer (people who do not identify their sexuality or gender identity in the traditional framework)

This community unites those people who are different from the traditional sexuality and gender identity in the society. People of the LGBTQ community struggle for their rights, respect, and equality in the society. We just put forward our thoughts about how we can change it in the literal sense but the full meaning is not complete. Now we will understand it from the perspective of these communities that what can be the full form of these communities and what can be their social rights and legal rights. Let us try to understand one by one.


Lesbian community – This is the name given to the community of women who consider themselves lesbians or identify themselves in a way that makes it clear that they are lesbians. And those women are necessarily more attracted to other women romantically or sexually, due to which all the people of the lesbian community in these communities provide a stable environment to women like them, so that they divide themselves into different classes so that the society does not look at the people living in those communities with a different perspective and create a safe and right environment for themselves. It becomes very difficult for the women belonging to these communities to live in a normal community, because the people of those communities like to look at them with a different perspective, like discriminating among themselves, having differences of opinion with them, even getting up and sitting in the midst of that society is prohibited.


Gay (homosexual men) – A community which is attracted to each other, as the literal meaning of homosexual is a man who is attracted to another man in such a way that he either wants to marry or has sexual intercourse with him, which are completely opposite to each other, if we try to understand it better, then we can say that it refers to the process of anal sex, “Nature’s arrangement against physical intercourse”, the same thing happens with them as happens with the people of the lesbian community, in the same way discrimination develops in the society, they are also seen in the society from a different perspective, which is in accordance with the law.
The existence of the gay community is based on the natural diversity in human sexuality and gender identity, the main reasons for the people of such a community are as follows.


Biological diversity – Just as there are differences in human bodies and behaviour, there is also diversity in sexuality and gender identity, with some people being attracted to the same sex and some being attracted to the opposite sex.


Bisexual (people who are attracted to both sexes) – People of this community are defined as having romantic attraction, sexual attraction, or sexual behavior towards both men and women, or (generally) attraction towards people of more than one gender. What we call bisexual means men or women who are attracted to both sexes, that is, if we talk about a woman, then she is attracted to both men and women, or a man who is attracted to both women and men, then we will be considered to be of the bisexual community.

What is the difference between pansexual and bisexual?
Bisexuals are also often found to be pansexual. While pansexual is when a person is attracted to all genders, including cisgender, transgender, agender, non-binary and other gender non-conforming individuals. These definitions may sound very similar, but there is a distinct difference. Bisexual means being attracted to all genders, while pansexual means being attracted to all genders.


What can be the reason behind being bisexual?
No exact reason can be found out yet, but many reasons can be given to understand it, which are as follows.


Hereditary – Hereditary is the biggest reason which produces such hormones and it is given through one’s parents which is very much affected for the people of this community, it literally means that if someone in your house is suffering from any kind of such disease, then this becomes a major reason that whoever in that family goes through such a disease, then it is believed that such a person will also be born in his house who will form another community, that is, his body structure will be completely different from normal people.

Transgender – It is a broad term and such a term is used for such people whose gender identity is completely different from the gender they believed at the time of birth, that is, they identify themselves in a different gender. The word trans is often used as an abbreviation for transgender husband, I strongly believe that people with a different gender identity should be treated according to their gender identity, not their time of birth, so that people with such gender identity can present themselves correctly and maintain their presentation in society which will help them to overcome shame and build a normal life.
Queer – socially constructed roles, behaviors and characteristics that any person employs as part of their personal and identity sociocultural exploration. Generally, these monasteries are entered into one of two places: male or female. This reality is starting to change, as society is becoming more comfortable with the idea of seeing gender as a spectrum rather than a binary.


Hypothesis
• Situation of LGBTQ community people in India.
• Gender diversity among LGBTQ community people in India.
• Main reasons for gender diversity among LGBTQ community people in India.
• Their status in India and other countries.
• What are the constitutional and legal rights for LGBTQ community people in India.

Methodology of study:- In this research paper, historical study method has been used for the study, for this topic, important things related to gender diversity in LGBTQ community in India have been taken into consideration. And what such rights can be there for the people of these communities and the case laws related to them have also been included, the first and second studies have been included in this research and the collection of the second study is as follows, it has been done through some articles, Google Assistant, teachers, research journals, and different websites and books.


Case law related to LGBTQ community
It is very important to understand the case law related to these communities, so that we can understand what rights can be there for such communities because the society from which such communities are excluded, they must also have rights, whether that right is constitutional or legal.


• Navtej Singh Johar vs Union of India
The court discussed the premise of the Kaushal judgment. The court also considered how Section 377 is violated: 14 What discrimination is there against people on the basis of their “sexual orientation” and “gender identity”.
All five judges in ‘Kaushal’ rejected the Kaushal judgment. The court followed the principle of progressive realization of rights and said that the right should not be abolished. The progress of a progressive society should only be forward.


• Supriyo@Supriya Secretariat and others. vs Union of India
In this case, a five-judge bench of the Court held from the proposition that the right to marry is not a fundamental right, and relied on the distinction between the right to mate and the right to marry. The Court relied on its earlier jurisprudence to hold that the right to mate is a fundamental right, but only the state can enact a law to allow same-sex couples to marry. The bench discussed the right to marry of same-sex couples holistically, but the majority judge Priyanka held that the state has no obligation to legally recognise such civil marriages.
• Affirmed the Madras High Court judgment in Arun Kumar vs Registrar General (2019), which declared the marriage between a Hindu man and a transwoman as a valid marriage.


LGBTQ rights
A case came up regarding the LGBTQ community which changed the entire framework of Section 377 of the Indian Penal Code, due to which it was believed that Section 377 is an unconstitutional section which promotes gender diversity among people, let us try to understand what was there in this section due to which it was declared unconstitutional.


First of all, let us understand what is Section 377 of the Indian Penal Code, its literal meaning is that “consensual sexual relations between persons of the same sex have been declared a crime as it is against the order of nature. In 2009, before the Delhi High Court, the Naz Foundation Trust challenged the constitutionality of Section 377 for violating Articles 14, 15, 19, and 21 of the Constitution. The court ruled that punishing consensual sexual activity between two individuals under Section 377 violates such individuals’ rights to equality, privacy and personal liberty.


This decision was appealed in the Supreme Court in 2013, which overturned the Naz decision in Suresh Kumar Kaushal and others vs Naz Foundation and others, holding that only Parliament can decriminalize homosexuality.
This decision was given keeping all these issues in mind, in the context of Section 377.

1. Equality and non-discrimination
2. Freedom of expression
3. Right to life and personal liberty


Conclusion


After writing this research paper, we have come to the conclusion that just as there are many communities in India, the LGBTQ community is completely different from those communities and we have thoroughly deepened it in this research paper, before today, the people of these communities had to face a lot of problems, but in today’s time, the people of these communities have been provided with legal rights as well as constitutional rights, and not only this, but they have got their rights by facing various kinds of problems for their rights. To stop the crime related to this, The LGBTQIA + Persons (Protection of Rights) Bill, 2022 was made in the year 2022 so that its crime can be stopped.

FAQS


1. What is the main focus of the research paper on LGBTQ communities?
Answer:
The research paper focuses on the legal and social challenges faced by LGBTQ communities, their rights in India, and the evolving global perspective on sexual diversity and gender identity. It also examines recent Supreme Court rulings, the historical and social exclusion of LGBTQ individuals, and their struggle for equality, freedom of expression, and recognition in society.


2. What was the Supreme Court’s recent decision regarding same-sex marriage in India?
Answer:
On October 17, 2023, the Supreme Court of India, in a landmark judgment by a constitutional bench led by Justice DY Chandrachud, refused to grant legal recognition to same-sex marriages. However, the court affirmed the right of LGBTQ individuals to choose their life partners and allowed them the right to adopt. It clarified that the legal recognition of same-sex marriage falls under the jurisdiction of Parliament.


3. How does Section 377 of the Indian Penal Code relate to LGBTQ rights?
Answer:
Section 377 of the Indian Penal Code criminalized consensual sexual relations between individuals of the same sex as “against the order of nature.” In 2018, the Supreme Court decriminalized Section 377 through the **Navtej Singh Johar vs Union of India** case, recognizing the rights of LGBTQ individuals to equality, privacy, and personal liberty under Articles 14, 15, 19, and 21 of the Constitution.


4. What societal challenges do LGBTQ individuals face in India?
Answer:
LGBTQ individuals in India often face discrimination, social exclusion, and violence due to their sexual orientation or gender identity. These challenges include:
Social stigma: Being ostracized by family and society.
Economic struggles: Limited job opportunities due to bias.
Legal hurdles: Lack of legal recognition of marriage or inheritance rights in many cases.
Emotional distress: High rates of mental health issues due to societal rejection.


5. What legal provisions exist in India to protect LGBTQ rights?**
Answer:
India has made progress in recognizing LGBTQ rights:
Decriminalization of homosexuality (Navtej Singh Johar case, 2018): Overturned Section 377.
Adoption rights: LGBTQ individuals can adopt children.


Recognition of transgender rights: The Transgender Persons (Protection of Rights) Act, 2019 ensures the right to self-identify their gender and prohibits discrimination.
Equality and freedom: LGBTQ individuals are entitled to the same fundamental rights under the Constitution, such as equality before the law and freedom of expression.

Reference List


•Online Data
•Google Sources
•Articles
•Research Papers
•Case Laws
•Books
•Indian Penal Code 1860
•Indian Constitution
•Teachers
•Madhavi Patekar (Assistant Professor)
•Raju Sharma (Union Public Service Commission/Student)

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